1. PORTIONS OF RESPONDENT’S BRIEF
      2. 6. Respondent incorrectly labeled McHenry County Defenders as an objector.
      3. AFFIDAVIT OF SERVICE
ILLINOIS POLLUTION CONTROL BOARD
RECE~V~)
CLERK’S
OFFICE
LOWE TRANSFER, INC. and MARSHALL
)
SEP
15
2003
LOWE,
)
STATE OF ILLINOIS
Petitioners,
)
~°llUtiOnControl Board
)
vs;
)
Case No.
PCB 03-221
)
COUNTY BOARD OF
MCHENRY COUNTY,)
ILLINOIS
)
)
Respondent.
)
NOTICE OF FILING
TO:
See Affidavit ofService
PLEASE TAKE NOTICE that on September
~
,
2003,
we mailed for filing with the
Illinois Pollution Control Board,
the attached
Respondent County Board of McHenry County,
Illinois’
Response
to
Co-Petitioners’
Motion
to
Strike
Portions
of Respondent’s
Brief,
a
copy ofwhich is attached hereto.
Dated:
~
/Q
,2003
Respectfully Submitted,
On behalf ofthe County Board ofMdllemy
County, Illinois
By: Hinshaw & Culbertson
_________
~
One ofits Attorneys
HJNSHAW &
CULBERTSON
100 ParkAvenue
P.O.Box
1389
Rockford, Illinois
61105-1389
815/490-4900
70376251v1
830017
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARDRECEIVED
CLERK’S
OFFICE
LOWE TRANSFER, iNC. and MARSHALL
)
SEP
152003
LOWE,
)
)
STATE OF ILLINOIS
Petitioners,
)
Pollution
Control
Board
)
vs.
)
Case No.
PCB 03-22 1
)
Pollution Control Facility Siting Appeal
COUNTY BOARD
OF MCHENRY COUNTY,)
ILLiNOIS
)
)
Respondent.
)
RESPONDENT COUNTY BOARD OF MCHENRY COUNTY, ILLINOIS’
RESPONSE TO CO-PETITIONERS’ MOTION
TO
STRIKE
PORTIONS OF RESPONDENT’S BRIEF
NOW COMES, Respondent, COUNTY BOARD
OF MCHENRY COUNTY, ILLINOIS,
by
and through its
attorneys, Hinshaw & Culbertson,
and in response to
Co-Petitioners’ Motion
to Strike Portions ofRespondent’s Brief,
states as follows:
1.
Co-Petitioners’
Motion to Strike
is improper.
Co-Petitioners’ Motion to
Strike is inappropriate as it generally consists of arguments and
disagreements with Respondent’s brief
Such
is not the purpose of a motion
to strike.
A motion
to
strike is
appropriate when a pleading is
insufficient in law or contains immaterial matter.
See
735
ILCS
5/2-615
(2002);
see
also
35
Ill.Adm.Code
101.500(a)
(explaining that
that the Board
may entertain motions permissible under the Illinois
Code of Civil Procedure).
In this
case, the
matters
attacked
by
Co-Petitioners
are
not
immaterial
matters
but,
rather,
are
matters
of
argument.
While
Co-Petitioners may have their position,
Respondent’s
disagreement with
that
position is
not a proper basis for a motion strike.
Rather, the more appropriate method to make
such
arguments would
be
in
Co-Petitioner’s
response brief
As
Co-Petitioners’
response brief
does
not
raise
such
issues,
those
issues
should
not
be
raised
in
this
motion
and
should
be
disregarded by
this
Board.
To
the extent
that this Board considers
the arguments raised by Co-
Petitioners, Respondent contends that the majority ofCo-Petitioners’ arguments have no merit,
as
set out below.
2.
Lawrence
Thomas
has
practiced 23
years
in
the field
of hydrogeology
and
has considerable experience in
geology and hydrogeology.
Respondent disagrees that it was incorrect in describing Mr. Thomas as a hydrogeologist
after Mr.
testified at length
and
provided his extensive
curriculum vitae,
which
documented his
background
in
“hydgrogeology.”
It
is
not
incorrect
to
describe
someone
who
practices
hydgrogeology
as
a
“hydrogeologist.”
In
fact,
Mr.
Thomas
has
23
years
of experience
in
hydrogeology
and
geology.
Specifically
describing
his
background
in
“hydrogeology,”
Mr.
Thomas explained that he has been involved in locating water supply wells
and protecting such
wells from
contamination
since
1980.
(C.00l88,
p.
7).
He has also been actively involved in
water resource planning
and is
working with McHenry County on
its groundwater management
plan.
(Id.
at pp.
7-8).
In addition,
he has participated in performing a Groundwater Management
Study and
has been involved
in
a well monitoring
and
treatment plan for the Village of Cary.
(Id.
at p.
9).
He has also
performed groundwater modeling
studies of groundwater flow in
the
vicinity of the
Village
of Cary.
(Id.
at
pp.
10-1 1).
Mr.
Thomas’
extensive
background
in
hydrogeology is described at length
in his curriculum vitae.
(C.003 16-325).
Such testimony and
evidence clearly
establish that Mr. Thomas had a
sound background in hydrogeology, which
is
“the branch of geology that deals with the occurrence, distribution,
and effect of ground water.”
The American Heritage Dictionary ofthe English Language, Fourth Edition, 2000.
Mr. Thomas
also
testified about his
experience in
geology.
Mr.
Thomas explained that
since
1980, when he
started designing water
supply
wells
in
the
area, he has had
to
deal with
geology,
and while
not
a
geologist,
he
has
experience
in
geology.
(C.00188,
pp.
15-16.)
He
explained that in designing wells,
it is necessary to consider the types offormations and geology
in
and
around the proposed well
location.
(Id.
at p.
16).
Mr. Thomas
also
explained
that
his
background in geology is based on 23
years ofexperience in developing water supply wells.
Id.
The hearing officer specifically
found that
Mr.
Thomas had
adequate experience in the
areas of geology
and
hydrogeology to
allow him to testify with
respect to
groundwater issues.
(Id.
at
p.
18-19).
The
hearing officer specifically
noted
that
“this
committee
can weigh
the
evidence in terms ofMr.
Thomas’ geographic
experience and
education as it relates to
his ability
to
testify in the hydrogeological
area.”
(Id.
at p.
19).
Consequently, Respondent was correct in
asserting that Mr. Thomas did have experience with
respect to geology and hydrogeology based
on Mr. Thomas’ own testimony ofhis experience in those areas.
Therefore,
Respondent requests
that this
Board not
strike Respondent’s
reference to
Mr.
Thomas as
a
“hydrogeologist,”
as Mr.
Thomas’
23
years of practice in that
field warrants that
description.
Furthermore, Respondent requests
that
this
Board
not
strike any
other portion of
Respondent’s brief that refers
to
Mr.
Thomas’
experience in
geology or hydrogeology because
such statements are amply supported by the record.
3.
Mr.
Nickodem
has
been
involved
with
at
least
50
landfills
and
transfer
stations, including at least eight transfer stations.
Respondent admits that it incorrectly asserted that Mr. Nickodem has been involved with
50 waste transfer stations.
That statement should have
read:
“Mr. Nickodem has been involved
with
at
least
50
solid
waste
landfills
and
transfer
stations.”
Despite
this
minor
error,
Mr.
Nickodem’s testimony squarely indicates that he has wide experience with a number of transfer
stations.
Co-Petitioners
misstate
the
evidence by
suggesting
that
Mr.
Nickodem
has
on1y
been
involved with
six
transfer stations based
on the
list attached
to
Mr. Nickodem’s
resume.
Co-
Petitioners’ contention is unfounded because Mr. Nickodem explained that the list included in his
resume was not complete.
(C.00215, p.
100).
Mr. Nickodem testified that he had worked on the
design
and
operations of other transfer stations not
listed,
and
specifically
identified two
such
other transfer stations.
(Id.)
Co-Petitioners
also erroneously state that Mr.
Nickodem was
only
the engineer on two
facilities; however, he
specifically testified that there were at least two other
transfer stations that
he
designed in
Wisconsin.
(Id.; see
also
C.00214,
p.
5).
Moreover,
Mr.
Nickodem
testified
that
as
an
engineer
for
three
waste
companies
operating
waste
transfer
stations, he had a unique perspective on the actual operation ofsuch stations.
(C.00214, pp.
5-6).
Therefore,
Respondent requests that instead of striking the statement that Mr. Nickodem
was
involved
with
50
transfer
stations,
Respondent
requests
that
this
tribunal
amend
that
statement to
indicate that
Mr.
Nickodem had
“involvement with
50
pollution
control facilities,
including landfills and transfer stations.”
4.
The
McHenry
County
Board
clearly
found
the
objectors’
witnesses
more
credible.
Co-Petitioners erroneously suggest
that the McHenry County Board made no
credibility
determinations
simply because the Board
did
not
specifically state which
witnesses it believed
and disbelieved.
However, therewas
no need for the McHemy County Board to do so because it
was sufficient for the County Board to
find that the criteria set
forth in section 39.2(a) ofthe Act
had not been
met.
See E & E Hauling,
Inc.
v. Pollution
Control Board,
451
N.E.2d
555, 577-
578 (2d Dist.
1983) (explaining that a
local hearing body does not have to indicate specific facts
upon which it made its decision).
By finding that the Applicant failed to satisfy criteria (ii),
(iii),
and (v), the County Board
must
have
determined that
the
Applicant’s
witnesses
were
not
credible with
respect
to
their
opinions as to those
criteria, as the Applicant’s experts specifically testified that
those particular
criteria had been met.
(C.00179,
pp.
14,
42;
C.00183,
pp.
47-48, 67-68;
C.00179, p.
43.
On the
other
hand,
the
objectors’ witnesses
specifically
testified that
those
criteria had
not been
met.
(C.00188, pp.
50-51,
C.00189, p. 61, C.00215, p.
54,
C.00218, p.
79; C.00205, p.
65,
C.00208, p.
89 C.00189, pp.
9-10; C.002l5, p.
55;
C.00218, p.80.)
Consequently, it is logical to assume that
because the County Board came to the same conclusions as the objectors’ witnesses, the County
Board
found
those
witnesses
to
be
more
credible
and
more persuasive
than
the
Applicant’s
witnesses.
Discussions of credibility, as the other matters described above, are matters ofargument,
which are improper to strike.
In any event, Respondent requests that no statements regarding the
credibility of witnesses be
stricken from
Respondent’s Brief,
as those
statements are supported
by the record as well as the County Board’s conclusion to deny siting approval.
5.
The
McHenry
County
Board
appropriately
considered
Lowe’s
lack
of
operating experience.
Co-Petitioners
assert
that
the Mdllenry
County Board
was not able to
consider Lowe’s
lack
of
operating
experience
in
determining if
criteria
(ii)
and
(v)
were
fulfilled.
However,
section 39.2(a)
specifically
allows
the County Board to
consider
Lowe’s
lack of experience,
as
the
unnumbered
criterion
allows
the
Board
to
consider
as
evidence
“the
previous
operating
experience
of the applicant.”
415
ILCS
5/29.2(a).
Clearly,
the
fact that the Applicant
had no
previous operating experience could be considered by the Mdllenry County Board.
Furthermore,
Co-Petitioners
incorrectly assert
that
there is
no
evidence
that the County
Board
considered Co-Petitioners
lack of experience in
reaching
its
conclusions with
respect to
criteria (ii) and
(v).
This
argument,
however,
is
nonsensical,
as
every member
of the
County
Board agreed that it “considered as evidence the previous operating
experience ofthe applicant
and
the past record of convictions or admissions ofviolations of the applicant when considering
Criteria
(ii) and
(v) of 415
ILCS
5/39.2(a).
(C.07244,
pp.47-SO).
Because Lowe
had never
operated a
landfill or transfer station before, the County Board must, therefore,
have considered
Lowe’s “lack of operating
experience,”
a
factor which could appropriately be
considered under
the unnumbered criterion.
Finally,
Co-Petitioners
disingenuously
assert
that
Respondent
introduced
evidence
of
Lowe’s lack of experience “for the first time in its brief on appeal.”
This
is
clearly not the case,
as all of the evidence of Lowe’s lack of experience was directly contained in
the record and
the
transcripts of the
local
siting hearing.
Therefore,
Respondent did
not present
evidence for the
first time in its brief to this Court, as improperly argued by Co-Petitioners.
Accordingly, Respondent requests that no statements regarding Lowe’s lack ofexperience
be stricken from Respondent’s Brief, as those statements are amply supported by the record.
6.
Respondent incorrectly labeled McHenry County Defenders as an objector.
Respondent
admits
that
it
erroneously
listed
the
McHenry
County
Defenders
as
an
objector
and submits that it did not do so to mislead this Board.
Rather, it was purely a mistake.
As
pointed
out
by
Co-Petitioners,
there was no
distinction between
objectors
and
petitioners
when
the
parties
signed
up
to
participate
in
the
hearing,
and
Respondent
admits
that
it
erroneously labeled the
McHenry County
Defenders
as
an
objector
when,
in
fact, that
group
should have been labeled a participant.
Therefore,
R-espondent--does--not—object—to--the--Board—striking—the--McHenry--Count-y
Defenders from the list of objectors named.
WHEREFORE,
Respondent,
County
Board of McHenry County,
Illinois,
respectfully
requests
that
this
Board
deny
Co-Petitioners
Motion
to
Strike
as
it
contains
inappropriate
argument.
In
the
event
that
this
Board
does
not
deny
Co-Petitioners’
Motion
outright,
Respondent requests that this Board:
1.
Not strike any portion ofRespondent’s brief that refers to Mr.
Thomas’ experience
in geology or hydrogeology;
2.
Amend
Respondent’s
statement
regarding
Mr.
Nickodem’s
experience
with
transfer stations to say that Mr. Nickodem had
“involvement with 50 pollution
control facilities,
including
landfills and transfer stations.”;
3.
Not
strike
any
statements
regarding
the
credibility
of witnesses
contained
in
Respondent’s brief
and
4.
Not
strike
any
references
regarding
Lowe’s
lack
of
experience
contained
in
Respondent’s brief.
Dated:
September
~
,
2003
Charles F. Helsten
Heather K. Lloyd
HINSHAW &
CULBERTSON
100ParkAvenue
P.O. Box
1389
Rockford, IL 61105-1389
815-490-4900
Respectfully
OF
ofits
Attorneys
70376058v1
830017
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions ofSection 1-109 ofthe Illinois Code ofCivil
Procedure, hereby
under penalty
of perjury
under the laws of the United States of America,
certifies
that
on
9/
Ri
,
2003,
a
copy of the
Respondent County
Board
of
McHenry
County,
Illinois’
Response
to
Co-Petitioners’
Motion
to
Strike
Portions
of
Respondent’s Brief,
served upon:
David McArdle
Zukowski, Rogers, Flood
& McArdle
50 Virginia Street
Crystal Lake, IL
60014
Dorothy M. Gunn
Bradley Halloran
Illinois Pollution Control Board
James R.
Thompson Center
100 W. Randolph St., Ste.
11-500
Chicago, IL
60601
By
depositing
a
copy
thereof,
enclosed in
an
envelope
in
the United
States Mail
at
Chicago,
Illinois, proper postage prepaid, before the hour of5:00 P.M., addressed as above.
H1NSHAW & CULBERTSON
100 Park Avenue
P.O. Box
1369
Rockford,IL
61101
(815)
490-4900
70376250v1
830017

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