E C E ~V E ID

CLERK’S OFFiCE

MAR

(14

2(104

BEFORE THE ILLINOIS POLLUTION CONTROL 8~~rATE OF

!LUNO~S

Pollution

ControJ

Board

•SALIN~COUNTY LANDFiLL, INC.,

)

)

PETITIONER,

)

)

v.

)

No.

PCB 04-117

)

(Permit Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

RESPONDENT.

NOTICE

OF FILING

Notice is hereby given to

you that on March

1, 2004, the Petitioner filed

a

response to

Respondent’s motion for protective order.

BY:

_____________________

Brian Konzen

~

:

Lueders, Robertson, Konzen LLC

P. 0.

Box

735,

Granite City,

IlL

62040

618-876-8500

---

RECE~VED

CLERK’S OFFICE

MAR

042004

BEFORE TIf~JLL1NOIS POLLUTION CONTROL ~pjj

STATE OF ILLINOIS

Pollution Control Board

SALJ.~E

CCLNTY

L~NL)F1LL,

INC..

)

PETITIONER,

)

)

)

No.

PCB 04-117

)

(PERMIT APPEAL)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

RESPONDENT.

)

RESPONSE TO MOTION FOR ORDER OF PROTECTION

Comes

now Petitioner, Saline County Landfill, Inc., and responds to

the Motion for Order

ofProtection submitted by the Illinois

Environmental Protection Agency (IEPA).

1..

Assertions of privilege, whether

attorney-client or work

product, are

to

be

narrowly

construed, and the party asserting privilege against disclosure has the burden ofproving it.

Monier

v.

Chamberlain,

35

Ill.2d

351,

359,

221

N.E. 2d 410 (1966).

Illinois adheres

to

a strong policy of

encouraging disclosure.

Waste Management v. International Surplus Lines, 144 Ill.2d

178,

579

N.E.

2d

322,

327

(1991).

2.

Where the written opinions and communications of counsel are the basis of the lawsuit,

an

“at issue”

exception

to

privilege

applies, and

the communications

and

opinions

of counsel

therefore must

he

disclosed.

WasteManag~.e~t

vjnternat

ona

ur~isLi~es,

144 fl1.2d.

I 7S, 579

N.E. 2~3~2,3~3~

1~9fl.

3.

Privileged documents inadvertently disclosed, whether subj ect to attorney-client orwork

product privilege,

may be subject

to

discovery.

Inadvertent disclosure

may waive

any privilege

under

a 5-factor test:

1.

The reasonableness

ofthe

precautions taken to prevent disclosure;

2.

The time

taken

to

rectify the

error;

---

The

scope of the discover;

The

e:etere

cf ths

disclosure;

5.

The

oveiTicling issue of fairness.

Dalen v.

Ozite Comoration,

171

III. Dec.

845,

594

N.E.

2d

1365,

1371

(2d Dis.

1992).

In the Ozite

Opinion, cited in oral argument before the hearing officer by Movant, EPA,

the Court held the free

disclosure ofthe confidential

documents waived any privilege.

4.

Petitioner

notes

below

which

documents

are

clearly

in

the

administrative

record

previously tendered by the EPA in

the instant permit review appeal.

5.

Under Ozite, all documents inadvertently included in the administrative record should be

deemed fully disclosed, and any claim of privileged waived.

This is because the party asserting the

privilege, the IEPA, has made no attempt

in the motion for order ofprotection, to satisfy any ofthe

five balancing test criteria ofOzite.

6.

The December 4,

2003

memorandum, page

six

of the administrative record,

is exempt

from

any claim ofprivilege under the “at issue” exception, to the privilege claimed.

This December

4,

2003

memorandum

from

the IEPA’s

Division

of Legal

Counsel

essentially

admits

to

a

long

standing interpretation by the IEPA, ofSection 39.2(f) ofthe Environmental Protection Act.

This

change in

long

standing position

and

interaretation by

the

IEPA

is

pleaded

by

Petitioner

in

~

en

ib: revie\~,

paragraph

Is

is

precisely

this

sudden chance of

position by

the EPA,

that

justifies reversal ofthe IEPA’s permit denial as arbitrary and capricious.

Therefore, the December

4,

2003

memorandum is “at issue”.

7,

Any privilege asserted regarding the December

5,

2003

correspondence from Assistant

Attorney General

Torn

Da’~is

to John

Kim, on

page

seven on the administrative record,

is

v~aived,

becauseits contents were disclosed

in

nonprivileged communication.

See the administrative record,

---

dye.

~

December

5,

2D&~,

si~neci.

by .Tel~cel\funle, a~~acbeb.

Y~,

The Ncvember

25.

2PD3

memorandum

from

KH’..

~eJe~cs~‘i.usie.

~ve;

chscics::si.

beginning on pace 21

of

the

Administrative

Record.

This doc’.imnent e;’miains the iD-yearhisterycf

the

EPA’s inte~retaticncf Section 39.2(D of the Act,

said inte~retationconsistent

with

~anting

the permit at

issue.

Therefore, this memorandum

too must be disclosed pursuant to

the “at issue”

exception to

the privilege rule.

9.

The November 21,

2003

email from Dan Merriman to

Joyce Munie is disclosed on page

8 ofthe administrative record. Further, this memorandum supports Petitioner’s argument Petitioner

would have received its permit,

but

for the reversal ofthe IEPA in

its long-standing interpretation

ofSection 39.2 (f).

In addition, this email is in no way marked as a legal, confidential, or privileged

communication.

Under the five-part Ozite test,

this email is not entitled

to protection as privileged.

10.

The June ii,

May

15,

and March

10, 2003

letters from the Illinois Assistant Attorney

General Tom Davis to the IEPA lack privilege.

The record suggests their contents were repeatedly

disclosed to thirdparties in the first several months of2003, specifically, the Saline County’s State’s

Attorney,

and

Steve

Hedinger,

Esq.,

neither

of whom

advise

or

represent

the EPA.

See,

for

example,

the

attached

November

20,

2003

correspondence

of said

State’s

Attorney,

with

its

enclosures. including

the

September 24,

2003

correspondence to the IEPA

From Torn Davis.

The

Pedtionec cc

eo:fuiiv submits

Sse

Mohen for Order of Pmoseetion sh~u~d

be denied.

~

~i

Brian E. ~Konzen,Esq.

Lueders, Robertson & Konzen LLC

1939 Delmar, P.O.

Box 735

Granite City,

Illinois 62040

Phone;

(618) 876-8500

ARDCNo.:

06187626

45

C)89

---

ICSSC80001

—Saline

Courm7

_.L.~t.,

~

.)~

Th~erplieaf•en

far the

above

referenced

log number ices

no~ecm~iy

with

the

mequtcemnent

to suomit poof cf locaL

siting approval

in

accordance with

Section 3?(c) of

the Act

because, according

to

letter of December 4, 2003

from Torn Davis ofthe illinais

Attorney General’s Office, the siting has expired.

Therefore, solely for this

reason, the

permit will

be denied.

/~/~

005

---

DI”)fl

V’7ThT

~

U,

‘

~

STATE~SA’N~RNEY

C D~

~

TCcC~.

S..~Lft:P

CCtCcTY

COURTHDU~d

10 .EA~T

POPLAR

STREET

1-LARPJS BURG IL

62946

618-253-7 169

November 20, 2003

VIA HAND DELIVERY

Joyce Munie

Christine

Roque

Permit Section,

Bureau of Land #33

Illinois Environmental Protection Agency

1021

North Grand Avenue East

P.O.

Box

19276

Springfield,

IL

62794-9276

Re:

1658080001-Saline County

Saline County Landfill,

Inc.

Log No. 2003-113

Permit File

Dear Ms.

Munie

and Ms.

Roque:

Following

a

Freedom of Information Act (FOIA) review,

this

office obtained a

copy of a

letter

drafted

by

Brian

Konzen,

dated

October

27,

2003,

which

responded

to

previous

correspondence of this

office

dated September

22,

2003.

Notably,

neither

your office nor Mr.

Korizen

informed this office

of the

filing

of his materials.

Further, Ms.

Manie’s

September

25,

2003

letter,

referenced

in

Mr. Konzen’s letter, was not

made available

during

the FOIA

cc’, iew.

Nevertheless, we now submit this

reply to Mr. Konzen’s correspondence.

First, to reiterate my correspondence cf October 28. 2003. all statements of

Mr.

Hedinger

c~cc’crnrie~e’~y

adorted

by

me

pers cnaiiy

as

Scase’s A~:crne;;fm

Saline

Ccunt~:, ~‘Cc.

~~~onusus

~

L

~d

‘~

n~ as

a

s~

C

as~

‘deference,”

is therefore categorically false.

To

any

extent

such

deference

exists

due

to

the

office involved,

that deference should

be shown this office.

Mr. Hedinger’s

September 22, 2003

letter and

all other correspondence and

written materials, fully speak for this office.

Significantly, Mr.

Konzen’s letter

does

not even reference the fact that

the

Office of the

Attorney General of the

State of Illinois

has also

agreed with this

office’s position, as conveyed

by

Mr. Hedinger.

ireferyonto

correspondence

by Thomas

Davis,

Chief of the Enviroamental

Bureau o~

the

Office of th~~o~ey

General, d~d

Sep~embei~4

2~.D3‘~b

cci uneaa’i~ra11

adopts

this

position, and

further

finds

that the eaiiier

permit

proceedings engaged in by Saline

County Landfill,

Inc.

(hereinafter “SCLI”) are dispositive

of the expiration of the siting approval.

---

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Madigan

Sept~mb2r24,2003

Mr.

Daniel

Merrirnan

Illinois

EPNDivision of.Legal

Counsel

1021

North Grand

Avenue East

Post Office

BOX

Springfield,

llflnois 62794-9276

Re:

Sa/ineCcuntyLaadfill,InC.

Dear Dan:

The

concerns

~fSaline County

have again

been

conveyed

to you

by Special Assistant

State’s Attorney Stephen

Hedinger.

Steve’s letter of September 22, 2003,

was

also directed

to

me because

I

have previously

opened an

investigation into this

matter.

As you

know,

I

have sent inquiries

to yourself and Joyce

Munie;

when

I

did

not

receive any reply,

I wrote

to

Scott Phillips

on June

11,

2003.

Scott

responded

on June 24th and advised that the Bureau.

of Land had determined

“the proposed waste

footprint

(is

consistent

with

the

1996 siting

approval.”

Scott

also

indicated that “the

Illinois EPA is obligated

to approve any permit

application that meets

all

of the

regulatory

requirements.”

Please

be advised

that

the

Attorney General’s

Office

shares

the concerns articulated

in Steve’s

most recent letter.

Any

technical

determination

by

the

Bureau that “the

proposed

waste footprint

(is

consistent with

the

1996

siting

approval”

is

simply

not relevant

to a legal

assessment whether such siting approval

has expired

pursuant

to

Section 39.2(f).

Moreover,

tha

Pollution

Ccntrol

Boards

decision

in

th~

previous

permit ~ppe~

L’n2t

BOLl lt~ch~i

tt’~e

proof

of

local

siting

approval

required

by Section 39(c)

of the Act

is

legally dispositive.

I

respectfufly

suggest that a legal assessment on

this

issue be provided

to

the

Bureau

by the

Division of

Legal

Counsel before final action

on or before October 4, 2003.

Thank you for your

~5S

IS

S’ ci CS

Thomas

Davis, Chief

Environmental Bureau

500 South Second

Street

Springfield,

Illinois 62706

2171732-7963

30) Suuth

Srd

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---

BEFORE

THE iLL~1~OI~

~c:

~u~iio:;

CCE~TROLFo.~Us.

~Lih:/ COL~T\’

L

~

E~(

~T1TiDNER,

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V.

)

~o.

PCB 04-li?

)

(PERMIT APPEAL)

ILLINOIS ENVIRONMENTAl

PROTECTION AGENCY,

)

)

RESPONDENT.

)

PROOF OF SERVICE

I,

the undersigned,

verify

copies of the forgoing Response to

Motion

for Protective Order

were

served

by overnight mail

upon the

following persons by

5:00

p.m.,

on this~~:b day of

March,

2004:

John Kim, Esq.

Division ofLegal

Counsel

Illinois Environmental Protection Agency

1021

North Grand Avenue

East

P.O. Box

19276

Springfield,

Illinois 62794-9276

Carol Sudman, Esq.

Hearing Officer

Illinois Pollution Control Board

1021

North Grand Ave. East

P0

Box

19274

Springfield, Illinois 62794-9274

Rod

i;.;~~i-

Saline

Coam, S:e~~~t:orn’:

idE. Poplar

Harrisburg, Illinois 62946

Dorothy Gunn, Clerk

Illinois Pollution

Control Board

100W.

Randolph, Suitell-500

Chicago, Illinois

60601

_______

/~

-~r

~

Brian Konzen

“~.)

kj

33