Petition for review of order of Pollution Control Board.
JUSTICE LEWIS DELIVERED THE OPINION OF THE COURT:
This case consolidates two appeals from an order of the Illinois Pollution Control Board which affirmed the Illinois Environmental Protection Agency's issuance of a permit for the construction of a hazardous waste disposal site. Case No. 82-180 is an appeal brought by the Attorney General of the State of Illinois. Case No. 82-190 is an appeal brought by the County of La Salle and others.
The recipients of the permit have cross-appealed from certain findings of the Pollution Control Board.
The appellants in case No. 82-190 are the County of La Salle, the village of Naplate, the city of Ottawa, the village of Utica, Ottawa Township Board of Trustees, the town of Ottawa, Residents Against Polluted Environment, Rosemary Sinon, Marie Madden, and Joan Benya Bernabei. These parties will be referred to as "petitioners."
The named appellees in both cases are the Illinois Pollution Control Board (Board), the Illinois Environmental Protection Agency (Agency), William Clarke, Pioneer Development, Pioneer Processing, Inc., and Wilmer and Edith Brockman. The Agency, the Board, and the Brockmans have not filed a brief in this appeal. William Clarke, Pioneer Development and Pioneer Processing, Inc., will be referred to as "Pioneer."
On July 1, 1980, Pioneer and others filed an application with the Illinois Environmental Protection Agency seeking a modification of an existing permit. The existing permit authorized the development of a sanitary landfill and Pioneer's application for modification sought authorization to develop a hazardous waste disposal site. The proposed development is to be constructed on a 177-acre site in La Salle County, Illinois.
The Agency scheduled a public hearing in Ottawa on November 21 and 22, 1980, pursuant to section 39(c) of the Environmental Protection Act (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1039(c)). The public notice of the hearing outlined the procedures that would be followed and provided:
"The public hearing will be divided into two parts: the day sessions will be reserved for an adversary hearing where legal counsel or other registered representatives of Pioneer Properties or an opposition group may present expert witnesses who will be subject to cross-examination by the other side. The evening session will be reserved for oral comments from individual local residents. Individuals commenting during the evening session will be limited to 7 minutes each, but they will not be subject to cross-examination. In addition, written comments for the record can be submitted during all public hearing sessions and for 14 days after November 22, 1980. Oral and written testimony will be accepted on the appropriateness of the Pioneer Properties site for the treatment and disposal of solid waste, including special and hazardous waste."
The day session on November 21 began with a presentation by various Pioneer personnel and technical experts describing the proposed project. After the Pioneer presentation, attorneys for interested persons cross-examined Pioneer's experts. Attorneys representing La Salle County, the village of Ottawa, Ottawa township and several landowners in La Salle County participated in the cross-examination. In the evening session on November 21, 29 persons made public comments. The day session on November 22 consisted mostly of the cross-examination of Pioneer's witnesses by Michael Heaton, an attorney representing petitioner, Rosemary Sinon. Heaton also elicited evidence from his own expert witness.
During the November 22 hearing and prior to the close of the hearing, the hearing officer stated that the record would remain open until December 12 for written comments. Between December 3 and December 11, Heaton submitted material for the record which included resolutions in opposition to the permit from the Ottawa Township Board and the La Salle County Board. The material also included several petitions in opposition to the permit. Numerous citizens and some local governmental units also made post-hearing submissions opposing the permit. Pioneer's post-hearing submissions included responses to (1) issues raised by the testimony of Heaton's expert witness on the November 22 hearing; (2) statements made by citizens at the November 21 evening session; and (3) the cross-examination of Pioneer's experts.
The Agency issued a permit to Pioneer on December 22, 1980, which authorized the development of the site for hazardous waste disposal. The permit only authorized the construction of the site and specifically prohibited actual operation and disposal of hazardous waste on the site without an operating permit.
C. THE FIRST BOARD HEARING AND CIRCUIT COURT PROCEEDINGS
Petitioners filed a petition for review and revocation of the permit with the Illinois Pollution Control Board on January 26, 1981. The petition alleged, inter alia, that the Agency failed to perform its duty to protect the public health and environment; that the Agency proceedings violated the provisions of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1981, ch. 127, par. 1001 et seq.) and that the Agency procedures violated petitioner's constitutional rights to due process. The Board appointed a hearing officer who scheduled a hearing for April 6, 1981, to be held in Ottawa.
Prior to the hearing, Pioneer filed a motion in limine which requested the Board to specify the procedures to be followed at the Board hearing. Pioneer noted that section 40(b) of the Environmental Protection Act (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1040(b)) required the hearing to be exclusively on the record before the Agency. Pioneer suggested that the hearing should be limited to oral arguments by the parties and that the Board should not hear any additional testimony or factual statements.
Petitioners filed objections to Pioneer's motion in limine. Petitioners agreed that review by the Board should be limited to the record before the Agency but argued that the record submitted to the Board did not include all of the evidence on which the Agency relied in issuing the permit. Petitioners claimed that they were entitled to introduce this additional evidence at the Board hearing.
In its order ruling on Pioneer's motion in limine and petitioners' objections, the Board stated that if evidence outside the Agency record was offered at the hearing, the hearing officer was to rule on its admissibility. If the hearing officer admitted the evidence, the adverse party could note their objections to the Board. If the hearing officer did not admit the evidence, the party tendering the evidence would be allowed to make an offer of proof "where the proffer [was] otherwise relevant." The Board also stated that a reasonable time should be allowed for public comment. Finally, the Board stated that under section 40(a) of the Environmental Protection Act (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1040(a)), Pioneer may deem the permit issued unless the Board ruled on the petition within 90 days of its filing.
On March 20, 1981, 17 days before the scheduled hearing, petitioner Rosemary Sinon filed suit in the La Salle County circuit court seeking a declaratory judgment that the permit was void and asking for a preliminary injunction prohibiting Pioneer from proceeding in reliance on the permit. Pioneer, the Agency, the Agency's director, and Wilmer and Edith Brockman were named defendants.
After hearing arguments, Circuit Judge Leonard Hoffman entered an order finding that the proceedings before the Agency violated Sinon's rights under the Illinois Administrative Procedure Act and the due process clauses of the Illinois and United States constitutions and, as a result of these violations, Pioneer's permit was void. The order enjoined the named defendants from "enforcing or otherwise relying upon [the permit] and from undertaking, allowing or causing in any manner, directly or indirectly, any activity to develop a hazardous waste sanitary landfill pursuant to said permit." The order was dated March 5, 1981.
On April 2, 1981, a prehearing conference was held in Ottawa by the Board's hearing officer. Russell Eggert, representing certain petitioners, informed the hearing officer of the preliminary injunction and suggested that Pioneer could not participate in the April 6 hearing without violating the order. The hearing officer indicated that the hearing would be held as scheduled and would begin at 9:30 a.m. The next day, April 3, petitioners filed a motion to enforce the preliminary injunction. A hearing on the motion was set for 9 a.m., April 6 (the day of the Board hearing). After hearing arguments, Judge Hoffman issued the following order:
"Plaintiffs Motion to Enforce Preliminary Injunction * * * is granted:
(a) All parties to this cause are hereby ordered to refrain from proceeding in any way before The Illinois Pollution Control Board in cause No. PCB 81-10.
(b) The permit being void, the proceeding in No. PCB 81-10 shall not go forward until further Order of this Court.
(c) This Order shall apply to all parties hereto and to the Pollution Control Board."
At 10:05 a.m. on April 6, the hearing officer opened the Board hearing. Attorneys representing Pioneer and the Agency were present. Timothy Creedon, an attorney representing Ottawa Township, was also present and told the hearing officer that the Board hearing had been enjoined and that a written order was being prepared. The hearing officer stated that neither he nor the Board were parties to the circuit court proceedings nor had they received formal notice of the proceedings and that he would conduct the hearing as planned. The hearing officer noted that the petitioners were making no formal presentation in opposition to the permit and opened the hearing for public comment. One public comment was made. The hearing officer terminated the hearing at 10:20 a.m., 15 minutes after it had been opened.
At 11:10 a.m., April 6, the hearing officer reopened the record at the request of attorneys for petitioners who had been before Judge Hoffman that morning and had obtained a motion to enforce the circuit court's preliminary injunction. Attorney Karaganis delivered the enforcement order to the hearing officer and stated that petitioners were not proceeding with the administrative proceedings. The reopened hearing was closed at 11:16 a.m.
On April 16, 1981, the Board entered an order stating that pursuant to the preliminary injunction entered by the circuit court of La Salle County, proceedings before the Board were stayed until a final adjudication by the State courts> on the injunction. The Board construed the injunction as tolling the statutory 90-day limitation for a final decision by the Board. The Board determined that as of April 6, 1981, 20 days remained on the 90-day period. The injunction was eventually dissolved on January 25, 1982, by a mandate from the Third District Appellate Court. (See County of La Salle ex rel. Peterlin v. Mauzy (1981), 98 Ill. App.3d 615, 424 N.E.2d 857, appeal ...