KENNETH A LESHEN

L~j002

04/11/2003

14:36 FAX 8159333397

CITY OF

K1~NKAKEE,

ILLINOIS POLLUTION CONTROL BOARD

COUNTY OF KAN~AKEE, COUNTY BOARD OF

KANKAIKEE,

and WASTE MANAGEMENT OP

ILLINOIS,

INC.

Respondents

-

COUNTY OF KPLNKAKEE,

COUNTY BOARD OF

KANKAKEE,

and WASTE MANAGFMENT OF

ILLINOIS,

INC.

Respondents.

Petition.er,

COUNTY OF KANKAKEE, COUNTY BOARD OF

KANKAKEE,

and WASTE MANAGEMENT OF

ILLINOIS,

INC.

Respondents.

KEITH RUNYON,

Petitioner,

vs.

COUNTY OF KANKAKEEr

COUNTY BOARD

OF

MANKAKEE,

and WASTE MANAGEMENT OF

ILLINOIS,

INC.

Respondents

-

RE6~JV~D

CLERK~SOFFICE

APR

112003

STATE OF IWNOIS

PCB

03—125

PollutIon

control Board

(Third—Party Pollution Control

Faoility Siting Appeal)

vs

-

Petitioner,

MERLIN KARLOCK,

vs.

Petit±oner,

MICHAEL WATSON,

vs

-

PCB 03—133

(Third—Party Pollution Control

Facility Siting App2al)

PC3~03—134

(Third—Party Pollution Control

Facility

Siting Appeal)

PCB 03—135

(Third—Party Pollution Control

Facility siting nppeal)

PCB

03—144

(Pollution Control Facility

Siting Appeal)

WASTE MANAGEMENT OF ILLINOIS,

INC.,

Petitioner,

vs.

COUNTY OF

KANKA.KEE,

Respondent.

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04/11/2003

14:36 FAX 8159333397

KENNETH A LESHEN

~003

RESPONSE TO COUNTY OF

KANKAKEE’S

OBJ~ECTIONS TO DISCOVERY PROPOUNDED

BY THE CITY

OF

KANKAKEE

NOW COMES the CITY OF KANKAKEE

(hereinafter the “City”), by and

through

its Assistant City Attorneys,

L.

PATRICK POWER and KENNETN A.

LESJ-IEN,

and filing this response to the discovery objections

filed by the

County of Kankakee

(hereinafter the “County”),

states as follows:

1~.

The 1±nchpiriof the County’s discovery objections

is its

assertion that the City should not be allowed

to

inquire into the

formation of the County Solid Waste Management Plan or any prefiling

contacts between the County

arid Waste Management of Illinois,

Inc.

(hereinafter “WMII”)

2.

The County should be ordered to fully comply with the City’s

discovery because the formation and substance of its solid waste plan and

host agreement create a suspicion of bias

in favor of the applicant during

the siting process;

and therefore,

go directly to the issue of fundamental

fairness.

In

fact,

the designation of WMII as the sole operator of any

new landfill by the very language of the solid waste plan and

inferentially,

the exclusion of any other applicant,

smacks not only of

bias but of collusion between the County and WMII.

3.

The County cites

Residents Against A Polluted Environment v.

The

Illinois Pollution Control Board,

293 I1L.App3d 219 for the proposition

that the County’s relationship and involvement with WMII in the amendment

of the solid waste plan does not create

a suspicion of bias by the County

in its consideration of W1~’III’s siting application.

Residents,

supra,

specifically found that other than the mere reference to LandComp’s

(the

applicant)

involvement with the amendment of the plan,

the appellants did

not offer any specific allegation establishing how LaridComp’s involvement

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04/11/2003

14:36 FAX 8159333397

KENNETIIA LESHEN

1~004

wjth the amendment

of

a solid waste plan created

bias during the siting

process~

In the instant

case,

the Illinois Pollution

Coritro.

Board

(hereinafter the “Board”)

has the following specific allegations to

consider:

a.)

On March

12,

2002,

by Resolution,

the Kankakee County Board

amended its Solid Waste Management Plan, which stated in pertinent

part as follows,

to—wit:

“The first two paragraphs of Section VI;

Available

Landfill Capacity in Kankakee County

of the Kankakee County

Solid Waste Management

Plan are hereby deleted and replaced with

the following:

Kankakee County has

a

single

landfill owned and

operated by Waste Management of Illinois, Incorporated.

This landfill has provided sufficient capacity to dispose

of waste generated in Kankakee County and its owner has

advised the County that it plans to apply

for local siting

approval to expand the facility to provide additional

disposal capacity for the County.

Operation of the

landfill has been conducted pursuant to

a Landfill

Agreement signed by the County and Waste Management in

1974,

and subsequently amended from time to time.

In the

event siting apprc~valfor any expansion is obtained, the

landfill would provide

a

minimum of twenty

(20) years

of

long term disposal capacity through expansion of the

existing landfill.

An

expansion

of the existing landfill,

if approved,

would then satisfy the County’s waste disposal needs for at

---

04/11/2O0~

14:36

FAX

8159333397

KENNETH

A

LESHEN

I~0o5

least an additional 20 years~ and in accord with the

Kankakee County Solid Waste Management

Plan

(as amended),

as well as relevant provisions of the Local Solid Waste

Disposal Act and the Solid Waste Planning and Recycling

Act,

no new facilities would be necessary.”

This amendment is part of the record in the siting hearing.

consequently,

as

is apparent in the record,

the County knew that its

favored and designated applicant,

WNII,

intended to file a siting

application at the time it amended ±tssolid waste plan.

WMII repeatedly

colluded with the County regarding the solid waste plan and its own

designation as the sole operator of any new landfill immediately prior to

its application.

This inherent and stated bias percolated through the

siting process and hearing.

b.)

The County’s March

12,

2002 amendment to its solid waste

plan preceded by a scant 24 hours the application of Town and Country

Utilities,

Inc.,

to the City of Kankakee for siting of a solid waste

disposal facility.

The tiineline is instructive:

i.)

December 17,

2001:

Correspondence from Dale Hoekstra

of Waste Management to Charles Helsten regarding proposed

amendment of solid waste management plan.

ii.)

January

14,

2002:

Correspondence from Dale Hoekst~a

of Waste Management of Illinois,

Inc., to Solid Waste Director,

Efraim Gil,

responding to

a report of a citizen’s group

by

the

name of “Outrage” regarding capacity of the Kankakee landfill.

iii.)

March

4,

2002:

Notes of Mike VanMill concerning

telephone call with Charles Heisten.

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04/11/2003

14:37

FAX

8159333397

KENNETH

A

LESHEN

~006

iv.)

March

11,

2002:

Documents from files of Mike VanMill

concerning proposed solid waste plan amendments.

V.)

March

12,

2002:

Resolution amending Kankakee County

Solid Waste Management

Plan-

See

log of documents provided by

Hinshaw

& Cul.bertson attached hereto and incorporated herein as

Exhibit A.

vi.)

March

13,

2002:

Application of Town and Country to

City of Kankakee for siting non—contiguous facility

(strongly

opposed by Waste Management and County of Kankakee)

This flurry of activity did not occur by happenstance.

Rather,

it is

emblematic of the deeply flawed and biased activity of the County that

permeated the siting process.

4.

The County further seeks

to thwart the City’s discovery requests

by cloaking itself in various alleged privileges.

The first privilege

asserted by the County is that of the attorney-client privilege.

The

privilege is not absolute and first requires

a determination by the Board

that the attorney—client relationship

in fact exists.

In

the instant

case,

the “client” is neither a private individual nor a private

corporation.

It is,

instead,

the County of Kankakee,

a body politic and

corporate.

Its elected public officials and/or employees are only the

client if the Board determines that these individuals are in its ‘~control

group”.

See,

e.g.,

Midwesto-Pasche,n Joint Venture for Viking Projects...

638 N.E.2d 32 I11.App.

1 Dist.

1994.

The Seventh Circuit Court of Appeals

in

A Witness ~efore the Special

Grand

Jury 2000—2,

288

B’ed.3d 289,

determined that in that case the

attorney-client privilege did not apply.

The court stated in pertinent

part

“...

government lawyers have responsibilities and obligations

---

_~/200314:3I~AX81~333397

KENNETH

A

LESHEN

~007

different

from

those

facing

members

of

the

private

bar.

While the latter

are appropriate concerned first and foremost with protecting

their clients

-

—

evefl those engaged in wrongdoing

—

-

from criminal charges and public

exposure, government lawyers have

a higher,

competing duty to act in the

public interest.”

The court further stated,

“it would be both unseemly

and a misuse of public assets

to permit

a public official to use a

taxpayer-provided attorney to conceal from the taxpayers themselves

otherwise admissible evidence of financial wrongdoing,

official

misconduct,

or abuse of power.”

Although this case arose in the context

of

a criminal

investigation,

the principles

of law are the same.

The log of documents provided by Hinshaw

& Culbertson on behalf of

the County establishes by its own terms that at least some of these

documents are not privileged.

For example,

there are documents concerning

consulting experts of staff

and internal staff communications that were

not shared with the decision maker.

Consequently, the documents

referenced under said heading are not documents prepared by the control

group

and.

are, therefore,

not privileged.

5.

The County asserts in

a boilerplate and repetitive objection

asserted in response to both the document requests and to the

interrogatories that they

are burdensome and over-broad.

In fact,

the

document work has already been done as evidenced by the log prepared by

Hin.shaw

& Culbertson. and submitted to us.

Consequently,

the County has

already surmounted the burden.

6,

It

is somewhat disingenuous for the County to assert privilege

and burden given the fact that these are fundamentally the same requests

propounded by the County during the discovery process prior to the

fundamental fairness hearing for the siting application of Town and

---

KENNETH A LESHEN

1~J008

04/11/2003

14:37

FAX

8159333397

country

to the City.

The City determined that the public’s right to know

outweighed

various

tenuous

objections

that

could

have

been

made.

It

is

-

the

belief

of

the

City

that

the

interrogatories

and

document

requests

propounded

by

the

County

in

that

case

were

propounded

in

good

faith

and

answers

were

made

in

the

same

vein.

It was the belief of the City that

the

County

would

react

in

kind.

WHEREFORE,

the

City

prays

that

an

order

be

entered

denying

the

objections

of the County to the discovery, propounded by the City and for

such other and further relief as the Board deems just,

necessary and

proper.

Respectfully

submitted,

L.

Patrick

Power

Assistant

City

Attorney

City of

Nankakee

956

North

Fifth

Avenue

Kankakee,

IL

60902

815/937—6937

Reg.

No.

2244357

C,

---

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W(SCON5IN

WRITSRS DIRECT IDJAL

FILE

NO.

513053

515-490-4920

April

10, 2003.

Kenneth A. Leshen

One

Dearborn

Square.

Suite

550

Kankakee,

IL

60901

Re:

City ofKankaicee v. County of

Kaokakee

Dear Mr.

Leshen:

Pursuant

to

oi.u

coiiununications

I

have

agreed

to

provide

you

with

a

log

of

the

vanous

documents

for which we

are

asserting

pi-ivileges

and

objections.

The purpose

behind

this jog is

to allow

the

parties

to

understand

that the

County of

Kankakee

is

in possession ofno documents

between August

16, 2002

and

January

31,

2003, which

are

not

part

ofthe

public

record.

The

only

exception to

this

statement

is

internal

memoranda

between

members

of County

staff that

were

involved

in drafting

the proposed

recommendation.

These

memoranda

were in

no

way

reviewed

by the decIsion

makers

and,

therefore,

areirrelevarit,

ina4missibie,

and

not

likely to

lead to admissible evidence.

Please aI~obe advised that though

a document

may

appear

under a

specifl~heading

below~ which

reflects

a

primary

privilege

or

objection

to

producing

said

document,

that

document may

also

be

protected

from

to

discovery

or production on

additional

bases.

For

example,

many

of

the

documents

for

which

there

is

an

obvious

attorney-client

privilege

are

also protected because they were drafted prior to April

ATTORNEY CLIENT PRIVILEGE)

November 2, 2001

Co~spondenc~~

State’s

Attorney

Ed’~ird

Smith to

Assistant

State’s

Attorney

Brenda

Qorski

concerning

search

for

special

assistant state’s

attorney

concerning

solid

waste

issues

i~vember9,

~öo

F

—

~rrespondencefrom

Attome~

Edward

Smi~h’

to

Chairrn~~

the

County Bo~ird,Douglas

Graves,

concerning host

agreement.

~~rnber l9~0Ol

‘

Correspondence

from AttoroeTHeisten

to

Hfraim

Oil

and

Brenda

Gorski regarding specIal

assistant

state’s attorney

position.

7U3~1l22”i

5I.1O5~

A

FARrNEgSIIIp ~NCLUDrNG

PROEESSIONAL CORJ0RATIONS

EXHIBIT A

-

AW&cULBERT~ON

ATTORNEYS

AT

LAW

---

I~J010

KENNETH

A

LESHEN

Ken~net-lA

A.

Leshen

April

Page 2

~V~MiJlconcemiugt~iephOfleC~il

~iih~Char1es

Heisteri-

~T8,2O0~~

Correspondenc~

froth~tai~i

Attorney

Edward Smith

to

Efraim Gil

concerning procedures

for consultant

retention.

Apri

i~ö02

Correspondence

~

Assistant

State’s

Attorney

Brenda L.

Gorski

to

Efraim

Gil

regarding

consultant

expert

retention.

A~ril

l5~

2002

—

~i~espondcnce

fro~~aini

Gil

to

Attor~i~

~ward

Smith

regarding consulting expert retention.

~ril

23,

2002

Correspondence fr~i~Char1es

lIel~nto

Brenda Gorski concerning

expertwitness retention.

December

12, 2002

~rr~ondónce

fronnEd~ardI

Smith

to

Bruce

Clark

regarding

administrative

mies relating to the

record

to

be

prepared

for

landfill

siting

process.

December 17,

2002

Correspondence

from

Attom~

Ehiabcth

ilarvey

to

Kaiii~kee

County

Board

and

Regional

Planning

Commission

members

regarding

procedure

to

be

followed

from

close

of

hearing

on

December 6, 2002

DOCUMENTS CONCERMNG NEGOTIATION OF HOST AGREEMENT

March

8, 2001

t~January

16,

200~

File

of

dociirnents

in

poss~si

of

Mike

-

Van

Mill

concerning negotiation

ofhost

a~cement.

October 23,

2001

?~1)ecember10,

Documents

from files

of

County

B~d

th~rnber

Pam Lee

2001

concerning host feenegotiations and

agreements.

~ö~)1

through

March

iT,

2002

Documents

from

files

or

Mike

Van

Mill

o~mi~

proposed solid waste plan

amendments.

April12,

2O~T

to MarchT,~OO2

Docume~is

of~

P~i~L~.e

concern~

solid

waste

managemcnt

plan

amendments

and

host

agreement

negotIation&

703571

Z~v1~I)O53

---

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~

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------

____

-~

—~

~,

__J~ENNETH

A

LESIEN

—

L4~O11

Kcnne~thA.

Leshen

April

10,

2003

Page

3

DOCUMENTS PRE-DATING AUGUST

16, 2002

October

30,

1997

tbroujl~ Various document

note~and

records

~f Mike

Van Mill,

November 2001

member of County

staff

Oci~200l

—-

—

Lists

of acti

I

or posib

attendees

~i

lâ~1

site

bus

tour.

Undated

—

~MTateria1s

from Waste Mana~ieriF~f

Illinois

concerning

Settlers Hills Recycling Disposal Facility.

Undated

T)ocurnent

from

Waste Management

of Illinois concerning

comprehensive Solid

Waste Proposal.

~b~ieniberI3,

2001

through

December 11, 2001

Pii~lic

-

resolution

appointing

special

committee

to

negotiate

liost

fee

agreement

and

minutes

of

meetings

regarding same.

December 17,2001

~

-

Corre~ondence

from

D~i~

~oek~ra

of

Wa

Management

to

Charles

Heisten

regarding

proposed

amendment

of

solid waste management

plan.

January 14, 2002

-

Correspondence

from

Dale

Hoek~fra

of

W~ste

Management

of

Illinois,

Inc.

to

SolId

Waste

Director,

Efraim

Gil

responding

to

a

report of a citizen’s

group

by

the

name

of

“Outrage”

regarding capacity ofthe

Kankakee

landfill.

january

28, 2002

—

C~respo~lence

from

tiermis Wilt

ofWaste Mi~ageinent

to

Charles F.

Heisten

concerning

proposed changes ofthe

lankakee

County Solid

Waste

Management Plan.

~ptil

11, 2002

Correspondences

froni

Lee

Addlernan

of

W~

Management

of Illinois

to

various land

owners

regarding

the

agreement

to

guarantee property

value

copied

to

~fraim

Gil of

Kankakee

County.

DOCUMENTS

CONCERNING

CONSULTING EXPERTS OF STAFF AND INTERNAL

STAFF

COMMUNICATIONS NOT

SHAREDWITH

DECISION

MAKER

April 3,

2002

-

T

Internal

znemorandumbctwe~Mike

VariMjIl

and

~

Lainmey regarding consulting experts

7035712~vl~i3O53

---

Keirneth

A.

Leshen

Ap~i1i 0, 2003

Page 4

A~ri1

23,~ö02

—

Correspondence

from

Assistant

State1s

Attorney

Brenda

Gorski

concerning consulting expert

retention.

October 30,

2001

—

C~espo~d~efoBr~a

~orski

regarding

consuithig

expert retention.

iii~uary

6,2003

Draft

of

su

mai~e~rt

of

proposed

expansion

~f

the

Kankakee

Recycling and Disposal

Facility.

~i~uary

7, ~

~orrespondence

~etwe~

Chris

B~erand Mike

Va~Iff

regarding

reconirnendations.

January 2003

E-rriiils

between

County

s1~

and

attorneys

concerning

amendments

for

recommendation report

DOCUMENTS POST DATING DECISION

January

3iT~2003

ifssued

after

Memora~um from

Waste

Mana~ent of IUinoi~o

decision was rendered)

Kanicakee

County Board.

Sincerely

HINSI4AW

&

CULBERISON

Richax~.

Porter

RSP:drrth

cc:

All Parties

KENNETH A LESHEN

I~1012

7O~57!2~’~

~iO$3

---

04/11/2003

14:38

FAX

8159333397

KENNETH

A

T~~T-T

~

013

AFFIDAVIT

OF SERVICE

‘The undersigned, pursuant to the provisions

of Section 1-109 of the

IllinoiS Code of

Civil

Procedure,

hereby under penalty of perjury under

the laws of the United States

of America, certifies that

a copy of the

foregoing

was

served upon the following parties by facsimile to those

parties

with facsimile numbers listed below and by depositng same to all

parties

in the U.

S. Mail

at Kanikakee,

Illinois, before 5:00 p.m.,

on the

~

day

of April,

2003:

Dorothy

N.

Gunn,

Clerk

Illinois Pollution Control Board

~‘ames

R.

Thompson

Center

100 West Randolph Street,

Suite

11-500

Chicago~

IL

60601-3218

Bradley

I-lalJ.oran

I-Tearing Officer

Illinois Pollution Control Board

100 West Randolph,

11th

Floor

Chicago,

IL

60601

FAX

312/814—3669

Donald

J.

Moran,

Esq.

Pederson

& Houpt

161 North Clark,

Suite

3100

Chicago,

IL

60601—3242

FAX 312/261—1149

Charles

F.

J-lelsten,

Esq.

Richard

S.

Porter,

Esq.

Hinshaw

& Culbertson

P.

0.

Box 1389

Rockford,

IL

61105—1389

FAX 815/963—9989

Jennifer J.

Sackett Pohlenz,

Esq.

175 W.

Jackson Blvd.,

Ste.

1600

Chicago,

IL

60604

FAX

312/540—0578

Leland Milk

6903 South Route

45—52

Chebanse,

IL

60922

George Mueller,

Esq.

-

501 State Street

Ottawa,

IL

61350

FAX 815/433—4913

Keith

L.

Runyon

1165

Plum Creek Drive,

Unit D

~ourbonnais, IL

60914

FAX 81.5/937—9164

---

04/11/20)3

14:38 FAX 8159333397

KENNETH A LESHEN

~I014

Slizabeth Harvey,

Esq.

Swansou, Martin

& Bell

One I~ViPlaza,

Suite 2900

330 North Wabash

Chicago,

IL

60611

FAX 312/321—0990

---

—.

04/11/2003

14:36

FAX

8159333397

KENNETH A LESHEN

L~001

KENNETH A.

LESHEN, P.C.

~~WS

OFV~ICE

ATTORNEY

AT

LAW

APR

1

12003

-

One Dearborn

Square,

Suite 550

STATE

OF LLUNOIS

Kankakee, Illinois

6090 1-3927

~

Control

Board

Telephone

Facsimile

(815) 933-3385

(815) 933-3397

FACSIMILE

TRANSMITTAL

COVER

LETTER

DATE:

April 11,

2003

FROM:

Kenneth A.

Leshen

RE:

City of Kankakee

vs.

County

of Kankakee,

et al.

Illinois Pollution Control Board

PCB 03—125,

et al.

THERE WILL BE

(14)

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