0198-001
CITY OF KANKAKEE,
Petitioner,
V.
C1.FRK’S OFFfCE
ILLINOIS POLLUTION CONTROL BOARD
~
10 2003
STATE OF U-LINOIS
Pollution Control Board
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.
Respondents.
)
PCBO3-125
)
PCB 03-1 33
)
PCBO3-134
)
PCBO3-135
)
PCB 03-144 (consolidated)
)
(Pollution Control Facility Siting Appeals)
)
)
)
)
)
To:
(See attached Service List.)
NOTICE OF FILING
PLEASE TAKE NOTICE that on this 10th day ofApril 2003, the following were filed
with the Illinois Pollution Control Board, attached and herewith served upon you:
The County of Kankakee’s Objections to Watson’s Interrogatories
The County of Kankakee’s Objections to Watson’s Document Requests
The County of Kankakee’s Motion to Quash Subpoena
The County of Kankakee’s Objections to City of Kankakee’s Interrogatories
The County of Kankakee’s Objections to City of Kankakee’s Document Requests
Elizabeth S. Harvey
SWANSON, MARTIN & BELL
One IBM Plaza, Suite 2900
330 North Wabash Avenue
Chicago, Illinois 60611
Telephone: (312) 321-9100
Firm l.D. No. 29558
COUNTY OF KANKAKEE and
COUNTY BOARD OF KANKAKEE
One of Its Attorneys
SERVICE
LIST
KANKAKEE
COUNTY/WMII LANDFILL SITING
Bradley P. Halloran *
Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Charles F. Helsten
(Federal Express)
Richard Porter
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105
Facsimile: 815/490-4901
Kenneth A. Leshen
**
One Dearborn Square
Suite 550
Kankakee, IL 60901
Facsimile: 815/933-3397
Donald Moran
*
Pedersen &
Houpt
161 North Clark Street
Suite 3100
Chicago, IL 60601-3242
George Mueller **
George Mueller, P.C.
501 State Street
Ottawa, IL 61350
Facsimile: 815/433-4913
*
Hand Delivery
**
Facsimile
L. Patrick Power **
956 North Fifth Avenue
Kankakee, IL 60901
Jennifer J. Sackett Pohlenz *
Querry & Harrow, Ltd.
175 West Jackson Boulevard
Suite 1600
Chicago, IL 60604
Facsimile: 312/540-0578
Keith Runyon
**
165 Plum Creek Drive
Bourbonnais, IL 60914
Facsimile: 815/937-9164
Kenneth A. Bleyer
(U.S. Mail)
Attorney at Law
923 West Gordon Terrace, #3
Chicago, IL 60613-2013
Leland Milk
(U.S. Mail)
6903 S. Route 45-52
Chebanse, IL
60922-51
53
Patricia O’Dell
(U.S. Mail)
1242 Arrowhead Drive
Bourbonnais, IL 60914
CERTlPR~At~OF SERVICE
I, the undersigned non-attorney, state that I served copies of the described documents to
all counsel of record in the above-captioned matter on April 10, 2003, via facsimile, hand-delivery,
Federal Express, and U.S. Mail, as indicated on attached Service List.
/~4~U~
~jØnette M. Podlin
xl
Under penalties as provided by
law
pursuant to 735 ILCS 5/1-109, I certify
that the statements set forth herein
are true and correct.
)
PCB 03-125
)
PCB 03-1 33
)
PCB 03-1 34
)
PCB 03-1 35
)
PCB
03-144 (consolidated)
COUNTY OF KANKAKEE, COUNTY
)
(Pollution Control Facility Siting Appeals)
BOARD OF KANKAKEE, and WASTE )
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
COUNTY BOARD OF KANKAKEE’S OBJECTIONS TO
PETITIONER WATSON’S INTERROGATORIES
Respondent COUNTY BOARD OF KANKAKEE (“County”), by its attorneys Hinshaw
& Culbertson and Swanson, Martin & Bell, hereby object to some ofthe interrogatories filed
by petitioner MICHAEL WATSON (“Watson”).1 These objections are directed to the
hearing officer.
Definitions
The County objects to the definition of “relevant time period,” which Watson states
as ‘the period between August 1, 2001 and February 28, 2003.” This time period is overly
broad. Events outside the time period from August 16, 2002 (the date offiling of the siting
application) to January 31, 2003 (the date of the County Board’s decision on the siting
application) are irrelevant to this appeal. 415 ILCS 5/40.1. This objection applies to each
and every one of the Interrogatories propounded by Watson, regardless of whether that
Pursuant to the hearing officer’s direction, the County files these objections by noon on April
10, 2003. Responses to interrogatories which are not objected to in this filing will be filed no later
than noon on April 18, 2003, pursuant to the discovery schedule in this matter.
0198-001
CITY OF KANKAKEE,
Petitioner,
V.
ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK’S
OFFICE
I~PR102003
STATE OF
IWNOIS
Pollution Control Board
interrogatory is specifically listed in the following objections.
I nterrogatories
5.
Identify all Person(s) involved in any way in the negotiation of the Host Agreement,
and with respect to each Person so identified:
a.
Describe their role in such negotiations;
b.
The time frame in which such negotiations were held;
c.
Identify the Person(s) with whom they negotiated; and
d.
The subject matter of the negotiations.
OBJECTION:
The County objects to this Interrogatory in its entirety. Information
regarding the Host Agreement is not relevant to this appeal, and is not
reasonably calculated to lead to the discovery of relevant information.
It is well settled that the drafting and adoption of a host agreement is
a legislative function which is not an indication of prejudgment or bias.
Residents Against a Polluted Environment v. County ofLaSalle,
PCB
96-243, slip op. at 15-16 (Sept. 9, 1996),
aff’d Residents Against a
Polluted Environment v. Illinois Pollution Control Board,
293 lll.App.3d
219, 687 N.E.2d 552, 555 (3d Dist. 1997). Additionally, the Host
Agreement was negotiated and adopted prior to the August 16, 2002
filing ofthe siting application, and thus that process is irrelevant to this
appeal. Finally, the County objects to this Interrogatory to the extent
it seeks disclosure of information protected by the attorney-client
privilege, the attorney work product doctrine, or any other applicable
privilege.
6.
Identify all Person(s) involved in any way with the drafting of the Host Agreement
and, with respect to each Person so identified, describe which portions(s) of the
Host Agreement they drafted.
OBJECTION:
The County incorporates and restates its objection to Interrogatory
Number 5 as if fully set forth herein.
7.
Identify the date(s) on which the County Board approved the property value
2
protection plan attached as an Exhibit to the Host Agreement.
OBJECTION:
The County incorporates and restates its objection to Interrogatory
Number 5 as if fully set forth herein.
8.
Identify any and all Communications concerning or relating to the Host Agreement
between any of the individuals identified in each line below
(e.g.
item b. Below,
seeks identification of communications between any Person included in the
definition of “County” and any Person included in the definition of “County Board”):
a.
The staff or employees of Kankakee County and its consultants or attorneys;
b.
The County and any one or more members of the County Board;
c.
The County and any one or more members of the County Regional Planning
and Development sic Commission;
d.
The County and WMII;
e.
WMII and any one or more member ofthe County Board (including, but not
limited to those specific Persons identified in subparagraph f though m,
below);
f.
Dale Hoekstra and Karl Kruse;
g.
Lee Addleman and Karl Kruse;
h.
Dale Hoekstra and Pam Lee;
Lee Addleman and Pam Lee;
j.
Dale Hoekstra and Mike Quigley;
k.
Lee Addleman and Mike Quigley;
Dale Hoekstra and George Washington, Jr.;
3
m.
Lee Addleman and George Washington, Jr.;
n.
WMII and any one or more member of the County Regional Planning &
Development sic Commission;
o.
WMII and the County;
p.
WMII and attorneys from the firms ofHinshaw & Culbertson and/or Swanson,
Martin & Bell;
q.
WMII and the Kankakee County Board Chairman;
r.
A member ofthe general public and any member ofthe County Board, when
the member of the general public was speaking in support of or in favor of
WMII or its Siting Application;
s.
WMll and any Kankakee County Board Members who were Board Members
during any part of the Relevant Time, but who did not vote on or were not
County Board Members at the time of the vote on the Siting Application.
OBJECTION:
The County incorporates and restates its objection to Interrogatory
Number 5 as if fully set forth herein.
9.
Identify any and all Communications during the Relevant Time, concerning or
relating to the Siting Application or any of its component parts between any of the
individuals identified in each line below
((e.g.
item b below, seeks identification of
communications between any Person included in the definition of “County” and any
person included in the definition of “County Board”):
a.
The staff or employees of Kankakee County and its consultants or attorneys;
b.
The County and any one or more members of the County Board;
4
c.
The County and any one or more members ofthe County Regional Planning
and Development sic Commission;
d.
The County and WMII;
e.
WMII and any one or more member of the County Board (including, but not
limited to those Persons identified in subparagraphs i through s, below);
f.
WMll and any one or more member of the County Regional Planning &
Development sic Commission;
g.
WMII and the County;
h.
WMII and attorneys from the firms of Hinshaw & Culbertson and/or Swanson,
Martin & Bell;
WMll and the Kankakee County Board Chairman;
j.
A member of the general public and any member ofthe County Board, when
the member of the general public was speaking in support of or in favor of
WMII or its Siting Application;
k.
WMII and any Kankakee County Board Members who were Board Members
during any part of the Relevant Time, but who did not vote on or were not
County Board Members at the time of the vote on the Siting Application;
I.
Dale Hoekstra and Karl Kruse;
m.
Lee Addleman and Karl Kruse;
n.
Dale Hoekstra and Pam Lee;
o.
Lee Addleman and Pam Lee;
p.
Dale Hoekstra and Mike Quigley;
5
q.
Lee Addleman and Mike Quigley;
r.
Dale Hoekstra and George Washington, Jr.;
s.
Lee Addleman and George Washington, Jr.;
t.
Any one or more of the attorneys at Swanson, Martin & Bell and any one or
more of the attorneys at Hinshaw & Culbertson.
OBJECTION:
The County objects to this interrogatory as vague, overbroad,
irrelevant, and not reasonably calculated to lead to the discovery of
relevant evidence. First,
as noted in the County’s objection above,
the definition of “Relevant Time” is overbroad, and should be limited
only to the period between August 16, 2002 and January 31, 2003.
Second, the request seeks communications relating to the Siting
Application. The interrogatory appears to seek information relating to
alleged fundamental fairness claims.
However, before such requests
are made, petitioner must allege specific instances or evidence of
fundamental unfairness: petitioner may not engage in a “fishing
expedition.”
See, e.g., Land and Lakes Co. v. Village ofRomeoville,
PCB 92-25, slip op. at 4 (June 4, 1992);
DiMaggio v. Solid Waste
Agency of Northern Cook County,
PCB 89-138, slip op. at 7 (October
27, 1989). Finally, the County objects to this Interrogatory to the
extent it seeks disclosure of information protected by the attorney-
client privilege, the attorney work product doctrine, or any other
applicable privilege.
10.
Identify any and all Communications concerning or relating to Kankakee County
Resolution 01-10-09-393 between any of the individuals identified in each line
below
(e.g.
item b below, seeks identification of communications between any
Person included in the definition of “County” and any person included in the
definition of “County Board”):
a.
The staff or employees of Kankakee County and its consultants or attorneys;
b.
The County and any one or more members of the County Board;
c.
The County and any one or more members ofthe County Regional Planning
6
and Development sic Commission;
d.
The County and WMll;
e.
WMII and any one or more member of the County Board;
f.
WMII and any one or more member of the County Regional Planning &
Development sic Commission;
g.
WMII and the County;
h.
WMII and attorneys from the firms of Hinshaw & Culbertson and/or Swanson,
Martin & Bell;
WMII and the Kankakee County Board Chairman;
j.
A member
ofthe general public and any member of the County Board, when
the member of the general public was speaking in support of or in favor of
WMII or its Siting Application;
k.
WMII and any Kankakee County Board Members who were Board Members
during any part of the Relevant Time, but who did not vote on or were not
County Board Members at the time of the vote on the Siting Application.
OBJECTION:
The County objects to this Interrogatory in its entirety. Resolution 01-
10-09-393, adopted on or about October 9, 2001, amends the
County’s solid waste management plan. Information regarding the
solid waste management plan, including its adoption and
amendments to the plan, is not relevant to this appeal, is not
reasonably calculated to lead to the discovery of relevant information,
is improper, and is beyond the scope of permissible discovery. The
Pollution Control Board does not review the legislative process of
adoption and amendment of solid waste management plans:
“allegations concerning the adoption of the county’s solid waste
management plan are not proper allegations for Board consideration
in a Section 40.1 pollution control facility siting appeal.”
Residents
Against a Polluted Environment v. County of LaSalle,
PCB 96-243,
7
slip op. at 15-16 (Sept. 9, 1996),
aff’d Residents Against a Polluted
Environment v. Illinois Pollution Control Board,
293 Ill.App.3d 219,
687 N.E.2d 552, 555 (3d Dist. 1997). (“Section 40.1 does not
authorize the Board to review the process involved in the County’s
amendment of the Plan.”) Further, any involvement by the County
with the applicant in the amendment of the Plan does not create a
suspicion of bias by the County in the siting process.
Residents
Against a Polluted Environment,
687 N.E.2d at 555. Additionally, the
solid waste management plan, and resolutions amending that plan,
were adopted prior to the August 16, 2002 filing of the siting
application, and thus that process is irrelevant to this appeal. Finally,
the County objects to this Interrogatory to the extent it seeks
disclosure of information protected by the attorney-client privilege, the
attorney work product doctrine, or any other applicable privilege.
11.
Identify any and all Communications concerning or relating to the Kankakee County
Resolution 02-03-12-481
between any of the individuals identified in each line below
(e.g.
item b below, seeks identification of communications between any Person
included in the definition of “County” and any person included in the definition of
“County Board”):
a.
The staff or employees of Kankakee County and its consultants or attorneys;
b.
The County and any one or more members of the County Board;
c.
The County and any one or more members ofthe County Regional Planning
and Development sic Commission;
d.
The County and WMII;
e.
WMII and any one or more member of the County Board;
f.
WMII and any one or more member of the County Regional Planning &
Development sic Commission;
g.
WMII and the County;
8
h.
WMII and attorneys from the firms of Hinshaw & Culbertson and/or Swanson,
Martin & Bell;
WMll and the Kankakee County Board Chairman;
j.
A member ofthe general public and any member ofthe County Board, when
the member of the general public was speaking in support of or in favor of
WMll or its Siting Application;
k.
WMII and any Kankakee County Board Members who were Board Members
during any part of the Relevant Time, but who did not vote on or were not
County Board Members at the time of the vote on the Siting Application.
OBJECTION:
The County incorporates and restates its objection to Interrogatory
Number 10 as if fully set forth herein. Resolution 02-03-12-481 also
relates to the amendment of the solid waste management. Thus, the
objection raised to Interrogatory 10 is equally applicable to
Interrogatory Number 11.
12.
Identify any and all Communications during the Relevant Time, concerning or
relating to the development, design, operation, or location of a landfill expansion by
WMll in Kankakee County between any of the individuals identified in each line
below
(e.g.
item b below, seeks identification of communications between any
Person included in the definition of “County” and any person included in the
definition of “County Board”):
a.
The staff or employees of Kankakee County and its consultants or attorneys;
b.
The County and any one or more members of the County Board;
c.
The County and any one or more members of the County Regional Planning
and Development sic Commission;
9
d.
The County and WMII;
e.
WMll and any one or more member of the County Board (including, but not
limited to those Persons identified in subparagraphs i through s, below);
f.
WMII and any one or more member of the County Regional Planning &
Development sic Commission;
g.
WMll and the County;
h.
WMII and attorneys from the firms of Hinshaw & Culbertson and/or Swanson,
Martin & Bell;
WMII and the Kankakee County Board Chairman;
j.
A member
ofthe general public and any member of the County Board, when
the member of the general public was speaking in support of or in favor of
WMll or its Siting Application;
k.
WMII and any Kankakee County Board Members who were Board Members
during any part of the Relevant Time, but who did not vote on or were not
County Board Members at the time of the vote on the Siting Application;
Dale Hoekstra and Karl Kruse;
m.
Lee Addleman and Karl Kruse;
n.
Dale Hoekstra and Pam Lee;
o.
Lee Addleman and Pam Lee;
p.
Dale Hoekstra and Mike Quigley;
q.
Lee Addleman and Mike Quigley;
r.
Dale Hoekstra and George Washington, Jr.;
10
s.
Lee Addleman and George Washington, Jr.;
t.
Any one or more ofthe attorneys at Swanson, Martin & Bell and any one or
more of the attorneys at Hinshaw & Culbertson.
OBJECTION:
The County objects to this interrogatory as Vague, overbroad,
irrelevant, and not reasonably calculated to lead to the discovery of
relevant evidence. First, as noted in the County’s objection above,
the definition of “Relevant Time” is overbroad, and should be limited
only to the period between August 16, 2002 and January 31, 2003.
Second, the request seeks communications relating to “the
development, design, operation, or location of a landfill expansion by
WMII in Kankakee County, and is not limited to the landfill expansion
at issue in this appeal. Any theoretical communications relating to
any other theoretical landfill expansion are beyond the scope of this
appeal. Finally, the County objects to this Interrogatory to the extent
it seeks disclosure of information protected by the attorney-client
privilege, the attorney work product doctrine, or any other applicable
privilege.
13.
Identify any and all Communications during the Relevant Time, concerning or
relating to the development of a landfill expansion at, within or adjacent to the site
that was the subject of the Siting Application between any of the individuals
identified each line below
(e.g.
item b below, seeks identification of communications
between any Person included in the definition of “County” and any person included
in the definition of “County Board”):
a.
The staff or employees of Kankakee County and its consultants or attorneys;
b.
The County and any one or more members of the County Board;
c.
The County and any one or more members of the County Regional Planning
and Development sic Commission;
d.
The County and WMII;
11
.1
e.
WMII and any one or more member of the County Board (including, but not
limited to those Persons identified in subparagraphs i through s, below);
f.
WMII and any one or more member of the County Regional Planning &
Development sic Commission;
g.
WMll and the County;
h.
WMll and attorneys from the firms of Hinshaw & Culbertson and/or Swanson,
Martin & Bell;
I.
WMII and the Kankakee County Board Chairman;
j.
A member ofthe general public and any member of the County Board, when
the member of the general public was speaking in support of or in favor of
WMII or its Siting Application;
k.
WMII and any Kankakee County Board Members who were Board Members
during any part of the Relevant Time, but who did not vote on or were not
County Board Members at the time of the vote on the Siting Application;
Dale Hoekstra and Karl Kruse;
m. Lee Addleman
and Karl Kruse;
n. Dale Hoekstra and Pam Lee;
o.
Lee Addleman and Pam Lee;
p.
Dale Hoekstra and Mike Quigley;
q.
Lee Addleman and Mike Quigley;
r.
Dale Hoekstra and George Washington, Jr.;
s.
Lee Addleman and George Washington, Jr.;
12
t.
Any one or more of the attorneys at Swanson, Martin & Bell and any one or
more ofthe attorneys at Hinshaw & Culbertson.
OBJECTION:
The County objects to this interrogatory as vague, overbroad,
irrelevant, and not reasonably calculated to lead to the discovery of
relevant evidence. First, as noted in the County’s objection above,
the definition of “Relevant Time” is overbroad, and should be limited
only to the period between August 16,
2002 and January 31, 2003.
Second, the request seeks communications relating to “the
development of a landfill expansion at, within or adjacent to the site
that was the subject ofthe Siting Application”, and is not limited to the
landfill expansion at issue in this appeal.
Any theoretical
communications relating to any other theoretical landfill expansion are
beyond the scope of this appeal. Finally, the County objects to this
Interrogatory to the extent it seeks disclosure of information protected
by the attorney-client privilege, the attorney work product doctrine, or
any other applicable privilege.
14.
Identify any and all Communications during the Relevant Time, concerning or
relating to the operational history of the existing landfill at the site that is the subject
of the Siting Application between any ofthe individuals identified in each line below
(e.g.
item b below, seeks identification of communications between any Person
included in the definition of “County” and any person included in the definition of
“County Board”):
a.
The staff or employees of Kankakee County and its consultants or attorneys;
b.
The County and any one or more members ofthe County Board;
c.
The County and any one or more members ofthe County Regional Planning
and Development sic Commission;
d.
The CountyandWMll;
e.
WMII and any one or more member ofthe County Board (including, but not
13
limited to those Persons identified in subparagraphs i through s, below);
f.
WMII and any one or more member of the County Regional Planning &
Development sic Commission;
g.
WMII and the County;
h.
WMII and attorneys from the firms of Hinshaw& Culbertson and/or Swanson,
Martin & Bell;
WMll and the Kankakee County Board Chairman;
j.
A member ofthe general public and any member of the County Board, when
the member of the general public was speaking in support of or in favor of
WMII or its Siting Application;
k.
WMII and any Kankakee County Board Members who were Board Members
during any part of the Relevant Time, but who did not vote on or were not
County Board Members at the time of the vote on the Siting Application;
I.
Dale Hoekstra and Karl Kruse;
m.
Lee Addleman and Karl Kruse;
n.
Dale Hoekstra and Pam Lee;
o.
Lee Addleman and Pam Lee;
p.
Dale Hoekstra
and Mike Quigley;
q. Lee Addleman and Mike Quigley;
r.
Dale
Hoekstra and George Washington, Jr.;
s.
Lee Addleman and George
Washington, Jr.;
t.
Any one or more of the
attorneys at Swanson, Martin
& Bell and any one or
14
more of the attorneys at Hinshaw & Culbertson.
OBJECTION:
The County objects to this interrogatory as vague, overbroad,
irrelevant, and not reasonably calculated to lead to the discovery of
relevant evidence. First, as noted in the County’s objection above,
the definition of “Relevant Time” is overbroad, and should be limited
only to the period between August 16, 2002 and January 31, 2003.
Second, the request seeks communications relating to “the
operational history of the existing landfill at the site.”
The
interrogatory appears to seek
information relating to alleged
prejudgment of adjudicative
facts or fundamental fairness. However,
before such
requests are made, petitioner must allege specific
instances or evidence of fundamental unfairness: petitioner may not
engage in a “fishing expedition.”
Land and Lakes Co. V. VILLAGE of
Romeoville,
PCB
92-25, slip op. at
4
(June
4,
1992);
DiA4aggio v.
Solid Waste Agency ofNorthern Cook County,
PCB 89-138, slip op.
at 7 (October 27, 1989). To the extent this interrogatory seeks
information relating to any of the siting criteria, no evidence outside
the County’s record is allowable. The Pollution Control Board’s
review of manifest weight is limited to the evidence before the local
decisionmaker. (415 ILCS 5/40.1(b).) Finally, the County objects to
this Interrogatory to the extent it seeks disclosure of information
protected by the attorney-client privilege, the attorney work product
doctrine, or any other applicable privilege.
24.
Identify any and all Communications by the County Board (or any of its individual
members) and any of the following Persons, concerning or relating to the decision
ofthe Kankakee County Board to approve, with or subject to conditions, the Facility:
a.
The County (including, but not limited to its staff, employees, consultants,
and/or attorneys, no matter if employed by or contracted with the County);
b.
The County Regional Planning & Development sic Commission;
c.
Mike Quigley (during the time he was not a County Board Member);
d.
Attorneys from the firms sic of Hinshaw & Culbertson.
OBJECTION:
The County objects to this interrogatory as vague, overbroad,
irrelevant, and not reasonably calculated to lead to the discovery of
15
relevant evidence. First, as noted in the County’s objection above,
the definition of “Relevant Time” is overbroad, and should be limited
only to the period between August 16, 2002 and January 31, 2003.
Second, the request seeks communications relating to “the decision
of the Kankakee County Board to approve, with or subject to
conditions, the Facility.”
The interrogatory appears to seek
information relating to alleged fundamental fairness claims. However,
before such requests are made, petitioner must allege specific
instances or evidence of fundamental unfairness: petitioner may not
engage in a “fishing expedition.”
See, e.g., Land and Lakes Co. v.
Village of Romeoville,
PCB 92-25, slip op. at 4 (June 4, 1992);
DiMaggio v. Solid Waste Agency ofNorthern Cook County,
PCB 89-
138, slip op. at 7 (October 27, 1989). Finally, the County objects to
this Interrogatory to the extent it seeks disclosure of information
protected by the attorney-client privilege, the attorney work product
doctrine, or any other applicable privilege.
25.
Identify any and all Communications between the County Board (or any of its
Members) and any ofthe following Persons: concerning or relating to the document
entitled
Summaiy Report of the Proposed Expansion ofthe Kankakee Recycling
and Disposal Facility,
prepared by the Kankakee County Staff, and dated January
6, 2003 (or any of the drafts of that document) or the information contained in that
document or its drafts:
a.
The County (including, but not limited to its staff, employees, consultants,
and/or attorneys, no matter if employed by or contracted with the County);
b.
The County Regional Planning & Development sic Commission;
c.
Mike Quigley (during the time he was not a County Board Member);
d.
Attorneys from the firms sic of Hinshaw & Culbertson.
OBJECTION:
The County objects to this interrogatory as vague, overbroad,
irrelevant, and not reasonably calculated to lead to the discovery of
relevant evidence. First, as noted in the County’s objection above,
the definition of “Relevant Time” is overbroad, and should be limited
16
only to the period between August 16, 2002
and January 31, 2003.
Second, the request seeks communications relating to the County
staff report, duly filed as a public comment in the local proceeding.
The interrogatory appears to seek information relating to alleged
fundamental fairness claims. However, before such requests are
made, petitioner must allege specific instances or evidence of
fundamental unfairness: petitioner may not engage in a “fishing
expedition.”
See, e.g., Land and Lakes Co. v. Village ofRomeovile,
PCB 92-25, slip op. at 4 (June 4, 1992);
DiMaggio v. Solid Waste
Agency of Northern Cook County,
PCB 89-138, slip op. at 7 (October
27, 1989). Finally, the County objects to this Interrogatory to the
extent it
seeks disclosure of information protected by the attorney-
client privilege, the attorney work product doctrine, or any other
applicable privilege.
Respecifully submitted,
COUNTY OF KANKAKEE and
COUNTY BOARD OF KANKAKEE
By: ~zethS.Harv~~
One of Its Attorne s
Charles F. Helsten
Elizabeth S. Harvey
Richard Porter
Swanson, Martin & Bell
Hinshaw & Culbertson
One IBM Plaza, Suite 2900
100 Park Avenue
330 North Wabash Avenue
P.O. Box 1389
Chicago,
IL 60611
Rockford, IL 61105-1389
312/321-9100
815/963-8488
17
RECEiVED
CLERK’S ØP~~
APR 1, 02003
STATE OF ILLINOIS
PCB 03-1
25
PollutiOn
Control Board
)
PCBPCBO3-13403-1 33
)
PCB 03-1 35
)
PCB
03-144 (consolidated)
COUNTY OF KANKAKEE, COUNTY
)
(Pollution Control Facility Siting Appeals)
BOARD OF KANKAKEE, and WASTE )
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
COUNTY BOARD OF KANKAKEE’S OBJECTIONS TO
PETITIONER WATSON’S DOCUMENT REQUESTS
Respondent COUNTY BOARD OF
KANKAKEE
(“County”), by its
attorneys Hinshaw
& Culbertson and Swanson, Martin &
Bell, hereby object to some
ofthe document requests
filed by petitioner MICHAEL WATSON (“Watson”).1 These objections are directed to the
hearing officer.
Definitions
The County objects to the definition of “relevant time period,” which Watson states
as “the period between August 1, 2001 and February 28, 2003.” This time period is overly
broad. Events
outside the time period from August 16, 2002 (the date of filing of the siting
application) to January 31,
2003 (the date of the County Board’s decision on the siting
application) are irrelevant to this appeal. 415 ILCS
5/40.1. This objection applies to each
Pursuant to the hearing officer’s direction, the County files these objections by
noon on April 10, 2003. Responses to requests which are not objected to in this filing will be
filed no later than noon on April 18, 2003, pursuant to the discovery schedule in this matter.
0198-001
CITY OF KANKAKEE,
Petitioner,
v.
ILLINOIS POLLUTION CONTROL BOARD
)
)
)
1
2
and every one of the requests propounded by Watson, regardless of whether that request
is specifically listed in the following objections.
Document Requests
5.
Any and all documents between or provided to/from any ofthe following Persons,
other than those documents which are included in the Record on Appeal,
concerning or relating to the Siting Application or any of its component parts:
a.
The staff or employees of Kankakee County and its consultants or attorneys;
b.
The County and any one or more members
ofthe County Board;
c. The County and any one or more members of the County Regional Planning
and Development sic Commission;
d. The County and WMII;
e.
WMII and any one or more member of the County
Board (including, but not
limited to those Persons identified in subparagraphs I through s, below);
f.
WMII and any one or more member of the County
Regional Planning &
Development sic Commission;
g. WMII and the County;
h.
WMII and attorneys from the firms of Hinshaw & Culbertson and/or Swanson,
Martin & Bell;
i.
WMII
and
the Kankakee County Board Chairman;
j.
A member ofthe general public and any member ofthe County Board, when
the member of the general public was speaking in support of or in favor of
WMII or its Siting Application;
3
k.
WMII and any Kankakee County Board Members who were Board Members
during any part of the Relevant Time, but who did not vote on or were not
County Board Members at the time of the vote on the Siting Application;
I.
Dale Hoekstra and Karl Kruse;
m.
Lee Addleman and Karl Kruse;
n.
Dale Hoekstra and Pam Lee;
o.
Lee Addleman and Pam Lee;
p.
Dale Hoekstra and Mike Quigley;
q.
Lee Addleman and Mike Quigley;
r.
Dale Hoekstra and George Washington, Jr.;
s.
Lee Addleman and George Washington, Jr.
OBJECTION:
The County objects to this request as vague, overbroad, irrelevant,
not reasonably calculated to lead to relevant evidence.
First, as
noted
in the County’s objection above, the definition of “Relevant
Time” is
overbroad, and should be limited only to the period between
August 16, 2002 and January 31, 2003. Second, the request seeks
communications relating to the
Siting Application. The interrogatory
appears to seek information relating to alleged fundamental fairness
claims. However, before such requests are made, petitioner must
allege specific
instances or evidence of fundamental unfairness:
petitioner may not engage in a “fishing expedition.”
See, e.g., Land
and Lakes Co. v. Village ofRomeoville,
PCB 92-25, slip op. at4 (June
4, 1992);
DiMaggio v. Solid Waste Agency of Northern Cook County,
PCB 89-1 38, slip op. at 7 (October 27,
1989). Finally, the County
objects to this Interrogatory to
the extent
it seeks disclosure of
information protected by
the attorney-client privilege, the attorney
work product
doctrine, or any other applicable privilege.
4.
Any and all documents created by the County during the Relevant Time related to
the Siting Application or a landfill expansion at the site proposed in the Siting
4
Application, whether or not such documents were provided to anyone, excluding
documents included in the Record on Appeal.
OBJECTION:
The County incorporates its objection to Request Number 3 as if that
objection were fully set forth herein. Additionally, the County objects
to Request Number 4 on the grounds that, in seeking documents
relating to a theoretical expansion at the site, which is not the
expansion proposed in the Siting Application, the Request exceeds
the permissible scope of discovery. The only relevant matter is the
Siting Application which was filed by WMII on August 16, 2002, and
ruled upon by the County Board on January 31, 2003.
5.
Any and all documents between or provided to/from any of the following Persons,
other than those documents which are included in the Record on Appeal,
concerning or related to Resolution 01-10-09-393 (purporting to amend Kankakee
County’s Solid Waste Management Plan):
a.
The staffor employees of Kankakee County and its consultants or attorneys;
b.
The County and any one or more members of the County Board;
c.
The County and any one or more members ofthe County Regional Planning
and Development sic Commission;
d. The County and WMII;
e.
WMII and any one or more member of the County Board;
f.
WMII and any one or more member of the County Regional Planning &
Development sic Commission;
g.
WMII and the County;
h.
WMII and attorneys from the firms of Hinshaw & Culbertson and/or Swanson,
Martin & Bell;
5
WMII and the Kankakee County Board Chairman;
j.
A member ofthe general public and any member ofthe County Board, when
the member of the general public was speaking in support of or in favor of
WMII or its Siting Application;
k.
WMII and any Kankakee County Board Members who were Board Members
during any part of the Relevant Time, but who did not vote on the Siting
Application.
OBJECTION:
The County objects to this Request in its entirety. Resolution 01-10-
09-393, adopted on or about October 9, 2001, amends the County’s
solid waste management
plan. Information regarding the solid waste
management plan, including its adoption
and amendments to the
plan, is
not relevant to this appeal,
is not reasonably calculated to
lead to the discovery of relevant information, is improper, and is
beyond the scope of permissible discovery. The Pollution Control
Board does
not review the legislative process of adoption and
amendment of
solid waste management plans: “allegations
concerning the adoption ofthe county’s solid waste management plan
are not proper allegations for Board consideration in a Section 40.1
pollution control facility siting appeal.”
Residents Against a Polluted
Environment v. County of LaSalle,
PCB 96-243, slip op. at 15-16
(Sept. 9, 1996),
aff’d Residents Against a Polluted Environment v.
Illinois Pollution Control Board,
293 lll.App.3d 219, 687 N.E.2d 552,
555 (3d Dist. 1997). (“Section 40.1 does not authorize the Board to
review the process involved in the County’s amendment ofthe Plan.”)
Further, any involvement by the County with the applicant in the
amendment of a plan does not create a suspicion of bias by the
County during the Siting Process.
Residents Against a Polluted
Environment.
687 N.E.2d at 555. Additionally, the solid waste
management plan, and resolutions amending that plan, were adopted
prior
to the August 16, 2002 filing of the siting application, and thus
that process is irrelevant to this appeal. Finally, the County objects
to this Interrogatory to the extent
it seeks disclosure of information
protected by
the attorney-client privilege, the attorney work product
doctrine, or any other applicable privilege.
6.
Any and all documents created by the County during the Relevant Time related to
6
the Resolution 01-10-09-393, whether or not such documents were provided to
anyone, excluding documents in the Record on Appeal.
OBJECTION:
The County incorporates its objection to Request Number 5 as if that
objection were fully set forth herein.
7.
Any and all documents between or provided to/from any of the following Persons,
other than those documents which are included in the Record on Appeal,
concerning or related to Resolution 02-03-12-481 (purporting to amend Kankakee
County’s Solid Waste Management Plan):
a.
The staff or employees of Kankakee County and its consultants or attorneys;
b.
The County and any one or more members of the County Board;
c.
The County and any one or more members ofthe County Regional Planning
and Development sic Commission;
d.
The County and WMII;
e.
WMII and any one or more member of the County Board;
f.
WMII and any one or more member of the County Regional Planning &
Development sic Commission;
g.
WMll and the County;
h.
WMII and attorneys from the firms of Hinshaw & Culbertson and/or Swanson,
Martin & Bell;
WMll and the Kankakee County Board Chairman;
j.
A member of
the general public and any member ofthe County Board, when
the member of the general public was speaking in support of or in favor of
7
WMII or its Siting Application;
k.
WMII and any Kankakee County Board Members who were Board Members
during any part of the Relevant Time, but who did not vote on the Siting
Application.
OBJECTION:
The County incorporates its objection to Request Number 5 as if fully
set forth herein. Resolution 02-03-12-481
also relates to the
amendment of the solid waste management plan. Thus, the objection
raised to Request Number 5 is equally applicable to Request Number
7.
8.
Any and all documents created by the County during the Relevant Time related to
the Resolution 02-03-12-481, whether or not such documents were provided to
anyone, excluding documents in the Record on Appeal.
OBJECTION:
The County incorporates its objection to Request Number 7 as if that
objection were fully set forth herein.
9,
Any and all documents between or provided to/from any of the following Persons,
other than those
documents which are included in the record on appeal, concerning
or related to the Host Agreement and/or any of its
component parts or exhibits:
a.
The staff or employees of Kankakee County and
its consultants or attorneys;
b.
The County and
any one or more members of the County Board;
c.
The County and any one or more members ofthe County Regional Planning
and Development sic Commission;
d.
The County and WMII;
e.
WMII and any one or more member of the County Board (including, but not
limited to those Persons identified in subparagraphs i through s, below);
8
f.
WMII and any one or more member of the County Regional Planning &
Development sic Commission;
g. WMll and the County;
h.
WMII and attorneys from the firms of Hinshaw & Culbertson and/or Swanson,
Martin & Bell;
WMII and the Kankakee County Board Chairman;
j.
A member of the general public and any member ofthe County Board, when
the member of the general public was speaking in support of or in favor of
WMII or its Siting Application;
k.
WMII and any Kankakee County Board Members who were Board Members
during any part of the Relevant Time, but who did not vote on or were not
County Board Members at the time of the vote on the Siting Application;
Dale Hoekstra and Karl Kruse;
m. Lee Add leman and Karl Kruse;
n.
Dale Hoekstra and
Pam Lee;
o.
Lee Addleman and Pam Lee;
p.
Dale Hoekstra and Mike Quigley;
q.
Lee Addleman and Mike Quigley;
r.
Dale Hoekstra and George Washington, Jr.;
s.
Lee Addleman and George Washington, Jr.
OBJECTION:
The County objects to this Request in its entirety. Information
regarding the Host Agreement is not relevant to this appeal, and is not
reasonably calculated to lead to the discovery of relevant information.
9
It is well settled that the drafting and adoption of a host agreement is
a legislative function which is not an indication of prejudgment or bias.
Residents Against a Polluted Environment v. County ofLaSalle,
PCB
96-243, slip op. at
15-16 (Sept.
9,
1996),
aff’d Residents Against a
Polluted Environment v. Illinois Pollution ControlBoard,
293 lll.App.3d
219, 687 N.E.2d 552, 555 (3d Dist. 1997). Additionally, the Host
Agreement was negotiated and adopted prior to the August 16, 2002
filing ofthe siting application, and thus that process is irrelevant to this
appeal. Finally, the County objects to this Interrogatory to the extent
it seeks disclosure of information protected by the attorney-client
privilege, the attorney work product doctrine, or any other applicable
privilege.
10.
Any and all documents created by the County during the Relevant Time related to
the Host Agreement (including but not limited to the Exhibits to the Host
Agreement), whether or not such documents were provided to anyone, excluding
documents included in the Record on Appeal.
OBJECTION:
The County incorporates its objection to Request Number 9 as if set
forth in its entirety.
11.
Any and all documents between or provided to/from any of the following Persons,
other than those documents which are included in the record on appeal, concerning
or relating to the development, design, operation, or location of a landfill expansion
by WMll in Kankakee County:
a.
The staff or employees of Kankakee County and its consultants or attorneys;
b.
The County and any one or more members of the County Board;
c.
The County and any one or more members ofthe County Regional Planning
and Development sic Commission;
d.
The County and WMII;
e.
WMII and any one or more member of the County Board (including, but not
10
limited to those
Persons identified in subparagraphs i through s, below);
f.
WMII and any
one or more member of the County Regional Planning &
Development sic Commission;
g.
WMII and the County;
h.
WMII and attorneys from the firms of Hinshaw & Culbertson and/or Swanson,
Martin & Bell;
WMll and the Kankakee County Board Chairman;
j.
A
member ofthe general public and any member ofthe County Board, when
the member of the general public was speaking in support of or in favor of
WMII or its Siting Application;
k.
WMII and any Kankakee County Board Members who were Board Members
during any part of the Relevant Time, but who did not vote on or were not
County Board Members at the time of the vote on the Siting Application;
I.
Dale Hoekstra and Karl Kruse;
m.
Lee Addleman and Karl Kruse;
n.
Dale Hoekstra and Pam Lee;
o.
Lee Addleman and Pam Lee;
p.
Dale Hoekstra and Mike Quigley;
q.
Lee Addleman and Mike Quigley;
r.
Dale Hoekstra and George Washington, Jr.;
s.
Lee Addleman and George Washington, Jr.
OBJECTION:
The County objects to this request as vague, overbroad, irrelevant,
11
and not reasonably calculated to lead to the discovery of relevant
evidence. First, as noted in the County’s objection above, the
definition of “Relevant Time” is overbroad, and should be limited only
to the period between August 16, 2002 and January 31, 2003.
Second, the request seeks communications relating to “the
development, design, operation, or location of a landfill expansion by
WMII in Kankakee County, and is not limited to the landfill expansion
at issue in this appeal. Any theoretical documents relating to any
other theoretical landfill expansion are beyond the scope of this
appeal. Finally, the County objects to this Interrogatory to the extent
it seeks disclosure of information protected by the attorney-client
privilege, the attorney work product doctrine, or any other applicable
privilege.
12.
Any and all documents created by the County during the relevant time related to the
development, design, operation or location of a landfill expansion by WMII in
Kankakee County, whether or not such documents were provided to anyone,
excluding documents included in the Record
on Appeal.
OBJECTION:
The County incorporates its objection to Request Number 11 as if that
objection were fully set forth herein.
13.
Any and all documents between or provided to/from any of the following Persons,
other than those documents which are included in the Record on Appeal,
concerning or relating to the development of a landfill expansion at, within, or
adjacent to the site that was the subject of the Siting Application:
a.
The staff or employees of Kankakee County and its consultants or attorneys;
b.
The County and any one or more members of the County Board;
c.
The County and any one or more members ofthe County Regional Planning
and Development sic Commission;
d.
The County and WMII;
12
e.
WMII and any one or more member of the County Board (including, but not
limited to those Persons identified in subparagraphs i through s, below);
f.
WMII and any one or more member of the County Regional Planning &
Development sic Commission;
g. WMII and the County;
h.
WMII and attorneys from the firms of Hinshaw & Culbertson and/or Swanson,
Martin & Bell;
WMII and the Kankakee County Board Chairman;
j.
A member ofthe general public and any member ofthe County Board, when
the member of the general public was speaking in support of or in favor of
WMII or its Siting Application;
k.
WMII and any Kankakee County Board Members who were Board Members
during any part of the Relevant Time, but who did not vote on or were not
County Board Members at the time of the vote on the Siting Application;
Dale Hoekstra and Karl Kruse;
m.
Lee Addleman and Karl Kruse;
n.
Dale Hoekstra and Pam Lee;
o.
Lee Addleman and Pam Lee;
p.
Dale Hoekstra and Mike Quigley;
q.
Lee Addleman and Mike Quigley;
r.
Dale Hoekstra and George Washington, Jr.;
s.
Lee Addleman and George Washington, Jr.
13
OBJECTION:
The County objects to this request as vague, overbroad, irrelevant,
and not reasonably calculated to lead to the discovery of relevant
evidence. First, as noted in the County’s objection above, the
definition of “Relevant Time” is overbroad, and should be limited only
to the period between August 16, 2002 and January 31, 2003.
Second, the request seeks communications relating to “the
development of
a landfill expansion at, within or adjacent to the site
thatwas the subject of the Siting Application,” and is not limited to the
landfill expansion at issue
in this appeal. Any theoretical documents
relating to any other theoretical
landfill expansion are beyond the
scope of this appeal. Third, to the extent this request seeks
documents regarding the expansion at issue in this appeal, the scope
of the Board’s review is limited to documents in the County’s record.
415 ILCS 5/40.1(b). Finally, the County objects to this request to the
extent it seeks disclosure of information protected by the attorney-
client privilege, the attorney work product doctrine, or any other
applicable privilege.
14.
A copy of the cellular or mobile phone invoices, itemized to show phone calls made
and/or received, from Karl Kruse, Kankakee County Board Chairman, for the time
period from August 16, 2002 to February 28, 2003.
OBJECTION:
The County objects to this request as overbroad, irrelevant, not
reasonably calculated to lead to the discovery of relevant evidence,
and beyond the permissible scope of discovery. First, as noted in the
County’s objection above, the time period is overbroad, and should be
limited to the period ending January 31, 2003. Second, the request
appears to seek information relating to alleged fundamental fairness
issues. However, before such requests are made, petitioner must
allege specific instances or evidence of fundamental unfairness:
petitioner may not engage in a “fishing expedition.”
Land and Lakes
Co. v. Village of Romeoville,
PCB 92-25, slip op. at 4 (June 4, 1992);
DiMaggio v. Solid Waste Agency ofNorthern Cook County,
PCB 89-
138, slip op. at 7 (October 27, 1989). Third, the request is overbroad,
in that Mr. Kruse cellular phone invoices almost certainly include calls
unrelated to this appeal, and unrelated to his position as Kankakee
County Board Chairman. Finally, the County objects to this request
to the extent it seeks disclosure of information protected by the
attorney-client privilege, the attorney work product doctrine, or any
other applicable privilege.
14
15.
A copy of the cellular or mobile phone invoices or itemization of phone calls made
and/or received to or from Karl Kruse, on the or any sic mobile or cellular phone
used by Mr. Kruse on January 31, 2003.
OBJECTION:
The County incorporates its objection to Request Number 14 as if that
objection were fully set forth herein.
16.
Any and all documents showing, in an itemized manner, the phone calls made or
received from the following Persons’ County phone and any phone that they use for
County business, for the time period from August 16, 2002 to February 28, 2003:
a.
Karl Kruse, Kankakee County Board Chairman;
b.
George Washington, Jr., County Board Member;
c.
Pam Lee, County Board Member; and
d.
Mike Quigley, during that portion of the time frame outlined in this
Interrogatory sic during which he was a County Board Member.
OBJECTION:
The County objects to this request as overbroad, irrelevant, not
reasonably calculated to lead to the discovery of relevant evidence,
and beyond the permissible scope ofdiscovery. First, as noted in the
County’s objection above, the time period is overbroad, and should be
limited to the period ending January 31, 2003. Second, the request
appears to seek information relating to alleged fundamental fairness
issues. However, before such requests are made, petitioner must
allege specific instances or evidence of fundamental unfairness:
petitioner may not engage in a “fishing expedition.”
Land and Lakes
Co. v. Village ofRomeoville,
PCB 92-25, slip op. at 4 (June 4, 1992);
DiMaggio v. Solid Waste Agency of Northern Cook County,
PCN 89-
138, slip op. at 7 (October 27, 1989). Third, the request is overbroad,
in that the documents almost certainly include calls unrelated to this
appeal, and unrelated to the members’ positions as Kankakee County
Board Members. Finally, the County objects to this request to the
extent it seeks disclosure of information protected by the attorney-
client privilege, the attorney work product doctrine, or any other
applicable privilege.
15
17.
Any and all documents concerning or relating to or evidencing communications
between any of the following Persons, or documents which were created by one of
the following Persons and delivered to or seen by another one of the following
Persons, concerning Kankakee County’s decision to identify only one landfill
location, specifically, and/or one landfill operator, specifically, in its Solid Waste
Management Plan, as amended. This Request is not intended to seek documents
concerning or relating to or evidencing communications solely between County
Board Members, during periods oftime in which they were County Board Members.
a.
WMII;
b.
Any one or more of the County Board Members;
c.
Any one or more employee, representative, agent or attorney for the County;
d.
Any one or more members of the County Regional Planning & Development
sic Commission.
OBJECTION:
The County objects to this Request in its entirety. Information
regarding the solid waste management plan, including its adoption
and amendments to the plan, is not relevant to this appeal, is not
reasonably calculated to lead to the discovery of relevant information,
is improper, and is beyond the scope of permissible discovery. The
Pollution Control Board does not review the legislative process of
adoption and amendment of solid waste management plans:
“allegations concerning the adoption of the county’s solid waste
management plan are not proper allegations for Board consideration
in a Section 40.1 pollution control facility siting appeal.”
Residents
Against a Polluted Environment v. County of La Salle,
PCB 96-243,
slip op. at 15-16 (Sept. 9, 1996),
aff’d Residents Against a Polluted
Environment v. Illinois Pollution Control Board,
293
lIl.App.3d 219,
687 N.E.2d 552, 555 (3d Dist. 1997). (“Section 40.1 does not
authorize the Board to review the process involved in the County’s
amendment of the Plan.”) Further, any involvement by the County
16
with the applicant in the amendment of the Plan does not create a
suspicion of bias by the County in the siting process.
Residents
Against a Polluted Environment,
687 N.E.2d at 555. Additionally, the
solid waste management plan, and resolutions amending that plan, -
were adopted prior to the August 16, 2002 filing of the siting
application, and thus that process is irrelevant to this appeal. Finally,
the County objects to this request to the extent it seeks disclosure of
information protected by the attorney-client privilege, the attorney
work product doctrine, or any other applicable privilege.
18.
A certified copy of Resolution 01 -1 0-09-393.
OBJECTION:
The County objects to this Request in its entirety. Information
regarding the solid waste management plan, including its adoption
and amendments to the plan, is not relevant to this appeal, is not
reasonably calculated to lead to the discovery of relevant information,
is improper, and is beyond the scope of permissible discovery. The
Pollution Control Board does not review the legislative process of
adoption and amendment of solid waste management plans:
“allegations concerning the adoption of the county’s solid waste
management plan are not proper allegations for Board consideration
in a Section 40.1 pollution control facility siting appeal.”
Residents
Against a Polluted Environment v. County of LaSalle,
PCB 96-243,
slip op. at 15-16 (Sept. 9, 1996),
aff’d Residents Against a Polluted
Environment v. Illinois Pollution Control Board,
293 lll.App.3d 219,
687 N.E.2d 552, 555 (3d Dist. 1997). (“Section 40.1 does not
authorize the Board to review the process involved in the County’s
amendment of the Plan.”) Further, any involvement by the County
with the applicant in the amendment of the Plan does not create a
suspicion of bias by the County in the siting process.
Residents
Against a Polluted Environment,
687 N.E.2d at 555. Additionally,
Resolutions 01-10-09-393 and 02-03-12-481, amending that plan,
were adopted prior to the August 16, 2002 filing of the siting
application, and thus that process is irrelevant to this appeal.
19.
A certified copy of Resolution 02-03-12-481.
OBJECTION:
The County incorporates its objection to Request Number 18 as if fully
set forth herein.
21.
A certified copy of the Committee Meeting and County Board Meeting minutes and
audio tape(s) for those meetings at which there were any discussions concerning
17
Resolution 01-10-09-393 and/or Resolution 02-02-1 2-481.
OBJECTION:
The County incorporates its objection to Request Number 18 as if fully
set forth herein.
22.
A certified copy of the Committee Meeting and County Board Meeting minutes and
audio tape(s), for those meetings at which there were any discussions concerning
the Host Agreement.
OBJECTION:
The County incorporates its objection to Request Number 9 as if fully
set forth herein.
23.
A certified copy ofthe Committee Meeting and County Board Meeting minutes and
audio tape(s), for those meetings at which a potential or landfill sic expansion by
WMII was discussed, other than the January 31, 2003 County Board Meeting.
OBJECTION:
The County incorporates its objections to Requests Numbers 11 and
13, as if those objections were fully set forth herein.
25.
All invoices or itemizations of time from Hinshaw & Culbertson for services provided
to the County and/or County Board.
OBJECTION:
The County objects to this request as overbroad, irrelevant, not
reasonably calculated to lead to the discovery of relevant evidence,
and beyond the permissible scope of discovery. First, as noted in the
County’s objection above, the time period is overbroad, and should be
limited to the period ending January 31, 2003. Second, the request
appears to seek information relating to alleged fundamental fairness
issues. However, before such requests are made, petitioner must
allege specific instances or evidence of fundamental unfairness:
petitioner may not engage in a “fishing expedition”.
Land and Lakes
Co. v. Village ofRomeoville,
PCB 92-25,
slip op. at 4 (June 4, 1992);
DiMaggio v. Solid Waste Agency of Northern Cook County,
PCN 89-
138, slip op. at 7 (October 27, 1989). Finally, the County objects to
this request to the extent it seeks disclosure of information protected
by the attorney-client privilege, the attorney work product doctrine, or
any other applicable privilege.
26.
Any and all documents between, provided to, or received by the County Board (or
18
any of its Members) and any of the following Persons, other than those documents
which are included in the Record on Appeal, concerning or relating to the decision
ofthe Kankakee County Board to approve, with or subject to conditions, the Facility:
a.
The County (including, but not limited to its staff, employees, consultants,
and/or attorneys, no matter if employed by or contracted with the County);
b.
The County Regional Planning & Development sic Commission;
c.
Mike Quigley (during the time he was not a County Board Member);
d.
Attorneys from the firms sic of Hinshaw & Culbertson; and
e.
WMll or any of its affiliates or parents or their employees, officers, agents,
or representatives.
OBJECTION:
The County objects to this request as vague, overbroad, irrelevant,
and not reasonably calculated to lead to the discovery of relevant
evidence. First, as noted in the County’s objection above, the
definition of “Relevant Time” is overbroad, and should be limited only
to the period between August 16, 2002 and January 31, 2003.
Second, the request seeks communications relating to “the decision
of the Kankakee County Board to approve, with or subject to
conditions, the Facility.”
The interrogatory appears to seek
information relating to alleged fundamental fairness claims. However,
before such requests are made, petitioner must allege specific
instances or evidence of fundamental unfairness: petitioner may not
engage in a “fishing expedition”. See,
e.g., Land and Lakes Co. V.
VILLAGE of Romeoville,
PCB 92-25, slip op. at 4 (June 4, 1992);
DiMaggio v. Solid Waste Agency ofNorthern Cook County,
PCB 89-
138, slip op. at 7 (October 27, 1989). Finally, the County objects to
this request to the extent it seeks disclosure of information protected
by the attorney-client privilege, the attorney work product doctrine, or
any other applicable privilege.
27.
Any and all documents between, provided to, or received by the County Board (or
any of its Members) and any ofthe following Persons, other than those documents
19
which are included in the Record on Appeal, concerning or relating to the document
entitled
Summaty Report ofthe Proposed Expansion of the Kankakee Recycling
and Disposal Facility,
prepared by the Kankakee County Staff, and dated January
6,
2003 (or any of the drafts of that document)
or the information contained in that
document or its drafts:
a.
The County (including, but not limited to its staff, employees, consultants,
and/or attorneys, no matter if employed by or contracted with the County);
b.
The County Regional Planning & Development sic Commission;
c.
Mike Quigley (during the time he was not a County Board Member);
d.
Attorneys from the firms sic of Hinshaw & Culbertson; and
e.
WMII or any of its affiliates or parents or their employees, officers, agents or
representatives.
OBJECTION:
The County objects to this request as vague, overbroad, irrelevant,
and not reasonably calculated to lead to the discovery of relevant
evidence. First, as noted in the County’s objection above, the
definition of “Relevant Time” is overbroad, and should be limited only
to the period between August 16, 2002 and January 31, 2003.
Second, the request seeks communications relating to the County
staff report, duly filed as a public comment in the local proceeding.
The interrogatory appears to seek information relating to alleged
fundamental fairness claims. However, before such requests are
made, petitioner must allege specific instances or evidence of
fundamental unfairness: petitioner may not engage in a “fishing
expedition.”
See, e.g., Land and Lakes Co. v. Village of Romeovile,
PCB 92-25, slip op. at 4 (June 4, 1992);
DiMaggio v. Solid Waste
Agency ofNorthern Cook County,
PCB 89-138, slip op. at 7 (October
27, 1989). Finally, the County objects to this request to the extent it
seeks disclosure of information protected by the attorney-client
privilege, the attorney work product doctrine, or any other applicable
privilege.
20
28.
All invoices or itemizations of time from Swanson, Martin & Bell for services
provided to the County and/or County Board during the Relevant Time.
OBJECTION:
Charles F. Helsten
Richard Porter
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815/963-8488
The County incorporates its objection to Request Number 25 as if that
objection were fully set forth herein.
Respectfully submitted,
COUNTY OF KANKAKEE and
COUNTY BOARD OF KANKAKEE
Elizabeth S. Harvey
Swanson, Martin & Bell
One IBM Plaza, Suite 2900
330 North Wabash Avenue
Chicago, IL 60611
312/321-9100
)
)
PCBO3-125
)
PCB 03-1 33
)
PCB 03-1 34
)
PCB 03-1 35
)
PCB 03-144 (consolidated)
COUNTY OF KANKAKEE, COUNTY
)
(Pollution Control Facility Siting Appeals)
BOARD OF KANKAKEE, and WASTE )
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
COUNTY’S MOTION TO QUASH SUBPOENA
Respondent COUNTY BOARD OF KANKAKEE (“County”), by its attorneys Hinshaw
& Culbertson and Swanson, Martin & Bell, hereby move the hearing officer to quash the
subpoena duces tecum served by petitioner MICHAEL WATSON (“Watson”) on Kankakee
County.
1.
On April 7, 2003, counsel for the County received a copy of a subpoena duces
tecum purportedly served upon “Kankakee County, Illinois, c/o Mr. Bruce Clark,
Kankakee County Clerk.” The subpoena duces tecum seeks the production of all
documents “responsive to the lnterrogatories and Document Production Requests
attached, which are or will not be sic produced by the Kankakee County Board in
response to the attached discovery requests.”
2.
Pursuant to Section 101 .620(d) ofthe Board’s procedural rules, the hearing officer
may quash a subpoena if that subpoena is unreasonable or irrelevant. The County
moves to quash the subpoena on three grounds.
0198-001
CITY OF KANKAKEE,
Petitioner,
v.
ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
OFFICE
APR 1 0 2003
STATE OF ~LL1NOIS
pollution Control
Board
3.
First, it is inappropriate for Watson, a
party to
the appeal, to attempt to subpoena
documents from the County, another party to the appeal. Since both entities are
parties to the appeal, Watson has the ability to seek discoverable information
through the use of interrogatories and document requests. Indeed, Watson has
utilized that ability, and has served interrogatories and document requests upon the
County. Watson should be barred from seeking the same information via subpoena
as he already seeks through discovery.
4.
Second, the subpoena duces tecum seeks documents which are responsive to the
document requests, but “will not be produced.” Thus, Watson seeks to obtain,
through the subpoena, information which he cannot obtain through proper
discovery. For example, some of the documents he seeks may be privileged,
irrelevant, or otherwise protected from production. (As the hearing officer and the
parties are aware, the County has filed objections to some of Watson’s discovery
requests.) A subpoena cannot be used to obtain documents which cannot be
obtained through discovery, when both entities are parties to the appeal. To rule
otherwise would allow Watson to circumvent the protections given to an entity
responding to discovery.
5.
Third, to the extent that the subpoena seeks documents which the County will
produce in response to Watson’s discovery requests, the subpoena is duplicative
and burdensome. There is no reason for the County to produce the same
documents twice. Production ofthe same documents twice would be inefficient and
unduly burdensome, and without reason.
2
6.
Finally, if Watson somehow believes that he is seeking information from two
different bodies (the County Board of Kankakee, as named in Watson’s petition for
review, and “Kankakee County,” as named in the subpoena duces tecum), he is
mistaken. Watson has provided no authority for a proposition that the two bodies
are separate, from a legal perspective, in terms of their status as parties to this
appeal, or in terms of the documents and information in their possession.
Additionally, as a practical matter, Watson has defined his interrogatories and
document requests broadly to include all information in the possession of “County
of Kankakee and its agents, employees, attorneys, and all persons or entities who
have acted or purported to act on its behalf”. Thus, Watson’s interrogatories and
document requests---the proper mechanism for Watson to seek the desired
information---already seek information from the County as a whole, and are not
limited to the County Board. Any purported distinction between the County and the
County Board does not provide a basis for Watson’s subpoena duces tecum.
7.
In sum, the County moves that the hearing officer quash the entire subpoena duces
tecum as inappropriate between parties to the appeal. Alternatively, the County
moves that the hearing officer quash the portion of the subpoena which seeks
documents which “will not be produced” as an inappropriate attempt to circumvent
the discovery process and protections. The County further moves that the portion
of the subpoena which seeks documents which will be produced as unreasonable,
inefficient, and unduly burdensome.
WHEREFORE, the County moves that the hearing officer quash the subpoena
3
duces tecum
served by Watson on the County, and for such other relief as the hearing
Respectfully submitted,
COUNTY OF KANKAKEE and
COUNTY BOARD OF KANKAKEE
By:~~L
~
- ne of Its Attorneys
Charles F. Helsten
Richard Porter
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815/963-8488
Elizabeth S. Harvey
Swanson, Martin &
Bell
One IBM Plaza, Suite 2900
330 North Wabash Avenue
Chicago, IL 60611
312/321-9100
officer deems appropriate.
4
ILLINOIS POLLUTION
CONTROL BOARD
RECE~IVED’
CLERK’S
OFF111~
THE CITY OF KANKAKEE, an Illinois
)
APR 10 2003
Municipal
Corporation,
)
)
STATE OHWNOIS
Plaintiff,
)
Pollution Control Board
)
vs.
)
)
Case
No. PCB
03-125
COUNTY
OF KANKAKEE, a
body
politic and)
corporate; KANKAKEE COUNTY BOARD;
)
and WASTE MANAGEMENT OF ILLiNOIS, )
INC.,
)
)
Defendants.
)
DEFENDANTS’ ANSWERS TO CITY OF
KANKAKEE’S
INTERROGATORIES
NOW
COME
the Defendants, COUNTY OF KANTKAKEE, a body politic and corporate
and KANKAKEE
COUNTY
BOARD, by and through their attorneys, H1NSHAW &
CULBERTSON, and for their Answers to
CITY OF
KANKAKEE’S INTERROGATORIES,
states
as follows:
INTERROGATORY NO. 1:
Identify
all persons who
provided information
regarding or assisted in answer these Interrogatories.
ANSWER:
Every County Board Member, Michael Van Mill, on behalf
of
County
Staff, Kankakee County State’s Attorney Edward Smith, Special Assistant
State’s Attorneys Charles Helsten and Richard Porter.
INTERROGATORY NO.
2:
Please identify all persons of WMII who met,
talked, or communicated with the County of Kankakee, County of Kankakee department heads,
professional and technical staff, County employees, and its attorneys, including Edward D. Smith
and his assistants in the office of the Kankakee County State’s Attorney’s Office, prior to the
filing of the landfill Siting Application on August 16, 2002 relating to the planning, development
and siting ofthe Facility, and for each such individual, please:
(a)
identify the individual by name and title and identify what type of
communication took place (written, oral, telephone, e-mail, etc.);
(b)
the subject matter of each such communication;
(c)
describe and delineate the exact statements made during the course of each
such communication;
(d)
identify date, time and duration of each such communication;
(e)
identify the location of each such communication; and
(f~
identify all persons present at such communication.
ANSWER:
The County objects to this Interrogatory in its entirety as it seeks
information that is irrelevant, inadmissible and not likely to lead to
admissible evidence. This intelTogatory appears to seek information
concerning communications, however, before such requests can be made,
a petitioner must allege specific instances or evidence of fundamental
unfairness and may not engage in a “fishing expedition”.
Land and Lakes
Co. v. Village of Romeoville,
PCB
92-25,
slip op. at 4
(June 4, 1992);
DiMaggio v. Solid Waste Agency of Northern Cook County,
PCB 89-138,
slip op. at 7 (October 27, 1989). To the extent this interrogatory seeks
information concerning the planning of solid waste management by the
County including adoption of Solid Waste Management Plans, said
information is irrelevant, not likely to lead to admissible evidence and
beyond the scope of permissible discovery. The Pollution Control Board
does not review the legislative process of adoption and amendment of
solid waste management plans: “allegations concerning the adoption of
the county’s solid waste management plan are not proper allegations for
Board consideration in a Section 40.1 pollution control facility siting
appeal.”
Residents Against a Polluted Environment v. C’ounty ofLaSalle,
PCB 96-243, slip op. at
15-16
(Sept. 9, 1996),
aff’d Residents Against a
Polluted Environment v. Illinois Pollution Control Board,
293 Ill.App.3d
219, 687 N.E.2d
552,
555
(3d Dist. 1997). Additionally, the solid waste
management plan, and resolutions amending that plan were adopted prior
to the August 16, 2002 filing of the siting application, and thus that
process is irrelevant to this appeal.
2
Furthermore, information regarding the Host Agreement is not relevant to
this appeal, and is not reasonably calculated to lead to the discovery of
relevant information. It is well settled that the drafting and adoption of a
host agreement is a legislative function which is not an indication of
prejudgment or bias.
Residents Against a
Polluted Environment v. ~‘ounty
of LaSalle, PCB 96-243, slip op. at 15-16 (Sept. 9, 1996),
aff’d Residents
Against a Polluted Environment v. Illinois Pollution Control Board,
293
Ill.App.3d 219, 687 N.E.2d
552,
555
(3d Dist. 1997). Additionally, the
Host Agreement was negotiated and adopted prior to the August 16, 2002
filing of the siting application, and thus that process is ilTelevant to this
appeal. Finally, the County objects to this Interrogatory to the extent it
seeks disclosure of information ~protectedby the attorney-client privilege,
the attorney work product doctrine, or any other applicable privilege.
Subject to said objection, and without waiving same, on November 30,
2001, Christopher Bolin, on behalf of the City of Kankakee, John
Kennedy, on behalf of Town & Country, Inc., and Dennis Wilt on behalf
of Waste Management of Illinois, met with Kankakee County State’s
Attorney Edward Smith, at which time Town & Country threatened to sue
the County of Kankakee for alleged anti-trust violations. No such suit was
ever filed and because the City was present, the discussion will not be
described in further detail.
Several Board members and department heads participated in Host
Agreement negotiations and/or attended bus tours of the Settlers Hill and
Kankakee County facilities prior to August 16, 2002. The County of
Kankakee is aware that representatives of Waste Management of Illinois
have attended public Kankakee County Board meetings prior to the filing
of the Application. The County does not recall any specifics of any public
statements made by Waste Management of Illinois at these meetings,
however, the minutes of all County Board meetings are public record.
There are communications from WMII written to the County re: proposed
amendments to the Solid Waste Management Plan.
Prior to the filing of the Waste Management Application, communications
did take’ place with the Special Assistant State’s Attorneys and Waste
Management of Illinois, all of which are identified in the invoices of
Hinshaw & Culbertson, which are part of the Kankakee County record.
Investigation continues.
INTERROGATORY NO. 3:
Please identify all persons of WMII who met,
talked, or communicated with any members of the Kankakee County Board and/or County of
Kankakee prior to the filing of the Landfill Siting Application on August 16, 2002 relating to the
planning, development and siting of the Facility, and for each such individual, please:
3
(a)
identify the individual by name and title and identify what type of
communication took place (written, oral, telephone, e-mail, etc.);
(b)
the subject matter of each such communication;
(c)
describe and delineate the exact statements made during the course of each
such communication;
(d)
identify date, time and duration of each such communication;
(e)
identify the location of each such communication; and
(0
identify all persons present at such communication.
ANSWER:
See Objection and Answer to Intenogatory No. 2
INTERROGATORY NO. 4:
Identify all persons of WMII who met, talked, or
otherwise communicated with the County of Kankakee and/or the Kankakee County Board after
the filing of the Landfill Siting Application on August 16, 2002, relating to the planning,
development and siting of a solid waste management facility, and for each such individual,
please:
(a)
identify the individual by name and title and identify what type of
communication took place (written, oral, telephone, e-mail, etc.);
(b)
the subject matter of each such communication;
(c)
describe and delineate the exact statements made during the course of each
such communication;
(d)
identify date, time and duration of each such communication;
(e)
identify the location of each such communication; and
(f)
identify all persons present at such communication.
ANSWER: Objection
to the extent this Interrogatory seeks irrelevant communications
between Waste Management of Illinois, Inc. and the County of Kankakee
4
and its attorneys regarding Landfill Applications other than Waste
Management of Illinois, Inc.’s Application to expand its existing facility
and to the extent it seeks information after the decision date of January 31,
2003. To the extent said Interrogatory is limited to communications
between Waste Management of Illinois, Inc. and the Counfy after August
16, 2002, and prior to the decision date; none other than the
communications held on the public record, and possibly procedural non-
substantive communications between Special State’s Attorneys of
Kankakee County and the attorneys of Waste Management of Illinois,
which would be reflected in the invoices of Hinshaw & Culbertson, which
are part of the public record, if any.
INTERROGATORY NO.
5:
Identify all County of Kankakee and Kankakee
County Board officials or personnel that had any involvement in, made any recommendations, or
made any decisions regarding the January 31, 2003, decision granting approval of WMII’s
Landfill Siting Application, and for each such individual, please:
(a)
identify the individual by name and title and identify what type of
communication took place (written, oral, telephone, e-mail, etc.);
(b)
describe the nature and extent ofthe persons’ involvement;
(c)
identify all documents reviewed by such person regarding the January 31,
2003, decision granting approval of the Landfill Siting Application;
(d)
identify all documents generated by such personnel having involvement
in, making recommendations or decision regarding the January 31, 2003, decision
granting approval of the Landfill Siting Application.
ANSWER:
Objection, said Interrogatory is vague, overbroad and over-burdensome,
and involves the attorney-client privilege and work product doctrine.
Furthermore, said interrogatory improperly invades upon the mental
processes of the County Board. See
City of Rockford v. Winnebago
County Board,
PCB 88-107 (November 17, 1988);
St. Charles v. Kane
County,
1984 WL 37700, PCB 83-228, 229, 230 (May 18, 1984),
Land
and Lakes Co. v. Village ofRomneoville,
PCB 92-25
(June
4, 1992);
Village
of
Lagrange v. McCook Cogeneration Station,
1995 WL 747729, PCB 96-
41 (Dec. 7,
1945).
Subject to said objection, and without waiving same,
each and every individual who testified, presented evidence, made public
5
comment, assisted in the preparation of evidence, or otherwise participated
in the Section 39.2 hearing had some “involvement” in the County’s
decision in that the County considered such evidence.
INTERROGATORY NO. 6:
Identify all Kankakee County Board members who
met, talked, or otherwise communicated with County of Kankakee department heads,
supervisors, staff, employees or consultants before or after the filing of the Landfill Siting
Application on August 16, 2002, relating to the planning, development and siting of the Facility
and for each such individual, please:
(a)
identify the individual by name and title and identify what type of
communication took place (written, oral, telephone, e-mail, etc.);
(b)
the subject matter of each such communication;
(c)
describe and delineate the exact statements made during the course of each
such communication;
(d)
identify date, time and duration of each such communication;
(e)
identify the location of each such communication; and
(0
identify all persons present at such communication.
ANSWER:
Objection, to the extent said interrogatory seeks information after the
decision date of January 31, 2003, said interrogatory seeks irrelevant and
inadmissible evidence and is not likely to lead to admissible evidence.
Furthermore, said Interrogatory infringes upon the attorney/client privilege
and seeks to discover information concerning the mental processes of
County Board members, which is irrelevant, inadmissible and not likely to
lead to admissible evidence. See
City of Rockford v.
Winnebago County
Board,
PCB 88-107 (November 17, 1988);
St. Charles
v. Kane County,
1984 WC
37700, PCB 83-228, 229, 230 (May 18, 1984),
Land
and Lakes
Co.
v. Village of Romeoville,
PCB 92-25 (June 4, 1992),
Village of
Lagrange v. McCook Cogeneration Station,
1995
WC 747729, PCB 96-41
(Dec. 7, 1945). Subject to said objection a recommendation was drafted
by County staff and reviewed by the County Board, which is part of the
record.
6
INTERROGATORY NO.
7:
Please identify each witness you expect to present
to testify at hearing, and state the subject of each witness’s testimony and identify any documents
any witness will utilize in his or her testimony.
ANSWER:
None, except Kankakee County reserves its right to present rebuttal
witnesses. Investigation continues.
Respectfully Submitted,
On behalfof the COUNTY OF KANKAKEE
and KANKAKEE COUNTY BOARD,
By: Hinshaw & Culbertson
~
Richard S. Porter
j~&~
One of Their Attorneys
HINSHAW AND CULBERTSON
100 Park Avenue
P.O.
Box 1389
Rockford, IL 61105-1389
815-490-4900
70356775v1.813053
This document utilized 100 recycled paper products
RECEJIVED
CLERK’S OFFICE
ILLINOIS POLLUTION CONTROL BOARD
APR 102003
CITY OF KANKAKEE,
STATE O~IWNOIS
PCB 03-125
Pollution Control Board
Petitioner,
(Third-Party Pollution Control Facility
Siting Appeal)
vs.
)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
MERLIN KARLOCK,
)
PCBO3-133
Petitioner,
(Third-Party Pollution Control Facility
Siting Appeal)
vs.
)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
)
MICHAEL WATSON,
)
PCBO3-134
Petitioner,
(Third-Party Pollution Control Facility
Siting Appeal)
vs.
)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANIKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
)
KEITH RUNYON,
)
PCBO3-135
Petitioner,
(Third-Party Pollution Control Facility
Siting Appeal)
vs.
)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
70357011v! 813053
RESPONSE TO CITY OF
KANKAKEE’S
DOCUMENT REQUESTS
NOW COME Respondents, COUNTY OF KANKAKEE and KANKAKEE COUNTY
BOARD, by and through their attorneys, H1NSHAW & CULBERTSON, and in response to the
City of Kankakee’s Document Requests, state as follows:
1.
Objection, this is an improper invasion of the mental processes of decision makers
to inquire as to the specific documents read or reviewed by them in consideration of their siting
applications. See
City
of
Rockford
v.
Winnebago
County Board,
PCB 88-107 (November 17,
1988);
St. Charles
v.
Kane
County,
1984 WL 37700, PCB 83-228, 229, 230 (May 18, 1984),
Land and Lakes Co. v. Village ofRomeoville,
PCB 92-25 (June
4,
1992);
Village ofLagrange v.
McCook Cogeneration Station, 1995
WL 747729, PCB 96-41 (Dec. 7, 1945). Subject to said
objection the only documents which were available to the decision makers and which were relied
upon and reviewed by the decision makers in coming to their decision, are contained within the
public record.
2.
Objection, this request is overbroad, overburdensomne, irrelevant, and not
reasonably likely to lead to relevant admissible evidence. This production request appears to
relate to communications concerning the siting application and before such a request may be
made, a petitioner must allege specific instances or evidence of fundamental unfairness and may
not engage in a mere fishing expedition in an attempt to find alleged improper ex-parte
communications. See
Land and
Lakes G’ompany v. Village ofRomeoville,
PCB 92-25, slip op. at
4 (June 4, 1992);
DiMaggio
v. Solid Waste Agency ofNorthern Cook County,
PCB
89-138,
slip
op. at 7 (October 27, 1989). Furthermore, to the extent that this production request seeks
information regarding the host agreement it is not relevant to this appeal and not reasonably
calculated to lead to relevant and admissible information. The drafting and adoption of a host
agreement is a legislative function which is not an indication of pre-judgment or bias.
Residents
2
703570Hv1 813053
Against
a Polluted
Environment
v.
County of LaSalle,
PCB
96-243, slip op. at
15-16 (Sept.
9,
1996), aff’d. Residents Against a Polluted Environment v. illinois Pollution Control Board,
293
Ill.App.3d 219, 687 N.E.2d 552,
555
(3d Dist. 1997). Furthermore, to the extent that this
interrogatory seeks information concerning the solid waste management planning of the County
of Kankakee and specifically the adoption of the Kankakee County Solid Waste Management
Plans and amendments thereto, said information is not relevant nor admissible in this appeal and
is not reasonably calculated to lead to the discovery of relevant and admissible information and
is beyond the scope of permissible discovery. The Pollution Control Board does not review the
legislative process of adoption of the amendment of solid waste management plans: “allegations
concerning the adoption and amendment of the County’s solid waste management plan are not
proper allegations for Board consideration in a Section 40.1 pollution control facility siting
appeal.
Residents~Againsta Polluted Environment v. County
of LaSalle, PCB 96-243, slip op. at
15-16 (Sept.
9,
1996).
aff’d Residents Against a Polluted Environment v. Illinois Pollution
Control Board,
293 Ill.App.3d 219, 687 N.E.2d 552,
555
(3d Dist. 1997). Additionally, the
Solid Waste Management Plan and resolutions amending that plan, were adopted prior to August
16, 2002 filing of the siting application, and thus that process is irrelevant to this appeal and not
likely lead to admissible evidence. Finally, to the extent this request seeks information after
January 31, 2003, such is irrelevant, inadmissible and not subject to discovery. Subject to this
objection, and without waiving same. There are no such documents for the relevant period of
August 16, 1992 until the time of rendering the decision on January 31, 2003, other than the
documents contained in the public record.
3.
Objection, this request is overbroad, overburdensome, irrelevant, and not
reasonably likely to lead to relevant admissible evidence. This production request appears to
relate to communications concerning the siting application and before such a request may be
made, a petitioner must allege specific instances or evidence of fundamental unfairness and may
3
70357011v1 813053
not engage in a mere fishing expedition in an attempt to find alleged improper ex-parte
communications. See
Land and
Lakes
Company v.
Village
of
Romeoville,
PCB 92-25, slip op. at
4
(June
4, 1992);
DiMaggio v.
Solid
Waste Agency ofNorthern Cook c’ounty,
PCB 89-138, slip
op. at 7 (October 27, 1989). Furthermore, to the extent that this production request seeks
information regarding the host agreement it is not relevant to this appeal and not reasonably
calculated to lead to relevant and admissible information. The drafting and adoption of a host
agreement is a legislative function which is not an indication of pre-judgment or bias.
Residents
Against a Polluted Environment v. County ofLaSalle,
PCB 96-243, slip op. at 15-16 (Sept.
9,
1996), aff’d. Residents Against a Polluted Environment v. Illinois Pollution Control Board,
293
Ill.App.3d 219, 687 N.E.2d
552, 555
(3d Dist. 1997). Furthermore, to the extent that this
interrogatory seeks information concerning the solid waste management plairning of the County
of Kankakee and specifically the adoption of the Kankakee County Solid Waste Management
Plans and amendments thereto, said information is not relevant nor admissible in this appeal and
is not reasonably calculated to lead to the discovery of relevant and admissible information and
is beyond the scope of permissible discovery. The Pollution Control Board does not review the
legislative process of adoption of the amendment of solid waste management plans: “allegations
concerning the adoption and amendment of the County’s solid waste management plan are not
proper allegations for Board consideration in a Section 40.1 pollution control facility siting
appeal.
Residents Against
a Polluted
Environment v. County
ofLaSalle, PCB 96-243, slip op. at
15-16 (Sept.
9, 1996).
aff’d Residents Against
a Polluted
Environment v. Illinois Pollution
Control Board,
293 Il1.App.3d
219, 687 N.E.2d 552,
555
(3d Dist. 1997). Additionally, the
Solid Waste Management Plan and resolutions amending that plan, were adopted prior to August
16, 2002 filing of the siting application, and thus that process is irrelevant to this appeal and not
likely lead to admissible evidence. Finally, to the extent this request seeks information after
January 31, 2003, such is irrelevant, inadmissible and not subject to discovery.
Subject to said
4
70357011v1 813053
objection, there were no phone calls or meetings between Waste Management of Illinois and the
County of Kankakee, the Kankakee County Board, or their agents after the filing of the
application on August 16, 2002, and prior to the County Board decision on January 31, 2003
relating to the planning, development, and siting of the facility and hence, there are no
documents concerning the relevant time period.
4.
Objection, this request is overbroad, overburdensome, irrelevant, and not
reasonably likely to lead to relevant admissible evidence. This production request appears to
relate to communications concerning the siting application and before such a request may be
made, a petitioner must allege specific instances or evidence of fundamental unfairness and may
not engage in a mere fishing expedition in an attempt to find alleged improper ex-parte
communications. See
Land and Lakes
c’ompany v.
Village
of
Romneoville,
PCB 92-25, slip op. at
4 (June 4, 1992);
DiMaggio v. Solid Waste Agency ofNorthern Cook County,
PCB 89-138, slip
op. at 7 (October 27, 1989). Furthermore, to the extent that this production request seeks
information regarding the host agreement it is not relevant to this appeal and not reasonably
calculated to lead to relevant and admissible information. The drafting and adoption of a host
agreement is a legislative function which is not an indication of pre-judgment or bias.
Residents
Against a Polluted Environment v. County of LaSalle,
PCB 96-243, slip op.
at 15-16 (Sept.
9,
1996),
aff’d. Residents Against a Polluted Environment v. Illinois Pollution Control Board,
293
IIl.App.3d 219, 687 N.E.2d
552,
555 (3d Dist. 1997). Furthermore, to the extent that this
interrogatory seeks information concerning the solid waste management planning of the County
of Kankakee and specifically the adoption of the Kankakee County Solid Waste Management
Plans and amendments thereto, said information is not relevant nor admissible in this appeal and
is not reasonably calculated to lead to the discovery of relevant and admissible information and
is beyond the scope of permissible discovery. The Pollution Control Board does not review the
legislative process of adoption of the amendment of solid waste management plans: “allegations
5
70357011v1 813053
concerning the adoption and amendment of the County’s solid waste management plan are not
proper allegations for Board consideration in a Section 40.1 pollution control facility siting
appeal.
Residents
Against a Polluted Environment
v. County
ofLaSalle, PCB 96-243, slip op. at
15-16 (Sept. 9,
1996). aff’d
Residents Against a Polluted Environment v. Illinois Pollution
Control Board,
293 Ill.App.3d 219, 687 N.E.2d
552, 555
(3d Dist. 1997). Additionally, the
Solid Waste Management Plan and resolutions amending that plan, were adopted prior to August
16, 2002 filing of the siting application, and thus that process is ilTelevant to this appeal and not
likely lead to admissible evidence. Finally, to the extent this request seeks information after
January 31, 2003, such is irrelevant, inadmissible and not subject to discovery. Subject to this
objection, and without waiving same, the only documents which were relied upon by the
decision makers in coming to their decision are contained within the public record.
5.
Objection, this request is overbroad, overburdensome, irrelevant, and not
reasonably likely to lead to relevant admissible evidence. This production request appears to
relate to communications concerning the siting application and before such a request may be
made, a petitioner must allege specific instances or evidence of fundamental unfairness and may
not engage in a mere fishing expedition in an attempt to find alleged improper ex-parte
communications. See
Land and Lakes Company v. Village ofRomeoville,
PCB
92-25, slip op. at
4
(June
4,
1992); DiMaggio v. Solid Waste Agency of Northern Cook C’ounty,
PCB 89-138, slip
op. at 7 (October 27, 1989). Furthermore, to the extent that this production request seeks
information regarding the host agreement it is not relevant to this appeal and not reasonably
calculated to lead to relevant and admissible information. The drafting and adoption of a host
agreement is a legislative function which is not an indication of pre-judgment or bias.
Residents
Against
a Polluted
Environment v. County
of
LaSalle,
PCB
96-243,
slip op. at
15-16
(Sept.
9,
1996), afj’d. Residents Against a Polluted Environment v.
illinois
Pollution Control Board,
293
Ill.App.3d 219, 687 N.E.2d
552,
555
(3d Dist. 1997). Furthermore, to the extent that this
6
7035701 IvI 813053
interrogatory seeks information concerning the solid waste management planning of the County
of Kankakee and specifically the adoption of the Kankakee County Solid Waste Management
Plans and amendments thereto, said information is not relevant nor admissible in this appeal and
is not reasonably calculated to lead to the discovery of relevant and admissible infonnation and
is beyond the scope of permissible discovery. The Pollution Control Board does not review the
legislative process of adoption of the amendment of solid waste management plans: “allegations
concerning the adoption and amendment of the County’s solid waste management plan are not
proper allegations for Board consideration in a Section 40.1 pollution control facility siting
appeal.
Residents Against a Polluted Environment v. County
ofLaSalle, PCB 96-243, slip op. at
15-16
(Sept.
9, 1996). aff’d Residents Against a Polluted Environment v. Illinois Pollution
Control
Board,
293 Ill.App.3d 219, 687 N.E.2d 552, 555 (3d Dist. 1997). Additionally, the
Solid Waste Management Plan and resolutions amending that plan, were adopted prior to August
16, 2002 filing of the siting application, and thus that process is irrelevant to this appeal and not
likely lead to admissible evidence. Finally, to the extent this request seeks information after
January 31, 2003, such is iiTelevant, inadmissible and not subject to discovery. Subject to this
objection and without waiving same, none other than those contained in the public record.
6.
None other than the exhibits contained within the public record, however, the
County reserves its right to present rebuttal evidence and exhibits.
7.
None other than the exhibits contained within the public record, however, the
County reserves its right to present rebuttal evidence and exhibits.
8.
None other than the exhibits contained within the public record, however, the
County reserves its right to present rebuttal evidence and exhibits.
9.
None other than the exhibits contained within the public record, however, the
County reserves its right to present rebuttal evidence and exhibits.
10.
Objection, said interrogatory is vague, overbroad and overburdensome.
7
70357011v1 813053
Respectfully Submitted,
On behalf of the COUNTY OF KANKAKEE
By: Hinshaw & Culbertson
~eQo~
~
Charles F. Helsten
Richard S. Porter
One of Attorneys
HINSHAW AND CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
This document utilized 100 recycled paper products
70357011v1 813053
