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11/20/97 RESIDENTS AGAINST POLLUTED ENVIRONMENT v.

November 20, 1997

RESIDENTS AGAINST POLLUTED ENVIRONMENT
v.
THE ILLINOIS POLLUTION CONTROL BD.



Petition for Review of Order of the Illinois Pollution Control Board. No. 97--139.

Released for Publication December 23, 1997.

Present - Honorable Tom M. Lytton, Presiding Justice, Honorable Michael P. Mccuskey, Justice, Honorable Thomas J. Homer, Justice. Justice McCUSKEY delivered the opinion of the court. Lytton, P.j., and Homer, J., concur.

The opinion of the court was delivered by: Mccuskey

The Honorable Justice McCUSKEY delivered the opinion of the court:

This case involves a local, regional pollution control facility siting appeal. The appellee, LandComp Corporation, sought siting approval for a new solid waste, non-hazardous landfill from the county of La Salle. After extensive initial public hearings, the La Salle county board granted siting approval with conditions on April 25, 1996. The Illinois Pollution Control Board (the Board), however, reversed on fundamental fairness grounds and remanded for additional hearings. Those additional hearings were concluded, siting approval was once again granted by the county, and the Board affirmed the decision. This timely appeal followed.

The appellants, Residents Against A Polluted Environment and the Thornton Foundation, argue that the siting procedures were fundamentally unfair because they were prevented from presenting evidence concerning pre-application, ex parte communications between LandComp and the county. After carefully reviewing the record, we affirm the decision of the Board.

FACTS

On October 31, 1995, LandComp submitted an application for siting approval to the county. This application sought approval of a pollution control facility pursuant to section 39.2 of the Illinois Environmental Protection Act (the Act) (415 ILCS 5/39.2 (West 1994)). Numerous parties filed notices of intervention in opposition to the application, including the appellants.

The first set of public hearings included fifteen days of testimony and a public comment period. The county's five-member siting hearing committee voted unanimously to recommend approval of the application subject to conditions. On April 25, 1996, the full county board voted to approve the application with the conditions recommended by the siting hearing committee.

The appellants appealed the decision to the Board. In their petition for review, the appellants argued that: (1) pre-application, ex parte contacts between LandComp and the county prevented the county from reaching a fair and impartial decision; and (2) LandComp was improperly allowed to influence the county's amendment of its Solid Waste Management Plan (the Plan). The county and LandComp filed motions seeking to prevent the appellants from presenting evidence or discovering information regarding any of these alleged contacts which occurred prior to LandComp's filing of their application for siting approval.

The Board granted the appellees' motions, specifically noting that section 40.1 of the Act allows review of the procedures employed by the county during the siting process only. 415 ILCS 5/40.1 (West 1994). Therefore, any allegation of improper amendment of a solid waste management plan by the county was beyond the scope of the Board's review. Regarding the other pre-application contacts, the Board held that the alleged pre-application contacts were not impermissible ex parte contacts. According to the Board, the activities of the county prior to the filing of a siting approval application were legislative functions, beyond the scope of the Board's review.

On September 19, 1996, the Board did, however, reverse the siting approval on other fundamental fairness grounds. Specifically, it found that failure to disclose to the public the contents of Volume VII of the application as well as a report prepared by the county's engineers rendered the siting procedures fundamentally unfair. The matter was therefore remanded for further hearings on the documents not disclosed to the public. The Board did, however, reaffirm its previous ruling regarding the exclusion of pre-application contacts. Residents Against A Polluted Environment, et al. v. County of La Salle and LandComp Corp., Ill. Pollution Control Bd., Op. 96--243 (September 19, 1996).

Prior to the second hearing, the appellants filed a motion to clarify the Board's previous order barring evidence regarding the pre-application contacts. The Board once again held that evidence concerning these contacts was barred. After further hearings, the siting hearing committee voted not to grant the siting approval, but the full county board once again granted the siting approval subject to the same conditions as its previous approval.

The appellants again appealed the county's decision to the Board. This second petition reiterated the allegations of unfairness regarding pre-application contacts. The Board refused to consider the pre-application contacts, and on June 19, 1997, it affirmed the county's grant of the siting approval. Residents Against A Polluted Environment, et al. v. ...


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