ILLINOIS POLLUTION CONTROL BOARD
March 21,
1984
TOWN OF ST. CHARLES,
)
Petitioner,
v.
)
PCB 83—228
KANE
COUNTY BOARD AND
)
ELGIN SANITARY DISTRICT,
)
Respondents.
CITY OF AURORA,
)
Petitioner,
v.
)
PCB 83—229
KANE COUNTY BOARD AND
)
ELGIN SANITARY DISTRICT,
)
Respondents.
KANE COUNTY DEFENDERS,
INC.,
)
ROBERT MOORE, VIRGINIA POLING,
)
ROBERT SWISSLER, AND AUDREY
)
PASHOLK,
Petitioners,
v.
)
PCB 83—230
)
KANE COUNTY BOARD AND
)
ELGIN SANITARY DISTRICT,
)
Respondents.
DISSENTING OPINION
(by B. Forcade and
J
D.
Dwnelle):
We dissent from the majority on two issues:
whether ESD
filed an adequate “request”, and whether the ex parte contacts
demand reversal.
We would reverse and remand the decision of the
County.
Two
terms of relevance are used in Section 39.2 of the Act.
The
first is “request”,
and the second is “written notice of such
request”.
Several factors lead to the conclusion that the General
Assembly intended the “request” to be at least similar to a
permit application,
i.e., it must contain sufficient information
to support an affirmative County Board finding.
57-219
2
1.
Section 39.2 requires the “notice of request to
be filed with many people and published; only
one copy of the “request” need be filed at one
location.
This implies that the “request” must
be a substantially larger amount of information
than is contained in the “notice of request”.
2.
The “notice of request” must include:
(a) name
and address of applicant;
(b) location of the
proposed site;
(C)
nature and size of the devel-
opment;
(d) nature of the activity proposed;
(e)
probable life of the proposed activity;
(f)
date
the “request” will be submitted;
and
(g) descrip-
tion of the right of persons to comment.
Therefore,
the “request” must include substantially more
information than that listed above.
3.
The copy of the “request” must be available for
copying
at the actual cost of reproduction.
It
seems unlikely the General Assembly would worry
about exorbinant copy costs
if they intended a
2
page “request” to satisfy the statute.
These
factors alone lead to the conclusion that the “request”
must contain significantly more information than is contained in
the “notice of request”.
Here,
the
2 page “request”
filed by ESD
contains significantly less information.
There is an additional
factor which leads
to the conclusion that the “request” must
contain sufficient information on each of the six criteria of
Section 39.2
(a) to support site location approval,
and that is
public participation.
Section 39.2
(c) provides that any person may file written
comments concerning the appropriateness of the site with the
County within 30 days of receipt of the “request”.
Since the
County may approve or disapprove site suitability based solely on
the six criteria of Section 39.2
(a), it is obvious that public
comment was intended to address those six criteria.
Unless the
“request” contains specific factual information on those six
criteria there is nothing for the public to comment upon and the
public participation provision is negated.
Here the public
comment period was closed at the end of the
30 day period.
At
that time the only information on file at the County was a
2 page
request reciting in conclusory language that each of the six
criteria had been met.
After the close of the public comment
period, and 2 to
6 days before hearing ESD submitted over
9
volumes of documentary information concerning the site.
All of
this information was available to ESD at the time the
2 page
“request” was filed.
57-220
3
The majority emphasized that information was available to
the public from ESD and that Defenders obtained information from
ESD.
We believe it was the intent of the General Assembly that
members of the public need not go to the applicant to retrieve
information concerning site location suitability, and this intent
is expressed in Section
39.2
(c) which provides for public inspec-
tion and copying of information at the County.
The second disagreement with the majority concerns the ex
parte contacts, specifically the September
1 restaurant meeting
between ESD and 6 of the County Board Members.
There is no
dispute that this meeting occurred after the adjudicative process
had commenced,
long before the decision was reached, and that the
sole purpose of the meeting was to influence those Board Members
in attendance to approve the site suitability.
All six members
subsequently voted to approve.
The majority approved this activity,
relying on E&
E Hauling
and cases cited therein, because there was no showing that the
process was irrevocably tainted or that petitioners suffered
undue prejudice.
Today’s decision is an unwarranted extension of
the previous case law.
*
E
& E Hauling cites three other cases
to support the rule
of law that ex parte contacts require remand of the decision only
where irrevocable taint or undue prejudice is shown.
To properly
interpret this rule the factual situation in all four cases must
be examined.
In Neuberger, opponents of a zoning change appealed the
Portland City Council’s approval of the change claiming ex parte
contacts.
They claimed that the city council employee in charge
of zoning had received draft language from the zoning change
proponents without providing notice or opportunity to comment
to
the opponents.
The Oregon Supreme Court
found that
(1) the ex
parte contact took place after the City Council had voted to make
the zoning change but before Council voted on the specific language
of the new zoning ordinance, and
(2) although the contact was
ex
parte the specific language had been submitted to the opponents
in another document more than two months before final action.
*
1.
Professional Air Traffic Controllers Organization v.
Federal Labor Regulations Authority,
685 F.2d 547
(D.C. Cir.
1982)
(hereinafter “PATCO”).
2.
Fender v. School District No.
25,
37
Ill. App.
3d 736
(1st Dist.
1976)
(hereinafter “Fender”).
3.
Neuberger v. City of Portland,
288 Ore. 585 (1980)
(hereinafter “Neuberger”).
57-221
4
In Fender,
a tenured teacher, who was dismissed by the
School Board, challenged the dismissal.
The teacher claimed that
after the hearing on his dismissal but prior to decision there
were ex parte contacts because the district superintendent and
opposing counsel attended the School Board meeting of August
29
where the Board deliberated the teacher’s fate.
The School Board
later dismissed the teacher.
The Illinois First District Appellate
Court held that since there was no claim or evidence that the
district superintendent or counsel offered evidence, addressed
the Board or participated in deliberations reversal was not
required
Mere attendance was insufficient to justify remand.
In PATCO, the Federal Labor Relations Authority (“FLRA”)
decertified the air traffic controllers union for a nationwide
strike in violation of 5 U.S.C.
§ 7116(b)(7).
One day before
oral argument in the appeal the Department of Justice informed
the District of Columbia Circuit Court of Appeals of potential
improper ex parte contacts by members of the FLRA.
The Court
found, with one exception, that the contacts fell into two cate-
gories:
(1) contacts between the prosecutor and adjudicator
which did not discuss
the
merits of the PATCO case and which were
unavoidable in such a small agency and
(2)
inquiries by interested
persons regarding procedures and timing that did not influence
the outcome.
The one exception
was
a dinner which FLRA Member
Applewhaite had with a longtime friend
Mr.
Shanker, President of
the teachers union.
Mr. Shanker was not a party to the
PATCO
case but did hold strong views, compatible with PATCO’s position,
on how that case should be decided.
The majority of the dinner
conversation was unrelated to PATCO, but for ten or fifteen
minutes Mr. Shanker did communicate with Member Applewhaite,
often in general terms, about the appropriate punishment
for a
striking union like PATCO.
Subsequently the FLRA,
including
Member Applewhaite voted to decertify the union,
a decision
against the position of PATCO and Mr. Shanker.
The Court found
that while the ex parte contact was improper
it did not require
remand.
In E& B Hauling,
Mr.
Heil
sought site suitability approval
from the DuPage County Board.
After the public hearing on site
approval,
Mr. Heil and his counsel met with the County Board
finance committee on April
19,
21,
23,
26 and 27,
1982.
Those
meetings were not subject to public notice nor attended by site
opponents.
The Illinois Second District Appellate Court found
these contacts improper, but did not require remand
for two
reasons.
First,
the Court
found that although the DuPage Board
had not formally approved the application,
it had essentially
made up its collective mind to approve the site before these
meetings and had moved to consideration of the appropriate condi-
tions
—
which is not adjudication.
Second, the only evidence or
argument at the meetings concerned conditions, not whether the
site should he approved~
Thus,
this case is like Neuberger in
that the contacts took place after decision.
57-222
5
The purpose of this rather lengthy case recitation is two-
fold.
The first purpose is to demonstrate that none of the cited
cases addressed a pre—decisional ex parte lobbying effort with
the decisionmaker subsequently voting with the lobby effort.
The
second purpose was to show that each Court went to great lengths
to demonstrate the limited factual scope of its holding.
Today
the majority has substantially expanded the scope of prior holdings
to approve pre-decisional ex parte lobbying of
6 people with a
subsequent favorable vote of
6 people.
We disagree.
Bill
S.
rcade, Board
bef’
/ 3/cob
D.
Dumelle, Chairman
—
I, Christan L.
Moffett,
Clerk of the Illinois Pollution
Control Board, hereby certify that the above Dissenting
Opinion
was filed on the ~7~day
of
~
,
1984.
~4~t
Christan L.
Moffett, !~lerk
Illinois Pollution Control Board
57-223