ILLINOIS POLLUTION CONTROL
BOARD
December 17, 1992
CITIZENS AGAINST REGIONAL LANDFILL,
)
)
Petitioners,
PCB 92—156
v.
)
(Landfill Siting)
)
THE COUNTY BOARD OF WHITESIDE COUNTY
)
and WASTE MANAGEMENT OF ILLINOIS,
INC.,
)
)
Respondents.
ORDER OF THE BOARD
(by B. Forcade):
On December
16,
1992 after the regular close of business,
the Board received’ a facsimile copy of a 15 page document
purporting to be an “Emergency Motion of the Petitioners to
Require the Attendance of William Barrett For Deposition and at
Hearing; Motion for Reconsideration and Motion for Continuance of
Hearing.”
1
The document was not “filed” with the Board.
The Board’s
procedural rules specifically state how filing is to occur:
Section 101.102
Filing Of Documents
a)
Documents
and
requests
permitted
or
required
to
be
filed
with
the
Board
or
its
Clerk
shall
be
addressed
and mailed to or filed with the Clerk at 100 West
Randolph Street, State of Illinois Center, Suite 11-
500,
Chicago, Illinois 60601.
Filing,
inspection, and
copying of documents may be done in the Clerk’s office
from 8:30 a.m. to 4:30 p.m. Monday through Friday,
except for national and state legal holidays.
The
Board offices are open from 8:30 a.m. to 5:00 p.m.
Monday through Friday, except for national and state
legal holidays.
b)
Filings received after 4:30 p.m. will be date-stamped
the following business day.
c)
Documents may be filed with the Clerk by certified,
registered, or First Class mail,
by messenger service,
or personally at the Board’s Chicago office.
Filing by
electronic transmission, such as telefax machine or
computer modem, will not be accepted1 except when
s~ecificallvrequested by the Board.
(Emphasis Added)
The Board did not request. this filing.
0138-0139
2
The Board on its own motion specifically accepts the
emergency motion received on December .16,
1992 as a filing in
this matter due to the particularly unusual circumstances
involved.
The Board accepts such filing, and is acting on the
filing without benefit of a response, to prevent undue delay and
material prejudice to the Board’s ability to timely complete
hearings and issue a decision prior to the February 4,
1993,
statutory decision deadline. See 35 Ill.
Adm. Code 101.241
(b).
The Board is substantially distressed by the Petitioner’s
failure to read, comprehend,
and comply with the Board’s
procedural rules regarding practice before the Board.
The role
of the Board and its hearing officer, motion practice, and filing
requirements are all clearly delineated.
Petitioner’s future
failure to comply will be at his own peril.
Nonetheless, the Board believes it remains appropriate to
deal With the substance of the claims advanced in the motion.
In
paragraph
(d) of his “Affidavit in Support of Motion”, Mr. Hudec
states:
That your affiant has received information to
substantiate that Attorney William Barrett’s fees for
these Services negotiating
a contract with Waste
Management and Whiteside County relative to siting the
subject landfill) exceed $60,000 and were not to be
paid until such time as~the County had approved both
the contract between Wbiteside County and Waste
Management of Illinois,
Inc., and had received siting
approval from the County.
Other portions of the pleadings state that Mr. Barrett was the
hearing officer for the proceeding below, and presently is
counsel of .record ~or Whiteside County.
Mr. Hudec asserts these
facts constitute sufficient demonstration of potential lack of
fundamental fairness below to justify the discovery deposition of
Mr. Barrett.
Mr. Hudec has complicated the Board’s deliberations by not
describing the information he has received or providing the Board
with copies of the information asserted in paragraph
(d)
above.
However, the Board believes that this statement, under oath,
provides an adequate basis to justify exploration, by discovery,
of the information Mr. Barrett may possess regarding his role and
compensation in such contract.
Consequently, the Board specifically vacates the protective
order entered by the hearing officer pertaining to testimony by
Mr. Barrett.
The Board notes that this new information was not
before the hearing officer at the time he issued his protective
order.
As a result, the Board is vacating the order based upon
new information, not reversing the hearing officer. The Board is
3
not reversing the hearing officer order because nothing in the
record indicates it was in error based upon facts
known
at
the
time it was issued.
The Board orders the deposition of Mr.
Barrett be allowed for a minimum amount of time determined by the
hearing officer, presumably not more than two hours, tomorrow
morning at the time scheduled for the beginning of the hearing in
this matter.
At the conclusion of the deposition, the hearing
officer shall convene the regular hearing.
The decision of
whether
to
require
or
admit testimony by Mr. Barrett at hearing
is left to the discretion of the hearing officer, based upon his
evaluation of the deposition.
Citizens Against Regional Landfill (“CARL”) also requests
the Board to reconsider its order of December 3,
1992 striking
Section 1 of the petition.
Section
1 challenged the jurisdiction
of the County Board in reviewing the landfill siting application.
CARL
notes that the attorney representing it in this matter was
not a participant at the evidentiary hearings.
CARL
asserts that
it sought a copy of the record from the County Clerk.
CARL
contends that this request was not complied with.
CARL states
that a conference was conducted by the hearing officer on
November 25,
1992, where the failure of the County to provide the
petitioner with the record was addressed.
CARL contends that at
this time the attorney for petitioner was instructed to review
the record at the Pollution Control Board and that Waste
Management’s motion would remain pending until the petitioner had
access to the record.
The Board notes that
CARL
has not raised any facts or
arguments addressing the jurisdictional issue to support a
reconsideration of the Board’s prior order.
The allegations made
by
CARL
center around procedural matters and access to the
record.
The Board. notes the WMI’s motion for dismissal was
before the Board and not before the hearing officer.
The Board’s
procedural rules prohibit the hearing officer from ruling on a
motions to dismiss or motions to strike.
(Section 101.247)
Section 101.241 allows for a response to a motion to be filed
within
7 days.
If no response is filed within
7 days, such party
shall be deemed to have waived objection to the granting of the
motion.
(Section 101.241)
CARL
did not file a response to the
motion or a request for additional time in which to file a
response with the Board.
While the Board will not modify its prior order, petitioner
is free to make an offer of proof of any necessary factual
material pertaining to this issue at hearing.
Additionally,
petitioner may present facts pertaining to any argument that the
hearing officer’s instruction misled Mr. Hudec regarding the
response to the motion to dismiss. See paragraphs
10—12 of the
motion.
Regarding
the
motion
to
continue,
the
Board
denies
the
Ol38_o,~i
4
motion insofar as it would require cancellation of the presently
scheduled December 18,
1992, hearing.
The hearing officer is
free to continue the hearing on the record from day to day as
justice requires, notwithstanding any prior scheduling orders.
The Board notes that prompt conclusion of this matter is of
paramount importance.
The present decision due date is the
February 4,
1993, regularly scheduled Board meeting.
The Board
lacks authority to extend that statutory deadline.
Only Waste
Management can extend it.
The Board instructs the Clerk of the Board to provide copies
of this order to all parties by facsimile transmission in
addition to the regular service on the parties.
IT IS SO ORDERED.
J. Theodore Meyer voted present.
I, Dorothy M.
Gunn, Clerk of the Illinois Pollution Control
Board, hereby c
tify that the above order was adopted on the
77’~day of
______________,
1992,
by a vote of
_______
Illinois Pol,
Control Board
0138-01142