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06/30/94 EUGENE DALY v. POLLUTION CONTROL BOARD

June 30, 1994

EUGENE DALY, JANE SCHMIT, CARL WILLIAMS, SOUTH COOK COUNTY ENVIRONMENTAL ACTION COALITION, CITIZENS FOR A BETTER ENVIRONMENT, PETITIONERS-APPELLANTS,
v.
THE POLLUTION CONTROL BOARD, VILLAGE OF ROBBINS, AND THE ROBBINS RESOURCE RECOVERY COMPANY, RESPONDENTS-APPELLEES.



Appeal from the Illinois Pollution Control Board.

Rehearing Denied July 28, 1994. Petition for Leave to Appeal Denied December 6, 1994.

Cahill, Theis, Hoffman

The opinion of the court was delivered by: Cahill

JUSTICE CAHILL delivered the opinion of the court:

Petitioners, a group of citizens, appeal a decision of the Illinois Pollution Control Board (the Board) to allow construction of a solid waste incinerator and recycling plant in the Village of Robbins. Under the Environmental Protection Act (the Act) (415 ILCS 5/1 et seq. (West 1992)), incinerator and recycling plants are dubbed pollution control facilities. Their locations are governed by restrictive guidelines, and the local government where the plant is to be located must conduct a public hearing, develop a record, and submit its recommendation to the local board for approval. (415 ILCS 5/39.2 (West 1992).) The public hearing must be fundamentally fair, and one of the guidelines that must be met is that the location of the plant be flood-proofed. Petitioners contend on appeal that the public hearing held in this case was fundamentally unfair, citing three reasons in their brief, and that the Village board acted arbitrarily in finding that the plant and location met the flood-proof guideline. We affirm.

The Robbins Resource Recovery Company (RRRC) filed an application in 1992 with the Village of Robbins board trustees for approval of a pollution control facility to be located in Robbins. The Robbins Village board held a public hearing on December 22, 1992, and on February 2, 1993, approved the application. Appellants then petitioned the Board for review. (See 415 ILCS 5/40.1 (West 1992).) Section 40.1 of the Act requires the Board, in reviewing local approval, to consider the "fundamental fairness of the procedures used * * * in reaching its decision." (415 ILCS 5/40.1 (West 1992).) The Board ruled that the hearing was fundamentally fair and that the proposal met statutory requirements. One Board member Dissented.

Appellants now appeal to this court under section 41(a) of the Act. 415 ILCS 5/41(a) (West 1992).

We first consider whether the Village board held a fundamentally fair hearing. Fundamental principles of due process apply to administrative proceedings. ( Waste Management v. Pollution Control Board (1988), 175 Ill. App. 3d 1023, 1036, 530 N.E.2d 682, 693, 125 Ill. Dec. 524.) We held in E & E Hauling, Inc. v. Pollution Control Board (1983), 116 Ill. App. 3d 586, 451 N.E.2d 555, 71 Ill. Dec. 587, aff'd (1985), 107 Ill. 2d 33, 481 N.E.2d 664, 89 Ill. Dec. 821, that although there was no constitutional right to a fair hearing, the Act requires hearing procedures that meet due process standards of fundamental fairness. ( E & E Hauling, 116 Ill. App. 3d at 596, 451 N.E.2d at 564.) Our supreme court held in Telcser v. Holzman (1964), 31 Ill. 2d 332, 201 N.E.2d 370, that "procedural due process in an administrative proceeding does not require a proceeding in the nature of a judicial proceeding * * *." ( Telcser, 31 Ill. 2d at 339, 201 N.E.2d at 373.) But a fair hearing before an administrativeagency must include the opportunity to be heard, the right to cross examine adverse witnesses, and impartial rulings on the evidence. Abrahamson v. Illinois Department of Professional Regulation (1992), 153 Ill. 2d 76, 606 N.E.2d 1111, 180 Ill. Dec. 34.

Appellants first argue the hearing was unfair because a rally in support of the plant was held before the hearing began. At 6 p.m. on December 22, 1992, a group held a rally in the auditorium of the Robbins Recreational Training Center. The hearing was scheduled to begin there at 6:30 p.m. Proponents of the plant handed out buttons, hats, and literature. Two elected Village officials and a local minister spoke to the people assembled about the benefits of the plant to the community. They also made racial remarks about those who opposed it.

At 6:40 p.m. the hearing officer, a lawyer appointed by the Village board, entered the auditorium, went to the podium, and began the hearing. He called the role of the board of trustees, and the mayor of the Village of Robbins made remarks of welcome. The mayor said the Village board would base its decision on the record alone. The hearing officer then explained the rules contained in an ordinance passed by the Village board that would govern the conduct of the public hearing. The rules were distributed to everyone at the hearing.

RRRC offered expert testimony to support its belief that the plant met statutory requirements. Experts were cross examined until 11:30 p.m. The hearing officer then changed the order of the hearing set out in the rules. He proposed to allow opponents of the plant to testify before proponents. In the alternative, he offered to recess the hearing until 10 a.m. the next day. No opponent asked to recess the hearing. Testimony ended at about 2:30 a.m. on December 23, 1992.

Because the rally continued past the scheduled starting time of the hearing, appellants argue that proponents at the rally were permitted to "testify" first and in violation of the board's rules and procedures which listed advocates as ninth on the agenda. The Board found that the rally was not part of the hearing.

On review, we are to determine whether the Board's decision is against the manifest weight of the evidence. ( McHenry County Landfill, Inc. v. Environmental Protection Agency (1987), 154 Ill. App. 3d 89, 100, 506 N.E.2d 372, 379, 106 Ill. Dec. 665.) There is ample evidence to support the Board's finding that the rally was not part of the hearing. The mayor's opening statements and the hearing officer's actions show a clear break between the rally and the public hearing.

The Board also found that the record did not support the allegation that Village board members participated in the rally. Appellants argue that this finding supports their contention that the Boardmisapplied the law and imposed a requirement that petitioners prove the Village board members participated in the rally to establish a lack of fairness. We do not accept the inference. The Board made this finding of fact to support its ruling that the rally was not part of the hearing. The finding was not ...


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