HINSHA’4

&

CIJLBERTSON

Fa~:@15-~63-9969

Aug

4

2003

1S:36

P.

02

RECEIVED

BOARD

CLERK’S

OFFICE

LOWE

TRANSFER, INC.

AUG ~‘8’

2003

LOWE,

STATE OF ILLiNOIS

Pollution

Control Board

Petitioners,

)

vs.

)

Case No.

PCB 03-221

)

COUNTY BOARD OF MCIIENRY COUNTY,)

ILLINOIS

)

)

Respondent.

)

NOTICE

OF FILING

TO:

See Attached

PLEASE

TAKE NOTICE that on the 4th

day of Augusta 2003, we mailed for fUing with

the Illinois

Pollution

Control

Board,

the

attached

Response’ to

Motion

in

Limine,

a

copy

of

which is attached hereto.

Respectthily Submitted,

Onbehalfof

the

County Board ofMcflenry

County,

Illinois

By: Hinshaw & Culbertson

~

(~~)

Charles F. Heisten

FUNSHAW &

CTJLBERTSON

100 Park Avenue

P.O. Box 1389

Rockford, Illinois

61105-1389

815/490-4900

815/490~490l

(fax)

(Th/

7O~7l~~v1

830017

/

)

---

HI

NSHA~

&

CULBEPTSON

Fax:

~15—9~3—9989

Aug

4

2003

16:3~

P.

03

RECE~VE~

BOARD

CLERK~5OFFTCE

LOWE TRANSFER, iNC.

and

AUG

62003

LOWE

STATE

OF IWNOIS

Petitioners,

Pollution

Control Board

vs.

)

Case No.

PCB 03-221

)

COUNTY BOARD OF McHENRY COUNTY,)

ILLINOIS

)

)

Respondent.

)

RESPONSE TO

MOTION IN LIMINE

NOW

COMES

COUNTY

BOARD

OF

McHENRY

COUNTY,

ILLINOIS,

through

its

attorneys, HINSHAW

&

CULBERTSON, and hereby moves

the Pollution

Control Board

to

deny

Co-Petitioners,

LOWE

TRANSFER,

INC.

AND

MARSHALL

LOWE’s

Motion

in

Limine

to

preclude oral statements, limit public comments

and limit all

statements by parties and participants,

and in support thereof, states as follows:

1.

LI1~llTII’~G

MW/OR

RESTRICTING

PUBLIC

COMMENTS

AN))

PUBLIC

STATE1~~’LENTS

IS

INCONSISTENT

WITh

THIS

BOA1U)’S

PREVIOUS

RULING

IN THIS CASE.

On

June

5, 2003, Petitioners2 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 of Cary’s motion

to

intervene

in

Lowe

Transfer Inc.

and Marshall Lowe

v.

County Board of McHeniy County, Ehinois,’

PCB

03-221

(July

10,

2003),

2003

WL

21753698,

slip

op.

at

*1.

un

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

107.404 of the Board’s procedural rules,

but may

not

exaxmne

or

cross-examine

witnesses.

Cary may

also participate through

public

comments

or

)

)

)

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HI

NSHA’~ &

CULBERTSON

Fax:815—963—9989

Aug

4

2003

16: 3~

P.04

ainicu.s

curiae

briefs

pursuant

to

Section

101.110(c),

and

in

accordance

with

Section

101.628.”

(Citations

omitted), slip op.

at *2.

Because this

Board has

explicitly held that

participants

who

are

riot

parties

to

this

appeal

have the right to

contribute oral

and

written statements and participate through public

comments,

this Board

should not now reduce or limit the rights of the 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

Limine,

2.

LIMITING

AND/OR

RESTRICTING

PUBLIC

COMMENTS

AND

PUBLIC

STATEM~ENTS

IS

INCONSISTENT

WITH

POLLUTION

CONTROL

POLICY AND PROCEDURE.

The Pollution Control Board has a policy of encouraging public participation in matters such

as the present case.

In fact, Section

10 1.110 of the Board’s procedural rules specifically provides:

“The Board

encourages public

participation in ~j

of its

proceedin,gs.”

(Emphasis

added.)

35

111.

Adm,

Code

101.110.

Furthermore, Section

107A04 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

Iii.

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 and/or written statements.”

(Emphasis added.)

Waste

Management of Illinois,

Inc.

v. Lake

County Board,

P03

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 Lirnine.

Several sections

of the Illinois

Administrative

Code provide

2

---

HINSH~’t&

CULSEPISON

Fax:615—963—9989

Aug

4

2003

16:36

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

conunents

and

submit amicus curiae briefs.

35

Ill. Adm.

Code 101.628.

Specifically,

Section

101.628(a) provides that the hearing officer maypermit 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.

Adin.

Code

101.628(a).

Based

on Sections

101.110

and

107.404

and

the

Board’s

policy

of

encouraging

public

participation

in

Board

hearings,

it

would

be

inappropriate

for

a

hearing

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) wriften 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~examnination

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)

~ften

statements, and,

therefore,

should

also

have

no

authority to

limit the time

for such s~tements. Limiting

such statements would

he

/

contrary

to

the

specific

mandates

of

Section

101.628(b),

which

allows

participants

to/

unconditionally submit written statements “at any time prior to hearing of at hearing.”

35 Iii. Adm.

3

---

HI

NSHAW

&

CULBERTSON

Fax:

815—963—9989

Au.g

4

2003

16:36

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

101.628(b)

written

statements

because

Section

101.628(b) specifically provides that participants may submit any comment that is

“relevant

to

the

subject matter.”

35

Ill.

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

10 1.628 statements should be denied.

3.

THE

POLLUTION

CONTROL

BOARD

IS

MORE

THAN

CAPABLE

OF

DETERMINrNG

WFIAT

PUBLIC

STATEMENTS

ARE

RELEVANT

APPROPRIATE TO CONSDER.

Petitioners

assertion that permitting

oral

statements

from participants

at the

hearing

“may

very well lead to

reversible error”

is

simply incorrect and unsuppbrted

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 of the 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 local 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

lix~titedor

disallowed entirely.

See

¶5

of Petitioners’

Motion in

Limine.

hi

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

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HI

NSHAW

&

CULBERTSON

Fax:

815—963—9989

Aug

4

2003

16:36

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

and

able

to

detennine

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 of the public have a right to

present

comments

and

statements

at the

hearing.

See

35

Ill.

Adm.

Code

101.626;

35

111.

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 allowumlirnited 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, COUNTY BOARD

OF McHBNRY

COUNTY,

ILLINOIS

respectfully requests that this Board deny Petitioners’ Motion in Limine in its

entirety.

HINSHAW AND CTJLBERTSON

100 Park Avenue

P.O. Box

1389

Rockford,IL 61105-1389

This document utilized 100

recycled paper products

Respectfully

Submitted,

On behalf of the

County

Board ofMcflemy

County,

Heisten

70371512’v2 ~3OD~7

---

HI

~JSH~’&

CUL8ERTSON

Fax:

81 5-963-YYSY

Aug

4

2003

15:35

P.

08

AFFIDAVIT

OF SERVICE

The undersigned, pursuant

to the

provisions

of Section

1-109 ofthe 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

Fax:

(815) 459-9057

Dorothy M.Gunn

Illinois Pollution Control Board

lames 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

lames 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,

lllinois,

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 ñumbérs provided above.

HINSHAW &

CULBERTSON

100 Park Avenue

P.O. Box

1369

Rockford,IL 61101

(815) 490-4900

7O37l~44v1830017