ILLINOIS POLLUTION CONTROL BOARD
July
 21,
 1982
VILLAGE OF HANOVER PARK,
 )
Petitioner,
v.
 )
 PCB 82—69
COUNTY BOARD O~Du PAGE,
 )
THE
 Du
 PAGE
 COU~1TY FOREST
 PRESERVE
 )
CO~1MISSION AND
 H
 &
 H
 HAULING,
 INC.,
Respondents.
ORDER OF
 THE
 BOARD
 (by J. Anderson):
On July 15,
 1982, the County Board
 of Du Page
 (County) and
the Fo:rest Preserve District of Du Page County (District) peti-
tioried the Board to
 review
 the Hearing Officer’s orders concerning
discovery in this matter:
 a written Order of July
 6,
 1982
 (and
petitioner’s July 7,
 1982
written Interrogatories propounded
thereunder)
 and the oral rulings of the Hearing Officer on July 9,
1982 “denying the Respondents’ objections
 to almost all of the
Interrogatories
 set
 forth
 in
 Exhibit B.”
 Specifically the County
and
 the
 District
 object
 to
 interrogatorios propounded to their
members
 concerning
 pci itical
 campaign
 contributions
 and
 “ex—parte”
contacts
 (H.O.
 O~c1.crII),
 presence
 at
 the
 public
 hearing
 and
~‘ihether
 transcripts
 were
 reviewed
 (H.O.
 Order
 III).
 The
 Village
of
 Hanover
 Park
 (Village)
 filed
 its opposition thereto on
 July
 19,
1982.
Interrogatory
 answers
 were
 ordered
 to
 be
 filed
 July
 14,
 1982.
No answers having been filed, on July 15 the Village moved the
~3oardfor an Order compelling comoliance.
 The Village additionally
requested that the Board find that, by their failure to timely
respond to or appeal the Hearing Officers’
 Order, the County and
the District had waived the 90—day statutory decision deadline.
On July
 16, 1902,
 H
 & H Hauling resronded to the latter request,
stating that it believed the decision deadline could not be
entencled without its consent.
 On July 19,
 1982 the Village filed
a
 memorandum
 in support of its
 motion.
 The
 County
 and
 District
filed
 their
 response
 on
 July
 21,
 1902.
Finally,
 on
 July
 19
 the Village requested that the Board
issue
 a
 number
 of
 hearings
 subpoenae
 which
 include
 document
demands
 relating
 to
 the
 camoaign
 contribution
 and
 “ex-parte”
issues.
 It also requested that deposition subpoenae be issued,
a request which
 had
 been
 stayed
 by the Hearing Officer pending
47-441
2
answers to the interrogatories complained of.
 The Village
asserts
 that
 emergency
 consideration
 should
 be
 given
 to
 these
requests,
 as
 the
 required
 public
 hearing
 in
 this
 matter
 has
been
 scheduled
 for
 August
 2,
 1982.
 The
 Count~’
arid
 District
ffi.le1
 their
 response
 on
 July
 21,
 1982.
Currently,
 decision in
 this
 matter
 must
 be
 rendered
 by
 the
Board
 on
 August 19,
 1982.
Section 40.1(a)
 of the Act charges the Board,
 in
 an
 58—172
¶3ttl.ng decision appeal,
 to consider “the fundamental
 fairness of
the
 procedures
 used
 by
the
 county
 board..
 .
in reaching
 its decision”.
Section
 39.1. establishes some
 of
 the procedural
 requirements to
h~met by the county
 in the process of reaching its decision:
written notice of public hearing,
 a public hearing itself,
 a
“zritten
 decision
 based
 on statutory criteria, and so on.
 Other
‘statutes
 impose
 other procedural requirements,
 such as the
reaching
 of
 decisions
 at
 open
 meetings,
 quorum
 requirements,
~nd
 so
 forth.
 Whether
 such
 requirements
 have
 been
 met
 are
 the
pro~er
 3ubjecb
 of
 Board
 review.
 It
 is
 the
 Board’s
 opinion
 that
the Section 40.1(a) directive that
 it
 not
 hear
 “new
 or
 additional
e~itdencein support of or
 in opposition to any finding, order,
 :~t5rminat~ofl,
 or
 decision
 of
 the
 appropriate
 county
 board”
 does
not
 bar
 discover~’ of
 and
 introduction
 at
 hearing
 of
 evidence
relating
 to
 the
 meeting
 of
 these
 procedural
 requirements.
 The
record
 of
 a
 “public”
 hearing
 might
 not,
 by
 way
 of
 extreme
 example,
reveal
 on
 its face
 that
 some
 or
 most
 members
 of
 the
 public
 were
purposefully
 excluded
 from
 participating
 in
 a
 hearing,
 and
 a
written decision of a
 county
 hoard
 might
 not
 on
 its
 face
 reveal
that
 it
 was
 arrived
 at
 during
 a
 meeting
 at
 which
 a
 voting
 quocu~
was
 not
 present.
 Such
 facts
 must
 naturally
 he
 made
 available
for
 Board
 consideration
 if
 its
 “fundamental
 fairness”
 review
 is
to
 have
 any
 meaning.
These motions raise,
 for the first
 time
 in
 this
 type
 of
appeal, the issue of whether the Board
 is charged to review the
motives of the county hoard members in reaching their decision.
If
 so,
 the
 questions
 which
 seek
 to
 discover
 whether
 board
 members
received
 things
 of
 value
 from
 H
 &
 H
 Hauling,
 arguably
 in
 exchange
for
 a favorable vote,
 are
 relevant
 and
 should
 be
 answered;
 if
 net,
nob.
 The Board has
 long
 held
 in
 the
 context
 of
 its
 review
 of
Agency perndtting decisions that the motives
 per
 se
 of
 the
decisionmaker were not within the scope of its review, and so
finds
 in
 this
 context
 as
 well.
 The
 Board
 does
 not
 believe
that,
 in
 the
 90
 days
 allotted
 to
 it
 for
 review
 of
 these siting
decisions,
 that
 the
 legislature
 has
 charged
 it
 to
 go
 behind
 the
recorri
 and
 to
 essentially
 conduct
 a
 mini—investigation
 into the
possibility
 of corrupt practices or bad faith on the part of
the elected officials making the decision.
 Other, and more
appropriate, forums exist for an investigation and redress for
any
 such
 illegal
 actions.
47-442
3
The
 Board also finds
 the
 “exparte” contacts questions to
be improper.
 As the County and
 the District point cut,
 as co—
applicants with H
&
 E,
 the District members may necE~artiyhave
had contact with
 H
 &
 H COncerning the Districts’
 application,
vthich,
 in their capacity as County Board members, they were later
to render an
 ~i3—i72
 siting
 decision upon.
 As the Board
 indicated
in
 its June 10, 1982 Order,
 the issue of whether the Act itself
has
 created
 a fundamentally unfair procedure by which an individual
 in
 his
 or her capacity as member must adjudicate an application
made by
 that
 individual
 in another official capacity is a
 proper
subject
 for
 Board
 review;
 in
 the
 factual
 context
 of
 the
 instant
appeal,
 “e~ parte”
 contact
 isa
 meaningless
 term.
The
 Board
 finds
 that,
 while
 questions
 concerning
 Board
members’
 attendance
 at
 the
 public
 hearing
 is
 a
 relevant
 and
d~scoverabie
 concern,
 general
 questions
 concerning
 their
 reading
of
 the
 hearing
 transcripts
 are
 not.
 A
 “fundamental
 fairness”
review
 may
 properly
 concern
 itself
 with
 whether
 the
 decisionmaker
had
 an
 opportnnity~
 to
 review
 evidence
 either
 by
 a)
 in
 person
attendance at hearing or by b)
 review
 of
 transcripts
 physically
available
 to
 that
 individual
 prior
 to
 the
 making
 of
 the
 decision;
it
 is
 inappropriate
 to
 query
 that
 individual
 as
 to
 whether
 every
word
 of
 a
 transcript
 was
 read
 as
 it
 would
 he
 to
 query
 whether
attention
 was
 paid.
 to
 every
 word
 spoken
 at
 hearing.
In
 sum,
 Point
 II of the
 Hearing
 Officer’s
 Order
 is
 reversed
in whole,
 and Point lit
 is reversed as
 it relates to reading of
transcripts.
given
 the
 Board’s
 finding
 that
 only
 questions
 relating
 to
presence
 at
 hearing
 need
 he
 answered,
 the
 motion
 to
 issue
 depo-
sition suhpoenaes
 is denied,
 as
 the
 purpose
 for
 taking
 depositions
would
 appear
 to
 he
 inquiry
 into
 matters
 not
 properly
 discoverable.
The
 motion
 for
 issuance
 of
 hearing
 suhpoenae
 is
 denied
 on
 the
 same
ground.
 This
 ruling
 doa~ not
 foreclose
 direction
 to
 the
 Hearing
Officer
 of
 motions
 for
 issuance
 of
 subpocnae
 which
 seek,
 for
articulated reasons,
 to
 compel
 testimony
 on
 relevant
 subjects.
The remaining issue is the effect of the Villa.ge’s failure
either to timely
 answer
 discovery requests or to timely appeal the
Hearing
 Officers’
 production
 order.
 The
 Board
 agrees
 with
 its
Hearing Officer that “assertions of timely, thoughtful
 discovery)
objections...clo not constitute a waiver”
 of
 the
 90 day decision
deadline
 (11.0.
 Order
 V~.
 Ho~evor,
 the
 Board finds that failure to
take
 any timely appropriate action does constitute such a waiver,
as to nold otherwise
 would
 allow
 respondents——who
 alone
 can
 extend
the decision period——to deprive petitioners of meaningful
 Board
review by willful failure
 to
 respond
 to
 legitimate
 orders.
 In
response
 to
 H
 &
H’s
 argument
 that
 it
 has
 not
 been
 party
 to
 this
delay,
 the
 Board
 finds that,
 in this sort of appeal, delay of
one
 respondent nay be properly attributed to all to avoid any
possibility
 of
 collusive
 prejudicing
 of
 petitioners’
 rights.
47-443
4
1~
the
 ::onring Officer,
 in
 hth
 verbal
 order
 o~ July
 9,
 19fl2
~
 ~
 ~
 ~
 Y:c~u’
•~
 ~‘.~Y1to
ree~ond to
 discovery,
 Lu~
~
 ~p~j
 ~
 ~
 3
 c~1~iy~
 ~
 roe~ondas
 ~:ell
 ~
 f~ thc
~.1
~‘:y
 ~.s
 a~oa1 h:ts delayed
this
 ~~:occeding
 ~/days, the
~v~1
 n-l~ ~
 ~he
 :~eiston
 n~~iod
 h~i~
 been t:aivod ~or 7 days
~
 ~e~e:
of dn~s
actually
 taken
 for
 di~ove:y
 production
?~T~
 ~D
 this
tT 13 ~
I,
 t~taa
!,.
 ~‘2fett,
t~ir~rk
of
 the
 fllinoic;
 Pollution
~ntr
 1
 ~oar
 1.
 here’~y certif’~’ that
 the
 ~vo
 O::de~
t’~s
ac1optrd
sa tho
 ~
 ‘~.ays~!
 ~
 ~
 ._.
 ~
 by
 a
 vote
 ~r:
Chri~tart L,
 offett,~Clerk~
Illinoi~
?oilution
 Control
 Board
47-444