E & E Hauling, Inc. v. Pollution Control Bd.
| Citation | 71 Ill.Dec. 587,116 Ill.App.3d 586,451 N.E.2d 555 |
| Decision Date | 15 June 1983 |
| Docket Number | No. 82-701,82-701 |
| Court | United States Appellate Court of Illinois |
| Parties | , 71 Ill.Dec. 587 E & E HAULING, INC.; the County Board of DuPage County, Illinois; and the Forest Preserve District of DuPage County, Illinois, Petitioners/Cross- Respondents, v. POLLUTION CONTROL BOARD, Respondent, and The Village of Hanover Park, on its own behalf and on behalf of its citizens, Respondent/Cross-Petitioner. |
Jenner & Block, Thomas W. McNamara, Russell J. Hoover and Jose M. Sariego, Chapman & Cutler, Richard A. Makarski and Michael B. Carsella, Chicago, J. Michael Fitzsimmons, State's Atty., George J. Sotos, Asst. State's Atty., Wheaton, for petitioners/cross-respondents.
Karaganis, Gail & White, Ltd., Joseph V. Karaganis, Russell R. Eggert and David G. Lichtenstein, Chicago, for respondent.
E & E Hauling, Inc. is the operator of a landfill on property owned by the Forest Preserve District of DuPage County commonly known as the "Mallard Lake" site. It, joined with the County Board of DuPage County and the DuPage Forest Preserve District, seeks judicial review of a decision of the Illinois Pollution Control Board (PCB) which had reversed a decision of the County Board granting approval of a proposed modification and expansion of the landfill subject to certain conditions. The Village of Hanover Park has cross-appealed from that part of the decision of the PCB which remanded the cause for further hearings rather than reversing outright.
The DuPage County Forest Preserve District (District) acquired the 927 acre site in 1956 for recreational purposes. In 1972 the County Board and the District passed a joint resolution empowering the District to operate and contract for the operation of a sanitary landfill on the site, with a goal of improving the site's recreational and scenic value. In 1974 the District contracted with E & E Hauling, Inc. (E & E), a private waste disposal company, to operate the landfill. The Illinois Environmental Protection Agency issued development and operation permits for 1974 and 1975.
The contract was originally for a ten-year period commencing June 1, 1974, with additional two year extensions at the company's option. In no case was the period of the agreement plus any extensions to exceed nineteen years (i.e., past 1993), and the agreement would terminate upon completion of the development of the site (if before nineteen years).
Under the agreement the District would receive from E & E an amount equal to 10% of the amount charged by E & E for all waste material received or deposited on the premises during the first ten years of the contract, with an additional 1% added to the preceding period's royalty for each two year renewal period. The District would also receive 25% of the amount received by E & E from the sale of material recovered from the waste stream. The District also received the right to dump materials collected from its preserves at the Mallard Lake landfill at no cost. Evidence introduced on administrative review before the PCB showed that the District has, since the landfill started operating, received over two million dollars in royalties and has been collecting royalties at a rate of about $30,000 per month.
The original design of the landfill envisioned a north hill about 200 feet high, with a 90-acre base, and a south hill about 200 feet high with a 65-acre base, along with below-grade excavation and fill. The fill began operating in 1975 and by September 1981 the south hill was filled near the lateral limits of its original design. According to James Andrews, an environmental engineer and consultant to E & E, the projected total life of the landfill at the time of the original permit application was 42 years, but the projection was shortened after operations began because the quantities of refuse going into the fill greatly exceeded original estimates.
In 1979 the District and E & E were opponents in several lawsuits involving operation of the landfill relating to the acceptance of sludge at the site. In April 1981 the suits were settled and dismissed by the parties' agreement. The agreement provided, inter alia, that E & E and the District would jointly petition the Illinois Environmental Protection Agency for approval of plans to modify the design of the landfill to an expanded one hill concept. The District, by ordinance, approved the settlement and proposed modification. The PCB found that the agreement adequately protected the environmental interests of the State of Illinois.
On September 10, 1981, E & E and the District applied to the Illinois Environmental Protection Agency for permission to expand and modify the landfill according to the agreed-on "one-hill concept." On October 27, 1981, the County Board passed an ordinance approving the proposed modification and expansion. The Illinois Environmental Protection Agency scheduled a public hearing on the application for November 18, 1981.
In the meantime the General Assembly passed Senate Bill 172 (also known as Public Act 82-682), effective November 12, 1981, amending the Environmental Protection Act (Ill.Rev.Stat.1982 Supp., ch. 111 1/2, par. 1039.2), to transfer the responsibility for hearing and approving site location suitability permits for regional pollution control facilities from the E.P.A. to the relevant locality, in this case, the County Board. The statute requires the County Board to conduct a public hearing on the site location application and conditions approval of the application on proof that the proposed site meets certain statutory criteria. The statute also enables interested parties to obtain review of the County Board decision before the PCB. Ill.Rev.Stat.1982 Supp., ch. 111 1/2, par. 1039.2; Ill.Rev.Stat.1981, ch. 111 1/2, par. 1040.1.
The County Board held the required public hearing on the application jointly with the Illinois Environmental Protection Agency on February 11, 1982. Jack Knuepfer, Chairman of the DuPage County Board, appointed himself hearing officer, apparently without objection. Most of the County Board members did not attend all of the hearing, but all later received transcripts of the hearing. Under procedural rules employed at the hearing, all persons in attendance were allowed to testify, present evidence, and cross-examine hostile witnesses.
During the hearing Chairman Knuepfer stated that no further testimony or evidence would be taken after the conclusion of the hearing unless he adjourned the hearing to a date specific for the purpose of taking further evidence. He did not do this, and later testified before the PCB that no further public hearings on the application were scheduled. On April 14, 1981, he published a working draft of proposed findings and stipulations recommending approval of the application subject to certain conditions. He submitted the draft findings and stipulations to the County Board Finance Committee.
The Finance Committee considered the application at a series of meetings between April 19 and April 27, 1982. According to evidence developed on review before the PCB, Edward Heil, President of E & E, and attorneys for E & E and the District attended these meetings and discussed aspects of the proposed application.
On April 27, 1982, the County Board voted 16-7 to approve the site location for the proposed modified Mallard Lake landfill.
On June 1, 1982, the Village of Hanover Park (Village) filed a petition for review of the County Board decision with the PCB. See Ill.Rev.Stat., 1981, ch. 111 1/2, par. 1040.1.
The PCB appointed a hearing officer and ordered the County Board clerk to prepare and certify the record for review. Over objections by petitioners (respondents at the PCB level), the PCB on July 21, 1982 entered an order allowing the Village to conduct limited discovery on the issue whether the proceedings at the County Board level satisfied statutory requirements of fundamental fairness.
The PCB reversed the County Board's site approval decision and remanded for a further public hearing before a panel of elected County officials rather than the County Board. The PCB rested its decision on findings that
(1) The County Board approval resolution did not sufficiently demonstrate that the applicants had, in the County Board's judgment, met their burden to show that the proposed expansion satisfied the six statutory criteria of section 39.2 of the Environmental Protection Act. Ill.Rev.Stat.1982 Supp., ch. 111 1/2, par. 1039.2).
(2) The proceedings below, though fairly conducted, were fundamentally unfair because the County Board, whose members were by law also Commissioners of the co-applicant District (Ill.Rev.Stat.1981, ch. 96 1/2, par. 6305), had already passed favorable judgment on the application before the hearing had begun.
The PCB also found that the record certified by the County Board was incomplete in certain respects. Insofar as the original record was incomplete we have concluded that this defect was cured by proceedings at the PCB level, and discuss the issue no further.
The petition and cross-petition to this court followed.
The issues raised by the petition and cross-petition are numerous, but can be grouped into three major areas of inquiry: (1) whether the proceedings at the County Board level was inherently unfair, (2) whether the County Board proceedings were unfairly conducted, (3) whether the County Board erred in finding that the proposed expansion met the requirements of Section 39.2 of the Environmental Protection Act.
The Village argues that the proceedings at the County Board level were inherently violative of statutory common law and constitutional guarantees of administrative fairness for two reasons: (1) The County Board suffered from a disqualifying conflict of interest, as by statute all members were also Commissioners of the...
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