A nonapplicant who participates in a local pollution control facility siting hearing has no property interest at stake entitling him to the protection afforded by the constitutional guarantee of due process.Southwest Energy Corp. v. Pollution Control Board, 275 Ill. App.3d 84, 655 N.E.2d 304 (1995). However, under section 40.1 of the Act ( 415 ILCS 5/40.1 (West 1998)), such a party has a statutory right to "fundamental fairness" in the proceedings before the local siting authority.

¶ 86 Nonetheless, "[a]lthough a local siting proceeding more closely resembles an adjudicatory proceeding than a legislative one, the local governing body is not held to the same standards as a judicial body." Southwest Energy Corp. v. Pollution Control Board, 275 Ill. App. 3d 84, 91 (1995); see also Daly v. Pollution Control Board, 264 Ill. App. 3d 968, 970-71 (1994) (procedural due process in an administrative proceeding does not require a proceeding in the nature of a judicial proceeding). The protections afforded by the due process clauses of federal and Illinois Constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2) do not apply to proceedings to create a pollution control facility.

Because of the nature of siting proceedings, courts have long recognized that it is inevitable that some ex parte communication will occur between the public and the members of the local siting authority. Southwest Energy Corp. v. Pollution Control Board, 275 Ill. App. 3d 84, 92, 655 N.E.2d 304, 310 (1995). That recognition comes from an understanding of the realities of the situation — that members of the local siting authority are not judges but, rather, locally elected officeholders on municipal or county boards.

c. Fundamental Fairness Citing Southwest Energy Corp. v. Pollution Control Board, 275 Ill. App.3d 84, 97, 655 N.E.2d 304, 312 (1995), Dimensions argues that we should reverse because the Board's consideration of Memorial's additional submissions was fundamentally unfair. In a closely related argument, Dimensions claims that it was fundamentally unfair for the Board to allow Memorial's representatives to provide testimony at the Board's agenda meeting when the Board approved the CON applications without allowing Dimensions to provide testimony at that meeting.

Although economics is not listed in section 39.2, TOTAL argues that it is relevant and should have been considered. Since economics is not a specifically listed criterion, its potential for consideration is discretionary, not mandatory. Southwest Energy Corp. v. Pollution Control Board, 275 Ill. App.3d 84 (1995). We find that the council was thoroughly apprised of the fact that no one had any idea how much the landfill would cost to run or how much it would make.

An objector demonstrates prejudice from an ex parte communication by establishing that the contact hindered the preparation of its case against the proposal. Southwest Energy Corp. v. Pollution Control Board, 275 Ill.App.3d 84, 93, 211 Ill.Dec. 401, 655 N.E.2d 304 (1995). In contrast, an objector accusing the siting authority of prejudgment must identify specific evidence showing that members of the siting authority were actually biased.

Our review of rulings made by an administrative agency extends to all questions of law and fact presented by the record. 735 ILCS 5/3-110 (West 1994); Southwest Energy Corp. v. Pollution Control Board, 275 Ill. App.3d 84, 90, 655 N.E.2d 304, 308 (1995). However, we do not accord questions of fact and questions of law the same degrees of deference.