04/11/2003 15:05 FAX ~159333397

KENNETH A LESHEN

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Petitioner,

COUNTY CF

LANKAKEE,

COUNTY BOARD OF

KANKAKEE,

and WASTE MANAGENENT OF

ILLINOIS, INC.

Respondents.

Petitioner,

COUNTY OF KANKA~EE, COUNTY

BOARD

OF

KANKAKEE, and WASTE MANAGE1~~’1ENTOF

ILLINOIS, INC.

Respondents

-

Petitioner,

COUNTY OF

KANKhKEE,

COUNTY BOARD OF

ANKAJKEE,

and WASTE MANAGEMENT OF

ILLINOIS, INC.

Respondents.

KEITH RUNYON,

.

Petitioner,

vs

- •

COUNTY OF

~ANKAKEE,

COUNTY BOARD OF

KANKA~EE, and WASTE

MANAGEMENT OF

ILLINOIS, INC.

Respondents.

ILLINOIS POLLUTION CONTROL BOARD

CITY

OF

KANKAKEE,

vs

)

)

MF~RLIN KARLOCK,

vs

MICHAEL WATSON,

vs

REC~ ~V ED

C1A~R1~SOFFtC~

APR 1 ~ 2003

STATE OF IWNOIS

Pollution Control Board

PCB 03—125

(~hird—Party Pollution

Control

Fac±li~ySiting- Appeal)

~CB 03—133

(Th±r~—PartyPollu~iomControl

Facility Siling Appeal)

PCB 03—134

(Third—Party Pollution Control

Facility Siting Appeal)

PCB 03—135

(Third—Party Pollution Con~rol

Facility Siting Appeal)

PCB 03—144

(Pollution Con~rcl Facility

Siting Appeal)

WASTE MANAGEMENT OF ILLINOIS, INC.,

Petitioner,

VS.

COUNTY OF

KANKA~(EE,

Respondent.

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~003

RESPONSE OF CITY OF KANKAKEE

TO WASTE MANAGEMENT OF ILLINOIS, INC.’S OBJECTIONS

TO PETITIONER CITY OF KANKAKEE’S DISCOVERY REQUESTS

NOW CONES the CITY OF KANKAKEE (hereinafter the “City”), by and

through its Assistant City Attorneys, L. PATRICK ROWER and KENNETH A.

LESHEN, and filing this response to the discovery objections flied by

WASTE MANAGEMENT OF ILLINOIS, INC. (hereinafter “WMII”), states as

follows;

1. The linchpin of WMII’~ discovery objections is its assertion that

the City should not be allowed to inquire into the formation of the County

Solid Waste Management Plan or any prefiling contacts between the County

of Kankakee (hereinafter “County”) and WMII.

2. WMII should be ordered to fully comply with the City’s discovery

because the formation and substance of the County solid waste plan and

host agreement create a suspicion of bias in favor of WMII during the

siting process; and therefore, go directly to the issue of fundamental

fairness. In fact, the designation of WMII as the sole operator of any

new landfill by the very language of the solid waste plan and

inferentially, the exclusion of any other applicant, smacks not only of

bias but of collusion, financial wrongdoing, and abuse of power involving

the County and WMII.

3. WNII cites

Residents Against A Polluted E’nvironment v. The

Illinois PollutIon Control Bc’ard, 293

Il1-App.3d 219 for the proposition

that the County’s relationship and involvement with WMII in the amendment

of the solid waste plan does not create a suspicion of bias by the County

in its consideration of WMII’s siting application.

Residents,

supra,

specifically found that other than the mere reference to LaridComp’s (the

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04/11/2003 15:05 FAX 8159333397

KENNETH A LESHEN

L~004

applicant) involvement with the amendment of the plan, the appellants d~d

not offer any specific allegation establishing how LandComp’s involvement

with the amendment of a solid waste plan created bias during the siting

process. In the instant case, the Illinois Pollution Control Board

(hereinafter the “Board”) has the following specific allegations ~o

consider:

a.) On March 12, 2002, by Resolution, the Kankakee County Board

amended its Solid Waste Management Plan, which stated in pertinent

part as follows, to—wit;

“The first two paragraphs of Section VI: Available

Landfill Capacity in Kankakee County of the Kankakee County

Solid Waste Management Plan are hereby deleted and replaced with

the following:

Kankakee County has a single landfill owned and

operated by Waste Management of Illinois, Incorporated.

This landfill has provided sufficient capacity to dispose

of waste generated in Kankakee County and its owner has

advised the County that it plans to apply for local siting

approval to expand the facility to provide additional

disposal capacity for the County. Operation of the

landfill has been conducted pursuant to a Landfill

Agreement signed by the County and. Waste Management in

1974, and subsequently amended from time to time. In the

event siting approval for any expansion is obtained, the

landfill would provide a minimum of twenty (20) years of

long term disposal capacity through expansion of the

existing landfill.

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KENNETH A LESHEN

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An expansion of the existing landfill, if approved,

would then satisfy the County’s waste disposal needs for at

least an additional 20 years, and in accord with the

Kankakee County Solid Waste Management Plan (as amended),

as well as relevant provisions of the Local Solid Waste

Disposal Act and the Solid Waste Planning and Recycling

Act, no new facilities would be necessary..”

This amendment is part of the record in the siting hearing.

Consequently, as is apparent in the record, the County knew that its

favored and designated applicant, WNII, intended to file a siting

application at the time it amended its solid waste plan. WMIT repeatedly

colluded with the County regarding the solid waste plan and its own

designation as the sole operator of any new landfill immediately prior to

its application. This inherent and stated bias percolated through the

siting process and hearing.

b.) The County’s March 12, 2002 amendment to its solid waste

plan preceded by a scant 24 hours the application of Town and Country

Utilities, Inc., to the City of Kankakee for siting of a solid waste

disposal facility. The tiineline is instructive:

i.) December 17, 2001; Correspondence from Dale J~oekstra

of Waste Management to Charles Heisten regarding proposed

amendment of solid waste management plan.

1±.) January 14, 2002: Correspondence from Dale Hbekstra

of Waste Management of Illinois, Inc., to Solid Waste Director,

Efraim Gil, responding to a report of a citizen’s group by the

name of ~“Outrage” regarding capacity of the Kankakee landfill.

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04/11/2003 15:05 FAX 8159333397

KENNETH A LESHEN

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-

iii.) March 4, 2002: Notes of Mike VanMill concerning

telephone call with Charles T-ielsten,

iv.) March 11, 2002: Documents from files of Mike VanMili

concerning proposed solid waste plan amendments.

V.) March 12, 2002: Resolution amending Kankakee County

Solid Waste Management Plan. See log of documents provided by

Hinshaw

&

Culbert.son attached hereto and incorporated herein as

Exhibit A.

vi.) March 13, 2002: Application of Town and Country to

City of tankakee for siting non-contiguous facility (strongly

opposed by Waste Management and County of IKankakee).

This flurry of activity did not occur by happenstance. Rather, it is

emblematic of the deeply flawed arid biased activity of the County that

permeated the siting process.

4. WMII further seeks to thwart the City’s discovery requests by

cloaking itself in a general catchall objection seeking to protect its

documents and information by asserting the attorney-client privilege as it

may apply. In the event that the privilege may apply, it is incumbent

upon WMII to specifically assert that privilege in response to an

identified document or communication that may be disclosed in response to

an interrogatory. No such specific assertion has been raised.

5. WNII asserts in a boilerplate and repetitive objection asserted

in response

to both

the document requests and to the interrogatories that

they are burdensome and over—broad. The burden on WMII pales in

comparison to the injury that may be inflicted on the citizenry of

Kankakee County if the flawed and biased process of the County is not

subjected to the appropriate scrutiny.

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04/11/2003 15:06 FAX

8159333397

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WHEREFORE, the City prays that an order be entered denying the

objections of WMII to the discovery propounded by the City and for such

other and further relief as the Board deems just, necessary and proper.

Respectfully submitted,

CITY F

L. atri Po er

Ass ~tant Cit Attorney

L. Patrick Power

Assistant City Attorney

City of Kankakee

956 North Fifth Avenue

Kankake~, IL 60901

815/937—6937

Reg. No. 2244357

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04/11/2003 15:06 FAX 8159333397

KENNETH A LESHEN

L~j008

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M1LwAUK1~&‘~iSCONSIN

WRTERS DIRECT DIAL

FLLE

No. 813053

S 54~o.4920

Apiil

l0~2003

Kenneth A. Lesheri

One Dearborn Square, Suite

550

Kankakee,

IL 60901

Re:

City

of

Karikakee v. County

of

Kankakee

Dear

Mr. Leshen:

Pursuant

to

ouj

communication.s

I have

agreed

to

provide

you ~th a log of

the

various

documents for which we are

asserting

privileges

and objections. The purpose behind this log is

to

allow

the

parties

to

understand that

the

County ofKankakee is in possession ofno

docurrients

between August 16, 2002

and

January

31, 2003, which

are

not

part

of

the

public record.

The

only exception to

this

statement is

internal

memoranda

between

members of County

staff that

were i~vo1vedin

drafting

the proposed recommendation. These

memoranda

were in no way

reviewed by the decision makers and, therefore,

are irrelevant,

inadmissible, and not likely to

lead

to admissible

evidence.

Please also be

advised

that

though

a document may

appear under a

specific heading below, which reflects a

primary

privilege or objection to producing said

document, that document may also be protected from to

discovery

or production on additional

bases.

For example,

many

of

the documents for which

there

is an obvious attorney-client

privilege

are

also protected because they were di-atted prior to Apr11 16, 2002.

ATTORNEY CLIENT

PRIVILEGED

N~crember2, 2001

~~?i~sponderLcefrom

Statc’iA~orneEy

Edward

Smith to Assistant

State’s Attorney Brenda Gorski concerning

search

for

special

assistant state’s attorney concerning solid waste issues.

~~cmbar

9,

~)0l

-

Correspondence from Attorney Edward Srriithto

Chairman

of the

County Board, E)ouglas Graves, concerning host

agreement.

November 19, 2001

Corre~pondeucefrom Attorney He~stento

Efraim

Oil

and

Brenda

Gorski regarding special assistant statc’s attorney position.

A rARTN6R.SLUP

INCLUDING

t’I-tOFESSIO~ALC~P()~J~1jONS

7’j~j’Jl2~--.l

~JJ~J5~

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04/11/2003

15:06

FAX 8159333397

KENNETH A LESHEN

I~J009

Kenneth

A. Leshen

ApEti LO, 2003

Page 2.

~F~1iI~

4, 2002

Note.s of Mike V~ Mill ~~ccrniij

te1~jh6n~

cafl with

ChaT~

Helstcn

-—

April 8) 2002

Correspondence

from

State s Attorney Edward

Smith

to

Efratm

Gil

concerning

procedures

for consultant retention.

,kpril 1

6, 2002

~~es~rid~ice

from Assistant State’s Attorney

B~rendaE

G~kito

Efrairn

Gil

regarding

consultant

expert retention.

April

15, 2002

~r~ondence

from

Eim Gil to Attorney

Edward

Smith

~i-ii

23, 2002

regarding

consuiting expert retention.

Correspondence from Charles Heisten to

Brenda

Gorski concerning

expertwitness retention.

Deccmber 12,

2002

Correspondence from ~d

Sniii~to

Bruce

Clark regarding

administrative rules relating to the record to be prepare4 for

landiill

siting process.

~~rnber 17, 20O2~

Correspondence i~m

Attorney

E1ir~th ~arvey toKank~~

County Board

and

Re~ona1 Planning Commission niembers

regarding

procedure

to be followed from close of hearing on

December 6. 2002

until

DOCUMENTS CONCERNING N-EGOTL&TION OF HOST AGREEMENT

1~T~h8,2001 to

Jaxtu~y

16, 2002

Of

d6~iriients

in

possessi~~

orMike Van

Mill

concerning negotiation ofhost

agreement~

October 23, 2001 to December 10,

Documents from files of

County Board

member

Pam

Lee

2001

concerning host

fce

negotiations

and agreements.

SOLID WASTE MANAGE~1ENTPLAN AMENDMENTS

200!

through

March 11, 2002

Documents

from files or Mike

Van

Mill

concerning

proposed solid waste plan

amendments.

~pri1

12. 2001 to M~ch1, 2002

Documents

of

Pam

Lee

conccrning solid wa~i~

management plan

amendments

and

negotiations.

7O3’,1~l~lJ1I3Q~3

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04/11/2003 15:06 FAX 5159333397

KENNETH A LESHEN

~I

010

Kenn.~thA.Leshen

April

1(~2003

DOCUMENTS PRE~-DATLNGAUGUST 16, 2002

•Octobcr 2001

—

~

oactuaj

or possible

atten

~of

Ian

1 site

tour.

Undated

Materials from Waste

Management

of Illinois

concerning

Settlers

Hills

Recycling Disposal

Facility,

undated

Document from Waste Management

comprehensive Solid Waste Proposal.

W~ernb~i~

13, 2001 ihroii~i~

December 11, 2001

T

1ic~sc~Tii~io~ap~ntirij special ~~mittee

-

io

negotiate host fee agreement

and

minutes of meetings

regarding same.

December 17, 2001

—

janu.aiy

14, 2002

-

-

—

Correspondence

—

fro~

Dale

ffoekst~a

of

Was~

Management to Charles Heisten

regarding

proposed

amendment

ofsolid waste management plan.

~Frespondence from

Dale ioe1~fma

Rii

w~i~

Management of Illinois, Inc. to Solid

Waste

Director.

Efraim

Gil responding to a report of a citizcn’s group by

the

name

of”Outr~ge”regarding capacity ofthe

Karikakee

landfilL

January

28, 2002

Correspondence

from

Dennis Wilt

of

Waste Management

to

Charles F’. Heisten concerning proposed changes ofthe

Kankakee

County Solid Waste Management

Plan.

April ii, 2002

Correspondences from Lee Addleman of

Waste

Management of Illinois to

various

land owners regarding

the

agreement

to

guarantee

property value COpied to

Efraim Gil of Kani

akee

DOCUMENTS CONCERNING CONSULTING EXPERTS OF STAFF AND INTERNAL

STAFF COMMIJNICATIONS NOT SHARED WITH DECISION

MAKER

I April 3,

~

2002

Internal

Lamme

~nerriorandumbetwe~iMi

Van

Mill

and

Mike

y regarding con5ulting experts

—.-

-

—

November 2001

1997

through

V~ous~cumens,~nd~rds

ofMike

Van Mill,

member of

County stafE

fCj~7.~

~

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04/11/2003 15~06FAX 8159333397

KENNETH A LESHEN

~011

~~ju~et1~A.

Leshen

April 10, 2003

Page

4

Ap,20

-

—

~rr~spondence ~orn As~LstantStates

Attorney

Br~i

Oorski concerning consu1t~ngexpert retention.

October 30, 2001

--

~

Correspondence

to Brenda GoNki

regai’diti~uLdn,g

expert

retention.

b~ft~sui~iaiy~rep~

of~rop~dc~pansionof ffi~

Kankakee Recycling and

Disposal Facility.

T~uary7,

2003

Correspondence between Chris

Burger

and Mike

Van Mill

January 20O~~~

—

regarding recommendations.

B-mails between County staff

and

attorneys concerning

amendments

for

recommendation report.

DOCUMENTS POST DATING DECISION

7~iuaiy

T7~2OO~~i~suefaft~~ Memorandum

from

W~i~Maiagement of iflinois~o

decision was rendered)

Kankakee

County

Board

HINSHAW & CUL~ERTSON

Richarp’~

cc:

All Parties

7~~1i;~I~.~US3

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04/11/2003 15~06 FAX 8i59333397

KENNETH A LESHEN

~012

AFFIDAVIT

OF SERVICE

The undersigned, pursuant to the provisions of Section 1—109 of the

Illinois Code of Civil Procedure, her~byunder penalty of perjury under

the laws of the United States of America, certifies that a copy of the

foregoing was served upon the following parties by facsimile to those

parties with facsimile numbers listed below and by depositng same to all

parties in the U. S. Mail at Kankakee, Illinois, before 5:00 p.m., on the

11th

day of April, 2003~

Dorothy M. GUnn, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100

West

Randolph Street, Suite 11—500

Chicago, IL 6~060l—32l8

Bradley Halloran

Hearing Officer

Illinois Pollution Control ~oard

100 West Randolph,

11th

Floor

Chicago, IL 60601

FAX

312/814—3669

Donald J. Moran, Es~.

Pederson & 1-loupt

161 North Clark, Suite 3100

Chicago, IL 60601-3242

FAX

312/261—1149

Charles F~Melsten, Esq.

~ichard

S. Porter, Esq.

Hinshaw & Culbertson

p. 0. Box 1389

Rockford, IL 61105—1389

FAX 815/963—9989

Jennifer J. Sackett Pohlenz, Esq.

175 W. Jackson Blvd., Ste. 1600

Chicago, IL 60604

FAX

312/540—0578

Lelarid Milk

6903

South Route 45—52

Chebanse, IL 60922

George Mueller, Esq.

501 State Street

Ottawa, IL 61350

FAX 815/433—4913

Keith L. Runyon

1165 Plum Creek Drive, Unit D

Bourbonnäis, IL 60914

FAX 815/937—9164

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8159333397

KENNETH A LESHEN

~013

Elizabeth Harvey, Esq.

Swanson, Martin & Bell

One IBM Plaza,. Suite 2900

330 North Wabash

Chicago, XL 60611

FAX

312/321-0990

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04/11/2003 15:05 FAX 8159333397

KENNETH A LESHEN

41001

KENNETH A. LESHEN, P.C.

~

ATTORNEY AT LAW

CL~t~4(J1~F~C~.S

One

Dearborn

Square, Suite 550

~~PR1

1 Z003

Kankakee,

Illinois 60901-3927

STATE øF ILLiNOIS

Telephone

poitutio~gf~ oa

(815) 933-3385

(815) 933-3397

FACSIMILE TRANSMITTAL

COVER

LETTER

DATE:

April 11, 2003

FROM:

Kenneth A. Leshen

RE:

City

of Kankakee vs. County of Kankakee, et al.

Illinois Pollution Control Board

POB 03—125, et al.

THERE WILL BE (13) PAGES INCLUDING THIS PAGE

The i~forrnationcontained In this faceimiie is confidentlal and m~yaI~contain prIvth9~de~mey-cIIeritinformation or work product The irifonnedon is ir~thndedonly

for the use ofthe Individual or entity to which it is addr~sed If you are not the intend~recipient, orthe employee or agentr~pontibleto d~iiv~rit to the interidai

recIplen~you are hereby notified that any use, dissemination, distributlon or copying of this communication is strictly prohibited. If you have received this faesimite in

error, pioasa notify us Imrnedlatoly by ~iephorw,and return tha original message to is at the address listed ab~avia the Unitod States Postal Service. Thank You.