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

JUSTICE WARD

delivered the opinion of the court:

On April 27, 1982, the Du Page county board approved a proposal to expand a refuse landfill at Mallard Lake, on land owned by the forest preserve district of Du Page County (the district). The village of Hanover Park, which is adjacent to the landfill site, and certain property owners of the village (the village) filed a petition for review of the county board’s decision with the Pollution Control Board (the PCB). The PCB “overturned,” to use the term in its order, the county board’s approval on several grounds. The county board and the district joined with E & E Hauling (E & E), the landfill’s operator, in appealing the PCB’s decision to the appellate court. The appellate court reversed the PCB decision and reinstated the county board’s approval of the proposed expansion. (116 Ill. App. 3d 586.) We granted the village’s petition for leave to appeal under Rule 315 (87 Ill. 2d R. 315).

The landfill site, originally acquired by the district in 1956, was designated for use as a landfill in 1972 through a joint resolution of the county board and the district. The purpose in approving the landfill was to create a hill for recreational use. According to the resolution, the operation of the landfill would in no case extend beyond 19 years or 1993. In 1974 the district awarded E & E a contract to operate the landfill, and the Illinois Environmental Protection Agency (the Agency) issued developmental operating permits to E & E. Since then the district has been receiving royalties from E & E which average $30,000 per month.

During the years 1979-81, the district brought several suits against E & E to halt the depositing of liquid waste and sludge into the landfill. The district claimed that this practice was not contemplated by the original permits and that it had resulted in contamination of areas outside of the landfill. In 1981, the suits were settled. Part of the settlement called for the district and E & E to jointly petition the Agency for approval to expand the landfill. It appears that the useful life of the original landfill was much shorter than had been anticipated. The county and the district, after approving the proposed expansion through ordinances, petitioned the Agency on September 10, 1981, to permit the expansion. As of that date, it was the responsibility of the Agency to approve landfill sites and expansions through the issuance of operating permits. See Ill. Rev. Stat. 1979, ch. IIIV2, par. 1039(a).

Before the Agency held a hearing, the General Assembly amended the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. IIIV2, par. 1001 et seq.) to give the power of approval of landfill locations to local authorities. (1981 Ill. Laws 3567, Ill. Rev. Stat. 1981, ch. IIIV2, par. 1039.1 (eff. Nov. 12, 1981).) Under the amended' statute, if the proposed landfill is in an unincorporated area, the approving body is to be the county board. The 25 members of the county board in this case are also commissioners of the district, one of the co-petitioners in the application to the county board. Pursuant to the amendment, the county board held a public hearing on February 11, 1982, and on April 27, 1982, voted 16-7 to approve the proposed expansion of the landfill.

On June 1, 1982, the village petitioned the PCB for review of the county board action. (See Ill. Rev. Stat. 1983, ch. lll1^, par. 1040.1(b).) An objection of the village was that the county board proceeding was fundamentally unfair because the board’s membership was identical to the membership of the petitioning district. The PCB agreed, and it “overturned” the board’s decision. The PCB held, too, that the board’s approval was based in part on findings that were conclusory, and it remanded the dispute for a new hearing before a panel to be composed of Du Page County officials other than those serving on the board.

The county board, the district and E & E appealed the decision of the PCB to the appellate court. The village cross-appealed from the portion of the decision that remanded the cause for a new hearing. The appellate court reversed the PCB’s decision, holding that the rule of necessity must be applied because there was no other forum to adjudicate the matter. The appellate court held too that the board’s findings, which related to the statutory standard for site approval or expansion of pollution-control facilities, were proper, and reinstated the board’s approval of the site expansion. 116 Ill. App. 3d 586.

The village argues on appeal that it was entitled to due process, and that this was denied because of the conflict of interest and bias of the county board. In the alternative, the village contends that it was entitled to a fair hearing by the language of the Act, and that the rule of necessity could not be applied to deny this right.

First, we must consider whether the village has waived its right to object to the adjudicators. The village did not raise the issue of bias at the board hearing. One citizen simply commented that the district would gain financially from the approval. Generally, of course, a failure to object at the original proceeding constitutes a waiver of the right to raise the issue on appeal. (People v. Carlson (1980), 79 Ill. 2d 564, 576-77.) “A claim of disqualifying bias or partiality on the part of a member of the judiciary or an administrative agency must be asserted promptly after knowledge of the alleged disqualification.” (Duffield v. Charleston Area Medical Center, Inc. (4th Cir. 1974), 503 F.2d 512, 515.) The basis for this can readily be seen. To allow a party to first seek a ruling in a matter and, upon obtaining an unfavorable one, permit him to assert a claim of bias would be improper. It can be said that that was the situation here. The village did not claim that it was unaware of the alleged bias before the board hearing was concluded. Though exceptions to the application of the waiver rule as appeared in Doran v. Cullerton (1972), 51 Ill. 2d 553, 558-59, and Wadlington v. Mindes (1970), 45 Ill. 2d 447, 452-53, may not be present here, we will consider the issue because in part of the likelihood of its recurrence.

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

Section 39.2 of the Act provides protection against arbitrary action on the part of the approving authority by setting out standards to be met for approval. Under the 1981 amendment, section 39.2 of the Act provides that the “county board of the county or the governing body of the municipality *** shall approve the site location suitability for such new regional pollution control facility.” (Ill. Rev. Stat. 1983, ch. lll1^, par. 1039.2(a).) The site approval is subject to satisfying the following standards:

“(i) the facility is necessary to accommodate the waste needs of the area it is intended to serve;
(ii) the facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected;
(iii) the facility is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding property;
(iv) the facility is located outside the boundary of the 100 year flood plain as determined by the Illinois Department of Transportation, or the site is flood-proofed to meet the standards and requirements of the Illinois Department of Transportation and is approved by that Department;
(v) the plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents; and
(vi) the traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows.” Ill. Rev. Stat. 1983, ch. HV-lz, par. 1039.2.

The Act prescribes that written notice of a site-approval request must be served on “any party” who is the owner of property within 250 feet of the proposed landfill. (The village met that requirement.) (Ill. Rev. Stat. 1983, ch. HV-k, par. 1039.2(b).) The Act provides for a minimum of one public hearing on a request for site approval:

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

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

In contending that the board was disqualified from acting as decision-maker of the permit application, the village first claims that the board had an interest in the permit application. This interest was the $30,000 per month, on the average, that the board and its members in their capacity as commissioners of the district received. These payments, of course, were not a direct pecuniary benefit to the commissioners, but rather a benefit to the community that they serve. A classic example of an impermissible indirect interest appeared in Ward v. Village of Monroeville (1972), 409 U.S. 57, 34 L. Ed. 2d 267, 93 S. Ct. 80. There the defendant was tried and convicted of two traffic offenses by the mayor of the village. The mayor had a broad control over the village government and its finances, and traffic fines generated a “substantial portion” of the village’s annual revenue. The Supreme Court held that though the interest was not a personal one, the important impact that fines had on village finances that the mayor supervised created sufficient temptation not to accord the defendant due process of law. The situation here is clearly distinguishable. The revenue from the landfill of $30,000 per month must be considered in perspective. The annual budget of the district was $163.5 million in 1982. The mayor’s reliance in Ward on traffic fines was obviously a different matter.

More fundamentally, the board should not be disqualified as a decision-maker simply because revenues were to be received by the county. County boards and other governmental agencies routinely make decisions that affect their revenues. They are public service bodies that must be deemed to have made decisions for the welfare of their governmental units and their constituents. Their members are subject to public disapproval; elected members can be turned out of office and appointed members replaced. Public officials should be considered to act without bias. Cf Memphis Light, Gas & Water Division v. Craft (1978), 436 U.S. 1, 56 L. Ed. 2d 30, 98 S. Ct. 1554; Goss v. Lopez (1975), 419 U.S. 565, 42 L. Ed. 2d 725, 95 S. Ct. 729.

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

The village next claims that the hearing was unfair because both the county and the district had earlier approved the landfill by ordinance. The village thus is claiming a type of bias that has been called “prejudgment of adjudicative facts.” (See K. Davis, 3 Administrative Law Treatise sec. 19:4 (2d ed. 1980).) But the ordinances were simply a preliminary to the submission of the question of a permit to the Agency. Subsequently, the Act was amended and the board was charged with the responsibility of deciding whether to approve the landfill’s expansion. The board was required to find that the six standards for approval under the amended act were satisfied. It cannot be said that the board prejudged the adjudicative facts, i.e., the six criteria. This conclusion is supported by the line of decisions that there is no inherent bias created when an administrative body is charged with both investigatory and adjudicatory functions. See, e.g., Withrow v. Larkin (1975), 421 U.S. 35, 47-50, 43 L. Ed. 2d 712, 723-25, 95 S. Ct. 1456, 1464-65; Scott v. Department of Commerce & Community Affairs (1981), 84 Ill. 2d 42, 54-56.

We consider that the appellate court properly held that the board was correct in finding that the statutory standards had been satisfied, and that portion of the appellate court’s judgment is affirmed.

The appellate court’s conclusion that the PCB erred in deciding that the board was disqualified from conducting a hearing was correct, but its reasoning was erroneous. The court deemed that the board was an improper tribunal, but since there was no other forum available, the rule of necessity required the board to act as the forum. As we have stated here, the board was not to be judged biased and disqualified from acting. Because the appellate court’s conclusion to reverse the decision of the PCB was correct, we affirm that portion of the judgment also.

Judgment affirmed.