COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
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PCB
03-125
(Third-Party Pollution Control
Facility Siting Appeal)
RECE~VED
CLERK’S OFFICE
AUG 06 2004
STATE OF ILLINOIS
Pollution Control Board
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CITY OF KANKAKEE,
V.
Petitioner,
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Respondents.
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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.
PCB 03-133
(Third-Party Pollution Control
Facility Siting Appeal)
PCB 03-134
(Third-PartyPollution Control
Facility Siting Appeal)
PCB
03-135
(Third-Party Pollution Control
Facility Siting Appeal)
KEITH RUNYON,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
DJM
394385
vi August 6,2004
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on August 6, 2004, we filed with the Illinois Pollution
Control Board, the attached WASTE MANAGEMENT
OF ILLINOIS, INC.’S MOTION
FOR RELIEF FROM JUDGMENT
in the above entitled matter.
Donald J. Moran
PEDERSEN & HOUPT
Attorneys for Petitioner
161 N. Clark Street
Suite 3100
Chicago, IL 60601
Telephone: (312) 641-6888
W~TEMANAGEMEWT OF ILLINOIS, INC.
By~~~/
~
Donald J. ~4oran
One of It Attorneys
DJM
394385
vi August 6,2004
PROOF OF SERVICE
Victoria L. Kennedy, a non-attorney, on oath states that she served a copy of the foregoing
WASTE MANAGEMENT
OF ILLINOIS,
INC.’S
MOTION FOR RELIEF FROM JTJI~GMENT
on the following parties by hand delivery to Hearing Officer Bradley Halloran at 100 West Randolph
Street, Suite 11-500, Chicago, Illinois 60601 on this 6th day of August, 2004, and by depositing said
copy in the U.S. mail at 161 N. Clark St., Chicago, Illinois 60601, on this 6th day of August, 2004 to all
other parties at their addresses indicated below:
Ms. Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
Bradley Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11th Floor
Chicago, Illinois 60601
Kenneth A. Leshen, Esq.
One Dearborn Square, Suite
550
Kankakee, IL 60901
Keith Runyon
1165 Plum Creek Drive, Unit D
Bourbonnais, IL 60914
Charles F. Helsten, Esq.
Richard S. Porter, Esq.
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
Jennifer J. Sackett Pohlenz, Esq.
Querrey & Harrow
175
W. Jackson Boulevard, Suite 1600
Chicago, IL 60604
Elizabeth Harvey, Esq.
Swanson, Martin & Bell
One IBM Plaza
Suite 2900
330 North Wabash
Chicago, IL 60611
L. Patrick Power, Esq.
956
North Fifth Avenue
Kankakee, IL 60901
George Mueller, Esq.
501 State Street
Ottawa, IL 61350
Victoria L. Kenne y
DJM
394385
vi August 6,2004
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOAR)
RECE~VED
CLERK’S OFFICE
AUG 062004
STATE OF ILLINOIS
Pollution Control board
CITY OF KANKAKEE,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
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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.
PCB
03-125
(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)
KEITH RUNYON,
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)
Petitioner,
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v.
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COUNTY OF KANKAKEE, COUNTY
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BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.,
)
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Respondents.
)
394330
MOTION FOR
RELIEF
FROM JUDGMENT
Respondent Waste Management of Illinois Inc. (“WMII”), pursuant to Illinois Pollution
Control Board (“IPCB”) Procedural Rule 10l.904(b)(1), moves for the entry ofan order granting
relief from the August 7, 2003 Order vacating the Kankakee County Board’s January 31, 2003
approval based upon newly discovered evidence. This evidence establishes that Brenda Keller
received and had knowledge ofpre-fihing notice, and warrants reversal ofthe IPCB decision that the
Kankakee County Board lacked jurisdiction to consider the local siting application on the ground
that Mrs. Keller did not receive pre-fihing notice. In support of this motion, WMII states the
following:
I. PROCEDURAL BACKGROUND
On August 16, 2002, WMII filed an application for site location approval (“Application”)
with Respondent County of Kankakee (“Kankakee County”) to be reviewed and decided by the
Kankakee County Board (“County Board”) pursuant to Section 39.2 ofthe Illinois Environmental
Protection Act (the “Act”). 415 ILCS
5/39.2
(2002). The Application requested local siting
approval for an approximate 302-acre expansion ofthe existing Kankakee Recycling and Disposal
Facility (“Kankakee Landfill”) located in unincorporatedKankakee County, Illinois. OnJanuary 31,
2003, after 11 days of public hearings conducted from November 18 to December 6, 2002, the
County Board granted local siting approval in a seven-page written decision (“Approval”).
Respondents City of Kankakee (“City of Kankakee”), Merlin Karlock (“Karlock”), Keith
Runyon (“Runyon”), and Michael Watson (“Watson”) filed third-party appeals with the IPCB,
contesting the Approval,
inter alia,
on the groundthat the County Board lackedjurisdiction to decide
the Application based on an alleged failure to serve certain persons with notice ofWMII’s intent to
394330
2
file the Application in accordance with Section 39.2(b) ofthe Act. ‘Respondents also contested the
Approval on other grounds not raised in this appeal.
On August 7, 2003, the
IPCB issued
an Opinion and Order (“August 7 Order”), reversing the
Approval. The IPCB held that the County Board lackedjurisdiction todecide1heApplicationbased
solely on the IPCB’s determination that one property owner, Mrs. Keller, did not receive pre-filing
notice. Specifically, the August 7 Order states:
The issue ofwhether ornot proper notice to landowners was provided under Section
3 9.2(b) ofthe Act (415 ILCS
5/39.2(b)(2002))
is a threshold issue. Failureto provide
notice under Section 39.2 ofthe Act (415 ILCS 5/39.2(b)(2002)) divests the County
Board ofjurisdiction in this landfill siting appeal. After a careful examination ofthe
record and the arguments presentedby the parties the Board finds that proper notice
was not provided to Brenda Keller and the Board will vacate the decision of the
County for lack ofjurisdiction. * * * Since the Board has found that the County
Board lackedjurisdictionto review the siting application, the Boardneed not address
the remaining issues regarding fundamental fairness and the criteria raised by the
parties.
On September 12, 2003, WMII filed a motion to reconsider and vacate the August 7 Order
based on the IPCB’s errors in applying existing law. The IPCB denied WMII’s motion to reconsider
on October 16, 2003 (“October 16 Order”), on the ground that the motion did not present new
evidence or a change in the law that indicated the IPCB’s decision was in error.
Section 3 9.2(b) ofthe Act requires applicants to give pre-filing notice ofthe intent to file a
siting application to certain property owners. Section 3 9.2(b) provides, in pertinent part:
No later than 14 days before the date on which the county board or
governingbody of the municipality receives a request for site approval,
the applicant shall cause written notice of suchrequest to be served
either in person or by registered mail, return receipt requested, on the
owners ofall property within the subject areanot solely owned by the
applicant, and on the owners ofall propertywithin 250 feet in each
direction ofthe lot line of the subject property, said owners being such
persons or entities which appear from the authentic tax records ofthe
County in which such facility is to be located
415 ILCS
5/39.2(b)
(2002)
394330
3
WMII appealed the August 7 and October 16 Orders to the Appellate Court.
Waste
Management ofIllinois, Inc. v. Illinois Pollution Control Board, et a!., No. 3-03-0924 (3dDist.)
The appeal challenges the reversal by the IPCB ofthe Approval, and asserts that Mrs. Keller was
provided pre-fihing notice. During the pendency of this appeal, new evidence was discovered
establishing that contrary to the IPCB’s findings, Mrs. Keller was in actual receipt ofpre-fihing
notice as required by Section 39.2(b). Relieffrom the judgment is therefore warranted.
Public hearings on the Application
II.
were
FACTS
held before
2
the County Board between November
18 and December 6, 2002. (C 1244-1272). At the start ofthe public hearings, Objectors Karlock and
Richard Murrayfiledthreemotions to dismiss the proceedings due to an alleged lack ofjurisdiction
for failure to serve notice on certain property owners. (C1244 at
45-105).
The Hearing Officer
denied the motions. (C 1244 at 61, 68, 104).
On December 4, 2002, near the conclusion ofthe public hearings, a fourth motion to dismiss
the proceedings for lack ofjurisdiction was filed by Objector Watson (“Watson Motion”). Watson
claimed that Mr. Robert Keller and Mrs. Keller, husband and wife, residing at
765
East 6000 South
Road, Chebanse, Illinois, never received notice. (C1268 at
105-107).
A.
Testimony from Evidentiary Hearing on Issue of
Notice
to The Kellers
To address the notice issueraised in the Watson Motion, the Hearing Officer heard testimony
from special process server, Ryan Jones (“Jones”), aswell as from Mr. and Mrs. Keller on December
5,
2002. Their testimony disclosed the following.
2 References to the Common Law Record will be cited herein as “(R. CL vol.
—,
p. 00000J”.
References to the transcripts ofthe public hearingsheld before the County Board on November 18
through December 6, 2002 will be cited as “(C
atJ”.
394330
4
The Kellers were personal friends ofObjector Watson, and had a socialrelationship with him
forover threeyears. (C 1271 at 63-64, 104-105). Watson operatesUnited Disposal ofBradley, Inc.,
a waste haulerand waste transferfacility,that competes with WMII in KankakeeCounty. Mr. Keller
hauled garbage for Watsonwithout beingpaid. (C1271 at
105).
Jones was a licensed process server with Diligent DetectiveAgency in Clifton, Illinois, and
was assigned the responsibility ofserving notice on the Kellers. (C 1271 at
5-6,
44,46-47). Between
the four-day period of Monday, July 29 through Thursday, August 1, 2002, at various times
throughout the day and evening, Jones made five separate attempts to personally serve Mrs. Keller
at the
765
East 6000 South Road address. (C1271 at
7-15,
18, 21-23, 26-27,
35, 58-59).
On all five
attempts, Jones repeatedly knocked on the front and side doors ofthe Kellerhome. Except on July
31, whena woman who refused to give her name or accept notice cameto the door, no one answered
the knocks on either door.
Jones made his fifth and final attempt on Thursday, August 1, 2002 at approximately 12:19
p.m. (C1271 at 12). Jones again knocked on both doors, and getting no response, posted a copy of
the notice to the side door, which had a window located at eye level. (C 1271 at 12-14). Jones posted
the notice in the window portion ofthe door, which was about five feet from the ground. (C1271
at 12-14). Jones posted the notice by securelyaffixing it to the window surface ofthe door withtwo
strips of packing tape at the top and bottom of the notice. (C1271 at 13-15).
On August 1, 2002, Mrs. Keller arrived home from work at around 4:00 p.m. (C1271 at 73-
74). She entered her home via the side door. (C1271 at 74). The notice Jones posted at around
12:19 p.m. would have been prominently affixed to that door. (C1271 at
12-15).
At the evidentiary hearing, Mrs. Keller claimed that she did not “find” any posted notice at
394330
5
her home onAugust 1, 2002. She did not state orexplain how the posted notice came to be removed
from the door to her residence. (C1271 at 73-74). No evidence was provided establishing how the
notice disappeared orwas removed from the premises.
At Watson’s request, both Kellers also signed affidavits in support of the Motion. On
November 9, 2002, two Saturdays before the public hearings began, Mr. Keller and Watson made
a plan for the Kellers to sign affidavits claiming that they never received notice. (C 1271 at 77-81,
95-97). Watsonwent to the Kellers’ residence on Thanksgiving Day,November28, 2002, and asked
Mrs. Keller to sign an affidavit asserting that she never received notice. Watson asked Mrs. Keller
to sign the affidavit, without any discussion or explanation as to its purpose or contents. (C1271
at 78-80,
95-96).
She testified that she signed the affidavit “simply because Mr. Watson asked” her
to. (C1271 at 90).
Both Kellers testified that they did not know who prepared the affidavits, and had never
talked with anyone to provide information orverify the accuracy ofthe statements contained in the
affidavits prior to signing. (C1271 at 78-83, 90, 95-97, 119-122).
The Watson Motion was filed on December 4th. In the Watson Motion, Watson stated that
the Kellers did not observe the notice posted “on the door of the Keller’s sic home.” (Watson
Public Hearing Ex. 4 at p. 2). At the time the Watson Motion was filed,
there was no testimony or
other evidence in the record indicating where the process serverposted the notice.,
After hearing testimony from Jones and the Kellers, and oral argument from legal counsel,
the Hearing Officer denied Watson’s motion to dismiss. (C1271 at 148). On January 31, 2003, the
CountyBoard determinedthat sufficient pre-filing notice was established and that it hadjurisdiction
to decide the Application. The County Board then granted the Approval. On appeal, the IPCB
reversed the Approval in its August 7 Order.
394330
6
B.
Newly Discovered Evidence ofActual Section 39.2(b) Notice
to Robert and Brenda Keller.
Following the IPCB reversal, WMII not only appealed, but also filed a second siting
application (the “Second Application”) with the KankakeeCounty Board. Although identical in all
material respects with the prior Application, the Second Application was deniedfor failure to satisfy
criteria one, threeand six ofSection 39.2(a). W~vIllfiled an appeal to the IPCB on the basis that the
denial was reached as a result offundamentally unfair procedures and that the rejection ofcriteria
one, three and six was againstthe manifest weight ofthe evidence. This appeal is pending as
!VMII
v. County Board of Kankakee County, No. PCB 04-186 (P. C.B. April 21, 2004)
(“Kankakee
Appeal”).
On July20, 2004, during the course ofdiscovery conducted in the KankakeeAppeal, WMII
took the deposition ofCounty Board Member Lisa Latham Waskosky(“Waskosky”). The transcript
of the Waskosky deposition is attached as Exhibit A. Waskosky recounted that she first met the
Kellers because of their mutual interest in scuba diving and that they shared mutual friends.
(Exhibit A at
53-56).
Waskosky further testified to a conversation with Mr. Keller in August of
2002, prior to her election to the County Board in November, 2002. Duringthe conversation in the
parking lot ofa local retailer in Kankakee County, Mr. Keller admitted to Waskoskythat both he
and his wife had actual knowledge of the pre-filing notice posted at their home. Specifically,
Waskosky testified as follows:
Q.
Who is Rob Keller?
A.
Rob Keller is the person from the first application that stated he did not receive
notification.
394330
7
Q.
And when you saythe first application, you’re referring to the application that was
filed on August 16th of2002?
A.
That is correct.
Q.
Andhow do you know that Rob Kellerhad claimed that he did not receive notice for
the first siting application, the one filed on August 16th of2002?
A.
Because Mr. Keller told me himself prior to my election to the county board that
notice had been served and affixed to their door and he instructed his wife, Brenda
Keller, not to touch it or open it because if she didn’t, then she hadn’t been served.
Q.
And he was referring to a notice that was posted on their door at theirhome?
A.
That is correct.
Q.
And how did you learn this?
A.
In a conversation with Mr. Keller.
Q.
In a conversation you had directly with Mr. Keller?
A.
Right. (Exhibit A at 46-47).
Ms. Waskoskyprovided the details of the conversation as well, saying:
Q.
Ifthese notices were sent out at the end ofJuly of2002, would it be accurate to say
that your discussion with him about these notices occurred sometime after July of
2002?
A.
The discussion occurred immediately after the notice was—within a week of the
notice being placed on his door. (Exhibit A at 64).
***
Q.
And how did Mr. Keller approach you in the parking lot?
A.
He was going in for whatever reason. Hey, how you doing, (indicating), and that
kind of thing.
A.
Yes, that was a wave, I’m sorry.
394330
8
Q.
And what did he say to you then?
A.
He came over, he chatted for a few minutes, and then he indicated something about
—trying to think exactly how he put it. Something to the effect that, I don’t know
who he was indicating, they are so F-ing stupid that they put that F-ing notice on our
door and just left it, and I told the old lady not to touch it, don’t open it, just leave it
where it’s at and we never got it. You didn’t read it, we never got it.
Q.
And when you say he said the old lady, who was he referring to?
A.
I’m assuming Brenda Keller.
Q.
Andwhat’s the basis ofthat assumption?
A.
Well, he’s referred to her as the old lady a few times.
Q.
Oh, he has?
A.
Yes.
Q.
And he had referred to her as that prior to that occasion?
A.
Yeah. (Exhibit A at 66-67).
***
Q.
What else did he say to you regardingthe notice that was serit’tci hiwliome or that was
posted on his door?
A.
That it was still there.
Q.
It was still on his door—
A.
Uh-huh.
Q.
—as ofthe day he spoke with you?
A.
TJh-huh. (Exhibit A at 67-68).
***
Q.
What else did he say about any notice that went to his home?
A.
Thatwas prettymuch it. He was laughing at himselfand appearing to be quite proud
ofhis cleverness. And then I concluded the conversation, said I am freezing to death,
I got to get in the car, I got to go.
394330
9
Q.
And when you sayhe was referring to his cleverness, what did you understand that
cleverness to be?
A.
Thathe had outsmarted somebody.
Q.
And did he indicate that he was going to deny that he had received any suchnotice?
A.
That was the indication.
Q.
Did he indicate that his wife Brenda or the old lady—
A.
The old lady.
Q.
—was going to deny that she received any notice?
A.
That was the indication. (Exhibit A at 68-69).
***
Q.
And you said before that this discussion occurred about a week after the notice was
posted. What was the basis for your conclusion that the discussion occurred shortly
afterthe notice had been posted? Did he make some reference to it ordid he indicate
that it had been recentlyposted?
A.
No. All he said was it was still there, so I was thinking it had to be fairlyrecently for
it to still be stuck on the door.
Q.
Did he in any waydescribe orstate how the notice was affixed to the door? In other
words, with nails, with tape, with
—
A.
He said it was taped to the door. (Exhibit A at 70-71).
III. ANALYSIS
A.
The IPCB Has the Power to Grant Relief from Final Orders.
IPCB Procedural Rules, Section 101 .904(b)(1), states:
On written motion, the Board may relieve a party from a final order
entered in a contested proceeding, for the following:
(1)Newly discoveredevidence that existedat the time
of hearing and that by due diligence could not have
been timely discovered.
Accordingly, the IPCB has the express power to grant relief from the August 7 Order.
394330
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B.
ReliefBased upon Newly Discovered Evidence.
WMII respectfully requests the entry ofan order granting relief from the August 7 Order,
based upon the newly discovered evidence provided by Waskosky. Such an order is justified (i)
because the evidence provided by Waskosky is “newly discovered” asthat term is defined in the case
law, (ii) Robert Keller’s statements established that both he arid. Mrs .Kellerreceived and had actual
knowledge ofthe posted notice, and (iii) the evidence of actual pre-filing notice to the Kellers is
material to the outcome ofthisjurisdictional issue, as the alleged absence ofsuchnotice was the
sole
basis for the IPCB’s decision to reverse the Approval.
1.
Standards for Relief.
While no reported decisions could be found specifically construing Section 101.904(b)(1),
the Section is similar to the provisions ofthe Illinois’ Code ofCivil Procedure governing relieffrom
final judgments based on newly discovered evidence. 735 ILCS 5/2-1401 (2002). The Section is
also similar to the motion fornewtrial based upon newly discovered evidence, which has the same
standards as the Section 2-1401 petition for relief from final judgment. The application of these
standards here establish that relief from the August 7 and October 16 Orders is warranted.
Section 2-1401 ofthe Code ofCivil Procedure (formerlysection 72 ofthe Civil Practice Act
(Ill. Rev. Stat. 1981, ch. 110, par. 72) provides a statutory mechanism procedure by which final
orders, judgments, and decrees may be vacated by the trial court 30 days from the entry thereof.
Smith v. Airoom,
114 Ill. 2d 209,220-21 (1986);
accordAmericanAmbassador Casualty v. Jackson,
295
Ill. App. 3d 485, 489 (1998).
In order to be entitled to relief under section 2-1401, the newly
discoveredevidence must be (1) so conclusive that itwouidprobably
change the result if a new trial is granted; (2) discovered after the
trial; (3) ofsuchcharacter that it could not have been discoveredprior
to trial in the exercise ofdue diligence; (4) material to the issues; and
394330
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(5)
not merely cumulative to the trial evidence.
(Tuttle v. Fruehauf
Corp.
(1984), 122 Ill. App. 3d 835, 839, 462 N.E.2d 645, 78 Ill. Dec.
526.)
People v. Hallom, 265
Ill. App. 3d 896, 906 (1st Dist. 1994)
2. Motion For New Trial.
A motion for a newtrial based upon newly discoveredevidence is reviewedupon exactly the
same standard as a petition under §2-1401:
First, it must appear to be of such conclusive character that it will
probably change the result if a new trial is granted; second, it must
have been discovered since the trial; third, it must be such as could
not have been discovered before the trial by the exercise of due
diligence; fourth, it must be material to the issue; and fifth, it must
not be merely cumulative to the evidence offered on the trial.
Kaster v. Wildermuth,
108 Ill. App. 2d 288, 291-292 (3d Dist. 1969) (citations omitted). Here,
applying applicable case law under these identical standards (either §2-1401 petition ormotion for
new trial), the newly discovered evidence establishing Mrs. Keller’s receipt ofpre-fihing notice
satisfies the requirements for relief from the August 7 and October 16 Orders.
a.
Highly Probable That Evidence of Pre-filing Notice Will Change the
Result.
Newly discovered evidence is sufficient to merit relief when the evidence will “probably
lead to a different result.”
Pritchett v. Steinker Trucking Co.,
40 Ill. 2d 510, 512 (1968).
While it is the general rule * * * that courts do not favor new trials on newly
discovered evidence and that unless the evidence appears to be such as would cause
a different verdict new trials should not be granted, yet where it appears likely that
upon a re-trial suchnewevidence would change the result, courts should not hesitate
to grant a new trial on account ofnew evidence.
People v. Cotell,
298 Ill. 207, 216-217 (1921)(new trial warranted where the veracity of witness
testimony which was the foundation of the state’s case was undermined by newly discovered
evidence);
Swiney v. Miller,
253 Iii. App. 81, 88 (3d Dist. 1929)( courts should not hesitate to grant
394330
12
a new trial on account of newly discovered evidence, where it is apparent or likely that it might
change the result upon a retrial);
cf Springer v. Schultz,
205 Ill. 144, 145 (1903)(judgment affirmed
where new evidence would not affect outcome);
Quagliano v. Johnson,
100111. App. 2d 444,448-49
(3d Dist. 1968) (husband’s motion for new trial due to new evidence was properly denied, where
evidence could only partially discredit witness).
In
Herington v. Smith,
138 Ill. App. 3d 28 (3dDist. 1985), a newtrial was granted where the
defendants expertwitness had lied about his credentials. Similarly, in
People v. Alfano,
95 Ill. App.
3d 1026 (2d Dist. 1981), the appellate court remanded the case for a new hearing where it was
discovered during the pendency ofhis appeal that the state’s expertwitness had perjured himself. In
Bezarkv. Kostner Manor, Inc.,
29111. App. 2d 106 (1st Dist.1961), apatient’s false denial ofa felony
conviction during a negligence action against a nursing horn’~required a newtrial’becausetbe denial
could have affected the outcome. Finally, in
Swiney,
a grandfather’s forgery defense to liability on
a note purportedly signed by both the grandfather and his grandson included testimony of the
grandsonthat he forged the grandfather’s signature. 253 Ill. App. at 88. After the trial, the grandson
made an affidavit, used in support of the motion for new trial, stating that his testimony at the trial
regarding his forgery was not true. The court found that the motion for a newtrial should have been
granted,
The central issue in this appeal is whether Brenda Keller received pre-filing notice. The
testimony provided by Waskosky directly addresses this issue as it (a) proves actual service ofthe
pre-filing notice upon Brenda Keller; (b) is an admission by Robert Keller ofreceipt ofthe pre-filing
notice by him and his wife; and (c) demonstrates that the Kellers’ knew ofthe implications ofthe
posted notice, and they left the pre-filing notice affixedto theirdoor purposefully to obviate service
394330
13
(which would lend credence to the conclusion, that the Kellers were constructively served under
circumstances where they were affirmatively avoiding service).
Ifthe IPCB were to determine that both Robert and Brenda Keller had actual receipt and
knowledge ofthe pre-filing notice, it is highly probable that the TPCB would reverse its August 7
Order, which was based solelyon the determination that Mrs. Kellerhad not been sufficiently served
pre-fihing notice.
b.
Discovery Since Trial.
Waskosky’sdeposition was takenon July20, 2004, in connectionwith the Kankakee Appeal.
The public hearingbefore the County Board in this case was held from November 18 to December 6,
2002. The County Board granted its Approval on January 31,2003. The IPCB issued its Opinion
and Order vacating the Approval on August 7, 2003. Hence, the new evidence adduced from
Waskosky post-dated the hearings before both the County Board and the IPCB.
3.
Newly Discovered Evidence.
“Newly discovered” is evidence that was not previously discoverable prior to judgment by
the exercise ofordinary diligence.
Andersen v. Resource Economics Corp.,
133 Ill. 2d 342, 347-348
(1990). “Ordinary diligence” requires that a party diligently use pretrial discovery procedures or
even adequate pretrial investigation.
Kaster v. Wildermuth,
108 Ill. App. 2d 288, 293 (3d Dist.
1969).
Here, there is no question that the testimony provided by Waskoskywas not discoverable
prior to judgment by the exercise of due diligence. The Watson Motion was presented at the start
ofWMII’s rebuttal on December 4, 2002. (Affidavit ofDonald J. Moran, Exhibit B, ¶14). The
public hearings concluded December 6, 2002. (Ex. B., ¶14). There was no opportunity or reason
394330
14
to conduct discovery or seek information regarding the Waskosky evidence during the siting
proceedings before the County Board. (Ex. B., ¶14).
Indeed, Waskosky’s existence was unknown to WMII at the time ofher conversation with
Robert Keller in which he admitted his contrivance to deny service. (Ex. B., ¶10). Waskosky’s
existence remained unknown until her election to the County Board in November 2002 (which
became effective on December 10, 2002, just after the public hearings were concluded).
(Ex. B., ¶11). Even after she was sworn in as a County Board member, WMII had no basis or
information to suspect that Waskosky either had a relationship with Robert orBrenda Keller, or that
she might have facts orinformation relatingto the Kellers’ receipt ofpre-filing notice. (Ex. B., ¶12).
In short, no witnesses, facts or documents in any way pointed to the slightest possibility that
Waskosky had either relevant or crucial information regarding this issue ofpre-fihingnotice on the
Kellers. (Ex. B., ¶13).
Wlv1ll sought to depose Waskosky in PCB 04-186 to establish facts and information relating
to the claim of fundamental unfairness in the decision on the Second Application. (Ex. B., ¶8).
WIvill had no information orreason to believe that Waskosky had any relationship with the Kellers
orknowledge oftheirreceipt ofpre-filing notice prior to scheduling her deposition in the Kankakee
Appeal. (Ex. B., ¶12). Thus, even as late as the pendencyof the Kankakee Appeal in April to July,
2004, WMII had no reason to know or discover the evidence ofWaskosky’s discussion with Mr.
Keller. (Ex. B., ¶17).
d.
The Evidence is Critical to the Sole Issue in this Appeal.
Waskosky’s testimony provides evidence that lies at the essence ofthis appeal: whether the
Kellers received pre-filing notice. The alleged lack of such receipt was the basis for the IPCB’s
decision. The evidence is material to prove receipt of the pre-filing notice by the Kellers.
394330
15
Waskosky’s testimony not only establishes the admission of actual notice (and correlatively
impeaches the Kellers’ version ofevents), but also indicates that the Kellers purposefullyobstructed
the fair administration ofthe hearingprocess with a specious jurisdictional objection. In effect, the
Kellers worked a fraud upon the judicial process which alone maybe sufficient to warrant remand
for hearing and consideration by the IPCB. Where perjured testimony would work fraud upon the
court, false testimony of a material witness may alone be sufficient to warrant a new trial.
Herington,
138 Ill. App. 3d at 31
citing Quagliano, 100111. App. 2d at 448.
e.
Waskosky’s Evidence is Not
Cumulative.
Waskosky’s evidence is not cumulative. While Jones testified that he affixed the pre-filing
notice to the window of the Keller’s side door, the issue was whether Brenda Keller had actual
receipt or knowledge ofpre-filling notice. No other witness orother direct evidence was offered at
the siting hearing refuting her claim that she, and her husband, actually saw the notice affixed to
their door.
IV. REQUEST FOR
ORAL ARGUMENT
Pursuant to Section 101.700 ofthe IPCB Procedural Rules, WMII respectfully requests the
opportunity to present oral argument in support of this motion.
WMII is unaware of any decision applying Section lol.904(b)(1) where, as here, newly
discovered evidence not only directlyrelates to the sole issue’inthe case, but also refutes the factual
basis on which the issue was decided.. The new evidence is critical to a fair and complete
determination ofthe jurisdictional question, and should be explained and considered in the context
ofthe lengthy, complex and hotly contested siting proceedings before the Kankakee County Board.
WMH believes the IPCB and the parties may benefit from oral argument and analysis ofthe
critical jurisdictional question in this matter offirst impression.
394330
16
V. CONCLUSION
For the reasonsset forth above, WMIIrespectfullyrequests the entry ofan order (a) granting
relief from the August 7 and October 16 Orders vacating the County Board’s January 31, 2003
Approval, based upon the newly discoveredevidence provided by Waskosky, (b) setting this matter
for hearing, and (c) awarding such other and further relief as the IPCB deems appropriate.
Respectfully submitted,
Wi~TEMANAGEMENT OF ILLINOIS, INC.
By:~~k~,
J
~‘
One ofIts Attjcrneys
Donald J. Moran
Pedersen & Houpt, P.C.
161 N. Clark Street-Suite 3100
Chicago, Illinois 60601
(312) 641-6888
394330
17
m
—1-
1
1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
2
WASTE MANAGEMENT OF ILLINOIS,
3
INC.,
)
4
Petitioner,
—vs—
)
No. PCB 04—186
5
COUNTY BOARD OF KANKAKEE
6 COUNTY, ILLINOIS,
7
Respondent.
8
9
CSR License No. 084—003038
10
11
DEPOSITION
12
Deposition of LISA LATHAM WASKOSKY taken
on behalf of the Petitioner at Kankakee County
13 Building, 189 East Court Street, Kankakee, Illinois,
on July 20, 2004.
14
Appearances:
15
Donald Moran
16
Attorney at Law
Pedersen & Houpt
17
161 North Clark Street, Suite 3100
Chicago, IL 60601
18
312.641.6888
Appearing for Petitioner
19
Richard Porter
20
Attorney at Law
Hinshaw & Culbertson
21
100 Park Avenue
P.O. Box 1389
22
Rockford, IL 61105
815.490.4900
23
Appearing for Respondent
24
Also Present: Nancy Richardson
2
1
2
Deposition taken pursuant to the discovery
3 provisions of the Illinois Code of Civil Procedure
4 and the Rules of the Supreme Court promulgated
5 pursuant thereto.
6
(Commencing at 10:55 a.m.)
7
LISA LATHAM WASKOSKY,
8 the deponent herein, called as a witness, after
9 ‘having been first duly sworn, was examined and
10 testified as follows:
11
EXAMINATION BY
12
MR. MORAN:
13
Q. Let the record reflect this is the
14 deposition of County Board Member Waskosky taken
15 pursuant to the Illinois Code of Civil Procedure,
16 the Illinois Supreme Court rules and the applicable
17 rules of the Illinois Pollution Control Board.
18
Good morning. My name is Donald Moran.
19 represent the applicant, Waste Management of
20 Illinois, Inc. The matter is Waste Management of
21 Illinois, Inc., versus County Board of Kankakee,
22 Illinois. The number is PCB 04—186.
23
I’m going to be asking a number of
24 questions today that relate to the applications
3
1 filed by Waste Management of Illinois, Inc., for the
2 proposed expansion of the Kankakee landfill. I will
3 try to ask questions that are as clear and
4 understandable as possible, but there may very well
5 be times when I fail in that attempt, and when I do,
6 I would ask that you request clarification because
7 it will be important that the answers you provide
8 are responsive to the questions that I ask. Is that
9 fair enough?
10
A. Uh-huh.
11
Q. Okay. You need to say yes or no for the
12 court reporter.
13
A. Yes. Yes.
14
Q. Could you tell us your full name and spell
15 your last name for the court reporter?
16
A. My full name is Lisa Latham Waskosky. No
17 hyphen. My last name is spelled W A S K 0 5 K Y.
18
Q. And what is your address?
19
A. 26 Dennison Drive, Bourbonnais, Illinois.
20
Q. What is your business or occupation?
21
A. I’m a registered nurse.
22
Q. Are you currently employed?
23
A. Yes.
24
Q. By whom?
4
1
A. Riverside Medical Center emergency
2 department.
3
Q.
And
how long have you been there?
4
A. Four years. Prior to that time, I was a
5 college student.
6
Q. When were you elected or appointed to the
7 county board?
8
A. I was elected in November of 2002.
9
Q. When does your current term expire?
10
A. November of 2004.
11
Q. Are you running for reelection?
12
A. Yes.
13
Q. Which district do you represent?
14
A. It’s 27.
15
Q. And where is District 27 located?
16
A. District 27 is in a portion of Bourbonnais
17 representing part of Belier subdivision, Heritage
18 Estates subdivision and Northfield subdivision.
19
Q. How far is the district located from the
20 proposed expansion or the existing Kankakee
21 landfill?
22
A. I’m not really certain. 14, 15 miles
23 maybe.
24
Q. Are you affiliated with any political
5
1 party?
2
A. Yes, I am.
3
Q. Which party?
4
A. I’m a Democrat.
5
Q. What committees have you served on while
6 on the county board?
7
A. Capital development, schools, public
8 health and animal, bridges and highway, and building
9 and grounds.
10
Q. Are you a member of the Regional Planning
11 Commission?
12
A. No.
13
Q. Now, Ms. Waskosky, are you familiar with a
14 siting application which was filed by Waste
15 Management of Illinois, Inc., on August 16th of 2002
16 requesting approval for the proposed expansion of
17 the existing Kankakee landfill?
18
A. Yes, I am.
19
Q. And how did you become aware of that
20 application?
21
A. It was in the newspaper. It was a hot
22 issue.
23
Q. Did you attend any of the hearings on this
24 application, and those hearings would have been
6
1 conducted in November and December of 2002?
2
A. No, I did not.
3
Q. Did you discuss that application or have
4 any communications with any member of the Regional
5 Planning Commission regarding that first
6 application?
7
MR. PORTER: Wait a second. You can
8 answer that.
9
A. I’m not really sure who all is on the
-—
I
10 can’t keep everybody straight on the Regional
11 Planning Commission. To my knowledge, no.
12
Q.
And when
I refer to the first siting
13 application, this is the application that I will be
14
referring
to.
15
A. Okay.
16
Q.
Are
you also aware that a siting
17 application was filed by Waste Management of
18 Illinois, Inc., on September 26th of 2003 for the
19 expansion of the existing Kankakee landfill?
20
A. Yes.
21
Q..
And
how did you become aware of that
22 filing?
23
A. I was a member of the county board and it
24 was discussed by the county board.
7
Q.
Did you vote on the first application?
A. Yes. That was in February of 2003, am I
Q.
It would have
been on January 31st of
Yes, I did vote on it.
And how did you vote on the first
A. I voted in favor of it.
Q.
You voted to approve the first
application?
A.
Q.
A.
Q.
did occur
A. Yes.
Q. Have you talked with or had any
communications with any person about your vote on
the first application?
A. Yes, county board, fellow county board
members.
23
Q. Did you have those discussions or
24 communications after you vot’ed on January 31st,
1
2
3
4
5
2003.
correct?
A.
Q.
application?
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
Uh-huh.
You need to say yes or no.
Yes. Yes.
And
to the best of your recollection, that
on January 31st of 2003.
‘ ‘
8
1 2003?
2
A. I don’t recall. Possibly.
3
Q. Which county board members did you talk
4 to?
5
A.
George Washington.
6
Q. Anybody else?
7
A.
Jamie Romein and Pam Lee.
8
Q. When did you talk with Mr. Washington
9 approximately?
10
A. I would say initially after that meeting
11 in January.
12
Q. Any other times?
13
A. I couldn’t recall the dates, but from time
14 to time we discussed it.
15
Q.
And
would that be up
to the current date,
16 up to today?
17
A. Yes.
18
Q. How many such discussions have you had
19
with Mr. Washington approximately?
20
A.
About
four.
21
Q. What has Mr. Washington said to you in
22
these conversations?
23
MR. PORTER: Objection. That
24 interrogatory is designed and does indeed
9
1 potentially invade the deliberative process of a
2 county board member regarding applications at issue,
3 and I direct you not to answer.
4
A. Okay.
5
Q. Do you accept that instruction not to
6
answer that question?
7
A. Yes.
8
Q.
Other
than the discussion you had with Mr.
9 Washington after the vote on January 31st, 2003,
10
where did these discussions
with Mr. Washington take
11 place?
12
MR. PORTER: I’m sorry, can you read that
13 back?
14
(Requested portion of the deposition was
15 read by the court reporter.)
16
MR. PORTER: Okay. If you understand the
17 question, you can answer it.
18
Q. Well, I assume that you talked to Mr.
19 Washington on January 31st here at the county board
20 building.
21
A. Right, that’s where I usually speak to
22
him~ I
——
23
Q. So other than that meeting, where have you
24
had these discussions?
Maybe they’ve all been here.
10
1
Maybe
-—
2
A. Yeah, they’ve all been here.
3
Q. They’ve all been in the county building?
4
A. Yes.
5
Q. Was anyone else present during these
6
communications or discussions
with Mr. Washington?
7
A. There were other people around, but
8 usually not directly involved. You know, they would
9 pass by and say hi, but that was about it.
10
Q. And who were these other people?
11
A. Just other board members.
12
Q. How many such discussions or
13 communications did you have with Jamie Romein
14
regarding your vote on the first application?
15
A. One.
16
Q. When did that occur?
17
A.. That occurred on the day of the vote.
18
Q. Was anyone else present for this
19
discussion
or communication?
20
A.
We were in the boardroom, but it was a
21
private discussion.
22
Q. Because, as you know, during or after the
23 board meetings, there are frequently citizens,
24
residents,
other people come’ up to talk to board
11
1 members, so my question is this discussion with Mr.
2 Romein may have been in the presence of other
3 resident, citizens or interested persons.
4
A. Oh-huh.
5
Q. And you’re saying that there wasn’t any
6
other person who was part of this discussion with
7
Mr. Rornein
--
8
A. No.
9
Q.
——
is that correct?
10
A. That’s correct.
11
Q. Did you also talk about Mr. Romein’s vote
12 on the January 31st, 2003?
13
MR. PORTER: I’m going to caution the
14 witness that this question calls for a yes or no
15 response and that’s how you should respond. Go
16 ahead and answer.
17
A. Yes.
18
Q. What did Mr. Romein say to you during this
19 conversation?
20
MR. PORTER: Objection.
And I
would
21 direct the witness not to answer on the same ground
22 as earlier.
23
A. Agreed.
24
Q. Do you accept that instruction?
12
1
A. Oh-huh.
2
MR. PORTER: You have to say yes or no.
3
A. Yes.
4
MR. PORTER: And I’m sorry, while there’s
5 a gap here, Ms. Waskosky, sometimes you’re saying
6 uh-huh, uh-uh, while Mr. Moran is asking a question.
7 Try to wait until he’s completely done asking his
8
question and then respond, okay?
9
THE WITNESS: Okay.
10
MR. PORTER: Sorry, go ahead.
11
Q.
You mentioned you
had some discussions
12 with Pam Lee after your vote on January 31st, 2003.
13 How many such discussions did you have with Ms. Lee?
14
A. One.
15
Q. Was that the day of the vote?
16
A. Yes, it was.
17
Q. Where did it take place?
18
A. Here at the county building.
19
Q. Was it in the county board meeting room or
20 some other place here in the county board building?
21
A. Actually it was in the meeting room, yes.
22
Q. Anyone else present during this
23
conversation
with Ms. Lee?
24
A.
Not as a part of the conversation,
no.
13
1
Q. You talked about your vote with Ms. Lee?
2
A. Oh-huh. Yes.
3
Q. Did she talk about her vote with you?’
4
A. No.
5
Q.
How long
did this discussion with Ms. Lee
6 last?
7
A. 30 seconds or less.
8
Q. You’ve had no other discussions with Ms.
9 Lee about your vote on January 31st of 2003?
10
A. No.
11
Q. And you had no discussion or communication
12 with any other person about your vote on January
13 31st, 2003, other than the three people you’ve
14 identified; is that correct?
15
A. Just my husband.
16
Q. What is your husband’s name?
17
A. Thomas.
18
Q. Last name?
19
A. Waskosky.
20
Q. Other than those four people, you haven’t
21 had communications or discussions with anyone about
22 your vote on the 2003
--
23
A. No.
24
Q.
--
January 31 vote?
14
1
A. No.
2
MR. PORTER:
Again, I know that Don
3
sometimes talks very slowly, but try to wait
4
until
——
5
THE WITNESS: Okay.
6
MR. PORTER:
—-
he’s done asking the
7 question.
8
THE WITNESS: I’m used to stat responses,
9 yes, no, da da da.
10
MR. PORTER: Oh, you’re a nurse.
11
THE WITNESS:
Oh-huh.
12
MR. PORTER: Yeah, we move at a whole
13
different
speed.
14
THE WITNESS:
Oh, yeah.
See, I’m looking
15 at my watch, okay, I’m done with this, should be
16 done.
17
BY MR. MORAN:
18
Q. Have you had any discussions or
19 communications with any person regarding the filing
20 of the second application on September 26th, 2003?
21
A. Fellow board members.
22
Q. When did those discussions take place?
23 Let’s break it down this way. Prior to that second
24 filing on September 26th of 2003, did you have any
15
1 discussions with any persons regarding the second
2 filing?
3
A. Yes.
4
Q. With whom did you have such discussions?
5
A. Ann Bernard.
6
Q. Anyone else?
7
A. George Washington.
8
Q. Anyone else?
9
A. And Jamie Romein.
10
Q. I’m including within the question any
11 person at all, county board member or not.
12
A.
Oh, okay.
My husband, Thomas.
13
Q. Anyone else?
14
A. My uncle lives next door to me, John
15 Latham.
16
Q. John Latham?
17
A. Oh-huh.
18
Q. Anyone else?
19
A. That’s the only specific people I can
20
recall.
21
Q. And when did you have any discussions with
22 Ms. Bernard regarding the am
——
the second
23
application?
24
MR. PORTER: Well
--
16
1
Q. And again we’re talking about a period
2 prior to the time the second application was filed,
3 prior to September 26, 2003.
4
A. Board meetings. She sits behind me.
5
Q.
And
on how many occasions did she talk
6 with you about this
--
7
A. Every board
--
8
Q.
——
anticipated filing?
9
A. Every board meeting
--
10
Q. Every board meeting?
11
A.
--
she would poke me between the shoulder
12 blades and start babbling.
13
MR. PORTER: That’s fine. Remember, limit
14 your answers to the questions that are asked.
15
A. Okay.
16
Q. So this was a continuing pattern for Ms.
17 Bernard?
18
A. Yes.
19
Q.
And
again, focussing on the time prior to
20 the actual filing of that second application, did
21 Ms. Bernard indicate to you that she was aware that
22 this second application was anticipated to be filed?
23
MR. PORTER: Hang on a minute please.
24 I’ll object to the extent it’s not limited to
17
sessions outside of executive session meetings. To
the extent it invades the attorney/client privilege
I object and direct the witness not to answer, but
if they were public meetings, I don’t have a problem
with this particular question.
Q. Well, let me just clarify that. My
understanding was you were saying she was poking you
and talking to you during the public meeting, during
the public portion of the county board meeting; is
that correct?
A. That’s correct.
Q. We aren’t talking about poking you and
talking to you during executive session, correct?
A. That’s correct.
Q. So she was doing this during the normal
regularly scheduled county board meetings
--
A. Yes.
Q.
-—
prior to September 26th of 2003?
A. Yes.
Q. And your best recollection is she did this
for each of the regularly scheduled board meetings
immediately before the September 26th, 2003, filing.
A. Yes.
Q. The first of those that you can remember,
1
2
3
4
5
6.
7
8
9
10
11
12
.13
14
15
16
17
18
19
20
21
22
23
24
18
1 what did Ms. Bernard say to you when she was poking
2 you?
3
MR. PORTER: Okay; hang on a second.
4 That’s different than the question you asked before.
5 I need to take a break with the witness.
6
A. Okay.
7
(Brief recess at 11:14 a.m. to 11:16 a.m.)
8
MR. PORTER: Having spoken to the witness,
9 this question does indeed invade the deliberative
10 process of a board member. Therefore, I’m going to
11 direct her not to answer.
12
MR. MORAN: To clarify the basis for the
13 question, there obviously was no siting application
14 on file during the period within which I’m asking
15 about these questions. This question may very well
16 reveal information that discloses prejudgment or
17 bias on the part of a county board member who may
18 have concluded or indicated a conclusion about an
19 anticipated application that was yet to be filed.
20 Obviously there’s no decision making process that’s
21 being invaded here.
22
We’re talking about an anticipated filing
23 on an application which was planned to be filed at a
24
,
certain point, and by definition there can’t have
19
1 been an evaluation or decision making process that
2 could have taken place. However, there could very
3 well be a conclusion or a prejudgment by a county
4 board member of an application that was yet to be
5 filed.
6
So I think from that standpoint it
7 certainly is a relevant question. It’s not in any
8 way intended to invade anybody’s decision making
9 process because there could not have been one with
10 regard to this application.
11
MR. PORTER: If I may respond, Ms. Bernard
12 voted on both applications. Your interrogatory
13 indeed does invade the deliberative process because
14 it is quite possible that those conversations or the
15 response to that interrogatory involved a discussion
16 about the reasons she may or may not have voted one
17 way or the other in regard to the first application.
18 Your interrogatory is not limited and therefore does
19 indeed the invade the deliberative process. The
20 fact that those communications took place after an
21 application was pending is irrelevant. The issue is
22 whether or not it invades the deliberative process,
23 and if it indeed invades the deliberative process,
24 it’s not to be discovered. That’s why I have no
20
1 choice but to direct the witness not to answer.
2
Q.
And you
accept that instruction?
3
A. Yes.
4
Q. Did anything that Ms. Bernard stated to
5 you during these County Board meetings about the
6
upcoming application
in any way relate to the
7 reasons why she voted as she did on January 31st,
8
2003, on the first siting application?
9
MR. PORTER: Caution the witness that this
10 question calls for a yes or no response and you
11 should answer so.
12
A. Yes.
13
Q.
Did any portion
of the statements she made
14
to you refer in any way to the anticipated
second
15
application
to be filed September 26th of 2003?
16
MR. PORTER: Sorry to have to keep
17
interrupting,
but I need that read back please.
18
(Requested portion of the deposition was
19 read by the court reporter.)
20
MR. PORTER: You may respond.
21
A. No.
22
Q. Would it be accurate to say, then, that
23 whenever Ms. Bernard made a statement to you in the
24 board meetings immediately prior to the September
21
1 26th, 2003, filing of the second application, she
2 referred only to the reasons she voted the way she
3 did on January 31st, 2003?
4
A. Yes.
5
Q. Did you respond or say anything to her in
6 response to the statements she made to you?
7
MR. PORTER: This, again, calls for a yes
8 or no response.
9
A. Yes.
10
Q. And what did you say to her?
11
MR. PORTER: I have to take a moment with
12 the witness.
13
(Brief recess at 11:20 a.m. to 11:22 a.m.)
14
MR. PORTER: I would just caution the
15 witness that your
——
I am directing you not to
16 answer to the extent that your response in any way
17 states or suggests what Ms. Bernard may have been
18 indicating her deliberative process or what your
19 deliberative process was, but apart from that, you
20 may go ahead and answer. Do you understand my
21 direction?
22
THE WITNESS: Yes.
23
MR. PORTER: Okay. So you may go ahead
24 and answer Mr. Moran’s question. I ask that it be
22
1 read back one more time so our record is nice and
2 clear.
3
(Requested portion of the deposition was
4 read by the court reporter.)
5
A. Shut up. Stop poking me. Shut up. Leave
6 me alone. You’re an idiot. Basically I told her I
7 was just tired of hearing her mouth. Just to leave
8 mebe.
9
Q. And did she leave you be?
10
A. No. No.
11
Q. She did not respect your request that she
12 stop talking with you
--
13
A. No.
14
Q.
--
about, we’re talking about the siting
15 applications.
16
MR. PORTER: Whoa. That
--
wait one
17 second please. You’ve now changed your question in
18 to limiting it about the siting applications, and I
19 think that’s an improper characterization of what
20 the record is in this case. And as a matter of
21 fact, it’s contrary to what the witness has already
22 testified to when she said that Ms. Bernard never
23 discussed the impending application. So I object to
24 the extent you tried to mischaracterize the record.
23
1
.
And you can answer if you can. Do you understand
2 the question?
3
THE WITNESS: I thought I did, but
——
4
MR. PORTER: Let’s have it read back.
5
(Requested portion of the deposition was
6 read by the court reporter.)
7
MR. PORTER: All right. Again, I believe
8 that that question
——
I’m going to direct the
9 witness not to answer because the question has been
10 asked and answered. You’ve already asked it in
11 regard to the first application. You’ve asked it in
12 regard to the second application. I’ve either
13 objected or allowed the witness not to answer. So
14 you’re rehashing ground that’s already been covered.
15 I’m going to direct the witness not to answer.
16
Q. Let me just clarify this because I’m
17 really confused now. My initial series of questions
18 here was to ask you whether you had any discussions
19 with any
——
anyone regarding the September 26th,
20 2003, siting application which we’ve called the
21 second siting application prior to September 26th,
.22 2003. I thought your answer to that question was
23 yes, and you identified five names of people with
24 whom you had had discussions or communications
24
1 regarding the September 26th, 2003, siting
2
application
prior to September 26th, 2003.
Is that
3 correct or incorrect?
4
A. That’s correct.
5
Q. Okay. The first person you identified as
6 having any discussion or communication about the
7 second siting application prior to September 26th,
8 2003, was Ann Bernard. Is that correct?
9
A. That’s correct.
10
Q.
So is it accurate to say that at some
11
point you had some discussion
or communication prior
12 to September 26, 2003, with Ann Bernard about the
13
second siting application?
14
A. No, she was still going on about the
15 January vote.
16
Q.
Okay.
17
A. Yeah.
18
Q. So is it fair to say, then, that you had
19 no discussion or communication with Ann Bernard
20
regarding the second siting application
prior to
21 September 26., 2003?
22
MR. PORTER:
I’m going to object.
I think
23
it’s been asked and answered.
But I agree that
24
counsel is entitled
to some clarification
here.
Go
25
1 ahead and answer again.
2
A. Yes. I think it
——
she didn’t
——
she
3 wasn’t specifically speaking about the second
4
siting. It was generalized.
5
Q. She was still talking about
——
6
A. Yes.
7
Q.
——
the vote on January 31st, 2003?
8
A. Yes. Yes.
9
Q. Okay.
10
A.
I’m sorry to blur it.
11
Q. Is it accurate to say you had no
12
discussion
or communication with her about the
13 second siting application prior to September 26,
14 2003?
15
A. About the second one, no, I guess. No.
16
Q. Let’s go to Mr. Washington. Did you have
17 any discussions or communications with Mr.
18 Washington about the second siting application prior
19 to September 26, 2003?
20
MR. PORTER: And so the witness is clear,
21 that date is the date of the filing of’ the second
22 application. Go ahead and answer.
23
A. Not about the second filing, no.
24
Q. And Jamie Romein?
26
1
A. Not about the second application, no.
2
Q. And your husband?
3
A. Not about the second application, no.
4
Q. And Mr. Latham?
5
A. Not about the second application, no.
6
Q. So all these conversations or
7 communications you were referring to related back to
8 the——
9
A. Correct.
10
Q.
——
application filed on August 16th, 2002,
11 the first siting application?
12
MR. PORTER: Please, let him finish and
13 then answer and you’ll avoid confusing issues.
14
A. Correct. I was confused. It’s been a
15 long two years. I apologize.
16
Q. Now, having clarified that, did you have
17 discussions or communications with any person about
18 the second siting application prior to the date the
19 second siting application was filed which was
20 September 26, 2003?
21
A. No.
22
MR. PORTER: Off the record.
23
(Discussion off the record.)
24 BY MR. MORAN:
27
1
Q. Was the second siting application, the one
2 filed September 26, 2003, the same siting
3 application which was filed August 16th, 2002?
4
MR. PORTER: I’ll object to the extent
5 that calls for a legal conclusion.
6
Q. I’m not asking you for a legal conclusion.
7
MR. PORTER: Wait. And to the extent it
8 invades the deliberative process as to attempting a
9 back door method to determine what exactly a county
10 board memory reviewed or did not review. Having
11 said that, I’m going to allow the witness to answer
12 subject to those objections.
13
Q. Let me ask it again
——
14
A. Please.
15
Q.
——
just to clarify.
16
MR. PORTER: And same objections so I
17 don’t have to interrupt.
18
Q. Was it your understanding that the second
19 siting application was the same as the first siting
20 application?
21
A. Yes.
22
Q. Now, with regard to the second siting
23 application, is it your recollection that the public
24 hearings on the second siting application occurred
28
1 in January of 2004?
2
A. Yes.
3
Q. Did you attend any of those public
4 hearings?
5
A. Yes.
6
Q. How many sessions did you attend of those
7 public hearings?
8
A. One.
9
Q. Which session was that?
10
A. The Regional Planning Commission that was
11 held here, that meeting.
12
Q. Was it your understanding that the
13 Regional Planning Commission was conducting the
14 public hearings?
15
A. Yes.
16
Q. And they were conducted over a number of
17 days?
18
A. Yes.
19
Q. ‘Okay. And you indicated you attended one
20 of those
21
A. Yes.
22
Q.
--
days? Do you recall which day that
.23 was?
24
A. It was
——
it was the last hearing.
29
1
Q. What evidence or testimony was presented
2 during the public hearing that you attended?
3
A. They went over all the criteria and, you
4 know, the reasoning for that criteria.
5
Q.
Was this a public hearing that was
6 conducted over at the Quality Inn?
7
A. No.
8
Q.
‘
So this may have been a meeting of the
9 Regional Planning Commission in which they
10 considered the evidence that was presented at the
11 public hearing. Would that be accurate?
12
A. Yes.
13
Q. And that meeting took place in this
14
building
——
15
A. Oh—huh, yes, it did.
16
Q.
--
in the county board meeting room?
17
A. Yes. Yes.
18
Q. Was that th~day the Regional Planning
19 Commission voted on its recommendations regarding
20 the second siting application?
21
A. Yes.
22
Q.
And how did the Regional Planning
23 Commission
——
let me withdraw th,at.
24
What action did the Regional Planning
30
1 Commission take on that day? Did they recommend to
2 approve the application, to deny the application or
3 to take some other position?
4
A. They just went through the criteria, the
5 different criteria, and I left before they took a
6 vote.
7
Q. Did you subsequently learn how the
8 Regional Planning Commission had decided to either
9 recommend or not recommend approval of the
10 application?
11
MR. PORTER: Hang on a second. Again,
12 this question does invade the deliberative process
13 because it’s essentially asking whether or not a
14 board member reviewed’ a Regional Planning Commission
15 report which is part of the evidence of the record.
16 So I have to direct her not to answer.
17
A. Yes, I accept that.
18
Q. Did you obtain a copy of the second siting
19 application?
20
MR. PORTER: Objection. Direct the
21 witness not to answer.
22
Q. Was the second siting application made
23 available for your review?
24
A. Yes, it was.
31
1
Q. And who made that available?
2
A. The county.
3
Q. Who in the county?
4
A. I’m
——
I would guess it would be the
5 planning commission. It was here. We could pick it
6 up here in this building.
7
MR. PORTER: Okay. You’ve answered the
8 question.
9
A. Okay.
10
Q. Your best recollection is the planning
11 department had the transcript, had the second siting
12 application available for review by any county board
13 member?
14
A. Yes.
15
Q. That’s your best recollection?
16
A. Yes.
17
Q. Were the transcripts of the public
18 hearing
——
not the Regional Planning Commission
19 meetings but the public hearings made available for
20 your review?
21
A. For which siting?
22
Q. The second siting application.
23
A. The second siting. I don’t recall.
24
Q. Have you had any discussions or
32
1 communications with any of the following persons at
2 any point prior to March 17th of 2004? And March
3 17th, 2004, is the date on which the second siting
4 application was voted upon. Mayor Donald Green?
5
A. No.
6
Q. Mr. Michael Watson?
7
A. Yes.
8
Q. Who is Mr. Watson?
9
A. I’m not really certain who he is. Wait a
10 minute. No, I’ve got
-—
I’ve got the name confused.
11 Not, not Mr. Watson. Not Mr. Watson. I apologize.
12
Q. Do you know who Mr. Watson is?
13
A. He’s
——
14
Q. Is he one of the owners of United
15 Disposal?
16
A. Yeah, I couldn’t think of the name of the
17 company. Yes. And, no, I had no contact with him.
18 I misspoke.
19
Q. Was it your understanding that Mr. Watson
20 appeared in both siting proceedings as an objector?
21
A. Yes.
22
Q. And he was represented by counsel in both
23 proceedings?
24
A. I have no idea about that.
33
1
Q. Are you aware that Mr. Watson owns
2 property immediately adjacent to the proposed site
3 of the expansion to the east?
4
A. Yes.
5
Q. Have you had discussions with Mr. Watson
6 about any matters prior to March 17th, 2004?
7
A. No. No.
8
Q. Have you had any communications or
9 discussions with a Mr. Merlin Carlock?
10
A. No.
11
Q. Do you know who Mr. Carlock is?
12
A. Yes. Yes.
13
Q. Who is Mr. Carlock?
14
A. Mr. Carlock is a land developer, a banker.
15
Q. Have you ever met him?
16
A. Years ago, yes.
17
Q. Were you aware that Mr. Carlock appeared
18 in both siting hearings as an objector?
19
A. Yes.
20
Q. Have you had any discussions or
21 communications prior to March 17th, 2004, with Mr.
22 Bruce Harrison?
23
A. Yes. That’s who
-—
I’m sorry, that’s who
24 I misspoke. I get him and Watson confused. But
34
1
yes.
2
Q. Who is Mr. Harrison?
3
A. Frankly, I
--
other than an objector, I
4
have no idea.
5
Q. You said other than as an objector?
6
A. Oh-huh.
7
Q. Do you know Mr. Harrison to be an objector
8 to the siting applications filed for the expansion?
9
A. Yes.
10
Q. When did you first meet Mr. Harrison?
11
A. I spoke with him on
--
by phone on
12 February 14th of 2003.
13
Q. 2003 or 2004?
14
A. 2004, I’m sorry. I’m sorry, I’m getting
15 my years mixed up today.
16
Q. So Valentine’s Day?
17
A. Valentine’s Day, which is the only reason
18 I remember it.
19
Q. That was a Saturday?
20
A. Yes, Saturday morning.
21
Q. This was a phone call?
22
A. Yes.
23
Q. Did he call you or did you call him?
24
A. Oh, he called me.
35
1
Q. Where did he call you? At home? At work?
2
A. At home.
3
Q. And do you know how he got your home
4 number?
5
.
A. It’s
——
it’s published in the paper.
6
Q. How long did this phone conversation last?
7
A. Less than five minutes.
8
Q. Was anyone else on the phone call?
9
A. Not--
10
Q. As far as you knew?
11
A. No. Not as far as I know, no.
12
Q. What did Mr. Harrison say to you?
13
A. He wanted to meet with me and discuss some
14
legal papers that he had. I don’t
——
I never really
15
——
I had just gotten off work, had just fallen
16 asleep, I work midnights, and informed him I could
17 not discuss this and would not discuss this.
18
Q. And did he identify any more clearly what
19 type of papers, legal or otherwise, he had to
20 discuss with you?
21
A. I was half asleep. He
——
he rattled off
22 some sort of
——
I’m trying to think what he called
23 it. An appeal, he called it an appeal or a ruling
24 or
——
and I informed him at that time that he wasn’t
36
1 an attorney and I wasn’t an attorney and therefore I
2 wasn’t interested in a legal document that I
3 certainly could not understand.
4
Q. And these legal documents related to what?
5 To the appeal of a siting request
——
6
A. Oh.
7
Q.
——
for application?
8
A. No, they related to us not speaking to
9 anybody in regards to this after the close of the
10 hearings.
11
Q. And did Mr. Harrison indicate what the
12 meaning was of these documents that he was trying to
13 show you?
14
A. Yes.
15
Q. And what did he say about that?
16
‘
A. That it was illegal for us to be told that
17 we could not speak to the public about this.
18
Q. And was he referring to the instructions
19 that you had received from county board’s counsel
20 not to talk or speak with any interested parties
21 regarding the second siting application or the first
22 siting application?
23
MR. PORTER: I’m going to allow the
24 witness to answer this one question, but that
37
1 allowance is in no way a waiver of the
2 attorney/client privilege in any other respect. Go
3 ahead.
4
A. Yes.
5
Q. Would it be accurate to say that Mr.
6 Harrison was trying to persuade you that his
7 attempts to talk with you about the siting
8 application was proper even though you had been told
9 otherwise by counsel?
10
A. Yes. Yes.
11
Q. Did he indicate to you in any way how he
12 knew that the county board members such as yourself
13 were instructed not to speak with various citizens
14 or other parties who had participated in the
15 hearings?
16
A. Not that he verbalized to me, no.
17
Q. And what was your response to his
18 statement that, in fact, you could talk with him
19 based on whatever legal materials he had available?
20
A. That on our attorney’s advice, that he was
21 incorrect.
22
Q. Did he say anything more to you about the
23 siting applications, about what his position was on
24 them, how you should vote on them, how you should
38
1 view them, anything along those lines?
2
A. No. Not
-—
let me clarify that. Not at
3 that time he didn’t.
4
Q. Not during that conversation?
5
A. Not during that conversation, no.
6
Q. And that conversation was about five
7 minutes long?
8
A. Yeah.
9
Q. Was there anything else said’ either by you
10 or by him in that phone conversation?
11
A. He indicated to me that he would bring me
12 some
——
those documents, and I believe my response
13 was, yeah, yeah, whatever, but I’m not interested,
14 I’m not going to read them, I won’t understand them
15 anyway.
16
Q. And how did you close that phone
17 conversation with Mr. Harrison?
18
A. That I worked nights and I was tired, I
19 had to go to sleep, and, you know, that was it.
20 Just, you know, I didn’t care to discuss this or
——
21 and I could not discuss this. That was the end of
22
it.
23
Q. Did he indicate anything to indicate why
24 he was calling you?
39
1
MR. PORTER: Let’s go off the record for a
2 moment.
3
(Discussion off the record.)
4
MR. PORTER: Okay. On the record, go
5 ahead.
6
A. Repeat that question. He kind of
-—
7
Q. Did he indicate anything to you as to why
8 he was calling you other than to tell you about
9 these legal papers he had that would allow you to
10 talk with him?
11
A. No. No.
12
Q. And you had no communication of any kind
13 with him prior to this time?
14
A. None.
15
Q. You wouldn’t know what he looked like?
16 You wouldn’t know who he was as of this time?
17
A. As of?
18
Q. As of February 14, 2004.
19
A. Oh, absolutely not, no.
20
Q. Did you report this discussion to anyone
21 at the county?
22
A. Yes, I did.
23
Q. To whom?
24
A. Pam Lee.
40
1
Q. And what did Ms. Lee tell you about the
2 conversation?
3
A. That I was correct and I should follow the
4 county attorney’s advice.
5
Q. Did you have any subsequent communications
6 or discussions with Mr. Harrison?
7
A. Yes, I did.
8
Q. When was the next occasion you had a
9 discussion or communication with him?
10
A. Be February 16th. It was on a Monday.
11
Q. And the nature of the communication?
12
A. He wanted to meet with me.
13
Q. So this was a phone call?
14
A. This was a phone call.
15
Q. On February 16th?
16
A. Oh-huh.
17
Q. Where was the phone call placed?
18
A. To my home.
19
Q. Again?
20
A. Again.
21
Q. What time of day did he call?
22
A. Oh, I would say it was approximately 9
--
23 about 9:00 a.m.
24
Q. What, specifically did he say to you on
41
1 this occasion?
2
A. That he really needed to meet with me,
3 that once I saw these documents, I would know that
4 he was right and that we had been instructed
5 illegally not to talk.
6
Q. What was your response?
7
A. My response was, again, I don’t
——
I’m not
8 an attorney. I’m going to follow the advice of our
9 county attorney. You know, you can do whatever you
10 want to with the documents. I will not read them, I
11 will not review them, I will not understand them.
12 He then indicated to me that he had spoke with other
13 people and had meetings set up with another county
14 board member. Would I be interested in joining them
15 for lunch to discuss this? And I indicated to him
16 at that time no.
17
Q. Did he indicate which other county board
18 members he had attempted to contact?
19
A. He stated to me that he had met with Ann
20 Bernard, Karen Hertzberger, and that he had a
21 meeting I believe he said 11:00 a.m.
——
no, 1:00
22 p.m., excuse me, with Mike Lagesse.
23
Q. What day?
24
A. That day on Monday.
42
1
Q. Oh, that day, okay.
2
A. He didn’t give me the dates for the other
3 meetings with the other people.
4
Q. Oh, I see. Did he identify any other
5 county board members who he was
——
6
A. Not that I recall.
7
Q.
-—
either attempting to contact or had set
8 up meetings with?
9
A. Not that I recall. He stated to me he had
10 had meetings with both Ms. Bernard and with Mrs.
11 Hertzberger.
12
Q. Did he state to you at all what the
13 substance or the statements made
——
14
A. No.
15
Q.
--
during those meetings were?
16
A. No.
17
Q. Did he indicate to you that you should
18 consider or review the application as either Ms.
19 Bernard or Ms. Hertzberger was reviewing it?
20
MR. PORTER: You can go ahead and answer.
21
A. No.
22
Q. Did he indicate when these meetings with
23 Ms. Bernard and Mrs. Hertzberger had taken place?
24
A. No.
43
1
Q. Did you get the impression that these
2 meetings occurred a few weeks prior to this phone
3 call with him?
4
MR. PORTER: Well, object to the
5 conjecture. Go ahead and answer if you can.
6
A. He
-—
he really
-—
he didn’t give me a
7 time for them. My assumption was they had been very
8 recently, within the past few days.
9
Q. Had you ever talked to either Ms. Bernard
10 or Ms. Hertzberger about whether they had met with
11 Mr. Harrison?
12
A. No, I did not.
13
Q. And you never learned from any source in
14 any fashion whether there had been such meetings
15 between Mr. Harrison and Ms. Bernard and Ms.
16 Hertzberger?
17
A. No, I did not.
18
Q. Or Mr. Lagesse?
19
A. Mr. Lagesse I know about.
20
Q. And you know about that meeting on the
21 basis of what?
22
A. After I hung up the phone from this Mr.
23 Harrison, I immediately called the KC hall where he
24 was supposed to meet Mr. Lagesse. Mike apparently
44
1 did not know who this gentleman was any more than I
2 had the first time he called me. I informed him
3 what his purpose was, reminded him about the order
4 not to discuss this, and Mr. Lagesse then asked me
5 where did he call from, do you have a phone number?
6 And I had the number he had called me from on my
7 caller ID. I gave it to Mr. Lagesse and he called
8 him and cancelled his meeting.
9
Q. So as far as you know, Mr. Lagesse never
10 met with Mr. Harrison.
11
A. That is correct.
12
Q.
And
how long did this phone conversation
13 with Mr. Harrison last on February 16th?
14
A. I
--
I would have to say roughly ten
15 minutes.
16
Q. So it was about twice as long as the first
17 call?
18
A. Yes. I
-—
he was very persistent.
19
Q. Did he indicate in any way what his views
20 or opinion was on the request to expand the existing
21 landfill?
22
A. Not in so many words. It was implied but
23 not stated.
24
Q.
Did Mr. Harrison ever indicate to you
45.
1 whether he was working with other individuals in his
2 effort to talk to county board members and oppose
3 this proposed expansion?
4
A. No.
5
Q. Did you ever learn of any information or
6 facts that indicated that Mr. Harrison was working
7 in concert with other individuals, persons or
8 entities to oppose this proposed expansion?
9
A. Learn in what way?
10
Q. Well, in any way. Either through third or
11 fourth-hand story, through rumor, through the most
12 distant type of hearsay. Just anything you may have
13 heard about such an effort.
14
MR. PORTER: And you’re looking at me. So
15 you’re aware, Mr. Moran has a right to ask you
16 questions that may or may not be admissible in a
17 hearing at this deposition. Therefore, I’m not
18 objecting at this time. You can go ahead and
19 answer.
20
A. He called me that morning from Rob
21 Keller’s home.
22
Q. The February 16th?
23
A. Yes.
24
Q. From Rob Keller?
46
1
A. Oh-huh.
2
Q. Who is Rob Keller?
3
A. Rob Keller is the person from the first
4 application that stated he did not receive
5 notification.
6
Q. And when you say the first application,
7 you’re referring to the application that was filed
8 on August 16th of 2002?
9
A. That is correct.
10
Q. And how do you know that Rob Keller had
11 claimed that he did not receive notice for the first
12 siting application, the one filed on August 16th of
13 2002?
14
A. Because Mr. Keller told me himself prior
15 to my election to the county board that notice had
16 been served and affixed to their door and he
17 instructed his wife, Brenda Keller, not to touch it
18 or open it because if she didn’t, then she hadn’t
19 been served.
20
Q. And he was referring to a notice that was
21 posted on their door at their home?
22
A. That is correct.
23
Q. And how did you learn this?
24
A. In a conversation with Mr. Keller.
47
Q. In a conversation you had directly with
Mr. Keller?
A. Right.
Q. Let’s just step back for a moment and get
back to the question that I was asking here, and
that was any information that you had heard about
Mr. Harrison working with other people to defeat
this application. You said that
——
that he was
calling from Rob Keller’s house February 16th of
2004.
A. That is correct.
Q. Okay. And you knew he was calling from
Mr. Keller’s house on what basis?
A. It was on my caller ID.
Q. And you knew Mr. Keller’s
--
A. Well, it said Robert Keller.
Q. I’m sorry.
A. And Mr. Mike
number. He called him
Harrison picked up the
Q. And when was
16th of February?
A. I didn’t place the call. Mike Lagesse
placed the call and returned a call to me and said I
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Lagesse asked me for the
back at that number and Bruce
phone.
this call placed by you the
48
1 called him at Rob Keller’s house.
2
Q. All right. So that we’re clear just on
3 the sequence of events, Mr. Harrison called you
4 February 16th, 2004.
5
A. Correct.
6
Q. You had this ten minute conversation with
7 him about the law he had which says you can talk
8 with me because what you’ve been told is wrong.
9
A. Correct.
10
MR. PORTER: I’m going to object.
11
A. Oh, I’m sorry.
12
MR. PORTER: And perhaps I missed it, but
13 I don’t recall there being testimony it was a ten
14 minute conversation. To the extent that I am
15 cOrrect, I object to the mischaracteration.
16
Q. Well, just to clarify, did you say the
17 conversation on February 16th
--
18
A. Yes, I did.
19
Q.
—-
was ten minutes?
20
MR. PORTER: Sorry. Objection withdrawn.
21
A. Yes, I did.
22
Q. And it was during the course of this
23 conversation that you learned that Mr. Harrison had
‘24 planned to meet with Mr. Lagesse that afternoon at
49
1 one o’clock, correct?
2
A. Correct.
3
Q. And upon concluding your phone
4 conversation with Mr. Harrison, you called Mr.
5 Lagesse to inform him of what you knew about Mr.
6 Harrison.
7
A. Correct.
8
Q. And on the basis of that conversation with
9 Mr. Lagesse, Mr. Lagesse then called the number that
10 Harrison had given you, correct?
11
A. No, not exactly. It was on my caller ID.
12 I
——
he never gave me the number. I read it off the
13 phone and jotted it down.
14
Q. Okay. And after you jotted down the
15 number, you then gave the number to Mr. Lagesse?
16
A. Yes, I did.
17
Q. And then Mr. Lagesse called the number
18 back?
19
A. Yes, he did.
20
Q. And when Mr. Lagesse called back on
21 February 16th, the number went to Mr. Keller’s
22 residence?
23
A. Correct.
24
Q. And Mr. Harrison answered that phone call
50
1 from Mr. Lagesse.
2
A. Correct.
3
Q. And told Mr. Harrison that he was refusing
4 to meet with him?
5
A. Correct.
6
Q. And Mr. Keller was present when Mr.
7 Lagesse called Mr. Harrison at the number that you
8 had jotted down from Mr. Harrison’s call to you?
9
MR. PORTER: I need that read back please.
10
(Requested portion of the deposition was
11 read by the court reporter.)
12
MR. PORTER: I’m going to object to the
13 extent it calls for conjecture, but go ahead and
14 answer if you know.
15
A. I have no idea who was present on the
16 other end of the phone.
17
0. Other than these two phone calls with Mr.
18 Harrison, did you have any other discussions or
19 communications with Mr. Harrison?
20
A. He came to my house
——
I can’t remember
21 the date. It was shortly before the March 17th
22 meeting. My husband answered the door and he
23 informed my husband that he was there on official
24 county business, that he needed to speak with me.
51
1 So my husband not knowing who this was and not
2 knowing any better went in and got me out of bed, I
3 worked the night before, and herded me to the door
4
and I
-—
I really didn’t have any idea who this
5 fellow was on my front porch until he identified
6 himself. And he stated that he had the documents
7 that he wanted me to read, the legal briefs that I
8 needed, and I told him thank you, I was not an
9 attorney, I would not understand anything in the
10 envelope and that I would not therefore be reading
11 it and to please not come back to my house. It made
12 me very uncomfortable.
13
Q. And what was the date of this visit?
14
A. I couldn’t tell you the exact date.
15
Q. In relation to the February 16th call, a
16 couple of weeks later, a couple of days later?
17
A. I would say it was within a two week time
18
frame.
19
Q. So it was sometime prior to March 17
——
20
A. Yes.
21
Q.
——
of 2004?
22
A. Definitely.
23
Q. And what time of day was it?
24
A. Oh, goodness. Mid to late morning, maybe
52
1 early afternoon. Like I said, I work midnights, I
2 had been sleeping.
3
Q. And how long did the meeting last?
4
A. Probably about a minute by the time it
5 took me to get him told pretty much.
6
Q.
And
he left these materials with you?
7
A. Yes, he did.
8
Q. What did you do with the materials?
9
A. I shredded them actually.
10
Q. You didn’t send them to the county or
11
take
—-
12
A. No, I didn’t even think about it. I just
13 told my husband I don’t understand this stuff and
14
I’m not even going to
--
not going to mess with it.
15
Q. Did you have any communications or
16 discussions with Mr. Harrison after that visit to
17 your house?
18
A. He’s greeted me in the hall here when
--
19 the morning of the vote, and I did not respond. I
20 believe the extent of that conversation on his end
21 was, hey, I know you’re going to do the right thing,
22 and I just continued to go past him. I
——
I have
23 seen him once subsequent to that in a professional
24
-—
outside the county in relation to my job one
——
53
1 one other time.
2
Q. And when was that?
3
MR. PORTER: I’m going to object to the
4 extent it invades the physician/patient privilege.
5
A. Right, Hippo.
6
Q. You were seeing Mr. Harrison in your
7 capacity as a nurse?
8
A. Mr. Harrison was not the patient.
9
Q. Okay.
And
did this occur within the last
10 three months?
11
A. Yes, it did.
12
Q. It occurred at the hospital?
13
A. Yes, it did.
14
Q. Other than that instance and the other
15 three
——
four you identified, February 14th,
16 February 16th, a day at your home probably two weeks
17 thereafter and the county board meeting on March
18 17th, have you had any other communications or
19 discussions with Mr. Harrison?
20
A. None. None.
21
Q. Now, you mentioned Mr. Keller a few
22 moments ago. When did you first meet Mr. Keller?
23
A. Six, seven years ago. I’m not really
24 certain of the date.
54
1
Q. Where did he live at that time?
2
A. I believe he lived in Bradley.
3
Q. Do you know where he lives now?
4
A. Exactly, no. No, I have a
-—
kind of a
5 vague idea, but really nothing specific.
6
Q. Does he live on 6000 South Road very close
7 to the proposed expansion?
8
A. I don’t know the exact location. I
——
9 I’ve never been to his home.
10
Q. Do you know if he lives in close proximity
11 to the proposed expansion?
12
A. Yes.
13
Q. What were the circumstances under which
14 you first met Mr. Keller?
15
A. We were both, are both scuba divers.
16
Q. And you met him scuba diving?
17
A. Oh-huh.
18
MR. PORTER: Is that yes?
19
Q. You need to say yes.
20
A. Yes. Yes. I’m sorry.
21
Q. Where?
22
A. Oh, golly. At Bird Park quarry actually
23 the first time.
24
Q.
Have you scuba dived with Mr. Keller or in
55
1 connection with an event where he also participated
2 a number of times since then?
3
A. I’ve been to events, scuba events with
4 him. I’ve only dove with him the one time.
5
Q. When you say a scuba event, what does that
6 mean?
7
A. Gosh, we used to have underwater pumpkin
8 carving things at the quarry. I know, it sounds
9 ridiculous. The time that I met him, we were
10 actually tying down markers to different landmarks
11 in the quarry, specifically an old bus. And then we
12 did a few
--
there were a few night dives and things
13 at the quarry.
14
Q. Other than these events and including the
15 scuba diving that you did with Mr. Keller, have you
16 had occasion to in any way have any interactions or
17 dealings with him?
18
A. Yes.
19
Q. Could you describe those for us?
20
A. Just that we have some mutual friends and
21 we have both been at functions.
22
Q.
When you say functions, you mean
—-
23
A. Weddings, baby showers.
24
Q.
——
social
——
56
1
A. Social gatherings.
2
MR. PORTER: Again, it’s impossible for
3 the court reporter to try to take down when you’re
4 both talking at the same time. I’m sure she is
5 making her best efforts at it however.
6
A. Bless her heart.
7
Q. Would it be fair to characterize your
8 relationship with Mr. Keller as a friend?
9
A. No.
10
Q. Social acquaintance?
11
A. Correct.
12
Q. Is Mr. Keller married?
13
A. Yes.
14
Q. Do you know his wife’s name?
15
A. Brenda.
16
Q. Do you know Brenda Keller?
17
A. Yes.
18
Q. When did you first meet Brenda Keller?
19
A. The same time I met Rob.
20
Q. Is she a scuba diver as well?
21
A. She’s part of that circle. I’ve never
22 actually seen her dive, so I couldn’t say yes or no
23 actually.
24
0. Was she a participant in these various
57
1 events you described having participated in with Mr.
2 Keller?
3
A. Yes.
4
Q. Would it be fair to characterize her as a
5 social acquaintance of yours?
6
A. Yes.
7
0. A friend of yours?
8
A. No.
9
0. And you said that both of them sort of
10 work in or are around the same circle of people.
11
A. Yes.
12
Q. Okay. Which individuals or which people
13 are we talking about? Can you give us any names of
14 who these
——
who these circle of acquaintances are?
15
A. Not really clear as to why that’s
16 important.
17
MR. PORTER: I think your concern is
18 whether or not it’s relevant, and I also have been
19 sharing that concern. However, you indicated
20 earlier that Mr. Harrison called you from Mr.
21 Keller’s house and I think that counsel has a right
22 then to figure out who Mr. Keller hangs out with in
23 order to determine whether or not one of those
24 individuals was an objector. And that’s the reason
58
1 I’ve not objected to relevancy yet, and I think that
2 you have or I think counsel has a right to ask the
3 question. I think you have a responsibility to
4 answer.
5
A. Mostly it’s a circle of my friends. My
6 husband knows him, them. Pam and Mike Lachinsky.
7 Gosh. Pam and Bill Convery who don’t even live in
8 this area. I mean, for heavens sake, they know my
9 children. I don’t know who they hang out with
10 specifically. I can only give’you instances where I
11 have been with them through different things, and
12 again, I don’t know all those people’s that went to
13 the dive events names. I haven’t been as deeply
14
involved as perhaps they are, but
—-
15
Q. What does Mr. Keller do for a living?
16
A. To the best of my knowledge, the last job
17 I knew he held, he worked at a stone quarry here in
18
town.
19
Q.. Has he had a number of different jobs over
20 the period of time that you’ve known him?
21
A. I
——
I really don’t know him well enough
22 to be able to answer that.
23
Q. Do you know whether Mr. Keller has ever
24 performed any work for United Disposal?
59
1
A. I have no idea.
2
Q. Do you know whether he’s ever performed
3 any work or services for Mike Watson?
4
A. I have no idea.
5
Q. Do you know whether Mr. Keller knows Mr.
6 Watson?
7
A. I have no idea.
8
Q. Now, you mentioned a little bit earlier
9 about a conversation that you had with Mr. Keller
10 about receipt of notice for the first siting
11 application that was filed on August 16th of 2002;
12 is that correct?
13
A. That’s correct.
14
Q. Where did this conversation take place?
15
A. Off the top of my head, I can’t recall
16
exactly. It was
——
it was in town at a store. Had
17 just run into him somewhere. And I honestly can’t
18
-—
I want to say K Mart, but I can’t say that for
19 certain.
20
Q. And when you say it was in town, which
21 town are you referring to?
22
A.
.
Bradley.
23
Q. And do you recall what time of year it was
24 or when it occurred?
60
1
A. Oh, it was chilly out, that’s all I
2 recall. That could be
——
I want to say sometime in
3 the spring.
4
Q. Are you aware that Mr. Keller and his
5 wife, Brenda Keller, testified during the first set
6 of public hearings on the first siting application
7 and that testimony would have been in December of
8 2002?
9
MR. PORTER: I’m sorry, counsel, I have to
10 object and direct the witness not to answer. Again,
11 I think this invades as to what she has reviewed.
12 She did vote on that application. For consistency
13 sake, I have no choice but to direct the witness not
14 to answer.
15
Q. Do you know if the Kellers testified at
16 the public hearing?
17
MR. MORAN: I’m not sure how this affects
18 her mental process or how she viewed the
19 application. This is a fact of as to whether these
20 individuals testified or didn’t. She either does or
21 doesn’t know. I’ve asked her whether she knows.
22
MR. PORTER: As long as counsel is not
23 asking what she reviewed, I’m going to go ahead
-—
24 what she reviewed or what she saw at the hearings,
61
1 I’m going to go ahead and let her answer on that
2 basis of what she’s aware of. Go ahead.
3
A. Yes, that Rob had
——
you’re speaking of
4 the public sessions?
5
‘
0. I’m speaking of the public hearings that
6 were conducted by the Regional Planning Commission
7 on the first siting application which took place in
8 November and December of 2002.
9
MR. PORTER: And his question is if you’re
10 aware of the testimony.
11
A. I’m aware of it. I mean, I couldn’t tell
12 you what he said, but, yes, I’m aware.
13
MR. PORTER: Again, just answer the
14 question that he asked.
15
Q. I’m not asking’ you what he said. Did he
16 tell you that he testified?
17
A. No.
18
Q. You learned through some other means?
19
A. Yes.
20
Q. And you were also aware that Mrs. Keller
21 testified during that
-—
those hearings.
22
A. Yes.
23
Q. So you ran into Mr. Keller at a store in
24 Bradley sometime when it was cool out, but would it
62
1 have been sometime after they had testified?
2
MR. PORTER: Can we go off the record for
3 a minute?
4
A. Yeah.
5
(Discussion off the record.)
6
MR. PORTER: Go ahead and answer.
7
MR. MORAN: You’re absolutely right, and
8 let me just go ahead and just clarify this.
9
Q. I think you did indicate previously that
10 this discussion you had with Mr. Keller was prior to
11 your election to the county board.
12
A. Correct.
13
Q. And you were elected to the county board
14 in November of 2002.
15
A. Correct.
16
Q. So it would have been sometime prior to
17 the date you were elected, which I assume was the
18 first Tuesday in November of 2002.
19
A. Correct.
20
Q. Can you give us any indication as to how
21 long before the date you were elected? Would it
22 have been a couple of weeks, a month?
23
A. I
-—
I’m wanting to say it was
--
it was
24 more than a month. My recollection of it was
——
63
1
MR. PORTER: You’ve answered his question,
2 unless it relates to that question. I don’t mean to
3 interrupt.
4
THE WITNESS: Okay.
5
MR. PORTER: If you’re answering that
6 question or elaborating, go ahead and complete it,
7 but if you’re not, then I’d ask you to wait until
8 another question is asked.
9
THE WITNESS: Okay.
10
MR. PORTER: All right. You’re going to
11 wait?
12
THE WITNESS: I think I’ll wait.
13
Q. Your recollection was that it occurred
14 sometime when it was cool out.
15
A. Yes.
16
Q. Would it be accurate to say that that
17 discussion took place sometime in September or
18 October of 2002?
19
A.
20
it was in
21
Q.
22
A.
23
Q.
24 August of
No, I want to say spring. I want to say
the spring.
The spring of?
2002.
The siting application that was filed in
2002 was filed on August 16th of 2002. Is
64
1 that your understanding?
2
A. Yes.
3
Q.
The notices that would have been sent out
4 to the various property owners and others were sent
5 out in late July and early August of 2002.
6
A. Okay.
7
Q. Is that your understanding?
8
A. I
--
I
--
I have no idea when they were
9 sent out.
10
Q. If these notices were sent out at the end
11 of July of 2002, would it be accurate to say that
12 your discussion with him about these notices
13 occurred sometime after July of 2002?
14
A. The discussion occurred immediately after
15 the notice was
——
within a week of the notice being
16 placed on his door.
17
Q. If I were
——
18
A. So whenever that was.
19
Q. If I were to indicate to you that evidence
20 presented at the public hearings on the first siting
21 application indicated that a notice of the filing of
22 the first siting application was posted on the
23 Kellers’ door on August 1st of 2002, does that in
24 any way refresh your recollection as to when this
65
1 discussion with Mr. Keller took place?
2
MR. PORTER: Well, I need that read back,
3 I’m sorry.
4
(Requested portion of the deposition was
5 read by the court reporter.)
6
MR. PORTER: I object to the extent that
7 counsel is trying to characterize the evidence that
8 was admitted at the hearing, but it’s for the
9 purpose of establishing dates, so I’m going to go
10 ahead and let you answer, but be aware it may be an
11 incomplete hypothetical of what all that evidence
12 actually showed. Go ahead and answer.
13
A. All I recall about that particular meeting
14 is that it wasn’t even a meeting. We just ran into
15 each other, was in a parking lot, and I keep wanting
16 to say K Mart. It was a blustery that day. It
17 would have been fall, spring. I really can’t
18 recall. I know I was not on the county board. It
19 was very windy and chilly out that day, and I really
20 didn’t
-—
my primary concern was getting back in my
21 car and getting out of the weather.
22
Q. Was anyone else present or in or around
23 the area where you had this discussion with Mr.
24 Keller?
66
1
A. My husband was with me, but he wasn’t
--
2 wasn’t actually a part of the conversation.
3
0.
And
you were coming to your car after
4 having concluded whatever business you were doing
——
5
A. Yeah.
6
Q.
——
in the store that you were visiting?
7
A. Yeah. That’s my recollection. I remember
8 him putting something in our car, sty husband.
9
Q.
And
how did Mr. Keller approach you in the
10 parking lot?
11
A. He was going in for whatever reason. Hey,
12 how you doing, (indicating), and that kind of thing.
13
MR. PORTER: For the record, did you
14 indicate a wave?
15
A. Yes, that was a wave, I’m sorry.
16
Q.
And
what did he say to you then?
17
A. He came over, he chatted for a few
18 minutes, and then he indicated something about
——
19 trying to think exactly how he put it. Something to
20 the effect that, I don’t know who he was indicating,
21 they are so F—ing stupid that they put that F-ing
22 notice on our door and just left it, and I told the
23 old lady not to touch it, don’t open it, just leave
24 it where it’s at and we never got it. You didn’t
67
1 read it, we never got it.
2
Q.
And when you say he said the old lady, who
3 was he referring to?
4
MR. PORTER: Object to conjecture. Go
5 ahead and answer.
6
A. I’m assuming Brenda.
7
Q. And what’s the basis of that assumption?
8
A. Well, he’s referred to her as the old lady
9 a few times.
10
Q. Oh, he has?
11
A. Yes.
12
Q. And he had referred to her as that prior
13 to that occasion?
14
A. Yeah.
15
Q. So that was your understanding when he
16
‘
referred to the old lady.
17
A. Right.
18
Q. What else did he say to you regarding the
19 notice that wassent to his home or that was posted
20 on his door?
21
A. That it was still there.
22
Q. It was still on his door
—-
23
A. Oh-huh.
24
Q.
--
as of the day he spoke with you?
68
1
A. Oh-huh.
2
MR. PORTER: Is that yes?
3
A. Yes.
4
Q. And when he said they were so F-ing
5 stupid, did you have any understanding as to who he
6 was referring to?
7
A. I
——
I really wasn’t clear and I wasn’t
8 interested enough at that point to ask him what he
9 was referring to. I didn’t know if he meant like
10 the sheriff’s deputy, because it was my assumption
11 that they serve you with legal documents, or if he
12 was indicating Waste Management or just who they
13 were. He didn’t make it clear and I didn’t actually
14 bother to ask him.
15
Q. What else did he say about any notice that
16 went to his home?
17
A. That was pretty much it. He was laughing
18 at himself and appearing to be quite proud of his
19 cleverness. And then I concluded the conversation,
20 said I am freezing to death, I got to get in the
21
car, I got to go.
22
Q. And when you say he was referring to his
23 cleverness, what did you understand that cleverness
24 to be?
69
1
A. That he had outsmarted somebody.
2
Q. And did he indicate that he was going to
3 deny that he had received any such notice?
4
A. That was the indication.
5
Q.
Did he indicate that his wife Brenda or
6
the old lady
—-
7
A. The old lady.
8
Q.
--
was going to deny that she received any
9 notice?
10
A. That was the indication.
11
Q. Did he indicate whether anyone had
12 discussed with him r~easonsas to why he should deny
13 receipt of the notice?
14
A. No.
15
Q. Did he indicate someone had indicated to
16 him that this is something that he ought to do in
17 order to
.18
A. No.
19
Q.
--
defeat a request for siting approval?
20
A. Did
--
the only thing he really said about
21
it was if we don’t
——
if we don’t open it, if we
22
don’t read it, we didn’t get it. So I
--
you know,
23 he never indicated that anybody told him that. I
24 don’t know if it was something he thought up on his
70
1 own. I have no idea. He never indicated anything.
2
Q. Did he state in any way whether he had
3 received any mailings which may have contained a
4 similar notice?
5
A. No.
6
Q. There was simply no discussion?
7
A. There was absolutely no discussion. That
8 was the only thing he said to me was that this thing
9 had been affixed to his door.
10
Q. Did he say when it had been affixed to his
11 door?
12
A. No, he did not.
13
Q. And you said before that this discussion
14 occurred about a week after the notic~was posted.
15 What was the basis for your conclusion that the
16 discussion occurred shortly after the notice had
17 been posted? Did he make some reference to it or
18 did he indicate that it had been recently posted?
19
A. No. All he said was it was still there,
20 so I was thinking it had to be fairly recently for
21 it to still be stuck on the door.
22
‘
Q.
Did he in any way describe or state how
23 the notice was affixed to the door? In other words,
24 with nails, with tape, with
——
71
1
A. He said it was taped to the door.
2
Q. Did he say which door?
3
A. No.
4
Q. Did he indicate how the notice came to be
5 removed from the door?
6
A. No.
7
Q. Did you ever subsequently learn of any
8 information as to how the notice came to be removed
9 from the door?
10
A.’ No.
11
Q. Did he in any way indicate to you how he
12 knew that the notice that was posted to his door
13 related to the proposed expansion?
14
A. No.
15
Q. But he indicated to you that he knew it
16 was related to the proposed expansion?
17
A. Yes.
18
Q. How long did this conversation with Mr.
19 Keller last?
20
A. Five to seven minutes maybe.
21
Q.
It would fair to say that the principal
22 subject of discussion during this conversation was
23 Mr. Keller boasting to you about his cleverness
24 regarding the notice
——
72
1
A. Yes.
2
Q.
--
he had received?
3
A. Yes.
4
Q. Did you ever have any communication or
5 discussion with him about this notice issue after
6 that date?
7
A. None.
8
Q. Have you had any discussion or
9 communication with any other person about this
10 discussion with Mr. Keller at any time?
11
MR. PORTER: Well, I object to the extent
12 that invades the attorney/client privilege. Other
13 than that, you can go ahead and answer.
14
Q. I’m not asking for any communications you
15 may have had with any lawyers representing you or
16 representing the county. Just any discussions or
17 communications with any other person about what Mr.
18 Keller told you.
19
A. I mentioned it to my husband on the way
20 home that afternoon, that that seemed kind of odd
21 that they would
-—
I thought they would serve it.
22 And my husband kind of, you know, blew it off. He
23 doesn’t really care for Mr. Keller too much, so
——
24 then I
-—
I again discussed it with my husband, last
73
1
week, asked him
if
he recalled that conversation,
2
and he said
I
only remember you making the comment
3
about the deputies
not
serving
it.
He said
I
don’t
4
remember,
I
wasn’t a part of that conversation.
5
Q.
Other than your husband and any lawyers
6
representing
you or the county, have you talked or
7
had a discussion with anyone about your discussion
8
with Mr. Keller on that date?
9
A.
Carl Kruse.
10
Q.
When did you have a discussion
or
11
communication with Mr. Kruse about that
12
communication?
13
A.
It
—-
it wasn’t a specific discussion
14
about that so much.
I spoke with him last week and
15
said that I thought I would have to do the whole
16
deposition
then.
17
Q.
So you were talking about this deposition?
18
A.
Right.
19
Q.
Talking to Mr. Kruse about what you might
20
be——
21
A.
No, I just told him that it looked like I
22
was going to have to do it.
I had mentioned to him
23
in the past that I hoped I wouldn’t have to because
24
of my work schedule.
74
1
Q. To Mr. Kruse?
2
A. Yeah. And he said yes, you know, to go
3 ahead and just tell you everything that you ask me
4 and things would be fine.
5
Q’. Did you ever learn that in August of 2003
6 the Illinois Pollution Control Board reversed the
7 siting approval of the Kankakee County Boarc~on the
8 first siting application?
9
MR. PORTER: I’ll object to the extent it
10 invades the attorney/client privilege. You haven’t
11 asked her
—-
well, that’s my objection. If
——
if
12 the way you learned that was only through
13 communication with counsel, I have to object to that
14 invades attorney/client privilege.
.
If you can
15 rephrase it, counsel, I would appreciate it.
16
Q. Other than hearing it from a lawyer
17 representing you or the county, did you ever learn
18 that the Illinois Pollution Control Board reversed
19 the grant of the siting approval by the Kankakee
20 County Board for the proposed expansion?
21
A. No.
22
MR. PORTER: Do you need to talk to me?
23
THE WITNESS: No. Just kind of getting
24 nervous about the time.
75
1
MR. PORTER: Do you have somewhere you
2 need to be?
3
THE WITNESS: I have to work at 3:00, so
4 I’ve got maybe an hour.
5
MR. MORAN: We’ll be done b.y then.
6
(Discussion off the~record.)
7 BY MR. MORAN:
8
Q. Did you indicate in any way to Mr. Kruse
9 the discussion that you had with Mr. Keller that
10 we’ve just talked about?
11
MR. PORTER: Hang on a second. I’m going
12 to object to relevancy. There’s been discussion or
13 testimony that that discussion took place within the
14 past week and clearly cannot be relevant to the
15 fundamental fairness of the proceedings, and
16 therefore, I’m going to direct her not to answer
17 that one.
18
A. Okay.
19
Q. Based upon the testimony that was
20 presented during the public hearings on the first
21 siting application in December of 2002, it was
22 stated that a proces.s server had posted a notice on
23 the door of the Kellers’ home on August 1st, 2002.
24 Does this fact refresh your recollection that the
76
1 conversation you had with Mr. Keller in the parking
2 lot that you’ve just described occurred sometime in
3 August of 2002?
4
A. Like I said, it was just
——
I just
5 remember it was a blustery day, and it would have to
6 have been after the first week of August because we
7 had been out of town that first week in August.
8
Q. Do you have any reason or information to
9 indicate that this conversation with Mr. Keller did
10 not occur in August of 2002?
11
A. Like I said, I
—-
my only recollection
12 about the date was the fact that it was
——
the
13 weather was cool, it was uncomfortable. Other than
14 that, that could be any time of the year here, so
15 no.
16
Q. But you have no information to indicate
17 that the discussion occurred other than in August of
18
2002.
19
A. Like I said, I’m having trouble recalling
20 exactly when it happened, so I don’t know what
21 information I could have.
22
Q. Would it be accurate to say that this
23 discussion with Mr. Keller in’the parking lot
24 occurred sometime between August 1st of 2002 and the
77
1 date you were elected to the county board?
2
MR. PORTER: I’ll object that it’s been
3 asked and answered. She’s already testified it took
4 place before she was elected to the county board,
5 but go ahead and answer one more time. I think he
6 does have a right to some clarification here.
7
A. I would say it would have to have been
8 after the first week in August and prior to my
9 election.
10
Q. And you’ve indicated that you have had no
11 other communications or discussions with either Mr.
12 Keller or Mrs. Keller regarding the proposed
13 expansions since that discussion with Mr. Keller; is
14 that correct?
15
A. None, that is correct.
16
Q. Have you had any communications or
17 discussions with Ronald Thompson?
18
A. I have no idea who that is, no.
19
Q. With Keith Runyon?
20
A. He talked. I patted him on the arm and
21 walked by. It was here in the county building prior
22 to a meeting. He’s always in the hallway. I
23 wouldn’t call it a discussion, no.
24
Q.
He approaches you?
78
1
A. Oh, yeah.
2
Q. Says things to you
——
3
A. Yes.
4
Q.
--
regarding the proposed expansion?
5
A. Yes. No, no, no. That’s incorrect. It’s
6 his discussions always revolve around closed loop
7 gasification.
8
Q. Have you received any communications from
9 any persons prior to March 17th of 2004 regarding
10 the second siiing application other than what we’ve
11 talked about?
12
.
A. Yes.
13
Q. Could you describe for us what
14 communications you have received?
15
MR. PORTER: Well, I’m going to object to
16 the extent it invades the deliberative process of a
17 county board member. Direct the witness to limit
18 your responses to nonboard members at this time, and
19 I’ll let counsel follow—up if indeed he needs to.
20
A. Okay. I received letters which were from
21 I’m assuming residents out in Otto and they were all
22 turned into Bruce Clark’s office.
23
Q. These were letters you received?
24
A. Oh-huh.
79
1
MR. PORTER: Yes?
2
Q. You need to say yes.
3
A. Yes, yes.
4
Q. How many letters did you receive
5 approximately?
6
A. 25, 30.
7
Q.
Did you review or read any of the letters?
8
A. I opened the first one. When I realized
9 what it was, that it violated the not discussing,
10 not being influenced after the date of the last
11 hearing, I immediately put it back in the envelope,
12 and any unfamiliar letters, anything that looked odd
13 to us, the vast majority of them had the same
14 handwriting, were addressed by the same hand, so
15 some of the postmarks threw me. I did open a couple
16 of them that were from, say, Bradley or Bourbonnais,
17 and as soon as I realized what they were, I stopped
18 reading, placed them in the envelope and turned them
19 over to Bruce Clark.
20
After that, I received
——
after the vote,’
21 I received thank you cards, lots a’nd lots of thank
22 you cards. After I realized again what those were
23 and recognized the handwriting on the envelopes, I
24
just
-—
I
threw those away. I just pitched them.
80
1
Q. Did you receive any phone calls from any
2 residents or constituents prior to March 17, 2004?
3
MR. PORTER: Other than what’s already
4 been testified to?
5
MR. MORAN: Yes.
6
A. What would be the time frame for that?
7
Q. Any time prior to March 17, 2004, which is
8 the date of the second siting application.
9
A. The only phone call I received was from
10 Olivia Wagner and that was shortly after I was
11 elected to the board, before I was even sworn in,
12 encouraging me to looking to get closed loop
13 gasification.
14
Q. And so in 2004, prior to March 17th, you
15 received no phone calls from any persons other than
16
Mr. Harrison
——
17
A. Exactly.
18
Q.
—-
regarding the proposed expansion?
19
A. Exactly.
20
Q. And other than the letters you’ve
21 testified about, you haven’t received any written
22 materials or any other documents from any persons
23 prior to March 17th, 2004, regarding the second
24 siting application.
81
1
A. That is correct.
2
Q. Have you seen or did you see any of the
3 posters or placards that were located throughout the
4 environs regarding the proposed expansion?
5
A. Yes, I did.
6
Q. And what did you see?
7
A. Actually, that’s how John Latham’s name
8 came up. He lives next door to me. He’s my uncle.
9 There was one in his front yard that said
——
it was
10 green and white. It said no dump, no Chicago
11 garbage or something like that. And I went over and
12 had a little chat with him; that it really upset me
13 he had that in his yard and I did not think that
14 that was appropriate.
And
he expressed that he knew
15 how I felt about this issue, but that he had the
16 right to put it there. And I said, well, I’m a
17 little uncomfortable, you know, perhaps you could
18 take it down. And his
-—
my aunt, his wife, said
19 you know, she’s right, she shouldn’t have to look at
20 that every day when she comes home. And they did
21 remove the sign. And I’ve seen them elsewhere
22 through town.
23
Q. The same sign?
24
A. The same exact sign.
82
1
Q. Do you have any facts or information to
2 indicate that any of the other county board members
3 took these posters and what they said into account
4 in voting on the second siting application?
5
MR. PORTER: Hold on.
6
Q. It’s a yes or no response.
7
A. No.
8
THE WITNESS: Did I jump the gun?
9
MR. PORTER: You’re fine.
10
Q. I believe you had indicated that with
11 regard to the first siting application, that is the
12 one voted on on January 31st, 2003, you voted to
13 approve that application, correct?
14
A. I believe I did, yes.
15
Q. And on March 17th, 2004, you voted and
16 ultimately voted against two of the criteria; is
17 that correct?
18
A. That is correct.
19
Q. You voted against criterion three which is
20 the criterion related to the character of the
21 surrounding area and whether any incapability was
22 minimized with regard to the proposed expansion and
23 also where the location of the facility was such as
24 to minimize any adverse effect on property values.
83
1 Is that correct?
2
A. I voted against
--
3
MR. PORTER: Right now, his question is
4 only if you recall voting against criterion three,
5 and he has accurately described what criterion three
6 is. This isn’t a memory test. If you like, I have
7 your roll call vote right here.
8
A. No, I know what I voted against, and I
9 guess I would have to say yes, then, to that
10 question.
11
Q. Okay. And I believe you also voted to
12 disapprove criterion six which had to do with
13 whether the impact on existing traffic patterns had
14 been minimized.
15
A. That is correct.
16
Q. Okay. Now, with respect to the first
17 siting application, you had voted to approve
18 criterion six, correct?
19
A. Correct.
20
Q. What information or facts did you base
2.1 your decision to vote against criterion six on March
22 17th, 2004, regarding the second siting application?
23
MR. PORTER: I would object and direct the
24 witness not to answer based on the fact that that
84
1 obviously invades the deliberative process of a
2 county board member.
3
Q.
You also voted to disapprove criterion
4 three ~s I indicated a few moments ago, correct?
5
A. Oh-huh, yes.
6
Q. But in the 2003 vote, you voted to approve
7 criterion three, correct?
8
A. Yes.
9
Q. Why did you change?
10
MR. PORTER: Same direction. Same
11 objection.
12
Q. What facts or information did you have on
13 which you based your decision
to
change your vote
14 from an approval on criterion three to a disapproval
15 on criterion three?
16
MR. PORTER: Same objection, same
17 direction.
18
Q. Do you accept that instruction?
19
A. Yes.
20
Q. I’m going to go through very briefly a
21 list of names and I want to ask you if you had any
22 communications or discussions with any of the
23 following individuals regarding the second siting
24 application.
85
1
A. Okay.
2
Q. Andrea Taylor?
3
A. No.
4
Q.
Karen Mallaney?
5
A. No.
6
Q. Robert Taylor?
7
A. No.
8
Q. Pat Buescher?
9
A. No.
10
Q. Stephanie Kramer?
11
A. No.
12
Q. Jeremy Christer?
13
A. No.
14
Q. Tammy Christer?
15
A. No.
16
Q.
Tammy
Focken?
17
A. No.
1-8
Q. Rodney Cote?
19
A. No.
20
Q. Rodney Burch?
21
A. No.
22
MR.
MORAN:
Thank you. That’s all I have.
23
MR. PORTER: We have no follow-ups. And
24 we will reserve signature.
86
1
(Adjourned at 12:43 p.m.
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
‘
22
23
24
87
1 STATE OF ILLINOIS
SS
2 COUNTY OF FORD
3
I, June Haeme, a Notary Public in and for
4 the County of Ford, State of Illinois, do hereby
certify that LISA LATHAM WASKOSKY, the deponent
5 herein, was by me first duly sworn to tell the
truth, the whole truth and nothing but the truth, in
6 the aforementioned cause of action.
That the following deposition was taken on
7 behalf of the Petitioner at the Kankakee County
Building, 189 East Court Street, Kankakee, Illinois,
8 on July 20, 2004.
That the said deposition was taken down in
9 stenograph notes and afterwards reduced to
typewriting under my instruction; that the
10 deposition is a true record of the testimony given
by the deponent; and that it was agreed by and
11 between the witness and attorneys that said
signature on said deposition would not be waived.
12
I do further certify that I am a
disinterested person in this cause of action; that I
13 am not a relative, or otherwise interested in the
event of this action, and am not in the employ of
14 the attorneys for either party.
IN WITNESS WHEREOF, I have hereunto set my
15 hand and affixed my notarial seal this 20th day of
July, 2004.
16
17
18
19
J1O~HAEME, CSR, RMR, CRR
1~Q~ARYPUBLIC
20
21
“OFFICIAL SEAL”
22 June Haerne
Notary Public, State of Illinois
23 My Commission Expires:
September 27, 2004
24
88
1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
2
WASTE MANAGEMENT OF ILLINOIS,
3
INC.,
4
Petitioner,
-vs—
)
No. PCB 04—186
5
COUNTY BOARD OF
KANKAKEE
6 COUNTY, ILLINOIS,
7
Respondent.
8
9
This is to certify that I have read the
10 transcript of my deposition taken by June Haeme,
11 CSR, RMR, CRR, in the above-entitled cause, and that
12 the foregoing transcript taken on July 20, 2004,
13 accurately states the questions asked and the
14 answers given by me, with the exception of the
15 corrections noted, if any, on the attached errata
16 sheet(s).
17
18
19
LISA LATHAM WASKOSKY
20
21 Subscribed and Sworn before
22 me the
day of
23
,
2004.
24
,
Notary Public
Exhibit
B
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
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 KAINKAKEE, 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.
PCB 03-03-125
(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)
PCBO3-135
(Third-Party Pollution Control
Facility Siting Appeal)
KEITH RUNYON,
)
)
Petitioner,
)
)
v.
)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD
OF
KANKAKEE, and WASTE
)
MANAGEMENT
OF ILLINOIS, INC.,
)
)
Respondents.
)
394448
AFFIDAVIT OF DONALD J. MORAN
IN SUPPORT OF MOTION FOR RELIEF FROM JUDGMENT.
I, Donald J. Moran, state on oath that I have personal knowledge ofthe facts contained
herein, and if called, could and would competently testify as follows:
1.
I am a partner in the law firm ofPedersen & Houpt and admitted to practice law
by,
inter alia,
the Supreme Court of Illinois.
2.
At all times relevant to the events set forth in this Affidavit, I have been principal
counsel for Waste Management ofIllinois Inc. (“WMII”).
3.
On August 16, 2002, WMII, filed an application for site location approval to
expand the Kankakee Landfill (“Application”) with Respondent County ofKankakee (“Kankakee
County”) to be reviewed and decided by the Kankakee County Board (“County Board”) pursuant
to Section 39.2 ofthe Illinois Environmental Protection Act, (the “Act”). 415 1LCS
5/39.2
(“Act”).
4.
Public hearings on the Application were held before the County Board on 11 days
between November 18 and December 6, 2002.
5.
On December
4, 2002, near the conclusion ofthe public hearings, a motion to
dismiss the proceedings for lack ofjurisdiction was filed by objector Michael Watson
(“Watson”). Watson claimed that Mr. Robert Keller and Mrs. Brenda Keller, husband and wife,
residing at
765
East 6000 South Road, Chebanse, Illinois, did not received pre-filing notice.
After hearing testimony and considering the evidence concerning the service ofpre-filing notice
on the Kellers, the hearing officer denied Watson’s motion to dismiss.
6.
On January 31, 2003, the County Board found that it had jurisdiction to decide the
Application and granted local siting approval in a seven-page written decision (“Approval”). The
394448
2
Approval was appealed by various parties to the Illinois Pollution Control Board (“IPCB”) in
City ofKankakee, et al. v. County ofKankakee, Nos. PCB 03-125, 03-133, 03-134, 03-135
(cons.) (August 7, 2003).
7.
On August 7, 2003, the IPCB issued an Opinion and Order (“August 7 Order”)
reversing the Approval. The IPCB held that the County Board lacked jurisdiction to decide the
Application based on the IPCB’s determination that one property owner, Mrs. Keller, did not
receive pre-fihing notice. The IPCB held that, because the County Board was without
jurisdiction, the Approval was void.
Id.
The IPCB did not address any ofthe other grounds
raised by Respondents.
8.
As a result ofthe August 7 Order, WMII refiled the Application on September 26,
2003. Despite the fact that the Application filed September 26 was the same as the Application
approved by the County Board on January 31, 2003, the County Board denied the former on
March 17, 2004. WMII appealed the denial in
WMIIv. County Board ofKankakee County, No.
PCB 04-186 (April 21, 2004).
Tn that appeal, WMII sought to depose County Board Member
Lisa Latham Waskosky to establish facts and information relating to the claim of fundamental
unfairness in the proceedings. On July 20, 2004, I took the deposition ofLisa Latham Waskosky.
9.
The testimony provided by Waskoskywas not discoverableprior to the January
31, 2003 decision ofthe County Board by the exercise ofdue diligence.
10.
Waskosky’s existence was unknown to WMII at the time ofher conversation with
Robert Keller in August 2002, in which Keller admitted the receipt ofservice and his intention,
along with Mrs. Keller, to nevertheless deny service.
394448
3
11.
Waskosky’s existence remained unknown to WMIIuntil her election to the
County Board in November 2002, which became effective on December 10, 2002, just after the
siting hearings were concluded.
12.
Even after she was sworn in as a County Board member, WMll had no basis or
information to suspect that Waskosky either had a relationship with Robert or Brenda Keller, or
that she might have facts or information relating to the Kellers’ receipt ofpre-filing notice.
13.
No witnesses, facts or documents in any waypointed to the slightest possibility
that Waskosky had either relevant or crucial information regarding this issue ofpre-filing notice
on the Kellers.
14.
The Watson Motion was presented at the start ofWMII’s rebuttal case on
December 4, 2002. The public hearings concluded December 6, 2002. There was no opportunity
or reason to conduct discovery or seek information regarding the Waskosky evidence. Neither
the siting applicant or any party has the right or power to undertake discovery during the siting
proceedings before the County Board.
15.
During the appeal in
City ofKankakee,
WMII had no knowledge or reason to
know Waskosky’s evidence. While WMII had the right to conduct discovery in the appeal, it had
no reason orbasis to depose County Board members on the jurisdictional issue because the
County Board found that pre-filing notice was effected and that it had jurisdiction to decide the
Application.
16.
The first ruling that pre-fihing notice was not received and that the County Board
thus lackedjurisdiction was the August 7 Order. There was no reason or basis for WIVIII to
depose County Board members on that issue prior to the August 7 Order. Even after issuance of
394448
4
•the August 7 Order, WMII had no reason to depose or discover information from County Board
members on the issue ofpre-filing notice because the County Board found it had jurisdiction. In
fact, WMII had no right or ability to depose County Board members on that issue after issuance
ofthe August 7 Order.
17.
Even as late as the pendency
of Kankakee County
in April to July 2004, WMll did
not know and had no reason to know or discover the evidence ofWaskosky’s discussion with Mr.
Keller.
Subscribed and sworn to me
before this
____
d y ofAugust 2004.
ot
Public
“OFFICIAL
SEAL”
Victoria Kennedy
Notary Public, State ofillinois
My Con
‘ni~fr~
Eqires March 9,
2005
394448
5
