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E & E Hauling v. Pollution Control Bd.

OPINION FILED JULY 17, 1985.

E & E HAULING, INC., ET AL., APPELLEES,

v.

THE POLLUTION CONTROL BOARD ET AL. (THE VILLAGE OF HANOVER PARK, APPELLANT).



Appeal from the Appellate Court for the Second District; heard in that court on petition for review of an order of the Pollution Control Board.

JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

On April 27, 1982, the Du Page county board approved a proposal to expand a refuse landfill at Mallard Lake, on land owned by the forest preserve district of Du Page County (the district). The village of Hanover Park, which is adjacent to the landfill site, and certain property owners of the village (the village) filed a petition for review of the county board's decision with the Pollution Control Board (the PCB). The PCB "overturned," to use the term in its order, the county board's approval on several grounds. The county board and the district joined with E & E Hauling (E & E), the landfill's operator, in appealing the PCB's decision to the appellate court. The appellate court reversed the PCB decision and reinstated the county board's approval of the proposed expansion. (116 Ill. App.3d 586.) We granted the village's petition for leave to appeal under Rule 315 (87 Ill.2d R. 315).

The landfill site, originally acquired by the district in 1956, was designated for use as a landfill in 1972 through a joint resolution of the county board and the district. The purpose in approving the landfill was to create a hill for recreational use. According to the resolution, the operation of the landfill would in no case extend beyond 19 years or 1993. In 1974 the district awarded E & E a contract to operate the landfill, and the Illinois Environmental Protection Agency (the Agency) issued developmental operating permits to E & E. Since then the district has been receiving royalties from E & E which average $30,000 per month.

During the years 1979-81, the district brought several suits against E & E to halt the depositing of liquid waste and sludge into the landfill. The district claimed that this practice was not contemplated by the original permits and that it had resulted in contamination of areas outside of the landfill. In 1981, the suits were settled. Part of the settlement called for the district and E & E to jointly petition the Agency for approval to expand the landfill. It appears that the useful life of the original landfill was much shorter than had been anticipated. The county and the district, after approving the proposed expansion through ordinances, petitioned the Agency on September 10, 1981, to permit the expansion. As of that date, it was the responsibility of the Agency to approve landfill sites and expansions through the issuance of operating permits. See Ill. Rev. Stat. 1979, ch. 111 1/2, par. 1039(a).

Before the Agency held a hearing, the General Assembly amended the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1001 et seq.) to give the power of approval of landfill locations to local authorities. (1981 Ill. Laws 3567, Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1039.1 (eff. Nov. 12, 1981).) Under the amended statute, if the proposed landfill is in an unincorporated area, the approving body is to be the county board. The 25 members of the county board in this case are also commissioners of the district, one of the co-petitioners in the application to the county board. Pursuant to the amendment, the county board held a public hearing on February 11, 1982, and on April 27, 1982, voted 16-7 to approve the proposed expansion of the landfill.

On June 1, 1982, the village petitioned the PCB for review of the county board action. (See Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1040.1(b).) An objection of the village was that the county board proceeding was fundamentally unfair because the board's membership was identical to the membership of the petitioning district. The PCB agreed, and it "overturned" the board's decision. The PCB held, too, that the board's approval was based in part on findings that were conclusory, and it remanded the dispute for a new hearing before a panel to be composed of Du Page County officials other than those serving on the board.

The county board, the district and E & E appealed the decision of the PCB to the appellate court. The village cross-appealed from the portion of the decision that remanded the cause for a new hearing. The appellate court reversed the PCB's decision, holding that the rule of necessity must be applied because there was no other forum to adjudicate the matter. The appellate court held too that the board's findings, which related to the statutory standard for site approval or expansion of pollution-control facilities, were proper, and reinstated the board's approval of the site expansion. 116 Ill. App.3d 586.

The village argues on appeal that it was entitled to due process, and that this was denied because of the conflict of interest and bias of the county board. In the alternative, the village contends that it was entitled to a fair hearing by the language of the Act, and that the rule of necessity could not be applied to deny this right.

First, we must consider whether the village has waived its right to object to the adjudicators. The village did not raise the issue of bias at the board hearing. One citizen simply commented that the district would gain financially from the approval. Generally, of course, a failure to object at the original proceeding constitutes a waiver of the right to raise the issue on appeal. (People v. Carlson (1980), 79 Ill.2d 564, 576-77.) "A claim of disqualifying bias or partiality on the part of a member of the judiciary or an administrative agency must be asserted promptly after knowledge of the alleged disqualification." (Duffield v. Charleston Area Medical Center, Inc. (4th Cir. 1974), 503 F.2d 512, 515.) The basis for this can readily be seen. To allow a party to first seek a ruling in a matter and, upon obtaining an unfavorable one, permit him to assert a claim of bias would be improper. It can be said that that was the situation here. The village did not claim that it was unaware of the alleged bias before the board hearing was concluded. Though exceptions to the application of the waiver rule as appeared in Doran v. Cullerton (1972), 51 Ill.2d 553, 558-59, and Wadlington v. Mindes (1970), 45 Ill.2d 447, 452-53, may not be present here, we will consider the issue because in part of the likelihood of its recurrence.

We reject the village's contention that its claim of bias may be grounded on the due process clause of the fourteenth amendment (U.S. Const., amend XIV). In Landfill, Inc. v. Pollution Control Board (1978), 74 Ill.2d 541, this court held that the omission of third parties from the permit-application procedure did not violate due process. At the time third parties did not have a right under the Act to participate in a hearing or to appeal from an approval of a landfill permit. This court, however, held that the existing procedure did not deny due process to third parties because section 31(b) of the Act permitted "any person" to bring a complaint against an alleged violator of the Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1031(b)). This provision is available to third parties under the Act today (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1031(b)), as well as rights and protections under sections 39.2 and 40.1 of the Act as amended (Ill. Rev. Stat. 1983, ch. 111 1/2, pars. 1039.2, 1040.1).

Section 39.2 of the Act provides protection against arbitrary action on the part of the approving authority by setting out standards to be met for approval. Under the 1981 amendment, section 39.2 of the Act provides that the "county board of the county or the governing body of the municipality * * * shall approve the site location suitability for such new regional pollution control facility." (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 1039.2(a).) The site approval is subject to satisfying the following standards:

"(i) the facility is necessary to accommodate the waste needs of the area it is intended to serve;

(ii) the facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected;

(iii) the facility is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding property;

(iv) 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 Department;

(v) the plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents; and

(vi) the traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows." Ill. Rev. ...


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