BEFORE
THE
RECEIVET~
ILLINOIS POLLUTION
CONTROL BOARD
CLERK’S
OFFICE
LOWE TRANSFER, NC.
and
)
AUG
4
2003
MARSHALL LOWE,
)
)
STATE OF ILLINOIS
Co-Petitioners,
)
Pollution
Control
Board
)
v.
)
PCB No. 03-221
)
(Pollution Control Board
COUNTY BOARD OF MCHENRY
)
Siting Appeal)
COUNTY, ILLINOIS,
)
)
Respondent.
)
NOTICE OF FILING
TO:
See Attached Certificate of Service
Please take notice that on August 4, 2003, we filed with the Illinois Pollution
Control
Board an original
and nine copies ofthis Notice ofFiling and Village of Cary’s Response to
Petitioners’ Motion in
Limine, copies ofwhich are attached and hereby served upon you.
Dated: August 4, 2003
VILLAGE OF
CARY
By:___________
One o
its
At~tomeys
Percy L. Angelo, Esq.
Patricia F. Sharkey, Esq.
Kevin
G. Desharnais, Esq.
MAYER, BROWN, ROWE & MAW LLP
190
S. LaSalle Street
Chicago, Illinois 60603
(312) 782-0600
THIS DOCUMENT HAS
BEEN
PRINTED ON RECYCLED PAPER
RECEIVED
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD CLERK’S
OFFICE
LOWE TRANSFER, NC.
and
)
AUG
4
2003
MARSHALL LOWE,
)
STATE OF ILLINOIS
)
Pollution Control Board
Co-Petitioners,
)
)
PCBO3-221
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 ofCary (“Village”) is a public body representing its interests and those of its
citizens
in this proceeding.
The proposed Transfer Station site is located directly adjacent to the
Village ofCary and in
close proximity to the homes of many Cary residents.
On behalfof the
residents of the Village ofCary, 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
Limine.
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 oflaw, this motion
should 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 advantage in contravention ofthe Environmental Protection Act and
the Board’s rules which encourage public participation in all Board proceedings.
The General
Assembly’s stated intent under the Environmental Protection Act is to “increase public
participation in the task ofprotecting the environment.”
415
ILCS
5/2(a)(v).
Section
101.110 of
THIS
DOCUMENTHAS BEEN
PRINTED ON RECYCLED PAPER
—1—
the Board’s regulations states “The Board encourages public participation in all of its
proceedings.”
35111. Admin.
Code 101.110)
In the face ofthis statutory and regulatory
mandate encouraging public participation, as well as the Board’s own order in this case and
scores ofother 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 to offering no legal
support for this unprecedented request, Petitioner
offers no evidence suggesting there is a need 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
hearing 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 ofnumerous 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 ofthe record that support the
County’s
decision
—
as surely the Petitioner has a right to highlight any portions ofthe 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 ofthe manifest weight standard if citizens are allowed to
make oral
comments or speak too
long, the Petitioner’s
motion requests relief that goes far beyond
admonishing citizens (and
anyone else) to limit their comments to the existing record.
Rather,
Petitioner requests that the Board exclude oral comments by the public
altogether
—
in a blanket
THIS
DOCUMENT HAS BEEN
PRINTED ON
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ruling.
Petitioner
also attempts to
limit even the reading of
written statements to five minutes
—
on the assumption that
a hundred citizens will want to
comment.
But there is no evidence that a
hundred ofcitizens will want
to make oral statements at this hearing.
Furthermore, given the fact
that the record below is voluminous, limiting comment on it to five minutes would be counter
productive.
To do
so will force members of the public to make only
general comments, rather
than provide specific comments
tied to the record.
The Village of Cary intends to provide
focused, record-oriented comments which will necessarily take more than five minutes.
These
detailed comments may allow others
to shorten their comments.
But to arbitrarily limit the
Village’s or any other citizen’s comments to five minutes could jeopardize the record in this
proceeding.
5.
As a plethora of Board siting opinions demonstrate, manifest weight ofthe
evidence is a standard ofreview regularly applied by the Board.
The Board has been conducting
hearings under this standard since Section
40.1
was enacted.
Contrary to Petitioner’s apparent
assumption, the Board is perfectly capable ofassigning appropriate weight to information in
the
record and information presented at hearing.
It need not be shielded from 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 the manifest weight.
But none
ofthese 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 Court has
disagreed with the Board
in
a handful ofcases 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
Ti-us
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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
review 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, members ofthe public are
given significant leeway in presenting their comments.
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 whetherthe 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
not
attempt to
limit
public
comment in the hearing process.
The far greater
risk of reversible error is that, the
Hearing Officer does as Petitioner requests and cuts-off public comment in contravention of the
statute and regulations, or, at hearing, from the bench, without the benefit ofeleven days of
County Board hearing transcripts before him, cuts-offvalid
public comment 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 Cary and other neighboring communities participated in
every day ofthe eleven County
Board hearings.
We submit that the likelihood that the Hearing Officer will.mistakenly cut-off
pertinent public comment is greater than the risk that the Board will be misled in the application
of its
standard of review because a member ofthe public strays from the record.
THis
DOCUMENT HAS
BEEN PRINTED ON RECYCLED PAPER
-4-
9.
Finally, the Village fully agrees that the standard ofreview here is 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 ofthe 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 Cary
Dated: August 4, 2003
By
V
On~
ofits Attorneys
\
Percy L. Angelo
Patricia F.
Sharkey
Kevin 0. Desharnais
Mayer, Brown, Rowe & Maw,
LLP
190
S. LaSalle Street
Chicago, IL 60603-344 1
(312) 782-0600
THIS DOCUMENT
HAS
BEEN PRINTED ON RECYCLED PAPER
-5-
CERTIFICATE OF SERVICE
Patricia F.
Sharkey, an attorney, hereby certifies that
a copy ofthe foregoing Notice of
Filing and Village of Cary’s Response to Petitioners’ Motion in
Limine was served on the
persons
listed below by facsimile and 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
Zukowski, Rogers, Flood
&
McArdle
50 Virginia Street
Crystal Lake, IL
60014
Facsimile:
815-459-9057
Hearing Officer
Bradley P. Halloran
Illinois Pollution Control Board
James R. Thompson Center
Suite 11-500
100 West Randolph Street
Chicago, IL 60601
Facsimile: 312-814-3669
Patricia F.
Sharkey
Attorney for Village ofCary
Mayer,
Brown, Rowe & Maw LLP
190 South LaSalle Street
Chicago, Illinois
60603
312-782-0600
Charles F. Helsten
Hinshaw and Culbertson
100 Park Avenue, P.O. Box
1389
Rockford, IL 61 105-1389
Facsimile: 815-963-9989
THIS
DOCUMENT HAS BEEN
PRINTED
ON RECYCLED PAPER