R~CEIVEE~
CLERK’S
OFFV’F
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
MAY 022003
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CiTY
OF KANKAKEE,
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
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
STATE OF ILLINOIS
PCB 03-03-125
~
Control Board
(Third-Party Pollution Control
Facility Siting Appeal)
PCB 03-133
(Third-PartyPollution 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 KANKAKEE, andWASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
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WASTE MANAGEMENT OF ILLINOIS, INC.’S
MOTION
IN LIMINE
TO BAR EVIDENCE RELATING TO
PATRICIA BEAVER-McGARR
AND
CRITERION (iii)
Respondent WASTE MANAGEMENT OF ILLINOIS, INC. (“WilvilI”), by its attorneys,
Pedersen & Houpt, in support of its Motion
in Limine
to bar the introduction at the hearing of
any evidence relating to Patricia Beaver-McGarr and/or criterion (iii), including, but not limited
to, testimonial or documentary evidence presented by Saundra Listenbee or Mary Ann Powers,
states as follows:
1.
Petitioner Michael Waston has raised several fundamental fairness claims in this
appeal, including claims that the public hearing was unfair because he was not able to
subpoena
documentation concerning the qualifications of Patricia Beaver-McGarr, WIVifi’s expert witness
on criterion (iii), or to subject her to recross-examination on the issue of her educational
background.
2.
On April 30, 2003, Petitioner served
subpoenas
on Saundra Listenbee, Registrar
of Richard J. Daley College, and to Mary Ann Powers ofRichard J. Daley College requiring
them to appear at the hearing on May 6, 2003 and produce “the entire contents ofthe Richard J.
Daley College file for Ms. Patricia Beaver-McGarr (formerly Patricia Beaver).”
3.
In response to WMJT’s Motion to Quash the
subpoenas,
Petitioner argued that he
should be allowed to present evidence at the hearing through these two witnesses to support his
claim that Ms. Beaver-McGarr perjured herself at the public hearing by testifying that she
obtained a degree from Richard J. Daley College on the theory that if he she perjuredherself, her
testimony should have been barred, and because it was not barred the County Board of
Kankakee’s (“County Board”) decision was fundamentally unfair. Petitioner also contends that
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he should be allowed to present evidence from these two witnesses to establish that the hearing
was fundamentally unfair due to WMII’s alleged refusal to produce Ms. Beaver-McGarr’s
diploma or to reproduce her for further questioning on her diploma.
4.
It is apparent that any evidence from Ms. Listenbee and Ms. Powers can only be
offered for the purposes of contradicting Ms. Beaver-McGarr’s testimony, collaterally attacking
her credibility and challenging the County Board’s finding that criterion (iii) was met. In other
words, Petitioner is arguing a manifest weight of the evidence issue under the guise of a
fundamental fairness argument.
5.
It is well-settled that the Board is not permitted to reweigh the evidence
concerning the nine statutory criteria or a witness’~scredibility on appeal. Land & Lakes Co. v.
illinois Pollution Control Board, 319 ill. App. 3d 41, 53, 743 N.E.2d 188, 197 (3d Dist. 2000);
Landfill 33 Ltd. v. Effingham County Board, No. PCB 03-43 and 03-52 (cons.), slip op. at 3
(February 20, 2003). In Land & Lakes Co., the Illinois appellate court held that “it is for the local
siting authority to determine the credibility of witnesses, to resolve conflicts in the evidence, and
to weigh the evidence presented.” Land & Lakes. Co., 319111. App. 3d at
53,
743 N.E.2d at 197.
In accordance with Land & Lakes Co., the Board in Landfill 33 Ltd. stated that “where there is
conflicting evidence, the Board is not free to reverse merely because the lower tribunal credits
one group of witnesses and does not credit the other. citation omitted. Because the local
government could have drawn different inferences and conclusions from conflicting testimony is
not a basis for this Board to reverse the local government’s findings.” Landfill 33 Ltd., No. PCB
03-43 and 03-52 (cons.), slip op. at 3.
6.
Even the illinois appellate court in People of the State of illinois v. Moore, 199 Ill.
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App. 3d 747, 557 N.E.2d 537 (1st Dist. 1990)’, the case on which Petitioner relies on to support
its contention that the use of perjured testimony is fundamentally unfair, stated that issues
concerning testimony “go merely to the credibility ofthe witness and of the evidence.”
J~,
at
76~,
557
N.E.2d at 549.
7.
In this case, the County Board issued its decision granting local siting approval,
subject to certain conditions, despite Petitioner’~schallenges and objection to Ms. Beaver-
McGarr’s qualifications as an expert. The Board cannot make its own findings of fact concerning
Ms. Beaver-McGarr’s qualifications, and cannot reweigh the evidence concerning her credibility
as an expert witness. Therefore, it is improper to permit Petitioner to introduce evidence at the
hearing concerning Ms. Beaver-McGarr’s educational background, her qualifications as an
expert, her testimony concerning criterion (iii) or any other matter that relates to the County
Board’s finding that criterion (iii) was met.
8.
Even when reviewing fundamental fairness issues, it is improper for the Board to
hear new evidence unless such evidence necessarily lies outside of the record. Land & Lakes
~,
319111. App. 3d at 48, 743 N.E.2d at 194.
9.
In this case, the issue of Ms. Beaver-McGarr’s qualifications as an expert witness
was raised and thoroughly exhausted by Petitioner at the public hearing. Petitioner subjected Ms.
Beaver-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. Beaver-McGarr’s affiliation with the college, which is part ofthe record on
appeal. Petitioner made his record concerning his objection to Ms. Beaver-McGarr’s
1 People of the State of Illinois v. Moore, is also inapposite in that it is a criminal case,
not a local siting case.
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qu~tlificationsas an expert witness, and the record was closed at the end of the public comment
period. He cannot now reopen this issue and introduce additional evidence on appeal.
10.
Moreover, a determination of whether the proceedings were fundamentally unfair
due to WMII’s alleged failure to present documentation concerning Ms. McGarr’s qualifications,
and alleged failure to present Ms. McGarr for supplemental recross-examination on the issue of
her educational background does not require evidence from Ms. Listenbee or Ms. Powers, or a
review of any other evidence outside ofthe record. Therefore, there is no legitimate basis for
presenting the testimonial ordocumentary evidence from Ms. Listenbee or Ms. Powers at the
hearing on May 6th.
WHEREFORE, WIvill requests that the Hearing Officer bar the introduction at the
hearing of any evidence relating to Patricia Beaver-McGarr and/or criterion (iii), including, but
not limited to, testimonial or documentary evidence presented by Saundra Listenbee, Registrar of
Richard J. Daley College, and to Mary Ann Powers ofRichard J. Daley College, and provide
such further and other relief as he deems appropriate.
Respectfully submitted,
WASTE
Donald J. Moran
Lauren Blair
PEDERSEN & HOUPT
161 North Clark Street
Suite 3100
Chicago, Illinois 60601
(312) 641-6888
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ofIts Attorneys
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