AFR
18
~O83
5:22
PM
FR
HINSHRLJ
&
CULBERTSON8899S3-I-O
13128143889
HINSHAW
& CULBERTSON
CL~RK~
OPI~CE
ATTORNEYS
AT
LAW
~
20Q3
J3ELLEVILLE. ILLINOIS
00 Park Avonue
~LQILJ~NO!S
CHAMPALON. ILLINOIS
P.O.
Box
1389
CflIC~GO.ILLINOIS
Rockford, IL
61105-1389
FT.
LAUDaRDALE~FLOPJDA
CR’~STAI..LAKE. ILUNOIS
815-490-4900
JACKSONVILLE, FLOSJDA
JOLI~T.
ILLINOIS
MIAMI,
PLORIPA
USc.
ILL~N0IS
Facsimi’e
815-490-4)01
TAMPA,
FLORIDA
PEORiA, ILLINOIS
www.hinshawculbci-tson
.com
sc~R~v1LLE,
INDIANA
ROCKFORD,
ILLINOIS
MINNEAPOLIS, MINNESOTA
SFRrNGFIELD, ILLINOIS
RPorter@hinshawlaw.com
ST.
LOUIS,
MJSSOUP.I
WAIJKEOAN. ILLINOIS
NEW YORK.
NEW
YORK
PHOENIX, ARIZONA
APPLETON,
WiSCONSIN
MILWAUKEE.WISCONSIN
WRITER’S DIRECT DIAL
~~
~
FILE NO. 813053
AprillO,2003
Kenneth A.
Lesheii
One Dearborn Square, Suite
550
Kankakee, IL 60901
Re:
City ofKankakee v.
County ofKankakee
Dear Mr.
Leshen:
Pursuant
to
our
communications I
have
agreed
to
provide
you
with
a
log
of the
various
documents for which we are asserting privileges
and objections.
The purpose behind this
log is
to
allow the parties to understand that the County ofKankakee
is in
possession ofno
documents
between August
16,
2002
and January
311,
2003, which
are not part
of the public
record.
The
only
exception
to
this
statement is
internal
memoranda between members of County staff that
were
involved
in
drafting the proposed
recommendation.
These
memoranda were
in no
way
reviewed by the
decision makers
and,
therefore,
are irrelevant, inadmissible,
and not
likely
to
lead to
admissible evidence.
Please also be
advised that though a document
may appear under
a
specific
heading
below,
which
reflects
a
primary
privilege
or
objection
to
producing
said
document,
that document may also
be protected
from
to
discovery or production on
additional
bases.
For
example,
many
of the
documents
for which
there
is
an
obvious
attorney-client
privilege
are also protected because they were drafted prior to April 16, 2002.
ATTORI4EY CLIENT PRIVILEGED
November 2, 200f
.
Correspondence
from
State’s Attorney
Edward
Smith
to
Assistant
State’s
Attorney
Brenda
Gorski
concerning
search
for
special
assistant state’s attorney concerning solid waste
issues.
Nrovember 9, 2001
Correspondence
from
Attorney
Edward
Smith
to
Chairman of the
County Board, Douglas Graves, concerning host agreement.
November
19, 2001
Correspondence
from
Attorney Heisten
to
Efraim
Gil
and
Brenda
Gorski regarding special assistant state’s attorney position.
7O~57I29vI
5I3O5~
A
PAkTNERSJ-IIP
INCLUDING PROI~ESSIONAL
COIu’ORATTQNS
RPR
10
2003
5:23
PM FR HINSHR1~
CULOERTSCNB3SSS3
TO
13128143669
P.03/20
Kenneth A. Leshen
April
10, 2003
Page
2
~~E~A~2002
Notes
of Mike
Van
Mill
concerning
telephone
call
with
Charles
Heisten.
~nil
8,
2002
Correspondence from State’s Attorney Edward
Smith to
Efraim
Gil
concerning procedures for consultant retention.
A~ril16, 2002
—
~orrespoiidence
from Assistant
State’s Attorney Brenda L.
Gorski to
Efraim Gil regarding consultant expertretention.
April
15,
2002
Correspondence
from
Efraim
Gil
to
Attorney
Edward
Smith
regarding consulting expert retention.
~l
23,
2002
Correspondence from
Charles Heisten to Brenda Gorski concerning
expert witness retention.
~cember
12, 2002
Correspondence
from
Edward
Smith
to
Bruce
Clark
regarding
administrative rules relating to
the record
to
be prepared for landfill
siting process.
December 17,
2002
Correspondence
from
Attorney
Elizabeth
Harvey
to
Kankakee
County
Board
arid
Regional
Planning
Commission
members
regarding
procedure
to
be
followed
from
close
of
hearing
on
December
6,
2002 until rendering decision.
DOCUMENTS CONCERNING NEGOTIATION OF HOST AGREEMENT
March
8, 2001
to January 16,
2002
File
of
documents
in
possession
of
Mike
Van
Mill
concerning negotiation ofhost agreement.
October
23,
2001
to
December
10,
Documents from
files of County Board member
Pam
Lee
2001
concerning host fee negotiations and agreements.
SOLID WASTE MANAGEMENT PLAN AMENDMENTS
2001 through March
111,
2002
Documents
from
files
or
Mike
Van
Mill
concerning
proposed solid waste plan amendments.
April
12, 2001
to March
1, 2002
Documents
of
Pam
Lee
concerning
solid
waste
management
plan
amendments
and
host
agreement
negotiations.
7Q~57I29vI
~I3O5~
PPR
10
2003
5:24
PM FR HINSHRLJ&CULBERTSONB3
9993
TO 13128143668
P.04/20
Kenneth A. Leshen
April 10, 2003
Page
3
DOCUMENTS PRE-DATING AUGUST 16, 2002
~~ober
30,
l9~T
through
November 2001
Various documents, notes
and
records of Mike Van Mill,
member ofCounty staff
october 2001
ts
of actual
or possible
attendees
of landfill
site
bus
tour.
Undated
Materials
from Waste Management of Illinois concerning
Settlers Hills Recycling Disposal Facility.
Diidiated
Document from
Waste Management ofIllinois
concerning
comprehensive Solid Waste Proposal.
‘N’~vember
13,
2001
through
December 11,
2001
Public
resolution
appointing
special
committee
to
negotiate
host
fee
agreement
and
minutes
of meetings
regarding same.
December 17, 2001
Correspondence
from
Dale
Eloekstra
of
Waste
Management
to
Charles
Heisten
regarding
proposed
amendment ofsolid waste management plan.
January 14, 2002
Correspondence
from
Dale
Hoekstra
of
Waste
Management
of Illinois,
Inc.
to
Solid
Waste
Director,
Efraim
Gil responding
to
a report of a citizen’s group by
the name of “Outrage” regarding capacity ofthe Kankakee
landfill.
January 28, 2002
Correspondence from Dennis Wilt of Waste Management
to
Charles F. Helsten concerning proposed changes of the
Kankakee County Solid Waste Management Plan.
April
11,
2002
Correspondences
from
Lee
Addleman
of
Waste
Management of Illinois
to
various
land owners regarding
the
agreement
to
guarantee
property
value
copied
to
Efraim Gil ófKankakee County.
DOCUMENTS CONCERNING CONSULTING EXPERTS OF STAFF AND INTERNAL
STAFF COMMUNICATIONS NOT
SHARED
WITH
DECISION MAKER
rA~iI
3, 2002
~
Internal
Lammey
memorandum
regarding con
between Mike
Van Mill
and
Mike7
suiting experts
7O~57l29vI
513053
PPR
10
2003
5:25 FM FR HINSHR1~
&
CULBERTSON63
8893
TO 13128143669
P.05/20
Kenneth A. Leshen
April
10, 2003
Page
4
A~1I
23, 2002
Correspondence
from
Assistant
State’s
Attorney
Brenda
Gorski concerning consulting expert retention.
~ber
30, 2001
Correspondence
to
Brenda
Gorski
regarding
consulting
expert retention.
i~~ary
6,
2003
Draft
of
summary report
of proposed
expansion
of
the
Karikakee Recycling and Disposal Facility.
January
7,
2003
—
Correspondence between Chris Burger and Mike Van Mill
regarding recommendations.
January 2003
E-mails
between
County
staff
and
attorneys
concerning
amendments forrecommendation report.
DOCUMENTS POST DATING DECISION
January
31,
2003
(issued
aftei~r
decision was rendered)
Memorandum
from
Waste
Management
of
Illinois
to
Kankakee County Board.
J
Sincerely
HINSHAW & CULBERTSON
~
Richar~VS.Porter
RSP:dnih
cc:
All Parties
70357129v1
813053
APR
10
2003
5:25
PM FR
HINSHRL~J
&
CULBERTSON63
9993
TO 13128143669
P.~6/20
ILLINOIS POLLUTION CONTROL
BOARD
CITY OF
KANKAKEE,
)
PCBO3-125
Petitioner,
(Third-Party Pollution Control Facility
‘
Siting Appeal)
vs.
)
)
COUNTY OF
KANKAKEE, COUNTY
)
BOARD OF KANKAKEE,
and WASTE
)
MANAGEMENT OF ILLINOIS,
INC.
)
)
Respondents.
)
)
MERLIN
KARLOCK,
)
)
PCBO3-133
Petitioner,
(Third-Party Pollution
Control Facility
Siting Appeal)
vs.
)
)
COUNTY OF KANKAKEE,
COUNTY
)
BOARD
OF
KANKAKEE, and WASTE
)
MANAGEMENT OF ILLiNOIS, INC.
)
Respondents.
)
)
MICHAEL WATSON,
)
PCBO3-134
Petitioner,
(Third~Party
Pollution Control Facility
Siting Appeal)
vs.
)
)
COUNTY
OF
KANKAKEE, COUNTY
)
BOARD
OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
)
KEITH RUNYON,
)
PCBO3-135
Petitioner,
(Third-Party Pollution Control Facility
Siting Appeal)
vs.
)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD
OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLiNOIS, INC.
)
)
Respondents.
)
70357011s1
813053
APR
10
2003
5:28 PM FR HIHSHA~J
o~
CULBERTSONS3
9993
TO 13128143569
F.07/20
RESPONSE
TO
CITY OF
KANKAKEE’S
DOCUMENT
REQUESTS
NOW
COME Respondents,
COUNTY
OF
KANKAKEE
and KANKAKEE
COUNTY
BOARD,
by and
through their attorneys, HINSHAW &
CULBERTSON, and in response
to the
City
ofKankakee’s Document Requests, state as follows:
1.
Objection, this is an improper invasion ofthe mental processes ofdecision makers
to inquire as to
the specific
documents read or reviewed by them in consideration of their siting
applications.
See
City
of Roclg’brd v.
Winnebago
County
Board,
PCB
88-107 (November
17,
1988);
St.
Charles
v.
Kahe
County,
1984
WL 37700,
PCB
83-228, 229,
230
(May
18,
1984),
Land and Lakes
Co.
v.
Village ofRomeoville,
PCB
92-25
(June 4,
1992);
Village of Lagrange v,
McCook Cogeneration
Station,
1995
WL
747729,
PCB
96-41
(Dec.
7,
1945).
Subject
to
said
objection the only documents which were available to the decision makers and which were relied
upon and
reviewed by
the decision makers in coming to their decision, are contained within the
public
record.
2.
Objection,
this
request
is
overbroad,
overburdensome,
irrelevant,
and
not
reasonably likely
to
lead
to
relevant admissible
evidence.
This
production
request appears to
relate to
communications
concerning the
siting application
and
before
such a
request may be
made, a petitioner must allege specific instances or evidence offundamental unfairness and may
not
engage
in
a
mere
fishing
expedition
in
an
attempt
to
find
alleged
improper
ex-parte
communications.
See
Land and
Lakes
Company v.
Village ofRomeoville,
PCB
92-25,
slip op.
at
4
(June 4,
1992);
DiMagglo
v.
Solid Waste Agency ofNorthern Cook
County,
PCB 89-138, slip
op.
at
7
(October
27,
1989).
Furthermore,
to
the
extent
that
this
production
request
seeks
information regarding the host
agreement it
is
not
relevant
to
this
appeal
and
not
reasonably
calculated to lead to
relevant
and
admissible
infonnation,
The drafting
and
adoption of a host
agreement is a legislative function which is not an indication ofpre-judgment or bias.
J~esidents
2
7O3S7Ol~vl513053
APR
10 2~03
5:28 PM FR HINSHAL~
&
CULEERTSONB3
9993
TO 13128143889
P.08/20
Against a
Polluted Environment v.
County of LaSalle,
PCB
96-243,
slip
op.
at
15-16
(Sept.
9,
1
99~),
aff’d. Residents Against a Polluted Environment v.
Illinois Pollution Control Board,
293
I11.App.3d
219,
687
N.E.2d
552,
555
(3d Dist.
1997).
Furthermore,
to
the
extent
that
this
interrogatory seeks
information
concerning
the solid waste management planning of the County
of Kankakee
and
specifically
the adoption of the Kankakee County
Solid
Waste Management
Plans and amendments thereto,
said information is not relevant nor admissible in this appeal
and
is not reasonably calculated
to
lead to
the discovery of relevant and
admissible information and
is beyond the scope of permissible discovery.
The Pollution Control Board does not review the
legislative process ofadoption of the amendment ofsolid waste management plans: “allegations
concerning
the adoption
and
amendment of the
County’s
solid waste management plan are not
proper
allegations
for
Board
consideration
in
a
Section
40.1
pollution
control
facility
siting
appeal.
Residents Against a Polluted Environment v.
County
ofLaSalle, PCB 96-243, slip
op. at
15-16
(Sept.
9,
1996).
aff’d Residents Against
a
Polluted Environment
v.
Illinois
Pollution
Control Board,
293
Ill.App.3d
219,
687
N.E.2d
552,
555
(3d Dist.
1997).
Additionally,
the
Solid Waste Management Plan and resolutions amending that plan, were adopted prior to August
16,
2002
filing ofthe siting application, and
thus that process is irrelevant
to
this
appeal
and not
likely
lead to
admissible
evidence.
Finally,
to
the
extent
this
request seeks
information after
January
31, 2003,
such is irrelevant,
inadmissible and not
subject to
discovery.
Subject
to
this
objection,
and without waiving
same.
There are no
such documents
for the relevant period of
August
16,
1992
until
the time of rendering the
decision on
January
31,
2003,
other than the
documents contained in the public record.
3.
Objection,
this
request
is
overbroad,
overburdensome,
irrelevant,
and
not
reasonably
likely to
lead
to
relevant admissible
evidence.
This
production
request appears
to
relate to
communications
concerning
the
siting application
and
before such a
request may
be
made, a petitioner must allege specific instances or evidence of fundamental unfairness and may
3
7O3~7O11v~
513O~3
APR
10 2~03
5:27
PM FR HINSHAW
&
CULBERTSONB3
9993
TO
13128143889
P.09/20
~ot engage in
a mere
fishing expedition
in an attempt to
find
alleged improper
ex-parte
communications. See
Land and Lakes Company
v.
Village ofRomeoville,
PCB
92-25,
slip op. at
4 (June 4, 1992);
DiMaggio
v.
Solid
Waste Agency of Northern
Cook County,
PCB
89-138, slip
op.
at 7 (October 27, .1989).
Furthermore, to the extent
that
this
production request seeks
information regarding the host agreement
it
is
not
relevant
to
this
appeal
and
not reasonably
calculated to
lead to relevant
and
admissible
information.
The drafting and
adoption of a host
agreement is
a legislative flmction which is not an indication of pre-judgment or biaS.
Residents
Against
a
Polluted Environment
v.
County of LaSalle,
PCB 96-243, slip op. at
15-16
(Sept.
9,
1996),
aff’d. Residents Against a
Polluted Environment v.
Illinois Pollution
Control Board,
293
IIl.App.3d 219, 687 N.E.2d 552,
555
(3d
Dist. 1997).
Furthermore,
to the
extent
that
this
interrogatory seeks information concerning the solid
waste
management planning of the County
of
Kankakee
and specifically the adoption of
the Kankakee County
Solid
Waste
Management
Plans
and amendments thereto,
said
information is not relevant nor admissible
in this appeal
and
is
not reasonably calculated to
lead
to the dIscovery of relevant
and admissible
information and
is
beyond the scope of permissible discovery.
The Pollution Control Board does not review the
legislative process of adoption ofthe amendment of solid waste management plans: “allegations
concerning the adoption and
amendment of the
County’s
solid waste
management plan are not
proper
allegations
for Board
consideration
in
a
Section
40.1
pollution
control
facility
siting
appeal.
Residents Against a Polluted Environment v.
County
ofLaSalle, PCB 96-243, slip
op. at
15-16
(Sept.
9,
1996).
aff’d Residents Against a
Polluted Environment
v.
Illinois
Pollution
Control
Board
293
Ill,App.3d
219,
687
N.E.2d
552,
555
(3d Dist.
1997).
Additionally, the
Solid Waste Management Plan and resolutions amending that plan, were adopted prior to August
16, 2002
filing of the siting application, arid thus
that process is irrelevant to this appeal
and not
likely
lead to
admissible
evidence.
Finally,
to
the extent
this
request
seeks information after
January 31,
2003,
such is
irrelevant, inadmissible and not subject to
discovery.
Subject
to
said
4
7Q357OLI~1
S13053
APR
10
2003
5:28 PM FR HINSHAW
&
CULBERTSONB3
9993
TO
13128143689
P.10/20
obj
action, there were no
phone calls or meetings
between Waste Management of Illinois
and
the
County of
Kanicakee,
the
Kankakee
County
Board,
or
their
agents
after
the
filing
of the
application
on August
16,
2002,
and
prior
to
the
County
Board
decision on January
31, 2003
relating
to
the
planning,
development,
and
siting
of
the
facility
and
hence,
there
are
no
documents concerning the relevant time period.
4.
Objection,
this
request
is
overbroad,
overburdensome,
irrelevant,
and
not
reasonably
likely
to
lead to
relevant admissible
evidence.
This
production request appears
to
relate
to
communications
concerning
the
siting
application
arid before
such a
request
may be
made, a petitioner must allege specific instances or evidence offundamental unfairness and
may
not
engage
in
a
mere
fishing
expedition
in
an
attempt
to
find
alleged
improper
ex-parte
communications.
See
Land and Lakes Company v.
Village ofRomeoville,
PCB 92-25, slip
op. at
4
(June
4,
1992);
DiMagglo
v.
Solid Waste Agency ofNorthern
Cook County,
PCB
89-138, slip
op.
at
7
(October
27,
1989).
Furthermore,
to
the
extent
that
this
production
request
seeks
information regarding the
host
agreement it
is
not
relevant
to
this
appeal
and not
reasonably
calculated to lead to
relevant and
admissible
information.
The drafting and
adoption of a host
agreenlent
is
a legislative function which is not an indication of pre-judgment or bias.
Residents
Against a
Polluted ~Environmentv.
County of LaSalle,
PCJ3
96-243,
slip
op.
at
15-16
(Sept.
9,
1996),
aff’d.
Residents Against a Polluted Environment v.
Illinois Pollution
Control Board,
293
fl1.App.3d
219,
687
N.E.2d
552,
555
(3d
Dist.
1997).
Furthermore,
to
the
extent
that
this
interrogatory
seeks information concerning the solid waste
management planning of the County
of Kankakee and
specifically the adoption of the
Kankakee County
Solid
Waste
Management
Plans and
amendments thereto, said information is not relevant nor admissible in this appeal and
is not reasonably calculated to
lead to
the discovery ofrelevant and admissible
information and
is
beyond the scope ofpermissible discovery.
The Po1lu~ionControl Board does not revicw the
legislative
process ofadoption
ofthe amendment of solid waste management
plans: “allegations
5
70357011v1 813053
APR
10
20e3
5:28
PM FR HINSHAIJ
&
CULBERTSONB3
9993
TO
13128143669
P.11/20
concerning the adoption
and
amendment of
the
County’s
solid
waste management
plan
are not
proper
allegations
for
Board
consideration
in
a
Section
40.1
pollution
control
facility
siting
appeal.
Residents Against a PollutedEnvironment v.
County
ofLaSalle, PCB 96-243, slip op.
at
15-16
(Sept.
9,
1996).
aff’d Residents
Against
a
Polluted Environment
v.
Illinois
Pollution
Control
Board,
293
Ill.App.3d
219,
687
N.E.2d
552,
555
(3d Dist.
1997).
Additionally,
the
Solid Waste Management Plan and
resolutionsamending that plan,
were adopted prior to August
16,
2002
filing of the siting application, and
thus that process
is irrelevant to this
appeal
and not
likely
lead to
admissible
evidence.
Finally,
to
the
extent
this
request seeks information after
January
31,
2003,
such
is
irrelevant, inadmissible
and
not subject to
discovery.
Subject
to
this
objection,
and
without
waiving
same,
the
only
documents
which
were
relied
upon
by
the
decision makers in coming to their decision are contained within the public record.
5.
Objection,
this
request
is
overbroad,
overburdensome,
irrelevant,
and
not
reasonably likely
to lead
to
relevant admissible
evidence.
This
production request appears
to
relate to
communications
concerning
the
siting application
and
before such a
request may be
made, a petitioner must allege
specific
instances or evidence of fundamental unfairness and
may
not
engage
in
a
mere
fishing
expedition
in
an
attempt
to
find
alleged
improper
ex-parte
communications.
See
Land and Lakes Company v.
Village ofRomeoville,
PCB 92-25, slip op.
at
4
(June 4,
1992);
DiMaggio v. Solid
Waste Agency of Northern
Cook County,
PCB
89-138, slip
op.
at
7
(October
27,
1989).
Furthermore,
to
the
extent
that
this production
request
seeks
information regarding the
host
agreement it
is
not
relevant to
this
appeal
and
not
reasonably
calculated
to
lead
to
relevant and
admissible
information.
The drafting and
adoption of a host
agreement is
a legislative function which is not an indication ofpre-judgment or bias.
Residents
Against
a Polluted Environment v~County of LaSalle,
PCB
96-243, slip
op.
at
15-16
(Sept.
9,
1996),
aff’d. Residents Against a Polluted Environment
v.
Illinois Pollution Control Board,
293
Ill.App.3d
219,
687
N.E.2d
552,
555
(3d
Dist.
1997).
Furthermore,
to
the
extent
that
this
6
70357011’,’!
813053
APR
10
2003
5:29
PM
FR
HINSHAL4
&~
CULBERTSONB3 9993
10
13128143669
P.12’20
interrogatory seeks information concemingthe solid waste management planning of the County
of
Kankakee
and specifically the adoption of the Kankakee County Solid Waste Management
Plans and amendments thereto, said information is not relevantnor admissible in this
appeal and
is not reasonably calculated to lead to the discoveryof relevant and admissible information and
is beyond the scope ofpermissible
discovery.
The Pollution
Control Board does not review the
legislative process of adoption of the amendment of solid waste management plans: “allegations
concerning
the adoption
and
amendment of the
County’s
solid waste management plan are not
proper
allegations
for
Board
consideration
in
a
Section
40.1
pollution
control
facility
siting
appeal.
Residents Against a
PollutedEnvironment v. County
ofLaSalle, PCB 96-243, slip op.
at
15-16
(Sept.
9, 1996).
aff’d Residents Against
a
Polluted
Environment
v.
Illinois
Pollution
Control Board,
293
Ill.App.3d
219,
687
N.F.2d
552,
555
(3d Dist. 1997).
Additionally, the
Solid Waste Management Plan and resolutions amending that plan, were adopted prior to August
16,
2002
filing
of the siting application,
and thus
that process is irrelevant to this
appeal and not
likely
lead
to
admissible
evidence.
Finally,
to
the extent
this
request seeks
information after
January 31, 2003, such is irrelevant, inadmissible and
not
subject to
discovery.
Subject to this
objection and without waiving
same, noneother than those contained in the public record.
6.
None
other
than
the
exhibits
contained within the public
record,
however,
the
County reserves its right to present rebuttal evidence and exhibits.
7.
None
other than
the exhibits
contained within
the public
record,
however, the
County reserves its right to presentrebuttal evidence and exhibits.
8.
None
other
than
the
exhibits
contained
within the
public
record,
however, the
County reserves its right to present rebuttal evidence and
exhibits.
9.
None
other
than
the
exhibits
contained
within the
public
record,
however,
the
County reserves its right to present rebuttal evidence
and
exhibits.
10.
Objection, said interrogatory is vague, overbroad and overburdensome.
7
70357011v1 813053
~FR
10
2l~@3
5:30
PM FR HINSHRU
&
CULEERTSONB3
9993
TO 13128143669
P.13/20
Respectfully Submitted,
On
behalfofthe COUNTY
OF
KANKAKEE
By: Hinshaw& Culbertson
Charles F. Heisten
Richard S. Porter
One of Attorneys
HINSHAWAND CULBERTSON
100
ParkAvenue
P.O.
Box 1389
Rockford, IL 61105-1389
815-490-4900
This document utilized
100
recycled paper products
703$7011y1 813053
APR
10 2003
5:30 PM FR HINSHAW
a.~
CULBERTSON63 9993
10 13128143689
P.14/20
ILLINOIS POLLUTIONCONTROL BOARD
THE CITYOF
KANCAKEE,
an Illinois
)
Municipal Corporation,
)
)
Plaintiff,
)
)
vs.
)
)
Case No.
PCB 03-125
COUNTY OF KANKAKEE, a body politic and)
corporate; KANKAKEE COUNTY BOARD;
)
and WASTE MANAGEMENT
OF ILLINOIS,)
INC.,
)
Defendants.
)
DEFENDANTS’ ANSWERS TO CITY
OF
KANKAKEE’S
NOW COME the Defendants, COUNTY OF KANKAKEE,
abody politic
and
corporate
and
KANKAKEE
COUNTY
BOARD,
by
and
through
their
attorneys,
HINSHAW
&
CULBERTSON,
and
for their Answers
to
CITY
OF
KANKAKEE’S
INTERROGATORIES,
states as follows:
INTERROGATORY NO.
1 ~
Identit~’ all
persons
who
provided
information
regarding or assisted in answer these Interrogatories.
ANSWER:
Every
County
Board
Member,
Michael
Van
Mill,
on
behalf of County
Staff, Kankakee County State’s Attorney Edward Smith, Special Assistant
State’s Attorneys Charles Helsten and Richard Porter.
INTERROGATORY NO~
2:
Please
identify
all
persons
of
WMII
who
met,
talked,
or communicated with the County ofKankakee, County ofKankakee department heads,
professional and technical staff, County employees, and its
attorneys, including Edward
ID.
Smith
and
his
assistants
in
the office of the Kankakee
County
State’s
Attorney’s
Office, prior
to
the
RFR
10
2~03
5:30 PM FR HINSH~UJ
&
CULBERT5ONBO
9993
TO 13128143689
P.1 5/20
filing ofthe landfill Siting Application on August
16,
2002
relating to the planning,
development
and
siting of the Facility,
and for each such individual, please:
(a)
identify
the
individual
by
name
and
title
and
identify
what
type
of
communication took place (written, oral, telephone, e-mail, etc.);
(b)
the subject matter of each such communication;
(c)
describe and
delineate the exact statements made during the course ofeach
such communication;
(d)
identify date, time and
duration of each such communication;
(e)
identify the location ofeach such communication; and
(f)
identify all persons present at such communication.
ANSWER:
The
County
objects
to
this
Interrogatory
in
its
entirety
as
it
seeks
information
that
is
irrelevant,
inadmissible
and
not
likely
to
lead
to
admissible
evidence.
This
interrogatory
appears
to
seek
information
concerning
communications, however, before such requests
can be made,
a
petitioner
must
allege
specific
instances
or
evidence
of
fundamental
unfairness and may not engage in a “fishing expedition”.
Land and Lakes
Co.
v.
Village
of
Romeoville,
PCB
92-25,
slip
op.
at
4
(June
4,
1992);
DiMaggio
v. Solid
Waste Agency ofNorthern
Cook County,
PCB 89-138,
slip
op.
at 7
(October
27,
1989).
To
the
extent
this
interrogatory seeks
infonnation concerning
the planning of solid
waste
management
by
the
County
including
adoption
of
Solid
Waste
Management
Plans,
said
information
is
irrelevant,
not
likely
to
lead to
admissible
evidence
and
beyond
the
scope of permissible
discovery.
The Pollution
Control Board
does not
review
the
legislative
process
of adoption
arid
amendment of
solid
waste
management plans:
“allegations
concerning the adoption
of
the
county’s
solid waste
management
plan
are
not proper allegations for
Board
consideration
in
a
Section
40.1
pollution
control
facility
siting
appeal.”
Residents Against a Polluted Environment v.
County ofLaSalle,
PCB 96-243,
slip
op.
at
15-16
(Sept.
9,
1996),
aff~d
Residents Against a
Polluted Environment v.
Illinois Pollution
Control Board~
293
Il1.App.3d
219,
687 N.E~2d
552,
555
(3d Dist. 1997).
Additionally, the solid waste
management
plan,
and resolutions amending that plan were adopted prior
to
the
August
16,
2002
filing
of the
siting
application,
and
thus
that
process is irrelevant to this appeal.
2
RPR
10
2D03
5:31
PM
FR HINSHRL~J
&
CULBERTSONB3
9993
TO 13128143889
P.18/20
Furthermore,
information regarding the Host Agreement is not relevant to
this
appeal,
and
is
not
reasonably
calculated
to
lead to
the discovery
of
relevant information.
It is
well settled that
the drafting and
adoption
of a
host
agreement
is
a
legislative
function
which
is
not
an
indication
of
prejudgment or bias.
Residents Against a PollutedEnvironment v.
County
of
LaSalle, PCB
96-243, slip
op.
at
15-16 (Sept.
9,
1996),
aff’d Residents
Against a Polluted Environment
v.
Illinois
Pollution
Control Board,
293
I11.App.3d 219,
687
N.E.2d
552,
555
(3d Dist.
1997).
Additionally, the
Host Agreement was negotiated and
adopted prior to
the August 16,
2002
filing
of the siting
application,
and
thus
that process
is
irrelevant to
this
appeal.
Finally,
the County
objects to
this
Interrogatory to
the
extent
it
seeks disclosure of
information protected by the attorney-client privilege,
the attorney work product doctrine, or any
other applicableprivilege.
Subject
to
said
objection,
and
without waiving same,
on
November
30,
2001,
Christopher
Bolin,
on
behalf
of
the
City
of
Kankakee,
John
Kennedy,
on behalf ofTown &
Country,
Inc.,
and Dennis Wilt on behalf
of Waste
Management
of Illinois,
met
with
Kankakee
County
State’s
Attorney Edward
Smith, at which time Town &
Country threatened to sue
the County ofKankakee for alleged anti-trust
violations, No such suit was
ever
filed and
because the
City was
present,
the
discussion
will
not
be
described in further detail.
Several
Board
members
and
department
heads
participated
in
Host
Agreement negotiations and/or attended bus tours
ofthe
Settlers
Hill and
Kankakee County
facilities
prior
to
August
16,
2002.
The
County of
Kankakee
is
aware that
representatives of Waste Management of Illinois
have attended public
Kankakee County Board meetings prior to
the
filing
ofthe Application.
The County does not recall any specifics of any public
statements
made
by
Waste
Management
of Illinois
at
these
meetings,
however,
the
minutes
of all
County
Board meetings
are
public
record.
There are communications from WMII written to the County re: proposed
amendments to the Solid Waste Management Plan.
Prior to the
filing ofthe Waste Management Application, communications
did take
place
with
the
Special
Assistant
State’s
Attorneys
and
Waste
Management
of Illinois,
all
of which
are
identified
in
the
invoices
of
Hinshaw
&
Culbertson, which
are part of the Kankakee
County
record.
Investigation continues.
INTERROGATORY NO.
3:
Please
identify
all
persons of
WMII
who
met,
talked, or communicated
with
any
members
of the Kankakee
County
Board
and/or
County of
Kankakee prior to the filing ofthe Landfill
Siting Application on
August 16,
2002 relating to
the
planning, development and siting ofthe Facility, and for each such individual, please:
3
RPR
10 2~3
5:3~ PM FR HINSHRW
a-
CULBERTSONB3
sss~
To
131~8143BBs
P.
l7/~0
(a)
identify
the
individual
by
name
and
title
and
identify
what
type
of
communication took place (written, oral, telephone, e-mail, etc.);
(b)
the subject matter ofeach such communication;
(c)
describe and delineate the exact statements made during the course ofeach
such communication;
(d)
identify date, time and duration of each such communication;
(e)
identify the locationof each such communication;
and
(f)
identify all persons present at such communication.
ANSWER:
See Objection and Answer to Interrogatory No. 2
INTERROGATORY NO.
4:
Identify
all
persons
of WMII
who
met,
talked,
or
otherwise communicated with the County ofKankakee andlor the Kankakee County
Board after
the
filing
of the
Landfill
Siting
Application
on
August
16,
2002,
relating
to
the
planning,
development
and
siting
of
a
solid
waste
management
facility,
and for
each
such
individual,
please:
(a)
identify
the
individual
by
name
and
title
and
identify
what
type
of
communication took place (written, oral, telephone, e-mail, etc.);
(b)
the subject matter ofeach such communication;
(c)
describe and delineate
the exact statements made during the course ofeach
such communication;
(d)
identify date, time and duration of eachsuch communication;
(e)
identify the location ofeach such communication; arid
(f)
identify all persons present at such communication.
ANSWER~
Objection to
the extent this Interrogatory
seeks irrelevant communications
between Waste Management ofIllinois,
Inc.
and the County ofKankakee
4
RPR
10
2009
5:92
PM FR
HINSHRLkJ
&
CULEERTSONE3
9893
TO 19128149669
P.1 9/20
and
its
attorneys
regarding
Landfill
Applications
other
than
Waste
Management
of Illinois,
Inc.’s Application to
expand its
existing
facility
and
to the extent it seeks information after the decision dateofJanuary 31,
2003.
To
the
extent
said
Interrogatory
is
limited
to
communications
between Waste Management ofIllinois,
Inc.
and the County after August
16,
2002,
arid
prior
to
the
decision
date;
none
other
than
the
communications
held on the public
record, and possibly
procedural non-
substantive
communications
between
Special
State’s
Attorneys
of
Kamkakee
County
and
the
attorneys of Waste Management of Illinois,
which would be reflected in the invoices of Hinshaw & Culbertson, which
are part ofthe public record, if any.
INTERROGATORY NO.5:
Identify
all
County
of
Kankakee
and
Kankakee
County Board officials or personnel that had any involvement in, made any
recommendations, or
made
any
decisions regarding
the
January
31,
2003,
decision
granting
approval
of WMII’s
Landfill Siting Application, and for each such individual, please:
(a)
identify
the
individual
by
name
and
title
and
identify
what
type
of
communication took place (written, oral, telephone, e-mail, etc.);
(b)
describe the nature and extent of the persons’ involvement;
(c)
identify all
documents reviewed by such person regarding the January 31,
2003, decision granting approval ofthe Landfill Siting Application;
(d)
identify
all
documents generated by
such personnel having
involvement
in,
making
recommendations
or
decision
regarding
the
January
31,
2003,
decision
granting approval ofthe Landfill Siting Application.
ANSWER:
Objection,
said
Interrogatory
is
vague,
overbroad and
over-burdensome,
and
involves
the
attorney-client
privilege
and
work
product
doctrine.
Furthermore,
said
interrogatory
improperly
invades
upon
the
mental
processes
of the
County
Board.
See
City
of
Roc1~fordv.
Winnebago
County Board,
PCB
88-107
(November
17,
1988);
St.
Cha~-lesv.
Kane
County,
1984
WL
37700, PC~83-228, 229,
230
(May 18.
1984),
Land
and Lakes Co.
v.
Village ofRomeoville,
PCB
92-25
(June 4,
1992);
Village
ofLagrange
v. MeCook Cogeneration Station,
1995
WL 747729, PCB
96-
41
(Dec.
7,
1945).
Subject
to
said objection,
and without waiving
same,
each
and
every individual who testified, presented evidence, made public
5
RFR
10
2003
5:33 PM FR HINSHR~
&
CULBERTSONB3
9993
TO
13128143669
P.19/20
comment, assisted in the preparation of evidence, or otherwise participated
in
the
Section
39.2
hearing
had
some
“involvement”
in
the
County’s
decision in that the County considered such evidence.
INTERROGATORY NO.6:
Identify all Kankakee
County
Board members who
met,
talked,
or
otherwise
communicated
with
County
of
Kankakee
department
heads,
supervisors,
staff,
employees
or
consultants
before
or after
the
filing
of
the
Landfill
Siting
Application on August
16,
2002, relating to
the planning,
development and siting ofthe Facility
and for each such individual, please:
(a)
identify
the
individual
by
name
and
title
and
identify
what
type
of
communication took place (written, oral, telephone, e-mail,
etc.);
(b)
the subject matter ofeach such communication;
(c)
describe and delineate the exact statements made during the course ofeach
such communication;
(d)
identify date, time and duration of each such communication;
(e)
identify the location ofeach such communication; and
(f)
identify all personspresent at such communication.
ANSWER:
Objection,
to
the
extent
said
interrogatory
seeks
information
after
the
decision date of January
31,
2003,
said
interrogatory seeks irrelevant
and
inadmissible
evidence
and
is
not
likely
to
lead
to
admissible
evidence.
Furthermore, said Interrogatory infringes upon the attorney/client privilege
and
seeks
to
discover
information
concerning
the
mental
processes
of
County Board members, which is irrelevant, inadmissible
and not likely to
lead to
admissible
evidence.
See
City ofRockford v.
Winnebago
County
Board,
PCB
88-107
(November
17,
1988);
St.
Charles
v.
Kane
County,
1984
WC
37700,
PCB 83-228, 229,
230 (May
18,
1984),
Land
and Lakes
Co.
v.
Village
of Rorneoville,
PCB
92-25
(June
4,
1992),
Village
of
Lagrange v. McCook Cogeneration Station, 1995
WC 747729, PCB 96-4 1
(Dec.
7,
1945).
Subject
to
said objection a recommendation was drafted
by
County staff and
reviewed by the County Board, which is
part of the
record.
6
APR
10
2003
5:33 PM FR HINSHA~J
&
CULBERTSONB3
9993
TO
13128143669
P.2~/20
INTERROGATORY NO.
7:
Please identify
each
witness
you
expect
to
present
to testify at hearing, and
state the subject of each witness’s testimony and identify any documents
any witness will
utilize in his or her testimony.
ANSWER:
None,
except
Kankakee
County
reserves
its
right
to
present
rebuttal
witnesses.
Investigationcontinues.
RespectfullySubmitted,
On
behalf of theCOUNTY OF
KANKAKEE
and
KANKAKEE COUNTY BOARD,
By: Hinshaw &~Culbertson
Richard S.
Porter
One ofTheir Attorneys
HINSHAWAND CULBERTSON
100 ParkAvenue
P.O.
Box 1389
Rockford, IL 61105-1389
815-490-4900
70356775v1
813053
This document utilized
100
recycled paper products
**
TOTAL
PRGE.20
**
APR
10
~003
5:21
PM
FR
HINSHfil~
&
CULBERTSONB3
8993
TO 13128143669
P.@l/20
HINSHAW
& CULBERTSON
CLERK~OFFICE
ATTORNEYS
AT
LAW
APR
i-1J~2OQ3
eRLLSVILLE, ILLrNOIS
100
Park Avenue
,,0~çg,
~.~U,~NOlS
cLsA~.1pAION,ILLINOIS
P.O.
~3ox1389
~
Board
cHZCA’OO. ILLINOIS
Rockford
IL 451105-i 389
FT.
LAUDEWALE. FLORIDA
CILYSTAL.
(.AKa,
ILLINOIS
S 15.490-4900
)f~CKSONVILI,E.FLORIDA
JOLIRT.ILLINOIS
,
.
MIAMI,1’LOR1DA
LISLE, ILLINOIS
Facsimile
SI 5-490-4)01
TAMPA,FLORIDA
PE.OIJA,
ILLINOIS
wwwhinshawculbertson.com
SCIIEREP.VILLE.
INDIANA
ROCEFORD, ILLINOIS
MIWNEAPOLIS, MINNESOTA
srRIN~PrEw,
IU.INOIS
RPortcr@hinshawlaw,
corn
ST
LOUIS,
MISSOURI
WAIJKRGAN. ILLINOIS
NEW
YORK,
5~WYORK
PHOENIX. ARiZONA
APPLIiTON,
WISCONSIN
MILWAUKEE,
WISCONSIN
FACSIMILE TRANSMISSION
TO BE
DELIVERED IMMEDIATELY
TO:
COMPANY:
FAX
NO.:
PHONE NO.:
George Mueller
433-4913
‘1’
433-4705
Donald J. Moran
Pederson & Houpt
312/261-1 l49~/
312/261-2149
Elizabeth Harvey
Swanson, Martin & Bell
312/321-0990
312/321-9100
Kenneth A. Leshen
815/933-3385
~8l5/933-3397
“~
L. Patrick Power
815/937-0056V
815/937-6937
Keith Runyon
815/93 7-9164
815/937-9838
Jenniferi. Sackett
312/540-0578
312/540-7540
Pohlenz
Kenneth A. Bleyer
Patricia O’Dell
Brad Halloran
IPCB
3121814-3669
3121814-8917
DATE:
April
10,
2003
FROM:
Richard S. Porter
.
USER ID
a4549
MATTER
NAME:
Karikakee
MATTER NO.:
813053
NO.
OF PAGES (inciuding
this Cover):
SENDING
OPERATOR:
Danita
COMMENTS~iF
ANY;
HARD COPY:
~
Will follow by
mail
fl
Will follow by overnight mail
~
Will not follow
Ef you
do
not
receive
the
number of pages
listed
above,
please
call
Ike
number indicated above.
The documents
that
accompany
this
facsimile
contain
eonfldential
and privikged
information
and
arc
intended
solely
for
the
use
of thc individual
or
entity
to whom
this
transmisaion
is directed.
Any
disclosure
of th~
information
herein
is unauthorized and
strictly
prohibited.
If you
are
not
the int~ndcd
recipient of this
facsimile, please respond
by
facsimile
to the
number
aboye
or ~aII the seitdin~operator at our
expense
immediately
so
that we may arrange for
the
return ofthit document to us at no coat to you.
Thank you.
~t~2~Q5vI
tI~O53
