RECE~VE~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
rj4~
7
2004.
BYRON SANDBERG,
)
~
POLL(JflOW CONTROL 80Mb
Petitioner,
)
)
vs.
)
)
CITY OF KANKAKEE, ILLINOIS, THE CITY)
Case No.
PCB 04-33
OF KANKAKEE, ILLINOIS CITY COUNCIL,)
TOWN AND COUNTRY UTILITIES, INC.,
)
and KANKAXEE REGIONAL LANDFILL,
)
L.L.C.,
)
)
Respondents.
)
WASTE MANAGEMENT OF ILLINOIS,
)
INC.,
)
)
Petitioner,
)
)
vs.
)
)
Case No.
PCB 04-34
THE CITY OF KANKAKEE, ILLINOIS CITY)
COUNCIL, TOWN AND COUNTRY
)
UTILITIES, INC., and KANIKAKEE
)
REGIONAL LANDFILL, L.L.C.,
)
)
Respondents.
)
COUNTY OF KANKAKEE, ILLINOIS and
)
EDWARD D. SMITH, KANKAKEE COUNTY)
STATE’S ATTORNEY,
)
)
Petitioners,
)
)
vs.
)
)
Case No.
PCB 04-3
5
CITY OF KANKAKEE, ILLINOIS, THE CITY)
OF KANKAKEE, ILLINOIS CITY COUNCIL,)
TOWN AND COUNTRY UTILITIES, NC.,
)
and KANKAKEE REGIONAL LANDFILL,
)
L.L.C.,
)
)
Respondents.
)
70390223v1 827167
RESPONSE
TO TOWN
& COUNTRY UTILITIES, INC.tS MOTION TO
STRIKE
PETITIONER COUNTY OF
KANKAKEE’S POST-HEARING BRIEF
NOW COMB the Petitioners, THE
COUNTY OF KANKAKEE, ILLINOIS, (“Kankakee
County”) and
EDWARD
D. SMITH,
State’s Attorney ofKankakee County
(“Kankakee State’s
Attorney”) by and
through their undersigned counsel of record,
and for their Response
to
Town
&
Country Utilities,
Inc’s Motion
to Strike Petitioner County of Kankakee’s Post-Hearing
Brief,
state as follows:
1.
On
December
19,
2003,
Petitioners
County
of Kankakee,
Illinois
and
Edward
Smith served
its
Motion to
Exceed Page
Limits For Post Hearing Brief to
the Hearing Officer,
the Board
and all
interested parties by mail.
That Motion requested leave to
file a post hearing
brief ofup to
125
pages.
2.
The Respondents admit they received the motion on December 22, 2003,
prior to
the date that Petitioners’ Post Hearing Briefwas due
to be
filed and
18 days prior to
the due
date
of Respondent’s
Post Hearing
Brief.
Therefore,
Respondent
was
provided ample
notice
that
Petitioners’ Post Hearing Briefwould exceed 50 pages.
3.
On December 24, 2003, Petitioners timely filed their post hearing brief, consisting
of
109 pages,
16
pages
less
than the number of pages
requested in its
Motion
to
Exceed Page
Limits.
Thereafter, Respondent had
16 days to
drafi its Response Brief, providing ample time
forRespondent to do so.
4.
Petitioners
County ofKankakee, Illinois
and Edward D.
Smith were not acting in
bad
faith by not
filing
their Motion to
Exceed Page Limit For Post Hearing Brief or discussing
the length of their post hearing brief prior to
December
19, 2003.
Rather, the transcripts of the
IPCB hearing were not
available
until December
15,
2003
and within four days the Petitioner’s
70390223v1 827167
determined
approximately
how
far
the
brief
would
exceed
the
page
limitation
and
filed
the
niotion as soon as practicable.
5.
Respondent contends that Petitioners have disregarded the Board’s rules
by filing
a brief in
excess of 50 pages;
however,
this
contention
is
simply untrue.
As
explained above,
Petitioners
did not
defy or disregard
this
Board’s page limit rules,
but
explicitly
filed
a motion
when they realized that their brief would exceed this Board’s page
limit.
That motion
was filed
prior to the
due date ofPetitioners’ brief.
6.
Respondent
also
contends that
Petitioners’
post hearing
brief should
be
stricken
because it contains
arguments and
facts already presented
to
this
Board
in
a prior proceeding;
however, this
is
also
an
untrue statement because the notices at
issue
in this
case were
not the
notices at issue in regard to the
2002 application.
Furthermore, there are numerous new facts for
this
Board
to
consider
regarding
the
sufficiency
of
notices
sent
by
Respondent,
including
testimony
from
Kankakee
officials
specifically
explaining that
the
records
of the
Assessor’s
office and Treasurer’s office are not in conflict.
7.
Respondent’s
assertion
that
it
will
be
unduly
prejudiced
by
the
length
of
Petitioners’ brief should also be disregarded because Respondent was well aware of the issues in
this case and cannot and has not asserted surprise as to
any issue.
8.
The Respondent pointed out to the hearing officer that it could begin drafting its
brief even before
receiving
Petitioner’s
brief and
thus
sixteen
days
is
clearly
ample
time
to
respond
to
Petitioners’
brief,
especially
since
the
brief is
allegedly
“redundant,”
according
to
Respondent.
(See Motion
to Strike, Para.
12).
Petitioner only
had 9
days to
draft its
own post-
hearing briefafter the transcripts were made available.
70390223v1 827167
9.
As
explained in Petitioners’ Motion to Exceed Page Limit For Post Hearing Brief,
it was necessary for Petitioners to
draft a brief in
excess of 50
pages in
order to fully and fairly
present Petitioners’ case to this Board.
This
is true because Petitioners
appealed the granting of
landfill
siting
authority
by
the
City of Kankakee
on
numerous bases
involving
a great deal of
factual and technical information.
10.
The hearings
at the Pollution
Control Board
level
alone
produced
hundreds of
pages oftranscripts,
and the hearing transcripts and
documentary evidence from the local siting
hearing were thousands of pages.
Furthermore, the entire local
siting record for the application
filed in 2002, and the
entire
IPCB record for that case are part ofthe record at issue in this
case
and relevant not only
to
fundamental fairness
and the Section
39.2 criteria, but also the issue of
filing substantially
similar applications in violation ofSection 39.2(m).
11.
Finally,
a review of the Petitioner’s brief clearly shows
that no
arguments in that
brief are redundant or even overly verbose.
To
the contrary,
each argument is
succinct,
to
the
point, and
absolutely necessary to
address the issues of this case.
Most arguments are handled in
less
than one or two pages.
12.
The length
of the
Petitioner’s brief was necessitated
by
the unusual
amount
of
highly
improper,
prejudicial,
and
unfair
conduct
that
has
occurred
in
relation
to
the
2003
application.
Specifically, the City and the Applicant colluded to grant siting approval despite the
fact that
the
2003
application
was
substantially
the
same
as the
2002
application.
The City
Council
did not havejurisdictionbecause the owners ofproperty within 250
feet ofthe proposed
landfill
were
not
served,
the
proceedings
were
fundamentally
unfair
due
to
improper
communications
and procedures, and the manifest weight of the evidence establishes
criteria ii
and
viii
were not met.
All of these issues had to
be
addressed independently which required a
70390223v1 827167
brief that was longer than usual.
There simply is an
“embarrassment ofriches” as to
the grounds
for reversing
the
siting
approval.
Perhaps
the
Applicant
should
spend time
addressing
these
issues rather than filing motions to strike the brief.
13.
If Petitioners
were
not
able
to
present
all
of the
information
and
arguments
contained in their post hearing brief, Petitioners would be unduly prejudiced because they would
not be able to present a thorough and clear case to this Board.
WHEREFORE,
Petitioners,
COUNTY
OF
KANIKAKEE
and
EDWARD
D.
SMITH,
STATE’S
ATTORNEY
OF
KANIKAKEE COUNTY, request that this Board deny
Respondent’s
Motion to
Strike Petitioner County ofKankakee’s Post Hearing Brief.
Dated: January 5, 2004
Respectfully submitted,
EDWARD D.
SMITH KANKAKEE COUNTY
STATE’S ATTORNEY AND THE COUNTY
OF KANKAKEE
By: HINSHAW & CULBERTSON
Richard’S. Porteir
One ofIts Attorneys
HINSHAW AND CULBERTSON
100 Park Avenue
P.O. Box
1389
Rockford, IL 61105-1389
815-490-4900
Printed on 100
RecycledPaper
70390223v1 827167
AFFIDAVIT OF
SERVICE
The
undersigned,
pursuant
to
the
provisions
of Section
1-109
of the
Illinois
Code
of
Civil
Procedure,
hereby under penalty ofperjury under the laws ofthe
United States of America, certifies that
oa January
5, 2004, a copy ofthe foregoing was served upon:
Ms. DorothyM. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph
Street, Suite
11-500
Chicago, IL 60601
(312) 814-3620
Attorney George Mueller
501
State Street
Ottawa, IL 61350
(815)
433-4705
(815)
433-4913
FAX
Donald J. Moran
Pederson & Houpt
161
N. Clark Street, Suite 3100
Chicago, IL 6060 1-3242
(312) 261-2149
(312) 261-1149
FAX
Kenneth A. Leshen
Leshen & Sliwinski, P.C.
One Dearborn Square, Suite 550
Kankakee, IL
60901-3927
(815) 933-3385
(815) 933-3397 FAX
Christopher W. Bohlen
200 E.
Court Street, Suite 602
P.O. Box
1787
Kankakee, IL 60901
(815) 939-1133
(815) 939-0994 FAX
L. Patrick Power
956 N. Fifth Avenue
Kankakee, IL 60901
(815) 937-6937
(815) 937-0056 FAX
Byron Sandberg
109 Raub
St.
Donovan, IL 60931
byronsandberg~starband.net
70377853v1 827167
Mr. Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph,
11th Floor
Chicago, IL 60601
(312) 814-8917
(312) 814-3669 FAX
By depositing
a copy thereof, enclosed in an
envelope in the UPS
Overnight Mail
at Rockford,
Illinois,
before the hour of5:00 P.M., addressed as above.
HINSHAW & CULBERTSON
100 Park Avenue
P.O.
Box 1389
Rockford, Illinois 61105-1389
(815) 490-4900
70377853v1 827167