65448-POll

BEFORE

TIlE ILLINOIS POLLUTION CONTROL BOAR)

RECE~VlEl

MICIAEL WATSON,

CI.tRK’~

nF~TrF

APR 24 2003

Petitioner,

No. PCB 03-134

STATE OF ILUNOIS

vs.

(Pollution Control Facility Sit~R

a~0ntr0I

Board

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

ILLINOIS, and WASTE MANAGEMENT OF

03-135,

03-144)

ILLINOIS, INC.,

Respondent.

NOTICE OF FILING

TO:

See Attached Service List

PLEASE TAKE NOTICE that on April 23, 2003, we filed, with the Illinois Pollution

Control Board, via facsimile, the following: (1) Petitioner Michael Watson’s Response to

County Board of Kankakee’s Objections to Watson’s Request for Depositions; and (2)

Petitioner Michael Watson’s Response To Waste Management Of Illinois, Inc.’s

Objections To Watson’s Request For Depositions.

PLEASE TAKE FURTHER NOTICE that the above-described document will also be

filed directly with the Illinois Pollution Control Board on April 24, 2003, copies of which are

attached hereto and served upon you in the manner specified on the attached Service List.

PETITIONER MICHAEL WATSON

Jennifer J. Sackett Pohlenz

QUERREY & HARROW, LTD.

175 West Jackson Boulevard, Suite 1600

Chicago, Illinois 60604

(312) 540-7000

Attorney Registration No.

6225990

Attorneys for Petitioner Michael Watson

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PROOF OF SERVICE

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

Notice of Filing, and document(s) set forth in said Notice, on the following parties and

persons at their respective addresses/fax numbers, this 23rd day of April, 2003, by or before

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

Via

Facsimile & U. S. Mail

___________

Donald

Moran

Pederseri & Houpt

161 North Clark Street

Suite 3100

Chicago, IL 60601-3242

Fax:

(312) 261-1149

Attorney

for Waste Management

of Illinois, Inc.

Via Facsimile & U.S. Mail

Kenneth A. Leshen

One Dearborn Square

Suite

550

Kankakee, IL 60901

Fax: (815) 933-3397

Representing Petitioner in PCB 03-125

Via Facsimile & U.S. Mail

Keith Runyon

1165 Plum Creek Drive

Bourbonnaise, IL 60914

Fax: (815) 937-9164

Petitioner in PCB 03-135

Via Facsimile & U.S. Mail

George Mueller

George Mueller, P.C.

501 State Street

Ottawa, IL 61350

Fax: (815) 433-4913

Representing Petitioner in PCB 03-133

Via Facsimile & U.S. Mail

L. Patrick Power

956 North Fifth Avenue

Kankakee, IL 60901

Fax: (815) 937-0056

Representing

Petitioner

in

PCB

03-125

Via U. S. Mail

Leland Milk

6903 S. Route 45-52

Chebanse, IL 60922-5153

Interested Party

Via Facsimile & U.S. Mail

Charles Helston

Richard Porter

Hinshaw & Culbertson

100 Park Avenue

P.O. Box 1389

Rockford, Illinois 61105-1389

Fax: (815) 490-4901

Representing Kankakee County Board

Via Facsimile & U.S. Mail

Elizabeth S. Harvey, Esq.

Swanson, Martin & Bell

One IBM Plaza, Suite 2900

330 North Wabash

Chicago, IL 60611

Fax: (312) 321-0990

Representing Kankakee

County Board

Via Facsimile & U. S. Mail

Bradley P. Halloran

Illinois Pollution Control Board

James R. Thompson Center, Ste. 11-500

100 W. Randolph Street

Chicago, IL 60601

Hearing Officer

(~

.L

~Yfl~PI.~z\~

~J

Alesia Mansfield

~,

Via U. S. Mail

Patricia O’Dell

1242 Arrowhead Drive

Bourbonnais, IL 60914

Interested Party

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BEFORE

THE

ILLINOIS POLLUTION CONTROL BOARD

RECEIVED

MICHAEL WATSON,

CLERR’S

OFF~F

APR ~ 4 2003

Petitioner,

.

No. PCB 03-134

SlATE OF IWNOIS

vs.

(Pollution Control Fa

~

(Consolidated With PCB 03-125, 03-

COUNTY BOARD OF KANKAKEE

COUNTY, ILLINOIS, and WASTE

PETITIONER MICHAEL WATSON’S RESPONSE TO

WASTE

MANAGEMENT

OBJECTIONS TO WATSON’S REQUEST FOR DEPOSITIONS

NOW COMES, Petitioner Michael Watson, by and through his attorneys at Querrey &

Harrow, Ltd., and pursuant to the Illinois Pollution Control Board (IPCB) Hearing Officer’s

Order dated April 17, 2003, provides the following Response to Respondent Waste

Management of Illinois, Inc.’s Objections To Petitioner City of Kankakee’s Request for

Depositions, which Request was incorporated into Mr. Watson’s Requests:

1. As an initial ‘matter, Petitioner Watson did file a deposition list. However, since it

did not receive Waste Management of Illinois, Inc.’s discovery responses until April 22, 2003,

it was not able to file them on that date, pursuant to the Hearing Officer’s April 17, 2003,

Order. Additionally, it would be disingenuous for WMII to object to the April 23, 2003 filing

of Petitioner Watson’s deponent list, given WMII’s own apparent tardiness in the delivery of

the documents to counsel for Petitioner Watson and the fact that the list disclosed by Petitioner

Watson is duplicative of the WMII deponents already disclosed by Petitioner City of

Kankakee. Therefore, WMII has hardly been prejudiced, as it timely had the disclosure, be it

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from another party.

2. As respects the substance of WMII’s objections, WMII apparently has no objection

to the depositions of Messrs. Hoekstra and Rubak, and, in fa~toffers them as the alternative to

depositions of Messrs. Wilt and Moran. While the depositions of Messrs. Hoeskstra and

Rubak can be scheduled prior to those of Messrs. Wilt and Moran, it does not clearly avoid the

need for the depositions of the two attorneys. Additionally, WMII’s essential rationale behind

this objection, that the evidence it obtainable from other sources, does not hold true, from

WMII

‘S

own interrogatory answers.

3. For example, in WMII’s written discovery responses, it discloses that Mr. Moran

was the only person from WMII who contacted (during the pendency of the siting application

and prior to the County Board’s decision on that application) Elizabeth Harvey, the attorney

for the County Board (this contact is

ex parte

on its face). (WMII Answers to Watson

Interrogatory No.

15).

Clearly, the parties have a right to inquire into these

ex parte

communications occurring between Mr. Moran and Ms. Harvey, particularly since the

specifics concerning its content and details have not been disclosed and no other, non-attorney,

has been disclosed as taking place in that communication. This information would not be

privileged as it is a communication between attorneys representing different clients; there is no

other way, unfortunately, to obtain it, since only the attorneys, as disclosed, were involved;

and the information is crucial to the preparation of the case, in particular information.

concerning that portion of Petitioner Watson’s Petitioner raising “improper

ex parte

communications during the pendency of the WMII’ s siting application” as a fundamental

fairness issue, as it created unfair proceedings, inherently prejudicial to other participants.

2

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See,

Southwest Energy Corporation v. IPCB,

et al., 275

Ill. App. 3d 84,

355

N.E.2d 304 (4th

Dist.

1995).

4. Additionally, WMII’s general objection to the scope of discovery must fail.

Supreme Court Rule 201(b)(l), which authorizes broad discovery ‘regarding any matter

relevant to the subject matter involved in the pending action” is applicable to this matter. (IL

S.Ct. Rule 201(b)(1)). Illinois Supreme Court Rule 201(b)(1) is consistent with the objective

of discovery: “The objectives ofpretrial discovery are to enhance the truth-seeking process, ‘to

enable attorneys to better prepare for trial, to eliminate surprise and to promote an expeditious

and final determination of controversies in accordance with the substantive rights of the

parties.”

D.C. v. S.A.,

et a!.,

178 Ill. 2d

551;

687 N.E.2d 1032, 1037 (S.Ct. 1997).

5. Finally, WMII objects to producing Mr. Addleman for his deposition based on

health reasons. Respectfully and not to diminish the stated health condition of Mr. Addleman

in any manner, pursuant to Illinois Supreme Court Rules, it is not an excuse to being deposed

merely by having an attorney state that you underwent surgery in February 2003. WMII

provides no authenticated medical basis or reason why Mr. Addleman’s deposition cannot go

forward. Therefore, this objection must be overruled.

Dated: April 23, 2003

PETITIONER MICHAEL WATSON

Jennifer J. Sackett Pohlenz

By:_____________________________

Querrey & Harrow, Ltd.

175 West Jackson Blvd., Suite 1600

Chicago, Illinois 60604

(312) 540-7000 Attorney Registration No. 622599

3

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BEFORE THE

RECEIVED

MICHAELWATSON,

CL~J~OF~?(’~

No.

PCB 03-134

STATE

I~PRZ4

OF IWNOLS

2003

vs.

(Pollution Control Facility

~Ih~tion Control Board

Application)

COUNTY

BOARD OF

KANKAKEE

COUNTY, ILLINOIS, and WASTE

(Consolidated With PCB 03-125, 03-133,

MAJNAGEMENT OF

03-135)

PETITIONER MICHAEL WATSON’S RESPONSE TO

COUNTY

BOARD

OF

KANKAKEE’S

OBJECTIONS TO WATSON’S REQUEST FOR DEPOSITIONS

NOW COMES, Petitioner Michael Watson, by and through his attorneys at

Querrey

&

Harrow, Ltd., and pursuant to the Illinàis Pollution Control Board (IPCB) Hearing Officer’s

Order dated April 17, 2003, provides the following Response to Respondent County Board of

Kankakee’s Objections To Petitioner City of Kankakee’s Request for Depositions, which

Request was incorporated into Mr. Watson’s Requests:

1. As respects the County’s and County Board’s objections to the depositions ofState’s

Attorneys, Petitioner Watson respectfully reserves the right to join in the City of Kankakee’s

response, after having seen that response.

2. The County objects to the “remaining depositions” on Exhibit A, presumably only

with the intent to object to those persons within the County’s employment or control, which,

unfortunately, are not identified by the County or Count Board in their objections. However, the

basis for the objection is the allegation that “there is no good faith basis for taking the

depositions” and in support, the County cites a Fourth District Appellate case, Yuretich v. Sole,

259 Ill.App.3d 311, 631 N.E.2d 767

(4th

Dist. 1993), which the County neglected to state heid

Petitioner,

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the trial court was in error in not allowing discovery prior to dismissing alleged counts as

insufficient.

3. In Yuretich, plaintiff alleged willful and wanton conduct on the part of defendant

emergency medical services personnel.

~.

at 312. Although there was a reasonable explanation

for the conduct of the personnel in this case, the court stated the trial court was to take the

allegations ofthe plaintiff as true for the motion to dismiss and plaintiff’s negligence should not

change the requirements for pleading.

~.

at 314-316. The court next discussed the trial court’s

refusal to allow discovery prior to ruling on the motion to dismiss. A trial court should not

refuse a discovery request that reasonably appears might assist the party requesting the

discovery, “ejspecially where the facts are exclusively within the knowledge ofthe opponent.”

j~.at 317. Accordingly the court held discovery should have been allowed and the dismissal was

reversed and the case remanded.

j4.

The very action for which the trial court was reversed is,

oddly, exactly what the County seeks to have the 1IPCB Hearing Officer rule: to bar legitimate

discovery that reasonably may assist the party requesting it in preparation for this matter. This is

particularly troubling as the County has exclusive knowledge of much of the information

requested.

4. Additionally, it is believed that all of the non-State’s Attorneys listed in the City of

Kànkakee’s deposition list were intimately involved in pre-fihing (and possibly post-filing)

discussions with Waste Management of Illinois, Inc., except for Chris Richardsen and Juanita

Baker, who, as assistants to Karl Kruse will be in a position to testify whether Waste

Management ofIllinois, Inc. representatives met with Mr. Kruse or called Mr. Kruse, during the

pendency of the Siting Applications to the extent the meetings occurred in Mr. Kruse’s office or

to the extent they answered the phone for Mr. Kruse. If such meetings occurred, this is

2

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extremely improper and, by seeking the depositions ofthe assistants, information is being sought

concerning these potential contacts, without inquiring into the mind of the decision- maker.

Furthermore, it is unclear whether the County and County Board have any standing to raise

objections on behalfof some of these “remaining” people, as it is unclear whether counsel for the

County/County Board are presenting all ofthese people.

5. Supreme Court Rule 201(b)(1), which authorizes broad discovery “regarding any

matter relevant to the subject matter involved in the pending action” is applicable to this matter.

(IL S.Ct. Rule 201(b)(1)). Illinois Supreme Court Rule 201(b)(1) is consistent with the objective

of discovery: “The objectives of pretrial discovery are to enhance the truth-seeking process, to

enable attorneys to better prepare for trial, to eliminate surprise and to promote an expeditious

and final determination of controversies in accordance with the substantive rights ofthe parties.”

D.C.

V.

S.A.~

et a!.,

178 Ill. 2d 551; 687 N.E.2d 1032, 1037 (S.Ct. 1997). Further, these

objections contradict the IPCB rules, which specifically provide that “it is not a ground for

objection that the testimony ofa deponent orperson interrogated will be admissible at hearing, if

the information sought is reasonably calculated to lead to relevant information. (Section

101.616(e)). Particularly in light of incomplete answers and responses to written discovery

where the County and County Board disclosed the fact that a communication occurred, (such as a

letter from WivIll to the County Board that was sent the day of the siting decision (January 31,

2003), pre-decision and post-filing contacts, and negotiations between WMII and the County

concerning the host agreement), but failed to disclose the nature, summary, substance, timeframe

and participants in that communication (and failed in its entirety to produce the January 31, 2003

letter from WMII), the parties have a right to inquire into those areas through depositions.

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Sho~ldthe answers to Interrogatories have been more complete, this may not have been

necessary.

WHEREFORE, Petitioner Michael Watson respectfully requests the IPCB Hearing Officer

to overrule the County’s objections, and require the County to (1) identify, specifically by name,

those people on whose behalfit is asserting the objections and (2)produce those people for their

deposition.

Dated:

April 23, 2003

Jennifer J. Sackett Pohlenz

Querrey & Harrow, Ltd.

175 West Jackson Blvd., Suite 1600

Chicago, Illinois 60604

(312) 540-7000

Attorney Registration No. 6225990

Attorney for Petitioner Michael Watson

Document#: 821345

PETITIONER MICHAEL WATSON

4