co~v
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
LOWE TRANSFER,
INC.
and
MARSHALL LOWE,
vs.
Co-Petitioners,
COUNTY BOARD OF
McHENRY
COUNTY, ILLINOIS
Respondents.
F~
E ~C
E ~
V
ED
CLERK’S
QF~T(’T
~\UG 62003
Facility Siting Appeal)
STATE OF
ILLINOIS
Pollution Control Board
NOTICE
OF FILING
TO:
See List Referenced in Proof of Service
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 REPLY
TO
THE
COUNTY
BOARD
OF MCHENRY’S RESPONSE TO
MOTION IN LIMINE
in the above
entitled matter.
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 Reply on the
following parties by depositing same
in the
U.
S. mail on this
5TH
day of August,
2003
and
via fax on the 5~’day
of August, 2003:
Attorney for county Board of
McHenry county,
Illinois
Charles
F. Helsten
Hinshaw
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
me th~(5 day of A~ us
,
2003
~/
ai~LJ1B/~
Notary Public
Hearing
Officer
Bradley P.
Halloran
Illinois
Pollution Control Board
James R.
Thompson Center, Suite 11-500
100 West Randolph Street
Chica~o.
IL
60601
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David W. McArdle
Attorney Registration No.
06182127
ZUKOWSKI ROGERS
FLOOD &
MCARDLE
50 Virginia Street
Crystal Lake, Illinois
60014
(8.15) 459-2050
)
)
)
No. PCB
03-221
)
(Pollution Control
)
)
)
31
14-3669
This document is printed on recycled paper.
BEFORE
THE ILLINOIS POLLUTION
CONTROL
BQ’~IThCEiVED
CLERK’S
OFFICE
LOWE TRANSFER, NC.
and
)
AUG
6
200~
MARSHALL LOWE,
)
Co-Petitioners,
)
No.
PCB 03-22 1
STATE OF ILLINOIS
)
Pollution
Control Board
Vs.
)
(Pollution Control Facility
)
Siting Appeal)
COUNTY
BOARD
OF McHENRY
)
COUNTY, ILLINOIS
)
Respondent
)
CO-PETITIONERS’
REPLY TO
THE
COUNTY BOARD OF MCHENRY’S
RESPONSE TO
MOTION IN LIMINE
Co-Petitioners, Lowe Transfer, Inc. and Marshall Lowe (“Lowe”), by and
through its
attorneys, Zukowski, Rogers, Flood. & McArdle, respectfully request the Pollution Control Board
deny the County Board of McHenry’s (the “County Board”) Response to Motion in
Limine in
this
siting appeal.
In support of its reply, Lowe states as follows:
1.
On July 28, 2003, Lowe
filed a Motion in
Limine in this
siting appeal.
2.
The Motion in Limine requested the Pollution Control Board
enter an order, in
limine, restricting the scope ofthe hearing to be conducted on August 14, 2003,
to
preclude
Section 101.628(a) oral statements or, in the alternative, to
limit the time for Section
10 1.628(a)
oral statements, if allowed, to five minutes per participant
in the event the total number of
participants is
25
or more and,
additionally, limit all Section
101 .628 statements by parties and
participants to the record generated in the proceeding before the County Board.
3.
The County Board, in its
response, misreads the Board’s rules of procedure.
The
County Board argues that the Board rules
“explicitly provides that participants who wish to make
THIS
DOCUMENT IS PRINTED
ON RECYCLED PAPER
comments will be allowed the opportunity to do
so”.
County’s
Response to Motion in Limine,
p.
3.
4.
Yet what Section
107.404 really states
is:
“Persons who are not parties
as set forth in
Section
107.202 ofthis
Part are considered participants and
will have hearing
participation
rights
as determined
by
the hearing
officer
in
accordance with 35
Ill.
Adm.
Code
101.628.
(Emphasis added.)
5.
Section
101.628(a)
in pertinent part states:
“Oral
Statements.
The hearing officer ~
permit a participant to
make oral statements on the record
when
time, facilities, and
concerns
for a clear
and
concise hearing record so allow.
(Emphasis added.)
6.
Section
lOl.628(c)(2) states:
“All
public comments must present arguments or comments
based
on the evidence contained in the record.”
7.
Lowe’s siting appeal is
based solely on the manifest weight ~f the evidence in the
record regarding Criteria 2,
3
and
5.
8.
The County Board asserts, in
its response, that the “proposition that the Pollution
Control Board must review the record developed at the local siting hearing under a manifest
weight of the evidence standard is
simply irrelevant”.
County’s Response to Motion in Limine,
p.4.
9.
Not only is the as to
the manifest weight of the evidence standard relevant to
statements made at the public hearing, it is the
only standard that can be applied in this
siting
appeal.
.
2
THIS DOCUMENT IS PRINTED
ON RECYCLED PAPER
1 0.
The record
in this
siting approval application
is voluminous.
“Unlimited public
comment”, as proposed by the County Board,
is contrary to the Board’s rules “for
a
clear
and
concise hearing record.
11.
Lowe’s Motion in
Limine was a simple request given the nature ofthis
siting
appeal to
restrict oral arguments to
the parties or limit public comment to a reasonable time
frame and to confine the public comment to
the record
and prevent the presentation of evidence
outside of the record.
WHEREFORE, Co-Petitioners, Lowe Transfer, Inc.
and Marshall Lowe, request that the
County Board of
McHenry’s
Response to Motion in
Limine be denied.
Respectfully submitted,
LOWE TRANSFER, iNC.
and
MARSHALL
LOWE
By:
zukowski, Rogers, Flood
& McArdle
By:___________
David W. McArdle
David W.
McArdle
Attorney No: 06182127
ZUKOWSKI, ROGERS, FLOOD &
MCARDLE
Attorney for Lowe Transfer, mc, and
Marshall Lowe
50 Virginia Street
Crystal Lake, Illinois
60014
815/459-2050; 815/459-9057
(fax)
3
THIS
DOCUMENT IS PRINTED
ON RECYCLED PAPER