NOTICE OFFILLNQ
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD~ECE~VJ~D
FILED ON AUGUST 27, 2003 AND THE VILLAGE’S
Filings bytheViIIa~eJ’ostCIPSIUg
Board Order and Rule Violations

LAWOFrIC~

ZUK0WSKI, ROGERS, FLOOD

MCARDLE

LaRK OFFICR

I~UG

2 8 2003

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September 2, 2003

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MAIL

illinois Pollution Control Board

Attention: Ms. Dorothy Gunn, Clerk

James R. Thompson Center

100 West Randolph Street, Ste. 11-500

Chicago, Illinois 60601-3218

Re:

Lowe Transfer, Inc. and Marshall Lowe v~

County Board ofMcHenry County, Illinois

PCB 03-221

Dear Ms. Gunri:

Enclosed is an original and ten copies of Co-Petitioners’

Motion to Strike

the Village’s

R~spoizseFlied trn August 27, 2003, and

the Village’s Revised

Brief and Motion for

Sanctions.,

along with Notice of Filing thereof.

Please return a file-stamped copy of the above-referenced document to thc undersigned.

an envelope has been provided

Thank you.

Very truly yours,

David W. McArdle

DWM:crna

Enclosure

cc:

Mr. Bradley P. Halloran

Mr. Charles F. Heisteri

Ms, Percy Angelo

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BEFORE TilE ILLINOIS POLLUTION CONTROL BOA

CLERK’S

OFFrc~’F

LOWE TRANSFER, NC. and

)

MARSHALL LOWE,

)

COUNTY BOARD OF McHENRY

)

COUNTY, ILLINOIS

NOTICE OFFILLNQ

TO:

See List Referenced in Proofof Service

PLEASE TAKE NOTiCE that on August 28, 2003, we filed with the Illinois Pollution

Control Board, the attached Lowe Transfer, Inc. aiid Marshall Lowe’s

MOTION TO

STRIKE

VILLAGE OF CARY5S

RESPONSE FILED ON

AUGUST

27, 2003,

AND TIlE

VILLAGE’S REVISED BRIEF

AND

MOTION FOR SANCTIONS

in the above entitled

matter.

LOWE TRANSFER, INC. and

MARSBALL LOWE

By:

(2~L1L1

David W. McArdle

/1UG

2 8 2003

STATE OF

ILLINOIS

))

(PollutionNo.

PCB 03-221Control

Facility

PoJf~gtj

Siting

~~pI Board

Co-Petitioners,

Respondents.

)

PROOF OF

SERVICE

1, a aort-at~orney,on oath state that 1 served the foregoing Motion on the following parties by depositing

sanic in the U. S. ma~1on this 28°fday of August, 2003:

Charles F. Helstcn

Hinshaw and Culbertson

100 ParkAvenue, P.O. Box 1389

Rockford. IL 61105-1389

Ms. Percy L Ai~geIo

Mayer Brown Rowe & Maw

190 South LaSa1le Street

Chicago, 1l1inoi~60603-3441

David W. McArdle

Attorney Registration No. 06182127

ZUKOWSKI ROGERS FLOOD & MCARDLE

50 Virginia Street; Crystal Lake, Illinois 60014

(~15)459-2050

Bradicy P. Halloran

Illinois Pollution Con~olBoard

James K. Thompson Center, Suite 11-500

100 West Randolph Strcet

Chicago, IL 60601

This

document is

printed on recycled paper.

~LO~0O0~0~)( :~ I8/9LM 909/ OJ(nHJ) L00e6q~c~~TG~Y~coo~~s~o~~o~nz~

SUBSCRIBED and SWORN to before

this

78th

day o~Au,~s,2003

OFFICIAL SEAL

SHEILA

QUINLAN

Notary

P~b~’c,

St~Ieof Jaro~s

Commission

Expires

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD~ECE~VJ~D

LOWE TRANSFER~INC. and

)

~UG

8 2003

MARSHALL LOWE,

)

Co~Petitioners,

)

No. PCB 03-221

~ ~TATE OF ILLIINOIS

Litton ~on~~0/

Board

vs.

)

(Pollution Control Facility

)

Siting Appeal)

)

COUNTY BOARD OF McHENRY

)

COUNTY, ILLINOIS

)

Respondent

)

CO-PETITIONERS’ MOTION TO

STRIKE

THE VILLAGE’S

RESPONSE

FILED ON AUGUST 27, 2003 AND THE VILLAGE’S

B~VISEDBRIJ~F

ANDMOTIONLFOR

SANCflON~

Co-Petitioners Lowe Transfer, Inc. and Marshall Lowe (“Lowe”), by Zukowski Rogers

Flood & Mc.Ardle, its attorneys, respectfully request the Pollution Control Board to strike both

the Village of Cary’s (the “Village”) Response filed on August 27, 2003, and its Revised Arnicus

Brief and issue sanctions against the Village for failure to comply

with

Board rules and Board

and Hearing Officer orders. in support ofthis Motion, Lowe states as follows:

8 ack~round

By orders issued July 10 and August 7, 2003, this Board determined the Village is

not a party in this siting approval appeal but afforded the Village “participant” status under

Sections 101.628 and 107.404 of the Board’s procedural rules. The order of July

10Ih

~anted the

Village permission to file an Arnicus Brief.

On August 14, 2003, Hearing Officer Bradley Halloran issued a written order

outlining the post-hearing briefing schedule for this appeal.

THIS FILiNG PRINTED ON RECYCLED PAPER

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The order required parties to simultaneously file their briefs on August 22, 2003

and the Village to file its Amicus Brief on August

25,

2003. Additionally, the public comment

peri~dwas ordered closed on August 25, 2003.

In compliance with the Hearing Officer’s order, Lowe and the County filed its

briefs on August 22, 2003. Both briefs complied with the page limitation provisions contained in

Section 101 .302(k) ofthe Board’s rules.

On August 25. 2003, the Village filed it~s

56-page

Amicus Brief in direct violation

ofSection 101.302(k).

On August 26, 2003, Lowe filed a Motion to Strike Village of Cary’s Brief and a

Motion for Sanctions. This Motion is still pending before the Board.

Filings bytheViIIa~eJ’ostCIPSIUg

On August 27,

2003,

the Village filed a “Response ofthe Village of Cary With

Respect to Co-Petitioners’ Motion to Strike Village of Cary’s Brief and Motion for Sanctions

Submitted as a Public Comment to the Extent Required by the Board”. In addition, the Village

submitted a 32-page Brief in support ofits amicus position as an. alternate to its 56-page brief.

The Village’s Response and Revised Ainicus Brief were filed after the public

comment period had closed.

Board Order and Rule Violations

The Response filed by the Village is in violation of both orders issued by this

Board and the Board~swritten procedural rules.

10.

Section 101.500(d) ofthe Board’s procedural rules very clearly states that only

parties may file a response to a motion.

THIS FiLiNG PRiNTED ON RECYCLED

PAPER

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“Within 14 days after service of a motion, a

party

may file a response to

the motion. Emphasis added.

11.

The issue ofwho are parties to this proceeding was resolved by this Board’s July

10 and August 7, 2003 orders.

12.

However, even with the Board’s orders and the extensive experience before the

Pollution Control Board ofMs. Percy Angelo, the Village’s attorney, Lowe and this Board are

once again forced to respond to another unauthorized filing from the Village.

13.

In its latest unauthorized filing with the Board, there even appears to be an attempt

to blame the Nearing Officer for the Village’s inability to follow the Board’s procedures.

14.

In paragraph 4 ofthe Village’s response, regarding the discussions conducted by

the Hearing Officer to establish the post-hearing briefing schedule, the Village states:

“There was no discussion ofthe required lengfi~ofthe briefs. After

the proceedings went back on the record, the Hearing Officer announced

the briefing and public comment process. Again there was ~ discussion

ofthe recuired length ofbriefs orpublic comments.”

15.

The Village goes on to say in paragraph 10 ofits response that it “had no intention

of violating the Board’s requirements or the instructions of the Hearing Officer, but simply did

~ ~er.stand

that in light ofthe record and issues presented, that its post-hearing filing was to

be mited to 20 pages.”

16.

Lowe finds these self-serving representations from the Village and its attorney

incredible in light of Ms. Angelo’s extensive experience in front of this Board. A fact Ms.

Angelo proudly presented in filings with this Board in this appeal.

THIS FILING PRINTED ON RECYCLED PAPER

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17.

From the actions of the Village, it would appear the Village believes that orders of

this Board arid its Hearing Officer and the Board’s rules and procedures apply to everyone but the

Village.

18.

With its Response, the Village filed a 32- page revised Brief and asks leave for its

admission intothis appeal. Even the length ofthis brief exceeds the 20-page limitation imposed

by Section 101 .302(k) Village Response on page 4.

19.

This is nothing more than an attempt by~theVillage to file a second brief after the

Hearing Officer’s deadline and the public comment period has closed.

20.

Ms. Angelo, herself, has vigorously objected to such attempts in other

proceedings in front of this Board.

21.

In PCB

95-119,

125 in her client’s Objection,to Motion for Leave to File Copy of

Arnicus Brief and Response, Ms. Angelo in opposition to a party’s amicus brief, wrote:

‘This attempt by the Agency and USEPA to cram the hrief~

attached to the Motion into the Board’s record constitute nothing

more than the Agency’s attempt to file a secondJost-hearin~brief

—

at a time designed to afford

WSREC

no meaningful opportunity

to respond

—

a fla~rantcontravention of the Board’s Rules, the

order of the Hearing Officer and fundamental principles of due

process’ West Suburban Recycling and Energy Center, L.P.’s

Objections to Motion for Leave to File Copy of Amicus Brief and

Response alp. 6.

22.

As in its previous Motion to Intervene, the Village seems to assert that its

participation is necessary to insure the county’s decision is vigorously defended. Apparently, the

Village is still assuming either the incompetence or incapability of the County and its counsel to

defend its decision.

THIS FILING PRINTED ON RECYCLED PAPER

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23.

The County, as the local siting authority, is capable ofpresenting the issues in

defense of its decision. With both its initial brief and its reply brief, the County has 100 pages

all6wed by Board rules. Since there are only three (3) criteria on appeal in this case, the County

and, therefore, the objectors through the County, have ample opportunity to present their case.

There will be no prejudice to the objectors by the actions requested by Lowe as

the decision by this Board must be made solely on the record.

25.

However, the continual and flagrant viqlations of Board and Hearing Officer

orders and Board rules cannot be allowed to continue without undermining the authority and

integrityofboth the Board and the statutory appeal process~

WHEREFORE, Co-Petitioners,

Lowe

TRANSFER, INC. and MARSHALL Lowe,

request that request the Pollution Control Board (1) strike the Village’s Response to Co-

Petitioners’ Motion To Strike, (2) strike the Village’s Revised A.micus Brief, and (3) issue

sanctions, including reimbursement of attorneys fees incurred by Co-Petitioners, against the

Village for failure to comply with Board rules and Board and Hearing Officer orders in this

siting appeal.

Respectfully submitted,

LOWE TRANSFER, INC. and

MARSHALL LOWE

By: Zukowski, Rogers, Flood

McArdle

David W. McArdle, one oftheir attorneys

David W. McArdle, Arrornc~yNo:06152227

ZUXOWSYJ, ROGERS, FLOOD & ~tCARDLE

Anorri~yfor Lowe Transfer, mc, and Marshall Lc~.ve

50 Virginia Street, Crystal Lake, Illinois 60014

8151459-2050;

8151459-9057

(fax)

\~AHARK!N\LOWE\moIkc.tr~nsf~r.wpd

THIS FILING

PRINTED ON RECYCLED

PAPER

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LAW

OFFiCES

ZUKOWSKL

ROGERS, FLOOD & McARDLE

50 Virginia Street

Crystal Lake, lijinois 60014

(815)

459-2050

FAX (815) 459-9057

FAX MESSAGE

DATE:

August 28, 2003

TO:

Bradley P. Halloran

3 12/814-3669

TO:

Illinois Pollution

Control

AttenLion: Clerk

312/814-3669

FROM:

David W. McArdle

NOTE:

THIS ~NSMISSION

CONTAINS ~GE(S),

~CLUDNG THIS COVER SHEET. IF YOU DO NOT

RECEIVE ALL OF THE

ABOVE,

OR IF THE QUALITY OF THE TRANSMISSION iS POOR, PLEASE

TELEPHONE

CINDIE AT (515)

459-2050.

IMPORTANT; THIS MESSAGE

INTENDED ONLY FOR TEF

U SE OF THE iNDIVIDUAL OR ENTITY TO WHICHIT IS ADDRESSED AND MAY CONTATN INFORMATiON

fl~ArISPRTWLEGEaCoNTrDENTIAi~AND/oR

EXEMPT ~.OM DISCLOSIJRE ‘UNDERAPPT .ICABLE LAW.

IF YOU ARE NOT THE INTENDED RECIPIENT, OR AN AGENT OP THE INTENDED RECiPIENT, YOU ARE

1-IEREEY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION, OR COPYING OF mis

COMMUNICATION iS UNAUTHORIZED IF YOU HAVE RECEiVED THIS COMMUNICATION IN ERROR,

PLEASE NOTIFY LTS II~fEDL&ThLYBY TELEPHONE A~DRETURN THE ORIGINAL MESSAGE TO US AT

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