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09/07/95 SOUTHWEST ENERGY CORPORATION v. ILLINOIS

September 7, 1995

SOUTHWEST ENERGY CORPORATION, PETITIONER,
v.
THE ILLINOIS POLLUTION CONTROL BOARD, CONCERNED CITIZENS FOR A BETTER ENVIRONMENT, AND THE CITY OF HAVANA, AN ILLINOIS MUNICIPAL CORPORATION, RESPONDENTS.



Administrative Review of the Illinois Pollution Control Board. No. 94-44.

As Corrected December 6, 1995.

Honorable Rita B. Garman, J., Honorable James A. Knecht, P.j., Honorable Robert J. Steigmann, J., Concurring

The opinion of the court was delivered by: Garman

JUSTICE GARMAN delivered the opinion of the court:

Southwest Energy Corporation (Southwest) obtained local siting approval from the City of Havana (Havana) for a waste-to-energy incinerator. A citizen's group, Concerned Citizens for a Better Environment (Concerned Citizens), appealed Havana's decision to the Illinois Pollution Control Board (Board). The Board reversed Havana's siting approval based upon a lack of fundamental fairness in Havana's hearing process. (Concerned Citizens for a Better Environment v. City of Havana (May 19, 1994), Ill. PCB Op. 94-44.) Southwest now appeals. We affirm.

Southwest, owned by John Kirby, filed its application for local siting approval with Havana on July 9, 1993. Concerned Citizens appeared by counsel on September 29, 1993. Havana hired a hearing officer and held three days of hearings on October 26, 27, and November 2, 1993. After the siting hearing, Christine Zeman, the hearing officer, submitted a report to the Havana city council (council) recommending findings of fact and conclusions of law. On December 21, 1993, the council granted local siting approval by passing Ordinance 986, which adopted Zeman's report by reference and incorporation. Concerned Citizens appealed Havana's decision to the Board. The Board held a hearing on April 6, 1994, which gathered the following information.

On September 16, 1993, the local chamber of commerce sponsored a luncheon with Pat Mahoney, who would speak about the proposed incinerator. Mahoney is the president of Energy Answers Corporation (Energy Answers), which would build the incinerator. There were approximately 75 people at the meeting. An opponent to the incinerator testified that a Havana city policeman prevented her from attending the meeting. She was told that no one would be admitted to the meeting unless he or she had an invitation. Five council members and Mayor Allen McNeil attended the meeting. McNeil did not request the police to be present, and he did not recall that a police officer was stationed outside the meeting room. McNeil knew there were objectors to the incinerator outside the meeting room, but he did not know anyone had been denied entrance to the building.

In October 1993, five council members, McNeil, the owners and publishers of the local newspaper, the president of the chamber of commerce, and Kirby, among others, toured an incinerator (SEMASS) in Massachusetts that was operated by Energy Answers. All council members were invited to take the tour. The week prior to the tour, three council members decided not to go. The council replaced them by informal consensus. Only people in favor of the incinerator participated, although they unsuccessfully attempted to include the three council members who were opposed to the incinerator.

The trip participants flew to Providence, Rhode island, on Friday and returned on Sunday. Kirby paid for the airfare, motel accommodations, and dinners on Friday and Saturday nights. The participants paid for their other meals. Kirby and SEMASS employees joined them for dinner on Friday night, but the SEMASS plant was not discussed. The participants toured the SEMASS plant on Saturday. They were divided into groups and given tours by SEMASS employees. The tours began at 10 a.m. and lasted two to five hours. The participants were allowed to ask anyone in the plant any question. They had lunch at the SEMASS plant. Several participants were given literature. In addition, some participants saw operating permits and records of emissions tests, but no one saw a complaint history of the plant. Kirby and SEMASS employees ate dinner with the participants on Saturday night, but the SEMASS plant was not discussed. The participants went sight-seeing on Sunday. They talked to local residents regarding the plant and its impact on the surroundingarea, and the local residents made no negative comments regarding the SEMASS plant.

The council members had a favorable impression of the SEMASS plant after the tour. The SEMASS tour gave them an idea regarding what the proposed Havana incinerator would look like. Council members stated their votes were based upon the siting hearing and not what they saw on the SEMASS tour.

Zeman, an attorney in private practice in Springfield, acted as the siting hearing officer on behalf of Havana. After Southwest filed its application for siting approval, McNeil met with Zeman to see if she would be interested in serving as hearing officer and developing a siting ordinance to establish procedural rules for the siting proceedings. They were joined by Kirby. Zeman learned during the luncheon that Kirby was the principal person behind the application. McNeil and Kirby met with Zeman to see if she was familiar with section 39.2 of the Environmental Protection Act (Act) (415 ILCS 5/39.2 (West 1992)) and the siting approval process in general. Both McNeil and Kirby participated in determining Zeman's qualifications.

Zeman subsequently contacted Kirby on several occasions. She spoke with Kirby seven times by telephone. Zeman's billing records, which were admitted into evidence, show phone calls to discuss "PROCEDURE," "ORDINANCE REVIEW," and "CRITIQUE OF ORDINANCE." Her records also show she "REVISED ORDINANCE PER KIRBY'S COMMENTS," "REVIEWED KIRBY COMMENTS/FAX," conferred with Kirby by phone "TO OKAY LATEST CHANGE" to the ordinance, and "FAXED DOCUMENT TO KIRBY *** FOR REVIEW; [CONFERRED WITH KIRBY BY PHONE] AS TO NOTICE MODIFICATIONS; *** REVISED NOTICE PER COMMENTS." According to Zeman, one phone call involved a draft of the notice, which had been sent to Kirby to insure that all the information was accurate. Kirby made two corrections: one concerned the address of the landowner and the other involved the actual terminology for location of the facility. Zeman had no contacts with Kirby during the hearings.

Zeman's fee agreement is also a matter of contention among the parties. It was signed by Zeman, McNeil (on behalf of Havana), and Kirby (on behalf of Southwest). The agreement required Southwest to forward payment of Zeman's bill directly to her. At one point Zeman sent Kirby a letter dated February 15, 1994, asking him to pay her fees. The letter states in part:

"The partners of this firm have expressed concern with the growing balance Southwest Energy owes for the legal services I've rendered ...


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