vs.
)
)
)
)
)
)
)
RECEIVED
CLERK’S OFF!CE
BEFORE
THE
ILLINOIS POLLUTION CONTROL
BOARDSEP 0 2 2003
LOWE TRANSFER, INC. and
MARSHALL LOWE,
Co-Petitioners,
No. PCB 03-221
(Pollution Control Facility Siting Appeal)
COUNTY BOARD OF McHENRY
COUNTY, ILLiNOIS
Respondents.
NOTICE OF
FILING
TO:
See Proof of Service
PLEASE TAKE NOTICE that on September 2, 2003, we filed with the Illinois Pollution
Control Board, the attached Lowe Transfer, Inc. and Marshall Lowe’s
MOTION TO
STRIKE
PORTIONS OF COUNTY
BOARD
OF McHENRY COUNTY’S
BRIEF IN
SUPPORT OF
ITS DECISION TO DENY SITING APPROVAL TO LOWE TRANSFER, INC.
in the
above entitled matter.
LOWE TRANSFER, iNC. and
MARSHALL LOWE
By:___________
David W. MeArdle
PROOF OF
SERVICE
I, a non-attorney, on oath state that I served the foregoing Motion on the following party, by hand delivery
to on this 2nd day of September, 2003:
Hearing’ Officer
Bradley P. Halloran
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Stel 1-500
Chicago, IL 60601
SUBSCRIBED and SWORN to before
me this.2’~’day of September, 2003
~&~LO~\
~
Notary Public
L) U
David W. McArdle
Attorney Registration No. 06182127
ZUKOWSKI ROGERS FLOOD
&
MCARDLE
50 Virginia Street
Crystal Lake, Illinois 60014
(815)
459-2050
H:\LOWE\NOTFILE5.TRANSFER.wpd
STATE OF ILLINOIS
Pollution Control Board
-~2?t~-~~
7m1~
f~C~AL
SHARON PIPPj
NOTARy PU~LjC~
~
This document is printed on recycled paper.
LOWE TRANSFER, iNC. and
MARSHALL LOWE,
Co-Petitioners,
)
vs.
COUNTY BOARD OF McHENIRY
COUNTY, ILLINOIS
)
)
BEFORE TilE
ILLINOIS POLLUTION CONTROL BOAR~ECEI.VED
CLERK’S OFRCE
No. PCB03-221
SEP 022003
)
(Pollution Control Facility Siting AP~jjr~
OF IWNOIS
)
Pollution Control Board
)
Respondents.
)
NOTICE OF FILING
TO:
See Proof of Service
PLEASE TAKE NOTICE that on September 2, 2003, we filed with the Illinois Pollution
Control Board, the attached Lowe Transfer, Inc. and Marshall Lowe’s
MOTION TO
STRIKE
PORTIONS OF COUNTY BOARD OF McHENRY COUNTY’S
BRIEF IN
SUPPORT OF
ITS DECISION TO DENY SITING APPROVAL TO LOWE
TRANSFER, INC. in the
above entitled matter.
LOWE TRANSFER, NC. and
MARSHALL LOWE
By:_______________
David W. McArdle
PROOF OF SERVICE
I, a non-attorney, on oath state that I served the foregoing Motion on the following party, by hand delivery
on this
2,d
day of September, 2003:
Attorney
for
County Board ofMcHenry County, Illinois
Charles F. Helsten
Hinshaw and Culbertson
100 Park Avenue
Rockford, IL 61 105-1389
SUBSCRIBED and SWORN
to before
me this 2
day of Septen~er,2003
David W. McArdle
Attorney RegistTation No. 06182127
ZUKOWSKI ROGERS FLOOD & MCARDLE
50 Virginia Street
Crystal Lake, Illinois 60014
(815)
459-2050
1-1 :\LOWE\NOTFILE4.TRANSFER.wpd
OFFICIAL
SEAL’
~-~ELE~P~~~~ARKtNS
MYNotaryComm~’~°~Pub~State
E~P~taS
of041
tU~flO’
2g105
5
This document is printed on recycled paper.
RECEIVED
CLERK’S
OFRCE
SEP 022003
BEFORE THE ILLINOIS POLLUTION CONTROIp~~~rd
LOWE TRANSFER, INC. and
)
MARSHALL LOWE,
)
Co-Petitioners,
)
No. PCB 03-22 1
vs.
)
(Pollution Control Facility
)
.
Siting Appeal)
COUNTY BOARD OF McHENRY
)
COUNTY, ILLINOIS
)
Respondent
)
CO-PETITIONERS’ MOTION TO
STRIKE
PORTIONS OF RESPONDENT
COUNTY BOARD OF MCHENRY COUNTY’S BRIEF IN SUPPORT OF
ITS DECISION TO DENY SITING APPROVAL TO LOWE TRANSFER. INC.
Co-Petitioners, Lowe Transfer, Inc. and Marshall Lowe (“Lowe”), by Zukowski, Rogers,
Flood & McArdle, its attorneys, respectfully request the Pollution Control Board strike certain
portions of Respondent, County Board of McHemy County’s (“County”) Brief in Support of its
Decision to Deny Siting Approval to Lowe filed on August 22, 2003 In support of this Motion,
Lowe states as follows:
A.
Lawrence Thomas is not a Geologist or a Hydrogeologist
1.
On page
5
of its brief, the County states Lawrence Thomas, a witness for
the objectors, was a “professional engineer and
hydrogeologist”
Emphasis added.
2.
Again on page 12 ofits brief, the County states, “Mr. Lawrence Thomas, a
professional engineer, who has worked in the area of
hydrogeology since 1980”.
Emphasis
added.
3.
However, the resume of Mr. Thomas indicates his background as a civil
engineer with no training or education in the fields of either geology or hydrogeology. (C003 16).
1
THIS DOCUMENT IS PRINTED ON RECYCLED PAPER
4.
Mr. Thomas testified he is neither a licensed geologist or hydrogeologist.
(C00189,p.
50).
5.
Once again, the County possessed knowledge that Mr. Thomas is not a
licensed hydrogeologist as the record amply demonstrates. The only possible explanation for the
County’s misrepresentation ofMr. Thomas’ credentials would be in an attempt to bolster the
defense of their decision by presenting the Board with an inaccurate representation of his
qualifications.
6.
The inclusion ofthis misstatement of credentials and Mr. Thomas’
statements in the County’s briefbased on his “supposed” background as a hydrogeologist will
mislead the Board and unduly prejudice Lowe.
7.
The County’s misrepresentation of Mr. Thomas’ credentials as a
hydrogeologist should be stricken.
B.
Nickodem was not “involved with
50
Transfer Stations”
1.
In a further attempt to bolster the credentials of the objectors’ witnesses
and, thus, the defense oftheir decision to deny Lowe’s application, the County, on page 8 of its
brief, makes the following statement:
Mr. Nickodem testified that in his 15 years of experience
and involvement with 50
transfer stations.
Emphasis
added.
2.
However, a review ofMr. Nickodem actual testimony reveals he was
“involved with more than 50
solid waste landfills and transfer stations”.
(C00214, p. 17).
Emphasis added.
2
THIS DOCUMENT IS PRINTED ON RECYCLED PAPER
3.
Under cross examination, Mr. Nickodem testified his resume submitted
into the record actually included only 6 transfer stations. (C00215, pp. 98-103).
4.
Of those 6 transfer stations, he was the engineer of record for only two(2):
the Woodland Transfer Station in Kane County and the Fox Valley Transfer Station in DuPage
County.
Id.
5.
Once again, the County possessed knowledge that, in reality, Mr.
Nickodem has limited experience with transfer station design as the record amply demonstrates.
The onl~,’possible explanation for the County’s misrepresentation of Mr. Nickodem’s credentials
would be in an attempt to bolster the defense of their decision by presenting the Board with an
inaccurate representation his qualifications.
6.
This misrepresentation by the County is particularly egregious since the
County’s main argument for supporting their decision is reliance on the “experts with
considerable experience”. County Brief at page 7.
7.
The inclusion ofthis misstatement of credentials and Mr. Nickodem’s
statements in the County’s brief based on his “supposed” background with 50 transfer stations
will mislead the Board and unduly prejudice Lowe.
8.
The County’s misrepresentation ofMr. Nickodem’s credentials as
someone with involvement with 50 transfer stations should be stricken.
C.
County Made
No
Findings on Credibility ofWitnesses
1.
The County maintains in its brief on page 6:
Clearly, the McHenry County Board found the objector’s
witnesses to be
credible
and persuasive.
3
TI-IIS DOCUMENT IS PRINTED ON RECYCLED PAPER
2.
Again on page 26 ofits brief the County states as follows:
it is the sole province of the County Board to assess the
credibility of the experts and weigh conflicting evidence.
See
Tate,
188 Ill. App. 3d at 1022, 544 N. E. 2d at 1195,
Here, the McHenry County Board clearly
did so
and
determined that criterion (v) was not met based upon the
evidence presented.
3.
In neither the transcripts from the County Siting Committee meeting or the
County Board meeting nor in the County’s Resolution is there any finding assessing the
credibility ofthe witnesses. (C07237: C07444: C07245-C07250).
4.
The County’s attempt to produce findings of credibility for the first time in
its brief on appeal is contrary to the standard of review for an appeal based solely on the manifest
weight ofthe record.
5.
The inclusion ofthese “supposed” statements of finding by the County
will mislead the Board and unduly prejudice Lowe.
6.
All references to the County’s finding of credibility ofwitnesses should be
stricken.
D.
Lack ofExperience Not a Siting Criterion
1.
The County in its brief argues erroneously that Lowe’s lack ofexperience
would “negate the Applicant’s ability to satisfy criteria (ii) and (iv)sic”.
County Brief at p. 36.
2.
While the County correctly repeats the language ofSection 39.2(a) of the
Act, the argument the County presents in its brief includes ~iy a discussion of “lack of
experience”..
3.
“Lack of experience” is not contained in Section 39.2(a).
4
THIS DOCUMENT IS PRINTED ON RECYCLED PAPER
4.
Moreover, neither the Siting Committee in the discussion of its Resolution
nor the County Board in the discussion of its Resolution make any reference at all to “lack of
experience” as a basis for their decisions. (C07237; C07244).
5.
In fact, the County’s Resolution states as follows:
Unnumbered Criterion: The Board has considered as
evidence the
previous operating experience
of the
applicant
and past record
of convictions or admissions of
violations of the applicant when considering Criteria (ii)
and (v) of 415 ILCS 5/39.2(a).)
6.
Neither the transcripts from the County Siting Committee meeting or the
County Board meeting nor the County’s Resolution contain any mention of’‘lack of experience”
as the basis for the County’s decision.
7.
The County’s attempt to introduce this evidence for the first time in its
brief on appeal is contrary to the standard of review for an appeal based solely on the manifest
weight of the record.
8.
The inclusion of this new evidence will mislead the Board and unduly
prejudice Lowe.
9.
All references to Lowe’s lack ofexperience should be stricken from the
County’s brief.
E.
Mcflenry County Defenders were not “Objectors”
1.
In the Introduction on page 1 of the brief, the County states:
Registered Objectors to the Application included.. .and
the
McHenry County Defenders.
Emphasis added.
5
THIS DOCUMENT IS PRINTED ON RECYCLED PAPER
2.
The sign-up sheet used by the hearing officer for the public hearings made
no distinction between an objector and a participant. (C00041). The sign-up sheet is attached as
Exhibit A.
3.
The McHenry County Defenders (“Defenders”), a county-wide non-profit
organization providing advocacy and education on environmental issues for over 33 years, did
not register as an objector but as a participant. (C00178, p. 12).
4.
As Lenore Beyer-Clow, the Executive Director ofthe Defenders stated on
the first day of the hearing, “We are here as participants.”
Id.
A letter from the McHenry County
Defenders to the Clerk ofthe Board is attached as Exhibit B.
5.
Since the County cites both of these documents at the bottom of page 1 of
its brief and, therefore, possessed knowledge of the Defenders’ appearance at thehearings solely
as a participant, the only possible explanation for this misstatement of fact would appear to be in
an attempt by the County to bolster the defense of their decision by stating the leading
environmental group in McHemy County was opposed to the Lowe application.
6.
The Defenders appeared at the public hearings solely as a participant as the
record clearly discloses.
7.
The inclusion ofthis misstatement ofthe Defenders’ position will mislead
the Board and unduly prejudice Lowe.
8.
The County’s misrepresentation of the Defenders as objectors should be
stricken.
WHEREFORE, Co-Petitioners, Lowe Transfer, Inc. and Marshall Lowe, request that the
PCB strike the County’s misrepresentation of:
6
THIS DOCUMENT IS I~RINTEDON RECYCLED PAPER
A.
the McHenry County Defenders as objectors;
B.
Mr. Thomas’ credentials as a hydrogeologist;
C.
Mr. Nickodem’s credentials as someone with involvement with 50 transfer
stations;
D.
all references to the County’s finding ofcredibility ofwitnesses; and
E.
all references to Lowe’s lack of experience.
Respectfully submitted,
LOWE TRANSFER, INC. and
MARSHALL LOWE
By: Zukowski, Rogers, Flood & McArdle
By:_______________
David W. McArdle
David W. McArdle, Attorney No: 06182127
ZUKOWSKI, ROGERS, FLOOD & MCARDLE
Attorney for Lowe Transfer, Inc, and Marshall Lowe
50 Virginia Street
Crystal Lake, Illinois 60014
815/459-2050; 815/459-9057 (fax)
7
THIS DOCUMENT IS PRINTED ON RECYCLED PAPER
Applicant
-
Lowe Transfer, Inc.
SIGN-UP SHEET FOR OBJECTORS AND OTHER PARTICIPANTS
All objectors and other participants who wish participate in the hearing by questioning witnesses,
presenting witnesses or other factual evidence, or making an opening statement or closing argument to the
Committee, must register with the Hearing Officer no later than 10:00 a.m. on Saturday, March 1, 2003. If
an objector or other participant has not registered with the Hearing Officer by that time, that objector or other
participant will not be allowed to question any witnesses, to present witnesses or other factual evidence in his
or he~behalf, or to make an opening or closing argument. If an obj ector or other participant is not sure
whether they wish to participate in the hearing, they should, nevertheless, register as an objector or other
participant because this will be the ~
opportunity to register to participate in the hearing. Ifthe registered
objector or other participant does not wish to question a particular witness, to present a witness or other
factual evidence, or to make an opening statement or closing argument, they can simply pass when called by
the Hearing Officer.
PLEASE PRINT
Name
Address
Lg~uOL?E
~E/~J?(~L71~
~
Telephone No.
1~TOI~
1.
____
Ic2~
~
Lubi~c~
~!6 35~-~~ 3
I
~~
~
C
~
~
2.
~
(o(~/~cL~c
5~a~ç~
~J
gIs~
~-~O6 ~
3.
~
~
~
~
(~‘~
~
~7/~
~L~9~C
~
~~
6.
7-
8.
9.
10.
E~HIBIT A
•00 ~ht ion
to Strike
Page 1 or 2
C00041
Aug-25-03 02:14P
P.. C2
~oUN 7~-~
August
25,
2003
Ms. Dorothy M. Gunn
m
Clerk oftheBoard
11 linois Pollution Control Board
James R. Thompson Center
100 W. Randolph, Suite 11-500
Chicago, Illinois 60601
124
Cass Street
Sent Via FAX; 312 814-3669
Woodstock, IL 60098
RE: Case No. PCB 03-221 Lowe Transfer Inc. and Marshall
email:mcdef@owc.net .
Lowe vs. County Board ofMc.Henry County, IL.
fax:(815)338-0394
Dear Ms. Gunn:
It has come to my attention that in the brief by the County Board
oIMcI-lenry County in support ofits decision to deny siting
approval to Lowe Transfer Ijic, tha.t the McHenry County
Defenders
has been
incorrectly listed as an objector to the
application. Thc McHenry County Defenders actively attended
the hearings, provided opening arid closing statements and
questioned some of the witnesses but as a
participant,
Pot an
objector.
The McHenry County Defenders is the local environmental
organization in Mchenry County. We have over 1000 members
and have been providing advocacy and education on
environmental issues for 33 years. Since the 1 980s we have
supported a solid waste disposal policy that encourages volume
reduction, recycling programs, composting and waste transfer
stations to facilitate the exchange of processed and raw waste. In
addition we have a waste transfer station policy which supports
the development of a waste transfer station in McHenry County
as long as the appropriate environmental concerns such as
recycling, water quality impacts and public input have been
addressed.
Throughout the testimony and in the Defenders’ opening and
closing statements, these issues were addressed through
questions and statements. The Defenders did not draw the
conclusion that the Lowc Transfer Station should be accepted or
rejected. Our final statement listed a number of environmental
concerns about the station.
EXFTIBt-r B
to Motion
to Srrike
Pr~orVc
‘
Prott,~~
-
~
Pr~nt~don reycled p2per
Aug—25—03 02:14P
P03
it is important that the position of the MeHenry County
Defenders is not misrepresented by either side in the decision to
site the Lowe Transfer Station. We actively participated in the
hearings but did not register as an objector to the siting of this
waste transfer station. I believe this is clearly noted in the
transcripts of the hearing on page 12 and in our closing
statement.
if you need any more information or clarification please do not
hesitate to contact me at 815 338-0393.
Sincerely,
Lenore £3eyer-Clow
Executive Director