RECEIVED
CLERK’S OFFICE
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
AUG
2 82003
STATE OF ILLINOIS
CITIZENS AGAINST
LANDFILL EXPANSION,
)
Pollution
Control Board
)
Petitioner,
)
)
vs.
)
No.
PCB 03-236
)
AMERICAN DISPOSAL SERVICES OF
ILLINOIS,
)
INC. and LIVINGSTON
COUNTY BOARD,
)
LIVINGSTON COUNTY,
ILLINOIS,
)
)
Respondents.
)
NOTICE OF
FILING
To:
See Attached Service List
PLEASE
AKE NOTICE that on August 27, 2003,
I caused to be filed by First Class
Mail with
the
Illinois Pollution
Control Board
an original and
four copies of the attached
Respondent,
Livin:gston
County
Board’s
Livingston
County,
Illinois,
Response
to
Petitioner’s Motion to Compel by placing
said
material
in
the
U.
S.
Post
Office,
Hawley
Street,
Mundelein, IL 60060
LIVI
STON COUNTY BOARD
Larry M(~
PROOF OF SERVICE
The undersigned, under oath, states that on August 27, 2003, he served a true and
correct
copy of the
foregoing
Notice of
Filing together with
the
attached
Respondent,
Livingston County Board’s, Livingston County, Illinois, Response to Petitioner’s Motion to
Compel, upon the following persons, atthe addresses indicated, byfirst class mail and that
priorto 3:00 p.m. on August 27, 2003, said Response to Petitioner’s Motion to Compelwas
sent by email
to the
Hearing Officer and counsel for the
parties, at the email
addresses
indicated:
Dorothy M. Gunn, Clerk
Illinois
Pollution Control 3oard
James
R.
Thompson Center
100W Randolph Suite 11-500
Chicago IL 60601-3218
George Mueller
George Mueller PC
501
State Street
Ottawa
IL 61350
gmueJIer~mchsi.com
Carolyn
K. Gerwin
705 South Locust St
Pontiac
IL 61764
gerwin~mchsi.com
Bradley P.
Halloran,
Hearing Officer
Illinois Pollution Control Board
James R.
Thompson Center
100W Randolph, Suite
1 ‘1-500
Chicago,
IL 60601
halloran@ipcb.state.il.us
Douglas
E.
Lee
Ehrmann Gehibach Badger & Lee
P0 Box 447
Dixon
IL 61021
lee~egbbI.com
Claire A.
Manning
Posegate & Denes,
P.C.
111
N Sixth Street
Springfield,
IL 62705
Claire©posengate-denes.com
C.
Thomas
Blakeman
Blakeman,
Schrock & Bauknecht,
Ltd.
307 West Washington Street
Pontiac,
IL 61764
tom©sbsltd.ccrn
,~.
~K
Subscribed and sworn to before me, a
Notary Pu
his
~
day of August, 2003.
C.
Thomas Blakeman
Attorney at Law
307 West Washington Street
Pontiac, IL 61764
Telephone:
815-844-6177
Fax: 815-842-3288
Larry M. Clark
Attorney at Law
700
N Lake St, Suite 200
Mundelein,
IL 60060
Telephone: 847-949-9396
Fax: 847-949-9427
OFAC~ALSEAL
~.
STEPHEN
R KOVAC
~
NOTARY
PUBUC,
STATE OF IWNO~S
~
~
R~C~IVED
CLFRK3S
OFFICE
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
AUG
2
82003
STATE OF ILLINOIS
Pollution
Control Board
Citizens Against Landfill
Expansion,
)
Petitioners,
)
)
vs.
)
PCB 03-236
)
(Pollution
Control Facility Siting Appeal)
American
Disposal Services of Illinois, Inc.,)
Respondent.
)
)
and
-
)
)
Livingston
County Board, Livingston
)
county,
Illinois,
)
Respondent.
)
RESPONDENT LIVINGSTON
COUNTY BOARD’S, LIVINGSTON COUNTY
ILLINOIS.
RESPONSE TO PETITIONER’S MOTION TO COMPEL
NOW C OMES, the
L
ivingston
County B oard, Livingston County, Illinois,
by
its
attorneys,
Larry
M.
Clark and
C.
Thomas
Blakeman,
and for
Response to Petitioner’s
Motion To Compel, states ss follows:
1.
That Petitioner alleges that the Livingston County Board should
be required
to answer Interrogatory Questions 1-4 because such, questions are alleged
to bear upon the
issue of fundamental fairness of the Petition (sic).
2.
The issue
of fundamental fairness
goes
to the
fact of whether the public
hearing
was
conducted
in
such
a
manner
that
the
Petitioner
and
other
interested
parties
h ad a n
o pportunity to participate
i n s uch
h earing
a nd
whether the County
Board Members were
biased in reaching their decision.
3.
None ofthe questions posed in Interrogatories
1-4 go tothe hearing process
itself.
Rather, each and every interrogatory was
posed to go into the
mind
of the
County Board
members
so
as to.determine what they reviewed
or
“studied” prior to
their vote on the
merits of the
application for
local siting
approval.
Respondent
will
address
each
Interrogatory to
illustrate
said
purpose.
4.
Interrogatory No. I
asks for the
Board Members to identify each document
they reviewed (“read
or studied”) prior to their vote.
Clearly this question
is
Pagelof7
an
attempt to determine what each
Board
Member relied
upon
in
making
their decision(s).
This
line
of inquiry
is
patently
improper.
See
Ash
v.
Iroquois County Board, PCB 87-29 (1987)where the Pollution Control Board
states in response to a question to the County Board Members as to whether
the “County Board Members ‘had read the transcript’.
Quite simply put, that
question should never have been asked.
There exists a substantial body of
case law si~pportingthe
principle
that one
cannot
invade the
mind of the
decision maker.”
5.
Interrogatory
No.
2
similarly
attempts
to
ascertain
when
and
where
the
material wa3 reviewed.
It again simply attempts to invade the
mind of the
decision
maker.
Furthermore
it
cannot and
wilt
not
lead to
any relevant
information.
6.
Interrogatory
No.
3
is
an
attempt
to
ascertain
which
Board
Members
attended the public hearings.
The basis
upon which each
County
Board
Member
makes
their
decision
is
not
subject
to
inquiry.
Rather
it
is
appropriate onlythat each Board Member have an opportunity to review the
transcript and the
record,
not whether or how they did
so.
7.
Interrogatory
No.
4 is a similar question
in that it can not lead to any relevant
information other than to
be used to argue that the Board
Members made
their decisions on one or more basis that the Petitioner does not agree with.
Any answen to these four interrogatories
cannot
be used.
8.
Petitioner a’so
request that the
Livingston
County
Board
be
required
to
answer Interrogatory No.
5.
The Livingston County Board, through
its local
siting ordinance has provisions under which they may create a Independent
ReviewTeam.
Said
Independent Review Team is described
in more detail
in
the Siting Ordinance,
but its
name is
indicative of its function.
It has an
independent nature in that it does
not answer or respond to the
Livingston
County
Board directly,
but rather only doe
so through
a
recommendation
made to the
Board after all of the testimony, evidence, and public comment
has been
received.
9.
Interrogatory
No.
6
is overly broad
in that it states
no time frame for which
the
question
is
posed.
Clearly
Petitioner’s
argument
is
that t he
County
approved the
siting Petition because they were afraid of the City of Pontiac
annexing
the
subject
property.
However,
the
County
Board
has
24
members,
each
of
which
may
or
may
not
have
discussed
the
issue
of
possible annexation at any time over their period of incumbency or before!
In
order
to
make
any
claim
of
such
failure
to judge
the
merits
of
the
Application Petitioner must narrow its question
in order to allow an answer.
Petitioner continues to request an answer to this
Interrogatory despite the
factthatAmerican Disposal has provideda document that demonstratesthat
Page 2 of
7
the County Board was
put on
notice that American Disposal would
not be
seeking annexation
to the City of Pontiac.
Petitioner is
guilty of the
same
conduct
that
she
accuses
the
County
of
in
that
she
seeks
answers
to
questions that she has the answer for, at considerable time and effort to the
County
Board Members.
10.
In
seeking
an
answer
to
Interrogatory
No.
8,
Petitioner
is
requesting
information
that
is
not
relevant
to
an
issue
of
bias
or
prejudice
by
the
Livingston County Board.
This is a factual issue only and the public hearing
has
been
closed for
all facts
relating to the
criteria.
The sole
purpose of
discovery atthis juncture is to determine whether the publichearing was held
in
a
fundamentally fair
manner
and
whether
or
not
the
County
Board
Members were biased
in any manner.
This question
does
not and will
not
lead to any such information.
It is clearly posed only in
an attempt to inject
certain factual information into the
record, which has already been closed.
11.
Interrogatories 9,
13,
and
14 were argued together and will be responded to
together as well.
Again, each question clearly attempts to enter the
mind of
the decision makers, the County Board Members.
It goes even further in that
it asks the ultimate question as to
how. each County Board Member would
vote
in different scenarios.
This
is
patently improper as discussed
above.
Furthermore, answersto these questions would not further any argument as
to alleged bias or prejudice on behalf of the Board Members.
The record is
clear that the
County
will
receive
additional
host fees
if their approval
is
upheld.
No
answer to these interrogatories will
lead to
additional relevant
information.
12.
Interrogatories 10 and 29 request information regarding
meetings that may
have occurred since January I, 2001
in regard to hostfees or the expansion
of the
landfill.
The County originally refused
such
questions
in
that they
occurred outside of the time-frame during which an Application for local site
approval was pending.
The Honorable Hearing Officer has indicated thatthe
PCB rulings may have changed in
regard to the
prior law since the
ruling in
the
Kankakee case last
January,
2003,
(PCB
03-31).
This
PCB
opinion
in
som
eregards to
es-raised-h~i-this-appeak--1n-the-Kankakee
case, the Petitioners raised issues offundamental fairness because the prior
contacts
between
the
parties.
The
PCB
apparently
agreed
that
such
information may be admitted, although they did indicate that the weight to be
allotted to such information may be slight.
This case attempts to
request
of
each
County
Board
Member
information
regarding
each
and
every
contact.
Such discovery would be difficult and onerous to the County in that
the
Board
consists of 24
members.
If the Hearing Officer
is so inclined to
order answers to such
questions, the
County
would
request that only the
members
who voted
in
favor of the
Application
be
required
to
answer,
presumably
in
that
the
remaining
members
who
voted
against
the
Page
3 of
7
Application, have subsequently dies or abstained from voting would not lead
to information not already held by Petitioners.
13.
Interrogatory No. 29 not only asks for the County Board Members to answer
certain
questions,
but
also
requests
the
Livingston
County
Board’s
“consultants” to
respond to
contacts with American Disposal
between the
pendency
of
the
Previous
Application
and
the
Application.
Any
such
responses would appearto yield little additional information to the argument
of biasorfundamentallyfair hearings. The only “consultants”thatthe County
has retained
is the
Independent
Review Team that had
no contact with the
County Board Member until they presented their recommendations to the Ag
Committee.
None of the
members of the Independent Review Team voted
or communicated with the County Board members regarding the Application
until they for~varded
their final recommendation to the Ag Committee.
14.
lnterrogatori~s
11,
12, and 18 requestcertain information regarding contracts
between the Board Members and American Disposal.
Although the County
objected to Interrogatory No.
11, the question was answered anyway
in that
all
such
agraernents
are
part
of the
record.
literrogatory
No.
12
was
responded t’
with the answer “None”.
What does Petitioner desire further?
Finally Interrogatory No.
18 asks the
County Board Members to describe all
“interests” that a County
Board Member may have with
a contractor doing
workfor American Disposal.
Such request is not limited in any manner.
For
instance,
if
a County Board Member buys gravel from
the same vendor as
supplies gravel to the landfill, he or she has a “relationship” with a third party
contractor.
How is each individual County Board Member supposed to know
who
does
business
with
the
Livingston
Landfill
it~
an
amount in excess of
$5,000.00 per year?
Furthermore it is impossible to venture a guess as to
who may be doing business with the Livingston Landfill in the future.
County
Board
Members
are
not clairvoyant.
.Many.such
relationships
may exist
without the ~3oard
Member even
being aware of such a “relationship”.
This
Interrogatory
is
overly
broad
and
onerous
in
that
requests
substantial
informatio.n
with
little
likelihood
of
such
infomiation
leading
to
relevant
information.
The
County
would
not
object to this
question
if
it could
be
narrowed
so as limit innocuous contacts,
but as written, it is overly broad.
15.
Interrogatory No.
15 is a requestforinformation regarding ownership ofland
within
2
miles of the
landfill.
Counsel
argues that this
question
is relevant
because it may show that most County Board Members do not own property
within
2 miles of the landfill and therefore approval of the Application will not
directly impact their lives if statutory criteria were riot met.
However Counsel
misinterpretsthe duty and responsibility ofthe Board Members.
They are to
vote on the merits of the Application and are presumed to do so.
Counsel
actually attemptsto argue that ifthey own propertywithin 2 miles, theywould
be more inclined to vote againstthe Application.
Such a contortion ofthe law
Page4of
7
would be grossly improper. Answering this question, using Petitioners basis,
would
not lead to any relevant information.
Indeed,
it would appear that
County Board Members owning property within 2 miles should
not have been
permitted
to
vote,
under
Petitioner’s logic,
because
they would
consider
things
other
than
the
record
and
that
County
Board
Members
owning
property beyond
two
miles should not vote because the landfill has no direct
impact upon their lives!
16.
Interrogatory 17 requests information regarding independent environmental
investigations performed
by the
Livingston County
Board.
It does
not limit
in time or nature the type of investigations requested.
Petitioners Motion To
Compel does
not adequately describe the
reasons
such answer should
be
/
required.
Petitioners
actually
argue
that
if
such
an
“independent
environmental
investigation” was
performed,
it could
support the
Boards
decision.
Even if such an investigation was done,
it could
not support the
Boards d ecision
i n that it would
h ave contained
i nformation o utside the
record.
Counsel has not indicated why or how this interrogatory would lead
to relevant information.
17.
Interrogatory
No.
23
requested
the
process
by
which
the
County’s
Independent
Review
Team
was
formed
and
instructed.
The
County
responded
by indicating that it was formed and instructed
pursuant to the
Siting Ordinance,
it is directly responsive to the question posed.
It indicates
that the Independent Review Team is to conduct a review of the Application
“independentfrom the Agricultural Committee and the County Board”.
Such
Siting Ordinance has been made a part of the
record.
If Petitioner wanted
additional information other than what was directly asked, such specific
information should
have
been specifically requested.
18.
Interrogatory
No.
25
requested
information
related
to
the
Independent
Review Teams “working
on matters
relating to
Livingston
County
Landfill”
from
1995 to
the
present.
The
County
responded
that
members of the
Independent
Review Team
continue
to
be
employed
by the
County
with
regard to this Landfill. Although, based upon
PCB 03-31, the County would
state further that Charles T. Schopp has and continues to be employed
by
the
County
in
his
regular capacity.
Gary
J.
Deigan
did
not
supply
any
services to the County prior to the Application for local siting approval for the
Streator Landfill and continues to provide services to the County in
a variety
of
matters.
Larry
M.
Clark
provided
legal
services,
to
the
County
in
negotiation with
American
Disposal
for an
amendment to
the
Host
Fee
Agreement dated February
15, 2001,
and continues to provide services to
date.
Page
5
of
7
19.
Interrogatory No. 26 is a hypothetical question that cannot be answered with
any degree of accuracy.
What members of the
Review Team may do in the
future
is simply not
relevant.
20.
Interrogatory
No.
27
cannot
be
answered
by
the
County.
It
is
more
appropriately directed to American
Disposal.
21.
Interrogatory
No.
28
cannot
be
answered
in
that
it
calls
for
certain
conclusions.
Livingston
County
reiterates
its
response
to
the
original
question and further states that this type of information
is not calculated to
lead to relevant information.
22.
Interrogatory
No.
30
requests
“detailed
basis
for
denials
to
Petitioner’s
Requests forAdmissions.
Livingston County respectively suggests thatit did
supply a basis for said denials when
responding to same.
23.
Interrogatory No.
31
does
not seek additional responses.
24.
Notice
To
Produce
No.
7
requests
a
broad
spectrum
of
information.
Livingston
County has
indicated
that due to a lack of specificity,
it cannot
answer such
a
request.
Should
it
be
narrowed
down,
the
County
could
attempt to provide responses to this Notice To Produce.
25.
Notice To Produce No.
13 again attempts to invade the mind of the decision
maker.
The
information solicited not only would
serve to determine which
Board
Member
checked
out
certain
information,
but
has
the
audacity to
request
handwritten
notes,
presumably of the
Board
Members.
Such
an
inquiry cannot
be made in that it invades an
impermissible area.
26.
That with
regard to lnterrogatories Nos. 1,3,4,9, 10,11,12,
13,14,18 and
29 and Notice to Produce
No.
7,
Petitioner states that it
is concerned
with
whether
Members
of the
Livingston
County
Board,
sitting
as
the
siting
authority who voted
in favor of the Application pre-judged
or failed to judge
whether the i4pplicant had satisfied the statutory criteria and/orwhether any
of these members of the
Board had
a bias,
prejudice or financial interest,
and seeks specific information from each ofthe 24 Board Members.
That to
the
extent
Respondent
may
be
required
to
provide
information
from
the
individual
Board Members, that such inquiry be limited only to those. Board
Members
who
voted
in favor of
the
siting
application
who
are
still
alive.
Excluded would be the 4 Board Members who voted againstthe Application,
the
Board
Member who abstained, and the
I
Board Member who
passed
away on May 21, 2003, Ronald Flessner, and his replacementto the Board,
Ronald L. Deany, who was appointed to the Board in June of 2003, after the
vote on the siting application occurred on May 15, 2003.
Certainly, Petitioner
can have no quarrel
or
demonstrate any impropriety as to those Board
Page 6of
7
Members who voted against the Application or abstained.
Also excluded
from any individual inquiry would be those Board Members whose terms of
office
expired on
November 30,
2002, prior to the date the Application was
filed on December 4,2002, and who are no longer on the
Board and who did
not vote on the Application on May 15,
2003.
Respectfully submitt~cI,
C. Thomas
Blakeman
Attorney at Law
307 West Washington StF3.~t
Pontiac, IL 61764
Telephone: 815-844-6177
Fax: 815-842-3288
LIVINGSTON COUNTY BOARD,
Livingston County, Illinois
Larry M. Clark
Attorney at Law
700 North
Lake Street,
Suite 200
Mundelein, IL 60060
Telephone:
847-94L~-9396
Fax:
847-949-9427
One of
Page 7 of
7
