~5448-POH
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
MICHAEL WATSON,
vs.
Petitioner,
COUNTY BOARD OF KANKAKEE COUNTY,
ILLINOIS, and WASTE MANAGEMENT OF
ILLINOIS, INC.,
Respondent.
RECEWE~j)
JUN 2 02003
STATE OF ILLiNOIS
Pollution Control Board
(Pollution Control Facility Siting Appeal)
Consolidated With PCB 03-125, 03-133,
03-135)
TO:
See Attached Service List
NOTICE OF FILING
PLEASE TAKE NOTICE that on June 20, 2003, we filed with the Illinois Pollution
Control Board, the attached Motion to Strike “Public Comments” No. 3 and No. 4
Submitted by
Joan Lane and Mike Van Mill, a
copy of which is attached hereto and served
upon you.
Jennifer J. Sackett Pohlenz
QUERREY & HARROW,
LTD.
175 West Jackson Boulevard
Suite 1600
Chicago, Illinois 60604
(312) 540-7000
Attorney Registration No.
6225990
Attorneys for Petitioner Michael Watson
Document #: 826989
QUERREY & HARROW, LTD.
No. PCB 03-134
Printed on Recycled Paper
PROOF OF SERVICE
Alesia Mansfield, a non-attorney, on oath states that she served the foregoing
Notice
of
Filing, along
with copies of document(s)
set forth in
this
Notice, on the following parties and persons at their respective
addresses/fax numbers, this 2O~I~day of June, 2003, by or before the hour of 4:30 p.m. in the manners stated
below:
Via Facsimile
Donald Moran
Pedersen & Houpt
161 North Clark Street
Suite 3100
Chicago, IL 60601-3242
Fax: (312)261-1149
Attorney for Waste Management of Illinois, Inc.
Via Facsimile
Kenneth A. Leshen
One Dearborn Square
Suite 550
Kankakee, IL 60901
Fax: (815) 933-3397
Representing Petitioner
in
PCB 03-125
Via Facsimile
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 60922-5 153
Interested Party
Via Facsimile
Charles Heiston
Richard Porter
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, Illinois 61105-1389
Fax: (815) 490-4901
Representing Kankakee County Board
Via U. S. Mail
Patricia
O’Dell
1242 Arrowhead Drive
Bourbonnais, IL 60914
Interested Party
Via Facsimile
Keith Runyon
1165 Plum Creek Drive
Bourbonnaise, IL 60914
Fax: (815) 937-9164
Petitioner in PCB 03-135
Via Facsimile
L. Patrick Power
956 North Fifth Avenue
Kankakee. IL 60901
Fax: (815) 937-0056
Representing Petitioner in
PCB
03-125
Via Facsimile
Elizabeth S. Harvey, Esq.
Swanson, Martin & Bell
One IBM Plaza, Suite 2900
330 North Wabash
Chicago, IL 60611
Fax: (312) 321-0990
Representing Kankakee County Board
Via 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
~aMansfield
Printed on Recycled Paper
CLERK’S OFFICE
65448-POH
JUN ° ~
____________________________________BEFORE
THE
ILLINOIS POLLUTION CONTROL
BOAR)
STATE OF
‘~
ILLINnIS
U
MICHAEL WATSON,
Pollution Control Board
Petitioner,
No. PCB 03-134
V.
(Pollution Control Facility Siting
COUNTY BOARD OF
KANKAKEE
Appeal)
COUNTY, ILLINOIS, and WASTE
MANAGEMENT OF
Consolidated With PCB 03-125, 03-133,
ILLINOIS, INC.,
03-135)
Respondents.
PETITIONER MICHAEL WATSON’S MOTION TO
STRIKE
“PUBLIC COMMENTS”
NO. 3 AND NO. 4 SUBMITTED BY
JOAN LANE AND MIKE VAN
MILL
NOW COMES the Petitioner, Michael Watson, and pursuant to 35 IAC 101 .628(c)(2),
moves the Illinois Pollution Control Board (IPCB) to strike the Respondent, County of
Kankakee’s Affidavits of Joan Lane and Mike Van Mill, submitted as Public Comments No. 3
and 4, respectively (attached as
Exhibit A
hereto).
The IPCB should strike the submitted
Affidavits, as they contain evidence not present in the record, and the IPCB is limited in its
review to the record on appeal. In further support, Petitioner states as follows:
The Illinois Environmental Protection Act “requires that hearings conducted by the
Board on landfill siting decisions are to be based ‘exclusively on the record before the county
board or governing body of the municipality.” Am. Bottom Conservancy, et a!. v. Village of
Fairmont City, et a!., PCB No. 01-159, 2001 Ill. ENV LEXIS 489 (IPCB October 18, 2001)
(quoting
415 ILCS
5/40.1(b)
(2000)). “All public comments that are submitted after a hearing
must, present arguments or comments based on evidence contained in the record.” Id.
(citing
35 Ii!. Adm. Code 101.628(c)(2)).
In the instant case, the record is comprised of two components: (1) the record
formulated in the original proceeding before the Kankakee County Board; and (2) the record
formulated in the fundamental fairness hearing conducted on May
5-6,
2003 before the IPCB.
Respondent, County of Kankakee, through the affidavits of Joan Lane and Mike Van Mill, is
attempting to present new evidence not present in the record on appeal.
According to
American Bottom Conservancy, public comments submitted after hearing, which contain new
evidence not in the record, must be stricken. Striking the affidavits is proper according to
Illinois law, and works no hardship on the Respondent, as, presumably, Kankakee County
could have sought testimony from both Joan Lane (staff of one of the County’s outside
attorney’s lawfirm) and Mike Van Mill (County employee) at the fundamental fairness hearing
to the information contained in their affidavits, subject to cross examination. Respondent’s
attempt to admit this new “evidence” through affidavit, without having Mr. Van Mill or Ms.
Lane subject to cross-examination, pursuant to American Bottom Conservancy, is improper
and, thus, the affidavits should be stricken.
WHEREFORE, Petitioner Michael Watson respectfully requests the Illinois Pollution
Control Board to strike the “written comment” affidavits of Joan Lane and Mike Van Mill,
submitted as “Public Comments” No. 3 and 4, respectively.
2
Dated: June 20, 2003
Respectfully Submitted,
PETITIONER MICHAEL WATSON
By:___
Jennifer J. Sackett Pohlenz
QUERREY & HARROW,
LTD.
175 W. Jackson, Suite 1600
Chicago, Illinois 60604
(312) 540-7000
Attorneys for Michael Watson
Illinois Attorney No. 6225990
Document #: 835394
3
ILLINOIS POLLUTION CONTROL BOARD
CITY OF KANKAKEE,
)
)
Petitioner,
)
PCB 03-125
)
(Third-Party Pollution Control Facility
vs.
)
Siting Appeal)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAXEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
)
MERLIN KARLOCK,
)
)
Petitioner,
)
PCB 03-133
)
(Third-PartyPollution Control Facility
VS.
)
Siting Appeal)
)
COUNTY OF KANK.AKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
)
MICHAEL WATSON,
)
)
Petitioner,
)
PCB 03-134
)
(Third-Party Pollution Control Facility
vs.
)
Siting Appeal)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
)
KEITH RUNYON,
)
)
Petitioner,
)
PCB 03-135
)
(Third-Party Pollution Control Facility
VS.
)
Siting Appeal)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
Respondents.
)
EXHIBIT
70362652v1 3~549
AFFIDAVIT
I, JOAN LANE, the undersigned being first duly sworn on oath depose and state as
Follows:
1.
I am an employee ofHinshaw & Culbertson and the Administrative Assistant for
Charles F. Heisten who is a Special Assistant State’s Attorney for the County of Kankakee for
environmental and solid waste matters.
2.
Mr. Heisten and Hinshaw & Culbertson were hired by the State’s Attorney for the
County ofKankakee in late 2001.
3.
At the time that Hinshaw & Culbertson and Mr. Heisten were hired by the
Kankakee County State’s Attorney, a file was opened, Matter Number 809319, at which time the
matter was referred to as the “Kankakee County Landfill”.
4.
I was responsible for opening the file for Mr. Heisten, and at that time I
inadvertently listed the Kankakee County Landfill as the both the “matter” and the “client”.
5.
The landfill itself was not the client.
6.
Since the date that Hinshaw was first retained by the Kankakee County State’s
Attorney several other files have been opened for Hinshaw’s representation of the State’s
Attorney, Kankakee County or Kankakee County staff, including Matter Numbers, 813053,
813333, and 815142.
7.
I used the “file intake sheet” for Matter Number 809319 as a template for the file
intake sheets for Matter Numbers 813053, 813333, 815142 and any other file opened on behalf
of the Kankakee County State’s Attorney, Kankakee County or Kankakee County staff.
8.
Because I used the file intake sheet for 809139 as a template for the subsequent
files, the same typographical error referencing that the client was “Kankakee County Landfill”
was made in each ofthese subsequent files.
9.
All of the bills concerning the application to expand the landfill operated by
Waste Management in Kankakee County have been paid by Kankakee County.
2
7O362652v 826549
10.
The reference to “Kankakee County Landfill” as the client on the file intake sheet
was merely an inadvertent typographical error.
11.
The result of the client being identified as Kankakee County Landfill on the file
intake sheets was that the invoices sent to Kankakee County State’s Attorney Edward Smith
erroneously indicated “Represent: Karikakee County Landfill”.
12.
In January 2003, I had the error corrected on all ofthe files.
13.
At no time has Hinshaw & Culbertson represented the Kankakee County landfill
or its operator, Waste Management of Illinois, Inc., in regard to any siting application, host
agreement negotiation, or otherwise, in Kankakee County.
FURTHER AFFIANT SAYETH NOT.
Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil
Procedure, the undersigned certifies that the statements set forth in this instrument are true and
correct, except as to matters therein stated to be on information and belief and as to such matters
the undersigned certifies as aforesaid that she verily believes the sa e
t
be true.
SUBSCRIBED and SWORN to
before me this ~/,.jt~iay of May, 2003.
~
~.
~
Notary Public
r
~~CtAL
3~.AL
~~i~c~ows~
70362652v1 826549
ILLiNOIS POLLUTION CONTROL BOARD
CITY OF KANKAKEE,
)
)
Petitioner,
)
PCB 03-125
)
(Third-Party Pollution Control Facility
vs.
)
Siting Appeal)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
)
MERLIN KARLOCK,
)
)
Petitioner,
)
PCB 03-133
)
(Third-Party Pollution Control Facility
vS.
)
Siting Appeal)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
)
MICHAEL WATSON,
)
)
Petitioner,
)
PCB 03-134
)
(Third-Party Pollution Control Facility
VS.
)
Siting Appeal)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
)
KEITH RUNYON,
)
)
Petitioner,
)
PCB 03-135
)
(Third-Party Pollution Control Facility
VS.
)
Siting Appeal)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
~fl1CflL ~
Q~’~~1O
AFFIDAVIT
I, MIKE VAN MILL, the undersigned being first duly sworn on oath depose and state as
follows:
1.
I am the Kankakee County Planning Director.
2.
I am familiar with the attorneys that have been hired by the County of Kankakee
to assist in the legal aspects ofthe County’s environmental and solid waste management issues.
3.
In 2001 Attorney Charles Heisten and the law firm of Hinshaw & Culbertson
were hired by the State’s Attorney for County ofKankakee.
4.
At various times Hinshaw & Culbertson has represented the County of Kankakee,
County staff, andlor the Kankakee County State’s Attorney.
5.
At no time did the State’s Attorney, Kankakee County, or Kankakee County staff
retain Hinshaw & Culbertson or Mr. Heisten to represent Waste Management of Illinois, the
operator ofthe Kankakee County Landfill.
6.
.
The County ofKankakee has paid all of Hinshaw & Culbertson’s invoices which
are in any way associated with the negotiation of a host agreement with Waste Management of
Illinois.
7.
The County of Kankakee has paid all of Hinshaw & Culbertson’s invoices
concerning the application of Waste Management of Illinois to site a landfill expansion in
Kankakee County.
FURTHER AFFIANT SAYETH NOT.
Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil
Procedure, the undersigned certifies that the statements set forth in this instrument are true and
correct, except as to matters therein stated to be on information and belief and as to such matters
the undersigned certifies as aforesaid that he verily elieves the same to be true.
MIKE VAN M~1
SUBSCRIBED and SWORN to
be~r~methis
~
~d~of May, 2Q03.
(-~~~id~i--
/
‘
‘
“~
~
~
)If
‘~‘~
“OFFICIAL
ANGELA
L SCHNELL
SEAL
Notar3f~’ublic
NOTARY PUBUC, STATE OF LLUNOIS
2
MY COMMISSION EXPIRES
08108/05