LOWE TRANSFER,
iNC.
and
MARSHALL LOWE,
Co-Petitioners,
vs.
COUNTY BOARD OF McHENRY
COUNTY, ILLINOIS
Respondents.
COEPY
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
)
CLERK’S
OFFICE
)
)
No. PCB 03-221
I~\UG
~
2003
)
(Pollution Control Facility Siting Appeal)
STATEOF’ILLINOIS
)
Pollution
Control
Board
)
NOTICE OF FILING
TO:
See List Referenced in Proof ofService
PLEASE TAKE NOTICE that on August
5,
2003, we filed with the Illinois
Pollution
Control Board, the attached Lowe Transfer, Inc.
and Marshall Lowe’s
MOTION TO
STRIKE
VILLAGE OF CARY’S RESPONSE TO PETITIONERS’
MOTION IN LIMINE AND
MOTION FOR SANCTIONS AGAINST THE VILLAGE OF CARY
in the above entitled
LOWE TRANSFER,
INC. 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 parties by depositing
same in the
U.
S.
mail on
this
5TH
day of August, 2003
and via
fax on
the
5thday
of August,
2003:
Attorney for County Board of
Iv!cHenry County, Illinois
Charles F. Helsten
Hirishaw and Culbertson
100
Park Avenue, P.O.
Box 1389
Rockford,
IL 61105-1389
815-490-4900; FAX 815/963-9989
SUBSCRIBED and SWORN to before
Hearing Officer
Bradley P. Halloran
Illinois Pollution Control Board
James R.
Thompson Center,
Suite
11-500
100 West RandolphStreet
Chicago, IL
60601
312-81
‘~
11,3
c’
Q~~1ClA~.
L~~y
-
YONR4~E~)OELLE
crj~~
David W. McArdle
St~5t~
Ci1i~rgi~~
~
Attorney Registiation No
06182
ZUKOWSKI ROGERS FLOOD & MCARDLE
50 Virginia Street
Crystal Lake, Illinois 60014
(815) 459-2050
matter.
me
2003
This document is printed on recycled paper.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECE~V~D
LOWE TRANSFER, INC.
and
)
CLERK’S
OFFICE
MARSHALL LOWE,
)
Co-Petitioners,
)
No.
PCB
03-221
~UG
62003
)
STATE
OF
ILLINOIS
vs.
)
(Pollution
Control
FacR~!Jutjon
Control Board
)
Siting Appeal)
COUNTY BOARD
OF McHENRY
)
COUNTY, ILLINOIS
)
Respondent
)
CO-PETITIONERS’ MOTION TO
STRIKE VILLAGE OF
CARY’S
RESPONSE
TO PETITIONERS’
MOTION IN
LIMINE
AND MOTION FOR SANCTIONS
AGAINST TFIE ViLLAGE
OF CARY
Co-Petitioners,
Lowe
Transfer,
Ii~c.and
Marshall
Lowe
(“Lowe”),
by
and
through
its
attorneys, Zukowski
Rogers Flood
& McArclle, respectfully request
the
Pollution
Control Board
strike
the Village of Cary’s (the “Village”) Response to
Petitioners’
Motion in
Lii
inn
and
issue
sanctions against the Village for failure to
comply with Board orders issued
in this
siting appeal.
In support of this Motion, Lowe states
as follows:
1.
On June 19, 2003, the Village filed a Motion to Intervene in this siting appeal.
2.
On July
10,
2003,
the Pollution
Control
Board
by
a
unanimous vote
denied
the
Village’s Motion
to
Intervene.
The Board
order
is
attached hereto
and
incorporated
herein
as
Exhibit A.
3.
By its
order the Board did not grant the Village “party”
status
in this siting
appeal.
Board Order, p. 2.
4,
Instead,theBoard found that theVillage would be afforded “participant” status
under
Sections
10 1.628
and
107.404 of
the
Board’s procedural rules.
Board Order at p.
2.
5.
On July 28, 2003, Lowe flied a Motion in Limine.
1
THIS FILING iS PRINTEDON RECYCLED PAPER
6.
On July 28, 2003, the Village filed an Appeal of1-learing Officer Determination and
Request forBoard Direction in which the Village, solely a participant in this siting appeal, requested
that
the Board overturn the Hearing Officer’s
denial ofthe Village’s right to participate in or audit
any status
conference
calls
in
this
matter.
A
copy
of the Village’s
Appeal of Hearing
Officer
Determinationand Request fo~
Board Direction is attachedhereto and incorporated herein as Exhibit
B.
7.
In its
July 28,
2003
Appeal, the Village
is requesting “party”
status
in
relation to
participation in status
conference calls.
This request and its
appeal were made after the Board
had
ruled and issued its
Order denying the Village “party’ status.
8.
On.August 4,
2003,
in direct violation of the Board’s order of July
10,
2003,
the
Village
filed a Response to
Petitioner’s
Motion in Lirnine.
A
copy of the Village’s Response to
Petitioners’ Motion in Limine is~attached
hereto and incorporated herein as Exhibit C.
9
Section 101.500(d) oftheBoard’sprocedural rules very clearly states that only parties
may file a response to
a motion.
“Within 14 days after service ofa motion, a party
may
file a response to the motion.
Emphasis
added.
10.
Ms.
Percy Angelo,
one
of the
attorneys representing
the
Village,
has
extensive
experiehce before the Pollution Control Board going back to at least 1990.
A copy ofa name search
ofthe PCB website is attached hereto and incorporated herein as Exhibit D.
11.
Infact, inPCB 95-119, 125 inherclient’s Objectionto Motion forLeave to File Copy
of
Amicus
Briefand Response,Ms. Angelo quite succinctlydescribed therole ofaparticipant posing
as an amicus curiae (as the Village has declareditself in this siting appeal).
In opposition to
a party’s
amicus brief, Ms.
~igelo
wrote:
2
THIS
FILING IS PRiNTED ON RECYCLED PAPER
“Aperson posing as an amicus curiae has no direct interest in the matter at hand and
should
not
be
permitted
to
delay the
resolutiOn
of the
parties’
dispute.”
West
Suburban Recycling and Energy Center, L.P.’s
Objections
to
Motion for Leave to
File Copy of Amicus Brief and Response at p.
3.
12.
It
is
clear
from
her
own
pleadings
that
Ms.
Angelo
is
aware
of the
rules
and
procedures
ofT the Pollution Control Board distinguishing between “parties” and
“participants”.
13.
This Board has already determinedthat the Village is not a party to this siting appeal.
14.
As such, theVillage’s Responseto Petitioners’ Motion in Limine should he stricken..
15.
These repeated and flagrant refusals by the Village to comply with theBoard’s Order
can not be ignored.
16.
Lowe has been forced to spend considerable
time and expense in defending against
these actions by the Village.
WHEREFORE,
Co-Petitioners,
Lowe Transfer,
Inc.. and Marshall Lowe,
request
that the
Village of Cary’s Response to Petitioners’ Motion in Limine
be stricken and
that the Board
issue
sanctions against the Village of Cary for failure to comply with
the Board’s Order ofJuly
10, 2003.
Respectfully
submitted,
LOWE TRANSFER, iNC. and
MARSHALL LOWE
By:
zukowski, Rogers, Flood
& McArdle
By:
________
____
David W.McArdle
DavidW.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)
.
3
THIS
FILING IS PRiNTED ON RECYCLED PAPER
ILLINOIS POLLUTIONCONTROL BOARD
July
10, 2003
LOWE TRANSFER, INC.
and MARSHALL
)
LOWE,
.
.
)
Petitioners,
)
)
V.
)
PCB
03-221
)
(Pollution Control Facility
COUNTY
BOARD
OFMCHENRY
)
Siting Appeal)
COUNTY, ILLINOIS,
)
)
Respondent.
)
ORDER OF THE BOARD
(by G.T. Girard):
On June
5,
2003, Lowe Transfer, Inc.
andMarshall Lowe (petitioners) timely flied a
petition asking theBoard to review theMay 6, 2003 decisionofCounty Board ofMeHenry
County, Illinois (McI-Ienry County).
See
415 ILCS 5/40.1(a) (2002); 35111. Adm. Code 107.204.
McHenry County denied the petitioner’s request for applicationto site a pollution control facility’
located on
U.S. Route
14 in McI-Ienry County.
On June
19, 2003, Village of Gary (Cary) filed a
motion
to intervene in the siting appeal (Mot.).
On July
7, 2003, petitioners filed a response to
the motion (Resp.).
For the reasons discussed below the
Board denies the motion
to
intervene
but
will
allow Gary to file
an
ainicus curiae
brief.
Gary argues that pursuant to the Board’s
rules
at
35
Ill. Adrn.
Code
10 1.402, the Board
may allow intervention in
an adjudicatory proceeding before the Board and a siting appeal is an
adjudicatoryproceeding.
Mot.
at 3-4.
Cary puts
forth five reasons why intervention should be
allowed.
First, Gary asserts that the site of the proposed waste transfer station at issue
is
located
so as
to have
a significant impact on
Gary.
Mot.
at 1.
Second, Gary participated extensively in
the proceeding below.
Met.
at 2.
Third,
Gary
asserts that a decision
by the Board overturning
McHenry County’s decision would infringe on Gary’s rights under Section 22.14 of the
Environmental
Protection Act (Act) (415
ILCS 5/22.14 (2002)).
Fourth, Gary argues that
participation by Gary is necessary to
insure that McI-lenry County’s decision is
“vigorously
defended” on appeal.
Mot. at 7,
And last, Gary maintains that participation by Gary is necessary
to preserve Gary’s right to
appeal airy grant of the siting application.
Id.
In response to the motion
to intervene, petitioners
cite to
Act, the Board’s procedural
rules,
and case law.
First, petitioners cite Section 40.1
of the Act arguing that Section
40.1
of the
Act allows
only
a siting applicant
to appeal
the denial of siting approval.
Resp.
at 2, citing
415
ILCS5/40.l
(2002).
Section
40.1
of the Act then allows other persons to appeal the decision to
grant siting approval, according to petitioners.
Id.
Second, the petitioners cite to 35
III.
Adm.
Code 107.202 of the Board’s procedural rules.
Petitioners maintain that the Board’s procedural
rules mirror the Act and allow only for an applicant to
appeal a decision denying siting approval
and for others to appeal only
a grant of siting.
Id.
Third, petitioners cite extensive case law in
EXHIBIT
A
to f~’btionto
Strike
2
which the Board and courts have consistently denied intervention status
to
third parties in
appeals of siting approval denials.
Resp.
at 2-3,
citing McI-Ienry County Landfill, Inc. v.
1EPA,
154 Ill. App.
3d
89,
506
N.E.2d 372
(2nd Dist.
1987); ~
IPGB, 160 Ill. App. 3d 434
513
N.E.2d 592 (2nd Dist.
1987); Laidlaw Waste
Systems v.
McHen,ry County Board, PCB
88-27
(Mar.
10,
1987);
f~IJy
of Rockford v. Winnebagp_Q9JdJ1J’
Board, PCB
87-92 (Nov.
19,
1987); Glean Quality Resources, Inc. v. Marion Gounty~floard,
PCB 90-216 (Feb. .28,
1991).
As petitioners
point out,
it is well established
that third-party objectors are precluded
from intervention in
an
appeal from a denial of siting approval.
See
~
County
Board of Kane County, PCB
03-104, slip
op. at
3
(Feb. 20, 2003);
kan~an~Lak~s
~
at
al.
v.
Villa_ge
of Romeoville, PGB
94-195, slip
op. at
4 (Sept.
1, 1994);
citing
Waste
Management of Illinois, Inc. v. PCB,
160
Ill. App. 3d 434, 513 N.E.2d
592
(2nd Dist.
1,987);
McI-Iem7 County Landfill, Inc. v.
IEP’A,
154 Ill. App.
3d
89,
506 N.E.2d 372 (2nd Dist.
1987).
A third party may intervene only when the thirdparty is
a state’s attorney
or the A.ttoriiey
General’s
Office intervening
to
represent the public interest,
See,
e.g.,
Land and Lakes, slip op.
at 3.
Gary is a third-party
objector without the special intervention rights of a state’s
attorney
or the Attorney
General’s
Office representing the public interest.
Accordingly, the petition to
intervene
is denied.
Gary may, however, contribute oral
or written statements at hearing in this
matter in accordance with
Sections 101.628
and
107.404
of the Board’s procedural rules, but
may riot examine or cross-examine witnesses.
35
Ill. Adm.
Code
10 1.628(a), (b); 35 Ill. Adm.
Code
107.404.
Gary may also participate through public comments
or
ainicus
curiae
briefs
pursuant to Section 101.110(c), and in
accordance
with
Section 101.628(c).
35
Iii.
Adm. Code
101.110(c);
35111.
Adnr. Code
101.628(c).
IT IS SO
ORDERED.
I, Dorothy M.
Gunn,
Clerk of the Illinois Pollution Control Board,
certify that the
Board
adopted the above order’ on,.by a vote of 7-0.
~
~
‘,i
Dorothy M.
Gunn, Clerk
Illinois
Pollution Control Board
BEf’ORE
THE ILLINOIS POLLUTION
CONTROL BOARD
LOWE TRANSFER,
INC.
and
)
MARSHALL
LOWE,
)
)
Go-Petitioners,
)
)
‘
PGB
03-221
)
(Pollution
Control Board
)
Siting Appeal)
COUNTY BOARD
OF MGI-IENRY
)
COUNTY, ILLINOIS,
.
).
)
Respondent.
)
VILLAGE OF
(ARY’S
APPEAL OF HEARING OFFICER
DETERMINATIONS
AND REQUEST FOR BOARD DIRECTION
The Village of Gary (“Village”) on behalf of the Village
and its residents~by and through
its attorneys, hereby appeals the determinations of the Hearing Officer in this matter limiting the
ability of the Village and
its citizens to participate
in and be informed regarding the
status of this
action, requests that the Board clarify,
‘arid review, if necessary, the Hearing
Officer’s order
permitting withdrawal of the record, and requests that the Board provide direction regarding
future
opportunities
for citizen participation.
In furtherance of its motion, the Village states as
follows:
FACTUAL
BACKGROUND
1.
In
order to allow the Village and its c’itizens to remain fully informed of the status
of this matter so as
to facilitate their effective participation therein,
on July
1, 2003, and then
again on
July 7,
as
further described in the attached affidavits of Patricia Sharkey
and Percy
Angelo,
the Village of Gary requested that the Hearing Officer allow the Village to participate in,
or at least listen
to, status conferences
In this matter, which have been conducted by telephone
and ~e
not othci~’isepublicly accessible.
Attorneys for the Village offered
to come to
the Board
offices to listen to
status conferences if that
would facilitate matters.
EXHIBIT
B
to
I~~btion
to
Strike
THIS
FILING
IS PRINTED
ON RECYCLED
PAPER
2.
The Hearing
Officer denied the Village’s request,
allowing neither participation in
nor auditing of status conferences.
He explained
that attorney-client privileged material
or
other
private matters might be discussed at such conferences,
even though the attorney for the Village
protested that matters discussed
should be publicly available,
and
that it wasn’t clear how there
could be
any
a_ttorney-client privilege in
discussions between opposing parties before the Hearing
Officer for the Board.
The I-Iearing Officer further stated that the Village could appeal the
Hearing Officer’s ruling to the Board.
3.
The I-Iearing Officer also informed the Village that it was not allowed to receive
copies of
Hearing
Officer orders, but could purchase copies thereof frau
the Clerk’s Office
if
the
Village so desired.
The I-Iearing Officer orders are also not available on the
Board’s website.
4
To
date, two status conferendes have been held in this matter: one on July 7, 2003
and one on July
14, 2003.
The Village was not permitted to participate in either status
conference.
5.
On
July
15,
2003, the 1-learing Officer issued a Notice scheduling a public
hearing
in this
matter.
Despite numerous public comments expressing interest in the proceeding
and
requesting that
the
proceedings be held after business hours so as
to
allow participation by those
who must work during the day, the notice did not address opportunities
‘for public conirirint
or
establish an evening public comment period.
6.
At the
July
14,
2003
status conference, the Village understands that Petitioner
made an
oral motion
“withdrawing” a pending motion requesting that it be
allowed to
“withdraw” the exhibits and records which
constitute the record of
the
Mci-Jerry
County Board’s
decision for its personal use.
While
a vnitten
order was
eventually issued indicating
that “the
motion” was
granted, it
was
unclear which motion was
in fact granted,
and
whether Petitioner
‘ri-us FILING
IS PRINTED
ON
F.EC~’CLEDPAPER
was permitted to remove the record,
Because the Village was not permitted to
audit the status
conference, it has no background from which to
understand this unclear order.
ARGUMENT
7.
The Hearing Officer’s rulings have denied the Village ofGary the right to
participate in or audit the status
conferences, have compromised the Village’s ‘and its
citizens’
ability to remain informed regarding the status ofthe proceeding,.and have inappropriately
limited public information regarding and
opportunities for participation in this proceeding.
For
the reasons set forth below, the Village hereby appeals the’ Hearing Officer’s rulings, and
requests that the Board direct the Hearing Officer to allow the Village to participate in or audit
the status
conferences in this matter.
Further, given the demonstrated extensive
public interdst
in
this proceeding,
the Village requests that the Board direct the Hearing Officer’ to
schedule an
eveningpublic comment period so as to provide appropriate opportunities for public
participation in the Board hearing.
8.
Hearing Notice. It is apparent that scheduling issues regarding the proposed
hearing before this Board were
addressed at the July
14, 2003
status conference from which
time
Village was excluded.
On July
15, 2003, the Hearing
Officer issued a No’tice of Hearing in this
matter,
setting
forth the proposed hearing schedule.
The notice contains a barebones sta’tenient
merely identifying the hearing
date, time,
and location
(10:30 am.
on August 14,2003,
at ‘the
Gary Junior I-ugh Gymnasium.)
While the information provided
in
the notice is unremarkable,
what is significant is the infonnation which the notice fails to provide.
The Notice of Hearing
provides no
information
‘regarding hearing procedures,
no information regarding
the proposed
order of proceedings,
and
no
direction
or guidance
regarding
the time ‘for public comment or
participation. Although
Section
107.404 of the Board’s regulations governing these hearings
‘l
3
Ti-IIS FILING
IS PRINTED ON RECYCLED PAPER
requires
that
“Participants may offer. comment at a specifically determined time in the
proceeding...,”
35
III.
Admin.
Code
107.404, the Hearing Notice fails to
speci’fy
when
public
comment will be heard. Furthermore, the notice does
not address or provide for evening hours to
accommodate
working members of
the public who wish to attend
and participate in
the hearing.
9.
Section
101.110 of the Board’s regulations states
“The
Board
encourages public
participation in
all
of its proceedings.”
In
keeping
with this
stated goal, in
the pas’t, where a
strong public interest has been demonstrated, particularly in siting
appeals, the Board has
accommodated public participation by holding proceedings
in the
evening to allow participation
by those who mustwork
during’
business hours. Clearly, a different approach hasbeen followed
here.
In the present
matter, at
leastfor~’-two
publiccomments
hatu
alreadybeen filed (both
from residents of Gary
and
others), demonstrating significant public interest in time proposed
hearing.
In many
of these, conunenters specifically request evening hours to facilitate their
participation.
Yet the Hearing
Officer’s order does not address or even acknowledge the citizens’
concerns, provides
no
instruction regarding public
participation,
and makes
no arrangements
for
an after-hours comment period.
Apparently, it leaves citizens with no
option but to show up
at
10:3 0
a.m. or
potentially miss the
opportunity to participate.
This approach flies in
the
face of
the
General Assembly’s stated intent that
the
Environmental Protection Act
“increase public
participation in
the
task of protecting the environment,”
415
ILCS
512(a)(v),
as well as the
Board’s stated
goals
and past
efforts to encourage public participation in
its proceedings.
10.
Status
Conferences.
The Village has been informed
that the Petitioner has used
the status
conference
as a forum to attack
and
impugn
the motives ofthe Village of Gary.
These
attacks include unfounded
assertions that the Village will seek to inappropriately
supplement
the
record
with new
facts not properly
before the Board.
In fact, quite to the conlrary,
the Village
4
THIS
FILING
IS PRINTED ON
RECYCLED
PAPER
believes that the record
in
this matter is
exceptionally strong and
fmlly supports the
McHenry
County Board’s decision denying siting approval.
The strength
o’fthe record is due in large part
to the Village’s participation in the proceeding below, including
the presentation of a number of
ekpert witnesses. In contrast to Petitioner’s unfounded assertions regarding theVillage’s
intentions, the Village intends to
focus its efforts in this proceeding on demonstratingthe
strength ofthe existing record.
11.
The Village’s participation has been limited by the Hearing Officer’s
rulings
excluding it from status conferences,
only to have its positions and
motives distorted by
Petitioner’s
misrepresentations in its absence.
Exclusion of the public
fi’om status conferences is
being used by
Petitioner to
attack
the credibility of the objectors.
Opening such proceedings to
the public is essential
to protecting themfrom misuse.
12.
Public Access to the Record. As set
forth
in
the Village’s July
11
,
2003
Objection
to Plaintiffs Motion,
allowing Plaintiffs
removal of exhibits and records
from the
Board
Office
could significantly
impact
public
participation by making portions of the record unavailable for
review by others, particularly since a prior 1-learing Officer ruling at the July
7,
2003
status
conference
granted
respondent McHenry
County’s motion to filed limited copies of the
record,
resulting in
only
a single copy of some exhibits being filed with the Board.
Therefore, if the
record is withdrawn, these materials will
be unavailable for review by
the
Board, the
Village or
its citizens,
and
other members
ofthe public,
significantly hampering their ability to participate
in
the proceedings. Such removal of exhibits
and
records from the Board’s offices would
specifically
contravene Section 7(a) of the Act which requires that”
all files, records,
and data of
the Board shall be open to reasonable public inspection...” 415 ILCS
5/7(a)
TI-uS
FILING IS PRINTED ON
RECYCLED PAPER
PRAYER
FOR
RELIEF
WEEREFORE, the Village ofGary
requests that the Boardreverse the Hearing Officer’s
determination
denying
the
Village the
right
to participate in
or
audit status conferences,
and
direct
the Hearing Officer allow the Village
to
participate in or audit future status
conferences in
this matter.
The Village further requests that the Board direct the Hearing Officer to
establish a
public comment period outside of
normal
business
hours
as part ofthe proposed hearing,
preferably in the evening, so as to facilitate public participation by members
of the public who
cannot attend during normal business hours. Finally, it is requested that the Hearing Officer be
requested to clarify
his order regarding withdrawal of the record, and,
to the extent such
clarification allows
the record to
‘be
withdrawn, to overrule such order to the extent necessary to
ensure
that a full
set of record documettts renuaims available at
time Board’s offices.
Respectfully
Submitted,
The Village of Gary
Dated: July 28, 2003
By
____
One o
its Attorn~1s
Percy L. Angelo
Patricia F. Sharkey
Kevin C. Desharnais
Mayer,
Brown, Rowe & Maw
190 S. LaSalle Street
Chicago,
IL
60603-3441
‘
(312)782-0600’
6
THIS
FILING
15
PRINTED ON RECYCLED
PAPER
STATE OF ILLINOIS
)
)
SS:
COUJ’TTY OF
COOK
)
AFFIDAVIT OF PERCY L. ANGELO
Percy
L. Angelo, being duly swoim on oath, deposes
and
states:
I.
I am an attorneyrepresenting theVillage of
Gary
in Illinois
Pollution
Control
Board matterPCB 03-221.
I previously represented theVillage ofGary in the underlying
Pollution
Control Facility
Siting hearings held by the McHemu-y County Board.
2.
On July 7, 2003
I contacted Bradley Halloran, the I-Iearimg Office in this matter,
to request that the Village ofGary be permitted to listen to status conferences scheduled in this
matter.
I offered to come to the
Board
offices
to listen to those
status conferences
ifthat would
facilitate matters.
3.
Mr. Halloranrefused to allow the Village ofGary to listen to ‘the status.
conferences and told
me
that such auditing was inappropriate,
as private matters
and attorney-
client privileged matters could be discussed.
I ‘questioned
how an attorney-client privileged
matter could be discussed between opposing parties before
the hearing Officer,
and
stated that the
matters discussed
should be
publicly
available.
4.
Mr.
Halloran said
it was his decision thet the Village
Of
Gary could not listen to
status conferences, and
ifthe
Village wanted, it could appeal its decision to the Board.
Further Affiant Sayeth Naught.
Percy L. ‘Angelo
Dated:
Subscribed and sworn to
before me this
of July,
2003.
c~
~
Notary
Public
~ICIAL
SEAL”
Donna M. Draper
~
Notary
Public,
State of Illirrois
My
Conirrtssio~
Exp. 03/25/2006
‘
THiS DOCUMENT
IS
PR~TED
ON I~OYG~ED
PAPER
County o-f Cook
)
SS.
State of illinois
)
~F~AVIT
OF FAT~CIAF. S~~EY
I, Patricia
F. Sharkey,
an attorney licensed to practice
law in Illinois and under
oath, state
as
follows:
1.
I am
an attorney representing the Village of Gary in Illinois Pollution Control Board
matter PCB 03-221. I previously represented the Village of
Gary
in
the underlying Pollution
Control Facility Siting hearings held
by the McHenry County Board.
2.
On behalf of my client, the Village of Cary,
Iliad a telephone conversation with Mr.
Bradley
Halloran, the
as~ignedHearing Officer in
PCB 03-221, on
July
1, 2003.
In
that
telephone comversation, I requested that the Village ofGary
be allowed to participate
in the
telephonic status conference scheduled for July
7, 2003.
Mr. Halloran denied that request stating
that
only persons representing parties in the appeal
are allowed
to
participate
in rtatus
conferences ,in PollutionControl Facility Siting appeal cases. I-Ic
further stated that telephonic
status calls are
not open to members of the public.
—~--—3-~—-———-B-ased-on-th.e4~earing
‘Officer’s ruling, both I and my co-counsel representing
time Village
of
Gary
have been excluded
from
telephonic
status conferences
in which the procedures ‘for the
handling of the Board record
and the date, time, place
and order ofthe Board hearings in PCB
03-221 have been discussed and
decided.
3.
On July
11, 2003,
I filed an original and
nine copies ofthe Village of Cary’s Objection to
the Petitioner’s Motion to Withdraw
Exhibits and Records from the
Board Offices with the
Pollution Control
Boar’d. The Village’s Objection was based in large part
on
the
fact that the
County
filed with the Board only one copy oftwenty tivo over-sized exhibits.
4.
On or about
July
1 7, 2003, I read the Board’s Clerk’s Office On-Line (“COOL”) web
postings for PGB 03-221,
and learned from
the description ofthe Hearing Officer’s
July
15,
2003 Order posted on the web page that
Petitioner’s Motion to Withdraw Exhibits
and
Records
from the Board’s Office had been granted. As the order itself
was not posted on the web,
I
called
the
Clerk’s office to
verify this
and
to obtain a copy and
learn
the
substance ofthe ruling. I
requested that the I-Iearing Officer’s order
be faxed to
me.
I was told that under Board policy
the
Clerk’s Office
could not fax it to me.
I then requested that the Clerk post the order on the web
page, ‘as are orders of the Board itself and
every other filing in Board cases.
The
Clerk’s
staff
agreed to review this request with Board counsel,
and
thereafter called me b,ack
and stated that
the Board,’ as a policy,
did not post Hearing
Officer’s orders and would not do so in this case
even in light of the significant public interest already expressed. Finally, I was told that the
Clerk’s staff
had been instructed, under Board policy, that the Village of Gary would be charged
25
cents per page for copies of Hearing Officer orders.
THIS
FILING
IS PRINTED
ON
RECYCLED PAPER
5.
Subsequently, I did receive a copy ofthe Hearing Officer’s July
15,
2003 order which, on
the subject ofthe Petitioner’s motion to withdraw the record, states
“On July
9, 2003, petitioners filed a motion to withdraw exhibits
and records.
On July
15,
2003,
the petitioners made an oral motion that the motion filed
July 9,
2003, be withdrawn. Petitioners’
motion
is granted.”
This Order leaves unclear which motion had been granted, the July
9, 2003 motion
to
remove the record or the July
15,
2003
oral motion withdrawing the prior motion. Because I and
my co-counsel representing the Village were excluded from the Status Conference and thus
were
unable to hear the discussion of these motions
or the Hearing Officer’s ruling,
I
have no
background
information with which to
clarify
this ruling
and advise our client.
6.
On Monday, July 21, 2003 I checked the Board’s web page and found the description of
the 1-learing Officer’s July
15,
2003
order had been
changed.
It now reads: “..~granted
petitioners’ oral motion to
withdraw their July
9, 2003 motion to withdraw exhibits
and
records;...
.“
7.
Based on
the
above series
of events and
what I have been told is Board policy, I and my
co-counsel and
our client, the Village of Gary, remain uncertain as to
:1) the content of time
Hearing Officer’s July
15,
2003
ruling on the removal of the record; 2) when there will be an
opportunity for public comment at the August
14, 2003
bearing; 3) whether the hearing will
include evem~inghours; and
4) whether the Petitioner or Respondent will be presenting witnesses
or new evidence. As a result, I and
my cot-counsel
have been hampered in our ability to prepare
for the August 14, 2003
hearing.
Further A’ffiant Sayeth NOt.
Signed
and
sworn before
me
this ~K~.ay’ of July, 2003.
~y~b
lie
~IC~AL”
Donna M. Draper
Notary Public
State of Illinois
My
Commission Exp. 03/25/2006
Sharkey
THIS
FILING
IS
PRINTED
ON
RECYCLED PAPER
CERTIFICATE OF SERVICE
Percy L.
Angelo,
an attorney,
hereby certifies that a copy ofthe
foregoing
Notice of
Filing
and Village of Gary’s Appeal of Hearing
Officer Determination and Request for Board
Direction was served on the persons listed below by UPS Next Day Delivery on
this 28th day of
July, 2003:
David
W. McArdle
Zukowski, Rogers, Flood&
McArdle
50
Virginia Street
Crystal Lake, IL
60014
Charles F.
Heisten
Hinshaw and Culbertson
100
Park A’yenue,
P.O.
Box 1389
Rockford, IL
61105-1389
Percy L. Angelo, Esq.
Patricia F.
Sharkey, Esq.
Kevin C. Desharnais, Esq.
Mayer, Brown, Rowe & Maw LLP
190 South LaSalle Street
Chicago, Illinois
60603
312-782-0600
Percy
.~.
Angelo
THIS DOCUMENT
HAS BEEN PRINTED
ON RECYCLED
PAPER
COPY
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
LOWE TRANSFER, INC. and
,
)
MARSHALL LOWE,
)
)
Co-Petitioners,
)
)
V.
)
PCB No. 03-22 1
)
(Pollution
Control Board
COUNTY BOARD
OF MCFIENRY
)
Siting Appeal)
COUNTY, ILLINOIS,
‘
)‘
)
Respondent.
)
NOTiCE
OF FILING
TO:
See Attached Certifi~ateof Service
Please take notice that on July
28, 2003,
we filed with
the Illinois Pollution
Control
Board an original
and’n,ine
copies of this Notice of Filing and Village ofGaiy’s Appeal of
Hearing Officer Determinations
and
Request for Board Direction, copies of which are attached
and hereby served upon you.
Dated:
July 28,
2003
VILLAGE OF
GARY
By:
One~ts
ttorneys~
Percy L. Angelo, Esq.
Patricia F. Sharkey, Esq.
Kevin C. Deshaniais, Esq.
‘
MAYER, BROWN, ROWE &
MAW’LLP
190
S. LaSalle Street
Chicago, Illinois 60603
(312) 782-0600
THIS DOCUMENT HAS
BEEN P1UNTED
ON
~CYCLED
PAPER
ci~iu’~~
PAGE
3/8
Righ’LFAX
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
LOWE TRANSFER,’I’NC.
and
)
MARSHALL LOWE.
‘
‘
)
)
Co-Petitioners,
)
)
PCB
03-221
VS.
)
(Pollution Control Board
)
Siting Appeal)
COUNTY BOARD
OF MCHENRY
)
COUNTY,
ILLINOIS,
)
)
Respondent.
)
VILLAGE OF CARY’S RESPONSE TO
PETITIONERS’ MOTION IN LIMINE
The Village of Gary (“Village”) is a public
body
representing its interests
and those
o’f its
citizens in
this proceeding.
The proposed Transfer Station site
is located directly
adjacent to
the
Village of Gary and
in
close proximity to the homes of
many Gary residents.
On behalfof the
residents of the Village of
Gary,
and
by and
through the
lawyers employed by
the Village to
represent its
citizens
in
this proceeding, the Village hereby provides its response to the
Petitioners’ Motion
in Lirnine.
1.
Given the unprecedented
relief requested by this motion and the potential that
a
ruling
on this
motion could limit the record in this case
in contravention of law, this motion
shoud
be decided by
the Board
rather than
the Hearing
Officer.
2.
Petitioner’s motion
is a self-serving attempt to
limit
public participation in this
proceeding to Petitioner’s advanrige
in contravention
of the
Environmental
Protection Act and
the Board’s
rulai
which encourage public participation
in
all
Board
proceedings.
The
General
Assembly’s stated
intent under the En~’ironmentalProtection Act
is to “increase pUblic
participation
in
the
task of protecting the
environment,”
415
ILCS
5/2(a)(v).
Section
.1 01.11
C)
ot
THIS
DOCUMEbrr
i-lAS
BEEN
PRINTED
ON
RECYCLED
PAPER
DUiIBIT
C
-l
-
to
J~&tionto
Strike
~~~‘i’
~u±u~u
n/~/U’J
~:~H
PAGE
4/8
RightFAX
the Board’s regulations states “The Board encourages public
participation in all of its
proceedings.”
35111. Admin.
Code
101.110)
In
the face
of this statutory and regulatory
mandate
encouraging pubiic participation,
ar
well
as the Board’s own order
i.n this case and
scores of other siting cases, Petitioner points to no statutes, regulations or case law which give
him
a right to
this unprecedented exclusion and/or
time limitations
on oral statements
by
the
public.
3.
In
addition
mo
offering
no
legal
support
for this
unprecedented request, Petitioner
offers no evidence suggesting there is aneed
to handle this hearing any differently than any of
the scores of other siting hearings the Board has held under
Section 40.1.
There is no
factual
basis
for believing that the citizens attending this bearing will
comment on matters outside the
record. ‘On the contrary,
the record in this case demonstrates that the citizens in large part
made
the
record before
the County Board
—
including the testimony in the record
of numerous
highly
pertinent expert witnesses presented
by the Village and other citizens.
Citizens who actively
participated in
the
County
Board proceeding have
no
need or reason to
go
outside the
record
in
this case to find support for the
County Board’s decision;
These
citizens are well versed
in
the
record and have
every right to highlight
for
the Board the portions
of the
record
that support
the
County’s decision
—
as
surely the Petitioner has a right to
highlight any
portions
of
the record
he
believes
the
Board
should focus on.
4,
While portraying
this motion as based on a concern
that the Board
will
be
confused
in the application of the manifest weight standard if citizens are
allowed to snake
ora.l
comments or speak too
long, the
Petitioner’s motion
requests relief that
goes
far beyond
admontshing citizens
(and. anyone else)
to limit their comments
to the
existIng record.
Rather,
Petitioner requests
that
the Board exclude
oral
comments by
the public
aJtoge/J~er
—
in
a blanket
Ti Its
DOCUMENT HAS
BEEN PRiNTED
ON
REC’~CLEDPArER
---~‘.,
‘..)/~±/o3~:aa
NAUE~
5/8
RIgIsEFAX
ruling.
Petitioner also attempts
to
limit even
the
reading of
writt~nstatements to five
minutes
—
on the assumption
that
a hundred
citizens
will want to comment.
But there is no evidence that a
hundred of citizens will want to
make oral
statements at t.his
hearing. Furthermore, given the
fact
that. therecord below is voluminous, limiting comment on
it to five minutes would be coUnter
productive.
To do
so
will
lorce members ofthe public to make only
general
comments, rather
than
provide specific comments
tied
to
the record.
TheVillage of Gary intends to
provide
focused, record-oriented comments
which will necessarily
take more than five
minutes. These
detailedcomments mayallow others to shorten their comments. But to arbitrarily limit the
Village’s or any other citizen’s comments to five minutes could jeopardize th~record in this
proc~edrng1
5.
As
a plethora ofBoard
siting opinions demonstrate, manifestweight of the
evidence is a standard ofreview regularly applied by theBoard. The Board hasbeen conducting
hearings under this
standard
since Section
40.1
was enacted. Contrary to Petitioner’s apparent
assumption, the Board
is perfectly
capable of assigning appropriate
weight to
inf’bnnation in
the
record and information presented at hearing.
It neednot be shieldedfrom public comment in
order to do
its job.
6.
Petitioner points
to a few
cases, and
only
one recent case, in
which the
Appellate
Court
over turned the Board’s decision in
a siting case as against
themanifest weight. But none
of these Appellate
Court
reversals were based on
a finding that the ‘Board gave improper
weight
to
a public comment made
in a Section 40.1
hearing.
The
fact that the
Appellate Gourt has
disagreed with the Board
in
a hand~lof cases on where to
draw the
line using the manifest
weight
standard does not
support the conclusion that
the
Board
must stop
accepting public
comment at its hearings.
Furthermore, should
the Petitioner believe that a public
comment
is
THIS
DOCUMENT
I-LAS
BEEN PRINTED
ON
RECYCLED
PAPER
-~,
~.
u.~o
visun
bI~
l-t.ightFAX
outside the record, he
has every
opportunity to
point that out
to
the Board in his
brief,
There
is
simply no
support for the proposition that the Board cannot appropriately
apply the standard or
I-C\’iCW
or that
allowing public comment will
somehow taint the record.
7.
The Board
encourages public participation
in
its proceedings,
and has always
allowed public
comment at hearings on siting appeals.
Typically, melnbers
of
the public
are
given significant leeway
in
presenting their
com.rncents.
In
our review of Board siting cases, we
found no
case in
which the
Board entered
a blanket
order excluding public comment in
Board
siting
appeal hearings
—
and
Petitioner has pointed
to none.
We also
found no case in
which the
Board limited public comment to
the “fundamental fairness”
issue
—
and again Petitioner has
pointed to none.
Finally, contrary
to Petitioner’s assertion,
the
Board’s taking
of public
comment
on whether the record
supports.the local siting
body’s decision has
never
been
construed as reversible error
—
and Petitioner has pointed
to no
case in
which it has.
8.
In fact, there is
very good reason the Hearing Officer should
no~
attempt to
limit
public conrinent in the hearing process.
The
far
greater
risk of reversible en-or is that
the
Hearing
Officer does as Petitioner
requests
ai~d
cuts-off public
comment in contravention of the
statute and regulations,
or,
at hearing, from
the bench,
without the benefit of eleven days of
County
Board hearing transcripts before
him, cuts-off valid publiccomment actually
highlighting the record or providing legal argument
on facts
in
the record.
This
would be
reversible error.
The record
in
this
case
is extensive and
the
Village
and individual
citizens from
both
Gary
and~othcrneighboring communities participated
in every day of
the
eleven
Count.)’
Board hearings.
We submit ‘that the likelihood
that the Hearing
Officer will mistakenly
cut-off
penineni
public
comment
is greater
than the risk that the Board will
be misled in
the
application
ofits standard of review because
a
member ofthe public strays from the record.
Tiiis
DOCUMENT HAS
BEEN PRINTED
ON
RECYCLED
PAPER
-4-
-.
-
.~.
~
~
.‘
i
o
nigflt/’
A~
9.
Finally, the Village fully agrees that
the standard
of review here i~
manifest
weight
and that the Board is limited
to
the record presented
to the County Board.
The
Village
would welcome an instruction from the hearing officer at hearing to
both
the parties and
the
public regarding
the Board’s
application of the standard
ofreview and
the need to
focus
on
information
contained in
the record.
WHEREFORE, Petitioner’s assertions are without merit and its Motion should be denied.
Respectfully
Submitted,
The Village of
Gary
bated:
August
4,
2003
‘By
On
O~f
it~sAttoi~neys
Percy L. Angelo
Patricia F.
Sharkey
Kevin C.
Deshamnais
Mayer, Brown, Rowe &
Maw,
LLP
190 S.
LaSalle Street
‘
Chicago, IL 60603-3441
(3 12) 782-0600
THIS
DocuMENT HAS
BEEN ‘PRINTED
ON RECYCLED
PAPER
~.‘
~
~
&.
0 /
0
rtightFAx
CERTIFICATE
OF SERVICE
Patricia F. Sharkey, an attorney, hereby certifies that a copy of the
foregoing Notice
of
Filing
and Village of Gary’s. Response to Petitioners’
Motion
in
Lim.ine was served
on
the
persons
listed below by facsimile
arid by
depositing same
in the
U.S.
Mail at or before 5:00 p.m.
on
this 4th
day of August 2003.
David
W.
McArdle
Z.ukowski, Rogers. Flood
&
McArdle
50 Virginia Street
Crystal
Lake, IL
60014
Facsimile:
815-459-9057
Hearing
Officer
Bradley P.
Halloman
Illinois
Pollution Control Board
James R.
Thompson Center
Suite
11-500
1 00
West Randolph Street’
Chicago, IL 60601
Facsimile:
312-814-3669
Patricia F. Sharkey
Attorney for 7illage of
Cary
Mayer, Brown, Rowe.& Maw LLP
1
90
South
LaSalle Street
Chicago, Illinois
60603
312-782-0600
Charles F.
Helsten
Hinshaw and Culbertson
100 Park Avenue, P.Q. Box
1389
Rockford,IL
61105-1389
Facsimile:
815-963-9989
~a’tricia
F. Sharke)~
THIS
DOCUMENT HAS
5EEN PRINTED
ON
RECYCLED
PAPER
ui~±//JO
,i:’iu
PAUt~
218
RightEAX
v.
COUNTY BOAFD OF
MCHENRY
COUNTY, ILLJNOIS,
Respondent.
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
LOWE T~NSFER,~TC.and
)
MARSHALL LOWE.
.
)
Co-Petitioners,
)
)
PGBNo.03-221
(Pollution
Control Board
)
Siting
Appeal)
NOTICE OF FILJNQ
TO:
See Attached Certificate ofService
Please take notice that on August 4, 2003,
we filed with the Illinois Pollution
Control
Board an original
and nine copies of this Notice
of Filing
and
Village of Ca.ry’s Response to
Petitioners’
Motion
in Limine,
copies of which
are
attached
and hereby served
upon you.
Dated:
August
4,
2003
VILLAGE OF GARY
By:
Percy L.
Angelo, Esq.
Patricia
F.
Sharkey, Esq.
Kevin 0. Desharnais,
Esq.
MAYER, BROWN, ROWE
& MAW LLP
190
S. LaSalle Street
Chicago, Illinois 60603
(312) 782-0600
One
THIS DOCUMENT
HAS BEEN PRiNTED
ON RECYCLED
PAPER
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~&PlaIt, Submitted
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.2.0.OQ.~Q20
((P.C. #4)
‘Village
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Hearing
7/28/2003
OffIcer Determinations
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Direction
Proposed
Rule,
Second
First Notice,
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Opinion
and
lopinion
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Order of the Board
by
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Proceeding
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is closed
18/17/1990
Rue,
Hnal
Opinion
and
3/1/1990
—7
Page
I
of
1
(31
iiiii.awo:iavich,
UV~~~’U
Case Maine
CDT Landfill Corporation v.
~Cityof Joliet
In the
Matter of:
Revision
of
the
Boards
Procedural
Rules:
35
Iii.
Adm.
Code
101-1.30
Lowe Transfer,
Inc.
and
liiCn_aQQ3122i~
Marshall Lowe v. County Board
of McHenry county,
Illinois
I(~
the
Matter
of:
Development, Operating
and
~ReportingRequirements
for
Non-Hazardous
Waste Landfills
(Entire record
in
R84-17
(incorporaled)
In
the
Matter
of:
Amendments
90-008
to
35
III.
Adm.
Code 105.102;
Repeal
of Oe
Novo
Hearing
for
Appeis
of NPDES
I~
lb
the
Matter of:
ioeveiopme.nt,
Operating
and
01908_007
lkeportlng
Requirements
for
—
-‘
(Non-Hazardous
Waste
Landfills1
(Entire
record
in
R8’l~17
incorporated)
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8/5/03
