RECEIVED
BEFORE THE ILLINOIS
~
QFPrr~r~
POLLUTION CONTROL BOARD
IWCi
2
6
2003
Citizens Against Landfill Expansion,
)
STATE OFIWNOIS
Petitioners
)
Pollution
Control Board
)
v.
)
)
American Disposal Services ofIllinois, Inc.
)
No. PCB 03-236
Respondent,
)
)
Bradley Halloran,
and
)
Hearing Officer
)
Livingston County Board, Livingston County,
)
Illinois, Respondent
)
PETITIONER’S MOTION TO COMPEL LIVINGSTON COUNTY BOARD
Petitioner Citizens Against Landfill Expansion, an unincorporated
association ofresidents of Livingston County (hereinafter “Petitioner” or “CALE”),
through its attorney Carolyn K. Gerwin, moves for an order to
compel Respondent
Livingston County Board (hereinafter “County Board”) to respond to Petitioner’s
Interrogatories, Requests forAdmission and Requests for Production of Documents,
which were served on August 22, 2003
(hereinafter collectively referred to as
“Petitioner’s Discovery Requests), as set out moreparticularly below.
Petitioner also
requests sanctions in the amount of$1,500 for the County Board’s failure to comply with
the discovery process, which necessitated this motion and presented a hardship to
Petitioner under the circumstances of the particularly condensed discovery schedule
ordered in this matter;
Petitioner’s Discovery Requests must be relevant to matters
at issue in the instant
Petition for Review or be reasonably calculatedto lead to
relevant information.
In its
Petition for Review, Petitioner has stated the following claims:
(a) that the County Board
lacked jurisdiction to conduct the siting hearing due to the failure ofApplicant to
give
required statutory notice under Section 39.2(b); that the process was fundamentally unfair
based on the following:
(1) upon information and belief, many members ofthe siting
authority pre-judged or failed to judge whether the Applicant had satisfied the statutory
criteria:
(a) due to fear that if the County Board did not approve ofthe application, the
City ofPontiac would annex the property in question and collect the host fees, andlor (b)
due to an overpowering desire to obtain the
$162 millionhost fee that was previously
negotiated, which figure included higherhost fees forthe existing landfill (almost double
the rate per ton) if the County Board approved an unspecified expansion (assuming such
expansion became final);
and (2) any such other bases offundamental unfairness as may
hereafter be discovered and established; and (c) that the following statutory criteria were
not met:
(a)
need; (b)health, safety and welfare; (c) minimization ofincompatibility and
property value impacts;
and (d) consistency with the County’s Solid Waste Management
Plan.
415
ILCS
5139.2(a)(i),
(ii),
(iii)
& (viii).
See Petition to
ReviewPollution
Control
Facility Siting Decision, pp. 2-4.
Petitioner is unquestionably entitled to
discovery on the
issues ofjurisdiction and fundamental fairness.
Petitioner also requested discovery
(mainly admissions) on facts relating to statutory criteria preparatory to developing
an
agreed statement offact on those issues, thereby streamlining the review process.
The
County Board refused to answer the vast majority ofPetitioner’s requests.
A copy of the
County Board’s response is attached hereto for ease ofreference.
Failure to Answer Interrogatories
The County Board,
through its attorneys Larry Clark and Thomas Blakeman,
objected to Interrogatories Nos.
1-4:
1.
With respect
to each Board Member, please identify all documents
relative to the proposed expansion ofLivingston Landfill reviewed by such Board
Member prior to the vote on whether to approve the Application.
For purposes of
this interrogatory, “review” shall mean read or study.
2.
When
and where was such review conducted?
3.
For each Board
Member, state whether they attended the hearings
held March 10-14, 2003, and state the times when he or she was in
attendance.
4.
For each Board
Member, state whether they attended the Ag
Committee meetings
regarding the Application that were held in May,
2003, and
state the times when he or
she was in attendance.
These interrogatories relate to the fundamental fairness prong ofthe Petition.
Except for Chairman Jeanne Rapp, each Board Member ultimately voted on whether to
approve the Application.
IfBoard Members failed to review the Application, failed to
attend the hearings, failed to review public comment, and/or failed to attend the meetings
regarding special conditions, such disinterest in the facts is evidence ofnon-judgment or
pre-judgment ofthe merits ofAmerican Disposal’s Application for Siting ofPollution
Control Facility dated December 4,2002 (hereinafter, the “Application”).
In their objections to the interrogatories, counsel for the County Board state that
they do not have to answer because “there
is no statutory or County ordinance
requirement that Board Members read or study the documents prior to voting on the
Application,” Answer to Interrogatory No.
1,
and similarly “there
is no statutory or
County ordinance requirement that Board Members attend the hearing, Answer to
InterrogatoryNo. 3.
Petitioner respectfully disagrees.
After twelve pages oftext listing
the extensive information required to be provided by the Applicant and filed as
part
of an
application, the siting ordinance states that “the
members ofthe Agricultural
Committee.
.
.
shall be responsible for reviewing the application, conducting the public
•hearing and making
a recommendation to the Livingston County Board on whether to
2
approve, approve with conditions, or deny the request for site location approval.”
Siting
•
•
Ordinance, Section B, para.3 on page
15.
Later, the ordinance states that “The
Agricultural Committee shall consider the record ofthe public hearing, reports submitted
by the Administrator ofthe Department ofZoning, and the findings offact and
conclusions oflaw submitted to it by the Hearing Officer and make a recommendation to
the Livingston County Board.”
~4.,
para.
14, pages 16-17.
Finally, the ordinance
requires that “the
County Board shall consider the record ofthe public hearing, reports
submitted by the Administrator ofthe Department ofZoning, the fmdings offact and
conclusions oflaw filed by all parties and shall make a determination concerning the
request for site location approval.”
j4., para.
15,
page 17.
Tn sum, the siting ordinance,
not surprisingly, indicates that the County Board must review the Application and related
materials.
Thus, the interrogatories are also highlyrelevant to the issues ofwhether the
Board followed the required procedures.
Counsel for the County Board state these interrogatories are an improper attempt
to “invade the mind ofthe decision maker.”
~
answerto Interrogatory No.
1.
review
this case.
However, as noted below, these interrogatories go to process, which is clearly
a permissible subject ofinquiry.
Furthermore, all claims that the decision makers pre-
judged or failed to judge the Application on the merits relate to some extent to the state of
mind ofthe decision makers, yet they are proper bases for reversal.
As such, the
interrogatories are clearly proper.
Counsel for the County Board also
appear to be arguing that identification of the
material reviewed by Board Members is irrelevant because applicable law allows Board
Members to vote on the Application even if they are ignorant ofthe facts contained with
the Application, elicited at the hearing, or set forth in any other documents.
That is a
legal argument more properly made in the County Board’s brief.
In addition, that
argument does not render the interrogatories irrelevant to the issue of fundamental
fairness, which is not confined to the question ofwhether the Board’s review complied
with the formalities set
forth in the ordinance.
For example, if Board Members reviewed
materials that they should not have, that would be relevant to the fundamental fairness
•
prong of the Petition.
Thus, the interrogatories are highlyrelevant to the issues ofnon-
judgment, pre-judgment, and fundamental fairness in general, and Petitioner is entitled
to
discovery on these issues.
Through its attorneys, the County Board also objected to, and refused to
answer,
Interrogatory No. 5:
5.
Identify each expert witness or potential
expert
witness retained or
consulted by LCB with respect to the Petition for Review.
This is a standard interrogatory.
Respondent American Disposal and Petitioners
asked this same question and both answered it.
Again, the County’s reference to what
they are required to do
is no excuse for failure to answerthe question.
A simple answer
of “none” would have sufficed.
Failure to
answer this question demonstrates the
County’s bad faith in not responding to
Petitioner’s Discovery Requests.
3
Through its attorneys, the County Board also objected to,
and refused to answer,
InterrogatoryNo. 6, claiming only that it is “irrelevant as to
any issue presented here for
review”:
6.
Describe all communications to, from or
among LCB (including its
members, agents, consultants and employees) relating to annexation or potential
annexation by the City of Pontiac of land at, near or extending toward Livingston
Landfill.
Far from being irrelevant, this request directly addresses Petitioner’s claim that
Board Members pre-judged or failed to judge the merits ofthe Application due to fear
that if the County Board did not approve ofthe application, the City ofPontiac would
• annex the property in question and
collect the host fees.
Again, failure to
answer this
question demonstrates the County’s bad
faith in not responding to Petitioner’s Discovery
•Requests.
For InterrogatoryNo.
8, Petitioner asked:
8.
Was the Livingston Alternative School located within 500 feet of
Livingston Landfill during the 2001-03 school years?
State when it was first
established at that location.
This interrogatoryrelates to
lack offoundation ofthe opinion ofAmerican
Disposal’s consultant on incompatibility.
He was unaware of this school,
which is
located extremelynear the existing facility.
Transcript, pp.
_____.
Contrary to the County
Board’s contention that “this interrogatory attempts to elicit information that could have
been obtained atthe local siting hearing,” Petitioner could not have done so.
It does not
have personal knowledge ofthese matters, the consultant had no knowledge ofthe school
whatsoever, and the County did not put on a single witness, so there was no opportunity
to examine or cross-examine any witness
on this issue.
For Interrogatories Nos.
9,
13,
and
14,
Petitionerasked:
9.
For each Board
Member, if
the
County did not receive any Host Fees
in connection with the expansion, would you have approved the Application?
Ifnot,
describe your grounds for disapproval.
13.
For each
Board Member, state whether you believe
that collection of
Host Fees from the expansion is necessary
or advisable in order for Livingston
County to achieve
a balanced budget without having to increase taxes.
14.
For each Board Member, describe any time when you recall any other
Board Members stating that he or she believed that collection of additional Host
Fees from the expansion was necessary or
advisable in order for Livingston County
to achieve a balanced budget without having to increase taxes
4
Counsel objected to these interrogatories on grounds that they were “improper
requests
for answers
to a hypothetical
question,” they were irrelevant to any issue on
appeal,” and they were “an attempt
to invade the mind ofthe decisionmaker.”
These
questions are both relevant to
issues in this appeal.
Petitioner has specified as one ground
for pre-judgment that the County Board had an overwhelming desire to collect the Host
Fee, regardless ofthe merits of the Application.
These interrogatories are clearly relevant
to
that issue.
Interrogatory No. 9 neatly slices host money—which is not grounds for
ignoringthe statutory criteria—out ofthe equation.
Answers to this questionwould
allow Petition to identify which Board Members were influenced by the money.
Similarly, Interrogatory No.
14
is intended to identify Board Members who couldbe
deposed or examined regarding possible pre-disposition ofthe Board.
Further discovery
or testimony could then establish whether potential receipt of the $162 million host fee
rendered Board Members apathetic as to whether the statutory criteria had been met.
address
invasion of
mind stuff!
Thus,
although the answers to
Interrogatory No.
14
might not be admissible in and ofthemselves,
they could lead to admissible evidence.
Through counsel, the County Board also refused to answer Tnterrogatories No.
10
and29:
10.
For each
Board Member, describe any meetings involving said Board
Member and American Disposal that occurred since January 1, 2001, other than
official meetings ofLCB or
committees thereof that were open to the public in
accordance with the Open Meetings Act and describe the substance
of
communications related to such meetings.
29.
Describe any communications or
meetings involving LCB and
American Disposal that occurred since January 1, 2001
relating to the Previous
Application, the Application, host fees, the proposed expansion or opposition to the
expansion, other than official meetings of LCB or
committees thereof that were
open to the public in accordance with the Open Meetings Act, and describe the
substance of any communications
related to such meetings, including
communications or meetings ofAmerican Disposal’s consultants and LCB’s
consultants that occurred between the pendency of the Previous Application
and the
Application.
•
Petitioner has requested information pre-dating when American Disposal
originally filed an Application for this project, which was filed in June 2002.
Counsel for
the Board claims that this interrogatory is irrelevant as to any meetings occurring prior to
December 4, 2002, which is when the current Application was filed.
In a meeting with
Petitioner’s representatives, American Disposal indicated it had met with virtually all the
Board Members prior to the June filing.
Such meetings could have had the result of so
influencing the Board Members in question that they pre-judged or failed to judge the
Application on its merits in accordance with statutory criteria.
Such discovery is
permitted under the Pollution Control Board’s decisionin
_____________
Kankakee
5
citation.
Similarly, InterrogatoryNo. 29
deals with communications between agents of
the Applicant and the County Board.
Petitioner is aware that members ofthe County’s
so-called “Independent Review Team” and American Disposal planned to meet sometime
between the filing ofthe first and second applications to discuss concerns the team had
regarding the proposed site’s hydrogeology and possibly other issues.
The Pollution
Control Board has opined that such discussions are supposed to be held in public on the
record.
get
cite
Petitioner is entitled to
discovery on those communications and any
similar communications.
Through counsel, the County Board also refused to answer Interrogatories Nos.
11,
12 and 18:
11.
Identify all documents
relating to any agreement, understanding,
contract or proposed
agreement between any Board Member and American
Disposal.
12.
Identify any payments, gifts, agreements, promises, services or
anything ofvalue provided by American Disposal to LCB (or
any ofits members,
agents, employees, attorneys or consultants) other than payments made to
Livingston County pursuant to the Host Agreement.
18.
Describe any interest, relationship, agreement or proposed
agreement
of any Board Member with any contractor that had, has or
will have any business
with respect to Livingston Landfill (other than de minimis contractors doing less
than $5,000 worth of business with Livingston Landfill in any given
year).
The County’s statement that agreements between the County Board (as a whole,
presumably) and American Disposal being in the Record on Appeal is unresponsive as
the interrogatory clearly addresses contracts between individual Board Members and the
Applicant.
The County has attached the Board Members’
statements ofeconomic
interest, but those statements may or maynot reflect all the agreements and/or gifts to be
identified.
American Disposal admits to having had a contract with County Board
Chairman Jeanne Rapp, see American Disposal’s answers to interrogatories, which
reportedly prevented her from commenting
on or participating in matters related to
the
landfill.
With regard to
Interrogatory No.
18, counsel brazenly claims that the
interrogatory is
irrelevant.
Petitioner is entitled to discovery on the issue of whether the
Board Members (including Mrs. Rapp, who abstained but participated in the process),
had a personal financial interest in continuance ofthe landfill operations.
These
interrogatories (combined with the document request related thereto) address issues of
bias, pre-judgment and non-judgment, and other issues relating to fundamental fairness.
The County Board’s response that these interrogatories are irrelevant demonstrates bad
faith.
Furthermore, the County’s counsel improperly failed to consult Board Members in
responding to anyofthe interrogatories.
See answer to Interrogatory No.
31
and
discussion thereofbelow.
Through counsel, the County Board also refused to answer Interrogatory No.
15:
6
15.
For each Board Member, identify any properties that you own or
have any other interest in that are located within two miles of Livingston Landfill.
Counsel objected to this interrogatory as irrelevant.
However, it is relevant in that
answers to
this interrogatorywill allow Petitioner to argue that the vast majority ofthe
Board would not expect to
be personally affected by approval of the Application, i.e., it
would not directly impact their lives if the statutory criteria were not met.
Again, this is
clearly relevant to fundamental fairness issues.
Through counsel, the County Board refused to answer Interrogatory No.
17:
17.
Describe any independent environmental investigation performed by
LCB relating to Livingston Landfill (i.e., other than
review of data supplied
by
American Disposal) and identify all documents relating thereto.
Counsel refused to
answer this interrogatory, stating only that “Respondent has
complied with the Livingston County Pollution Control Facility Siting Ordinance.”
This
is a legal
conclusion.
Again, whether the process set
forth in the ordinance was followed
is one factorto
be considered, but is not grounds for failure to respond to interrogatories
that relate to
fundamental fairness issues.
This non-response does not even state an
objection.
The interrogatory is relevant to the issue ofwhether the County Board pre-
judged or failed to judge the merits ofthe Application.
Ifthe Board had done such a
review, that would be evidence that could be used to
argue against Petitioner’s claims.
Petitioner is entitled to such information.
Ifno such investigation was done, a simple
answer of “none” would have sufficed.
NO.
19???
The County Board’s answer to Interrogatory No.
23 was non-responsive:
23.
Describe
the process by which the County’s “Review Team”
was
formed and instructed.
Counsel responded only that the “Independent Review Team compliedwith the
Livingston County Pollution Control Facility Siting Ordinance.”
Such a non-response
does not reveal what the actual “marching orders” of this purported “Independent Review
Team” were, whether they did in fact comply with the ordinance orwhether the
ordinance could be complied with and the results still be biased or otherwise
fundamentally unfair.
In light ofCounsel’s apparent intention (based on its objections to
Interrogatories Nos.
1-4) to argue that Board Members were not required to review the
Application itself, this Interrogatory is extremelyrelevant.
Counsel did not even state an
objection.
Petitioner is therefore entitled to a full response to this
interrogatory.
Through counsel, the County Board refused to answer or only partially answered
Interrogatories Nos. 25-28:
7
25.
Describe all instances dating from 1995 to the present in which any
member of the County’s “Review Team” worked on matters relating to Livingston
Landfill other than the Application or the Previous Application.
26.
Describe all instances in which it is anticipated that any member of
the County’s “Review Team” will or
may provide any materials or
services to
American Disposal or
in connection with matters relating to Livingston Landfill at
any time hereafter.
27.
Describe all instances in which it has been discussed or anticipated
that any of American Disposal’s consultants, witnesses or persons making public
comment in support ofthe Application will
or may provide any materials or services
to American Disposal at any time hereafter.
28.
Describe all instances
in which it is has been discussed or anticipated
that any of LCB’s consultants, employees, agents or witnesses who participated in
the Application process in any waywill or
may provide any materials or services to
American Disposal at any time hereafter.
These interrogatories address the potential financial bias ofApplicant’s witnesses
and consultants, as well as the financial interest of the so-called “Independent Review
Team,” which in turn relied upon the reports and testimony ofApplicant’s witnesses and
consultants.
These interrogatories address past, present and
future anticipated financial
benefits from the landfill enjoyed by those who advised the Board.
Obviously, the Board
can only respond to the best of its own knowledge.
However, in a small community that
knowledge maybe extensive and it could lead to
additional discoverable evidence ofbias
and self-interest.
Petitioner strongly believes, based on news reports, that a forthright
answer to
these interrogatories will reveal that the key consultant on the “Independent”
Review Team is already profiting as a result ofproviding the County with consulting
services that are needed due to anticipated continual landfill operations at the site.
Through counsel, the County Board refused to answer Interrogatory No. 30:
30.
IfLCB
denies any
of Petitioner’s
Requests for Admission, explain
in
detail the basis for the denial.
Counsel merely stated that the interrogatory was “inappropriate.
There are no
statutes or County ordinances requiring that Respondent explain in detail the basis for
denying any ofPetitioner’s requests for admission.
Rather said denials speak for
themselves.”
Petitioner disagrees.
Since Petitioner has included this as an interrogatory
and it functions as such.
Thus, to the extent the requests for admission are proper, the
interrogatory requesting an explanation is proper.
This
is a useful tool for establishing
agreed facts and identifying the precise grounds for disagreement.
Knowing the precise
reason for disagreement may lead to admissible evidence or establishment of other agreed
facts.
Review ofRespondent’s objections to
some ofthe Requests for admissions show
8
that the reason for denial may be something petty such as a failure to admit due to the
lack of a designated time frame when the intention ofthe statement was that it be taken to
applyto the time
frame of consideration ofthe Application.
See, e.g., Request for
Admission No.
8.
Petitioner could have re-stated all ofthe Requests for Admission as
Interrogatories, but it is more efficient to simply state the basis for the denial, as both
Petitioner and American Disposal did in their own responses to requests for admission.
Counsel for the County Board, in response to Interrogatory, revealed a glaring
deficit in the County Board’s responses to Petitioner’s Discovery Requests.
The
interrogatory in question was the de rigeur, standard interrogatory about preparation of
the answers to discovery requests:
31.
Identify all persons consulted in preparing the answers to these
Interrogatories, Petitioner’s
First Request for the Production of Documents to LCB
or Petitioner’s First Request for Admissions by LCB.
Counsel responded that only one Board Member, namely, Chairman
Jeanne Rapp (who abstained from the vote), was consulted in preparing the County’s
answers.
Thus,
counselfailed to consult with the actual decision makers.
Counsel
apparently felt no need to consultwith any voting Board Member, even for those
interrogatories that were expressly (and redundantly) introduced by the phrase “for
each
Board Member” to emphasize the need for individual inquiries.
See Interrogatories Nos.
1-4, 9-10, 13-
15, &
19.
For purposes ofthe interrogatories, the Board is defined as the
Board or members or agents thereof.
This is
an audacious attempt
to prevent Petitioner
from obtaining reasonable discovery ofkey evidence.
Failure to Produce Documents
The County Board, through its counsel, also failed miserably to comply with
Petitioner’s Request for Production ofDocuments.
For Requests Nos.
1, 3,
5,
6,
10,
11,
12, and
15,
the County’s
counsel merely referred Petitioner to the “Record on Appeal,”
without further disclosure or identification.
Petitioner objects to this answer as
instructions included with the Discovery Requests permitted the County to refer to the
Application if they cited to a section or identified the part ofthe Application being relied
upon.
Petitioner further objects on grounds that the scope ofdiscovery is not limited to
the Record on Appeal with respect to issues ofjurisdiction and fundamental fairness.
Most ofthe Requests relate to such issues.
Furthermore, Petitioner requested documents
that relate to CALE or its
consultant in the beliefthat the number of such documents
would be limited
and would be relevant to fundamental fairness issues.
The County did
not claim that such production would be unduly burdensome so Petitioner believes this
request is proper as well.
As with the interrogatories, Respondent’s attempts to limit the time period of
Petitioners’ requests to the pendencyof the Application itself are not grounded.
This
9
affects Requests Nos. 9,
11,
12, and
15.
See above for discussion ofthe possibility of
establishing fundamental fairness problems based on pre-Application contacts and
events.
Petitioner requested copies ofcontract and communications between County
Board Members and American Disposal (and its agents) as follows:
7.
All
documents relating to any agreement, understanding, or
transaction between any Board Member and American Disposal.
Counsel’s claim that
asking 24 Board Members if theyhave a contract with the
Applicant is unduly burdensome is disingenuous.
Petitioner is not required to present
evidence that such agreements exist prior to tendering a request for them.
This is part of
the function ofdiscovery.
In fact, there is
evidence in the record that at least one such
contract does exist.
The County Board’s failure to respond to this basic, undeniably
relevant request is
evidence ofits bad faith in failing to respond to Petitioner’s Discovery
Requests.
Even with regard to Petitioner’s request for documents identified in response to
interrogatories, counsel for the County Board referred only to the Record on Appeal.
As
noted above, the County failed to respond to most ofthe interrogatories so presumably
they also withheld the documents that should have been so identified.
Thus, the County
must be compelled to produce the documents related to the interrogatories that they are
being compelledto answer.
In InterrogatoryNo.
13, Petitioner requested documents regarding the Board
Member’s review of the Application and related documents:
13.
All documents evidencing
review by
any Board Member of the
Application, Previous Application
or
public comment submitted in connection
therewith, including but not limited to sign-out sheets,, logs, e-mails and
handwritten
notes.
Petitioner incorporates by reference its statements regarding the discoverability-of
such information set forth above with regard to
Interrogatories Nos. 1-4.
10
WHEREFORE, Petitioner requests the Hearing Officer to issue and Order to
Compel the County Board to respond fully to Petitioner’s Discovery Requests, to consult
with Board Members in the responses thereto, and to impose sanctions on the County
Board or its counsel in the amount of$1,500 for its failure to respond in good faith,
thereby necessitating the instant motion.
Respectfully submitted,
CarolynK. Gerwin, Attorney at Law
Counsel for Citizens Against Landfill Expansion
Carolyn K. Gerwin
Attorney at Law
705
South Locust Street
Pontiac, illinois 61764
(815) 842-2486
11
CERTIFICATE OF SERVICE
I hereby certify that on August 26, 2003, I electronically transmitted (receipt
requested) the foregoing Motion to Compel Livingston County Board to:
Brad Halloran
Douglas E. Lee
LarryM.
Clark
Claire Manning
George Mueller
C. Thomas Blakeman
With a hard copy by U.S. Mail
to:
Brad Halloran, Hearing Officer
Pollution Control Board
100 West Randolph Street
James R. Thompson Center, Suite 11-500
Chicago, Illinois 60601-3218
Douglas E. Lee
Ehrmann, Gehibach, Badger & Lee
215 E. First Street, Suite
100
P.O. Box
447
Dixon, illinois 61021
Larry M. Clark
Suite 200
700 North Lake Street
Mundelein IL 60060
Carolyn K. Gerwin
Counsel for Petitioner
12
