BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
PEOPLE
OF
THE
STATE OF
ILLiNOIS,,
)
)
Complainant,
)
)
V.
)
PCBNo.03-191
)
COMMUNITY
LANDFILL
COMPANY, INC.,
)
an Illinois Corporation,
and CITY
OF
MORRIS,
)
an Illinois
Municipal
Corporation,,
)
)
Respondents.
)
NOTICE
OF FILING
TO:
All
counsel
of Record (see
attached Service
List)
Please
take
notice
that on
August
13,
2009, the
undersigned electronically
filed the
CITY’S
MOTION
FOR
AN
EXTENSION
OF
TIME TO
REPLY TO
THE
STATE’S
RESPONSE
TO THE
CITY’S
MOTION
FOR
RECONSIDERATION
with
the
Illinois
Pollution
Control
Board, 100
West
Randolph
Street,
Chicago,
Illinois
60601.
Dated:
August
13,
2009
Respectfully
submitted,
On behalf of
the CITY OF
MORRIS
Is! Charles
F.
Heisten
One of
Its Attorneys
Charles
F.
Heisten
Hinshaw
&
Culbertson
LLP
100
Park Avenue
P.O.
Box 1389
Rockford,
IL
61105-1389
815-490-4900
70608193v1
806289
52944
Electronic Filing - Received, Clerk's Office, August 13, 2009
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
PEOPLE
OF
THE
STATE OF
ILLINOIS,
)
)
Complainant,
v.
)
PCB
No. 03-191
)
COMMUNITY LANDFILL
COMPANY,
)
INC., an
Illinois Corporation,
and the
CITY
)
OF
MORRIS, an illinois
Municipal
)
Corporation,
Respondents.
CITY’S MOTION
FOR AN EXTENSION
OF TIME TO REPLY
TO
THE
STATE’S
RESPONSE
TO
THE
CITY’S
MOTION FOR
RECONSIDERATION
NOW COMES the
Respondent,
CITY
OF MORRIS, by and
through
its
attorneys,
FIINSHAW
& CULBERTSON,
LLP,
pursuant
to
35
Ill.Adm.Code
101.
500(e)
and
35
I1l.Adm.Code 101.522,
and requests
a
short
extension of
time in which
to
reply to the
Response
that was filed
by
the Attorney General’s
office (hereinafter
“the
State”) in
opposition
to
the
City’s Motion
for Reconsideration,
stating
as follows:
1.
The City
filed
a
Motion for Reconsideration
on
July 22,
2009,
seeking
reconsideration
of the Board’s
June 18, 2009 Order.
2.
On August
5,
2009,
the
State filed
a
19-page Response
brief that
requests
the imposition
of sanctions
against
the
City
and levels new
allegations of
purported
illegal
conduct
by
the City.
3.
In
addition
to
raising
new allegations
of illegal
conduct
by
the City,
and
requesting sanctions,
the State’s
Response
brief tnders the affidavit
of
State
employee
Mark
Retzlaff,
in which Retzlaff
offers
hearsay
accusations
against the
City
which
are
attributed
to
an
agent
of a
hostile entity,
Community
Landfill
Company,
whose
70610468v1
806289
52944
Electronic Filing - Received, Clerk's Office, August 13, 2009
interests are adverse to those of the City, and against whom the
City has filed
a
complaint in litigation before the
Thirteenth
Judicial Circuit
(Case No. 06
CH 184).
4.
The
Retzlaff affidavit also offers testimony that is contrary
to
the
sworn
testimony
Retzlaff gave in the proceedings before
this Board.
5.
The City
will
suffer material prejudice if it is
prevented from filing
a
Reply
to
the
State’s
Response
brief, including the Retzlaff
affidavit, and the City will
accordingly,
pursuant
to 35
Il1.Adm.Code
101.500(e), seek leave
to
file
a
Reply.
With
the instant motion, the City
requests an
extension
of time in which
to
prepare
and
file
its Request
for Leave
to
File
a Reply.
6.
On
the
day
the State filed its
Response to the City’s
Motion for
Reconsideration,
the
State also filed
a
motion requesting a
two
week extension of
time
in which
to
file its
Response
to
the Motion for
Reconsideration filed
by
CLC, citing
attorney vacation conflicts and the need for additional time
to
review
the issues raised
in CLC’s 19 page
memorandum of law.
7.
Like the State,
counsel for the City
also faces vacation conflicts this
month
(August).
8.
Lead
counsel for the City,
Attorney Charles
F.
Heisten, left for
a
previously
scheduled
vacation on August
6,
2009, prior
to
receiving
a copy
of the State’s
19-page
Response brief (plus 12
pages
of exhibits), and did not return
to
the
office
until
August 13,
2009. Accordingly, Attorney Heisten was unavailable
to
provide meaningful
input in the
preparation of
a
reply
during the first
seven (7)
days
of the fourteen
(14)
2
70610468v1 806289
52944
Electronic Filing - Received, Clerk's Office, August 13, 2009
days
available under
35
Ill.Adm.Code 101.500(e)
to
file
a
Request for
Leave to File
a
Reply. Attorney
Helsten’s
Affidavit is attached hereto
as
Exhibit A.
9.
Attorney Nicola Nelson, who was the co-author
of
the
City’s Motion for
Reconsideration,
was
out
of
state on
a
previously scheduled vacation
from August
6,
2009
to
August 10, 2009, and
so
was also unavailable for
a substantial portion
of
the
time
allowed under
the
Rules
for preparation
of
a
reply. Attorney
Nelson’s Affidavit is
attached hereto as
Exhibit B.
10.
Appellate co-counsel
Nancy G.
Lischer, who co-authored
the
Motion for
Reconsideration,
and whose comprehensive knowledge of the record in this
matter
makes her
indispensable, is engaged
in
work on other
pressing
matters, which has left
her largely
unavailable
to
assist
with
preparation of
a
reply to
the
State’s Response.
Attorney
Lischer’s
Affidavit is attached hereto
as
Exhibit
C.
11.
This request by
the City for an extension of ten (10)
days
in which
to
file
its
Section
811.500(e) Motion for
Leave
to
File
a
Reply
will
result in no delay in
the
Board’s
adjudication of
the
Respondents’ Motions
for
Reconsideration, because
if
the
Board
grants the
State’s
pending
motion
for
an extension of time, the
City’s
Reply
will
then
be due
within three days of the date on
which the
State
will
file its own brief.
WHEREFORE,
the
City
of Morris
respectfully
requests
an extension
of
ten (10)
days in which to
file its reply
to
the State’s Response brief
opposing the
City’s Motion
for
Reconsideration.
3
70610468v1 806289 52944
Electronic Filing - Received, Clerk's Office, August 13, 2009
Dated:
August
13,
2009
Respectfully
submitted,
On
behalf of
the
CITY OF
MORRIS
Is/Charles F.
Heisten
One of
Its
Attorneys
Charles
F. Heisten
Nicola
Nelson
Nancy
Lischer
Hinshaw
&
Culbertson
LLP
100
Park
Avenue,
P.O.
Box
1389
Rockford,
IL
61105-1389
815-490-4900
4
70610468v1
806289
52944
AFFIDAVIT
OF SERVICE
The undersigned,
pursuant
to the
provisions
of
Section
1-109 of the
Illinois
Code
of Civil
Procedure,
hereby
under
penalty
of perjury
under
the
laws
of
the United
States
of America,
certifies that
on August
13, 2009,
she
caused to
be served a
copy of the
foregoing
upon:
Mr.
Scott
Belt
Clarissa
Y.
Cutler
Scott
M. Belt
&
Associates,
P.C.
Attorney
at
Law
105 East
Main
Street
155
N.
Michigan
Ave.,
Suite 375
Suite 206
Chicago,
IL 60601
Morris,
ll 60450
Via E-Mail
and
regular
U.S.
mail.
HINSHAW
&
CULBERTSON
100 Park
Avenue
P.O.
Box 1389
Rockford,
IL
61105-1389
(815)
490-4900
Mr.
Christopher
Grant
Assistant
Attorney
General
Environmental
Bureau
69 W.
Washington
St.,
Suite
1800
Chicago,
IL 60602
Mark
LaRose
LaRose
&
Bosco,
Ltd.
200
N.
LaSalle,
Suite
2810
Chicago,
IL
60601
Mr. John
T.
Therriault,
Assistant
Clerk
Illinois
Pollution Control
Board
100
W.
Randolph,
Suite
11-500
Chicago,
IL 60601
(via
electronic
filing)
Bradley
Halloran
Hearing
Officer
Illinois
Pollution
Control
Board
100
W.
Randolph,
Suite
11-500
Chicago,
IL
60601
70415200v1
806289
Electronic Filing - Received, Clerk's Office, August 13, 2009
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
PEOPLE
OF
THE
STATE
OF
ILLINOIS,
ex
)
rd.
LISA
MADIGAN,
Attorney
General
of
)
the
State
of Illinois,
)
)
Complainant,
PCB
No.
03-191
(Enforcement-Land)
V.
COMMUNiTY
LANDFILL
CO.,
an Illinois
Corporation, and
the CiTY
OF
MORRIS,
an
illinois
Municipal Corporation,
Respondents.
AFFIDAVIT
OF
CHARLES
F. HELSTEN
I, CHARLES
F.
HELSTEN,
being
first
duly
sworn
upon
oath,
depose
and
state
as
follows:
1.
I am
the
lead
attorney
representing the
City
of Morris, an
Illinois
Municipal
corporation,
regarding the
above
referenced
action
before the
Illinois
Pollution
Control
Board.
2.
On
August
5,
2009,
the
Attorney
General’s
office
filed
a Response
brief
opposing
the
City’s
Motion
for
Reconsideration.
3.
On August
6,
2009,
prior
to
receiving
a copy
of
the
Response
sent
by the
Attorney
General,
I
left
for
a previously
scheduled
vacation out
of state.
I did
not
return
to
the
office
until
August
13, 2009.
4.
Upon
my
return
to
the office
on August
13,
2009,
I
was
able
to review
the
State’s
Response
brief.
I
have
concluded,
along
with
co-counsel,
that
in
order
to avoid
material
prejudice
to
the City,
it
is vitally
important
that
the
City
reply
to
the
State’s
Response.
L1
70610535v1
52944
5.
Appellate
co-counsel
and co-author
of
the
City’s
Motion
for
Reconsideration
and
brief
in
support,
Attorney
Nancy
Lischer,
whose
familiarity
with
the record
in
this
matter
makes
her indispensable,
has
scheduling
conflicts
which
have
temporarily
compromised
her
ability to provide
meaningful
input in the
preparation
of
a
Reply.
6.
Up
to
this point,
Attorney
Nicola
Nelson,
who co-authored
the
City’s
Motion
for Reconsideration
and
brief in support,
has
been out
of the office
on vacation
and otherwise
engaged
in
responding
to the
press
of
other
matters,
including
the
need
to
respond
to issues
among clients
that have
arisen
during
my
absence.
7.
As set
forth above,
the attorneys
for the
City
of
Morris have
had very
little
time in
which to
confer
and prepare
an adequate
Reply
to the
State’s Response
brief,
but
they
are agreed
that
filing
a
reply
is crucial
to
avoid
material prejudice
to
the
City.
and,
if
sworn as
a
SUBSCRIBED
and
SWORN
to
before
me
this 13th
day
of August,
2009.
8.
witness,
I
can testify
competently
to
the
CFRQAL
NOTARY
PUBLIC.
STATE
CF
WOIS
MY
cOIBiISSION
E’ILO2311$
2
70610535v1
52944
Electronic Filing - Received, Clerk's Office, August 13, 2009
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
PEOPLE
OF
THE
STATE
OF
ILLiNOIS,
ex
rel.
LISA
MADIGAN,
Attorney
General
of
the
State of
Illinois,
Plaintiff,
V.
PCB
03-1
91
COMMUNITY
LANDFILL
CO.,
an
Illinois
(Enforcement
- Land)
Corporation,
and
the CITY
OF MORRIS,
an
illinois
Municipal
Corporation,
Defendants.
AFFIDAVIT
OF
NANCY
G. LISCHT3R
I, Nancy
G. Lischer,
being
duly
sworn
upon
oath,
depose
and state
as follows:
1.
I am
an
attorney
and
partner
in the appellate
department
at
Hinshaw
&
Culbertson
LLP.
I have worked
on various
landfill
cases,
and
I
was
requested
by Charles
Heisten
to assist
in filing
the
motion
for
reconsideration
in the
case
of People
of
the
State of Illinois
v.
Communitij
Landfill
Co.,
PCB
No. 03-191
because
of
his
conflicts with
other
work,
or
he
was
otherwise
out
of the
office
on other
matters.
With
a
Rockford
attorney,
Nicola
Nelson,
I
drafted
the
motion
for reconsideratiom
subject
to
the
approval
of both
Mr.
Heisten and
the
client.
2.
The
State’s
response
was
filed on
August
5, 2009. Under
the PCB
rules,
leave
to file
a
reply
brief is
due within
14 days, or
by
August
19, 2009.
Because
of my
research and
work on
the
motion
to reconsider,
and
because
I personally
reviewed the
record,
I
am
well-situated
to
research
and
prepare the
reply brief.
3.
Because
of my conflicting
matters,
along
with conflicts
in the
schedules
of
Ms.
Nelson
and Mr.
Heisten,
an extension
to
file
a
reply
is sought.
The
conflicts
in
my
schedule
include,
but
are
not limited
to:
a.
Research
and
preparation
of an appellate
brief
in the case
of Bullock
v. Dart, Seventh
Circuit
Nos.
08-3471, 09-1734.
This
brief
has
already
been extended
once
and is currently
due
on August
21,
2009.
This appeal
includes
complicated
issues
of pendent
jurisdiction,
interlocutory
orders, whether
a
Rule 54(b)
motion
extends
the time
to appeal
a
collateral
order,
sovereign
immunity,
when a
sheriff
operates
as an
arm
of
the
state,
and
Equal
Protection
claims (premised
on
the fact
that women
are
treated
differently
than men
because
of a
prior
class action
brought by
women
that
EXHIBIT
13
Electronic Filing - Received, Clerk's Office, August 13, 2009
settled. In
addition,
there
are Fourth
Amendment
claims
based
on
visual
strip searches
conducted
in
groups.
This case
has
an
enormous
record and
has
required
vast
amounts
of
research
and
a
multitude
of
issues. While
a
draft
is currently
being
revised
and
edited
for word
limitations,
the work
left is substantial.
Once
the
draft
is
distributed
to
the State’s
Attorney’s
Office
and
the
client,
further revisions
are anticipated.
b.
The second
major
conflict
is the
case
of
Michigan
First
Credit
Union
v. Cumis
Insurance
Society
Inc.,
Sixth
Circuit
Nos. 09-1925,
09-1970.
A settlement
conference
is
scheduled
for September
3, 2009.
As
the
counsel
of record
admitted
to
the
Sixth
Circuit,
I
am required
to
attend
and
negotiate
in good
faith regarding
a
possible
settlement.
Because
I did not
try
this case,
preparation
for this
conference
includes evaluating
the
merits
of
the appeal.
It
requires
reading
over
1,600
pages
of
transcript
plus
approximately
two
boxes of
exhibits.
In
addition,
I wifi be
required
to
research
the law
of
Michigan
as
well
as
the
Sixth Circuit
in order
to
adequately
evaluate the
case for
review and
negotiate
in good
faith. This
review
will
be
exceedingly
time-consuming
given
the
length
of the
record, required
research,
and
the jurisdiction.
4.
These
two
cases will
require
virtually
all of my
time
until September
3,
including
most
or all
weekends.
5.
The
foregoing
is based
on my
personal
knowledge,
and,
if sworn
as
a
witness,
I can
testify
competently
to the
same.
NAN
. SCHER
SUBSCRIBED
and
SWORN to
before
me this
13th day
of
August,
2009.
Notary
Public
.SE
DEENA
A
E13
2
6473715v1
838428
51151
Electronic Filing - Received, Clerk's Office, August 13, 2009
BEFORE THE
ILUNOIS
POLLUTION
CONTROL
BOARD
PEOPLE
OF
THE
STATE OF
ILLINOIS,
ex
)
rel.
LISA
MADIGAN,
Attorney
General
of
)
the
State
of
illinois,
)
)
Complainant,
)
PCB
No.
03-191
)
(Enforcement-Land)
v.
)
)
COMMUNITY
LANDFILL
CO.,
an Illinois
)
Corporation,
and the
CiTY
OF
MORRIS,
an
)
Illinois
Municipal
Corporation,
)
Respondents.
)
AFFIDAVIT
OF NICOLA
A. NELSON
I, NICOLA
A.
NELSON,
being
first
duly sworn
upon
oath,
depose
arid state
as
follows:
1.
I
am
an attorney
representing
the
City of
Morris,
an illinois
Municipal
corporation,
regarding
the
above
referenced
action
before
the Illinois
Pollution
Control
Board.
2.
I was
the
co-author
of
the
City’s
Motion
for Reconsideration
and
Memorandum
of Law
in Support
of the
Motion
for
Reconsideration, filed
with the
Board
on July
22, 2009.
3.
On August
5,
2009, the
Attorney
General’s
office
filed
a
Response
brief
opposing
the
City’s
Motion for
Reconsideration.
4.
On
the afternoon
of
August
6, 2009,
I left
for a previously
scheduled
vacation
out
of state. I
did not
return to
the
office
until August
10, 2009.
5.
Upon my
return
to
the
office
on
August
10, 2009,
I
had
preexisting
commitments
that
included
but
were not
limited
to the
finalization
of
an
opinion
letter
1
that
had
been
promised to
a client
for delivery
on August 10,
2009,
and
the
preparation
of
a CLE
presentation
for
my
law
firm’s
Labor
and
Employment
Specialty
Group,
which
I
presented
on August
11,
2009.
6.
Appellate
co-counsel
and
co-author
of
the
City’s
Motion
for
Reconsideration,
Attorney
Nancy
Lischer,
whose familiarity
with
the
record
in
this
matter
makes
her
indispensable,
has
scheduling
conflicts
which
have
temporarily
compromised
her
ability
to provide
meaningful
input
in
the
preparation
of
a Reply.
7.
Lead
counsel
for
the
City,
Charles
F.
Heisten,
was
out
of
the
office
on
a
previously
scheduled
vacation
from
August
6, 2009
through
August
13,
2009,
and
has
therefore, up
to
this
point,
been
unavailable
to
provide
meaningful input
in
the
preparation
of
a
Reply.
8.
For
the
reasons
set
forth
herein,
the
attorneys
for
the
City
of
Morris
have
had
very
little
time
in which to
confer
and
prepare
an
adequate
Reply
to the
State’s
Response
brief,
however
they
have
concluded
that
filing
a
Reply
is
crucial
to
avoid
material
prejudice
to
the
City.
9.
The
foregoing
is based on
my
personal
knowledge,
and,
if
sworn
as
a
witness,
I
can
testify
competently to
the
same.
4
7r
-.
Nicola
A.
Nelson
SUBSCRIBED
and
SWORN
to
before
me
this
13th
day
of
August,
2009.
F)(I.A.
SEAL
(j
Notary
Public
2
70610484v1
52944
Electronic Filing - Received, Clerk's Office, August 13, 2009
