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

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