RECEiVED
CLERK’S
OFFICE
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
2
20
STATE OF ILUNOIS
Citizens Against Landfill Expansion,
)
Pollution Control Board
Petitioners
)
)
v.
)
)
American Disposal Services of Illinois, Inc.
)
No. PCB 03-236
Respondent,
)
)
Bradley Halloran,
and
)
Hearing Officer
)
Livingston County Board, Livingston County,
)
Illinois, Respondent
)
PETITIONER’SMOTION TO COMPEL
AMERICAN
DISPOSAL
Petitioner Citizens Against Landfill Expansion, an unincorporated association of
residents of Livingston County (hereinafter “Petitioner” or“CALE”), through its attorney
Carolyn K. Gerwin, moves for an order to compel Respondent American Disposal
(hereinafter “American Disposal”) to respond to Petitioner’s Interrogatories, Requests for
Admission and Requests for Production ofDocuments, which were served on August 22,
2003 (hereinafter collectively referred to as “Petitioner’s Discovery Requests).
Petitioner’s Discovery Requests must be relevant to matters at issue in the instant
Petition for Review or be reasonably calculated to lead to relevant information. In its
Petition for Review, Petitioner has stated the following claims: (a) that the County Board
lacked jurisdiction to conduct the siting hearing due to the failure ofApplicant to give
required statutory notice under Section 39.2(b); that the process was fundamentally unfair
based on the following: (1) upon information and belief, many members ofthe siting
authority pre-judged or failed to judge whether the Applicant had satisfied the statutory
criteria: (a) due to fear that if the County Board did not approve ofthe application, the
City ofPontiac would annex the property in question and collect the host fees, and/or (b)
due to an overpowering desire to obtain the $162 million host fee that was previously
negotiated, which figure included higher host fees for the existing landfill (almost double
the rate per ton) if the County Board approved an unspecified expansion (assuming such
expansion became final); and (2) any such other bases offundamental unfairness as may
hereafter be discovered and established; and (c) that the following statutory criteria were
not met: (a) need; (b) health, safety and welfare; (c) minimization ofincompatibility and
property value impacts; and (d) consistency with the County’s Solid Waste Management
Plan.
415
ILCS
5139.2(a)(i),
(ii), (iii) & (viii). See Petition to Review Pollution Control
Facility Siting Decision, pp. 2-4. Petitioner is unquestionably entitled to discovery on the
issues ofjurisdiction and fundamental fairness. Petitioner also requested discovery
(mainly admissions) on facts relating to statutory criteriapreparatory to developing an
agreed statement of fact on those issues, thereby streamlining the .review process.
Due to extreme time limitations imposed, Petitioner hereby incorporates by
reference its arguments concerning the scope ofdiscovery that are set forth in its Motion
to Compel Livingston County Board dated August 26, 2003. This relates to the time
frame considerations (availability of discovery ofcontacts, contracts and documents
relatingto the time period prior to the filing of the Application) which is especially
important to Interrogatories Nos. 7, 10 & 11; requests that relate to information relating
to potential bias and/or financial interest ofBoard Members; and.
With regard to Interrogatory No. 4, Petitioner rejects the limitation “related to any
issue set forth in the Petition to Review.” The Interrogatory is not so limited, nor should
it be.
Any
such communication relates to the issue ofApplicant’s failure to personally
serve BP with notice ofthe Application.
American Disposal’s answerto Interrogatory No. 8 does not indicate whether
there are other such contracts with Board Members.
In addition, Petitioner hereby rejects the limitation ofInterrogatory No. 12 to
contracts “currently in force.” The interrogatory is not so limited.
With regard to Interrogatory No. 6 and 19, information and documents regarding
the Applicant’s involvement in the local real estate economy was requested at the hearing
but never produced. Petitioner was advised by the Hearing Officer that Petitioner had no
power to compel production ofdocuments on this or any other issue. This goes to the
foundation ofthe real estate study done by Applicant. Similarly, information requested
in.Jnterrogatories Nos. 13 & 14 relates to the need criterion. Such information, though it
could well disprove Applicant’s need analysis, could not be compelled at the hearing.
In response to Interrogatory No. 18, American Disposal generally refers to
“certain options to purchase real estate for the expanded facility” but does not identify or
produce them in accordance with the discovery requests. Petitioner demands actual
identification ofsuch agreements and production thereof as theyrelate to fundamental
fairness and the integrity ofthe hearing procedures.
With regard to production ofthe contract between American Disposal and Mrs.
Jeanne Rapp, Petitioner obj ects to the redaction thereof. The deleted terms are likely to
be highly relevant to issues offundamental unfairness and possibly to the real property
value criterion.
WHEREFORE, Petitioner requests the Hearing Officer to issue an Order to
Compel the County Board to respond fully to Petitioner’s Discovery Requests.
Respectfully submitted,
2
Carolyn K. Gerwin, Attorney at Law
Counsel for Citizens Against Landfill Expansion
Carolyn K. Gerwin
Attorney at Law
705 South Locust Street
Pontiac, Illinois 61764
(815)
842-2486
3
CERTIFICATE OF SERVICE
I hereby certify that on August 26, 2003, I electronically transmitted (receipt
requested) the foregoing Motion to Compel Livingston County Board to:
Brad Halloran
Douglas E. Lee
LarryM. Clark
Claire Manning
George Mueller
C. Thomas Blakeman
With a hard copy by U.S. Mail to:
Brad Halloran, Hearing Officer
Pollution Control Board
100 West Randolph Street
James R. Thompson Center, Suite 11-500
Chicago, illinois 60601-3218
Douglas E. Lee
Ehrmann, Gehibach, Badger & Lee
215 E. First Street, Suite 100
P.O. Box 447
Dixon, illinois 61021
LarryM. Clark
Suite 200
700 North Lake Street
MundeleiniL 60060
Carolyn K. Gerwin
Counsel for Petitioner
4