REC~IV~J~
CLERK’S
AUG 2 8
OFffICE
2C~3
iLLINOIS POLLUTION CONTROL BOARD
August 28, 2003
STATE OF IWNOIS
PoIlut~onControl Board
CITIZENS AGAINST LM~DFThL
)
EXPANSION (CALE),
)
)
Petitioner,
)
)
PCB 03-236
v.
)
(Pollution Control Facility
)
Siting Appeal)
AMERICAN DISPOSAL SERVICES OF
)
ILLINOIS, INC., and LIVINGSTON
)
COUNTY BOARD,
)
)
Respondents.
)
HEARING OFFICER ORDER
On August 26, 2003, petitioner Citizens Against Landfill Expansion (CALE) filed a
motion to compel certain discovery from respondent American Disposal Services ofIllinois, Inc.
(American Disposal), and a motion to compel certain discovery from t respondent Livingston
County Board (County Board). Also on August 26, 2003, respondents American Disposal and
the County Board filed their respective motions to compel certain discovery against CALE. On
August 27, 2003, CALE filed its response to American Disposal’s motion to compel. CALE did
not file a response to the County Board’s motion to compel. Also on August 27, 2003, the
respondents filed theirrespective responses to CALE motions to compel.
Due to the shortness oftime before hearing and the number ofdiscovery challenges, this
order disposes ofthe contested issues in summary fashion. The order first sets out some general
principles and Board precedent guiding the rulings. Then follows ruling on the various issues
raised.
General Principles and Precedent in Siting Appeals
When a party challenges statutory criteria, Section 40.1(b) ofthe Illinois Environmental
Protection Act (Act), requires that the review before the Illinois Pollution Control Board (Board)
shall be based “exclusively on the record before the county board or the governing body ofthe
municipality.” If, however, a party alleges that the proceedings before the county board or the
governing body ofthe municipalitywere fundamentally unfair or involves jurisdictional defects,
the Board may consider other evidence, such as pre-fihing contacts, where pre-filing contacts may
be probative ofprejudgment of adjudicative facts, which is an element to be considered in
assessing fundamental fairness.
See
County ofKankakee v. City ofKankakee, Town and
Country Utilities, Inc., and Kankakee Regional Landfill, L.L.C., PCB 03-31, PCB 03-33, PCB
03-35 (consi.) (Jan. 9, 2003).
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The Board will not review a county’s Solid Waste Management Plan as that involves a
legislative process which is beyond the purview ofthe Board.
See
Residents Against a Polluted
Environment and The Edmund B. Thornton Foundation v. County ofLaSalle and LandComp
Corporation, PCB 96-243 (Sept. 19, 1996). Nor is it proper, absent a strong showing ofbad faith
or improper behavior, to invade the decision makers internal thought process. Dimaggio v. Solid
Waste Agency ofNorthern Illinois PCB 89-138 (Jan. 11, 1990). Further, decision makers will
not be held to biased simply because ofa financial benefit which the county might derive from
site approval. Dimaggio PCB 89-138. Finally, Section 101.616 of the Board’s procedural rules
allows discovery ofall relevant information and information calculated to lead to relevant
information.
County Board’s Objections To CALE’s Interrogatories
The County Board’s objections to CALE interrogatories nos. 1,2,3 and 4 are sustained
since there has been no allegation ofbad faith or improperbehavior.
The County Board’s objection to CALE’s interrogatory no.
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is overruled and the County
Board is directed to answer. The County Board’s objection to CALE’s interrogatory no. 6 is
overruled. However, the hearing officer agrees with the County Board that this interrogatory is
overly broad and must be narrowed. To that end, the County Board is directed to answer to the
extent that any non-privileged communications regarding annexation during the respective board
members incumbency must be disclosed.
The County Board’s objection to interrogatory no. 8 is sustained where information
sought relating to criteria lies outside the record. The County Board’s objections to CALE
interrogatories nos. 9,13 and 14 are sustained. Hypothetical questions regarding the mental
processes ofthe decision maker are improper.
The County Board’s objections to CALE’s interrogatories no. 10 and 29 are overruled.
However, the hearing officer agrees with the County Board that the interrogatories are overly
broad and must be narrowed. To that end, only board members who voted in favor ofthe
application are required to answer. Furthermore, and to extent that the County Board has not
already done so, the County Board is directed to include in their answer “consultants” that have
had contacts with American Disposal between the pendency ofthe previous application and the
application. The County Board’s objections to CALE’s interrogatories nos. 11,12 and 18 are
overruled. The County is directed to answerto the best ofits knowledge.
The County Board’s objection to CALE’s interrogatory no. 15 is sustained. The
information sought is not relevant nor is it calculated to lead to relevant information. The
County Board’s objection to CALE’s interrogatoryno. 17 is sustained. It appears the
interrogatory seeks information regarding criteriathat lies outside the record and therefore is
improper. The County Board’s objection to CALE’s interrogatory no. 23 is sustained. The
County Board’s answer is sufficient in light of the question asked. The County Board’s objection
to CALE’s interrogatory no. 25 is sustained. The County Board’s answer is sufficient. The
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County Board’s objections to CALE’s interrogatories nos. 26 and 27 are sustained. The
interrogatories either pose hypothetical questions or cannot be answered by the County Board.
The County Board’s objection to CALE’s interrogatoryno. 28 is overruled. The County
Board is directed to answer to the best ofits knowledge.
The County Board’s objection to CALE’s interrogatoryno. 30 is sustained. The hearing
officer finds that the answers in CALE’s request to admit are sufficient. The County Board’s
objection to CALE’s interrogatory no. 31 is sustained in that it does not seek additional
responses. To the extent that the County is directed to answer interrogatories nos. 10,11,12,18
and 29, such inquiry and answers are limited to those still-living board members who voted in
favor ofthe siting application.
County Board’s Objections To CALE’s Request To Produce Documents
The County Board’s objection to CALE’s request to produce no. 7 is overruled.
However, the hearing officer finds the request overly broad and must be narrowed. Inquiries are
limited to only those still-living board members who voted in favor ofthe siting application.
The County Board’s objection to CALE’s request to produce no. 13 is sustained.
Information regarding the mental processes ofthe decision maker is improper. In CALE’s
motion to compel it objects to the County Board’s responses in CALE’s request to produce nos.
1,3,5,6,10,11,12 and 15 where the County Board merely referred petitioner to the record on
appeal. The County Board did not respond. To the extent that the requests are not in the record
on appeal, the County Board is directed to producedocuments requested in nos. 1,3,6,10,1 1,and
12. CALE’s request to produce no.
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regards information on criteria and is improper. The
County’s objection is sustained.
American Disposal Objections to
CALE’s
Interrogatories
American Disposal’s objections to CALE’s interrogatories nos. 6,13,14 and 19 are
sustained. The interrogatories are improper, as they appearto seek information regarding a
criteria that lies outside the County record. American Disposal’s objection to CALE’s
interrogatory no. 4 is sustained. Petitioner seeks information on whether or not “BP” was
personally served with notice of the application. Petitioner does not allege that Section 39.2(b)
ofthe Act was not properly followed with regards to notice.
American Disposal’s objections to CALE’s interrogatories nos. 7,10,11 and 12 are
overruled. Any such communications may be relevant to petitioner’s fundamental fairness
allegation. American Disposal is directed to answer. American Disposal’s objection to CALE’s
interrogatories nos. 8 and 18 are overruled to the extent that American Disposal has answered the
interrogatories in its August 28, 2003, filing.
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Finally, American Disposal’s objection to CALE’s request to produce the contract
between Jeanne Rapp and American Disposal is sustained. The request is improper, as it appears
to seek information regarding a criteria that lies outside the -County record.
American Disposal’s motion to compel CALE to answer interrogatoryno. 20 is sustained.
CALE is directed to answer.
Next Status Conference
The parties are reminded that a telephonic pre-hearing conference with the hearing officer
is set for August 28, 2003, at 3:30 p.m. The telephonic pre-hearing conference must be initiated
by the complainant, but each party is nonetheless responsible for its own appearance. At the
conference the parties must be prepared to discuss the status ofthe above-captioned matter and
their readiness for hearing.
IT IS SO ORDERED.
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois 60601
312.814.8917
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CERTIFICATE OF SERVICE
It is hereby certified that true copies ofthe foregoing order was faxed and mailed,
first class, to each ofthe following on August 28, 2003:
Larry M. Clark, Attorney at Law
C. Thomas Blakeman
700 North Lake Street
Strong, Blakeman & Schrock
Suite 200
307 West Washington Street
Mundelein, IL 60060
Pontiac, IL 61764
George Mueller, Attorney at Law
Carolyn K. Gerwin
501 State Street
705 South Locust Street
Ottawa, IL 61350-3578
Pontiac, IL 61764
Douglas B. Lee
Claire A. Manning, Attorney
Ehmiaim, Gehlbach, Badger & Lee
Posegate & Denes, P.C.
Commerce Towers
111 N. Sixth Street
Suite 100
Springfield, IL 62705
Dixon, IL 61021
It is hereby certified that a true copy ofthe foregoing order was hand delivered to
the following on August 28, 2003:
Dorothy M. Gunn
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Ste. 11-500
Chicago, Illinois 60601
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
312.814.3473