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BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
~
CL
J~VED
CLERK’S 0FY7’E
CITY OF
KANKAKEE,
MAY o 1 ?flhI3
Petitioner,
V.
COUNTY OF
KANKAKEE,
COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS,
INC.,
Respondents.
MERLiN KARLOCK,
Petitioner,
V.
COUNTY OF
KANKAKEE, COUNTY
BOARD
OF
KANKAKEE,
and WASTE
MANAGEMENT OF
ILLINOIS, iNC.,
Respondents.
MICHAEL WATSON,
Petitioner,
V.
COUNTY
OF
KANKAKEE, COUNTY
I3OARD
OF
KANKAXEE,
and WASTE
~IANAGEMENTOF
ILLINOIS, INC.,
Respondents.
PCB 03-03-125
STA!’E Oi~LLLfl~O~
Pollution Control Boc~rd
(Third-Party Pollution Control
Facility Siting Appeal)
PCB
03-133
(Third-Party Pollution Control
Facility Siting Appeal)
PCB 03-134
(Third-Party Pollution Control
Facility Siting Appeal)
PCB 03-135
(Third-Party Pollution Control
Facility Siting Appeal)
KEITHRUNYON,
Petitioner,
V.
COUNTY
OF
KANKAKEE, COUNTY
BOARD
OF KANKAXEE, and WASTE
1MANAGEMENT
OF
ILLINOIS, INC.,
Respondents.
365014
p
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKENOTICE that on May 1, 2003, wefiled with the Illinois Pollution Control
Board, the attached Motion
to Quash the
Subpoenas
issued
to Saundra
Listenbee, Registrar of
Richard
J.
Daley College, and to Mary
Ann
Powers
of Richard J. Daley College
in the above
entitled matter.
WASTE MANAGEMENT
OF
ILLINOIS, INC.
B~AAQ(~~7~
Lauren Blair
One of Its Attorneys
Donald J. Moran
Lauren Blair
PEDERSEN & HOUPT
Attorneys forPetitioner
161 N. Clark Street
Suite 3100
Chicago, 1L 60601
Telephone: (312) 641-6888
365014
This
DocumentIs Printed on Recycled Paper
PROOF OF SERVICE
Victoria L. Kennedy, a non-attorney, on oath states that she served the foregoing ADDITIONAL
APPEARANCE on Ms. Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board and on Hearing
Officer BradleyHalloran by hand delivery at their addresses listed below on or before 10:45 a.m. on the 1st
day of May, 2003, by mail and by facsimile at the remaining addresses and facsimile numbers listed below
on or before 10:45 a.m. on the 1st day of May, 2003:
Ms. Dorothy M. Gunn, Clerk
George Mueller, Esq.
illinois Pollution Control Board
501 State Street
James R. Thompson Center
Ottawa, IL 61350
100 West Randolph Street, Suite 11-500
(815) 433-4705
Chicago, illinois 60601
(815)
433-4913 (fax)
Charles F. Helsten, Esq.
Richard S. Porter, Esq.
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
(815)
490-4900
(815) 963-9989 (fax)
Elizabeth Harvey, Esq.
Swanson, Martin & Bell
One IBM Plaza
Suite 2900
330 North Wabash
Chicago, IL 60611
(312) 321-9100
(312) 321-0990 (fax)
Kenneth A. Leshen, Esq.
One Dearborn Square, Suite
550
Kankakee, IL 60901
(815) 933-3385
(815)
933-3397 (fax)
L. Patrick Power, Esq.
956
North Fifth Avenue
Kankakee, IL 60901
(815)
937-6937
(815) 937-0056
(fax)
Jennifer J. Sackett Pohlenz, Esq.
175 W. Jackson Boulevard, Suite 600
Chicago, IL 60604
(312) 540-7540
(312) 540-0578 (fax)
Keith Runyon
1165 Plum Creek Drive, Unit D
Bourbonnais, IL 60914
(815)
937-9838
(815)
937-9164 (fax)
BradleyHalloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11th Floor
Chicago, illinois 60601
(312) 814-8917
(312) 814-3669 (fax)
Kenneth A. Bleyer
923 W. Gordon Terrace #3
Chicago, IL 60613
(815)
937-9838
(815)
937-9164 (fax)
Patricia 0 Dell
1242 Arrowhead Drive
Bourbonnais, IL 60914
1-(
Nadia I. Mirza
365014
This
DocumentIs Printed on Recycled Paper
MICHAEL WATSON,
Petitioner,
)
)
V.
)
)
WASTE MANAGEMENT OF ILLINOIS, INC.’S MOTION TO QUASH
PETITIONER MICHAEL WATSON’S
SUBPOENAS
TO REGISTRAR
SAUNDRA
LISTENBEE & MARY
ANN
POWERS OF RICHARD .1. DALEY COLLEGE
Respondent WASTE MANAGEMENT OF ILLINOIS, INC. (“WMIT”), by its attorneys,
Pedersen & Houpt, in support ofits Motion to Quash the
Subpoenas
issued to Saundra Listenbee,
Registrar of Richard J. Daley College, and to Mary Ann Powers ofRichard J. Daley College
states as follows:
1.
Petitioner Michael Waston’s
Subpoenas
to Saundra Listenbee, Registrar of
RichardJ. Daley College, and to Mary Ann Powers ofRichard J. Daley College, to appear at the
hearing in this matter set for May 6, 2003 should be quashed as improper attempts to collaterally
attack the credibility of Patricia Beaver-McGarr, WIvifi’s expert witness who testified at the
public hearing on criterion (iii).
2.
Petitioner has raised jurisdictional and fundamental fairness claims in his appeal.
As part of his fundamental fairness claims, Petitioner asserts that the public hearing was unfair
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR
CLERK’S ~
M/~\Y 012003
)
STATE OF ILLINOiS
Pollution
controi
Board
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
PCB 03-134
)
(Third-Party Pollution Control
)
Facility Siting Appeal)
)
)
(Consolidated with PCB 03-125, 03-
)
133, 03-135)
364999 vi
This Documentis Printed on Recycled Paper.
due to WMII’s alleged failure to present documentation concerning Ms. McGarr’s qualifications,
and due to WIvifi’s alleged failure to present Ms. McGarr for supplemental recross-examination
on the issue of her educational background. It should be noted, however, that Petitioner fails to
demonstrate how said alleged failures prejudiced him or other participants in the public hearing.
3.
On April 30, 2003, Petitioner served
Subpoenas
on Ms. Listenbee and Ms. Powers
in an attempt to compel their appearance at the hearing on May 6th. The
Subpoenas
also request
that Ms. Listenbee and Ms. Powers bring to the hearing “the entire contents ofthe Richard J.
Daley College file for Ms. PatriciaBeaver-McGarr (formerly Patricia Beaver).”
4.
Petitioner seeks to have Ms. Listenbee and Ms. Powers testify at trial to
collaterally impeach the testimony Ms. McGarr gave at the public hearing about her educational
background in an attempt to discredit her expert testimony concerning criterion (iii). The Board,
however, is not permitted to reweigh a witness’s credibility on appeal. CDT Landfill Corp. v.
City ofJoliet, No. PCB 98-60, slip op. at 10 (March
5,
1998).
5.
Section 40.1(b) of the illinois Environmental Protection Act (the “Act”) provides
that the review before the Board shall be based “exclusivelyon the record before the county
board or the governing body of the municipality.” 415 ILCS
5/40.1(b).
Even when reviewing
fundamental fairness issues, it is improper for the Board to hear new evidence unless such
evidence necessarily lies outside ofthe record. Land & Lakes Co. v. Pollution Control Board,
319 III. App. 3d 41,48, 743 N.E.2d 188, 194 (3dDist. 2000).
6.
In this case, the issue ofMs. McGarr’s qualifications as an expert witness was
raised and thoroughly exhausted by Petitioner at the public hearing. Petitioner subjected Ms.
364999
vi
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2
McGarr to extensive cross-examination on the issue of her educational background. At
Petitioner’s request, an affidavit from Richard J. Daley College was furnished at the hearing
concerning Ms. McGarr’s affiliation with the college, which is part ofthe record on appeal.
Petitioner made his record concerning his objection to Ms. McGarr’s qualifications as an expert
witness, and the record was closed at the end ofthe public comment period. He cannot now
reopen this issue and introduce additional evidence in an attempt to get a second bite ofthe apple
on appeal.
7.
The County Board of Kankakee issued its decision granting local siting approval,
subject to certain conditions, on January 31, 2003, despite Petitioner’s challenges and objection to
Ms. McGarr’s qualifications as an expert. The Board cannot make its own findings offact
concerning Ms. McGarr’s qualifications, and cannot reweigh the evidence concerning her
credibility as an expert witness.
8.
Moreover, the Board’s determination of whether the proceedings were
fundamentally unfair due to W~vffl’salleged failure to present documentation concerning Ms.
McGarr’s qualifications, and due to WMIH’s alleged failure to present Ms. McGarr for
supplemental recross-examination on the issue ofher educational background does not require a
review of evidence outside of the record. Therefore, there is no legitimate basis for presenting
the testimony of Ms. Listenbee or Ms. Powers at the hearing on May 6th, and Petitioner’s
Subpoenas
should be quashed.
WHEREFORE, Wlvffl requests that the Hearing Officer quash Petitioner Michael
Watson’sSubpoenas
issued to Saundra Listenbee, Registrar ofRichard J. Daley College, and to
364999
vi
This Document is Printed on RecycledPaper.
3
Mary Ann Powers of Richard J. Daley College, and provide such further and other relief as he
deems appropriate.
Respectfully Submitted,
WASTE MANAGEMENT OF ILLINOIS, INC.
By:
One of Its Attorneys
Donald J. Moran
Lauren Blair
PEDERSEN & HOUPT, P.C.
161 North Clark Street
Suite 3100
Chicago, Illinois 60601
(312) 641-6888
364999 vi
This Document is Printed on Recycled Paper.
4