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REcV~E~
BEFORE THE
ILLINOIS POLLUTION CONTROL
BOARDC1..F,~’SO~~
APR
2
32003
CITY OF KANKAKEE,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
PCB 03-03-125
~TAE
OF IIJUNOIS
Pollution
Control
Board
(Third-Party Pollution Control
Facility Siting Appeal)
PCB 03-133
(Third-Party Pollution Control
Facility Siting Appeal)
PCB 03-134
(Third-Party Pollution
Control
Facility Siting Appeal)
PCB 03-135
(Third-Party Pollution Control
Facility
Siting Appeal)
MERLIN KARLOCK,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and
WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
MICHAEL WATSON,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
KEITH RUNYON,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
NOTICE OF FILING
TO:
See Attached
Service List
PLEASE TAKE NOTICE that on or before
10:00 a.m. on April
23,
2003, we filed with the
Illinois Pollution Control Board, the attached WASTE MANAGEMENT
OF ILLINOIS,
INC.’S
OBJECTIONS
TO PETITIONERS’ WITNESS LIST
in the above entitled matter.
W~T~MANAGEME~T F ILLINOIS, INC.
By(~(
/
One of Its A96rneys
Donald J. Moran
Lauren Blair
PEDERSEN & HOUPT
Attorneys for Petitioner
161
N.
Clark
Street
Suite 3100
Chicago, IL
60601
Telephone:
(312) 641-6888
364430
This DocumentIsPrinted on RecycledPaper
PROOF OF SERVICE
Victoria
L.
Kennedy,
a
non-attorney,
on
oath
states
that
she
served
the
foregoing
WASTE
MANAGEMENT
OF
ILLINOIS,
INC.’S
WASTE
MANAGEMENT
OF
ILLINOIS,
INC.’S
OJ3JIECTIONS
TO PETITIONERS’ WITNESS LIST
on Ms. Dorothy M. Gunn, Clerk ofthe Illinois
Pollution
Control
Board and on
Bradley Halloran by
hand
delivery at their addresses
listed below on
or
before
10:00 a.m. on the 23rd day of April, 2003
and by facsimile atthe facsimile numbers listed below on
or
before
10:00 a.m. on the 23rd day of April, 2003:
Ms. Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R.
Thompson Center
100
West Randolph Street,
Suite
11-500
Chicago, Illinois
60601
Charles F.
Helsten, Esq.
Richard S.
Porter, Esq.
Hinshaw
&
Culbertson
100 Park Avenue
P.O.
Box 1389
Rockford, IL
61105-1389
(815)
490-4900
(815)
963-9989
(fax)
Kenneth A. Leshen, Esq.
One Dearborn Square, Suite 550
Kankakee, IL 60901
(815)
933-3385
(815)
933-3397
(fax)
Jennifer J. Sackett Pohlenz, Esq.
1
75
W. Jackson Boulevard, Suite
1600
Chicago, IL 60604
(312) 540-7540
(312) 540-0578 (fax)
Bradley Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite
I Ith Floor
Chicago,
Illinois
60601
(312) 814-8917
(312) 814-3669
(fax)
George Mueller, Esq.
501
State Street
Ottawa, IL 61350
(815) 433-4705
(815) 433-4913 (fax)
Elizabeth Harvey,
Esq.
Swanson, Martin & Bell
One IBM Plaza
Suite 2900
330 North Wabash
Chicago,
IL 60611
(312) 321-9100
(312) 321-0990 (fax)
L. Patrick Power,
Esq.
956 North Fifth Avenue
Kankakee, IL 60901
(815) 937-6937
(815) 937-0056
(fax)
Keith Runyon
1165
Plum Creek Drive,
Unit D
Bourbonnais, IL 60914
(815)
937-9838
(815)
937-9164 (fax)
~
Victoria L. Kennedy
)
364430
This Document IsPrinted on Recycled Paper
BEFORE
THE ILLINOIS POLLUTION CONTROL
BOARD
IT”OF
KAK
E
C
KAN
E
CL~-PhSO1~(-J
Petitioner,
v.
COUNTY
OF
KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
MERLIN KARLOCK,
Petitioner,
v.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS,
INC.,
Respondents.
MICHAEL WATSON,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
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PCBO3-03-125
APR
2
32003
(Third-Party ~
Facility Sitingp
~
Control Board
PCB
03-133
(Third-Party Pollution Control
Facility Siting Appeal)
PCB
03-134
(Third-Party Pollution Control
Facility
Siting Appeal)
PCB 03-135
(Third-Party Pollution Control
Facility Siting Appeal)
KEITH RUNYON,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
364416
This Document
was Printed
on Recycled Paper
WASTE MANAGEMENT OF ILLINOIS, INC.’S OBJECTIONS
TO PETITIONERS’ WITNESS LIST
Respondent WASTE MANAGEMENT
OF ILLINOIS, INC.
(“WMII”), by
its attorneys,
Pedersen & Houpt, objects to the
witness list submitted or to be submitted by Petitioners
in this
matter as follows:
I.
On April
17, 2003, pursuant to
a telephonic conference, the Hearing Officer
imposed a deadline on the parties to provide a list ofwitnesses they wish to
depose on or before
April 22, 2003.
2.
Neither Petitioners Karlock, Watson and Runyon, nor Respondents WMII and
County ofKankakee County Board (“County”) submitted any witness/deponent lists.
However,
on April 22,
2003,
Petitioner City ofKankakee (“City”) submitted
its list ofdeponents, which
identified a total oftwenty-three
(23) individuals to be deposed within the eight (8) business days
that remain before the hearing commences on May 5, 2003.
3.
WMII first objects to the City identifying Donald
J.
Moran (“Moran”) and Dennis
Wilt (“Wilt”) as deponents.
Moran is
WMII’s attorney ofrecord in this matter, and Wilt
is
WMII’s General Counsel.
4.
The Illinois Pollution Control
Board (“Board”) has emphatically expressed
its
disfavor with the practice ofdeposing opposing
counsel because
it
“constitutes an invitation to
delay, disruption of the case, harassment and perhaps disqualification of the attorney
to be
deposed.”
Citizens Against Regional
Landfill
(C.A.R.L.) v. The County Board of Whiteside
County, No. PCB 92-156, slip op. at p.16 (February
25,
1993).
The Board held that “the
deposition of opposing
counsel
should be limited to
situations where the party seeking the
364416
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2
deposition has shown that
(I) no other means exists to obtain the information than to depose
opposing counsel; (2) the information sought is relevant and non-privileged; and (3) the
information is crucial to the preparation ofthe case.”
C.A.R.L., slip
op. at p.
17.
5.
In this case, none of the information known to
Mr. Moran or Mr. Wilt is in
any
way unique to them or known only by them.
Mr. Moran did not attend any meetings with
County representatives without Dale Hoekstra or Chris Rubak.
Mr. Moran’s phone conversations
with
attorneys for the County related to procedural matters in
the local
siting process and are not
probative ofany fundamental fairness challenge.
Mr.
Wilt represented WMII in connection with
the Host Agreement and on the occasions he
met with the County, he was always
accompanied
by Mr. Hoekstra, WMII’s Director of Operations.
Both Mr. Rubak and
Mr. Hoekstra are
identified on the City’s list and are available to be
deposed by the City, as are other individuals
identified on its list.
Moreover, the City has not made any showing that the information it seeks
from
Mr. Moran and Mr. Wilt
is crucial to
its case.
In fact, the City has yet to make any
allegations of specific instances ofprejudgment or fundamental unfairness.
Because the City has
failed to show a legitimate basis for identifying Mr. Moran and Mr.
Wilt, the City appears to
seek their depositions for the improper purposes of disruption ofthe proceedings, harassment and
possible disqualification of WMII’s counsel of choice.
6.
WMII also
objects to the City identifying Lee Addleman (“Addleman”), WMII’s
Director ofBusiness Development, on its list of deponents.
As
WMII stated in its Answers to
the City’s Interrogatories, which were served on April
18, 2003, Mr. Addleman had liver
transplant surgery on February
17, 2003,
is
currently on medical leave ofabsence, and will be
unavailable to assist
or provide information regarding his involvement
in the subject siting
364416
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3
matter.
The City was well aware of Mr. Addleman’s condition
at the time it prepared its list of
deponents, which further indicates that the City has identified Mr. Addleman solely to harass.
7.
In addition, WMII asserts a general objection to the number ofdeponents
identified by the City.
As stated above, the City has identified twenty-three
(23) individuals to
be deposed within eight (8) business days.
Yet, the City has not
articulated any specific
instances ofprejudgment or any relationship between the named individuals and any alleged
fundamental unfairness in
its petition for review.
Before the City is allowed to seek information
relating to alleged prejudgment of adjudicative facts or fundamental unfairness, it must allege
specific instances or evidence ofpre-filing collusion or prejudgment.
Land and Lakes Co.
v.
Village of Romeoville, No. PCB 92-25, slip. op. at 4 (June 4.
1992);
DiMaggio v. Solid Waste
Agency ofNorthern
Cook County, No. PCB 89-1 38. slip
op. at
7
(October 27,
1989).
Rather
than
do so, the City simply casts a wide
net hoping to find
information to support its petition.
However, unlimited discovery in
the nature ofa fishing expedition should not be not permitted.
Without allegations ofany specific
instances ofmisconduct, the City’s extensive
witness/deponent
list is not justified, and appears only to
serve the
City’s goals to harass the
Respondents,
delay these proceedings and
unnecessarily increase the costs ofthis litigation.
8.
Under Section
101.616(d) ofthe Board’s Procedural Rules, the Hearing Officer
has the power to
deny, limit, condition or regulate discovery to prevent unreasonable expense,
harassment or delay.
In light ofthe foregoing, the City should be required to either articulate the
relationship between the proposed deponent and the alleged prejudgment, or eliminate that
individual from its list.
In addition, the Hearing Officer should impose time limits
(one-hour
limit)
on the depositions that are allowed to proceed.
364416
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4
9.
As a final matter, because Petitioners Karlock, Watson and Runyon have failed to
submit witness lists within the deadline imposed
by the Hearing Officer, those parties should be
precluded from noticing any witnesses for deposition or calling them
at the hearing.
WHEREFORE, WMII requests that the Hearing Officer:
A.
Deny Petitioner City ofKankakee’s request to
depose WMII’s attorneys Donald J.
Moran and Dennis Wilt, and WMII’s Director ofBusiness Development Lee
Addleman;
B.
Order Petitioner City ofKankakee to either articulate the relationship between the
listed
deponents and
the alleged prejudgment,
or eliminate that individual from its
list;
C.
Impose a one-hour time limit on the depositions that are allowed to proceed in this
matter;
D.
Preclude Petitioners Karlock, Watson and Runyon from noticing any witnesses
for deposition or calling them at the hearing; and
E.
Order such further and other relief as he deems appropriate.
Dated:
April 23, 2003
Respectfully submitted,
MANAGEMENT OF
ILLINOIS, INC.
ByO~~
/•~
One ofIts At
meys
Donald
J. Moran
Lauren Blair
PEDERSEN & HOUPT
161
North Clark Street
Suite 3100
Chicago, Illinois 60601
(312) 641-6888
364416
This Document iias Printed on Recycled Paper
5