V.
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
LOWE TRANSFER, iNC. and
MARSHALL LOWE,
Co-Petitioners,
COUNTY BOARD OF MCHENRY
COUNTY, ILLINOIS,
Respondent.
)
)
RECEiVED
CLERK’S OFFf~
JUL
282003
STATE OF ILLINOIS
)
Pollution
Control Board
)
)
PCB No. 03-221
)
(Pollution Control Board
)
Siting Appeal)
)
)
)
NOTICE OF FILING
TO:
See Attached Certificate ofService
Please take notice that on July 28, 2003, we filed with the Illinois Pollution Control
Board an original and~nine
copies ofthis Notice ofFiling and Village ofCary’s Appeal of
Hearing Officer Determinations and Request for Board Direction,
copies ofwhich are attached
and hereby served upon you.
Dated: July 28,
2003
VILLAGE OF CARY
By
Percy L.
Angelo, Esq.
Patricia F. Sharkey, Esq.
Kevin G. Deshamais, Esq.
MAYER,
BROWN, ROWE &
MAW LLP
190
S. LaSalle Street
Chicago, Illinois 60603
(312) 782-0600
THIS DOCUMENT HAS BEEN
PRINTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOA~ECE~VED
CLERK’S
o~~’t~
LOWE TRANSFER,
INC. and
)
MARSHALL LOWE,
)
JUL
2
82003
STATE OF
ILUNC)IS
Co-Petitioners,
)
poIlut~onControl Board
)
PCBO3-221
vs.
)
(Pollution Control Board
)
Siting Appeal)
COUNTY BOARD OF MCHENRY
)
COUNTY, ILLINOIS,
.
)
)
Respondent.
)
VILLAGE OF CARY’S
APPEAL
OF HEARING OFFICER
DETERMINATIONS AND REQUEST FOR BOARD DIRECTION
The Village ofCary (“Village”) on behalf ofthe Village and its residents, by and through
its attorneys, hereby appeals the determinations ofthe Hearing Officer in this matter limiting the
ability ofthe Village and its citizens to participate in and be informed regardingthe status ofthis
action, requests that the Board clarify, and 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 ofits motion, the Village states as
follows:
FACTUAL
BACKGROUND
1.
In order to allow the Village and its citizens to remain fully informed of the status
ofthis 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 ofCary 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 are not otherwise publicly accessible.
Attorneys for the Village offered to come to the Board
offices to listen to status
conferences if that would facilitate matters.
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 attorney-client privilege in discussions between opposing parties before the Hearing
Officer forthe Board.
The Hearing Officer further stated that the Village could appeal the
Hearing Officer’s
ruling to the Board.
3.
The Hearing Officer also informed the Village that it was not allowed to receive
copies of Hearing Officer orders, but could purchase copies thereoffrom the Clerk’s Office if the
Village so desired.
The Hearing Officer orders are also not available on the Board’s website.
4
To date, two
status conferences 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 Hearing 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 comment 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 ofthe McHenry County Board’s
decision for its personal use.
While a written order was eventually issued indicating that “the
motion” was granted, it was unclear which motion was
in fact granted, and whether Petitioner
2
THIS FILING IS PRINTED ON
RECYCLED PAPER
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 ofCary 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 forparticipation 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 Officerto allow the Village to participate in or audit
the status conferences in this matter.
Further, given the demonstrated extensive public interest in
this proceeding, the Village requests that the Board direct the Hearing Officer to
schedule an
evening public 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 the
Village was excluded.
On July
15,
2003, the Hearing Officer issued a Notice ofHearing in this
matter, setting forth the proposed hearing schedule.
The notice contains a barebones statement
merely identifying the hearing date, time, and location (10:30 a.m.
on August 14,
2003, at the
Cary Junior High Gymnasium.)
While the information provided in the notice is unremarkable,
what is significant is the information which the notice
fails to provide.
The Notice ofHearing
provides no information regarding hearing procedures, no information regarding the proposed
order ofproceedings, and
no direction or guidance regarding the time for public comment or
participation. Although Section
107.404
ofthe Board’s regulations governing these hearings
3
THIS
FILING IS PRINTED ON
RECYCLED PAPER
requires that “Participants may offer comment at a specifically determined time in the
proceeding...,” 35 Ill. Admin. Code
107.404, the HearingNotice fails to specify when public
comment will be heard. Furthermore, the notice does not address or provide for evening hours to
accommodate working members ofthe public who wish to attend and participate in the hearing.
9.
Section
10 1.110 ofthe Board’s regulations states “The Board encourages public
participation in all ofits proceedings.” In keeping with this stated goal, in the past, 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 must work during business hours.
Clearly, a different approach has been followed
here.
In the present matter, at leastforty-two public comments have already been filed (both
from residents ofCary and others), demonstrating significant public interest in the proposed
hearing.
In many ofthese, commenters 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 regardingpublic
participation, and makes
no arrangements for
an
after-hours comment period.
Apparently, it leaves citizens with no option but to show up at
10:30 a.m. orpotentially 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 ofprotecting the environment,” 415 ILCS
5/2(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 ofCary.
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 contrary, the Village
4
THIS FILING IS PRINTED ON RECYCLED PAPER
believes that the record in this matter is exceptionally
strong and
fully supports the McHenry
County Board’s decision denying siting approval.
The strength of the record is due in large part
to the Village’s participation in the proceeding below, including the presentation of a number of
expert witnesses.
In contrast to Petitioner’s unfounded
assertions regarding the Village’s
intentions,
the Village intends to focus its efforts
in this proceeding on demonstrating the
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 ofthe public from status conferences is
being used by Petitioner to attack the credibility ofthe objectors.
Opening such proceedings to
the public
is essential to protecting them from misuse.
12.
Public Access to the Record. As set forth in the Village’s July
11
,
2003 Objection
to Plaintiff’s Motion, allowing Plaintiff’s removal ofexhibits and records from the Board Office
could significantly impact public participation by making portions ofthe record unavailable for
review by others, particularly since a prior Hearing Officer ruling at the July 7, 2003 status
conference granted respondent McHenry County’s motion to filed limited copies ofthe record,
resulting in only a single copy ofsome
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 ofexhibits and records from the Board’s offices would
specifically contravene Section 7(a) ofthe Act which requires that” all files, records, and data of
.the Board
shall be
open to reasonable public inspection...” 415
ILCS
5/7(a)
5
THIS FILING
IS PRINTED ON RECYCLED PAPER
PRAYER FOR RELIEF
WHEREFORE, the Village of Cary requests that the Board reverse 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 ofnormal business hours as part ofthe proposed hearing,
preferably in the evening, so as to facilitate public participation by members ofthe public who
cannot attend during normal business hours.
Finally, it is requested that the Hearing Officer be
requested to clarify his order regarding withdrawal ofthe 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 documents remains available atthe Board’s offices.
Respectfully Submitted,
The Village of Cary
Dated: July 28, 2003
By
L
One o~
its Attorn
s
Percy L. Angelo
Patricia F.
Sharkey
Kevin G. Desharnais
Mayer, Brown, Rowe & Maw
190 5. LaSalle Street
Chicago, IL
60603-3441
(312) 782-0600
6
THIS FILING
IS
PRINTED ON RECYCLED PAPER
STATE OF ILLiNOIS
)
)
SS:
COUNTY OF COOK
)
AFFIDAVIT
OF PERCY L. ANGELO
Percy L. Angelo, being duly sworn on oath, deposes and states:
1.
I am an attorney representing the Village ofCary in Illinois Pollution Control
Board matter PCB 03-221.
I previously represented the Village ofCary in the underlying
Pollution Control Facility Siting hearings held by the McHenry County Board.
2.
On July 7,
2003 I contacted Bradley Halloran, the Hearing Office in this matter,
to request that the Village of Cary 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 if that would
facilitate matters.
3.
Mr. Halloran refused to allowthe Village ofCary 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 that the Village ofCary could not
listen to
status conferences,
and if the 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 ,,~1~1~day
ofJuly, 2003.
~
C~L~
Notary Public
r~ICIA~E~1
Donna M. Draper
Notary Public, State of Illinois
My Commission Exp. 03/25/2006
THIS
DOCUMENT IS PRINTED ON RECYCLED PAPER
County ofCook
)
SS.
State ofIllinois
)
AFFIDAVIT
OF PATRICIA F. SHARKEY
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
Cary in Illinois Pollution Control Board
matter PCB 03-221. I previously represented the Village ofCary in the underlying Pollution
Control Facility Siting hearings held by the McHenry County Board.
2.
On behalfofmy client, the Village of Cary, I had a telephone conversation with Mr.
Bradley Halloran, the assigned Hearing Officer in PCB 03-221, on July
1, 2003.
In that
telephone conversation, I requested that the Village ofCary be allowed to participate
in the
telephonic status conference scheduled forJuly 7, 2003. Mr. Halloran denied that request stating
that only persons representing parties in the appeal are allowed to participate in status
conferences in
Pollution Control Facility Siting appeal cases. He further stated that telephonic
status calls are not open to members ofthe public.
3.
Based on the Hearing Officer’s ruling, both I and my co-counsel representing the Village
ofCary have been excluded from telephonic status conferences in which the procedures for the
handling ofthe Board record and the date, time, place and
order ofthe Board hearings in PCB
03-22 1 have been discussed and decided.
3.
On July
11, 2003, I filed an original and nine copies ofthe Village ofCary’s Objection to
the Petitioner’s Motion to Withdraw Exhibits and Records from the Board Offices with the
Pollution Control
Board. The Village’s Objection was based in large part on the fact that the
County filed with the Board only one copy of twenty two over-sized exhibits.
4.
On or about July
17, 2003, I read the Board’s Clerk’s Office On-Line (“COOL”) web
postings for PCB 03-221, and learned from the description of the 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 learnthe substance ofthe ruling. I
requested that the Hearing Officer’s order be
faxed to me. I was told that under Board policy the
Clerk’s Office could not fax itto me. I then requested that the Clerk post the order on the web
page, as are orders ofthe 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 back 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 ofCary would be charged
25 cents per page for copies of Hearing Officer orders.
THIS FILING
IS PRINTED ON
RECYCLEDPAPER
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 orthe 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 ofthese 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 Hearing 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 ofevents and what I have been told is Board policy,
I and my
co-counsel and ourclient, the Village ofCary, remain uncertain as to :1) the content ofthe
Hearing
Officer’s July
15,
2003 ruling on the removal ofthe record
;
2) when there will be an
opportunity forpublic
comment at the August
14, 2003
hearing; 3) whether the hearing will
include evening hours; and 4) whether the Petitioner or Respondent will be presenting witnesses
or new evidence. As a result, I and my co-counsel have been hampered in our ability to prepare
for the August 14, 2003
hearing.
Th
Notary Public
~
Donna M. Draper
~
Notary
Public, State of Illinois
~
My Commission Exp. ~
THIS FILING IS PRINTED ON
RECYCLED PAPER
Further Affiant Sayeth Not.
Signed ~nd sworn before me
this,2(~ayofJuly, 2003.
Sharkey
CERTIFICATE OF SERVICE
Percy
L.
Angelo, an attorney, hereby certifies that a copy ofthe foregoing Notice of
Filing and Village ofCary’s Appeal ofHearing 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.
Helsten
Hinshaw and Culbertson
100 Park Avenue, P.O. Box 1389
Rockford, IL 61105-1389
Percy L.
Angelo, Esq.
Patricia F.
Sharkey, Esq.
Kevin G. Desharnais, Esq.
Mayer, Brown, Rowe &
Maw LLP
190 South LaSalle Street
Chicago, Illinois 60603
312-782-0600
Angelo
(1
THIS DOCUMENT HAS
BEEN PRINTED ON RECYCLED PAPER