E & E Hauling, Inc. v. Pollution Control Board

(No. 58993. al., et HAULING, INC.,

E & E v. THE POL Appellees, LUTION CONTROL BOARD et al. (The Village Park, Hanover Appellant). 17, 1985.

Opinion July filed Karaganis, Gail & Ltd., of White V. Chicago (Joseph Karaganis and A. White, Bruce of for counsel), appel- lant.

Thomas McNamara, W. Hoover, Russell J. Barry Sullivan Bowman, and Julianne & Block, of Jenner of Chicago, for E E & Inc. appellee Hauling,

Melville Bowen, Jr., Preiner, B. and Barbara Assist- ant State’s for Attorneys, Wheaton, of Du appellee Page County Board. ski,

Richard A. Makar Yvonne M. and James Homeyer O’Brien, Cutler, P. and of for Chapman Chicago, ap Du Forest Preserve District. pellee Page County court: JUSTICE WARD delivered opinion 27, 1982, On the Du Page county ap April a Mallard a refuse landfill at proved proposal expand Lake, on land the forest district by preserve owned (the district). Du The of Hanover Page County site, certain Park, which is to the landfill adjacent filed a village (the village) peti owners of the property for decision with tion review board’s county The “over (the PCB). Pollution Control Board PCB turned,” order, in its to use term board’s county several The board and county approval grounds. E), with E & E & the landfill’s joined Hauling (E district in the PCB’s decision the appel operator, appealing The court deci late court. reversed PCB appellate approval sion and reinstated the board’s Ill. 586.) granted 3d We proposed expansion. (116 App. leave to under Rule 315 village’s petition appeal Ill. R. (87 315). 2d in site,

The the district landfill originally acquired a landfill in 1972 was for use as designated board and resolution through joint the landfill to cre- in purpose approving district. resolu- According for recreational use. ate hill ex- the landfill case tion, would no the operation district tend or 1993. In years beyond landfill, E & E a contract operate awarded (the Agency the Illinois Environmental Protection E & operating permits issued Agency) developmental royalties then the receiving E. Since district been $30,000 E month. from & E which average per 1979-81, the several the district years brought During E of waste E & to halt the against depositing liquid suits sludge into the landfill. The district claimed that was not the practice contemplated by original permits and that it out had resulted in contamination of areas side In the Part 1981, landfill. suits were settled. of the settlement called for the district and E & E to jointly petition the for Agency approval expand landfill. It the useful life of the appears original landfill was much shorter than had been anticipated. county district, and the ex after approving proposed pansion through ordinances, petitioned the on Agency 10, 1981, September permit As of that expansion. it date, was the Agency responsibility approve landfill sites and expansions the issuance through op erating permits. See Ill. Stat. ch. 1979, IIIV2, Rev. par. 1039(a).

Before the held a As Agency hearing, General sembly amended Environmental Protection Act (Ill. 1981, Rev. Stat. ch. IIIV2, seq.) et par. give power of landfill approval locations to local authori (1981 ties. Ill. Laws 3567, 1981, IIIV2, Ill. Rev. Stat. ch. par. (eff. 12, 1039.1 Nov. Under the 1981).) amended' statute, if the proposed landfill is in an unincorporated area, approving is to be the body board. The county 25 members of the board in this case county are also commissioners the district, one of the co-petitioners to the application county board. Pursuant amendment, board held a public hearing 1982, 1982, and on February voted 16-7 April approve proposed expansion the landfill. 1, 1982,

On June the village petitioned PCB review the county board action. Ill. (See Rev. Stat. ch. lll1^, An vil par. 1040.1(b).) objection was lage was proceeding funda unfair mentally because the board’s membership identical district. membership petitioning The PCB and it agreed, “overturned” the board’s deci-

38 too, the held, sion. The PCB that board’s was approval and it re- conclusory, on that were part based manded for a a to dispute hearing panel the new before than of Du officials other composed Page County be those on the serving board. board, E & E appealed

The district and to The vil the decision of the PCB court. appellate from the the decision that of lage cross-appealed portion the cause for a new The hearing. appellate remanded decision, the rule holding court reversed the PCB’s that no other must there was applied be because necessity to the matter. The court held forum adjudicate appellate related the statu findings, too the board’s for or standard site approval expansion pollution- tory facilities, were and reinstated the board’s proper, control 116 Ill. 3d 586. App. approval expansion. it was entitled to The village argues appeal this of the due and that was denied because process, In board. conflict of interest and bias of entitled to a alternative, contends it was village Act, of the and that fair hearing by language right. could not be this necessity applied deny rule First, village we must consider whether adjudicators. its right object waived of bias at the One hearing. did not raise issue fi commented that district would gain citizen simply course, a fail from the approval. Generally, nancially a original proceeding at constitutes ure object (People the issue on right appeal. waiver of the to raise claim of 564, 576-77.) Ill. “A (1980), v. Carlson 79 2d of a member bias on the partiality part or disqualifying must be as or administrative judiciary agency of the alleged knowledge disquali after promptly serted Center, Medical v. Charleston Area (Duffield fication.” The basis 515.) 503 F.2d (4th 1974), Inc. Cir. first a rul- seek party seen. To allow can be readily and, in a matter upon one, an unfavorable ing obtaining him to assert claim of be improper. bias would permit can It be said that that was the situation here. The vil it did not claim that lage alleged unaware bias before the board was concluded. ex hearing Though rule as ceptions application waiver ap in Doran Ill. (1972), v. Cullerton 2d 558- peared v. 59, and Mindes Wadlington (1970), Ill. 2d 452-53, here, may be we will consider present the is sue because in part likelihood of its recurrence.

We the that reject village’s contention its claim of on may grounded bias be the due clause of the process (U.S. Const., fourteenth amendment amend In XIV). Landfill, Inc. v. Pollution (1978), Control Board 74 Ill. 541, 2d this court held that the omission third parties from did not permit-application procedure violate process. due At the time third did not parties have a under the toAct right participate or hearing to ap from an of a peal approval landfill permit. court, This however, held that the existing procedure did not deny due process to third parties because section 31(b) Act permitted to “any person” bring complaint against alleged violator of Act Stat. (Ill. 1975, Rev. ch. HV-k, par. This 1031(b)). is available to provision third under the Act parties (Ill. 1983, Stat. today Rev. ch. IIIV2, par. 1031(b)), as well as rights protections and un der sections 39.2 as and 40.1 of the Act amended (Ill. IIIV2, Rev. Stat. ch. pars. 1039.2,1040.1).

Section 39.2 the Act provides protection against arbitrary action on the of the part approving authority out by setting standards be met for approval. Under amendment, section 39.2 Act provides of the or the “county board governing *** shall body municipality the site loca approve facility.” tion for such new suitability regional control pollution (Il lll1^, Rev. Stat. ch. par. 1039.2(a).) l. following is subject satisfying

The site approval standards: to accommodate the waste

“(i) facility necessary is serve; it is intended to needs of the area proposed located and (ii) facility designed, is so health, welfare will public safety operated be protected; be incompati- minimize is located so as to

(iii) facility surrounding area and to character of the bility with the surrounding prop- the effect on the value of the minimize erty; boundary outside the

(iv) facility is located Depart- the Illinois by flood as determined year plain flood-proofed or the site is Transportation, ment of De- of the Illinois requirements meet the standards and De- is approved partment Transportation partment; designed facility for the

(v) plan operations fire, surrounding area from danger minimize the accidents; and operational or other spills, so facility are patterns the traffic to or from (vi) existing on traffic impact minimize the designed as to HV-lz, 1039.2. par. Stat. ch. flows.” Ill. Rev. site-ap notice of a Act that written prescribes who “any party” must be served request proval feet of the proposed within 250 the owner property Rev. (Ill. met requirement.) landfill. (The The Act ch. 1983, 1039.2(b).) provides Stat. par. HV-k, a for one public hearing request for a minimum of site approval: by held the hearing is to be public

“At least one municipality the body of county governing board or approval, site request for days receipt 60 within in a notice by published hearing preceded such to be county general published circulation newspaper all site, certified mail to by and notice proposed the in the district Assembly from of the General members Agency. to the is located and the proposed to form record sufficient develop shall a hearing public the appeal basis of of the decision in accordance with Sec 1983, lllVz, tion 40.1 of Act.” Ill. Rev. Stat. ch. par. 1039.2(d).

If a board or other county approving authority denies for a petition permit site, for a proposed applicant may appeal the decision to the Pollution Control Board. (Ill. 1983, llV-k, Rev. ch. If Stat. par. 1040.1(b).) pe *** tition is approved, any “third who party participated *** in the public hearing by conducted board may petition the for review of the (Ill. approval. [PCB]” Rev. ch. IIIV2, Stat. In par. 1040.1(b).) reviewing PCB, denials and under approvals, the statute must consider the “fundamental fairness of procedures *** used by board in its decisions.” reaching (Ill. Rev. IIIV2, Stat. ch. par. 1040.1(a).) Before Act, amendments permit were applications acted on no solely by Agency; public hearings were no required and standards for set approval were out. De nials of applications could be permits appealed PCB, but permit approvals were not We appealable. deem that rights parties third are rec adequately ognized and secured.

In contending that board from disqualified acting as decision-maker of the permit application, village first claims that the had an interest in permit $30,000 This application. interest was the per month, on the average, board and its members in their as commissioners of the district re- capacity ceived. course, These were not direct payments, pe- commissioners, benefit to the cuniary but rather a bene- fit to the serve. A community they classic example of an impermissible indirect interest appeared Ward v. Village Monroeville U.S. L. (1972), Ed. 2d 267, 93 S. 80. Ct. There the defendant was tried and convicted two traffic offenses of the vil- mayor lage. The had a mayor broad control the village over

42 finances, and its traffic fines government generated a “substantial annual revenue. portion” village’s The Court held that interest was Supreme though one, that fines had not a personal important impact created on finances that mayor supervised sufficient to accord the defendant due temptation The here is clearly distinguish- of law. situation process $30,000 able. The revenue from the landfill of month per budget must considered in The annual perspective. be million in 1982. The reli- mayor’s district was $163.5 ance in a different Ward on traffic fines was obviously matter.

More the board should not be fundamentally, disquali- fied as a decision-maker because revenues were simply and other to be received boards county. County make decisions that af- agencies governmental routinely fect their revenues. are service bodies They public for the must be deemed to have made decisions welfare Their of their units and their constituents. governmental elected mem- members are subject public disapproval; can members bers be turned out of office and appointed officials should considered to act Public be replaced. Gas & Water Division Memphis Light, without bias. Cf v. 56 L. Ed. 2d 98 S. Ct. (1978), U.S. Craft 2d 1554; Goss v. 419 U.S. L. Ed. Lopez (1975), 725, 95 S. Ct. 729.

It does not unusual that a landfill would be seem owned property. for location proposed publicly the sites Act was amended to decisions place regarding having for landfills local authorities and to avoid with impose in a regional (the Agency) position authority local author- its of a landfill site on approval objecting landfill, Here, but a local ity. authority approved that the itself, a local is alleging village, authority it the landfill should owns disqualified be because in- the legislature do not consider property. We tended this unremarkable situation to make “fun- factual damental fairness of the procedures” impossible.

The next that village claims was unfair hearing because both the earlier county and district had ap proved the landfill ordinance. The thus by a claiming bias that been called type “prejudg ment of K. adjudicative Davis, facts.” 3 Administra (See tive Law Treatise sec. ed. (2d 1980).) 19:4 But the ordi nances were a simply to the preliminary submission of question of permit Agency. Subsequently, the Act was amended and the board charged was with responsibility deciding whether approve landfill’s The expansion. board was to find required the six standards for under the amended act approval were It satisfied. cannot be said that the board pre judged facts, i.e., the adjudicative the six criteria. This conclusion is the line supported of decisions that by there is no inherent bias created when an administrative with body charged both investigatory adjudicatory See, functions. e.g., Withrow v. Larkin 421 (1975), U.S. 35, 47-50, 43 L. Ed. 723-25, 2d S. Ct. 1464-65; v. Department Scott & Commerce Commu nity (1981), Ill. 2d 54-56. Affairs

We consider court appellate held properly that the board was correct in that the finding statutory standards been satisfied, had and that of the portion ap- court’s is affirmed. pellate judgment court’s conclusion that the PCB appellate erred board was deciding from conduct- disqualified ing correct, was its was hearing but errone- reasoning ous. The court deemed that the board was improper tribunal, but since there no other available, forum the rule of necessity required board to act as the fo- here, rum. As we have stated board was to be biased and from judged Because the disqualified acting. appellate court’s conclusion to reverse the decision correct, affirm that of the judg-

PCB was we portion ment also.

Judgment affirmed. SIMON, dissenting: JUSTICE Du In Page county view specific board, Inc., I E E by Hauling, & perceive operation in the Mallard Lake Forest Pre of an landfill expanded include fraught with hazards. These dangers serve be pollu values neighborhood, diminution property Du River as well as tion of the west branch Page and threats to the public water underground supply, are safety. health and dissent My perception and concerns in the resolu reservations upon based 27, 1982, tion adopted April the of Public Page County requirements Du satisfy lllW, (Ill. 1039.2). 82-682 Rev. Stat. ch. par. Act statements the specific The resolution contains very indicating and while board’s doubts county qualifications, the stat with the six criteria established by compliance for a the of a site location suitability ute for determining statements vague general landfill by only the specific of the statute. Because board’s county words its I that the conclusions, believe findings do support de affirming county court erred board’s by appellate portion appellate cision. In this my judgment, was of much treat deserving lengthier court’s opinion affirmance in by ment than one-sentence disposition opinion. next paragraph majority last the ap I the care and effort with which appreciate While in in forth the evidence court its set opinion pellate board deter case, county it responsibility I this court Therefore, facts. believe mine the to the weight specific should accord more court’s evaluation of than to the county appellate board evidence. which reciting specific Before indicates language court that the failed consider the entire res appellate in deciding olution conclusion county board’s I evidence, was feel to refer obligated supported by of this to an strange history existing addition landfill. of the landfill in which operation question, was authorized agreement dated June be tween the preserve forest district of Du Page County E & E Hauling, following approval, was the of extensive in E subject litigation 1979. In E & Inc. v. Forest Hauling, (Cir. Preserve District Du Ct. Page 79CH94, No. E & E County), Hauling, Inc. For v. est (N.D. Ill.), 79C223, Preserve District No. and People v. E E Hauling (Cir. & Du Ct. No. Page County), 79CH240, the forest district, preserve all of the commissioners members, were claimed landfill was unsafe and improperly In two of operated. cases, the forest district preserve submitted affida vits of experts support that assertion. As the majority out, the points forest preserve district complained that E & E Hauling was depositing waste and in liquid sludge the landfill. But instead of its efforts pursuing to exclude E & E from Hauling forest land because its preserve failure with comply proper safeguards and procedures landfill, forest operating preserve settled this E litigation & E by giving Hauling handsome wind fall—E & E Hauling allowed to expand substantially the landfill from operation 340 acres to 560.1 acres and to continue the landfill operation long beyond the 1993 of termination date the 1974 contract between E & E and the Hauling forest preserve. is

Equally puzzling how the ap- board and the court pellate found sufficient evidence to ex- permit the landfill panded into the operate next in view century of findings in specific board’s resolution negate its completely conclusions. Repeatedly

resolution announces affirmative conclusions the statute based on which not words of specific which, fact, are decision, do not its but in only support with them. inconsistent “The fa-

For the resolution states: example, expanded located and to be proposed operated so cility designed, health, safety pro- that and welfare will be public regard- tected.” Yet the resolution raises serious doubts E a land- Hauling operate of E & ing competence in will not endanger public fill a manner which contains the health, and welfare. The resolution safety findings: following specific testimony relating per-

“There was considerable as performance, of or lack applicant, formance system An leachate collection was may case be. elaborate surrounding area in the event designed protect quantities generated. of leachate were substantial of this weight of the indicated much evidence applicant in and that the did system put place, was never original agreement with to the terms his conform Page County Du in re- preserve the forest district of immediately adjacent to the spect. Because landfill River, a serious DuPage this becomes west bank concern. inadequate given relating was also Testimony operator, in housekeeping practices the site reflected unpleasant being and in odors blowing papers, garbage, although appear improved to have generated, conditions years. in the last few into concern- was also entered the record

Testimony quantities fill of ing the utilization for substantial by the stopped This have sludge. appears to been practice ago, but this years Commission several Forest Preserve testimony by court action. Some only achieved quantities in past seemed indicate probable dan- being deposited posed sludge which were hill, creating pos- well as as ger stability if this levels the hill high liquid sibility dangerously practice (sludge mostly water). were to continue is This factor, incomplete combined with the leachate collection system, could have of contam- posed danger substantial practices ination to the The site community. operator’s months, seem to have in the few but improved past record must not overlook the that the Forest Preserve fact health, go protect public District had to to court safety. The site operator has been less than welfare diligent in his concern potential hazards as well as nuisances, testimony. as reflected * * * out, as Geologically, we have the site pointed near ideal one. Failure operator to install the re- quired system leachate collection exactly designed, as site, appropriately police has caused reservations score, (Emphasis added.) on this however.’’ Dr. Robert research Ginsburg, director for Citizens for a Environment, Better who testified behalf of the Park, Hanover underscored the danger per- mitting operator with of E performance history & E Hauling operate a landfill with the sen- following sible and constructive observation:

“Finally, I would like to comment importance on the of proper operation of a landfill. public’s The ability get complete technical data on a landfill site always will Thus, be limited. we rely, must however much we regret it, good on the judgment and care operator taken of a Sloppy landfill. and careless can management turn best into a disaster. past is, least, record E Hauling say &E not exemplary. The company original did not its follow plans construction and did anyone not tell it had changed its design." (Emphasis added.) It is thus to me apparent that based on its past per- formance in landfill, so particular long as E & E Hauling continues to it, operate county board’s con- *** clusion that is so “expanded facility proposed be operated health, the public and welfare safety protected” against

will be the manifest weight of being evidence. Instead rewarded with a more valu- E E able contract & deserves to be removed Hauling from the Mallard Lake Preserve. Forest Furthermore, that “the county board’s conclusion *** *** is so located expanded facility public health, and welfare is chal- protected” will be safety lenged by following specific findings included resolution: expressed testimony

“Concern was in about per- or no dumping Although of hazardous wastes. special mit waste to the disposal granted hazardous been Landfill, Mallard Lake it is not inconceivable that some there, dumped hazardous wastes have been and that some in they time will future surface. *** Furthermore, west proximity site of River, Page possibly branch Du con- inappropriate of tours, leave us large deposited sludge, and amounts of some concerns.

* * * potential It is all hazards visualize difficult any site. particular which could at accidents occur of Fires seem remote could spontaneous unless combustion occur. elimination Proper compaction consequently and make this No hazardous wastes oxygen unlikely. would spills not be supposed are be involved so should major (Emphasis added.) concern.” have al- So as hazardous and offensive wastes long at is serious been this site there ready dumped this site for the enough concern about the west contaminating note the specifically possibility how River, I fail to understand Page branch the Du Be- can be supported. board’s conclusions weight is the manifest against cause conclusion additional evidence, it is our require responsibility may we approve practices before exploration of water. endanger body important I also fail to court con- understand how appellate in that this fa- cluded that the statement the resolution needs of “is to accommodate the waste cility necessary the mani- the area it is intended to serve” is not against fest evidence. The record lacks evidence weight a determination of what the waste needs of the support area would be after and what alternatives to the Mallard Lake Forest Preserve would be available. were, on this criterion county board’s only findings as follows: pertinent part, development

“Urban has now come on its northern boundaries, and western so that it is not as suitable a lo- it cation as once was.”

The resolution no the con- contained support clusion that for the expanded facility necessary after there period were no findings concerning alternatives. It is possible to decide impossible whether unless the court is expanded facility “necessary” informed of be, what alternatives to the site there may even obvious, there will be a need to conceding place garbage somewhere after 1993. board’s further observation that “most of

the homes in the area of the Mallard Pre- Lake Forest serve purchased were who should have been by people aware that a site to them” is irrel- disposal adjacent evant. These homeowners could not foresee that the site would be that the expanded, would dumping operation be continued or E E after that & long Hauling would be as and careless as it has been con- negligent Moreover, ducting the the that “this operation. finding is, basis, site on a than relative more most appropriate other sites raises the that after might possibility be” 1993 other sites as or more than might appropriate be evidence, the site. further it is present impos- Without to determine the for this site after 1993. sible necessity Another conclusion the manifest against weight is that so mini- evidence “the is located as to facility mize with the character of surround- incompatibility of the ing area and minimize effect on value This is by statement followed surrounding property.” which, findings although intended specific support conclusion, in fact result: opposite require

“Berms have on the west and north been constructed sides of the site to minimize the effects of the land- visual prob- fill. a Testimony indicated odors continue to be lem have deal housekeeping good ***. seems to [SJite left Debris, is particularly paper, frequently desired. be yards the site. adjacent on the roads or in found *** prob- truck some presented Both and bulldozer noise adjacent (Em- immediately lems in homes landfill.” added.) phasis this

These that the landfill at operation establish resi- intrusive and offensive to the highly been Hanover Park. The odors from dents from clearly the site and the litter in area detract I fail to of life these residents. understand quality facility how the can this support finding evidence with the character is located to minimize incompatibility surrounding single- area when the site next uses, homes, an area zoned for residential borders family noise, odors, litter, those homes to offensive exposes which rodents, and the flares annoying possibility which is gas pro- of methane venting accompany garbage dump. duced by plan conclusion “the board’s Finally, to min- designed operation expanded facility fire, area from surrounding imize the danger is contradicted or other accidents” operational spills, I have statement. follow that specific findings “it concedes that out that the resolution already pointed acci- hazards of potential to visualize all is difficult at and the concern could this site dents which occur” expressed “problem because of a potentially inadequate leachate collection as system, as well contamination of either the west potential or Page adjacent branch the Du River wells.” How- ever, that is all. The resolution on to goes express other concerns following language: major “The concern the testimony unanswered left potential danger was the jive it could occur or ten years large now when quantities may leachate from produced start to be The downhill. Forest Pre- flow serve and the site operator need face that problem now, so that we will not with be faced a crisis or an ex- pensive solution years some now.” (Emphasis from added.) record devoid evidence indicating that there will not be a serious in “five or problem ten years,” therefore the conclusion that this suitable for an landfill is expanded against manifest weight of the evidence.

The resolution contains yet another contradiction. It is the condition imposed by county board and incor- porated the resolution that site operator shall “[t]he be required to assume con- liability all affirmatively tamination of waterways ground or water the life during of the landfill and for a of one period year subsequent completion landfill and shall carry comprehen- sive insurance of at least liability million twenty dollars during this period.”

The insurance requirement suggests that the county board had grave reservations about its action. Little is accomplished by E & E to be affirma- requiring Hauling tively liable for contamination of or waterways ground if, water aas result of E & E’s of the ex- operation landfill, panded the water is No contaminated. amount will be able to money reverse the to our damage pre- cious natural resources E E once & Hauling polluted I board, not

them. Unlike the members of the am to take a chance on contamination water prepared lia- amount irrespective comprehensive supply operator required insurance which the bility provide. inherent in this landfill problems operation ap than this re

pear to be even more severe those court v. National Bank in Cosmopolitan considered cently County Cook 302, involving Ill. 2d a land (1984), case, In fill did not which court allow. operation landowners were also bothered offensive nearby odors, litter rodents. There were concerns with also water with leachate and with pollution, decomposition, However, the site possible methane-gas explosions. oper Bank National in more Cosmopolitan displayed ator E & care in and concern for than operation public safety Cosmo addition, E In in at this site. Hauling shown Bank no politan National body of wa major there in danger ter to the site that was as serious adjacent Page branch of Du as is west being polluted River. case arisen context of procedural

If this had in ordinance, we zoning permit attack could upon v. National Bank (Cosmopolitan proceed. landfill Cook 2d I cannot under County 302.) 103 Ill. (1984), result because the stand how we can reach a different board, quasi-administrative, after the hybrid the statute (Ill. directed by quasi-legislative proceeding reso llU/a, adopted ch. 1039.2), Rev. Stat. par. permitted internal lution filled with inconsistencies E landfill. concern based My & E Hauling expand in the resolution on the set forth negative landfill to that, proceed, by permitting expanded another Wilsonville case on our may time we have Services, Inc. v. Wilsonville SCA Village See hands. Ill. 1. 2d (1981),

Case Details

Case Name: E & E Hauling, Inc. v. Pollution Control Board

Court Name: Illinois Supreme Court

Date Published: Jul 17, 1985

Citation: 481 N.E.2d 664

Docket Number: 58993

Court Abbreviation: Ill.