ILLINOIS POLLUTION CONTROL BOARD
January 21,
1993
CITIZENS AGAINST REGIONAL LANDFILL,
)
)
Petitioners,
v.
j
PCB
92—156
)
(Landfill
Siting)
THE
COUNTY
BOARD
OF
WHITESIDE
COUNTY
and
WASTE
MANAGEMENT
OF
ILLINOIS,
INC.,
Respondents.
ORDER
OF
TEE BOARD
(by B. Forcade):
On January 6,
1993, Waste Management of Illinois, Inc.
(WNII)
filed its emergency motion to strike portions of the
petitioner’s
brief.
WMII
also
requests
that
the
Board
impose
sanctions
against
petitioner
for
noncompliance
with
fundamental
rules
of procedure and advocacy.
Citizens Against Regional
Landfill
(CARL) filed ‘a response to the motion to
strike
on
January 13,
1993.
In the motion,
CARL also seeks sanctions
against respondents’ attorneys for their continued allegations
•and abuse of the Board’s procedural
rules,
is
well as
the
Illinois Rules of Appellate Advocacy in attempting to
taint
this
record erroneously, frivolously, and fals.ely~ CARL also filed on
• January 13,
1993,
a. Motion for Review of
Rearing
Examiner Rulings
Pertaining to Discovery and Bearing Record.
The
January
13,
1993
motions were accompanied by a motion to waive the filing
requirement
that
all
motions
be submitted on recycled paper.
A
waiver
of
the
filing
requirement
is
granted.
Also
before
the
Board
is
a
joint
Motion
to
Amend the Briefing Schedule, filed on
January
8,
1993.
A
waiver
of
the
statutory
deadline
was
also
filed, extending
the
statutory decision
period
to February 28,
1993.
On January 19,
1993,
WMII
filed a Motion for.Leave to File
Reply and Reply to Petitioner’s Response to EmergencyMotion.
WMII
requests leave to file a reply because CARL has made
numerous allegations
in their response that necessitate a reply.
The motion for leave to file a reply is granted.
While a reply
to a response is usually not permitted,
the
Board finds that WMII
should be permitted to reply to the allegations against WMII
raised in CARL’s response.
The Board will address the motion to strike, sanctions
against both petitioner and respondent and the motion to
amend
the briefing schedule.
The Board will postpone comment on the
motion to review the hearing officer ruling as this motion is not
ripe.
O138-OL~5J
2
Motion to Strike
WMII seeks to strike pages
12
through
28 of the
petitioner’s
brief because it is
based
on
exhibits that are not
part
of
the
record.
The exhibits which WMII objects to consist of a
newspaper article,
excerpts
from the deposition of William
Barrett and
deposition
exhibits.
WMII
contends that the argument
set forth in the
Fundamental
Fairness
section
of petitioner’s
brief is developed and predicated upon
these
improper
references.
WMII
argues that
neither
111(11 nor the county should
be
required
to
respond
to
arguments
baiied
on
matters
dehors
of
the
record.
Further,
WMII
seeks
sanctions
against
Mr.
Rudec,
attorney
for
CARL,
for
noncompliance
with
the hearing officer’s order
and
for
signing
a brief “not warranted by existing law or a
good
faith
argument for the extension, modification or
reversal
of existing
law.”
(See Illinois Supreme Court Rule 137.)
CARL
withdraws
its reference to the newspaper article,
Exhibit
A
of
its
brief.
In
its
response
CARL
notes
that
it did
not receive a copy of
the
transcript
until
December
30,
1992,1
the last working day prior to January
4,
1993, .the due date of
the brief.
CARL further notes that at the time the brief was’
prepared the January
4,
1993 letter from the hearing officer was
not part of the record.
CARL contends that the entire deposition
of Mr. Barrett should be provided to the Board as part of the
record in chief or under an offer of
proof..
CARL argues
that the
order of the hearing officer allowed the parties to supplement
the record with those portiäns of the deposition as the parties
felt appropriate.
CARL also
requests
that
the
Board
impose
sanctions on respondents’ attorneys for their continued
allegations and abuse of the Board’s procedural
rules~
as well as
the Illinois Rules of Appellate Advocacy in attempting to taint
this record erroneously, frivolously, and falsely.
The Board will strike Exhibit
A
and any references or
atgu1flents related to
Exhibit
A
in the petitioner’s brief.
The
remaining exhibits in contention are all related to the
deposition of William Barrett.
The issue in this matter is
whether the deposition and the deposition exhibits are
part
of
the evidence in this matter.
The Board will review some of the
procedural history relating to the deposition of Mr. Barrett
before ruling on the motion to strike.
On December 17, 1992, ‘~e
Board
granted an emergency motion
from CARL to allow thL deposition of William Barrett, attorney
‘The Board notes that it is the responsibility of the parties
to obtain copies of the transcripts.
Copies of the transcript were
received by
the Board
on December 29,
1992.
The Board allows 15
days
from
the
close
of
the
hearing
for
the
filing
of
the
transcript.
(35 Ill.
Adm. Code 103.220)
0138-0452
3
for
Whiteside
County.
The
Board
vacated
a
prior
order
by
the
hearing
officer
prohibiting
the
deposition
due ,to
new
information
presented
to
the
Board
in
an
affidavit
attached
to
the
emergency
motion.
The
Board
stated
in
its
order:
Mr.
Hudec
has
complicated
the
Board’s
deliberation
by
not
describing
the information he has received or
providing
the
Board
with
copies
of
the
information
asserted
in
paragraph
(d)
above.
However,
the
Board
believes
that
this
statement,
under
oath,
provides
an
adequate
basis
to
justify
exploration
of
the
information
Mr.
Barrett
may
possess’.regarding
his
role
and compensation in such contract.,
At
the
December
18,
1992
bearing,
the
hearing
officer,
after
sitting
through
the
deposition
of
Attorney
Barrett,
determined
that
Mr.
Barrett
would
not
be
required
to
testify
at
the
hearing.
The hearing officer specified three reasons in support of his
determination: l)the information was available from other
sources,,
2)Mr.
Barrett’s testimony was not necessary to the
proceedings and 3)the County would be unduly burdened if ‘Mr.
Barrett were required to remove himself as attorney due to his
testifying.
(Tr. at 15.)
At hearing,
CARL
sought
clarification
$rom the hearing
officer to the admission of Mr. Barrett’~deposition transcript
to the Board either ‘as
part
of
the record or under an offer of
proof.
(Tr.
at 131.)
The attorney for MMII objected to the
entire transcript of the deposition being submitted.
(Tr. at
133..)
The hearing officer declined to enter
the
entire
transcript but specified some general portions of the deposition
to be submitted to the Board.
(Tr. at 136.)
The hearing Officer
proposed that the transcript from Mr. Barrett’s deposition be
submitted to the Board in the following manner.
the transcripts of the deposition of Mr. Barrett be
submitted to me, perhaps copies to counsel as’ well.
I
can indicate that port--those portions which I
think
are relevant and if by either phone hook up or an
opportunity for people to submit any arguments to me is
what I think more or less what ought to go in and then
I’ll just rule on it and send that portion up to
the
Board,....
(Tr.
at
137.)
The
parties
agreed
to
the
handling
of
the
deposition
in
this
fashion.
(Tr.
at
137.)
On
January
4,
1993,
Mr.
Hudec,
attorney
for
CARL,
submitted
a complete copy of the transcript of Mr. Barrett’s deposition to
the Board “pursuant to the hearing
examiners directive of
01 38-O~53
4
December 21,
l992.~*2 In a January
5,
1993
letter
to
the
hearing
officer, Mr. Hudec informed the hearing officer that he had
forwarded
the
entire
deposition
transcript
to
the
Board
“based
upon
your
directive
to
the
parties
to supplement the record with
those
parts
of
the
deposition
as
we
felt
appropriate.”
The
hearing
officer
responded
in
a
January
6,
1993
letter,
stating
that
he
had
not
directed
the
submittal
of
the
transcript
and
such
transmittal
was
contrary
to
the
agreement
reached
on
the
record.
Portions
of
the
deposition
of
Mr.
Barrett
were
submitted
by
the
hearing
officer
to
the Board on January 11, 1993.
The
record
does
not
support
Mr. Hudec’s contention that the
hearing officer permitted the parties to supplement the record
with those parts of
the
deposition as the parties felt
appropriate.
The hearing officer indicated that he would
determine
those
portions
to be included in
the
record
subject
to
review by the parties.
The record contains no directive by the
hearing
officer
for
including
the
entire
transcript
in the
record.
The record is clear as to
the
hearing
officer’s
order
on
the
submission
of
the
deposition
transcript.
The
hearing
officer
stated
that
submitting
the
entire
transcript
“defeats
the
purpose
of Mr. Barrett not testifying here and any ramifications as
appearing of counsel
to
flow
from
that.”
(Tr. at 136.)
The
hearing officer informed the Board
of
the
agreement
concerning
the deposition transcript in
a
December
21, 1992 letter to
the
Board.
The
hearing officer, in a January 6, 1993 letter to the
parties, noted that Mr.’ Hudec’s submittal of the entire
deposition transcript was “clearly contrary to the agreement” and
expressed
his’
concern of “Mr. Hudec’
$
‘blatant mierepresentations
on
this
issue”.
CARL also alleges that the entire deposition
should
be
submitted
to
the
Board
under an offer of proof
(as
a
basis
to
review
and. reverse the hearing officer’s ruling).
The bearing
officer clearly refused to include the entire deposition as part
of
the
record
either
as part of the case in
chief
or as an offer
of
proof.
Even
if
the
deposition were allowed in as an offer of
proof,
it
would
not
be
considered’
as
evidence
to
support
the
petitioner’s
case
.
in chief.
It is inappropriate and misleading
to
reference
an
offer
of
proof
in
support
of
an
argument
in the.
case in chief.
Relying on facts not in evidence to support an
argument
violates
fundamental
fairness
because
the
opposing party
2
The
hearing
officer’s
letter
of
December
21,
1992
repeats
the agreement of the parties of the handling of the deposition
transcript as reached at hearing.
The bearing officer notes that
be will forward those portions be finds appropriate to the Board.
The
bearing
officer
notes
that
he
will
convene ‘,a
telephone
‘conference to receive any argument as to the appropriateness of his
selection.
0 l38-O145L~
5
has been denied an opportunity to cross examine or rebut the
facts.
The portions of Mr. Barrett’s deposition and the exhibits
referenced in CARL’s brief are not included in the evidence in
this matter.
Arguments premised on those documents are clearly
inappropriate.
Pages 12 to 28 of petitioner’s brief rely on
facts which are not part of the evidence.
Therefore,
the
motion
to strike pages 12 through 28 of the brief
is
granted.
Sanctions
WMII contends that sanctions against petitioner are
necessary to ensure the integrity of the process, and to deter
future instances of such conduct.
MMII alleges that the
following actions by the petitioner
show a
continuing pattern of
non—compliance:
1)
CARL’s failure to make an offer of proof at the hearing
concerning jurisdictional issues as allowed by the
Board’s
December
17,
1992
order.
2)
CARL’s
failure
to
present
information
at
hearing
concerning its allegation that it tailed torespond
to
the
motion
to
strike
due
to
misleading
instructions
by
the hearing officer.
3)
CARL’s
failure
to
follow
procedural
rules
when
filing
its emergency motion of December 17,
1992.
4)
The Board’s order allowing the deposition of Mr. Barrett
was based on an unsupported assertion of fact contained in the
affidavit of Mr. Hudec.
5)
In its petition for hearing, CARL contended that the
county board’s siting approval was contrary to the manifest
weight of the evidence on all nine criteria but in its brief only
challenges 5 criteria.
6)
Petitioner’s brief contains no proof of service.
7)
CARL has filed a complete transcript of the deposition
of Mr. Barrett in direct contravention of the hearing officer’s
order.
In its response CARL contends that the allegations by
MMII
contain irrelevant and spurious information and misrepresents
matters.
CARL also argues that many of the allegations raised by
WMII are not presently before the Board.
CARL states that
respondents have frivolously alleged a repeated and reckless
disregard for the Board’s procedural rules.
CARL argues that the
respondent should be sanctioned for their continued ‘allegations
and abuse of the Board’s procedural rules, as well as the
0138-01455
6
Illinois
Rules
of
Appellate
Advocacy
in
attempting
to
taint
this
record erroneously, frivolously, and falsely.
35 Ii..
Adm. Code 101.280 gives the Board the authority to
issue sanctions for the failure to comply with the Board’s
procedural rules or any order of the Board or hearing officer.
(See Modine Mfa.
Co. v. Pollution Control Board (1989),
192
Ill.App.3d 511, 548 N.E.2d 1145.)
While MMII contends a
continuing pattern of non—compliance, the Board is greatly
concerned with allegations relating to the motions present3y
kefore the Board.
CARL clearly violated the hearing officer’s order by
submitting the entire deposition of William
Barrett
to the Board
and referencing portions from
the
deposition in its brief.
The
hearing officer, did indicate the portions he
intended
to include
jn the record and had’ expressed his opposition to including
testimony from Mr. Barrett.
Despite the hearing officer’s ruling
on the deposition transcript, petitioner ‘submitted the entire
transcript
to
the
Board..
Petitioner
referenced
the deposition
transcript
extensively
in
its
brief,
often
referring
directly
to
responses
by
Mr.
Barrett.
Petitioner
did
not
attempt
to
indicate
to
the
Board
that
the
contents
of
the
record
in
thi.i
matter
were
in
dispute
or
not
complete
at
the time the
brief
was
prepared.
The
petitioner,
instead,
submitted
the
entire
deposition and
misrepresented the agreement reached on the handling of the
deposition.
The
Board
finds
that
the
actions on the part of
the
petitioner warrant the impcaition of sanctions
against
the
petitioner.
MMII
requests
that petitioner be
required
to pay
MMII its attorney fees and expenses in preparing this~motion and
in attending the deposition of William Barrett.
In imposing sanctions the Board will consider the relative
severity of the failure to comply, the past history of the
proceeding, and the degree to which the proceeding has been
delayed.
(Section 101.281.)
The Board considers the filing of a
brief referencing facts not supported by evidence to be a serious
violation of the rules concerning evidence and the rules
regarding advocacy.
The Board also finds CARL’s filing of the
entire deposition transcript and misreprelentation of the hearing
officer’s order to be in contumacious disregard of the hearing
officer’s order.
The hearing officer refused to require Mr. Barrett to attend
a aeposition and provided reasoning on his ruL..ng.
(See Hearing
Officer Order of December 16,
1992.)
Later, the hearing officer
declined to allow Mr. Barrett to testify at hearing for the same
reasons that he had refused to allow the deposition
of Mr.
Barrett to take place; no showing that the information was
unavailable from other sources.
(Tr. at 15.)
Despite advance
notice of the hearing officer’s concerns regarding the
availability of this information from other sources, the attorney
013-01456
7
for CARL’ presented no facts or argument on this point at hearing.
Instead
of
addressing
the
hearing
officer’s
ruling
or
finding
additional
sources
to
support
the
arguments
in
an
attempt
to
secure a favorable ruling, Mr. Hudec simply relied on information
not in evidence as a part of his brief.
In a similar
manner,
the
attorney for CARL merely disregarded the hearing officer’s ruling
and submitted the transcript from the deposition and proceeded to
represent the transcript as evidence before the Board.
This
disregard of the hearing officer orders and misrepresentation of
the facts is inappropriate conduct before
the
Board.
Mr. Hudec
chose not to explore alternative, methods of securing the
contested information.
Re also chose not to
present
facts or
legal argument at hearing supporting the
necessity
of securing
the information from
Mr.
Barrett.
The
failure
even
to
attempt
these appropriate methods of admitting
evidence
is an
exacerbating factor.
While
the
Board
does
not address
the
merits
of
each
allegation raised in WMII’s motion to strike, the allegations
represent the past history of this proceeding.
Many of the
filings in this matter have contained procedural defects.
The
Board noted in its December 17,
1992 order that the emergency
motion filed by CARL was not in accordance with the Board’s
procedural rules.
The Board has in prior Board orders extended
to CARL the opportunity, at hearing, to
address
issues
raised in
its motion.
CARL did not address these
issues
at hearing.
Some
of the allegations may not rise to a blatant disregard for the
Board’s rules.
However when considered with the filing of CARL’s
brief there appears to be a continuing disregard for Board rules
and orders.
The failure of CARL to follow the hearing officer’s order
and filing of a brief not supported ‘by evidence has created a
delay in the proceedings.
The parties have submitted a motion to
amend the briefing schedule to correct
this
delay.
A
waiver of
the statutory deadline has also been filed to allow for the
amended briefing schedule.
The Board grants WHII’s request for sanctions against Mr.
Rudec.
The Board will not require petitioner to pay costs
related to the deposition of Mr. Barrett.
The Board
orders
the
attorney for CARL to pay the amount of reasonable expenses
incurred by MMII in obtaining this order.
MMII shall submit a
bill specifying the costs related to the preparation of the
motion to strike within 15 days of the date of this order.
The
bill shall be filed with the Clerk of the Board and served on the
attorney for petitioner.
CARL’s attorney shall have 15 days in
which to object to the filing by
MMII.
While the Board has not completely analyzed each of the
allegations made by MMII, the Board does not find the allegations
to be frivolous.
The Board does not find that the.allegations
0I38-0~57
8
were made in an attempt to taint the record or delay the
proceedings
in
this
matter.
Therefore,
CARL’s request for
sanctions
against
respondents’
attorneys
is
denied.
Nothing
in
today’s order should be construed as
a waiver
by
the Board of the
possibility
of
additional
sanctions
or
other
appropriate actions as a result of the failure to follow
procedural rules or to comply with Board and
hearing
officer
orders.
Briefing Schedule
The scheduling order entered by the hearing officer provided
that the petitioner’s brief was due on January
4’,
1993,
respondents’ brief
was
due on January 11, 1993 and petitioner’s
reply brief was due January 15, 1993.
CARL filed ita brief on
January 4, 1993; no briefs have been filed by
the
respondents.
On January 6,
1993,
WMII
filed
an
Emergency Motion to Strike
Petitioner’s
Brief.
The
motion
sought
to
strike
selected
pages
of
CARL’a
brief
‘and
requested
an
extension
in
time
for
the
filing
of briefs.
In a January 7, 1993 Board order, the Board declined
to rule on the motion to strike, allowing time
for
CARL
to
respond to the
motion.
The
Board
noted
that
should the
ruling be
favorable’ to MMII, the Board would simply disregard those
portions
of
the
petitioner’s
brief
and
attachments
(as
well
as
any portions of the
response
briefs)
which
were not appropriate
for consideration.
The Board also specifically denied the
request
to
extend
the
time
for
filing
the
briefs
noting
the
decision
deadline.
In the motion to amend the briefing
schedule,
the
parties
request that the briefing schedule be amended to allow
respondents’ brief to be filed on or before January 25,
1993, and
petitioner’s reply brief be filed on’ or before February
4,
1993.
The partieS contend that this request is nOt made for purposes of
delay, but to allow the determination’ as to what constitutes the
record in this appeal and thereby facilitate the considerations
and disposition of this appeal.
The
motion
tà
amend
the
briefing
schedule
was
filed
as
a
joint motion.
The Board grants the motion to amend the briefing
schedule.
IT
IS
SO
ORDERED.
3. Theodore Meyer abstained
0138-01458
9
I, Dorothy H.
Gunn, Clerk of the Illinois Pollution Control
Board., hereby certify that
e above order was adopted on the
day
of
______________________,
1993,
by
a
vote
of
6-
C
~2~~’~-i
~
Dorothy
K.
~
Clerk’
“
Illinois
POlThtion
Control
Board
0138-01459
