ILLINOIS POLLUTION CONTROL BOARD
April 4,
1985
BOARD OF TRUSTEES OF CASNER
)
TOWNSHIP, JEFFERSON COUNTY
)
ILLINOIS; CITIZENS AGAINST
)
WOODLAWN AREA LANDFILLS;
)
CYNTHIA CARPENTER;
ERNEST
)
CARPENTER;
HATIE
EJALL;
BYRON
)
KIRKLAND; PATRICIA KIRKLAND;
PEG O’DANIELL; RG~1~LD
O’DANIELL; DENNI~I~ROYER;
and PATRICIA SHR~
:
Pe:&i
ners,
PCB 84—175
COUNTY OF JEFFERSC~ ~nd
)
SOUTHERN ILLINOIS L.~~’~DFILL
INC.,
Respondents
JOHN
PRIOR,
Petitioner,
v.
)
PCB 84—176
)
(Consolidated)
COUNTY
OF
JEFFERSON
and
)
SOUTHERN ILLINOIS LANDFILL,
)
INC.,
Respondents.
JAMES YOHO APPEARED
ON
BEHALF OF ALL PETITIONERS
IN PCB 84-175,
THE BOARD OF TRUSTEES OF CASNER TOWNSHIP, ETAL.;
GEORGE C. LACKEY APPEARED ON BEHALF OF PETITIONER JOHN PRYOR;
KATHLEEN ALLING, STATE~SATTORNEY OF JEFFERSON COUNTY, APPEARED
ON
BEHALF
OF
THE
RESPONDENT
COUNTY;
AND
R.
EDWARD
VELTMAN,
JR. AND MARVIN G. MILLER
(CRAIN, COOKSEY,
VELTMAN AND PURSELL, LTD.) APPEARED ON BEHALF OF RESPONDENT
SOUTHERN ILLINOIS LANDFILL,
INC.
OPINION OF THE BOARD
(by J. Anderson)~
This Opinion
supports
the Board’s Order
of March
22, 1985
remanding this ~at~::~e~
to Jefferson County for further
proceedings.
63-297
—2—
This matter comes before the Board on petitions filed
November
29, 1984,
and December
3,
1984,
involving an application
by Southern Illinois Landfill,
Inc.
(“Southern”), pursuant to
Section 39.2 of
the Environmental Protection Act,
for site
location suitability approval for
a proposed regional pollution
control facility (“RPCF”) made to the Jefferson County Board
(“County”).
Due
to a deadlock of the County Board resulting in
failure by the County to grant
or
to deny approval within 120
days of the filing of Southern’s application, pursuant to Section
39.2(e)
Southe~riwas allowed
to
“deem the
request approved.”
The Nove~~::29,
1984,
petition was filed by the Board of
Trustees
of C~~rTownship (“Casner”), located within Jefferson
County; Citizt~~Against Woodlawn Area Landfills
(“CAWAL”),
an
unincorporate
:~oluntary association
of
Jefferson
County
citizens; and :~3ividualpetitioners Cynthia Carpenter;
Ernest
Carpenter;
Hat~).eHall;
Byron Kirkland; Patricia Kirkland; Peg
O’Daniell;
Rona~
O’Danieii; Dennis Shroyer;
and Patricia
Shroyer,
all
residing
in
the
immediate
vicinity
of
the
proposed
facility.
The December
3,
1984,
petition
was
filed
by
John
Prior,
a landowner in the immediate vicinity of the proposed
RPCF.
Because
both
petitions
seek
review
pursuant
to
Ill.
Rev.
Stat.,
1983,
chapter
111
1/2,
1040.1
of
the
same
“deemed
approved”
application,
the
Board
consolidated
these
matters
by
order
of
December
6,
1984.
All Petitioners assert that they
participated
in
the
local
hearing
before
the
County
Board.
The
Pollution Control Board
(Board)
conducted a hearing
in
this
consolidated matter on February 6,
1985,
in Mt. Vernon,
Illinois
the
transcript of which
is hereafter cited as PCB R.___
Southern filed an application with the County Board for
site
location suitability approval for
a proposed regional sanitary
landfill
on July
ii,.
l984~
The County Board held the statutorily
required hearing on ~ugust 10,
1984, where Southern presented
sworn testimony and submitted evidentiary exhibits
in support of
its proposal for a sanitary landfill. CAWAL and John Prior were
represented by counsel
at the County Board hearing
the
transcript of which hereafter
is cited as C.B.R.
_____
.
CAWAL
presented testimony and evidentiary exhibits.
Casner and named
citizens—petitioners assert that they attended the August 10,
1984, hearing.
On August 13,
1984,
at the regularly scheduled County Board
meeting,
the County Board voted on the issue of whether
to deny
approval of Southern’s application for site suitability.
The
County Board deadlocked with
a recorded vote of seven votes
in
favor
of denial,
six votes against denial, one abstention and one
member
absent.
The
County Board took a clarification vote,
phrasing the motion
in the converse,
that resulted
in seven votes
in favor
of approval, seven votes against approval and one member
absent
(PCB Exh~3,
15).
The County Board remained deadlocked
for the remaind~ of
the statutory 120 days and the
site location
suitability appI:~oation was “deemed approved” by operation
of law
63-298
—3—
on November
11, 1984.
As aforementioned, petitions for Board
review were then timely filed.
Board Jurisdiction
The Board,
in
its December
6, 1984, Order consolidating
these appeals,
requested
that the parties file briefs addressing
three
issues:
1)
“does Section 40.1(b)
convey jurisdiction on
the Board to review an approval granted by operation of law?.”
2)
“what
is the proper
scope of the hearing
to be held by the Board
in this situation” and 3)
“what
is the standard of
review to be
utilized by
thE
Board?”
On
January 4,
1985,
Respondent Southern
filed
a motion
:o dismiss this proceeding on the basis that the
Board lacked ju:isdiction.
On January
10,
1985,
the Board ruled
on Southern’s motion
to dismiss as well
as the other issues
raised concerning the nature of Board
review.
By
a 4—1 vote,
the
Board
found
that it had jurisdiction and,
therefore,
denied
Southern’s motion,
The Board
found that the scope
of the Board
hearing in this case would
be no different than that of a hearing
conducted
on
a written decision to approve by a local
body.
The
Board stated that:
“As provided in Section 40.1,
the County Board
and the applicant shall appear as co—
respondents at this hearing;
the rules
prescribed
in Sections 32 and 33(a)
of the Act
shall apply;
and the burden of proof
shall
be
on the Petitioners.
The County Board will be
deemed to have found that the applicant has
demonstrated compliance with each of the six
criteria listed
in Section 39.2(a).
No new
substantive evidence will be accepted at the
Board hearing.
However,
as
is usual
in these
proceedings, evidence may be introduced
concerning the standing of the parties,
the
completeness of the record certified by the
local
body,
and
the
fundamental
fairness
of
the procedures used by the County Board.”
The Board also found
that,
as
in other cases
involving SB
172
(also known as P.A. 82—682),
the decision of the County Board
must
be affirmed unless that decision
is contrary to the manifest
weight
of the evidence.
On February 11,
1985, Respondent Southern filed
a motion
renewing its objection to the Board’s jurisdicton.
The Board
affirms its January 10,
1985,
order and denies Southern’s renewed
motion to dismiss.
The Board will briefly review the basis
for
this ruling.
A more detailed analysis
is provided
in the Board’s
Order of January 10,
1985,
at page 3—7.
The Board presumes
that
Southern’s basis
for its motion
is expressed
in
its brief
of
January 4, l985~
63-299
—4—
Southern argues that the statutory language of Section
40.1(b) distinguishes an active “granting”
of approval by a local
government body from an approval
by operation of
law,
and that
only the active “granting
“
of approval
is contemplated
by the
appeal provision.
Southern also argues that Section 40.1
provides for appeals to the Board where a local body “refuses
to
grant approval” and where
it “grants approval,” but does not
provide
a special
route of
appeal
for “deemed approved”
requests.
It argues that “such omission was intentional because
there
is,
in
fact,
no decision to review”
(Southern’s Brief p.
4).
Petitione:.~Prior, Casner
arid CAWAL, et al.,
argue
in their
briefs,
that •~~~tion
40,1(b) makes no distinction between the
granting of
a~L:;~:ova1by “direct action”
or “written decision” and
granting of ap~:ovaiby “inaction”
or by”operation of
law”
(Prior
Brief,
p.
3; C~ner Brief,
p.
1~-2).
Prior argues that Section
40.1(b)
makes
i~
distinction between the granting
of site
approval
by di;:~ctaction
and the granting of such approval
by no
action, precisely because “the Act provides a single all—
inclusive vehicle for hearings and appeals relating
to site local
approval,
arid,
therefore,
the General Assembly did not need
to
provide
a separate provision for appeal of
“deemed approval”
requests.
To support
its general argument, Respondent Southern cites
Illinois Power Co.
v.
Illinois Pollution Control Board,
68
Ill.
Dec. 176,
112 Ill. App~ 3d 451,
445 N.E. 2d 820
(1983)
and
Marguette
Cement
Mfg,
Co..
V.
Illinois
Environmental
Protection
Agency,
39
Ill.
Dec.
759, 84
Ill,
App.
3d
434, 405 N.E.
2d 512
(1980),
for the proposition that the Board
is without
jurisdiction to review permits which have issued by operation
of
law.
However,
those
cases both involved different questions.
In
Illinois Power,
the court held that the Board had erred
in
its
interpretation that the 90 day limit on its own decision period
did not apply to NPDES permits.
Illinois Power did not involve a
third party appeal.
Furthermore,
in the case at hand,
there
is
no question but that the
120 day limit applies
to the County
Board’s decision and that,
by having gone beyond that date
without reaching
a decision,
the County Board has lost
jurisdiction to review the site suitability.
In Mar~quette
Cement,
the court held that the Board’s failure
to hold
a hearing
within the
90 day decision period resulted
in the permit being
deemed issued by operation of law.
Again,
this is not the
question presented
in this case.
Neither of
these
cases involve
a question of the Board’s authority to hear an appeal from a
action taken
“deemed” at
a lower
level.
Both
the Petitioners and Respondent Southern look to the
statutory scheme of SB 172
to support their positions.
Petitioner Casner argues that the 120 day deadline and the
“deemed approved” provision were intended
to protect the
applicant’s
right
to a decision from the
local body within
a
specified timeframe by imposing the sanction that after
the 120
63-300
—5—
days
the
local
body would
lose jurisdiction over
the matter.
It
further argues that thereafter
the “deemed approved” site
location
suitability may still
be challenged
in
a third party
appeal before
the Board on the basis that the six statutory
criteria
in Section 39.2(a) have not been met by the applicant.
(See Casner’s Brief,
p.
2—3.)
Implicit
in this position
is the
view that SB 172
intended to do more than simply grant
local
government bodies
a
role
in the landfill siting process; that
is,
it also intended
to insure that site locations were “suitable” by
requiring compliance with the six statutory criteria in Section
39.2(a).
In contrast to t~:. Respondent Southern argues that SB 172
established
a two part
~ecisiOflprocess
for
new
landfills,
allowing
local
governire~ts the responsibility to review the
location
of
the
facility and the Illinois EPA the responsibility
to perform a technical review of the proposed facility in its
permit review.
By its failure
to act, Southern argues,
the
County
Board
has
forfeited not only
its role
in the process, but
also
has
prevented
any review for compliance with
the six
statutory
site
location suitability,
criteria.
Implicit
in this
position is the view that the SB 172 review process was only
intended
to create
a role for
local government participation and
that compliance with the statutory criteria for siting was not an
independent concern of the General Assembly.
The Board interprets the language of Section 39,2(e),
stating that
“the applicant may deem the request approved,” as
meaning that the applicant may deem itself to have
the rights
that
it would have had under
the Environmental Protection Act had
the County Board actively and unconditionally granted approval——
no
more
and
no
less.
The Board believes the “deemed approved”
mechanism
was
intended to move the case along without penalizing
any
of
the
parties
to the process other
than the local body
itself. Specifically, this Board reaffirms
its earlier
interpretation that an approval by operation of law was not
intended to shield
the applicant from the special third party
appeal process established
in SB 172.
Standiri9ofCasr~erT~~nshi
On February 4,
1985, Respondent Southern moved to dismiss
Casner
as a petitioner,
claiming Casner had not participated
in
the County Board hearing of August
10,
1984.
The Board,
by Order
dated February
7,
1985,
denied Southern’s motion with leave to
renew
its
motion
after hearing.
The Board stated that “whether
Casner
‘participated’
in the hearing below
is a factual matter
and
any
dispute
should be addressed at hearing.”
On February 14,
1985,
Casner
filed
a
petition to intervene
in the event
the
motion
to
dismiss
were
to be granted.
On March 13,
1985,
Southern
filed
a
renewal of
its motion to dismiss Casner,
and on
March
15,
1985,
filed an objection to Casner’s petition
to
intervene.
On March l8~. 1985,
Casner filed
a response
to the
objecton
to
petition to
intervene,
Casner filed
a response
to
63-301
Southern’s
renewal
of motion
to dismiss Casner
as
a petitioner
on
March 15,
1985.
On March 18,
1985, Southern filed
a supplemental
motion
to
their~
earlier motion
to dismiss Casner,
Section
40,1(b)
of the Act requires that only third parties
“who
participated
in the public hearing conducted by the County
Board
...
may petition the Board”
for review of a decision
granting
approval.
Southern, in
its motion to dismiss Casner,
asserts that Casner “did not participate”
in the county level
hearing.
Southern also argues that Casner
is powerless to act
“except
when the members act together and as
a body,
and the
action
of
ind~iduals, in ordcr
to bind
a city or
similar
municipal
entity, must be tak~nin a meeting duly organized.”
Southern makes
the unverified assertion that Casner
has not
“acted”
through the appropriate method “by resolution or
otherwise”
and therefore has not “participated” and should be
dismissed.
There
is no evidence
in
the county level
record
certified
to
the
Board that Casner
filed
a formal appearance,
provided
testickony or cross—examined witnesses.
Apparently,
it
is Southern’s
contention, that absent such formal documentation
of “participation”,
Casner
should be dismissed.
Casner
presented sworn testimony at the PCB hearing that at
least
three
trustees of
the Board of Casner Township,
including
the
township
supervisor,
attended the August
10,
1984,
hearing
in
their
capacity
as township officials (PCB R.
101—106),
One
trustee testified he was not aware of any documents that
attendees could or should sign
in order
to prove
their attendance
(PCB R.
103),
The County level hearing was attended by
over
120
people
(CB R,
271),
It began on August 10,
1984,
and continued
until approximately 2:00 a,m,
on August
11, 1984
(CB
R.
213,
268,
271).
The
record
is replete with the hearing officer’s comments
and
rulings restricting
the length
of testimony and questions
(see
infra,
p.
8,
9),
Under
these circumstances, “participation”
in the
hearing was,
in a very practical sense,
limited to
attendance for most of the people.
The Board has not previously been asked
to consider what
constitutes sufficient “participation”
to afford standing
to
appeal a siting decision,
As the record
in the PCB hearing
indicates that at least three trustees of Casner Township
attended the county level hearing
in their
capacity as township
officials,
the question is whether this
“mere” attendance is
sufficient.
The Board believes that it
is.
One of
the clear
purposes of the county level hearing requirement in the SB 172
process
is to encourage public participation in siting
decisions.
Allowing public access to environmental proceedings
and the encouraging citizen participation are some of the
fundamental policies
of the Act,
To require some higher level of
“participation”
for
a third party appeal would discourage that
clear public policy,
Southern’s next contention
is that Casner has not “acted”
as
a Board
in an appropriate manner,
Southern asserts,
in
its
63-302
—7—
motion of March 18, 1985,
that ‘the Clerk of the Board of
Trustees of Casner Township has orally stated to Respondent that
the Board of Trustees of Casner Township, prior to hearing of
August 10,
1984, did not adopt by resolution, or in any other
manner
in a meeting duly organized,
the authority of any of its
members to participate on behalf of said Board of Trustees.’
Even were the Board to accept such unverified, hearsay assertions
as evidence, the argument would fail.
The record does not show
what internal process is used in Casner Township to authorize its
official participation at SB 172 hearings; specifically,
there is
a lack of evidence that a resolution or other formal action by
Casner was necessary in order for the township officials to
attend in their official capacity.
Absent a showing that
Casner’s own procedures were violated, the Board must accept
Casner’s assertions that attendance of its trustees was intended
as an official
and
representative act, rather than as a private
and personal act.
The Board finds that Casner did participate at the county
level hearing and, therefore, Southern’s motion to dismiss is
denied.
Consequently, Casner’s motion to intervene
is denied as
moot.
Southern’s Motion to Supplement Record Below
At the
PCB
hearing on February 6, 1985, Southern made a
motion to supplement the County Board record previously certified
to the
Board.
The
proposed
supplement
was
a
partial
transcription and minutes of the August 13, 1984, County Board
meeting where the Board members deadlocked.
This motion was
docketed with the Board on February 11, 1985.
At hearing,
counsel for Petitioners objected to this motion on the grounds
that it was an incomplete and selective record of the County
Board meeting.
Eventually,
all parties agreed to the
introduction of a cassette tape of the complete County Board
meeting of August 13, 1984, which was recorded by the Clerk of
the County Board in his official capacity, in lieu of the partial
transcription and minutes.
This tape was admitted as PCB Exhibit
15.
Consequently, Southern’s motion of February 11, 1985,
is
denied.
FUNDAMENTAL
FAIRNESS
At
the outset, the Board wishes to state that it recognizes
that missteps can occur, in the SB 172 process, because of its
adjudicatory nature.
County and municipal board members as well
as other participants must abide by adjudicatory constraints and
restrict their customary personal interactions used in their
customary quasi—legislative setting.
However, even unintended
missteps are unacceptable if they abridge the fundamental
fairness of the proceeding.
The Board has construed Section
40.1(a) of the Act as requiring its consideration of fundamental
fairness issues, whether or not such issues have been raised on
appeal
(e.g.
Industrial Salvage v. County Board of Marion County,
PCB 83—173, February 22, 1984).
—8—
The
County
Boar
rin
Viewing the County hearing record as a whole,
the Board
finds
it to be fatally flawed,
The conduct of
the hearing as
a
whole can be characterized as unnecessarily rushed, arbitrary and
biased.
These shortcomings are more specifically detailed below.
The hearing apparently started
at about
7:00 p.m.,
and ended
around 2:00 a,m,
the next morning. The Board notes
that there
were continual cttempts
to hurry the hearing along, and
to
shorten
the
apy
icant’s presentation
and
attorneys’
questions.
Discussion was ~d
concerning recessing the hearing
at 10:00 p.m.
and reconvening
~henext evening,
but upon a vote of the
attending Boara
~cembersa decision was made to continue the
hearing past mitr~ight(C,B,R,
76,
100,
166,
191),
The
record
contains
no adect~ateexplanation for the haste here,
Southern
had filed
its apy~licationon July 11.
The August
10 hearing
could have been easily reconvened without jeopardizing the
County’s 120 day decision deadline, since only
30 days had
elapsed.
The Chairman of
the Board,
in his role as hearing officer,
repeatedly failed
to conduct the hearing in an impartial,
even—handed manner,
Cross—examination rights were seriously
abridged,
and bias continued unabated throughout the hearing,
particularly as
it related to Mr. Pryor’s attorney,
Mr. Lackey.
The Chairman apparently,
though incorrectly, believed that Mr.
Lackey’s participation should be
limited
to that of
a private
citizen because Pryor had himself an SB 172 application on his
own facility pending before
the County.
(C.B.R.
8),
Although
the Chairman backed away from his outright denial of Mr.
Lackey’s
right
to
participate,
he challenged
again
his
rights
to
act
as
legal
counsel
(C,B,R.
15,
16).
At one point,
Mr. Musick,
the
attorney
for
a
citizens group opposed
to the siting (CAWAL)
advised the Chairman, at the Chairman’s request,
that the statute
requires fundamental fairness, akin to due process,
and that
“interested parties have the right to appear and make their
statements
and
could confront and cross—examine witnesses, and
respectfully,
sir,
I believe that
this
gentleman
and
his
counsel
have the right
to cross—examine.”
No
one
disagreed
(C,B,R.
79).
The Chairman, however,
repeatedly continued to restrict Mr.
Lackey as
to scope and number
of questions allowed
(C.B.R,
80,
89,
114,
115, 116),
At one point the Chairman stated,
in
refusing Mr. Lackey the right
to continue
to cross—examine,
“You,
in other words,
are representing one party here and are asking
and cross—examining and taking time that
I think
is without the
benefit of the persons who have engineered and gotten Mr. Musick
as their representative”.
(C,B,R.
117),
The record shows
further
restraints at pages
118,
137, 166
(both Mr. Musick and
Mr. Lackey held
to the eight minutes used up by the proponents
and the County Board), and at pages
175 and 269
(Mr. Lackey held
to three minutes
for his final statement).
63-304
—9—
The Board
finds
that the events,
taken
together, resulted
in
a fundamentally unfair process,
The hearing “ground rules” kept
changing, cross—examination was selectively cut short,
participation was frustrated,
the times allotted for presentation
and questioning were arbitrary,
and
finally,
the
“exhaustion
approach” was used to complete the
hearing
at
one
sitting.
The
actions taken together had a dampening
and
prejudicial effect on
the applicant and the hearing attendees,
The Board
is
particularly concerned about constraining cross—examination and
public questioninq, since these activities
serve to enhance and
clarify the
ret.
I on which
the County Board must rely when
considering thr ~x
criteria (see
trial Salvae,
~
The Board there y~:eremands this proceeding
to Jefferson County
to conduct anott~rhearing to cure these defects,
All who wish
to add
to the record should be allowed
to do so,
Ex
Parte
Contacta
The Board
and the appellate courts have essentially defined
ex
~
contacts as those unnecessary
and
avoidable contacts
that take place without notice and outside the record between one
in a decision—making
role and a party before that tribunal
E
&
E
Hauling,
et,
al,
v,
Pollution Control Board,
et,
al,, 116 Ill.
App. 3d
586,
451
N.E.
2d 555
(2nd Dist,
1983),
Ordinarily,
the
Board would determine whether ex~~j~contacts irrevocably
tainted the proceedings,
thus requiring a reversal
of the
County’s Board’s decision
(although
in this case
it should be
again noted that the County Board
itself did not make a
decision).
Numerous ex~~y contacts are explicitly and impliedly
evidenced in the record on appeal.
The
applicant
was
in contact
with
Mr. Miller,
a county board member, and discussed the site
with him,
One
of the citizens being represented called Chairman
Wells
about work Mr. Miller performed
for
the applicant and was
told that Miller
shouldn’t vote,
The citizens were advised by
one of the attorneys
to contact Board members
to urge the holding
of another hearing.
The Chairman and another Board Member met
with and discussed the six criteria with the local newspaper
editor, which discussion was subsequently published.
(PCB R.
60,
61,
85, 111—117, 148,
151, 152,)
These contacts all took place
from the time the request was filed until the 120 day decision
period ended,
Since
the Board has already determined that this case
is
to
be remanded to the County because of a lack of fundamental
fairness
in the hearing process,
it need not determine whether on
the basis of any single ~
contact alone,
reversal of~this
matter would have been required
if the County had not deadlocked
but had actually taken action,
It is, however, clear that these
contacts served
to prejudice the hearing,
if not also
the vote.
By way of dicta,
the Board admonishes the County Board and the
participants to conscientiously adhere
to the cx parte
constraints during the period of remand of ~
63-305
—10—
Conflict
of
Interest
One
other
issue
concerning
fundamental
fairness
was
raised
at the PCB hearing, namely,
a conflict of interest.
It was
argued that Mr.
Miller,
a County Board member, should
not have
voted and should not have been present during the County Board’s
vote concerning the site because of work he had done for the
applicant.
Miller, who owned an excavating company, testified at the
PCB hearing that
the owner of Southern Illinois Landfill,
Inc.
“flagged him down” after
the application was filed, and sought
assistance from biller on getting some test holes dug at the
site.
At this
Lime Miller recommended
he get someone else
to do
the work, both because of his connection with the County Board
and
because
of
lack of time.
Before
the hearing,
the owner
again
contacted Miller, at which time Miller agreed to perform the work
later
that day, after
the owner
told Miller
he was unable
to hire
anyone
else.
Miller
dug
five test holes and,
one month
later,
returned
to
fill them up.
Miller charged his hourly rate of $35, and
estimated
that
it took him about
1 1/2 hours
to dig the
2’
x 10’
x
12’
holes
and
no
more than one hour to later fill them up.
He
thought the holes may have been dug
to see
if water
would pass
through, but was unsure,
In response to questioning, Miller
stated that he did not have the equipment to do the kind of
excavation needed to develop a landfill.
(PCB R. 36—63).
At the County Board
meeting of August 13,
1984, during
the
vote on the applicant’s petition,
two motions were made, the
first to deny and the second to approve.
Upon the motion to deny
approval,
Mr.
Miller responded to the prompt of the Clerk
by
voting
“no”,
Upon questioning by Chairman Wells
as
to whether he
felt he was
in a conflict of
interest, Miller said he did not,
but agreed
to change his vote
to “a pass”,
stating
it would
be
the same as
a no vote,
On the second motion, Miller voted yes.
(PCB Exh.
15),
Miller, at the Board hearing,
explained that he voted
“present”,
rather than no on the first vote because he had word
that people were going to object
to a possible conflict.
On the
second
motion
he
voted yes,
because
he
“wanted
a
landfill
anywhere
we
can
get it.”
(PCB R70),
At the Board hearing,
Mrs.
Shroyer,
of the opposing CAWAL
citizens group,
testified that
it was her husband who had called
the chairman about
the excavating work the day she had taken
pictures of Miller
at the site while excavating on August
1,
1984.
She said she did not raise this issue at
the county
hearing or
at the County Board meeting because “we did talk to
Wells
and it was our understanding that he Miller
would not
vote that night.~ She also testified that her group
left the
room before
the vote took place
(PCB R.
190, 191),
83-306
—Il—
Some
fundamental principals relating to conflict of
interest
were laid down by the Illinois Supreme Court in In Re Heirich,
140 N.E.2d 825 (1956),
at 838~9:
“It
is a classical principle of jurisprudence
that no man who has
a personal interest in the
subject matter
of decision
in
a case may sit
in judgment on that case,
*
*
*
For the
guidance of
this court’s commissioners
in
future cases and of all other persons
required
to
find
1
~ts
C.
apply law in adversary
proceedi
,
~u
i~cialor administrative,
we
hold
that::,
cen such an arbiter has a financial
interest
the subject matter,
even though he
personallve
a man of the most fastidious
probity,
it
is his duty to recuse himself.
Be
must do so ~f challenged.”
The Board finde that Mr. Well’s excavating activities did
not reach
the level of
a disqualifying conflict of interest,
The
hourly work was minimal—~lessthan $150 in value——and
transitory.
Miller had no interest in Southern Illinois
Landfill,
Inc.,
and no continuing contractual relationship;
there
is testimony that the work performed would
not
be a first step
in
any
future
relationship with the company in developing
the
landfill.
However,
assuming
~
that Miller’s contract work was
a
disqualifying
financial interest,
the conflict was cured by
Miller’s change
of his “no” vote
to a
“pass”,
The Board
emphasizes, however, that it
is not condoning Miller’s and the
applicant’s actions.
Nor
is it condoning the failure by all
concerned
to
fully place
the issue on the open record.
The question has been raised as
to whether
if Miller had not
attended
the
County’s meeting,
it might have changed the outcome
of the vote;
this assumes that the County could act by a majority
of those present at the meeting rather than by a majority of the
15 member Board.
The Board need make no ruling at this time as
to whether local governments can rely on their various voting
procedures derived
from their enabling statutes, especially those
allowing offical actIon to be taken by other
than
a majority of
the local Board
in an SB 172 proceeding.
See
Section 39.2(a)
and
(c).
The Statutory Criteria
Given the Board’s determinatIon to remand this proceeding
for remedy of hearing deficiencies,
it would be premature for the
Board to address arguments concerning Southern’s success
or
failure
in meeting
its burden of proof concerning most of the
criteria.
However,
the Board will briefly address legal
arguments concerning Criterion No,
4,
in order
to promote
efficiency at the remand
hearing.
63-307
—12—
Under Section 39.2(a)(4)
of the
Act,
site
location
suitability may properly be approved when:
“the
facility
is located
outside
the
boundary
of
the
100
year flood plain as determined by
the Illinois Department of Transportation,
or
the site is flood—proofed to meet the
standards and requirements of the Illinois
Department of Transportation
and
is
approved
by
that
Dei::rtment,”
At the County cring,
Southern stated
there
is
a creek
along the west side
;~
the landfill
(C,B.R.
29)
and
it had plans
for
a compensatory 1~todstorage area
(C,B,R.
30),
Southern
testified that the i~~t~lity
is flood—proofed (C.B.R.
43).
On the
issue of Department
t~:
Transportation
(“DOT”) determinations,
three
exhibits
were ~ctered (Ex. 10,
11 and 49).
Exhibits
10 and
11
appear
to
be
a
fotc letter
from DOT to two different people
the
salient
portion
of which states:
“Inasmuch as the site
is located within
a
rural area and on a stream with a drainage
area of less than ten square miles, an
Illinois Department of Transportation,
Division of Water Resources permit will not be
required for the landfill,
With regard
to Section 39,1 of the Illinois
Environmental Protection Act, this letter
constitutes Illinois Department of
Transportation approval upon your receipt of
all appropriate Illinois Environmental
Protection Agency approvals.”
Exhibit
49
(also called Citizen Exhibit
7),
is a letter
from
the
same
DOT
Chief
Flood Plain Management Engineer and provides
in
relevant
part:
“As
I pointed our during your visit, there
is
a stream running through the site so,
obviously,
a portion of the site
is within the
100—year flood plain of that stream.
However,
no study has been completed by this Department
to define the extent of such flood plain.
Also,
due
to the fact that the stream drains
less than ten square miles at the site,
it
is
not within our regulatory authority and,
therefore,
a Department of Transportation,
Divison of Water Resources permit
is not
required,
I also advised you during our meeting that the
Department of Transportation has no specific
63-308
—13—
standards regarding flood—proofing of regional
pollution control facilities,
It
is my
understanding that the Illinois Environmental
Protection Agency
Agency
does,
Therefore,
if
a proposed facility meets all
of the
requirements of the Illinois Environmental
Protection Agency regarding flood-proofing,
it
is deemed
to comply with the requirements of
Chapter 111 1/2, Section 39.1 insofar
as the
Department of Transportation is concerned.”
The Board construe
this language as constituting DOT approval
pursuant
to Criteri
n No,
4,
The only mechanism in the Act by which
the Agency can
approve
a facility design is by way of the permitting process,
which
the Agency
is precluded from doing until
after
the County
Board
approves site location suitability
see
Section 39(c).
Arguably,
then,
the statute creates
a “cart before
the horse”
situation,
as DOT cannot approve
a facility until
after
an Agency
permit
is issued, although the Act
is clear
in stating
that an
Agency
permit
can issue only after
local government approval
which must be based on DOT approval.
It was further argued that
Criterion No,
4 cannot be met
in this manner,
However,
the
Board does not find this argument
to be
persuasive.
Criterion No,
4 does not,
by
its terms,
require
or
allow
the
County
to “second guess” or
to evaluate DOT
determinations.
The floodproofing determination has been solely
delegated by the legislature
to DOT, with the County being
required
to accept any DOT approval determination,
Thus,
DOT’S
determination of the sufficiency of
its permitting requirements,
any DOT decision to establish
its standards and requirements by
interagency reference,
and any DOT reliance on subsequent Agency
action
in granting DOT approval, are not subject
to County
review.
The Board
notes that other portions of
the design and
operation of the facility as proposed at the County Board hearing
are also subject
to subsequent alteration during the Agency
permitting review process,
if the Agency determines such
alterations
to be necessary to fulfill the requirements
of the
Act (see Section 39),
This Opinion constitutes
the Board’s findings
of fact and
conclusions of
law in this matter,
B.
Forcade and
3.
T, Meyer dissented,
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board hereb
certify that the above Opinion was adopted on
the
___________
day of
~
1985 by a vote
of
____~~~~~____,
Dorothy
M. Gu~, Clerk
Illinois Polldtion Control Board
63-309
