CITY OF
KANICAKEE,
)
Petitioner,
COUNTY
OF KANKAKEE, COUNTY
BOARD OF KANKAKEE,
and WASTE
MANAGEMENT OF ILLINOIS, INC.,
)
Respondents.
)
MERLIN KARLOCK,
Petitioner,
V.
COUNTY
OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and
WASTE
MANAGEMENT OF ILLINOIS,
INC.,
Respondents.
MICHAEL WATSON,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD
OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
KEITH RUNYON,
)
Petitioner,
)
)
)
)
COUNTY
OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
BEFORE
THE ILLINOIS POLLUTION
V
RECEIVED
CONTROL BOARPLERKtS
flFl:rrp
/1PR
102003
)
PCB 03-03-125
STATE OF
ILLINOIS
)
POIIUflQfl
CQntro/
Board
(Third-Party Pollution Control
)
Facility Siting Appeal)
)
)
)
)
PCBO3-I33
(Third-Party Pollution Control
Facility Siting Appeal)
PCB 03-134
(Third-Party Pollution Control
Facility Siting Appeal)
PCB 03-135
(Third-Party Pollution Control
Facility Siting Appeal)
v~
)
)
)
)
)
Respondents.
NOTICE OF FILING
TO:
See Attached
Service List
PLEASE TAKENOTICE that on April
10,2003, we filedwith the Illinois Pollution Control
Board, the attached WASTE MANAGEMENT OF ILLINOIS, INC.’S MOTION TO QUASH
PETITIONER
MICHAEL
WATSON’S
SUBPOENA
TO
DAVID
MILLER,
STEPHEN
CORCORAN,
AND
METRO
TRANSPORTATION
GROUP,
INC.
and
MOTION
TO
QUASH
PETITIONER
MICHAEL
WATSON’S
SUBPOENA
TO
PATRICIA
BEAVER-
McGARR, JEREMY
R. WALLING, AND INTEGRA REALTY RESOURCES
in the above
entitled matter.
:~CE7tL1NOIS~INC.
One of Its A$orneys
Donald J. Moran
Lauren Blair
PEDERSEN &
HOUPT
Attorneys for Petitioner
161
N.
Clark Street
Suite 3100
Chicago, IL
60601
Telephone:
(312) 641-6888
This Document Is Printed on Recycled
Paper
PROOF OF
SERVICE
Victoria
L. Kennedy,
a
non-attorney, on oath
states
that
she
served
the
foregoing
WASTE
MANAGEMENT
OF
ILLINOIS,
INC.’S
MOTION
TO
QUASH
PETITIONER
MICHAEL
WATSON’S
SUBPOENA
TO
DAVID
MILLER,
STEPHEN
CORCORAN,
AND
METRO
TRANSPORTATION
GROUP,
INC.
and
MOTION
TO
QUASH
PETITIONER
MICHAEL
WATSON’S
SUBPOENA
TO
PATRICIA
BEAVER-McGARR,
JEREMY
R.
WALLING,
AND
INTEGRA REALTY RESOURCES on
the following parties by facsimile to those parties with facsimile
numbers
listed
below
and by
depositing same to
all
parties
in the
U.S.
mail at
161
N. Clark
St., Chicago,
Illinois
60601, at 5:00
p.m. on
this
10th day ofApril, 2003:
Ms. Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street,
Suite
11-500
Chicago, Illinois 60601
Charles F.
1-lelsten, Esq.
Richard
S. Porter, Esq.
1-linshaw
&
Culbertson
100 Park Avenue
P.O. Box
1389
Rockford,
IL
61105-1389
(815) 490-4900
(815) 963-9989 (fax)
Kenneth A.
Leshen, Esq.
One Dearborn Square, Suite 550
Kankakee, IL 60901
(815) 933-3385
(815)933-3397 (fax)
Jennifer J. Sackett Pohlenz, Esq.
175 W. Jackson Boulevard, Suite 600
Chicago, IL 60604
(312) 540-7540
(312) 540-0578 (fax)
Bradley Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11th Floor
Chicago, Illinois 60601
(312) 814-8917
(312) 814-3669 (fax)
George Mueller, Esq.
501 State Street
Ottawa, IL 61350
(815) 433-4705
(815) 433-4913 (fax)
Elizabeth Harvey, Esq.
Swanson, Martin & Bell
One IBM Plaza
Suite 2900
330 North Wabash
Chicago, IL 6061!
(312)321-9100
(312) 321-0990 (fax)
L. Patrick Power, Esq.
956 North Fifth Avenue
Kankakee, IL 60901
(815) 937-6937
(815) 937-0056 (fax)
Keith Runyon
1165 Plum Creek Drive, UnitD
Bourbonnais, IL 60914
(815) 937-9838
(815) 937-9164 (fax)
Victoria
L. Kenne
y
This Document Is Printed
on
Recycled Paper
REC*~IVEO
BEFORE
THE ILLINOIS POLLUTION CONTROL BOAR~LERK’S
OFFICE
MICHAEL
WATSON,
)
APR
10
2003
)
STATE O~
ILLINOIS
Petitioner,
)
PCB 03-134
PollutIon
Control Board
)
v.
)
(Third-Party Pollution Control
)
Facility Siting Appeal)
COUNTY OF
KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
(Consolidated
with PCB 03-125, 03-
MANAGEMENT OFILLINOIS, INC.,
)
133, 03-135)
Respondents.
WASTE MANAGEMENT
OF ILLINOIS,
INC.’S
MOTION TO
QUASH
PETITIONER MICHAEL WATSON’S
SUBPOENA
TO DAVID MILLER, STEPHEN
CORCORAN. AND METRO
TRANSPORTATION GROUP, INC.
Respondent WASTE MANAGEMENT OF
ILLINOIS, INC. (“WMII”), by
its attorneys,
Pedersen & Houpt,
in support
of its Motion
to Quash the
subpoena
issued to
David Miller
(“Miller”), Stephen
Corcoran (“Corcoran”) and Metro Transportation Group, Inc. (“Metro”),
states as follows:
1.
On March
7, 2003, Petitioner filed his Amended Petition for Review of Decision
Concerning Siting of A New Pollution Control
Facility, Pursuant to
Sections 39.2
and
40.1 of the
Illinois Pollution Control Act (the
“Act”).
Petitioner argues on appeal that
(i) the County Board
of Kankakee County, Illinois (“Kankakee”) lacked jurisdiction due to
insufficient notice to two
property owners; (ii) the local siting review procedures, hearings, decision and process were
fundamentally unfair; and
(iii) Kankakee’s finding that criteria (i),
(ii), (iii),
(v), (vi) and (viii) of
the statutory criteria were satisfied
was against the manifest weight of the evidence.
This Document is
Printed on Recycled Paper.
)
)
363404
2.
As part ofhis fundamental fairness argument,
Petitioner claims that the public
hearings were
not fair due to
WMII’s alleged
refusal to present Miller from Metro for cross-
examination on criterion (vi), even though
Corcoran from Metro testified at the public
hearing on
criterion (vi) and was subjected
to cross examination.
Petitioner does not,
however, allege how
said alleged refusal prejudiced him or other participants.
3.
On
April
4, 2003, Petitioner served a
subpoena duces tecum
on Miller, Corcoran,
and Metro.
The rider to
the
subpoena
requested the following documents:
Any and all documents concerning or related to the work and
review
by David
Miller, Stephen Corcoran and Metro
Transportation Group,
Inc
(collectively referenced herein as
“Consultant”)
in preparation ofor
far the report submitted or
p~ç
pared
by Consultant and included in Waste Management of
Illinois, Inc.’s Site Location Application ForExpansion ofthe
Kankakee Landfill which was filed with the Kankakee
County on
or about March 29, 2002 and
August
19, 2002 (“Report”),
including but not limited to any and all documents reviewed by
Consultant
in preparation of
the
Report, any and all documents
created by Consultant
in preparation ofthe
Report, any and all
documents provided to consultant by anyone
(including, but not
limited
to
Waste Management of Illinois,
Inc.
or its employees,
representatives, agents, and/or officers).
Additionally,
produce any
and all documents reviewed, relied up, prepared,
or received in
preparation
for,
or which
formed a basis of
the testimony provjujgcj
at the public hearing
in the aforementioned
Site Location
Application for Expansion of the Kankakee Landfill
filed on
August
16,
2002.
(Emphasis added).
4.
The
subpoena
seeks extensive documentation relating to
WMII’s criterion (vi)
expert’s report and his testimony at the public hearing.
Such
discovery, which relates
to
criterion (vi), is clearly impermissible at the appeal stage.
5.
Section 40.1(b) ofthe Illinois Environmental Protection Act
(the
“Act”) provides
This L)ocument is
Printed on
Recycled Paper.
363404
2
that
the review before the Board shall
be based
“exclusively on the record before the county
board
or the governing body of the municipality.”
415 ILCS
5/40.1(b).
While it may be
proper
for the Board to
hear new evidence relevant to the fundamental fairness ofthe proceedings where
such evidence necessarily
lies outside of the record, a
de novo
review is not appropriate on
a
review of the statutory criteria.
Land
& Lakes Co. v. Pollution Control Board, 319 111. App. 3d
41.
48,
743 N.E.2d
188,
194 (3d Dist. 2000).
The
Board cannot make its own findings of fact
concerning whether the statutory criteria was met, and is restricted to reviewing the factual
findings
rendered below using
a manifest weight of the evidence standard.
i~,
319
III. App. 3d
at 48, 743
N.E.2d at
193;
Kane County Defenders. Inc.
v.
Pollution Control Board,
139 Ill.
App.
3d
588, 592, 487 N.E.2d 743,
746 (2d Dist.
1985).
As
such, the admission of evidence on appeal
regarding the statutory criteria is prohibited.
6.
A
subpoena
is a pretrial discovery tool
in order to
obtain relevant
evidence that
may be admissible at trial.
In this case, all of theevidence relating to criterion (vi) has
already
been presented and the factual findings of Kankakee have been made.
The public
hearing before
Kankakee was conducted on November
18 through
December
6, 2002,
the record was closed at
the
end of the public comment period, and
Kankakee issued its decision granting local siting
approval, subject to conditions, on January
31,
2003.
As the facts cannot change at this stage of
the case, there is no legitimate reason for the issuance of a
subpoena
that only
seeks information
relating to the basis of WMII’s expert’s opinions and testimony
on statutory criterion (vi).
7.
Evidence on criterion (vi)
already exists
in the record
and the record
on appeal has
been certified.
Allowing Petitioner to issue the
subpoena
to Miller, Corcoran and Metro,
which
This
Document
is Printed on Recycled Paper.
363404
3
seeks information completely unrelated to any fundamental
fairness argument
raised on appeal,
would result in the
addition of facts relating to criterion (vi) to the record, which
is prohibited.
Therefore, Petitioner’s
subpoena
should be
quashed.
WHEREFORE, WMII requests that the
Hearing Officer quash Petitioner Michael
Watson’s
subpoena
issued to David
Miller,
Stephen Corcoran and Metro Transportation Group,
Inc., and provide such further and other relief as
he deems
appropriate.
Donald
J.
Moran
Lauren
Blair
PEDERSEN &
HOUPT, P.C.
161 North
Clark
Street
Suite 3100
Chicago, Illinois
60601
(312) 641-6888
By:
Respectfully
Submitted,
WASTE MANAGEMENT
OF ILLINOIS,
INC.
This
Document is Printed on
Recycled Paper.
One of
Attorneys
363404
4
CONTROL BOAM~~
¶~P
APR
1
o
2003
PCB 03-134
STATE OF
IL1JNOIS
Pollution
Control Board
(Third-Party Pollution Control
Facility
Siting Appeal)
)
)
(Consolidated with
PCB
03-125, 03-
)
133,
03-135)
)
)
WASTE MANAGEMENT OF ILLINOIS, INC.’S MOTION TO QUASH
PETITIONER MICHAEL WATSON’S
SUBPOENA
TO PATRICIA
BEAVER-McGARR,
JEREMY R. WALLING, AND INTEGRA REALTY RESOURCES
Respondent WASTE MANAGEMENT OF ILLINOIS,
INC. (“WMII”),
by its attorneys,
Pedersen & 1-loupt, in
support of its Motion to
Quash the
subpoena
issued to Patricia Beaver-
McGarr (‘McGarr”).
Jeremy R.
Walling (“Walling”), and/or Integra Realty
Resources
(“Integra”), states as follows:
I.
On March 7, 2003, Petitioner filed his Amended Petition for Review of Decision
Concerning Siting of A New Pollution Control
Facility, Pursuant to
Sections 39.2
and 40.1 of the
Illinois Pollution Control Act (the
“Act”).
Petitioner argues on appeal that (i)
the County Board
of Kankakee County, Illinois (‘Kankakee”)
lacked jurisdiction
due to
insufficient notice
to two
property owners; (ii) the local
siting review procedures, hearings, decision and process were
fundamentally unfair; and (iii) Kankakee’s finding that criteria (i), (ii),
(iii), (v), (vi) and
(viii) of
the statutory criteria were satisfied was against the manifest weight ofthe evidence.
BEFORE THE ILLINOIS POLLUTION
MICHAEL WATSON,
)
Petitioner,
v.
COUNTY OF
KANKAKEE, COUNTY
BOARD
OF
KANKAKEE, and WASTE
MANAGEMENT OF
ILLINOIS, INC.,
Respondents.
363402
5.
Section
40.1(b) of the
Illinois
Environmental
Protection Act (the
“Act”) provides
that the review before the Board shall
be based “exclusively on the
record before the
county
board or the governing body of the municipality.”
415
ILCS 5/40.1(b).
While it may be proper
for the Board to
hear new evidence relevant
to the fundamental fairness ofthe proceedings where
such evidence necessarily lies outside of the record, a
de novo
review
is not appropriate on a
review of the statutory criteria.
Land & Lakes
Co.
v. Pollution Control
Board, 319
III. App.
3d
41,48,743 N.E.2d
188,
194 (3d Dist.
2000).
The Board cannot make its own findings of fact
concerning whether the statutory criteria was met, and is restricted to reviewing the factual
findingsrendered below using a
manifest weight of the evidence standard.
j~,319 Ill. App. 3d
at 48, 743 N.E.2d at 193;
jcmie County Defenders. Inc. v. Pollution Control
Board,
139
III. App.
3d 588, 592, 487 N.E.2d
743,
746 (2d Dist. 1985). As such, the
admission of evidence on appeal
regarding the statutory criteria is prohibited.
6.
A
subpoena
is a pretrial discovery tool
in order
to obtain relevant evidence that
may be admissible
at trial.
In this ease, all
of the evidence relating to criterion (iii) has already
been presented and the factual findings of Kankakee have been made.
The public hearing before
Kankakee was conducted on November
18 through December
6,
2002, the record was
closed at
the end of the public comment period, and
Kankakee issued its decision granting local siting
approval, subject to conditions, on January 31, 2003.
As the
facts cannot change at this stage of
the case, there is no legitimate
reason for the issuance of a
subpoena
that only seeks information
relating to the basis ofMeGan’s opinions and testimony on statutory criterion (iii).
This Document
is Printed on Recycled Paper.
363402
3
7.
Evidence on criterion (iii)
already exists
in the record and the record on appeal has
been certified.
Allowing Petitioner to issue the
subpoena
to McGarr,
Walling, and Integra,
which seeks information completely unrelated
to any fundamental fairness argument raised on
appeal, would result in the addition of facts relating to criterion (iii)
to the record, which
is
prohibited.
Therefore, Petitioner’s
subpoena
should be quashed.
WHEREFORE, WMII requests that the Hearing Officer quash Petitioner Michael
Watson!s
subpoena
issued to Patricia Beaver-McGarr, Jeremy
R.
Walling, and Integra Realty
Resources, and provide such further and
other relief as he
deems appropriate.
Respectfully Submitted,
WASTE MANAGEMENT OF ILLINOIS,
INC.
By:
L~
/ ~
Donald J.
Moran
Lauren Blair
PEDERSEN & HOUPT, P.C.
161
North Clark Street
Suite 3100
Chicago, Illinois
60601
(312) 641-6888
This Documentis Printed on Recycled Paper.
One
Attorneys
363402
4