6544S-POH

BEFORE TUE

ILLiNOIS POLLUTION CONTROL BOARD

______________________________________

RECEIVED

MICHAEL WATSON.

CL~K’5OFFICE

M44Y 052003

Petitioner,

No. PCB 03-134

STATE OF IWNOIS

VS.

(Pollution Control ~

COUNTY BOARD OF KANKA(EE COUNTY, Consolidated With PCB 03-125, 03-133,

ILLINOIS, and WASTE MANAGEMENT OF

03-135.

03-144)

ILLINOiS, INC.,

Respondent.

NOTICE OF FILING

TO:

See Attached

Service

List

PLEASE TAKE NOTICE that on

May

5,

2003,

we

filed, with the Illinois Pollution

Control Board, the following: Response to the WMII’s Motion to Bar and for Sanctions.

PETITIONER MICHAEL WATSON

Jennifer

J.

Sackert Pohlenz

QUERREY

& HARROW, LTD.

175

West Jackson Boulevard, Suite 1600

Chicago, Illinois 60604

(312)

540-7000

Attorney Registration No.

6225990

PROOF OF SERVICE

Alesia Mansfield, under penalties of perjury, certifies that she served the foregoing

Notice

of Filing and document(s) set

forth in

said

Notice, on the following parties and

persons at their respective addresses/fax numbers, this

5th

day of May, 2003, by or before the

hour of 4:30 p.m. in the manners stated below:

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S.

Mail

Donald

Moran

Pedersen & Houpt

1 61

North Clark

Street

Suite 3100

Chicago, IL 6060 1-3242

Fax: (312) 261-1149

Attorney for Waste Management of1llinois~Inc.

Via Facsimile &

U.S. Mall

Kenneth A.

Leshen

One Dearborn Square

Suite 550

Kankakee, EL 60901

Fax:

(815) 933-3397

Representing Petitioner in PCB 03-125

Via Facsimile

& U.S. Mail

George Mueller

George Mueller, P.C.

501 State

Street

Ottawa, IL

61350

Fax: (815)

433-4913

Representing Petitioner in PCB 03-133

Via U. S. Mail

Leland

Milk

6903 S.

Route 45-52

Chebanse, IL 60922-5153

Interested

Party

Via Facsimile & U.S. Mail

Charles Heiston

Richard Porter

I-f inshaw & Culbertson

100 Park Avenue

P.O. Box 1389

Rockford, Illinois 61 105-1389

Fax: (815) 490-4901

Representing Kanl~akeeCounty Board

Via

U.

S. Mail

Patricia O’Dell

1242 Arrowhead Drive

Bourbonnais, IL 60914

Interested Party

~ia Facsimile & U.S. Mail

Keith Runyon

1165 Plum Creek Drive

Bourbonnaise, IL 60914

Fax: (815) 937-9164

Petitioner

in

PCB

03-135

Via Facsimile

& U.S. Mail

L. Patrick Power

956 North Fifth Avenue

Kankakee, IL 60901

Fax: (815) 937-0056

Representing Petitioner in PCB 03425

Via Facsimile & U.S. Mail

Elizabeth S. Harvey, Esq

Swanson. Martin & Bell

One IBM Plaza7 Suite 2900

330 North Wabash

Chicago, IL 60611

Fax: (312)

321-0990

Representing Kankakee County Board

Via Facsimile & Hand Delivery

Bradley P. Halloran

Illinois Pollution Control Board

James R. Thompson Center, Ste. 11-500

100 W. Randolph Street

Chicago, IL 60601

Hearing Officer

LL~

~

Alesia MansfieldQ

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65448-POE

BEFORE THE ILLINOIS

POLLUTION CONTROL BOARI)

MICHAEL WATSON,

Petitioner,

No. PCB 03-134

VS.

(Pollution Control Facility Siting Appeal)

COUNTY BOARD OF KANKAKEE COUNTY, Consolidated With PCB 03-125, 03-133,

ILLINOIS, and WASTE MANAGEMENT OF

03-135)

ILLINOIS, INC.,

Respondent.

RESPONSE.

TO

THE WMII’s MOTION TO BAR AND FOR SANCTIONS

Now Comes Petitioner Michael Watson, by and through his attorneys at Querrey &

Harrow, Ltd. and as and for his Response to Waste Management of Illinois. Inc.’s Motion to

Bar and for Sanctions, states as follows:

1. Petitioner Watson filed his List of Witnesses to Testify at the Public Hearing on

May 2, 2003 (Witness List). In response. Waste Management of Illinois, Inc. (WMII) filed a

Motion to Bar and for Sanctions against Petitioner Watson. WMII’s Motion, both with respect

the bar and sanctions is unjustified; with respect to sanctions, does not meet the prerequisite

requirement for filing such a motion under Section 101,800 of the Illinois Pollution Control

Board (IPCB) rules; and seeks monetary damages which are not allowed by Section 101.800.

2. WMII makes, essentially, three complaints in its Motion: (1) that Petitioner

Watson’s Witness List was a Rule 237 Notice to Produce which was not allowed by the

Hearing Officer; (2) that Petitioner’s request for Mr. Addleman to testify or answer written

questions should be barred; and, apparently, that (3) Petitioner should not be allowed to

preserve objections to the Hearing Officer’s prior rulings concerning Mr. Moran’s depositIon

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testimony and hearing testimony. None of these three arguments serve as a rational to bar

Petitioner or to impose sanctions on Petitioner. In fact, nothing in the Motion meets, discusses

or references the appropriate facts to be considered by the Illinois Pollution Control Board in

determining whether to impose sanctions under Section 101.800 of its Rules. Therefore, the

Motion should be denied in its entirety.

3.

First,

as respects WMII’s objection to Petitioner’s Rule 231 notice, the Witness List

references the following in terms of the format or enforcement of the list at trial:

(Please consider this a S.Ct. Rule 237 notice. If WMII contends

that the named persons below are “witnesses” opposed to parties,

and Illinois Pollution Control Board Rule 101.662(a) applies, it is

requested that WMII (a) so inform counsel for Petitioner Watson

immediately, and inform Petitioner whether WMII will object to

produce the following people, (b) inform Petitioner Watson

whether WMII will accept service of subpoenas through counsel

Moran or., if WMII will not, without waiving Petitioner’s

objection to such a circumstance, that WMII then provide the

business and home addresses of the following people for service

purposes)

4. This language was added to the Witness List in order to determine whether counsel

for WMII would be objecting on some technicality and arguing a subpoena was necessary for a

party, and since, there was no verbiage in the Hearing Officer’s May 1, 2003, Order

concerning a witness list filed on May 2, 2003, having enforceability in terms of requiring a

party’s representative to be present, the language was added to “cover the basis” so to speak

on the mechanisms that, from the Rules, appear.to be available to require a party’s presence

and to seek WMIFs position on production of the requested people (other than Moran who was

listed for the purpose of preserving the record). Nothing in Petitioner’s actions comes close to

being sanctionable, to rule otherwise suggests that WMII’s own actions in submitting a witness

2

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list without subpoena, without any request for voluntary compliance is, itself, sanctionable.

Therefore, the portion of WMII’s complaints concerning the language referenced above in

Paragraph 3 should be denied.

5. Second, WMII argues that Petitioner should be barred from obtaining any testimony

from Lee Addleman, either in oral or written form. WMII argues that this request is in

violation of the Hearing Officer’s May 1 and April 30 Orders and WMII represents that the

Hearing Officer’s prior rulings in this case provided that “WMII need not make Mr. Addleman

available as a witness in these proceedings.” (Motion ¶6). WMII is wrong.

6. The Bearing Officer’s April

30th

Order denied a request for the discovery deposition

of Mr. Addleman and made no reference to his hearing testimony. The Hearing Officer’s May

1, 2003, Order made no reference to Mr. Addleman’s hearing testimony. WMII provides

absolutely no basis for imposing a sanction of barring Petitioner from obtaining oral or written

testimony (as sought in the alternative in the Witness List) from Mr. Addleman at trial. To

find for WMII on this basis, would require a finding that any Petitioner seeking the hearing

testimony of a witness, for the first time, when no ruling has been made with respect to the

hearing testimony of that witness, subjects that Petitioner to sanctions? Such finding would be

in contravention of the Illinois Supreme Court Rules and Pollution Control Board Rules, and

has no basis in the law. Further, per WMII’s own Motion, the Witness List was filed “at or

around 1:00 p.m” on May 2, which was the required time to provide that list, thus, any

argument of WMII that Petitioner should be denied any access to Mr. Addleman on the basis

of an allegation that the request was “last minute” should be denied as the List was timely.

Therefore, WMII’s motion should be denied.

3

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7. Third, WMII seeks to bar Petitioner and

seeks sanctions against Petitioner for the

inclusion of Donald Moran on the Witness List. Interestingly, WMII understood that the intent

of the Witness List was to preserve objections (See, Motion ¶7), however, still objects to it,

despite such acknowledgement. How is preservation of an issue for appeal harassment? How

is preservation of an issue on appeal “defiance” of an Order? To hold that preservation is

sanctionable for these reasons, is to contradict the Illinois Supreme Court in Pfaff v. Chrysler

Corporation,

et aL,

at a minimum, and prejudice PetitiOner’s due process rights to be heard on

issues, be it before the Illinois Pollution Control Board or the Illinois Appellate Courts.

8. Preserving by repleading with reservation is not only a common legal practice in

Illinois, it is a perfectly acceptable and non-sanctionable act,

See,

Pfaff v. Chrysler

Corporation.

eral., 155

Ill.2d.

35,

610 N.F,2d 51 (S. Ct. 1992). In Pfaff, the Illinois

Supreme Court found that a party had abandoned its rights to appeal the Section 2-6 15

dismissal of certain counts of its complaint, when the party voluntarily withdrew its repleading

of those counts, and amended its complaint without those counts. Albeit a complaint is

distinguishable from a discover request, however, the legal concept of a withdraw due to

failure to

preserve is the same.

9. WMH’s allegations of repeated attempts by Petitioner Watson to require Messrs.

Addleman and Moran at hearing as a rational for Sanctions is unfounded given the

circumstances of this case. First, Petitioner Watson only listed the subject individuals once,

prior to its Witness List when it joined in the City of Kankakee’s list of deponents. Second,

had Petitioner Watson not made a record that these individuals were being requested to app~ai

at the hearing (opposed to appearing at a discovery deposition,

See,

Slatten V. City of Chic~g~

4

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12 Ill.App.3d 808, 813, 299 N.E.2d 442

(1973), citing

Cleary’s Handbook of Illinois Evidence,

2d ed., par. 1

.5, p.

7, for an explanation between discovery and evidence depositions), then

WMII would argue Petitioner has no right to appeal on that issue.

10.

Further, Section 101.800(c) provides that the IPCB considers the following factors

in determining whether to award sanctions: the relative severity of the refusal to comply, the

past history of the proceeding, the degree to which the proceeding has been delayed or

prejudiced, and the existence or absence of bad faith. As sated above, there was no refusal to

comply by Petitioner, as there was no order regarding Mr. Addleman’s appearance at hearing

and Petitioner’s Witness List as respects Mr. Moran was preserving and issue for appeal.

Petitioner’s past history in this proceeding has been respectful, Petitioner has complied with

Hearing Officer Orders, and Petitioner has not violated any Order of this Board or the Hearing

Officer. The proceeding has not been delayed or prejudiced by the inclusion of the names of

the subject individuals in the witness list, and WMIII alleges no such delay or prejudice. And,

there is no bad faith on the part of Petitioner in filing the subject Witness List. Any allegations

to the contrary in WMII’s Motion should be, sanctioned and stricken, as they are bald.

conclusory and baseless allegations, and are contrary to the facts in this case. The Motion is

no more than an attempt to bully and delay Petitioner in its preparation for the t~irstday of

hearing, by forcing Petitioner to respond to this baseless Motion.

•

11. Finally,

Petitioner seeks monetary sanctions, its attorneys’ fees for, apparently, the

entire appeal, as a sanction against Petitioner Watson for asserting his rights in filing a legal

and timely Witness List. Petitioner’s request is in defiance to Illinois Pollution Control Board

Rule 101.800, and well-established holdings, providing that Section 101.800 does not allow the

5

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Board to monetarily sanction the offending party.

(See

Revision of the Board’s Procedural

Rules:

35

Ill. Adm. Code 101-130, R00-20, slip op. at 7 (Dec. 21, 2000), where the Board

eliminated language allowing the Board to sanction with reasonable costs incurred by the

moving party in obtaining an order for sanctions;

also see.

Rebecca S. Lawrence v. North

Point Grade School, PCB No. 02-10 (April 3, 2003)(denying request for fees in preparing

motion for sanctions, as not allowed by the IPCB rules). Further, based on WMII’s own

argument for imposing sanctions against Watson, sanctions should be imposed on WMII for

making this request, which has repetitively been denied by the IPCB and is clearly not allowed

in its Rules.

WHEREFORE, WMII’s Motion to Bar and for Sanctions should be denied for the

reasons stated above.

Dated: May

5,

2003

PETITIONER MICHAEL WATSON

Jennifer J. Sackett Pohlenz

QUERREY & HARROW,

LTD.

175

West Jackson Boulevard, Suite 1600

Chicago, Illinois 60604

(312) 540-7000

Attorney Registration No. 6225990

Aftorneys for Petitioner Michael Watson

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