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07/19/89 the City of Rockford, v. the County of Winnebago

July 19, 1989

THE CITY OF ROCKFORD, PETITIONER-APPELLANT

v.

THE COUNTY OF WINNEBAGO, RESPONDENT-APPELLEE (THE POLLUTION CONTROL BOARD, RESPONDENT)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

542 N.E.2d 423, 186 Ill. App. 3d 303, 134 Ill. Dec. 244 1989.IL.1121

Petition for review of order of Pollution Control Board.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. LINDBERG and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Petitioner, City of Rockford (City), appeals from a decision of the Illinois Pollution Control Board affirming the decision of the Winnebago County Board denying the City's application for site approval of a new regional pollution control facility.

On appeal, the City raises the following issues: whether the decision of the WCB denying the site approval was timely made; whether the decision by the PCB upholding the decision of the WCB was timely and completely made; whether the decision by the WCB was the product of a fundamentally unfair process due to ex parte contacts or to the unfamiliarity of the WCB's members with the record; and whether the decision of the PCB with respect to the merits of the decision of the WCB was against the manifest weight of the evidence.

On December 4, 1986, the City filed its application for site approval of a new landfill with the WCB pursuant to section 39.2(c) of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1039.2(c)). According to the application, the new landfill was to be located at the northeast corner of Baxter and Mulford Roads, was to consist of approximately 55 acres, and was to accept household nonhazardous waste from Winnebago County residents for approximately 19.6 years.

Commencing in March 1987 and through April 13, 1987, the WCB held hearings on the application. At the hearings, testimony was elicited from witnesses called by the City and by Save the Land, Inc., a group objecting to the granting of the application. Both sides called expert witnesses who, in turn, testified either in favor of or against the granting of the application.

Section 39.2(a) of the Act provides that approval of the site application will be granted only if the facility meets the following applicable criteria:

"(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 . . . or the site is flood-proofed . . .;

(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;

(vi) the traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows . . .." Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1039.2(a).

After meeting to discuss the recommendation of the zoning committee, on May 28, 1987, the WCB voted to deny site approval, determining that the City had met criterion (iv) but not the other five criteria. On June 3, 1987, the City was given written notice of the decision together with the reason for denial of the application. Also on June 3, 1987, the City filed a petition for hearing before the PCB.

On September 1, 1987, a hearing was held before a hearing officer of the PCB. The witnesses called by the City were or had been WCB members at the time of the May 28, 1987, vote. Before the PCB, the City argued that the WCB's decision as to the five criteria was against the manifest weight of the evidence and that the hearing before the WCB was fundamentally unfair due to ex parte contacts between the WCB and those opposed to the landfill site. The City also agreed to extend the PCB 120-day deadline for ruling (see Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1040.1(a)) to November 19, 1987.

On November 19, 1987, the PCB issued its opinion. The PCB, noting that some of the communications to WCB members were ex parte and concerned that some WCB members had prejudiced the case, concluded that fundamental fairness required supplementary hearings. The PCB specifically instructed the WCB as follows:

"The Board will vacate and remand the decision of the County with the following instructions: a) Winnebago County Board Members Bell, Barnard, Connelly, and Giorgi are disqualified from participating further in this matter; b) The substance of known ex parte contacts shall be made a part of the record and shall be the subject of an additional hearing; and c) The Winnebago County Board shall render a decision based exclusively on the six criteria of Section 39.2 of the Act and exclusively upon evidence in the record.

This will allow the substance of most if not all ex parte contacts, as well as the contact of radio and other ads, to be reviewed on the record. It will give all County Board Members a chance to re-evaluate the record and render a decision based solely on that record. The Board notes that the hearing record itself appears to be complete and developed in a fundamentally fair manner. This process should remove the procedural clouds from this proceeding and allow it to proceed on the merits."

The City sought leave to appeal from the decision of the PCB, but leave was denied by this court in January 5, 1988.

A supplemental hearing was held by WCB zoning and planning committee on February 27, 1988, at which time, 18 members of the WCB testified as to the scope of ex parte contacts they had received. An additional hearing was held on March 10, 1988, at which time five members of the WCB testified. ...


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