G4/11/2003
14:36
FAX
8159333397
L4J 002
KENNETH A LESHEN
CITY OF KANKAKEE,
COUNTY
OF KANKAKEE,
COUNTY BOARD OF
KANKAKEE,
and WASTE MANAGEMENT OF
ILLINOIS,
INC.
COUNTY OF KANKAKEE, COUNTY BOARD OF
KANKAKEE,
and WASTE MANAGEMENT OF
ILLINOIS,
INC.
MICHAEL WATSON,
COUNTY OF KANKAKEE, COUNTY BOARD
OF
KANKAKEE,
and WASTE MANAGEMENT OF
ILLINOIS,
INC.
KEITH
R(JN YON,
Petitioner,
VS.
COUNTY
OF
KANKAKEEr
COUNTY BOARD
OF
KANKAKEE,
and WASTE MANAGEMENT OF
ILLINOIS,
INC.
Respondents.
WASTE MANAGEMENT OF ILLINOIS,
INC.,
COUNTY OF KANKAKEE,
PCB
03—133
(Third—Party Pollution Control
FaciJ.ity Siting ~ppea1)
PCB
03—134
(Third—Party Pollution Control
Facility Siting Appeal)
PCB 03—135
(Third—Party Pollution Control
Facility Siting ~ppea1)
PCB 03—144
(Pollution Control Facility
Siting Appoal)
vs
Respondents
-
MERLIN KARLOCK,
vs.
ILLIN
N
R
L
BOARD
cLERcso::ICE
STATE OF IWNOIS
Petitioner,
)
PCB
03—125
PollutIon Control
Board
(Third—Party Pollution Control
Facility Siting Appeal)
PetitIoner,
Respondents.
vs
Petitioner,
Respondents.
vs
Petitioner,
Respondent.
04/11/2003
14:36
FAX
8159333397
KENNETH
A
LESHEN
L~003
RESPONSE
TO
COUNTY
OF
KANKAKEE’S
OBJECTIONS
TO DISCOVERY PROPOUNDED
BY THE CITY OF KANKAKEE
NOW CONES
the CITY OF
KANKAKEE
(hereinafter the “City”),
by and
through its Assistant City Attorneys,
L.
PATRICK POWER and KENNETH
A.
LESNEN,
and filing this response to the discovery objections filed by the
County of Kankakee
(hereinafter the “County”),
states
as follows:
1.
The linchpin. of 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 and 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 end
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 Pcllution Control ~Poard,
293 Ill.App.3d 219 for the proposition
that the County’s relationship
and, involvement with
WivilT in the amendment
of the solid waste plan does not
create
a suspicion of bias by the County
in its
consideration
of WNII’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 LandComp’s involvement
04/11/2003
14:36 FAX 8159333397
KENNETHALESHEN
L~004
with the amendment
of a solid waste plan created bias during the siting
-
probess.
In the instant case,
the Illinois Pollution Control 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 ~‘Janagementin
1974,
and subsequently amended from time to time.
In the
event siting approval for 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
04/11/2003 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,
WMII,
intended to file
a siting
application at the time
it amended £ts solid 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 timeline
is instructive:
i.)
December
17,
2001:
Correspondence
from
Dale
Hoekstra
of Waste Management to Charles Helsten regarding proposed
amendment of solid waste management plan.
IL)
January
14,
2002:
Correspondence from Dale Hoekst~a
of Waste Management of Illinois,
Inc.,
to Solid Waste Director,
Efr-aim 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 Helsten.
04/11/2003
14:37 FAX 8159333397
KENNETH A LESHEN
1~006
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
& Culbertson 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 ~f 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.ri Joint Venture for Viking Projects...
63S N.E.2d 32 Ill.App.
1
Dist.
1994.
The Seventh Circuit Court of Appeals
in
A Witness ~efore the Special
Grand Jury 2000-2,
288 Fed.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
04/11/2003
14:37.
FAX 8159333397
KENNETH A LESHEN
I~007
different
from those facing members
of the private bar.
While the latter
are appropriate concerned first and foremost with protecting their clients
-
even 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
Ninshaw
& Culbertsori 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
008
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
propound-ed 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 Kankakee
956 North Fifth Avenue
Kankakee,
IL
60901
B15/937—6937
Reg. No.
2244357
_~L~___.1cENNETHALESIEN
EXHIBIT A
-
-
Bi~H~
& COL~RT~N
ATTORNEYS
AT
LAW
~
~WP~)IS
100 PaIc
Avenue
LOS
~
C,.LIj~O~1A
~-k1O~4,
IWNthS
P.O.
Box
1359
s~.N~C~CO.
CA1JPOR~4A
C4ICAOQ.
~LUNOIS
Rockford
IL 611 0$-I 359
Pt
L~UD~WAY.~.
F~I~)A
~~STAL
LAI~.ILUNo~S
~
I
5-4~XJ-490Q
~&C~QNVIL1.~. ELO~U~
Pa~simile515-490.4901
?.11A2.41. ~L.O~JOA
USL& ~LUNOrS
~AM~A.
~LOP.fl)A
www.hinsh~wcuIbcrtson.corn
~NDIAWA
j~LOp~IA.
IWNOI~
~
ILL~NOtS
PuL4~,
~OTA
5~PI~LDjUJ~4O1$
R1orter@hsnshawtaw.com
5T~WUIS,
11~SOU~J
WAUPaOA,4.
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N~W
‘vOJX. N~WYOP~J~
p~or~l)(,
ARIZON.¼
AppLI~ToN.vCO~4Sm
W~UI~&
WI$CON~IN
WRJT~R5DIREC1’DIAL
FILSNO. B13053
815-490.4920
April 10,
2003
Kenneth A.
Leshen
One
DearbornSquare,
Suite 550
Kankakee,
IL 60901
Re:
City
o!~ankakce
v. County
of
Kaaikakee
DearMi, Leshen:
Pursuant
to
our communicatloas
r
have
agreed
to
provide
you
with
a
log
of
the
various
documents
for which we
are asserting
privileges
and
objections.
The purpose behind this log is
to allow
the
parties
to
understai~d
that
the
County of
~ankakce
is in possession ofno
documents
between
August
16,,
2002
and January
31,
2003,
which are not
part
of the 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
reviewcd
by the
decision
makers
and,
therefore,
are
irrelevant,
inadmissible,
and
not
likely
to
lead to admissible evidence.
Please also
be advised that
though a docun-ient may
appear
tinder a
specific
heading
be1ow~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
becausethey
were
drafted prior to April 16, 2002.
ATTORNEY CLiENT PRiVILEGED
November
2,~ö01
—
-
Co
pondence
from
Stat&s
Ai~mey
Edward
Smith to
Assistant
State’s
Attorney
Brenda
Gorski
concerning
search
for
special
assistant
state’s
attorney
concerning
solid waste issues
~vcmber
9,2001
Corr~Ppoiidencefr~m
Attorney &tward
Siiii~iito
CEiirniin
of the
County Board. Douglas
Graves,
concerning
host
agreoment.
Nmber
l9~oOl
—
-
~nc~pondence
frornAttomey
Heisten
to
Efraim
Gil
and
Brenda
Gorski regarding special assistant state’s
attorney
position.
7~J.~57i29’i
~I.~O53
A
PAL~NER5MIP
INCLIJI3rNG
P~tOFESS1ONAL
CO~ORAT1ON5
~fiJfU~WJ(1~5~59333397
___
KENNETHALESLEN
L~1O1O
Kexi~ieth
A.
LeShen
Api1IlO~2OO3
Page 2
~axch
4~2002
Helsten~
~
concerning
procedures
for
ccrnsultant retention.
~
Efraim
Gil
regarding consultant
expert
retention.
~00~
~i~200~
7~i1
15,
2002
-
~~espondence
froi~Efraim
Gi~ to
Attorney ~ward
Smith
regarding consulting expert retention.
Xj~i1
23, 2002
—
Correspondeii~efrom
Charles Hel~nto
Breii~laGorski concerning
expert
witness
retention.
December 12,2002
‘
~rr~ondence
from
Edward’ Sn~iit~BrucèClark regar~ing
administrative
mies relating
To
the record to be
prepared
for landfill
siting process.
December
1.7,
200~
Correspondence from At~rneyElizabeth
Harvey
tc~Kankakee
County
Board
and
Regional
Planning
Commission
members
regarding
procedure
to
be
followed
from
close
of
hearing
on
December
6,
2002
until
rendering decision.
DOCUMENTS
CONCERNING NEGOTiATION OF HOST
AGREEMENT
March
8, 2001
to
January
16,
2O0~~
File
of
documents
in
possession
of Mi~
Van
Mill
concerning negotiation ofhost
agreement.
O~iober23,
2001
2001
to
December
ii5~
b~um~ts
from files
oiCou~i~j
Board
~er
ni
Lee
concerning host feenegotiations and agreements
SOLID WASTE
MANAGEMENT PLAN AMENDMENTS
~1
through March Ii,
2002
Documents
from
files
or ‘Mike
Van
Mill
conce~1i~
proposed solid waste plan
arnendments
Ap~l12, 200 1
to March
1, 2002
Docuniii~ts ~T
Pani~IJ~e concerning
solid
waste
mariagemcnit
pLan
amendments
and
host
agrccrrient
negotiations
?~571~vI
~I)O5~
7
KENNETH
A
LESHEN
11
Kcmð A. Leshen
April
10, 2003
Page
3
DOCUMENTS PRE-DATING AUGUST 1~,2002
October
~
~i
997
througi~~
November 2001
member of
County
staff
October2001
Lisi~ofictual
or
pos5ea~iendees
of
Landfill
site
bi~
tour.
Undated
Materials
from
Waste
Management
of illinois
concerning
Settlers Hills Recycling Disposal Facility.
Undated
bocu.rnent from
Waste
Ma~em~
o?~flino~oncerning
comprehensive Solid
Waste
Proposal.
Public
resolution
appointing
specia
cornlTiittee
to
negotiate
host
fee
agreement
and
minutes
of
meetings
regarding same.
ei~ilii~ 13,
20t)l
through
December 11, 2001
December
17,
2001
—
-
Correspond~ce
from
Dale
Hoe1~ra
of
Waste
Management
to
Charles
Ileisten
regarding
proposed
amendment
of
solid waste management
plan.
Y~uary14,
2002~
—
~
Correspondence
fr~i
DaeHoek~a
of
Waste
Management
of
Illinois,
inc.
to
Solid Waste
Director~
Efraini
Gil
responding
to
a
report of a
citizen’s
group
by
the n~amncof
“Outrage”
regarding capathty ofthe
Kankakee
landfill.
January
28,
2002
-—
Correspondenc~from
t~eniiis
Wilt of
Waste
Ma~iia~riènt
to
Charles F. Heisten concerning proposed changes ofthe
I(ankakee
County Solid Waste Management Plan.
April
ii, 2002
Correspond~i~es~ori~
Lee
Addle~iian
of
W~
Management
of Illinois
to
Various
1~and
owners
regarding
the
agreement
to
guarantee
property
value
copied
to
Efraim
Gil of
Kankakec
County.
DOCUMENTS
CONCERNING
CONSULTING EX1~ERTSOF
STAFF
AND INTERNAL
STAFF COMMUNICATIONS NOT
SUAREI)WITH
DECISION
MAKER
A~ril~
_~
2O02~
~
—
~Intemalmemorandui~bctw~jMi~Vari~iIFiridMik~
Lamnrney
regarding consulting experts
7a357E2~vI
~I~Q53
-—_~~_~‘~~~i
t~AA
~159333397
KENNETH A LESIEN
—
____
—
t~JO12
Keiinetli
A.
Leshen
April
10, 2003
Page 4
A~ii1
23,~ô~
Correspondence
from
A~stantState’s
Attorney
Brenda
Gorski
concerning consulting expert
retentlofl.
~~ober
30,
2001.
—
Correspondence
to
Brenda
~orski
regarding
consuliing
expert
retention.
VJ~uary
6,
2003
—
Draft
of
summary
report
of
propci~d
expansion
of
the
Kankakec
Recycling
and
Disposal Facility.
VJi~iuary
7,2005
—
~orrespondence
between ChrisBurger
a~MikeVan
MIIT
regarding
recommendations.
January2003
E-rri~iIs
between~2ountystaff and attorneys concerning
amendments for
recommendation
report~
DOCU1~ENTS POST DATING DECISION
Tanuary 3i~2i~ö~
~ssued
afterT
decision
was
rendered)
M~orandum from
Waste
Management of illinois
to
Kankakee
County
Board.
Sincere’y
HINSI4AW&
CULBERTSON
~
Richax~l’~.
Porter
RSP:drnh
cc:
AU Parties
7O~57l~L~~
~13O$3
04/11/2003
14:38 FAX 8159333397
KENNETH A LESHEN
~I013
AFFIDAVIT OF SERVICE
~Iheundersigned, 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 Karikakee,
Illinois,
before 5:00 p.m.,
on the
11th
day of April,
2003:
Dorothy N.
Gunn,
Clerk
Illinois Pollution Control Board
James
R.
Thompson Center
100 West Randolph Street,
Suite 11—500
Chicago,
IL
60601-3218
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph,
1lt1~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.
lielsten, Esg.
Richard
S.
Porter,
Esq.
Rinshaw
& 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 ~1um Creek Drive,
Unit D
Bourbonnais,
IL
60914
FAX
8~5/937—9164
04/11/2003
14:38 FAX 8159333397
KENNETH
A
LESHEN
~014
~1izabeth Harvey,
Esq.
Swanson,
Martin
&
Bell
One IBM Plaza,
Suite 2900
330 North Wabash
Chicago,
IL
60611
FAX 312/321—0990
04/11/200314:36 FAX 8159333397
KENNETH A LESHEN
~ooi
KENNETH
A.
LESHEN, P.C.
CLF~O~
A~IORNEYATLAW
!~\PR1
12003
One Dearborn Square,
Suite
550
STATE
OF ILUNO1S
Kankakee,
Illinois
60901-3927
~
Control
Board
Telephone
Facshnile
(815) 933-3385
(815) 933-3397
FACSIMILE TRANSMITTAL COVER LETTER
DATE:
April
21,
2003
FROM:
Kenneth A. Leshen
RE:
City of Kankakee vs. County of Kankakee,
et
al.
Illinois Pollution Control Board
POB 03—125,
et al.
THERE WILL ~E
(14)
RAGES INCLUDING THIS PAGE
The
information
con~iried
in
this fe~imiie
is confidential
and mey
also contain
prM~ed~may-dientinFerrnatl-orwork-pro~iu~
The informaban
is
in~rided
only
for
the use of the individual or en~ty
to which it is
addre~ed.If
you
~re
notitie
intend~i
recipient, or theemployee
or egent -esf~nslble
to
delIvec-it~o-the
infond~1
recipient, you are
hereby notiried
Ihat
any
use,
dls~minaiion,distrlbutbn or copying of this communication
Is
str!cdy
proh1bi~d.
rf
you have received
this
facsimile
In
error,
please notify us immediately
by ~lephone,
end return ~i-e
original message~
us at
liE
addr~5Ii~t~d
ab~e
via the UnIt~
Stat~
PoStal E~rvice,
Thank You,
