ILLINOIS POLLUTION CONTROL BOARD
    April 17, 1997
    RESIDENTS AGAINST A POLLUTED
    ENVIRONMENT AND
    THE EDMUND B. THORNTON
    FOUNDATION,
    Petitioners,
    v.
    COUNTY OF LASALLE AND
    LANDCOMP CORPORATION,
    Respondents.
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    PCB 97-139
    (Pollution Control Facility Siting
    Appeal-Landfill)
    ORDER OF THE BOARD (by M. McFawn):
    This matter is before the Board on a motion to clarify filed by Residents Against A
    Polluted Environment and The Edmund B. Thornton Foundation (Residents) on March 18,
    1997. The respondent, LandComp Corporation (LandComp) filed a response to the motion to
    clarify on or about March 21, 1997. For the reasons stated below, the Board grants the
    motion to clarify and affirms its prior rulings barring the introduction of evidence of
    ex parte
    contacts prior to LandComp's filing of the application for siting on November 1, 1995 with the
    LaSalle County Board (County). The Board also bars any evidence pertaining to the adoption
    of the County's Solid Waste Management Plan, local conditions for siting approval, or
    procedural rules for the local hearing from being introduced at the Board hearing scheduled for
    April 22, 1997.
    On September 19, 1996, in PCB 96-243 (the original appeal) the Board vacated the
    decision of the County to grant siting to LandComp for a municipal waste landfill. The Board
    decision found a lack of fundamental fairness in the County's proceedings and remanded the
    case to the County for further hearings. (Residents Against a Polluted Environment and the
    Edmund B. Thornton Foundation v. County of LaSalle and Landcomp Corporation, PCB 96-
    243 September 19, 1996.) On January 17, 1997, the County again granted siting approval to
    LandComp and the petitioners appealed the decision creating this case before the Board.
    Prior to holding hearings on the original appeal, the Board granted a motion in liminie
    filed by the respondents which barred the Residents from presenting evidence of
    ex parte
    contacts which allegedly occurred prior to the filing of LandComp's siting application on
    November 1, 1995. (Residents Against a Polluted Environment and the Edmund B. Thornton
    Foundation v. County of LaSalle and Landcomp Corporation, July 18, 1996, PCB 96-243
    reaffirmed September 19, 1996.) This order also struck certain paragraphs of the Residents'

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    petition which related to the alleged
    ex parte
    contacts which occurred prior to the siting
    application being filed.
    In their motion the Residents seek clarification as to whether the rulings by the Board
    in PCB 96-243 regarding the non-admissibility of evidence pertaining to
    ex parte
    contacts
    which occurred prior to the siting application being filed are applicable to this case. (Motion
    at 2.) Specifically, the Residents wish to know whether they will be barred from introducing
    evidence pertaining to paragraphs 8D, E, F, L, and W and whether they will be barred from
    putting into evidence any matters which occurred prior to November 1, 1995 for the purpose
    of showing predisposition and bias on the part of members of the LaSalle County Board.
    (Motion at 2.)
    The motion to clarify requests that the Board state whether or not it will allow testimony which
    supports allegations 8(D), (E), (F), (L) and (W) of the petition for review.
    Allegations 8(D), (E), (F), (L) and (W) of Resident’s petition read:
    8. The decision of the LaSalle County Board granting the application for siting
    approval of the proposed municipal solid waste landfill is improper, defective, illegal,
    void, voidable, and incorrect for the following reasons:
    8(D). Certain members of the LaSalle County Board were predisposed to grant site
    approval and the decision of the County Board was reached as a result of fundamentally
    unfair procedures.
    8(E).
    Ex parte
    contacts between certain members of the County Board and
    the Respondent, LandComp Corporation, and its agents and representatives,
    rendered the County Board incapable of reaching a fair and impartial
    decision based solely upon the evidence.
    8(F). That both before and after the filing of the Application there existed a
    conspiracy between certain County Board members and LandComp
    Corporation and its principal owner, Paul Degroot, to approve an
    Application for siting approval by LandComp Corporation regardless of
    applicable laws, procedures, regulations, ordinances, and rules which would
    warrant a contrary outcome and regardless of any facts which would warrant
    disapproval of the Application.
    8(L). That even prior to the filing of the Application, the Applicant,
    through its agents and employees, had improperly influenced the County
    Board members so that they would be predisposed in favor of the Applicant.
    8(W). That the Respondent, LandComp Corporation, through it’s officers, agents, and
    employees, was improperly allowed to influence and dictate the development of
    amendments to the LaSalle County Solid Waste Management Plan, local conditions for

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    siting approval, and the procedural rules, relating to the proceedings. All the foregoing
    served to predispose the County Board in favor of the Applicant, even before the
    Application was filed. Ultimately the County Board's decision was based not on the
    evidence but on this predisposition.
    In support of their position that they should not be barred from presenting evidence
    relating to the above items, the Residents state that they reassert and re-allege all the
    arguments made by them on this issue in PCB 96-243. Residents also state that they believe
    evidence of corruption, undue influence, and overreaching is relevant to the case no matter
    when those acts may have occurred. Additionally, Residents argue that bias and predisposition
    on the part of the decision maker renders the proceedings fundamentally unfair no matter when
    it occurred. (Motion at 3.)
    In its response, LandComp requests that the Board reaffirm its prior decision barring
    evidence relating to the adoption of the County Solid Waste Management Plan, the local
    procedural rules, the local siting criteria, and
    ex parte
    contacts claimed by the petitioner.
    (Response at 4 and 5.) LandComp argues that the Board was correct when it ruled that
    evidence relating to actions between LandComp and the County Board which took place prior
    to the filing of the siting application were not reviewable under Section 40.1 of the Act. (415
    ILCS 5/40.1.) (Response at 2.)
    LandComp argues that the Board only has the authority to review "the fundamental
    fairness of the procedures used by the County Board or the governing body of the municipality
    in reaching its decision," as allowed by Section 40.1 of the Act. Thus, LandComp argues, the
    Board does not have the authority to review the legislative process of the local decisionmaker
    in enacting the Solid Waste Management Plan, local siting conditions, procedural rules, or
    alleged
    ex parte
    contacts prior to the siting application being filed. (Response at 4.)
    LandComp states that although it denies any improper conduct, it is not requesting that
    the Board bar any evidence of corruption or of a "fix" (as alleged by the Residents) relating to
    any County Board Member's vote in favor of the siting application. (Response at 5 and 6.)
    LandComp summarizes that what should be barred is evidence relating to LandComp's
    "constitutionally protected participation in the prior legislative process." (Response at 6.)
    The Board affirms its prior decisions in Residents Against a Polluted Environment and
    the Edmund B. Thornton Foundation v. County of LaSalle and LandComp Corporation, PCB
    96-243 July 18, 1996, reaffirmed PCB 96-243 September 19, 1996, finding that contact
    between the decisionmakers and an applicant prior to the application being filed is not an
    impermissible
    ex parte
    contact. In the July 18, 1996 Order the Board barred the introduction
    of evidence of
    ex parte
    contacts prior to the filing of the application on November 1, 1995.
    The Board affirms its prior decision which relied upon Citizens for a Better Environment v.
    City of Beardstown, PCB 94-98 January 11, 1995 (See also Southwest Energy Corporation v.
    Illinois Pollution Control Board, Beardstown Area Citizens for a Better Env., and the City of
    Beardstown, No. 4-95-0128 slip op. (Fourth District, March 15, 1996) (Unpublished Rule 23

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    order)) and hereby bars any evidence of
    ex parte
    contacts prior to the filing of the application
    for siting by LandComp on November 1, 1995 from being introduced at hearing.
    The Board notes, however, that this decision does not bar Residents from introducing
    all evidence related to allegations 8(D), 8(E), 8(F), 8(L), and 8(W). Only that evidence
    relating to
    ex parte
    contacts predating November 1, 1995 is barred. For example, Residents
    may introduce evidence in support of allegation 8(D) as long as that evidence concerning
    contacts post-dating November 1, 1995. The same is true concerning allegation 8(E). At
    allegation 8(F), Residents seek to prove that a conspiracy existed both before and after the
    application was filed. Under today’s ruling, Residents may not enter evidence pre-dating the
    application being filed, but they may enter evidence post-dating the application. However,
    Residents premise allegation 8(L) on the time prior to the siting application being filed. In
    accordance with today’s reaffirmation, evidence to support allegation 8(L) is barred.
    The Board also affirms its prior decision that evidence pertaining to the development of
    the County Solid Waste Management Plan, local conditions for siting approval, and the
    procedural rules for the local hearing is barred. In its July 18, 1997 order, the Board stated:
    Residents do not allege that the County’s Plan and amendment
    procedures
    were
    fundamentally unfair, nor do Residents claim
    that the County failed to
    follow
    its adopted procedures. Rather,
    Residents allege that actions taken by LandComp’s officers,
    agents and employees improperly influenced the
    adoption
    of the
    County’s Plan and procedures. However, this type of allegation
    is not proper for the Board to consider in a Section 40.1 landfill
    appeal. A reviewable Section 40.1 allegation would refer to the
    procedures employed by the County during the siting process and
    whether those procedures were followed and hence comport with
    standards of fundamental fairness.
    1
    No such allegation is before
    the Board. (Residents Against a Polluted Environment and the
    Edmund B. Thornton Foundation v. County of LaSalle and
    Landcomp Corporation, PCB 96-243 July 18, 1996, at 4 and 5.)
    In the current appeal, in paragraph 8(W) of the Residents' petition for review, the
    Residents again allege that LandComp improperly influenced the adoption of the County's
    Solid Waste Management Plan, local conditions for siting approval, and the procedural rules
    for the local hearing. Evidence supporting these allegations is hereby barred from introduction
    at hearing.
    1
    See 415 ILCS 5/40.1(b), referencing 40.1(a), which requires that the Board review the
    procedures employed below by the local siting authority to determine whether they were
    “fundamentally fair”.

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    The Board grants the motion to clarify and affirms its prior rulings barring the
    introduction of evidence of
    ex parte
    contacts prior to the filing of the application for siting on
    November 1, 1995. Additionally any evidence pertaining to the adoption of the County's
    Solid Waste Management Plan, local conditions for siting approval, or procedural rules for the
    local hearing is also barred from admission at the Board's hearing.
    IT IS SO ORDERED.
    Board Member J. Theodore Meyer concurred.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
    the above order was adopted on the _____ day of ___________, 1997, by a vote of
    ______________.
    ___________________________________
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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