CIE~K~SOFFICE

BEFORE

THE

ILLINOIS

A

2 L8 2003

POLLUTION CONTROL BOARD

STATE OF ILLINOIS

CitizensPetitionersAgainst Landfill Expansion,

))

Pollution Control Board

)

v.

)

)

American Disposal Services ofIllinois, Inc.

)

No. PCB 03-236

Respondent,

)

)

Bradley Halloran,

and

)

Hearing Officer

)

Livingston County Board, Livingston County,

)

Illinois, Respondent

PETITIONER’S MOTION

TO

COMPEL LWINGSTON COUNTY BOARD

Petitioner Citizens Against Landfill Expansion, an unincorporated

association ofresidents ofLivingston County (hereinafter ‘Petitioner” or “CALE”),

through its attorney Carolyn K. Gerwin, moves for an order to compel Respondent

Livingston County Board (hereinafter “County Board”) to respond to Petitioner’s

Interrogatories, Requests for Admission and Requests forProduction ofDocuments,

which were served on August 22, 2003 (hereinafter collectively referred to as

“Petitioner’s Discovery Requests), as set out more particularly below. Petitioner also

requests sanctions in the amount of$1,500 forthe County Board’s failure to comply with

the discovery process, which necessitated this motion and presented a hardship to

Petitioner under the circumstances ofthe particularly condensed discovery schedule

ordered in this matter.

Petitioner’s Discovery Requests must be relevant to matters at issue in the instant

Petition forReview orbe reasonably calculated to lead to relevant information. In its

Petition forReview, 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 processwas fundamentally unfair

based on the following: (I) 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 forthe 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

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property value impacts; and (d) consistency with the County’s Solid Waste Management

Plan. 415 ILCS 5/39.2(a)(i), (ii), (iii) & (viii). $ç~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 criteria preparatory to developing an

agreed statement offact on those issues, thereby streamlining the review process. The

County Board refused to answerthe vast majority ofPetitioner’s requests. A copy ofthe

County Board’s response is attached hereto for ease ofreference.

Failure to Answer Interrogatories

The County Board, through its attorneys Larry Clark and Thomas Blakeman,

objected to Interrogatories Nos. 1-4:

1.

With respect to each Board Member, please identify all documents

relative to the proposed expansion of Livingston Landfill reviewed by such Board

Member prior to the vote on whether to approve the Application. For purposes of

2.

3.

4.

For each Board Member, state whether they attended the Ag

Committee meetings regarding theApplication that were held in May, 2003, and

state the times when he or she was in attendance.

These interrogatories relateto the fundamental fairness prong ofthe Petition.

Except for Chairman Jeanne Rapp, each Board Member ultimately voted on whether to

approve the Application. IfBoard Members failed to review the Application, failed to

attend the hearings, failed to review public comment, and/or failed to attend the meetings

regarding special conditions, such disinterest in the facts is evidence ofnon-judgment or

pre-judgment ofthe merits ofAmerican Disposal’s Application for Siting ofPollution

Control Facility dated December 4, 2002 (hereinafter, the “Application”).

In their objections to the interrogatories, counsel for the County Board state that

they do not have to answer because “there is no statutory or County ordinance

requirement that Board Members read or study the documents prior to voting on the

Application,” Answer to Interrogatory No, 1, and similarly “there is no statutory or

County ordinance requirement that Board Members attend the hearing, Answer to

Interrogatory No. 3. Petitioner respectfully disagrees. After twelve pages oftext listing

the extensive information required to be provided by the Applicant and filed as part ofan

application, the siting ordinance states that “the members ofthe Agricultural

Committee..

.

shall be responsible for reviewing the application, conducting the public

hearing and making a recommendation to the Livingston County Board on whether to

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approve, approve with conditions, or deny the request for site location approval.” Siting

Ordinance, Section B, para.3 on page

15.

Later, the ordinance states that “The

Agricultural Committee shall consider the record ofthe public hearing, reports submitted

by the Administrator ofthe Department ofZoning, and the findings offact and

conclusions oflaw submitted to it by the Hearing Officer and make a recommendation to

the Livingston County Board.” Id., para. 14, pages 16-17. Finally, the ordinance

requires that “the County Board shall consider the record ofthe public hearing, reports

submitted by the Administrator ofthe Department ofZoning, the findings offact and

conclusions oflaw filed by all parties and shall make a determination concerning the

request for site location approval.”

~4.,

para. 15, page 17. In sum, the siting ordinance,

not surprisingly, indicates that the County Board must review the Application and related

materials. Thus, the interrogatories are also highly relevant to the issues ofwhether the

Board followed the required procedures.

Counsel for the County Board state these interrogatories are an improper attempt

to “invade the mind ofthe decision maker,”

$~

answer to Interrogatory No. 1. review

this case. However, as noted below, these interrogatories go to process, which is clearly

a permissible subject ofinquiry. Furthermore, all claims that the decision makers pre-

judged or failed to judge the Application on the merits relate to some extent to the state of

mind of the decision makers, yet they are proper bases for reversal. As such, the

interrogatories are clearly proper.

Counsel for the County Board also appearto be arguing that identification ofthe

material reviewed by Board Members is irrelevant because applicable law allows Board

Members to voteon the Application even if they are ignorant ofthe facts contained with

the Application, elicited at the hearing, or set forth in any other documents. Thatis a

legal argument more properly made in the County Board’s brief. In addition, that

argument does not render the interrogatories irrelevant to the issue of fundamental

fairness, which is not confined to the question ofwhether the Board’s review complied

with the formalities set forth in the ordinance. For example, ifBoard Members reviewed

materials that they should not have, that would be relevant to the fundamental fairness

prong ofthe Petition, Thus, the interrogatories are highly relevant to the issues ofnon-

judgment, pre-judgment, and fundamental fairness in general, and Petitioner is entitled to

discovery on these issues.

Through its attorneys, the County Board also objected to, and refused to answer,

Interrogatory No.

5:

5.

Identify each

consulted by LCB with respect to the Petition for Review.

This is a standard interrogatory. Respondent American Disposal and Petitioners

asked this same question and both answered it. Again, the County’s reference to what

they are required to do is no excuse for failure to answer the question. A simple answer

of“none” would have sufficed. Failure to answer this question demonstrates the

County’s bad faith in not responding to Petitioner’s Discovery Requests.

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Through its attorneys, the County Board also objected to, and refused to answer,

Interrogatory No. 6, claiming only that it is “irrelevant as to any issue presented here for

review”:

6.

Describe all communications to, from or among LCB (including its

members, agents, consultants and employees) relating to annexation-or potential

annexation by the City of Pontiac ofland at, near or extending toward Livingston

Landfill.

Far from being irrelevant, this request directly addresses Petitioner’s claim that

Board Members pre-judged or failed to judge the merits ofthe Application 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. Again, failure to answer this

question demonstrates the County’s bad faith in not responding to Petitioner’s Discovery

Requests.

For Interrogatory No. 8, Petitioner asked:

S.

Was the Livingston Alternative School located within 500 feet of

Livingston Landfill during the 2001-03 school years? State when it was

first

established at that location.

This interrogatory relates to lack offoundation ofthe opinion ofAmerican

Disposal’s consultant on incompatibility. He was unaware ofthis school, which is

located extremely near the existing facility. Transcript, pp.

____.

Contrary to the County

Board’s contention that “this interrogatory attempts to elicit information that could have

been obtained at the local siting hearing,” Petitioner could not have done so. It does not

have personal knowledge ofthese matters, the consultant had no knowledge ofthe school

whatsoever, and the County did not put on a single witness, so there was no opportunity

to examine or cross-examine any witness on this issue.

For Interrogatories Nos. 9, 13, and 14, Petitioner asked:

9.

For each Board Member, lithe County did not receive any Host Fees

in connection with the expansion, would you have approved the Application? If not,

describe your grounds for disapproval.

13.

For each Board Member, state whether you believe that collection of

Host Fees from the expansion is necessary or advisable in order for Livingston

County to achieve a balanced budget without having to increase taxes.

For each Board Member, describe any time when you recall any other

Board Members stating that he or she believed that collection ofadditional Host

Fees from the expansion was necessary or advisable in order for Livingston County

to achieve a balanced budget without having to increase taxes

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Counsel objected to these interrogatories on groundsthat they were “improper

requestsJ for answers to a hypothetical question,” they were irrelevant to any issue on

appeal,” and they were “an attempt to invade the mind ofthe decision maker.” These

questions are both relevant to issues in this appeal. Petitioner has specified as one ground

for pre-judgment that the County Board had an overwhelming desire to collect the Host

Fee, regardless ofthe merits ofthe Application. These interrogatories are clearly relevant

to that issue. Interrogatory No. 9 neatly slices host money—which is not grounds for

ignoring the statutory criteria—out ofthe equation. Answers to this question would

allow Petition to identify which Board Members were influenced by the money.

Similarly, Interrogatory No. 14 is intended to identify Board Members who could be

deposed or examined regarding possible pre-disposition ofthe Board. Further discovery

ortestimony could then establish whetherpotential receipt ofthe $162 million host fee

rendered Board Members apathetic as to whether the statutory criteria had been met.

address invasion

of

mind stuff? Thus, although the answers to Interrogatory No. 14

might not be admissible in and ofthemselves, they could lead to admissible evidence.

Through counsel, the County Board also refused to answer Interrogatories No. 10

and 29:

10.

For each Board Member, describe any meetings involving said Board

Member and American Disposal that occurred since January 1, 2001, other than

official meetings ofLCB or committees thereofthatwere open to the public in

accordance with the Open Meetings Act

and

describe the substance of

communications related to such meetings.

29.

Describe any communications or meetings involving LCB and

American Disposal that occurred since January 1, 2001 relating to the Previous

Application, the Application, host fees, the proposed expansion or opposition to the

expansion, other than official meetings of LCB or committees thereofthat were

open to the public in accordance with the Open Meetings Act, and describe the

substance of any communications related to such meetings, including

communications or meetings ofAmerican Disposal’s consultants and LCB’s

consultants that occurred between the pendency of the Previous Application and the

Application.

Petitioner has requested information pre-dating when American Disposal

originally filed an Application forthis project, which was filed in June 2002. Counsel for

the Board claims that this interrogatory is irrelevant as to any meetings occurring prior to

December 4, 2002, which is when the current Application was filed. In a meeting with

Petitioner’s representatives, American Disposal indicated it had met with virtually all the

Board Members prior to the June filing. Such meetings could have had the result ofso

influencing the Board Members in question that they pre-judged or failed to judge the

Application on its merits in accordance with statutory criteria. Such discovery is

permitted under the Pollution Control Board’s decision in

____________

Kankakee

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citation. Similarly, Interrogatory No. 29 deals with communications between agents of

the Applicant and the County Board. Petitioner is aware that members ofthe County’s

so-called “Independent Review Team” and American Disposal planned to meet sometime

between the filing ofthe first and second applications to discuss concerns the team had

regarding the proposed site’s hydrogeology and possibly other issues. The Pollution

Control Board has opined that such discussions are supposed to be held in public on the

record. get cite Petitioner is entitled to discovery on those communications and any

similar communications.

Through counsel, the County Board also refused to answer Interrogatories Nos.

11, 12 and 18:

11.

Identify all documents relating to any agreement, understanding,

contract or proposed agreement between any Board Member and American

Disposal.

12.

Identify any payments, gifts, agreements, promises, services or

anything ofvalue provided by American Disposal to LCB (or any of its members,

agents, employees, attorneys or consultants) other than payments made to

Livingston County pursuant to the Host Agreement.

18.

Describe any interest, relationship, agreement or proposed agreement

of any Board Member with any contractor that had, has or will have any business

with respect to Livingston Landfill (other than de minimis contractors doing less

than $5,000 worth of business with Livingston Landfill in any given year).

The County’s statement that

agreements between the County Board (as a whole,

presumably) and American

Disposal

being in the Record on Appeal is unresponsive as

the interrogatory clearly addresses contracts between individual Board Members and the

Applicant. The County has attached the Board Members’ statements ofeconomic

interest, but those statements may or may not reflect all the agreements and/or gifts to be

identified. American Disposal admits to having had a contract with County Board

Chairman Jeanne Rapp, see American Disposal’s answers to interrogatories, which

reportedly prevented her from commenting on orparticipating in matters related to the

landfill. With regard to Interrogatory No. 18, counsel brazenly claims that the

interrogatory is irrelevant. Petitioner is entitled to discovery on the issue ofwhether the

Board Members (including Mrs. Rapp, who abstained but participated in the process),

had a personal financial interest in continuance ofthe landfill operations. These

interrogatories (combined with the document requestrelatedthereto) address issues of

bias, pre-judgment and non-judgment, and other issues relating to fundamental fairness,

The County Board’s response that these interrogatories are irrelevant demonstrates bad

faith. Furthermore, the County’s counsel improperly failed to consult Board Members in

responding to any of the interrogatories. See answer to Interrogatory No. 31 and

discussion thereofbelow.

Through counsel, the County Board also refused to answer Interrogatory No. 15:

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15.

For each Board Member, identify any properties that you own or

have any other interest in that are located within

two

miles of Livingston Landfill.

Counsel objected

to

this interrogatory as irrelevant. However, it is relevant in that

answers to this interrogatory will allow Petitioner to argue that the vast majority ofthe

Board would not expect to be personally affected by approval ofthe Application, i.e., it

would not directly impact their lives ifthe statutory criteria were not met. Again, this is

clearly relevant to fundamental fairness issues.

Through counsel, the County Board refused to answer Interrogatory No. 17:

17.

Describe any independent environmental investigation performed by

LCB relating to Livingston Landfill (i.e., other than review of data supplied by

American Disposal) and identify all documents relating thereto.

Counsel refused

to answer

this interrogatory, stating only that “Respondent has

complied with the

Livingston County Pollution Control

Facility Siting Ordinance.” This

is a legal conclusion. Again, whether the process set

forth in the ordinance

was followed

is one factorto be considered, but is not grounds for failure to respond to interrogatories

that relate to fundamental fairness issues. This non-response does not even state an

objection. The interrogatory is relevant to the issue of whether the County Board pre-

judged or failed to judge the merits ofthe Application. Ifthe Board had done such a

review, that would be evidence that could be used to argue against Petitioner’s claims.

Petitioner is entitled to such information. Ifno such investigation was done, a simple

answer of“none” would have sufficed.

NO. 19???

The County Board’s answer to Interrogatory No. 23 was non-responsive:

23.

Describe the process by which the County’s “Review Team” was

formed and instructed.

Counsel responded only that the “Independent Review Team complied with the

Livingston County Pollution Control Facility Siting Ordinance.” Such a non-response

does not reveal what the actual “marching orders” ofthis purported “Independent Review

Team” were, whether they did in fact comply with the ordinance or whetherthe

ordinance could be complied with and the results still be biased or otherwise

fundamentally unfair. In light of Counsel’s apparent intention (based on its objections to

Interrogatories Nos. 1-4) to argue that Board Members were not required to review the

Application itself, this Interrogatory is extremely relevant. Counsel did not even state an

objection. Petitioner is therefore entitled to a full response to this interrogatory.

Through counsel, the County Board refused to answer or only partially answered

Interrogatories Nos. 25-28:

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25.

Describe all instances dating from 1995 to the present in which any

member ofthe County’s “Review Team” worked on matters relating to Livingston

Landfill other than the Application or the Previous Application.

26.

Describe all instances in which it is anticipated that any member of

the County’s “Review Team” will or may provide any materials or services to

American Disposal or in connection with matters relating to Livingston Landfill at

any time hereafter.

27.

Describe all instances in which it has been discussed or anticipated

that any ofAmerican Disposal’s consultants, witnesses or persons making public

comment in support of theApplication will or may provide any materials or services

to American Disposal at any time hereafter.

28.

Describe all instances in which

it is has

been discussed or anticipated

that any of LCB’s consultants, employees, agents or witnesses who participated in

the Application process in any way will or may provide any materials or services to

American Disposal at any time hereafter.

These interrogatories address the potential financial bias ofApplicant’s witnesses

and consultants, as well as the financial interest ofthe so-called “Independent Review

Team,” which in turn relied upon the reports and testimony ofApplicant’s witnesses and

consultants. These interrogatories address past, present and future anticipated financial

benefits from the landfill enjoyed by those who advised the Board. Obviously, the Board

can only respond to the best ofits own knowledge. However, in a small community that

knowledge may be extensive and it could lead to additional discoverable evidence ofbias

and self-interest. Petitioner strongly believes, based on news reports, that a forthright

answer to these interrogatories will reveal that the key consultant on the “Independent”

Review Team is already profiting as a result ofproviding the County with consulting

services that are needed due to anticipated continual landfill operations at the site.

Through counsel, the County Board refused to answer Interrogatory No. 30:

detail the basis for the denial.

Counsel merely stated that the interrogatory was “inappropriate. There are no

statutes or County ordinances requiring that Respondent explain in detail the basis for

denying any ofPetitioner’s requests for admission. Rather said denials speak for

themselves.” Petitioner disagrees. Since Petitioner has included this as an interrogatory

and it functions as such. Thus, to the extent the requests for admission are proper, the

interrogatory requesting an explanation is proper. This is a useful tool for establishing

agreed facts and identifying the precise grounds for disagreement. Knowing the precise

reason for disagreement may lead to admissible evidence or establishment ofother agreed

facts, Review ofRespondent’s objections to some ofthe Requests for admissions show

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that the reason for denial may be something petty such as a failure to admit due to the

lack ofa designated time frame when the intention ofthe statement was that it be taken to

apply to the time frame ofconsideration ofthe Application. See, e.g., Request for

Admission No. 8. Petitioner could have re-stated all ofthe Requests for Admission as

Interrogatories, but it is more efficient to simply statethe basis for the denial, as both

Petitioner and American Disposal did in their own responses to requests for admission.

Counsel forthe County Board, in response to Interrogatory, revealed a glaring

deficit in the County Board’s responses to Petitioner’s Discovery Requests. The

interrogatory in question was the de rigeur, standard interrogatory about preparation of

the answers to discovery requests:

31.

Identify all persons consulted in preparing the answers to these

Interrogatories, Petitioner’s First Request for the Production ofDocuments to LCB

or Petitioner’s First Request for Admissions by LCB.

Counsel responded that only one Board Member, namely, Chairman

Jeanne Rapp (who abstained from the vote), was consulted in preparing the County’s

answers. Thus,

counselfailed to consult with the actual decision makers.

Counsel

apparently felt no need to consult with any voting Board Member, even for those

interrogatories that were expressly (and redundantly) introduced by the phrase “for each

Board Member” to emphasize the need for individual inquiries. ~ Interrogatories Nos.

1-4, 9-10, 13- 15, & 19. For purposes ofthe interrogatories, the Board is defined as the

Board or members or agents thereof. This is an audacious attempt to prevent Petitioner

from obtaining reasonable discovery ofkey evidence.

Failure to Produce Documents

The County Board, through its counsel, also failed miserably to comply with

Petitioner’s Request for Production of Documents. For Requests Nos. 1, 3,

5,

6, 10, 11,

12, and 15, the County’s counsel merely referred Petitioner to the “Record on Appeal,”

without further disclosure oridentification. Petitioner objects to this answer as

instructions included with the Discovery Requests permitted the County to refer to the

Application if they cited to a section or identified the part ofthe Application being relied

upon. Petitioner further objects on grounds that the scope ofdiscovery is not limited to

the Record on Appeal with respect to issues ofjurisdiction and fundamental fairness.

Most ofthe Requests relate to such issues. Furthermore, Petitioner requested documents

that relate to CALE or its consultant in the belief that the number ofsuch documents

would be limited and would be relevant to fundamental fairness issues. The County did

not claim that such production would be unduly burdensome so Petitioner believes this

request is proper as well.

As with the interrogatories, Respondent’s attempts to limit the time period of

Petitioners’ requests to the pendency ofthe Application itself are not grounded. This

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affects Requests Nos. 9, 11, 12, and 15. See above for discussion ofthe possibility of

establishing fundamental fairness problems based on pre-Application contacts and events.

Petitioner requested copies ofcontract and communications between County

Board Members and American Disposal (and its agents) as follows:

7.

All documents relating to any agreement, understanding, or

transaction between any Board Member and American Disposal.

Counsel’s claim that asking 24 Board Members if they have a contract with the

Applicant is unduly burdensome is disingenuous. Petitioner is not required to present

evidence that such agreements exist prior to tendering a request forthem. This is part of

the function ofdiscovery. In fact, there is evidence in the record that at least one such

contract does exist. The County Board’s failure to respond to this basic, undeniably

relevant request is evidence of its bad faith in failing to respond to Petitioner’s Discovery

Requests.

Even with regard to Petitioner’s request for documents identified in response to

interrogatories, counsel forthe County Board referred only to the Record on Appeal. As

noted above, the County failed to respond to most ofthe interrogatories so presumably

they also withheld the documents that should have been so identified. Thus, the County

must be compelled to produce the documents related to the interrogatories that they are

being compelled to answer.

In Interrogatory No. 13, Petitioner requested documents regarding the Board

Member’s review ofthe Application and related documents:

13.

All documents evidencing review by any Board Member of the

Application, Previous Application or public comment submitted in connection

therewith, including but not limited to sign-out sheets, logs, c-mails and handwritten

notes.

Petitioner incorporates by reference its statements regarding the discoverability of

such information set forth above with regard to Interrogatories Nos. 1-4.

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WHEREFORE, Petitioner requests the Hearing Officer to issue and Orderto

Compel the County Board to respond fully to Petitioner’s Discovery Requests, to consult

with Board Members in the responses thereto, and to impose sanctions on the County

Board or its counsel in the amount of $1,500 for its failure to respond in good faith,

thereby necessitating the instant motion.

Respectfully submitted,

Carolyn K. erwin, 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

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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

Larry M. 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

Larry M. Clark

Suite 200

700 North Lake Street

Mundelein IL 60060

Carolyn

Counsel

Petitioner

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