HI
NSHA”l
8
~ULBERTSON
Fax:815—963—9969
Aug
4
2003
16:31
P.
Dl
RECEIVED
~
AUG
52003
CLERK~SOFFICE
TTORNEYS
AT
LAW
~L~ev1LLE.
ELUNOIS
100 Park Avenue
LOS
~T~E9F
ILUNOIS
CI-IAMPA1GN,ILLfl’1O~5
P.O.
Box 1389
SANPO~hA~J~QJ~OI
Board
CHICAGO.
ILLJNO1S
Rockford,
IL
61105-1389
FT.
LAUDEtDALa,
FLORIDA
CRYSTAL
L’Y~.E,
ILLINOIS
iOU8T.
ILLINOIS
815-490-4900
JACKSONVILL~,
FLORIDA
U5LE.LUNOIS
Eacsimjle 8
15490-4901
PEOPJA. ILLINOIS
www.hjnshawculbertsonco1n
TAN?A. FLORIDA
SCarRERvILLa
fl’1DIANA
ROCKFORD.
ILLrNOIS
IvNaAFOL~
MNSSOTA
SPRINGFJSLD. ILLINOIS
h1loyd@hjnshawIawco~
Sr. t.ouis. I’xrssouiu
W.~JjKSGAN,ILLI1~OIS
NLW
YORK, N2W
YORK
PHOeNIX. ARIZONA
AFFLCTON,
WISCONSIN
NILWAUK.P.E, WISCON5IN
FACSIMILE
TRANSMISSION
TO:
FAX NO.:
PHONE NO.:
David
McArdle
Zukowski, Rogers. Fl~4
Ardle
815/459-9057
Dorothy
Gunn
IPCB
312/814-3669
Bradley
Halloran
fl’CB
-
Hearing
Officer
312/814-3669
DATE;
August 4,2003
FROM~
Heather K. Lloyd
USER II)
MATTER
NAME:
Lowe Transfer
MATTER NO.:
830017
NO. OFPAGES (~nc1uding
this
Cover):
SENDING OPERATOR;
Dawn
COMMENTS, IFANY:
HARD
COPY;
~
Will follow
by mail
~
Will follow by overnight mail
~
Will not follow
If you
do
not
receive
the
number of pages
listed
above7
please cafl
the number indicated
above.
The
documents that accompany
this
facsImile
contain
conlidential
and privileged Information
and
are
intended
soleJy
for
the
u~eof the individual or
entity
to whom
this
tr~osmissionis directed.
Any
disclosure of the information herein
is
unauthorized and strictly prohibited.
If you
are
not the
Intended
recipient
of this facsimile7 please
respond
by facsimile
to the number
above
or
call the sending operator
at our
expense immediately so
that we rosy arrange for the
return
of this
document to
us at no cost to
you.
Thank you.
/
C)
HI
HSHA”
8
DULBE~TS0N
Fax: 615—963—9969
Aug
4
2003
16:31
P.02
ILLINOIS POLLUTION CONTROL BOAIW
LOWE TRANSFER, iNC. and MARSHALL
)
LOWE,
)
)
Petitioners,
)
)
vs.
)
Case No.
PCB 03-22 1
)
COUNTY BOARD OF MCHENRY COUNTY.)
ILLINOIS
)
Respondent.
)
NOTICE OF FILING
TO:
See Attached
PLEASE
TAKE NOTICE that on the 4th day ofAugust, 2003, we mailed for filing with
the
Illinois Pollution
Control Board,
the
attached Response
to
Motion in Limine,
a
copy
of
which is attached hereto.
Respectfully Submitted,
On behalf ofthe County Board of MeHenry
County, Illinois
By: Hinshaw & Culbertson
I
)i~h~-~
(~Lj
Charles F. Heisten
HJNSHAW & CUI~BERTSON
100 Park Avenue
P.O. Box
1389
Rockford,
Illinois
61105-1389
815/490-4900
815/490-4901
(fax)
70371t55v1
~3IXI~7
HI
r~SHA” &
CIJLBERTSON
Fax:615—963—9989
Aug
4
2003
16:31
P.
03
ILLINOIS POLLUTION CONTROL BOARD
LOWE TRANSFER, INC. and MARSHALL
)
LOWE
)
)
Petitioners,
)
)
vs.
)
Case No.
PCB 03-221
)
COUNTY BOARD OF McHENI~YCOUNTY,)
ILLINOIS
)
Respondent.
)
RESPONSE TO MOTION IN LIMINE
NOW
COMES
COUNTY
BOARD
OF
McHENRY
COUNTY,
ILLiNOIS,
through
its
attorneys, HIINSHAW
&
CULBERTSON.
and
hereby moves
the Pollution
Control Board to
deny
Co-Petitioners,
LOWE
TRANSFER,
INC.
AND
MARSHALL
LOWE’s
Motion
in
Lirnine
to
preclude oral statements, limit public comments and
limIt all
statements by parties and participants,
and in support thereof, states as follows:
1.
LIMITING
AND/OR
RESTRICTING
PUBLIC
COMMENTS
AND
PUBLIC
STATEMENTS
IS
INCONSISTENT
WITH
THIS
BOARIYS
PREVIOUS
RULING
IN THIS
CASE.
On June
5,
2003, Petitioners, Lowe Transfer, Inc.
and Marshall Lowe,
filed a petition
asking
the
Board
to
review the May
6,
2003
decision of the County
Board
of McHenry,
Illinois,
which
denied
siting approval
for a municipal
solid waste
transfer facility.
On June 19,
2003,
Village of
Cary filed a motion to intervene in the siting appeal.
This Board denied Village ofCary’s motion
to
intervene
in
Lowe
Transfer Inc.
and Marshall Lowe v.
County Board ofMcHenry
County, Illinois,
PCB
03-221
(July
10,
2003),
2003
WL
21753698,
slip
op.
at
*1.
In
its
decision,
this
Board
specifically provided:
“Cary may, however,
contribute oral or written statements at hearing in this
matter in accordance with
Sections
101.628
and
107404 of the
Boards procedural mies, but may
not
examine or cross-examine
witnesses.
Cary may also
participate through public
comments
or
HI
NSHA”
&
CULHEPTSON
Fax: 615—963—9969
Aug
4
2003
16:31
P.
04
amicus
curiae
briefs
pursuant
to
Section
lOl.1l0(c),
and
in
accordance with
Section
101.628.’
(Citations
omitted), slip op.
at ~‘2.
Because this
Board has explicitly held that
participants
who are not
parties to
this
appeal
have
the
right
to
contribute
oral
arid written statements and participate
through public
comments,
this
Board
should not now reduce or limit the rights ofthe participants to
do
so.
Such a
decision
would be contrary to
this Board’s previous decision and also contrary
to
the general spirit and intent
of landfill
siting
proceedings
in
Illinois,
as
set
forth
in
sections
39.2
and
40.1
of the
Illinois
Environmental
Protection
Act.
Consequently,
this
Board
should
deny
Petitioners’
Motion
in
Lirnine.
2.
LIMITING
AND/OR
RESTRICTING
PUBLIC
COMMENTS
AND
PUBLIC
STATEMENTS
IS
INCONSISTENT
WITH
POLLUTION
CONTROL
BOARD
POLICY
AND
PROCEDURE.
The Pollution Control Board has
a policy of
encouraging
public
participation
in
matters such
as the present case.
In fact,
Section
101.110 of
the
Board’s procedural
rules
specifically provides:
“The
Board
encourages
public
participation
In
~j
of its proceedings.”
(Emphasis
added.)
35
Ill.
Adm.
Code
101.110.
Furthermore, Section
107.404 provides:
“Persons who
are
not
parties..
.
are
considered participants and will have
hearing participation rights
in
accordance with
35
Iii.
Adm.
Code
101.628.”
35
IlL
Adm.
Code
107.404.
Additionally,
the Board has
explained that
Section
40.1
of the
Environmental
Protection
Act
is
“intended
to
offer
the public
and
interested persons
opportunity to participate through testimony andlor written statements.”
(Emphasis added.)
Waste
Management of Illinois,
Inc
v. Lake
County Board,
PCB
87-75
(Oct.
15,
1987).
Consequently,
Petitioners’ request
to limit public
participation is
contrary
to
the Board’s policy
of encouraging
public participation, and, as a result, Petitioners’ Motion in Limine should be denied.
Furthermore, Petitioners
have
no
right
to
invoke the limits
and restrictions
that
they have
requested in their Motion in Limine.
Several sections
ofthe Illinois
Administrative
Code provide
2
H
INSHA”
&
CULBERTSON
Fax:615-963-9969
Aug
4
2003
16:31
P.05
that
participants and interested parties are
to be
afforded certain rights of comment and
input.
For
example, Section
107.404
provides: “Participants
may offer
comment at a specifically determined
time
in
the
proceeding.”
This
section
explicitly
provides
that
participants
who
wish
to
make
comments
will be
allowed the opportunity
to
do
so.
Furthermore,
Section
101.628
provides
that
participants
should
be
allowed to
make oral statements, written statements, public
comments
arid
submit amicus curiae briefs.
35
Ill.
Ad/n. Code
101.628.
Specifically,
Section
101.628(a) provides that the hearing officer maypennit participants to
make oral
statements on the record when the time,
facilities and
concerns
for a clear
and
concise
hearing record so allow.
35
Ill.
Adni.
Code
101.628(a).
Based
on
Sections
lOL 110
and
107.404
and
the
Board’s
policy
of
encouraging
public
participation
in
Board
hearings,
it
would
be
inappropriate
for
a
bearing
officer
to
deny
and/or
limit participants
the right
to
make
Section
101.628(a)
oral statements.
Because public
participation
is
clearly
encouraged by
the
Pollution
Board,
it
would
be
inappropriate
to
preclude
Section
101.628(a)
oral
statements
by
granting
Petitioners’ Motion in Limine.
Consequently, the Board should deny Petitioners’ request to preclude
Section 101.628(a)
oral statements.
Furthermore,
Petitioners
have no
right to the
limitatIons that they have requested regarding
Section
101.628(b) written statements.
Section
101.628(b) provides: “Any participant may submit
written
statements
relevant
to
the
subject
matter
at
any
time
prior
to
hearing
or
at
hearing.
Participants submitting such a statement will be subject to cross-examination by any party.”
35
111.
Adm.
Code
101.628(b).
The hearing officer does not
have authority under Section
101.628(b) to
disallow participants from providing
Section
101.628(b) written statements,
and,
therefore,
should
also
have no
authority
to
limit the
time
for such
statements.
Limiting
such statements would be
contrary
to
the
specific
mandates
of
Section
10L628(b),
which
allows
participants
to
unconditionally
submit written statements “at any time prior to hearing of at hearing.”
35
Ill.
Ad/n,
3
HINSHA”,’
&
SULBERTSON
Fax:615—963—9969
Aug
4
2003
16:32
P.06
Code
101.628(b).
Consequently,
the Board
should
deny Petitioners’ request to
limit the time
for
Section 101.628(b) written statements.
Finally,
this
Board
should
deny Petitioners’ request to
limit Section
101.608
statements
to
the record generated in the proceeding before the McHenry County Board.
As set forth above, the
Board should not allow Section
101.628(a) oral statements to be limited in any way.
Furthermore,
the
Board
should
not
in
any way
limit
Section
10 1.628(b)
written
statements
because
Section
10 1.628(b) specifically provides
that participants may submit any comment that
is
“relevant to the
subject matter.”
35
Iii.
Adm.
Code
101.628(b).
Therefore,
any
and
all
101.628(b) statements that
are
relevant
to
the
subject
matter
of
the
proceeding
should
be
allowed.
For
these
reasons,
Petitioners’ request to limit
all Section
101.628 statements should be denied.
3.
TILE
POLLUTION
CONTROL
BOARD
IS
MORE
ThAN
CAPABLE
OF
DETERMINING
WHAT
PUBLIC
STATEMENTS
ARE
RELEVANT
AND
APPROPRIATE
TO CONSIDER.
Petitioners’
assertion
that
permitting oral statements
from participants at the hearing
“may
very well lead to
reversible
error”
is
simply incorrect and unsupported
by any legal
authority.
See
¶5-6
of Motion
in
Limine.
In fact,
disallowing
public
comments
could
lead
to
reversible
error
because sections 101.628
and
107.404 ofthe Illinois Administrative Code
specifically provide that
the public be allowed to participate in such a hearing.
Furthermore, the
cases
cited
by
Petitioners
for
the proposition that
the Pollution
Control
Board must review
the record developed at the
looal
siting hearing under a manifest weight of the
evidence standard
are
simply
irrelevant.
No
one
contends
that
the
Pollution
Control
Board
is
allowed
or
required
to
consider new facts.
however,
that does not mean, as
Petitioners
contend,
that
public
statements
should
be
limited
or disallowed
entirely.
See
¶5
of Petitioners’
Motion
in
Limine.
In fact, nothing in
section 101.628
limits
public
statements to
de novo
proceedings.
The
fact of the matter is
that the Pollution
Control
Board
is
well-equipped
to
determine what,
if any,
4
HI
NSHA”,’
&
CIJLBERTSON
Fax: 615—963—9969
Aug
4
2003
16:32
P.07
public
comments
should be
disregarded if the comments provide additional
facts not already in the
record or are otherwise irrelevant to the proceedings.
Petitioners fail to acknowledge that the Pollution
Control Board is
clearly full well
arid able
to
determine
what
public
statements
or
comments
should
not
be
considered
by
the
Board.
but
instead, Petitioners suggest that the solution is
to simply disallow or limit public participation.
That
solution is simply inadequate because participants and members ofthe public have a right to present
comments
and
statements
at
the
hearing.
See
35
III.
Adm.
Code
101.626;
35
Ill.
Adm.
Code
107.404.
Furthermore, if individuals
are
not
allowed to
provide their comments,
it
impossible to
know whether or not those comments could have been relevant and
should have been considered by
the Board.
Consequently,
the most logical solution is to allow unlimited public comment and
allow
the Pollution
Control Board to use its
expertise in
determining what
comments should
be considered
in reaching its decision.
WHEREFORE,
Respondent,
COT.JNTY
BOARD
OF
McHENRY
COUNTY, ILLINOIS
respectfully requests
that this Board
deny Petitioners’ Motion in Limine in its
entirety.
HINSHAW AND CULBERTSON
100 Park Avenue
P.O. Box
1389
Rockford,
IL 61 105~l389
815-490-4900
Respectfully Submitted,
On behalfofthe.County Board
of
McHemy
County,
This document utilized 100
recycled paper products
B’
Heisten
10371512v2
830017
HI
NSHA”
&
CIJLBERTSON
Fax: 315—963—9969
Aug
4
2003
16:32
P.
06
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 4, 2003,
a copy of the Response
to Motion in Limine
was served upon:
David McArdle
Zukowski, Rogers, Flood & McArdle
50 VIrginia Street
Crystal Lake, IL
60014
iFax:
(815) 459-9057
Dorothy M.Gunn
Illinois Pollution Control Board
James R.
Thompson
Center
100
W. Randolph St.,
Ste. 11-500
Chicago,
IL
60601
Fax:
(312) 814-3669
Hearing Officer Bradley
P.
Halloran
Illinois Pollution Control Board
James R. Thompson Center
100W.
Randolph St., Ste.
11-500
Chicago, IL
60601
Fax:
(312) 814-3669
Via
facsimile
and
by
depositing
a
copy thereof,
enclosed
in
an
envelope
in
the
United States
Mail at Rockford,
Illinois,
proper
postage prepaid,
before the hour of 5:00
P.M.,
addressed
as
above, as well as providing a copy via facsimile to the facsimile numbers provided above.
UJINSHAW &
CULBERTSON
100 Park Avenue
P.O. Box 1369
Rockford,IL
61101
(815) 490-4900
70371844v1
830017