0198-001
CITY OF KANKAKEE,
Petitioner,
V.
ILLINOIS POLLUTION CONTROL BOARD
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.
Respondents.
)
)
PCB 03-1 25
)
PCB 03-1 33
)
PCB 03-1 34
)
PCB 03-1 35
)
(consolidated)
)
(Pollution Control
)
)
RECEIVED
CLERK’S OFFICE
MI~~Y
I S 2003
STATE OF ILLINOIS
Pollution Control Board
Facility Siting Appeals)
To:
(See attached Service List.)
NOTICE OF FILING
PLEASE TAKE NOTICE that on this 13th day of May 2003, the following County’s
Response to City’s Motion for Sanctions
was filed with the Illinois Pollution Control
Board, attached and herewith served upon you.
Elizabeth S. Harvey
SWANSON, MARTIN & BELL
One IBM Plaza, Suite 2900
330 North Wabash Avenue
Chicago, Illinois 60611
Telephone: (312) 321-9100
Firm l.D. No. 29558
COUNTY OF KANKAKEE and
COUNTY BOARD OF KANKAKEE
By
CERTIFICATE OF SERVICE
I, the undersigned, state that I served a copy of the described document in the above-
captioned mattervia hand-delivery to the hearing officer and U.S. Mail to all persons listed on the
service list on May
13,
2003.
~j~nette M. Podlin
x
Under penalties as provided by law
pursuant to 735 ILCS 5/1-1 09, I certify
that the statements set forth herein
are true and correct.
SERVICE LIST
KANKAKEE
COUNTY!WMII LANDFILL SITING
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Charles F. Helsten
Richard Porter
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105
Kenneth A. Leshen
One Dearborn Square
Suite 550
Kankakee, IL 60901
Donald Moran
Pedersen & Houpt
161 North Clark Street
Suite 3100
Chicago, IL 60601-3242
George Mueller
George Mueller, P.C.
501 State Street
Ottawa, IL 61350
L. Patrick Power
956 North Fifth Avenue
Kankakee, IL 60901
Jennifer J. Sackett Pohlenz
Querry & Harrow, Ltd.
175 West Jackson Boulevard
Suite 1600
Chicago, IL 60604
Keith Runyon
165 Plum Creek Drive
Bourbonnais, IL 60914
Kenneth A. Bleyer
Attorney at Law
923 West Gordon Terrace, #3
Chicago, IL 60613-2013
Leland Milk
6903 S. Route 45-52
Chebanse, IL 60922-5153
Patricia O’Dell
1242 Arrowhead Drive
Bourbonnais, IL 60914
0198-001
ILLINOIS POLLUTION CONTROL
BOARD
RECEIVEI~
CLERK’S OFFICE
CITY OF KANKAKEE,
)
MAY 13 2003
)
PCB 03-125
STATE OF
ILLINOIS
Petitioner,
)
PCB 03-133
Pollution
Control
Board
)
PCBO3-134
v.
)
PCB03-135
)
(consolidated)
COUNTY OF KANKAKEE, COUNTY
)
(Pollution Control Facility Siting
Appeals)
BOARD OF
KANKAKEE, and WASTE )
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
RESPONSE
TO CITY’S MOTION FOR SANCTIONS
Respondent COUNTY BOARD OF KANKAKEE (“County”), by its attorneys
Hinshaw & Culbertson and Swanson, Martin & Bell, hereby responds to petitioner the
CITY OF KANKAKEE’s (“City”) motion for sanctions.
1. The City served its motion for sanctions, via facsimile, on the County on or about
May 1, 2003.1 The City seeks sanctions for the County’s alleged failure or delay
to product audio tapes of certain County Board and committee meetings.
However, the City’s motion fails, both procedurally and substantively.
2. First, it is unclear whether the City (as opposed to petitioner Watson) had actually
sought those audio tapes in its discovery requests to the County. However, the
County’s counsel had already agreed, prior to the filing of the motion, to produce
those tapes to the City as a courtesy. In fact, those tapes were produced to the
City’s attorney on the very morning on which the motion for sanctions was faxed
to the parties. Thus, the tapes had been produced to the City before the County
was aware of the motion for sanctions, thus mooting the motion for sanctions.
3. Second, the City failed to follow accepted procedure by moving to compel the
The hearing officer has allowed the County to and including May 13, 2003, to file its response
to the City’s motion for sanctions.
production of the tapes prior to seeking sanctions for the alleged “failure” to
produce the tapes. Despite the City’s unsupported allegations that the County
had been directed to produce the tapes, those tapes had never been at issue
before the Board or the hearing officer. The City did not file a motion to compel,
and there was no prior directive to produce the tapes.
4. Third, the City’s claim that its ability to depose some County Board members was
compromised by the lack of the audio tapes fails. The County had already
agreed, and agreed again during the May 1, 2003 status conference with the
hearing officer, to produce County Board members for further deposition after the
tapes were produced to the City. In fact, at least one of the County Board
members (Mr. Kruse) had not been deposed prior to the production of the tapes,
and was deposed the day after the tapes were produced. Despite the County’s
willingness to allow further deposition of County Board members on the potential
issues raised by the tapes, the City did not seek a single additional deposition
based on those tapes. In fact, at hearing the City stipulated to the deposition
testimony of all deposed County Board members as their hearing testimony, thus
passing up another opportunity to question the County Board members as to any
issue raised by the tapes. In short, the City cannot have suffered any prejudice
from any delay in producing the tapes, as the City did not take advantage of its
ability to question County Board members after the production of the tape. To
any extent that the City somehow claims prejudice, that claim is waived by the
City’s failure to seek further deposition or hearing testimony.
5. Finally, the City’s only requested sanction---that the start of the hearing be
delayed if necessary---is also moot. The Board hearings in this case took place
on May 5 and 6, 2003. The City had received all tapes on May 1, 2003, deposed
Mr. Kruse on May 2, 2003, and did not seek further deposition of any County
Board member. The City also chose not to call any County Board member as a
2
witness at hearing. Most importantly, the City did not reiterate its request to
delay the hearing at any time after the filing of its motion for sanctions. The
hearing had now occurred, without objection by the City. Thus, the City’s only
requested sanction is now moot.
6. In sum, the County moves the Board to deny the City’s motion for sanctions, as
both procedu~alIyimproper and as
substantively unfounded.
Respectfully submitted,
COUNTY OF KANKAKEE and
COUNTY BOARD OF KANKAKEE
By:
Charles F. Helsten
Richard Porter
Hinshaw & Culbertson
100 ParkAvenue
P.O. Box 1389
Rockford, IL 61105-1389
815/490-4900
Elizabeth S. Harvey
Swanson, Martin & Bell
One IBM Plaza, Suite 2900
330 North Wabash Avenue
Chicago, IL 60611
312/321-9100
3