author: JUSTICE LINDBERG

text:
    WASTE MANAGEMENT OF ILLINOIS, INC., Petitioner, v. THE POLLUTION CONTROL BOARD et al., Respondents.
    Second District
    No. 83 — 166
    Opinion filed May 8, 1984.

      Richard V. Houpt and Donald J. Moran, both of Pedersen & Houpt, of Chicago, and Robert Casey, of Casey, Krippner & Callahan, of Geneva, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Gerald P. Callahan, Assistant State’s Attorney, of counsel), for appellee Lake County Board.
    Donna R. Henderson, of Jacobs & Clark, Ltd., of Antioch, for appellee Village of Antioch.
   JUSTICE LINDBERG

delivered the opinion of the court:

Waste Management of Illinois, Inc., petitioned pursuant to the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. 111½, par. 1001 et seq. (Act) for site location approval of an expansion to its existing HOD sanitary landfill located in unincorporated Lake County, Illinois. After a hearing during which witnesses testified for Waste Management, the Lake County Staff Review Committee, and intervenor-respondent village of Antioch (the village or Antioch), respondent Lake County Board (LCB) denied Waste Management’s petition, and this denial was affirmed by the Illinois Pollution Control Board (PCB). We are asked to consider the PCB’s order under administrative review procedures set forth in section 41 of the Act. (Ill. Rev. Stat. 1981, ch. 111½, par. 1041.) For the reasons discussed herein, we affirm the order of the PCB.

The proposed site, rectangular in shape and approximately 30.2 acres in size, adjoins an existing, operating landfill on its southern boundary, vacant land owned by petitioner on its western boundary, Depot Street on its northern boundary and single-family zoned and developed land on its eastern boundary. West of the existing site is an industrial subdivision; south of the existing landfill is a vacant tract zoned for manufacturing and extending south to Route 173; east and southeast of the existing landfill is the Little Silver Lake subdivision of single-family residences; north of Depot Street the land is zoned and used for agricultural purposes.

Petitioner commenced the site approval process on May 14, 1982, by giving notice to property owners pursuant to the requirements of section 39.2(b) (Ill. Rev. Stat. 1983, ch. IIIV2, par. 1039.2(b)), and on May 28, 1982, Waste Management submitted a request for site location approval to the chairman of the LCB. Petitioner requested approval to accept municipal and special wastes in an engineered landfill to be located on the proposed site. Notice was given for a public hearing on the application scheduled for July 10, 1982. The public hearing which was conducted by a committee of five members of the LCB over 12 sessions consumed approximately 98 hours and 2,500 pages of transcript. Petitioner presented 10 witnesses; the village presented nine witnesses, and the Lake County Staff Review Committee presented six witnesses. One session was set aside for public opinion, and 23 people made comments.

On September 7, 1982, the Hearing Committee made its recommendation, specifically finding against petitioner as to three of the six criteria in section 39.2: the need for the proposed facility, its impact on the public health, safety and welfare, and whether the proposed facility was located so as to minimize incompatibility with and effect on the values of surrounding properties. The LCB on September 14, 1982, adopted a resolution denying approval of petitioner’s siting request. On October 1, 1982, petitioner appealed the LCB’s decision to the PCB under section 40.1(a) of the Act. Pursuant to section 40.1, a hearing was conducted on November 23, 1982. In an opinion and order dated December 30, 1982, the PCB affirmed the decision of the LCB.

On January 26, 1983, petitioner filed a motion for rehearing which the PCB denied on February 24, 1983. Petitioner filed its petition for review on February 25, 1983. On March 10, 1983, the village filed its motion to dismiss the appeal on the ground that the petition for review was not timely filed, which we have ordered taken with the case.

Prior to reaching the merits of this appeal, we first address the motion filed by the village to dismiss Waste Management’s petition for review. The village contends dismissal is warranted because petitioner did not appeal from the PCB’s final order within the statutorily-prescribed period of time. Specifically, the village argues the recent amendment to the Act (see Ill. Rev. Stat. 1983, ch. IIIV2, par. 1039.2(f)) does not provide for a PCB rehearing procedure and in fact precludes the PCB from rehearing its own rulings.

Prior to the recent amendment to the Act, the PCB had adopted a rule providing for rehearings:

“Within 35 days after the adoption of a final order any party may file a motion for rehearing or modification of the order, or to vacate the order or for other relief. Response to said motion shall be filed within 14 days from the filing thereof. A motion filed within 35 days stays enforcement of the final order and the time for appeal from such order runs anew after the Board rules upon the motion. Failure of a party to appeal a final order or to file for appellate court review within 35 days of adoption of the final order waives all right to review except as set forth in Rule 334.” (Ill. P.C.B. R. 333.)

After the PCB entered its decision on December 30, 1982, Waste Management filed a motion for reconsideration on January 26, 1983, within the 35-day time period prescribed by Rule 333. the court denied the rehearing on February 24, 1983, and the next day, Waste Management filed its petition for review. Thus, Waste Management’s petition was timely if Rule 333 tolled the 35-day petition period in section 40.1, but otherwise was untimely as filed later than 35 days after the PCB's December 30 decision.

We disagree with the village’s construction of the statute. In construing an analogous section of the Act, this court in Modine Manufacturing Co. v. Pollution Control Board (1976), 40 Ill. App. 3d 498, 351 N.E.2d 875, held that the Act empowered the PCB to adopt a rehearing procedure. In Modine, the petitioner asserted that the PCB lacked the power to reconsider its opinions, but this court noted that two sections of the Act when read together provided the authority to conduct the rehearings: section 5(d) (Ill. Rev. Stat.1973, ch. lll1^, par. 1005(d)), authorizing the PCB to conduct “such other hearings as may be provided by rule” and section 26 (Ill. Rev. Stat. 1973, ch. lll1^, par. 1026), empowering the PCB to adopt rules to accomplish the purposes of the Act. (Modine Manufacturing Co. v. Pollution Control Board (1976), 40 Ill. App. 3d 498, 501, 351 N.E.2d 875, 878.) These same two sections when read in combination support the conclusion in the instant case that the PCB has authority to hear rehearing requests pursuant to section 39.2. Despite Modine, the village contends section 39.2(f) limits the PCB’s authority to reconsider its own rulings. Section 39.2(f) states:

“The siting approval, procedures, criteria and appeal procedures provided for this Act for new regional pollution control facilities shall be the exclusive siting procedures and rules and appeal procedures for such facilities. Local zoning and other local land use requirements shall not be applicable to such siting decisions.” (Ill. Rev. Stat. 1983, ch. IIIV2, par. 1039.2(f).)

Based upon this section and the absence of any specific rehearing procedure in the statute, the village argues the PCB is precluded from allowing rehearings and from enacting regulations authorizing a rehearing procedure.

We do not read section 39.2(f) as an intention by the legislature of nullifying the PCB’s procedural rules in landfill siting appeals. Nothing in the statute indicates the legislature intended the PCB to be able to review its decisions pursuant to Rule 333 in all matters other than those concerning landfill siting decisions. Rather, we construe section 39.2(f) as leaving undisturbed the PCB’s preexisting procedural rules which are not in conflict with specific provisions of the Act. In the instant case, while section 39.2(f) states that Act’s appeal procedures are exclusive, no procedure in that section is inconsistent with the rehearing procedure outlined in Rule 333. Furthermore, the rehearing procedure serves the laudatory purpose of promoting judicial economy by affording the PCB an opportunity to review its own decisions prior to a potential appeal to this court. Since we are unpersuaded that section 39.2(f) was intended to prevent the PCB from rehearing its siting decisions, we deny the village’s motion to dismiss.

The first argument raised by Waste Management is that the LCB’s decision was a result of a fundamentally unfair decision-making process in violation of section 40.1 (Ill. Rev. Stat. 1981, ch. IIIV2, par. 1040.1). That section requires the PCB in reviewing the LCB’s determination to include in its consideration “the fundamental fairness of the procedures used by the county board or the governing body of the municipality in reaching its decision.” Both parties agree that the Act requires the LCB to act as a quasi-judicial body. This court has ruled that a county board’s decision to grant or deny a permanent application is adjudicatory. E&E Hauling, Inc. v. Pollution Control Board (1983), 116 Ill. App. 3d 586, 596 n.l, 451 N.E.2d 555, 564 n.l.

Petitioner argues that the LCB in considering its application acted in a legislative and not in a judicial capacity in contravention of the statute. Petitioner emphasizes that the LCB did not deliberate or debate the merits of the application. This unquestioning acceptance of the report of the Regional Pollution Control Hearing Committee (Hearing Committee), petitioner argues, shows the LCB failed to consider the evidence regarding the six statutory criteria and thus, petitioner contends the process employed to deny its application was fundamentally unfair.

Petitioner’s attempt to separate the consideration of its application by the LCB and the Hearing Committee is unavailing. The entire county board need not be present at the hearing held before the five-member committee for fundamental fairness does not require the personal attendance of the entire board. (Homefinders, Inc. v. City of Evanston (1976), 65 Ill. 2d 115; E&E Hauling, Inc. v. Pollution Control Board (1983), 116 Ill. App. 3d 586, 604, 451 N.E.2d 555, 569.) As long as the record was made available for review by the full county board, all members heard the case irrespective of their attendance. (E&E Hauling, Inc. v. Pollution Control Board (1983), 116 Ill. App. 3d 586, 604, 451 N.E.2d 555, 569.) In this case, the entire record was available for all the board members to review. The only requirement imposed on the board by the statute is that its decision be in writing and specify the reasons for the decision. The LCB’s decision in this case satisfies these requirements.

Our review of the procedure of the Hearing Committee also indicates that no fundamental unfairness occurred. Examples of fundamental unfairness include a hearing where the petitioner is prevented from cross-examining witnesses or from presenting its own evidence. (E&E Hauling, Inc. v. Pollution Control Board (1983), 116 Ill. App. 3d 586, 604, 451 N.E.2d 555, 569.) The 98 hours and 2,500 pages of hearing testimony demonstrate petitioner was afforded ample opportunity to present its case. The Hearing Committee collected and reviewed the evidence and made its recommendations; in other words, performed its adjudicatory function. The county board need not have conducted a debate on the merits of the Hearing Committee’s recommendation because petitioner had already exercised its right to introduce evidence and rebut the arguments in opposition to the landfill application.

Petitioner complains of the intensity of citizen opposition and its concomitant effect on the proceedings and points to paragraph 15 of the Hearing Committee’s findings which stated that the public overwhelmingly opposed the proposed landfill. We note, however, that the statute requires the LCB to conduct a public hearing concerning the site approval request and “[t]he 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. HV-k, par. 1039.2(d).) Public participation not only is encouraged, but is required by the statute. We read paragraph 15 as evidence of the LCB’s recognition of its statutory obligation under section 39.2(c) to consider public comment on its application. (Ill. Rev. Stat. 1983, ch. HV-k, par. 1039.2(c).) Nevertheless, petitioner argues, as a result of the substantial negative public reaction to its application, the decision-making process was unfair because the LCB’s decision was based “not on evidence but on political concerns ***.” The statute requires, however, only that the procedures be fundamentally fair. The procedures employed by the Hearing Committee provided a full and complete opportunity for petitioner to support its application. Failure of the full LCB to debate the Hearing Committee’s recommendation does not evidence fundamental unfairness and the existence of strong public opposition does not invalidate the LCB’s decision.

Petitioner presents no evidence that the procedures employed by the Hearing Committee and the full LCB denied petitioner a right to present its case. While the board members were aware of public opposition because of the statutorily-mandated public hearings, petitioner has not demonstrated that the board members decided on its application as a result of the public opposition and without consideration of the evidence. The only factor cited by petitioner is that more than half of the LCB members faced reelection within two months of the date of the decision. This fact, however, is not referenced in the record, and more important, is insufficient to establish a biased decision-making process. Where the statute requires the LCB to conduct a public hearing, a decision does not become unfair merely because elected officials recognize public sentiment. Petitioner here has failed to sustain its burden of showing that the procedures of the LCB or the decision-making process were fundamentally unfair.

Petitioner also argues the PCB improperly excluded from the record the transcript of the LCB’s decision-making meeting. At the September 14, 1982, meeting, the LCB decided to deny approval of the landfill site. Petitioner proposed that the transcript be included in the record before the PCB, which the PCB’s hearing officer allowed. The PCB, however, excluded the September 14, 1982, transcript from the record. As the PCB stated, section 39.2(d) and (e) require a county board to conduct at least one public hearing which develops a record sufficient for purposes of a section 40.1 appeal to the PCB. The county board must put its decision in writing with the reasons for its decision in accordance with the six statutory criteria contained in section 39.2(a). The PCB is required by section 40.1(a) to consider the written decision of the county board and the reasons for the decision, the transcribed record of the public hearing and the fundamental fairness of the county board’s procedures in reaching its decision. Since the September 14 county board meeting held to adopt the Hearing Committee’s recommendation is not a part of the section 39.2 hearing process, the PCB concluded, the transcript could only be germane on the issue of the fundamental fairness of the hearing or decision-making procedures. After reviewing the transcript and finding no evidence of fundamental unfairness the PCB excluded the evidence as immaterial.

We find that we need not determine whether the PCB’s exclusion of the transcript was error, for the PCB clearly reviewed the transcript for evidence of fundamental unfairness prior to excluding it from the record. In its brief, petitioner relies upon this court’s decision in E&E Hauling, Inc. v. Pollution Control Board (1983), 116 Ill. App. 3d 586, 451 N.E.2d 555, where we said that to shield evidence of conflict and bias from judicial review “would frustrate the purpose of review since the statute directs the PCB to consider the fundamental fairness of the procedures at the County Board level.” (116 Ill. App. 3d 586, 593, 451 N.E.2d 555, 562.) The PCB in the instant case recognized the transcript was relevant to the fundamental fairness inquiry, and therefore, reviewed it on this basis. Concluding that no evidence of fundamental unfairness was present in the September 14, 1982, transcript, the PCB determined the transcript was irrelevant to any other issue before it. Since the PCB did consider the transcript on the fundamental unfairness issue, we fail to see how its subsequent exclusion prejudiced petitioner. Any error in its exclusion, therefore, was harmless.

Petitioner also argues that the Hearing Committee failed to consider all six statutory criteria in violation of the Act. We agree with the LCB that the findings of the Hearing Committee indicate consideration of all of the criteria. When read together, findings three and four state that petitioner, who had the burden of proof, presented evidence on all six criteria, but the evidence was rebutted in part by the village. These statements make clear to us that the Hearing Committee considered all of the statutory criteria.

Petitioner next challenges the PCB’s decision to review the LCB’s denial of a permit application based upon the manifest weight of the evidence standard. Instead, petitioner argues the PCB should have reviewed the record adduced before the LCB de novo. Although we recognize that the statute as drafted does not clearly establish the proper standard to be applied by the PCB (see Houlihan & Flynn, The Siting of Sanitary Landfills and Other Waste Management Facilities — The Legislature Acts, 70 Ill. B.J. 434, 442 (1982)), the courts which have considered this question have concluded the PCB’s application of the manifest weight standard is correct. (Waste Management of Illinois, Inc. v. Pollution Control Board (1984), 122 Ill. App. 3d 639; City of East Peoria v. Pollution Control Board (1983), 117 Ill. App. 3d 673, 680, 452 N.E.2d 1378, 1383; E&E Hauling, Inc. v. Pollution Control Board (1983), 116 Ill. App. 3d 586, 608, 451 N.E.2d 555, 572.) We therefore find no error in the PCB’s application of the manifest weight standard to the decision of the LCB.

NEED

Petitioner argues that both the PCB and the LCB erroneously concluded that there was no need for petitioner’s proposed facility because of the existence of two other landfills. Section 39.2 directs the local unit to approve a site location only if “the facility is necessary to accommodate the waste needs of the area it is intended to serve.” (Ill. Rev. Stat. 1983, ch. HV-k, par. 1039.2(a)(i).) In its decision, the PCB affirmed the LCB’s finding that petitioner had not demonstrated the site location was necessary for the area to be served. The PCB construed section 39.2(a)(i) to require that the landfill be necessary and not just convenient. Based upon this court’s recent decision in E&E Hauling, Inc. v. Pollution Control Board (1983), 116 Ill. App. 3d 586, 451 N.E.2d 555, petitioner argues that the PCB erred in construing this criterion. In E&E Hauling, this court affirmed the county board’s finding that the petitioners met their burden to show that the facility was necessary to accommodate the waste needs of the area. In construing this criterion, this court said:

“The use of ‘necessary’ in the statute does not require applicants to show that a proposed facility is necessary in absolute terms, but only that the proposed facility is ‘expedient’ or ‘reasonably convenient’ vis-a-vis the area’s waste needs. [Citations.] It would be unreasonable to require petitioners to prove that every other potential landfill site in the region is unsuitable; such a construction would prevent any landfill development if more than one suitable site could be found. This construction of the statute should be avoided as unworkable and implausible.” 116 Ill. App. 3d 586, 609, 451 N.E.2d 555, 573.

This court in E&E Hauling, Inc. v. Pollution Control Board (1983), 116 Ill. App. 3d 586, 451 N.E.2d 555 recognized that absolute necessity was too stringent a standard and employed the terms “expedient” and “reasonably convenient” to describe the required level of proof. An expedient is defined as “a means devised or used in an exigency” thereby connoting an element of urgency in the definition of need. (Webster’s New Collegiate Dictionary 399 (1979).) Reasonable convenience also requires a petitioner to show more than convenience. Recently, the third district of our appellate court defined this higher level of proof as a showing that the landfill be reasonably required by the waste needs of the area including consideration of its waste production and disposal capabilities. (Waste Management of Illinois, Inc. v. Pollution Control Board (1984), 122 Ill. App. 3d 639.) Our review of the record convinces us that petitioner did not establish any more than that the landfill would be convenient and thus, the PCB’s ruling on this criterion was proper. Since we have already labeled the PCB’s action in the instant case as adjudicatory, we also reject petitioner’s contention that the PCB’s construction of the need criterion was unconstitutional as an arbitrary and unreasonable exercise of the police power.

’ The principal expert witness for petitioner on the need criterion was Richard Eldredge, an engineer with experience in solid waste management, who concluded that the landfill was necessary based upon certain governmental reports concerning licensed landfills and their projected lives and upon data obtained from Waste Management concerning areas served by the existing landfill site. In his opinion, landfills should be located within a 15-mile radius of the area served in order to minimize the cost of transportation to a disposal site. As noted by the LCB, however, Eldredge did not know the percentage of waste coming to petitioner’s existing landfill from beyond the 15-mile radius or know which towns listed in the Pick-Up Study (supplied by petitioner and relied upon by Eldredge) were within the 15-mile radius. Eldredge’s testimony, therefore, cannot support petitioner’s assertion in its application that 90% of the waste received came from within a 15-mile radius of Antioch, Illinois. Eldredge testified that even if only 10% or 25% of the waste came from within the 15-mile radius he still would consider petitioner’s proposed site necessary. This statement, the LCB argues, shows that Eldredge would testify that the landfill was necessary under virtually any circumstances. Inasmuch as Eldredge could not testify as to what percentage of waste came from within the 15-mile area, the LCB argued his conclusion regarding need is unsupported and unpersuasive. Eldredge further testified that without the proposed expansion, two other comparable sites would remain to serve the intended area: ARF in Grayslake having a remaining useful life of eight years, and BFI in Winthrop Harbor, having a useful life of 30 years. The existing site in Antioch, Eldredge stated, had a useful life of eight months and the Lake Landfill in Northfield Township, Cook County, had a three-year expected life.

Petitioner also relied upon the Lake County Board staff report, which noted that if the proposed facility were not accepted, “it is probable that the dislocation and redirection of the waste stream would result in a significant impact on the area.” Absent the HOD landfill, the report continued, both BFI and ARF would have greater traffic and would suffer reduced life expectancies. Because the waste will have to be transported greater distances, the report stated, “the cost to local municipalities and unincorporated areas will increase significantly.” The LCB challenges the Lake County report because of the drafters’ reliance principally upon information contained in petitioner’s landfill application, and not the evidence adduced at the hearing.

The LCB cited the testimony of Alfred J. Little, chairman of Antioch’s Landfill Study Commission, as support for its position that petitioner did not establish need. Little’s testimony was based upon information provided by petitioner and the county’s staff. On the basis of Little’s testimony, the LCB stated in its decision that “if the site location is denied, there will remain 10.75 years for the County or Waste Management to find another landfill site given the remaining capacities of existing landfill sites serving the area.” Noting that Little’s testimony in this regard was unrebutted, the PCB stated the LCB’s conclusion that petitioner failed to establish need was not against the manifest weight of the evidence.

While petitioner challenges Little’s testimony on the basis that he is not an expert, this fact does not discredit otherwise persuasive testimony. (See Ralston Purina Co. v. Pollution Control Board (1975), 27 Ill. App. 3d 53, 58, 325 N.E.2d 727, 730.) Petitioner also attacks the accuracy of Little’s projections, asserting that Little’s opinion did not take into account the change in volume at the two comparable sites that would result from denial of the proposed site. We agree with the LCB that petitioner’s argument is without merit. Based upon the data contained in the Andrews report, Little’s analysis involved the projection of the lifespans of the BFI and ARF landfills including the diverted waste from the closed Antioch site. On the assumption that the landfill application would not be approved, Little estimated that the combined remaining capacity of the BFI and ARF landfills would be at least 10.75 years.

On very similar facts, the court in Waste Management of Illinois, Inc. v. Pollution Control Board (1984), 122 Ill. App. 3d 639, held that the petitioner had failed to establish need to expand its existing landfill facility. The Will County Board had concluded that the expansion was not necessary because existing and available landfills were sufficient to handle waste production for over 10 years, and the board’s decision was affirmed by the PCB. The PCB here likewise found that the uncontradicted testimony indicated existing available facilities could handle the waste production for 10 years. We find Waste Management persuasive support for our affirmance of the PCB in the instant case.

In its reply brief, petitioner cites E&E Hauling, Inc. v. Pollution Control Board (1983), 116 Ill. App. 3d 586, 451 N.E.2d 555, where this court concluded that the petitioner had satisfied the need criterion. There, the testimony indicated that three of the four existing waste disposal facilities in Du Page County had life expectancies of 10 years each and that the fourth facility had a life expectancy of two years. (116 Ill. App. 3d 586, 608, 451 N.E.2d 555, 572.) We believe that E&E Hauling is distinguishable from the case at bar. There, this court recited the testimony of four witnesses on the necessity of the site expansion. Two of the witnesses specifically stated that they believed the facility was necessary, and the other two witnesses offered testimony supportive of the petitioner’s application. This court specifically noted that “[n]one of the above testimony was rebutted or impeached.” (116 Ill. App. 3d 586, 609, 451 N.E.2d 555, 573.) In contrast, the conclusions of the witnesses in the case at bar were conflicting on the need criterion and Eldredge’s testimony was substantially impeached. In light of the disputed testimony, the findings of the PCB and the LCB here that the need criterion had not been satisfied by petitioner are not against the manifest weight of the evidence.

Petitioner does credibly argue that increased costs, distance and travel time do constitute evidence of need. (See Waste Management of Illinois, Inc. v. Pollution Control Board (1984), 122 Ill. App. 3d 639.) Petitioner contends that the LCB and PCB improperly concluded that these factors played no part in determining need. Our review of the PCB’s decision, however, convinces us that the PCB concluded the evidence was insufficient to establish need. Eldredge testified that in most cases, disposal costs doubled beyond the 15-mile radius. However, as the LCB points out, Eldredge did not know the percentage of waste within the 15-mile radius of the proposed site. Therefore, his generalization is insufficient to establish increased costs. In fact, the evidence established that the BFI landfill is 10.5 miles from the proposed site and the ARF landfill is 11 miles away. Within a 15-mile radius of the proposed site, 11 municipal landfills exist with the remaining lives of 40 years. Thus, petitioner failed to demonstrate that denial of the application will result in increased disposal costs.

The only other evidence of need cited by petitioner is contained in the Lake County Board staff report which stated that “[w]ith greater disposal distances, cost to local municipalities and unincorporated areas will increase significantly.” While this statement if supported by evidence would be relevant to prove need, petitioner has not cited nor can we find any specific evidence demonstrating that the area intended to be served will experience increased costs if the proposed landfill application is denied. We note that similar generalized statements concerning increased costs were recently held insufficient to establish the need for an expansion of an existing landfill facility. (Waste Management of Illinois, Inc. v. Pollution Control Board (1984), 122 Ill. App. 3d 639.) Before the LCB, petitioner bore the burden of establishing need. Although advancing the argument that denial of the application will increase service costs, petitioner has failed to present evidence supporting its statement. Absent such evidence, we conclude the petitioner has failed to sustain its burden and thus, the PCB’s conclusion that petitioner has failed to establish need is not against the manifest weight of the evidence.

COMPATIBILITY CRITERION

Petitioner next contends that the PCB improperly refused to consider the presence and impact of the existing, adjoining landfill thereby erroneously concluding that the proposed facility was not located so as to minimize incompatibility with and effect on the characters and values of the surrounding properties. (Ill. Rev. Stat. 1983, ch. lllVa, par. 39.2(a)(iii).) In affirming the LCB’s finding that petitioner had not satisfied this criterion, the PCB rejected petitioner’s argument that the best evidence of the compatibility of the proposed facility was the presence of the existing facility in the area. Rather, the PCB ruled that the compatibility of the proposed facility must be assessed in the same light as a new facility. Section 39.2 of the statute requires the county board to apply the six criteria to new regional pollution control facilities. In section 3(x)(2) of the Act, new regional pollution control facilities are defined as “an area of expansion beyond the boundary of a currently permitted regional pollution control facility.” (Ill. Rev. Stat. 1983, ch. HV-k, par. 1003(x)(2).) We agree with the PCB that the clear intent of the statute is to require the local government units to consider a proposed facility expansion as a new and separate regional pollution control facility. Consistent with this legislative intent, therefore, petitioner should not be able to establish compatibility based upon a preexisting facility.

Petitioner presented three witnesses in connection with the third criterion: one on compatibility and two on the site’s effect on land values. J. Christopher Lannert, a landscape architect and land planner, testified that the proposed landfill would not be incompatible with the character of the surrounding area. His opinion was predicated on the fact that the landfill operation and effects would be screened by earthen berms and vegetation. On cross-examination, Lannert testified that he only studied the impact of the proposed site on the property within 500 feet of the proposed facility and admitted he did not look beyond that point to determine whether more removed properties would be visibly impacted. By stating the impact would extend beyond 500 feet, the PCB implicitly concluded the scope of Lannert’s study was too limited to meet the compatibility criterion. We agree with the PCB that the compatibility with the area of a landfill site should be demonstrated by a study based upon an area greater than 500 feet surrounding the proposed facility. In this case, for example, the facility when full will remain in the area as a 30-acre mound with a height above grade of 70 to 90 feet. Furthermore, while there are several homes within 500 feet of the site, the record indicates 45 single-family homes are within 1,000 feet and 935 single-family homes and several apartments are within one-mile of the proposed site. Recognizing these facts, the PCB justifiably observed that “in this case a 30-acre mound with a height above grade of 70-90 feet would generate an effect upon the surrounding area to a greater extent than 500 feet.”

In addition to the limited scope of his analysis, Lannert did not study the line of sight from the second floor of any homes in the surrounding area and did not determine whether the proposed site would be visible from downtown Antioch, one-half mile from the site. Lannert also admitted the proposed landfill site would obstruct the western view of landowners who would in fact be looking completely at the landfill. Lannert’s testimony regarding the effect of the berms was less than conclusive. During the winter, Lannert noted that the defoliated trees would “sort of, filter that view.” Moreover, Lannert admitted that not all the vegetation included in his screening design is on property owned or controlled by petitioner.

Several witnesses testified for the village regarding the landfill’s incompatibility with the area. Robert B. Rennebohm, a landscape architect, testified that the proposed screening berms south of the tree line along Depot Street, the northern boundary of the proposed site, would cause many of the trees there to die within five to eight years. Even while the trees were alive, he stated, the landfill during the winter would be visible from the north because the trees would be defoliated. He also stated the top of the landfill would be visible from second-floor homes and that the proposed six-foot high northern screening berms would look unnatural and wall-like. Rennebohm concluded that the proposed landfill would not be visually compatible with the area to the north and northwest, urban planner Robert Duchek, who helped prepare the comprehensive plan of Antioch, Illinois, testified that the proposed landfill would not be compatible with the character of the surrounding area and would disrupt growth patterns set forth in the comprehensive plan.

Petitioner argues that its evidence need not demonstrate that the landfill site is compatible with the surrounding area, but rather only that petitioner’s efforts have minimized incompatibility with the area. We reject the literal construction of the third criterion, which petitioner advocates. Under this literal construction, any action, however small, taken by an applicant to minimize the landfill’s incompatibility would satisfy the statutory requirement. Such a minimal requirement would render the criterion practically meaningless. Rather, we read section 39.2(a)(iii) as requiring an applicant to demonstrate more than minimal efforts to reduce the landfill’s incompatibility. This court in E&E Hauling, Inc. v. Pollution Control Board (1983), 116 Ill. App. 3d 586, 451 N.E.2d 555, upheld a finding of the county board that the petitioner had satisfied this criterion. In considering the third criterion, this court emphasized that “[t]he testimony adequately showed that petitioners had taken and planned to take steps to do what they could to minimize the impact of the fill on the surrounding areas.” (116 Ill. App. 3d 586, 614, 451 N.E.2d 555, 576.) Implicit in this statement is the conclusion that an applicant must demonstrate it has done or will do what is reasonably feasible to minimize incompatibility. Here, Lannert’s study because of its limited scope did not even address the complete “surrounding area” and the testimony in opposition to the site demonstrated many inadequacies in the screening efforts. As such, while we recognize that petitioner introduced some evidence on minimization of incompatibility, we do not find it sufficient to conclude that the findings of the PCB are against the manifest weight of the evidence.

Petitioner also presented evidence regarding the effect of the proposed landfill on surrounding property values. Robert P. Schroeder, a real estate broker and appraiser, testified that the proposed landfill would not adversely affect surrounding property values. However, Schroeder does not hold a final designation in real estate appraisal. While not having any training in statistical analysis, Schroeder performed a trend analysis involving consecutive sales of properties in a nearby subdivision. His conclusion that property would not be devalued was based on this study. However, the Lake County Board staff report disputed the statistical methodology of Schroeder’s appraisal report and questioned its reliability. Among staff criticisms were that the report was not based on comparable sales, was based on selected rather than random data, and utilized small samples. The PCB also criticized the report because of its reliance on a small sample and its emphasis on consecutive rather than comparable sales.

Petitioner’s other valuation witness, William McCann, a real estate agent, consultant and broker, relied substantially on Schroeder’s report. McCann did not perform his own study of the impact of the proposed site on the surrounding area. Nevertheless, relying upon data collected by Schroeder, he testified the proposed site would not “unduly depreciate the surrounding property tax trend and values.” The PCB rejected McCann’s testimony as based in large part on Schroeder’s study and instead relied upon the testimony of village witnesses in concluding the LCB’s finding was not against the manifest weight of the evidence. The PCB cited the testimony of Mike Warren, a real estate broker with 10 years experience listing properties in Antioch. Warren testified that prior to 1977, the existing landfill to the west did not impact on the sales of properties in Little Silver Lake subdivision to the east. As the landfill expanded eastward, however, residential properties in that subdivision became difficult to market because of the landfill. His conclusion was that property values east of the existing site had been severely depreciated by the present landfill.

The PCB also cited testimony of the public regarding the effect of the proposed landfill on property values. Specifically, some residents of the Little Silver Lake subdivision which abuts the existing site said they experienced difficulty in selling their homes. The owner of the only business in the subdivision also testified that business had declined since petitioner’s landfill operations began. The PCB properly found that petitioner’s failure to satisfy the third criterion was not against the manifest weight of the evidence.

In light of our decision that the record supports the conclusions of the PCB on the need and incompatibility criteria, we need not consider the LCB’s contention that the PCB erred in concluding that the LCB was without authority to consider highly technical matters regarding the landfill siting decision. We note, however, that had we reversed the PCB on the necessity and incompatibility criteria, we would nevertheless remand the cause to the PCB for consideration of whether the LCB’s determination regarding the public health, safety and welfare criterion was against the manifest weight of the evidence. The LCB had concluded that the facility was not so designed, located and proposed to be operated that the public health, safety and welfare would be protected. Concluding that the findings of the LCB concerning this criterion involved highly technical issues beyond the jurisdiction of the local authorities, the PCB rejected the findings as beyond the statutory authority of the LCB. Several recent decisions of our appellate court, however, have reached the opposite conclusion and have held that the county board has the authority to consider such matters. (County of Lake v. Pollution Control Board (1983), 120 Ill. App. 3d 89, 457 N.E.2d 1309; City of East Peoria v. Pollution Control Board (1983), 117 Ill. App. 3d 673, 452 N.E.2d 1378; see also Waste Management of Illinois, Inc. v. Pollution Control Board (1984), 122 Ill. App. 3d 639.) A remand of this cause is made unnecessary because of our affirmance of the PCB’s decision denying the application for expansion of the existing sanitary landfill.

Accordingly, we affirm the order of the Pollution Control Board.

Affirmed.

HOPE and REINHARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    MACOUPIN COUNTY HOUSING AUTHORITY, Petitioner, v. THE POLLUTION CONTROL BOARD et al., Respondents.
    Fourth District
    No. 4 — 83—0721
    Opinion filed May 7, 1984.
    William Denby, of Denby, Dobbs, Meno & Bloomer, P.C., of Carlinville, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Allen Samelson, Assistant Attorney General, of counsel), for respondents.
   JUSTICE GREEN

delivered the opinion of the court:

The case concerns procedure before respondent, the Illinois Pollution Control Board (Board). It arises from a proceeding brought before the Board by respondent here, the city of Mt. Olive (the city), pursuant to section 37 of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1981, ch. HV-lz, par. 1037), seeking a variance concerning the use of one of its sewers. At the order of the Board, petitioner here, Macoupin County Housing Authority (Housing Authority), was made a respondent to an amended petition by the city. Without holding a hearing, the Board denied the amended petition. The Housing Authority has appealed directly to this court pursuant to section 41 of the Act (Ill. Rev. Stat. 1983, ch. IIIV2, par. 1041) contending, partly, that it was entitled to a hearing. We agree and reverse and remand to the Board with directions to hold a hearing.

The original petition was filed January 24, 1983. It alleged that the city’s sewers had been placed on a restricted list by respondent, the Environmental Protection Agency (Agency) because of the city’s construction of a sewer which overloaded its system. The petition further alleged that the Housing Authority had connected a sewer line extension to that sewer from its building which housed low-income residents. The petition requested that the Housing Authority be permitted to continue to use the sewer. The Housing Authority was joined as a respondent before the Board by the city’s amended petition filed on March 14, 1983. On May 31, 1983, the Agency filed a report with the Board recommending denial of the variance. The Board’s order of denial was entered July 26, 1983. On August 29, 1983, the Housing Authority filed a motion to vacate the order and for additional relief. Among other contentions, the Housing Authority asserted that it should have been granted a hearing.

On appeal the Housing Authority once again asserts that it was entitled to a hearing and also raises two other contentions. We need consider neither of them. One contention was that the Board’s decision was not supported by the record. This point is mooted by our decision to remand for a hearing. The Housing Authority also maintains that by the provision of section 38 of the Act (Ill. Rev. Stat. 1981, ch. lll1^, par. 1038) it was entitled to an automatic variance for one year because the Board failed to rule on the pending amended petition within 90 days of its filing. This assertion is also mooted. The parties agreed at oral argument that the Housing Authority continues to use the sewer. The one-year period which commenced 90 days after the date the Housing Authority contends that the last amended petition was filed will expire before the case is at all likely to be heard and decided on remand by the Board.

The Board and the Agency maintain that because (1) neither the city, nor the Housing Authority made any request for a hearing until after the Board had made its decision, and (2) the city had expressly waived a hearing, the Housing Authority was not entitled to a hearing. The Housing Authority was in a somewhat unusual position before the Board because it was required by the Board to be joined as a respondent, but was in favor of, rather than against, the granting of the variance. Neither the Act nor the Board’s rules enacted pursuant to section 26 of the Act (Ill. Rev. Stat. 1981, ch. llN/a, par. 1026) specifically set forth the rights of such a party under such circumstances.

Section 37(a) of the Act describes the circumstances in which a party is entitled to hearing on a request for a variance in the following manner:

“The Agency shall promptly investigate such petition and consider the views of persons who might be adversely affected by the grant of a variance. The Agency shall make a recommendation to the Board as to the disposition of the petition. If the Board, in its discretion, concludes that a hearing would be advisable, or if the Agency or any other person files a written objection to the grant of such variance within 21 days, then a hearing shall be held *** and the burden of proof shall be on the petitioner.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. IIIV2, par. 1037(a).

Section 37(a) is somewhat ambiguous as to whether a recommendation of denial by the Agency constitutes an objection by the Agency triggering the right to a hearing. In Material Service Corp. v. Pollution Control Board (1976), 41 Ill. App. 3d 192, 354 N.E.2d 37, the court, in determining that petitioner was entitled to a hearing, treated a recommendation of denial of variance by the Agency as an objection by the Agency. Since that case, the Board has amended its rules to provide by Rule 104.160(c) that:

“The Board shall authorize a hearing on any petition for variance, determined to be an adequate petition by the Board, in any of the following circumstances:
(1) When a hearing is requested by the petitioner on filing a petition in accordance with Section 104.124; or,
(2) When an objection to the variance has been filed within 21 days after the filing of the petition in accordance with Section 104.141; or,
(3) When a hearing is requested by an amended petition within 7 days after receipt of the Agency recommendation by the petitioner in accordance with Section 104.181(b).” 35 Ill. Adm. Code sec. 104.160(c).

We reject summarily the contention that either the failure of the city to request a hearing or the city’s waiver of a hearing should deprive the Housing authority of a right to be heard. The Housing Authority was involuntarily brought into the case so that its rights with respect to the requested variance could be determined. Any decision of the Board would be binding upon the Housing Authority. As the Housing Authority was not a petitioner nor, indeed, a party to the case when the petition was filed, it could not have requested a hearing at that time. The rules are not at all clear as to whether the Housing Authority could have filed an amended petition within seven days after receipt by the Board of an Agency recommendation to deny the variance. As the Housing Authority was not joined as a petitioner and had not filed an original petition, it was not in a position to file an amended petition. Thus, unless the Agency’s request that the petition be denied constituted an objection triggering a right to a hearing by the terms of the statute, the Housing Authority had no way to obtain a hearing.

We need not determine whether the report of the Agency recommending denial of the variance constituted an objection as the Material Service Corp. case seems to suggest. If it did, then the Housing Authority was entitled to a hearing without request. Section 37(a) of the Act states that when such an objection is filed, “a hearing shall be held.” Rule 104.160(c) is consistent with that requirement. If the recommendation is not an objection, the lack of any provision to obtain a hearing by a party in the position of the Housing Authority mandates that the Board grant a hearing on its own motion. Section 10(a) of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1981, ch. 127, par. 1010(a)) states that “[i]n a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice.” As indicated in North Shore Sanitary District v. Pollution Control Board (1972), 2 Ill. App. 3d 797, 277 N.E.2d 754, due process before an administrative agency requires that a party have an opportunity to be heard.

Our ruling, reversing and remanding for the holding of a hearing, is to effectuate that right for the Housing Authority.

Reversed and remanded.

MILLER and WEBBER, JJ., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    AREA TRANSPORTATION COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (John Fiedler, Appellee).
    First District (Industrial Commission Division)
    No. 1 — 84—377WC
    Opinion filed May 10, 1984.
    Kane, Doy & Harrington, Ltd., of Chicago (Samuel J. Doy, of counsel), for appellant.
    Roddy, Power & Leahy, Ltd., of Chicago (John H. Guill, of counsel), for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Area Transportation Company (Area) appeals from the judgment of the circuit court of Cook County confirming the decision of the Industrial Commission. The arbitrator found that John Fiedler was an employee of Area and awarded compensation for permanent total disability. On review the Industrial Commission affirmed the arbitrator’s award and added further amounts of medical payments. The sole issue is whether Fiedler was an employee of Area under the Workers’ Compensation Act at the time he was injured. An additional defendant, Mace Iron Works (Mace), was dismissed by the arbitrator, no argument or contention is made with regard to Mace in this appeal, and in oral argument Area has stipulated to the dismissal of Mace.

Fiedler sustained injuries in an automobile accident on July 29, 1978, while riding in his brother’s car after being picked up at the site of a mechanical breakdown of his truck. For two years prior to the accident, Fiedler had worked for Mace, receiving an hourly wage for approximately 35 hours of work weekly as a welder of structural steel and for loading and delivering the product.

In 1977, Fiedler purchased a truck owned by Mace for the hauling of the fabricated steel under a note payable in installments. On January 14, 1977, Fiedler entered into an “Equipment Lease” under which he leased the truck, purchased from Mace, to Area.

The lease recited that Area desired to lease the equipment from the “Independent Contractor,” that the vehicle would be under the direction, supervision, and control and operated pursuant to for-hire motor carrier authority of Area under its ICC License, for a period from January 14,1977, to January 14,1980.

The lease agreement provided, as material:

“2. [Fiedler] agrees to haul such property as [Area] may require for a series of trips, between various points and places, for a period of one (1) year beginning with date and time shown below and continued thereafter until terminated by the terms of this agreement. Either party may at its option terminate this lease by giving thirty (30) days notice in writing to the other.
3. Costs of Operation. [Fiedler] shall pay all costs of operation which may include, but shall not be limited to, the following: Maintenance, repairs, fuels, lubricants, tires, etc; wages or other remuneration of operators, drivers and helpers; public liability and property damage insurance on the equipment while not being operated in service of [Area] or otherwise; workmen’s compensation, unemployment insurance, Social Security or other similar taxes, insurance or benefits on the operator, drivers and helpers and, in connection therewith, [Fiedler] shall make all payroll, tax or other deductions required by any applicable law or regulation; license registration fees, toll charges, decals, use permits, axle, weight, garoline [sic] or other types of taxes, fees or exactions required of or on the equipment or on the use or operation thereof, including all reports connected with such matters, damages to cargo caused by the fault or neglect of [Fiedler], and fines and penalties arising out of the use of said equipment. In the event [Area] is compelled to pay any of [Fiedler’s] costs of operations such payment shall be considered an advance to [Fiedler] and is deducted from any monies due or becoming due to [Fiedler].”

It further provided for the transportation of:

“Commodities general within a fifty (50) mile radius of 1939 South 48th Court, Cicero, Illinois and to transport such property to or from any point outside of such authorized area of operation for a shipper or shippers within such area. Also, between the Indiana-Illinois State Line, on the one hand and on the other, points and places in Indiana within the Chicago, Illinois Commercial Zone as defined by the Interstate Commerce Commission on I.M.C.C. 673.”

After Fiedler purchased the truck from Mace he continued his work for Mace as a welder. Also, prior to the agreement with Area, Fiedler hauled only for Mace. After the agreement with Area, Fiedler hauled only for Area, which included deliveries from Mace once or twice a week. When Fiedler would make a delivery for Area to a housing project he was to pick up the unused steel he found on the ground near the foundation of the project for Mace and was paid a straight $15 per pickup by Mace, and Area Transportation received nothing from this.

Fiedler testified that he maintained the truck and kept it on Mace property. Area purchased the insurance for the truck and furnished Fiedler with the Interstate Commerce Commission (ICC) numbered decal. Area would pay Fiedler on a weekly basis and would create the freight bill and send it to Mace, which would pay Area every two or three weeks. There was also testimony that Fiedler, before he started trucking for Area, filled out an employment application form provided by Area and used for other employees. A physical examination was required for truck drivers. If Fiedler failed to pass a driving test he would not be allowed to drive for Area; likewise he would not be allowed to drive if there were any “unsavory information” on the employment application. Area’s witness testified that this was so the insurance company would maintain the insurance. Area’s officer also testified, in the nature of an offer of proof submitted by Fiedler’s counsel, that he would terminate the relationship should Fielder violate ICC regulations such as hauling outside the area or hauling unauthorized commodities.

In case of accident Fiedler was instructed to call in to Area. Area’s name was on the truck on an adhesive. Area owns no trucks of its own. Area withheld a security deposit of $225-$250 from Fiedler’s check to cover any damage to cargoes. Fiedler’s truck was only used to deliver steel from or to Mace.

On the morning of the accident, after Fiedler loaded his truck with steel at Mace he punched out there and began his delivery of a load of structural steel. On the way, the drive shaft separated from the transmission. Fiedler called for a tow truck which came, but the tower would not take the truck back to Mace without being paid for the tow; Fiedler went to a gas station and called his brother to come out with money to pick up a part for the truck; they were going to fix it if it could be fixed; they did not make it back to the truck.

I

Area argues that Fiedler was not its employee but rather an independent contractor, principally because, Area says, it did not in fact control Fiedler’s method and manner of operation; because Mace would give Fiedler any directions he would receive; and because Fiedler was responsible for all maintenance of the vehicle, all repairs, gas and oil. Area further argues that the equipment lease expresses all of the rights and obligations of the parties and the provision that Fiedler is responsible for furnishing workers’ compensation insurance on the truck operator creates the implication that Fiedler can hire other drivers, and is thus not himself an employee.

There is no inflexible rule for determining whether an individual is an employee or an independent contractor. (See Wenholdt v. Industrial Com. (1988), 95 Ill. 2d 76, 80; Ragler Motor Sales v. Industrial Com. (1982), 93 Ill. 2d 66, 71; M.W.M. Trucking Co. v. Industrial Com. (1976), 62 Ill. 2d 245, 254.) Where elements of both the relationship of employer and of independent contractor are present, the Industrial Commission alone is empowered to draw the inferences either way and its decision as to the weight of the evidence will not be disturbed on review. (Greenberg v. Industrial Com. (1961), 23 Ill. 2d 106, 108.) A question of law is presented only where no factual matters are disputed or no conflicting inferences are capable of being drawn from them. Chicago Transit Authority v. Industrial Com. (1975), 61 Ill. 2d 78, 83.

Many factors in the relationship of the parties are to be considered, including “ '*** the right to control the manner in which the work is done, the method of payment, the right to discharge, *** and the furnishing of tools, materials or equipment ***.’ ” (Bauer v. Industrial Com. (1972), 51 Ill. 2d 169, 171. See also Clark v. Industrial Com. (1973), 54 Ill. 2d 311, 314.) The right to control the manner in which the work is done is the most important factor in determining the relationship. (Globe Cab Co. v. Industrial Com. (1981), 86 Ill. 2d 354, 362; Morgan Cab Co. v. Industrial Com. (1975), 60 Ill. 2d 92, 97-98.) The Illinois Supreme Court has recently attributed increased significance to the nature of the work performed in relationship to the general business of the employer, in support of the theory that where a worker’s services form a regular part of the cost of the product it is presumptively within the intended area of the Workers’ Compensation Act. See Ragler Motor Sales v. Industrial Com. (1982), 93 Ill. 2d 66, 71; Wenholdt v. Industrial Com. (1983), 95 Ill. 2d 76, 81.

There is, however, no indication in the supreme court rulings to date that control has been supplanted as the principal test for determining whether there is an employment relationship or that of an independent contractor. Rather, the right to control appears to remain the principal although not the exclusive test, with the relationship between the claimant’s occupation and the regular business of the employer an additional factor to be considered. Ragler Motor Sales v. Industrial Com. (1982), 93 Ill. 2d 66, 71.

The provisions of the equipment lease clearly place the right to control in Area. We agree with Area’s argument that the right to control stated in the lease does not of itself establish the employment relationship as a matter of law. (See Wenholdt v. Industrial Com. (1983), 95 Ill. 2d 76, 81.) In Wenholdt, the majority upheld the Commission’s decision that the claimant was an independent contractor even though the contract between the tavern owner and a musical band provided that the tavern owner would have complete supervision, direction and control over the services of the musicians, including the details of performance by the leader and members of the band. The court held that this did not create an employer relationship as a matter of law and considered other factors, including the fact that the claimant who was injured was not a party to the contract, that the tavern owner did not, in fact, exercise any control over the claimant, that the band leader had the right to hire and replace, and thus implicitly fire, the claimant, that the claimant provided his own equipment, was compensated “by the job” as opposed to on a time basis, had no withholding taxes deducted and considered claimant’s occupation as a musician as not related to that of the operator of a tavern. Wenholdt v. Industrial Com. (1983), 95 Ill. 2d 76, 81.

Wenholdt, however, is not controlling under the particular facts of this case. While Fiedler was to be paid on the basis of his hauling trips rather than on a time basis, provided his own equipment, and no withholding taxes were deducted, there is little other similarity between the cases. Area controlled the property to be carried, and the points and places of the trips. Area had direction, supervision and control of the equipment pursuant to its for-hire motor carrier authority under its ICC license. Area assumed responsibility to the public under the ICC regulations and its ICC decal was displayed on the truck. Area was responsible to the public by virtue of ICC regulations. (Ill. Rev. Stat. 1975, ch. 95x/2, par. 18 — 309(c); Amended General Order No. 24.) Area furnished the insurance on the truck while it was being operated in its service. Before Fiedler started trucking for Area he filled out an employment application form provided by Area and used by other Area employees. A physical examination was required. If Fiedler failed to pass a driving test or if there was an “unsavory information” on the employment application, he would not have been allowed to drive for Area; and if Fiedler should violate ICC regulations, such as by hauling commodities unauthorized under Area’s ICC license, the relationship would have been terminated. Area also provided billing services.

We recognize that there were other factors which were indicative of an independent-contractor relationship. Area owned no equipment of its own but relied upon contracting parties to supply the equipment, storage for the equipment and the operator. Presumably under the lease Fiedler could hire drivers other than himself. Fiedler was to pay all costs of operation, specifically including all maintenance, fuel, tires, lubricants, workers, compensation insurance, withholding tax, licenses and registration fees, toll charges and road taxes. Fiedler was paid for the results of his trips and not for his efforts, in the sense that if no revenues were produced Area would pay no equipment rental fees.

However, where reasonable inferences from the facts may be drawn either in favor or against an employment relationship, the award of the Commission must be upheld. Greenberg v. Industrial Com. (1961), 23 Ill. 2d 106, 108. See also Morgan Cab Co. v. Industrial Com. (1975), 60 Ill. 2d 92, 101; M.W.M. Trucking Co. v. Indus trial Com. (1976), 62 Ill. 2d 245, 255.

In M.W.M. Trucking Co., the claimant entered into an agreement to lease his truck to American Transit Lines, with payment to be determined by the amount of freight handled and with various elements of control by American. On return trips claimant was permitted to “trip lease” to M.W.M. for the single purpose of a return trip. The claimant picked up a load of lumber from M.W.M. in Missouri on a Friday, drove to his home for the weekend in Granite City, and on Monday morning left for Whiting, Indiana, his destination as designated by M.W.M. He was involved in an accident on the way to his destination. The court found that an employer-employee relationship existed between M.W.M. and the claimant, relying substantially on operational control under commerce regulations, and the responsibility of the lessee to the public and shippers. M.W.M. Trucking Co. v. Industrial Com. (1976), 62 Ill. 2d 245, 255.

In Morgan, the facts that the cab company was in the business of operating a fleet of cabs, with a company image and an interest in the way the vehicles were operated, together with the right to control the area of operation and the right to refuse a cab lease for a variety of reasons, were held to be controlling factors in favor of the employment relationship. This, in spite of the fact that many other factors, including no withholding and no payment of operating expenses by the cab company, were indices of an independent-contractor relationship. Morgan Cab Co. v. Industrial Com. (1975), 60 Ill. 2d 92, 101.

The responsibility assumed by Area under the ICC regulations has also been recognized as a substantial factor in considering a party to be an employer. See 1C A. Larson, Workmen’s Compensation secs. 43.50 through 43.54 at 8 — 17 to 8 — 30 (1982). See also Du Berry v. Coker Freight Lines (1959), 274 S.C. 304, 108 S.E.2d 114.

Additionally, if the relationship of Fiedler’s work to the regular business of Area is taken into account reasonable inferences could be drawn which would support the Industrial Commission’s finding in favor of the employment relationship. Fiedler’s work was a regular part of Area’s business, which was to furnish trucking services to various industries. The work was continuous rather than a contract for completion of a particular job. Fiedler owned a single truck, in fact, drove it himself as an individual, and thus could not necessarily be expected to carry his own share of the workers’ compensation responsibility, even though the contract did so provide.

II

Alternatively Area argues that if it is conceded for the purpose of argument that the claimant was an employee during the operation of the vehicle, he also acted as an owner and original contractor in making the arrangements for repair following the breakdown of the vehicle.

It is, of course, possible that an individual may have a dual purpose in the course of a trip. (See Gmelich v. Industrial Com. (1980), 81 Ill. 2d 44, 48-49.) In Gmelieh, it was held that an automobile salesman who traveled in a company-furnished car to visit a friend in the hospital and to take his wife Christmas shopping and who was killed on the return trip had not been involved in an accident arising out of the employment merely because he carried work materials with him and was in the habit of attempting to make a sale at every opportunity and had, in fact, tried to sell a car to a store clerk. The court adopted the test

“ ‘when a trip serves both business and personal purposes, it is a personal trip if the trip would have been made in spite of the failure or absence of the business purpose and would have been dropped in the event of the failure of the private purpose, though the business errand remained undone; it is a business trip if a trip of this kind would have been made in spite of the failure or absence of the private purpose, because the service to be performed for the employer would have caused the journey to be made by someone even if it had not coincided with the employee’s personal journey.’ ” (81 Ill. 2d 44, 48.)

See 1 A. Larson, Workmen’s Compensation sec. 18.00, at 4 — 216 through 4 — 218 (1982).

The evidence that Fiedler was trying to effect towing and repairs on his truck in order to complete the delivery, that at the time of the breakdown the truck was still loaded with the freight, the absence of evidence that the claimant, when he entered his brother’s car, was going anywhere other than to the place where his truck was being towed to see if he could fix it and complete his delivery, all appear to reflect business motivations. It would appear that any repairs to the truck which would make it operational so that the load could be delivered would be of benefit to the claimant but would also accrue to the benefit of Area.

Hannibal, Inc. v. Industrial Com. (1967), 38 Ill. 2d 473, is cited by Area, but is factually dissimilar. In Hannibal, an employee injured in a fall at the business premises long after normal working hours was held not entitled to compensation on evidence that the employee was the president of the company, gave a vague explanation of his unusual presence during an early morning hour and failed to establish that his duties required his presence; and in addition, gave inconsistent testimony.

We conclude that the decision of the Industrial Commission is not against the manifest weight of the evidence. The judgment of the circuit court of Cook County confirming the decision of the Industrial Commission is affirmed. Mace Iron Works Co. is dismissed as a party.

Affirmed.

McNAMARA, BARRY, WEBBER and KASSERMAN, JJ., concur.


author: JUSTICE WEBBER

text:
    THEODORE H. INGRAM, Appellant, v. THE INDUSTRIAL COMMISSION et al. (North Central Airlines, Appellee).
    First District (Industrial Commission Division)
    No. 1—84—371
    Opinion filed April 11, 1984.
    Rehearing denied June 4, 1984.
    Theodore H. Ingram, of Chicago, for appellant, pro se.

    Burgeson, Laughlin, Cunningham & Hare, of Chicago (Michael C. Piller, of counsel), for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

Petitioner, Theodore Ingram, filed an application for adjustment of claim seeking workers’ compensation benefits and naming his employer, North Central Airlines, as respondent. Petitioner alleges that he suffered a back injury while in the course of his employment. The arbitrator entered a decision awarding Ingram compensation for 69 and 6/7th weeks, that being the period of temporary total incapacity for work. The arbitrator also found that Ingram was permanently partially disabled to the extent of 40% and, pursuant to section 8(d)(2) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(d)(2)), awarded him compensation for a further period of 200 weeks. Both parties sought review before the Industrial Commission. The Commission modified the decision of the arbitrator, finding that Ingram was permanently partially disabled only to the extent of 30%. Accordingly, the related compensation period was reduced from 200 weeks to 150 weeks. The circuit court affirmed the decision of the Commission. Ingram now appeals the Commission’s finding regarding the extent of his permanent disability. We affirm.

On appeal, Ingram contends that he is 100% permanently disabled as a result of his back injury. He argues that the Commission’s finding that he was permanently partially disabled only to the extent of 30% is against the manifest weight of the evidence.

Ingram had been employed by respondent for 11 years, his job requiring him to clean the interiors of respondent’s aircraft. On March 7, 1977, while moving a cart on a ramp, he slipped and fell backwards, hitting his buttocks and lower back on the pavement. As a result, he suffered severe back pain. He was treated by respondent’s doctors at the O’Hare Industrial Clinic, beginning on the day after his accident. He was hospitalized at Northwest Community Hospital in May and September 1977, during which times he was placed in traction and underwent X rays and a myelogram. On October 31, 1977, he again entered the hospital, and Dr. Bruno, an orthopedic surgeon, performed lumbar disc surgery (a laminectomy) on his lower back. Dr. Bruno was also Ingram’s treating physician at the O’Hare Industrial Clinic both before and after the surgery. Dr. Bruno felt that Ingram made a good recovery, and he released Ingram for work in May 1978.

. Ingram returned to work on May 6, 1978, where he performed all of his required duties except for work such as pulling garbage cans. He continued to experience some lesser pain and noticed that he had difficulty in bending. In June 1979 Ingram was dismissed from his employment for reasons apparently unrelated to his back injury. He then sought similar employment with other airlines without success.

At his attorney’s request, Ingram was examined by Dr. Hirschtick, an orthopedic surgeon, on January 12, 1979, September 4, 1979, and December 12, 1980. In December 1980, Dr. Hirschtick found involuntary muscle spasm, a loss of 20 degrees of extension in the lower spine, and a restriction of forward flexion of the lower spine to the point where Ingram brought his fingertips to within 10 inches of his toes. He further found straight leg raising to 60 degrees on the right and to 70 degrees on the left, that the right ankle reflex was weaker than the left, and that there was an impairment of sensation over the right leg and foot.

Another orthopedic surgeon, Dr. Smith, examined Ingram at the respondent’s request on April 24, 1979, and January 12, 1981. In January 1981 he found no muscle spasm, forward flexion limited 15 degrees, and lateral flexion limited only 5 degrees. He also found straight leg raising possible to 100 degrees bilaterally and that the right tendon Achilles reflex was absent with no loss of sensation. Other tests performed were normal.

At the arbitration hearing, Nicholas Schira, a research analyst from the Illinois Bureau of Employment Security, testified on behalf of the petitioner. He opined that a person in Ingram's circumstances would be unemployable. However, this opinion was based upon factors including, but not restricted to, Ingram’s medical condition.

Dr. Hirschtick testified that, on the basis of his examinations, he believed that Ingram was totally and permanently disabled from work. This opinion is undermined by the fact that the results of Dr. Smith’s examination were considerably at odds with those of Dr. Hirschtick. Furthermore, the post-operative reports of Dr. Bruno stated that Ingram could continue with full job activities and that there were no major problems whatsoever with his back. Most importantly, Ingram returned to work for over a year after recovering from his surgery, strongly suggesting that he was not totally disabled.

The determination of the degree of disability is a question of fact to be resolved by the Industrial Commission. Where, as here, there is conflicting evidence as to the degree of disability, the determination of the Commission should not be set aside on review unless it is against the manifest weight of the evidence. (Lachona v. Industrial Com. (1981), 87 Ill. 2d 208, 429 N.E.2d 858.) Based on the conflicting evidence presented, we cannot say that the Commission’s finding that Ingram was permanently disabled only to the extent of 30% was against the manifest weight of the evidence. Instead, we believe the Commission’s finding had ample support in the evidence.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

SEIDENFELD, P.J., McNAMARA, BARRY, KASSERMAN, JJ., concur.


author: JUSTICE JONES

text:
    AMAX ZINC COMPANY, INC., et al., Plaintiffs-Appellants, v. ILLINOIS COMMERCE COMMISSION et al., Defendants-Appellees. (Union Electric Company, Plaintiff-Appellee, v. Illinois Commerce Commission, Defendant-Appellee).
    Fifth District
    No. 83—151
    Opinion filed May 2, 1984.
    Randall Robertson and Edward C. Fitzhenry, both of Lueders, Robertson & Konzen, of Granite City, for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Edward P. O’Brien, Assistant Attorney General, and Hercules F. Bolos, Special Assistant Attorney General, of counsel), for appellee Illinois Commerce Commission.
    Paul A. Agathen, of St. Louis, Missouri, and Robert Broderick, of Pope & Driemeyer, of Belleville, for appellee Union Electric Company.
   JUSTICE JONES

delivered the opinion of the court:

This is an appeal of an order of the circuit court of Madison County that affirmed two orders of the Illinois Commerce Commission establishing revised power rates charged the appellants and other customers of the system. The appellants are Amax Zinc Company, Inc., Cerro Cooper Products, a Member of the Marmón Group, Chemetco, Inc., Clark Oil and Refining Corporation, Laclede Steel Company, Monsanto Company and Owens-Illinois, Inc. All are industrial customers purchasing electric power from Union Electric Company (UE) and were intervenors before the Illinois Commerce Commission (Commission) in UE’s rate revision proceeding and will be referred to as Intervenors. The rate revision proceeding was begun on May 22, 1980, when UE filed a tariff of proposed increased rates with the Commission. Pursuant to section 36 of “An Act concerning public utilities” (Ill. Rev. Stat. 1979, ch. 1112/3, par. 36), the Commission suspended the proposed rates and conducted hearings to inquire into their reasonableness. Appellants and others were granted permission to intervene. On April 15, 1981, the Commission issued an order approving certain increases, though not as requested by UE, and directed UE to file a revised tariff consistent with its order, to become effective for service rendered on and after the day subsequent to the date of filing of the revision. That date was April 18,1981.

The orders that were before the circuit court, and that are the subject of this appeal, were those of April 15, 1981, which granted UE a rate revision and increase, and October 14, 1981, which denied the Intervenors' applications for rehearing. The single issue presented to the circuit court, and in this appeal, is whether the two orders of the Commission constituted the approval of retroactive rates for primary service (applicable to all Intervenors except Amax) and interruptible power rates (applicable to Amax only) by implementing a 100% ratchet based upon the highest electric consumption demands made by Intervenors in the months of June through September 1980, as to primary service customers, and in 1977, as to interruptible power customers.

Essential to an understanding of the issues of the case is some acquaintance with the term “ratchet.” The term “ratchet” is a metaphor, idiomatic to the utility ratemaking industry, used to describe a rate device that ties a monthly billing for “demand cost” to the customer's highest historical consumption for a given period. “A ratchet provision serves to put a floor under the maximum demand for billing purposes, and may hold the billing demand to no less than the highest demand recorded in some stated past period or some percentage thereof.” P Garfield and W. Lovejoy, Public Utility Economics 157 (1964).

According to a publication of the United States Department of Energy, A Consumer’s Guide to the Economics of Electric Utility Ratemaking 124-25 (1980), the costs that an electric utility incurs are of three basic types:

“1) Energy Costs: The operating expenses incurred by a utility on behalf of an individual customer in providing that customer with a kilowatt hour (KWH) of electric energy. Energy costs vary directly with KWH usage and are primarily fuel costs.
2) Customer Costs: The capital and operating expenses incurred by the utility on behalf of an individual customer relating primarily to the number and size (usage) of customers. Customer cost does not vary significantly with the amount of energy used.
3) Demand/Capacity Cost: The capital and operating expenses incurred by a utility on behalf of an individual customer in providing sufficient capacity (a large enough generation, transmission and distribution system) to meet the maximum demand of that customer when needed.”

Roughly paralleling this classification is language from section 32 of “An Act concerning public utilities” (Ill. Rev. Stat. 1979, ch. 1112/3, par. 32) providing that as a basis of the charges made by it, a utility may classify its service “according to the amount used, the time when used, the purpose for which used, and other relevant factors.”

The ratchet provision in question relates to the charge of the utility for providing sufficient electric generating capacity to meet the peak demand, or consumption rate, of an individual customer. That capacity is the element of rates described in number 3 of the Department of Energy publication set forth above. The cost to the utility for its plant, its equipment and other of its capital outlays required to be made on behalf of individual customers, such as the Interveners here, is passed on to those customers by a rate that is based upon what the maximum need of that customer for electricity has been. That portion of the total rate is termed a demand charge. Our supreme court expressly approved a demand charge as an element of an electric rate in Antioch Milling Co. v. Public Service Co. (1954), 4 Ill. 2d 200, 207, 123 N.E.2d 302, 306, as follows:

“A demand charge is designed to allocate to a utility’s customers their fair portion of those fixed costs which must be incurred by the utility regardless of the amount of power which is actually supplied. It is the price which must be paid for the construction and maintenance of a plant with sufficient capacity to satisfy its customers’ demands. Such a charge for the utility’s readiness to serve is proper.”

The October 14, 1981, order of the Commission discusses the purpose of a ratchet provision in ratemaking:

“The use of the 100% ratchet, proposed by the company [UE] for its primary service rate customers, is in fact a device which promotes conservation and the efficient use of energy. *** In addition, ratchet provisions historically have been utilized to ensure that each customer within the class contributes a fair share of the costs incurred by the utility in providing the capacity or demand required.”

The Intervenors do not attack the ratchet or its use as a component of rates, for they state in their brief:

“The purpose of a demand ratchet provision is to provide a prospective price signal to a customer and to minimize the demand for electric energy during an on-peak period when the utility’s reserve margins are generally the slimmest and to encourage the demand for electric energy during the off-peak period when the utility has a sufficient generating capacity already in place. When the price signal is given prospectively through a demand ratchet, the customer can take power without regard to cost or make the choice of minimizing his electric energy costs by either reducing his on-peak demand or by increasing his off-peak demand. The result desired is a more efficient utilization of power and power facilities by the customers and by the utility. If the price signal is not given prospectively, the customer has no power to respond.”

The Intervenors’ posture thus expressed is attuned to the purpose for which the ratchet was designed.

“Although a ratchet is, initially, customer-focused, like demand allocation, it is also designed to bring about a more efficient system by providing an economic incentive for individual customers to level their yearly demand. By encouraging customers to spread their load more evenly, the utility seeks to improve its load distribution, i.e., to eliminate periodic excess capacity.” City of Batavia v. Federal Energy Regulatory Com. (D.C. Cir. 1982), 672 F.2d 64, 83.

The demand charges in question are contained in UE’s Service Classification No. 4 (I), Primary Service Rate, and Service Classification No. 7(I), Interruptible Power Rate. Excerpts from those rates will suffice to illustrate for statement of the Intervenors’ position:

Customer Charge $150.00 per month
Demand Charge $ 5.30 per kW
Energy Charge 1.40$ per kWh
* * *
5. Billing Demand. The billing demand in any month shall be the highest billing demand established during the 12 months ending with the current month. In computing the billing demand the higher of (1) 100% of the highest demand established during peak hours or (2) 50% of the highest demand established during off-peak hours shall be used, but in no event will the billing demand be less than 150 kW.
On-peak hours: 10:00 AM - 10:00 PM Monday through Friday during the calendar months of June through September.
Off-peak hours: All other hours including the entire 24 hours of Independence Day and Labor Day.
All times stated above apply to the local effective time.
* * *
Interruptible Power Rate 7(1)
3. Rate Based on Monthly Meter Readings.
Customer Charge $150.00 per month
Energy Charge 1.40<P per kWh (1)
Demand Charge - Assurance Power $5.30 per kW (2)
- Interruptible Power $2.27 per kW (3)
Fuel Rider (Rider A) - Applicable to all kWh.
* * *
(3) The kilowatts to be billed as Interruptible Power will be the highest demand established at any time less the currently applicable kilowatts of Assurance Power.”

The billing for the demand or capacity cost in the Primary Service Rate that was in effect prior to the rate filing under consideration here provided that the billing for demand was to be based on 50% of the highest demand in that month only and set the “on peak” and “off peak” periods on a daily basis without regard to any seasonal period of time. Under that scheme the demand made of the system in prior months did not affect and was not applied to the current month’s bill.

Under the Interruptible Power Rate in effect prior to April 18, 1981, Amax was subject to a charge for demand of $2.40 per kW per month for assurance or firm power only. No charge for demand was applicable for interruptible power use. Under the new rates effective April 18, 1981, as shown by Service Classification 7(1) above, a charge for demand was made applicable to the interruptible portion of power consumption. The basis of this interruptible power demand charge is the highest demand established at any time. In the case of Amax, the historically highest consumption had occurred in 1977.

The ratchet in the primary service classification is found in its provision that the billing for demand (capacity) in any month shall be the highest demand established during the 12 months ending with the current month. The billing for demand (capacity) is the higher of (1) 100% of the highest demand established during “on peak hours,” or (2) 50% of the highest demand during “off-peak hours.” “On-peak hours” are defined to be 10 a.m. through 10 p.m. Monday through Friday during the calendar months of June through September. “Off-peak hours” are defined as all others, but also including the Independence Day and Labor Day holidays.

Thus, under the old rates in effect prior to April 18, 1981, the demand imposed upon the system in prior months did not affect the current months’ bill. The ratchet provision in the new rate approved by the Commission to be effective April 18, 1981, changed the demand billing to incorporate prior demands placed on the system. In implementing the new rates, UE billings to Intervenors after April 18, 1981, indicated that the peak demand placed on the system by each customer during the summer of 1980 was used for the purpose of determining the “on-peak demand” charge for those customers. As to Intervener Amax under the new Interruptible Power Rate, UE billings after April 18, 1981, indicated that 1977 was used as the historical high demand for the billing for demand.

The retroactive incorporation of 1980 peak demand for current monthly billings is the basis of Intervenors’ position before the Commission on rehearing, before the circuit court and before this court. They argue that rates approved by the Commission must be prospective in their operation, citing Mandel Brothers, Inc. v. Chicago Tunnel Terminal Co. (1954), 2 Ill. 2d 205, 117 N.E.2d 774. They further argue that the purpose of a demand ratchet is to enable a user of electricity subject to a demand charge to adjust its use during the “on-peak” hours so as to make its maximum use or demand at an “off-peak” period and thereby minimize both its charges and the demand on the capacity of the generating system. The new rates incorporating the ratchet as approved wholly denied the Intervenors any opportunity to organize their use of electricity so as to maximize it during the “off-peak” period. Intervenors finally argue that while the orders of the Commission of April 18, 1981, and October 14, 1981, approve a 100% ratchet for the rate for demand, neither of those orders authorize, or even acknowledge, use of 1980 demand peaks for the billing for demand in 1981. Furthermore, Intervenors say, no finding of facts, as required by statute, are made in either order of the Commission that would justify UE in using 1980 demand peaks for billing for demand in 1981. Such action by UE is therefore arbitrary, unreasonable and unjust, and accordingly void.

We must disagree with the Intervenors’ position and arguments and affirm the order of the circuit court that affirmed the April 18, 1981, and October 14, 1981, orders of the Commission. In doing so we initially acknowledge the expertise of the Commission in performing its role in fixing rates for utilities. The supreme court has on many occasions noted a deference to the Commission in such matters as are presented by this case. For instance, in Cerro Cooper Products v. Illinois Commerce Com. (1980), 83 Ill. 2d 364, 370-71, 415 N.E.2d 345, 348, the court stated that reviewing courts are empowered “only to consider whether the Commission has acted within the scope of its authority, whether any constitutional right has been infringed, and whether its findings are founded on the evidence (Killarney Water Co. v. Illinois Commerce Com. (1967), 37 Ill. 2d 345; Champaign County Telephone Co. v. Illinois Commerce Com. (1967), 37 Ill. 2d 312). An order of the Commission will be presumed to be valid (Village of Maywood v. Illinois Commerce Com. (1961), 23 Ill. 2d 447, cert. denied (1962), 369 U.S. 851, 8 L. Ed. 2d 10, 82 S. Ct. 935) and may not be set aside unless it is clearly contrary to the manifest weight of the evidence (Ill. Rev. Stat. 1979, ch. 1112/3, par. 72; McMann v. Illinois Commerce Com. (1967), 38 Ill. 2d 126; Village of Apple River v. Illinois Commerce Com. (1960), 18 Ill. 2d 518). In the area of setting utility rates courts have generally deferred to the Commission’s expertise. (Iowa-Illinois Gas & Electric Co. v. Illinois Commerce Com. (1960), 19 Ill. 2d 436; Brinker Trucking Co. v. Illinois Commerce Com. (1960), 19 Ill. 2d 354.)”

However, our deferral to the ratemaking expertise of the Commission does not mark the extent of our consideration. After examination of the record, the authorities and the arguments, we are persuaded that the Commission has not approved retroactive rates on behalf of UE. The Intervenors have cited no authority that directly supports their contention that the use of the 1980 ratchet constituted retroactive application. In fairness, we must also state that, on the other hand, there is little authority for the proposition that the use of the 1980 ratchet in question does not constitute retroactive ratemaking. Both UE and the Commission cite Re Commonwealth Edison Co. (1982), 46 PUR 4th 498. It is not clear from the report of that case conducted before the Federal Energy Regulatory Commission just what the basis of the retroactive ratemaking argument was. However, it appears that certain municipalities, wholesale electric customers of Commonwealth Edison Company, argued that inclusion of a 100% ratchet in newly filed rates constituted retroactive application of Commonwealth’s new rate design. In disposing of that argument the Commission stated:

“With respect to the demand ratchet, the argument that Commonwealth has improperly engaged in ‘retroactive rate making’ is misplaced. By including a demand ratchet based upon the four summer months of the preceding 12-month period, Commonwealth is neither retroactively altering the rates previously charged to its customers nor presently charging rates other than those currently on file with the commission.” (46 PUR 4th 498, 501.)

The Commission, without discussing why or why not, merely held that Commonwealth had neither retroactively altered rates nor was presently charging rates other than those currently on file. Under such circumstances, the case cannot be considered persuasive precedent.

Although it was somewhat informal and unofficial, the Intervenors nevertheless did receive notice in May 1980 from UE that they were incorporating the very ratchet provision that the Commission later approved. That notice was contained in copies of the proposed rates as filed with the Commission in May 1980 that were mailed to Mr. Brubaker, a rate consultant for Intervenors. Also, in June 1980, UE’s manager of rate engineering attended a meeting of the Southwestern Illinois Industrial Association and explained the ratchet provisions of rates 4 and 7, including a statement that billing for demand would be based on demands experienced during the summer of 1980. Industrial power users were broadly represented at that meeting. Also, at the hearings before the Commission, the same Mr. Brubaker, testifying on behalf of the Intervenors, recommended that the ratchet be fixed at 70% of the previous 12 months’ experience, rather than at the 100% contained in the rates. This reflects both foreknowledge and consideration of the 1980 basis for the ratchet.

Billings for demand made to individual customers are the sum of a demand charge that is calculated to reflect the individual customers’ share of demand costs. The intervenors now before the court are six of 75 industrial customers subject to rate 4(1). The general aim of rate design is to enable a utility to recover allowable revenues by charging customers rates that reflect the total costs of providing service. The statutory mandate is that rates be just and reasonable. However, the mandated norm is not easily attainable. The ratemaking process is lacking in precision and is not an exact science. That fact has been recognized on several occasions by our supreme court, for example in Iowa-Illinois Gas & Electric Co. v. Illinois Commerce Com. (1960), 19 Ill. 2d 436, 442, 167 N.E.2d 414, 417, where they said:

“We have long held that the decision of the Commission is entitled to great weight as being the judgment of a tribunal appointed by law and informed by experience. Village of Apple River v. Commerce Com. 18 Ill. 2d 518, 523; Public Utilities Com. ex rel. City of Springfield v. Springfield Gas & Electric Co. 291 Ill. 209.
This deference to the judgment of the Commission is especially appropriate in the area of fixing rates. Quoting from the Springfield Gas Co. case, we said in Produce Terminal Corp. v. Commerce Com. ex rel. Peoples Gas Light & Coke Co. 414 Ill. 582, 590: ‘A just and reasonable rate, therefore, is necessarily a question of sound business judgment rather than one of legal formula, and must often be tentative, since exact results cannot be foretold. *** Like so many other questions in the law that involve reasonableness of conduct, it is a question of fact to be settled by the good sense of the tribunal it may come before.’
The power to make rates, of necessity, requires the use of pragmatic adjustments which may be called for by the particular circumstances. (Federal Power Com. v. Hope Natural Gas Co. 320 U.S. 591, 602, 88 L. ed. 333, 344; Federal Power Com. v. Natural Gas Pipeline Co. 315 U.S. 575, 586, 86 L. ed 1037, 1050.) This, of course, does not mean that the Commission may ignore pertinent factors affecting the rate structure.”

Also see Citizens Utilities Co. v. Illinois Commerce Com. (1971), 50 Ill. 2d 35, 276 N.E.2d 330.

“Sound business judgment,” “reasonableness of conduct” and “pragmatic adjustments” we find to be touchstones that guide us to the conclusion that UE has not in this instance engaged in, and the orders of the Commission have not sanctioned, retroactive ratemaking. Our approval is given without equivocation for, in the final analysis, the rates being charged in the billing for demand are those that are currently on file and approved by the Commission and that are applicable only to services rendered after the effective dates of the new rates. That they incorporate a use factor derived from a period prior to the rates being filed cannot serve to avoid the use of the 100% ratchet in its entirety for a period of 12 months from April 18, 1981. The summer 1980 peak consumption figures are, after all, not spurious, but a matter of historical fact. Although one of the purposes of the use of a ratchet, the opportunity to avoid “on-peak” consumption by large industrial users, may not be fulfilled for a short time, this should not render the rate design incorporating the 100% ratchet retroactive ratemaking. We hold that it is not. In the absence of this result the 100% ratchet could not become effective as to Interveners until after April 18, 1982, with consequent disruption to the revenues of the company, authorized by the Commission order, as .well as an unwarranted burden on the other industrial customers of UE. Neither the old rates, nor any other, may be substituted for the rates on file and approved by the Commission. Ill. Rev. Stat. 1979, ch. 1112/3, par. 37.

Finally, we disagree with the Interveners’ contention that the order of the Commission never approved the use of 1980 consumption levels as the basis of the 100% ratchet. The order of October 14, 1981, entered following rehearing, provided:

“The Commission is of the opinion that the Primary Service Rate (Rate 4) and the Interruptible Power Rate (Rate 7) (Industrial Interveners’ Exhibits 1 and 2 on Rehearing) effective April 18, 1981, appropriately implement the 100% ratchet contemplated and approved by the Commission [sic] [Order] of this Commission entered April 15,1981, in this cause.
* * *
The Order of the Commission entered April 15, 1981, directed the effective date to be ‘. . .on and after the day subsequent to the date of filing same with this Commission.’ If the rate schedules filed April 18, 1981, were not, in the opinion of the Commission, in conformity with the order entered April 15, 1981, this Commission could have suspended same prior to the effective date under the provisions of Section 36. The discretion to act or not act, within 30 days from the time of filing or such lesser time as is determined appropriate, is vested in the Commission.
In the instant case, this Commission is of the opinion that no further inquiry was needed concerning the propriety of the rates filed on April 18, 1981[,] by the Company in response to the Order entered April 15, 1981.”

While neither of the orders under review mention 1980 consumption levels in connection with the 100% ratchet, they also leave no room for doubt that 1980 consumption levels were the point of reference for the 100% ratchet.

Affirmed.

EARNS and HARRISON, JJ., concur.