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ILLINOIS POLLUTION CONTROL BOARD
March 27, 2008
FOX MORAINE, LLC,
Petitioner,
v.
UNITED CITY OF YORKVILLE, CITY
COUNCIL,
Respondent.
KENDALL COUNTY,
Intervenor.
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PCB 07-146
(Pollution Control Facility
Siting Appeal)
HEARING OFFICER ORDER
On December 20, 2007, petitioner Fox Moraine, LLC, (Fox Moraine) filed an
amended motion to compel certain discovery and for sanctions (Amend Mot.). On
January 8, 2008, respondent United City of Yorkville, City Council (Yorkville) filed its
response (Resp.). On January 31, 2008, Fox Moraine filed its reply (Reply).
Procedural Status of the Case
On June 27, 2007, Fox Moraine filed a petition for review asking the Board to
review the May 24, 2007, decision of Yorkville’s decision on petitioner’s proposed siting
of a pollution control facility in Yorkville, Kendall County. Petitioner appealed to the
Board on the grounds that 1) Yorkville’s decision was fundamentally unfair, alleging bias
and prejudice on the part of various and unnamed council members, and 2) Yorkville ’s
findings regarding certain criteria were against the manifest weight of the evidence.
Kendall County was granted intervenor’s status by the Board on August 23, 2007.
The County has not participated in the briefing of this discovery issue.
Pursuant to Fox Moraine’s most recent waiver, the statutory decision deadline in
this case is now August 21, 2008. Hearing has yet to be scheduled.
Preliminary Matter
On September 20, 2007, a hearing officer order (Hearing Order) was issued
responding to Yorkville’s motion and memorandum (Memo.) for a protective order
limiting discovery sought by Fox Moraine. Yorkville’s motion was denied. In essence,
Yorkville argued that Fox Moraine was not entitled to discovery requests concerning
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seven members of the City Council because it failed to object at the local siting hearing
and has waived any right to conduct discovery concerning those seven City Council
Members. Yorkville further alleged in the motion that the “discovery requests are
unreasonably burdensome and unduly onerous attempt to uncover some evidence perhaps
relevant to its unsupported claims of unfairness, bias and prejudice”. Memo. at 4. I noted
that the ultimate determination as to whether the petitioner has waived any issues as to
one or more Council Members is a decision for the Board, and not the hearing officer, to
make. Hearing Order at 4, n.1. In denying Yorkville’s motion, I stated that when a
fundamental fairness issue is raised before the Board, the whole purpose of discovery is
to attempt to uncover relevant evidence or evidence calculated to lead to relevant
evidence that is outside the record, evidence that is presumably unknown to the party
propounding the discovery. Hearing Order at 4. I directed the parties to proceed with
discovery. Neither party appealed to the Board.
Amended Motion to Compel and For Sanctions
In its four page motion, the prevailing theme appears to be that Yorkville waived
all of its objections to Fox Moraine’s First Request to Produce and Fox Moraine’s First
Set of Interrogatories, for its failure to raise them in Yorkville’s previously filed motion
for a protective order. Fox Moraine briefly argues that the responses to its First Request
to Produce are deficient and incomplete. Finally, Fox Moraine states that the “response
to the Request to Produce is signed by one of the Respondent’s attorneys, is unverified
and is not accompanied by an affidavit of accurateness or completeness as required by
Supreme Court Rule.” Amend. Mot. at 3.
Fox Moraine next argues that responses and objections to its First Set of
Interrogatories are insufficient and defective as well. Fox Moraine argues that Yorkville
in some instances failed to answer some of the interrogatories and some answers so
incomplete an unspecific that as to be no responses at all. Finally, Fox Moraine alleges
that Yorkville’s “responses and answers were clearly propounded in bad faith and that
the Hearing Officer ought to sanction” Yorkville. Amend. Mot. at 3.
Yorkville’s Response To Fox Moraine’s Amended Motion
Yorkville’s prevailing theme also appears to be a waiver argument. Yorkville
argues that by failing to support its waiver argument with case law, Fox Moraine has
waived its waiver argument. Yorkville argues at length that it did not and has not waived
any objections in its responses by its failure to include all discovery objections in its
motion for a protective order. It argues that neither the Board rules “nor any other
authority (including all other Board Rules and Supreme Court Rules) require a party
seeking a protective order to include all discovery objections in its motion for a
protective order or risk waiving them”. Resp. at 3. Yorkville states that “[s]uch
requirement would be absurd”.
Id.
Yorkville further argues that it is not required to furnish an affidavit of
completeness. It further states that Fox Moraine did not furnish an affidavit with its
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responses to Yorkville’s requests. Yorkville argues that since Fox Moraine failed to
support its objection on specificity grounds, Fox Moraine has waived its objections.
Yorkville represents that some of its responses to Fox Moraine’s First Set of Request to
Produce included relevance and scope objections. Resp. at 6.
Addressing Fox Moraine’s objections to Yorkville’s answers to interrogatories,
Yorkville argues that Fox Moraine’s objection stating the interrogatories are either
incomplete or unresponsive is not supported with explanation or authority and are
thereby waived. Yorkville further alleges that it objected to some of Fox Moraine’s
interrogatories on relevance and deliberative process grounds.
Fox Moraine’s Reply
Fox Moraine initially states that it withdraws its request for sanctions in an effort
to expedite the resolution of its amended motion to compel. Reply at 1. Next, Fox
Moraine cites to Supreme Court Rule 214 to support its claim that an affidavit of
completeness is required. Next, Fox Moraine represents that:
[a]dmittedly, Fox Moraine, in its initial motion did not state with
specificity in what way the objections of Yorkville were insufficient,
improper or otherwise not well taken. However, the nature of Yorkville’s
objections to production and refusals to answer interrogatories did not
require such specificity or detailed explanation in a motion to compel, as
Yorkville’s objections themselves lacked any specificity. In fact
Yorkville’s objections and refusals were so vague and generic that
Yorkville’s [presumably Fox Moraine] motion to compel could not
contain a specific explanation of how they were inadequate and
insufficient. Reply at 3.
Specifically, Fox Moraine argues that Yorkville does not specify why some of
Fox Moraine’s interrogatories are vague overly broad or beyond the scope of the appeal.
Fox Moraine also points out, supported by case law, that pre-filing contacts may be
relevant evidence of fundamental fairness violations. Reply at 3.
Discussion
Revisiting the language in the September 20, 2007, order, on appeal of a
municipality’s decision to grant or deny a siting application, the Board generally confines
itself to the record developed by the municipality. 415 ILCS 5/40.1 (b) (2006). However,
the Board will hear new evidence relevant to the fundamental fairness of the proceedings
where such evidence lies outside the record. Land and Lakes Co. v. PCB
, 319 Ill. App.
3d 41, 48, 743 N.E. 2d 188, 194 (3d Dist. 2000). Public hearing before a local governing
body is the most critical stage of the site approval process. Land and Lakes Co. v. PCB
,
245 Ill. App. 3d 631, 616 N.E.2d 349, 356 (1993). The manner in which the hearing is
conducted, the opportunity to be heard, whether
ex parte
contacts existed, prejudgment of
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adjudicative facts, and the introduction of evidence are important, but not rigid, elements
in assessing fundamental fairness. American Bottom Conservancy v. Village of Fairmont
City, PCB 00-200 (Oct. 19, 2000). The Board must consider the fundamental fairness of
the procedures used by the respondent in reaching its decision. 415 ILCS 5/40.1 (a)
(2006). Additional evidence outside the record that may be considered include pre-filing
contacts.
See
County of Kankakee v. City of Kankakee, Town and County Utilities, Inc.,
and Kankakee Regional Landfill, LLC., PCB 03-31, 03-33, 03-35 (cons.) (Jan. 23, 2003).
The purpose of discovery is to uncover all relevant information and information
calculated to lead to relevant information. 35 Ill. Adm. Code 101.616(a). The Board’s
rules also state that where the Board’ rules are silent, the Board may look to the Code of
Civil Procedure and the Supreme Court Rules for guidance. 35 Ill. Adm. Code 101.100.
Ruling
At this time, Fox Moraine’s amended motion to compel is denied.
After an exhaustive review of the pleadings, including Yorkville’s responses to
Fox Moraine’s First Request To Produce, Yorkville’s answers to Fox Moraine’s First Set
of Interrogatories, Fox Moraine’s amended motion to compel, Yorkville’s response and
Fox Moraine’s reply, I cannot discern with any specificity what the respective parties are
alleging or the bases for the respective objections. For instance, some of Yorkville’s
answers to Fox Moraine’s discovery requests object on grounds of relevance or beyond
the scope. If I were to assume that Yorkville’s objections are based on pre-filing
contacts, without more, I would overrule Yorkville’s objection and direct it to respond or
answer. But that assumption will not be made at this time. Fox Moraine’s amended
motion to compel is likewise replete with objections that lack specificity. Given the
totality of the circumstances, I cannot grant Fox Moraine’s amended motion to compel at
this time.
I further note that Yorkville’s argument that to include all discovery objections in
a motion for a protective order is “absurd” is less persuasive in a time sensitive matter
such as this. In the September 20, 2007, order, I stated that in a deadline date case, the
hearing officer must manage the case to insure that discovery, hearing and briefing
schedule allow for timely Board deliberation and decision of the case as a whole. It is
difficult to manage the case when piecemeal discovery motions are filed.
I direct that Yorkville re-serve its responses to Fox Moraine’s First Request To
Produce. In its amended responses, Yorkville must include specific grounds for any
objections. Yorkville must furnish an affidavit of completeness pursuant to Supreme
Court Rule 214. Fox Moraine must also furnish an affidavit of completeness regarding
its responses to Yorkville’s Request to Produce. I further direct that Yorkville re-serve
its answers to Fox Moraine’s First Set of Interrogatories. In its amended answers,
Yorkville must include specific grounds for any objections. The parties are reminded
that when a fundamental fairness violation is alleged, additional evidence outside the
record that may be considered by the Board include pre-filing contacts. Due to the
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statutory decision deadline of August 21, 2008, an abbreviated discovery schedule is
required. Yorkville’s amended responses and answers to Fox Moraine’s propounded
discovery is due to be served on or before April 8, 2008. Fox Moraine’s affidavit of
completeness is due to be served on or before April 4, 2008. Given this time frame, I
suspect a hearing could still be held in mid June 2008.
If another motion to compel is to be filed, that motion is due to be filed on or
before April 18, 2008. The motion must set forth specific objections to each and every
response or answer, and not just a general summary. Any response is due to be filed on
or before April 28, 2008.
It is again noted that Fox Moraine has withdrawn its request for sanctions.
Finally, I again remind the parties that the procedural rules provide that parties
may seek Board review of discovery rulings pursuant to 35 Ill. Adm. Code 101.616(e).
The hearing officer reminds the parties that the filing of any such appeal of a hearing
officer ruling does not stay the proceeding.
IT IS SO ORDERED
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois 60601
312.814.8917
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CERTIFICATE OF SERVICE
It is hereby certified that true copies of the foregoing order was mailed, first class,
on March 27, 2008 to each of the persons on the attached service list.
It is hereby certified that a true copy of the foregoing order was hand delivered to
the following on March 27, 2008:
John T. Therriault
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Ste. 11-500
Chicago, Illinois 60601
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
312.814.8917
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City of Yorkville
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Michael Roth, Interim Cit
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PCB 2007-146
Eric C. Weis
Kendall County State's Attorney
Kendall County Courthouse
807 John Street
Yorkville, IL 60560
