0198-001
CITY OF KANKAKEE,
Petitioner,
V.
ILLINOIS POLLUTION CONTROL BOARD
)
)
)
)
)
)
)
)
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
RECEIVED
CLERK’S OFFICE
APR 302003
STATE OF ILLINOIS
PCB 03-1 25
Pollution Control Board
PCB 03-1 33
PCB 03-1 34
PCB 03-1 35
(consolidated)
(Pollution Control Facility Siting Appeals)
To:
(See attached Service List.)
NOTICE OF FILING
PLEASE TAKE NOTICE that on this 30th day of April 2003, the following County’s
Response to City’s Motion for
Leave
to
File
“Response to County’s Response to
City’s Motion to Reconsider Discovery Ruling”
and
Surreply to City’s Motion to
Reconsider Discovery Rulings
were filed with the Illinois Pollution Control Board,
attached and herewith served upon you.
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
ie of Its
CERTIFICATE
OF SERVICE
I, the undersigned non-attorney, state that I served acopy of the describedciocumentsinthe
above-captioned matter via messenger to the hearing officer and via facsimile/U.S. Mail to all
persons listed on the service list on April 30, 2003.
\4~~
*~i ~
(~~#ètteM. Podlin
xi
Under penalties as provided by law
pursuant to 735 ILCS 5/1-1 09, I certify
that the statementsset forth herein
are true and correct.
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
Richard Porter
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105
Kenneth A. Leshen
One Dearborn Square
Suite 550
Kankakee, IL 60901
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
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
Keith Runyon
165 Plum Creek Drive
Bourbonnais, IL 60914
Kenneth A. Bleyer
Attorney at Law
923 West Gordon Terrace, #3
Chicago, IL 60613-2013
Leland Milk
6903 S. Route 45-52
Chebanse, IL 60922-5153
Patricia O’Dell
1242 Arrowhead Drive
Bourbonnais, IL 60914
0198-001
RE
CE ~
V
ED
ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
APR 302003
CITY OF KANKAKEE,
)
)
PCB 03-125
STATE OF
ILLINOIS
Petitioner,
)
PCB 03-13.3
Pollution Control Board
)
PCBO3-134
v.
)
PCB03-135
)
(consolidated)
COUNTY OF KANKAKEE, COUNTY
)
(Pollution Control Facility Siting Appeals)
BOARD OF KANKAKEE, and WASTE )
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
RESPONSE TO CITY’S MOTION FOR LEAVE TO FILE “RESPONSE TO COUNTY’S
RESPONSE TO CITY’S MOTION TO RECONSIDER DISCOVERY RULING”
Respondent COUNTY BOARD OF
KANKAKEE
(“County”), by its attorneys
Hinshaw & Culbertson and Swanson, Martin & Bell, hereby responds in opposition to
the CITY OF KANKAKEE’s (“City”) motion for leave to file a “response” to the County’s
response. In the alternative, the County seeks leave to file the attached surreply.
1. On April 30, 2003, the City filed a document entitled “Response to the County of
Kankakee’s Response to the City’s Motion to Reconsider Discovery Rulings”.
Despite this misleading title, the document is not a response, but is actually a
reply to the County’s response, which was filed on April 29, 2003. Later on April
30, 2003, the City filed its belated motion for leave to file that “response”.
2. The County opposes that motion for leave to file. The City fails to even address
the standard for granting such motions, which is to prevent material prejudice.
35 III.Adm.Code 101.500(c). The City merely states that wishes to respond to
affidavits filed with the County’s response. Those affidavits address only the
allegations of the City’s motion, and the City has identified no “need” to respond
to those affidavits.
3. This situation, where the moving party seeks leave to file a reply the afternoon
before the Board may rule on its motion, points out why the Board rules prohibit
replies. Both the Board and the County have been forced into the difficult
position of reviewing and considering (and in the County’s case, responding to) a
reply on extremely short notice. The City has identified no reason why this is
necessary.
4. In the alternative, if the Board allows the filing of the City’s reply, the County
seeks leave to file the attached surreply. The City’s reply asserts matter not
asserted in its motion to reconsider. Some of that new matter is inaccurate and
misleading. The County will be materially prejudiced if the Board allows the filing
of the City’s reply, but does not allow the County to respond to the new
allegations in the reply.
WHEREFORE, the County of Kankakee opposes the City’s motion for leave to file
its “Response to the County of Kankakee’s Response to the City’s Motion to
Reconsider Discovery Rulings”, and in the alternative seeks leave to leave to file the
attached surreply, and for such other relief as the Board deems appropriate.
Respectfully submitted,
COUNTY OF KANKAKEE and
COUNTY BOARD OF KANKAKEE
By:
2
Charles F. Helsten
Richard Porter
Hinshaw & Culbertson
IDO Park Avenue
P0. Box 1389
Rockford, IL 61105-1389
815/490-4900
Elizabeth S. Harvey
Swanson, Martin & Bell
One IBM Plaza, Suite 2900
330 North Wabash Avenue
Chicago, IL 60611
312/321-9100
3
0198-001
~E~-’~j~
CLERK’S OFFICE
ILLINOIS POLLUTION CONTROL BOARD
0
2003
CITY OF KANKAKEE,
)
STATE OF ILLINOIS
)
PCB 03-125
Pollution Control Board
Petitioner,
)
PCB 03-1 33
PCB 03-1 34
v.
)
PCB03-135
)
(consolidated)
COUNTY OF KANKAKEE, COUNTY
)
(Pollution Control Facility Siting Appeals)
BOARD OF KANKAKEE, and WASTE )
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
SURREPLY TO CITY’S MOTION TO RECONSIDER DISCOVERY RULINGS
Respondent COUNTY BOARD OF KANKAKEE (“County”), by its attorneys
Hinshaw
& Culbertson and Swanson, Martin & Bell, hereby submits its surreply to
petitioner the CITY OF KANKAKEE’s (“City”) motion to reconsider discovery rulings.
1. The City continues to pose red herrings to the Board, in its quest to depose Mr.
Helsten and Ms. Harvey. First, it asserts that because Mr. Helsten and Ms.
Harvey submitted affidavits regarding January 2003 phone calls with
representatives of WMII, demonstrating that those calls were non-substantive,
the City should now be allowed to depose Mr. Helsten and Ms. Harvey on their
affidavits. However, rather than opening the door to inquiry, the affidavits slam
the door on any further inquiry. The affidavits are unequivocal and definite, and
leave no room for varying interpretations: they clearly state that there were no
substantive contacts between Mr. Helsten, Ms. Harvey, and any WMII
representative while the application was pending. The affidavits were submitted
to demonstrate that, contrary to the City’s assertions, there were no substantive
and improper contacts during the siting process. The City seeks to depose Mr.
Helsten and Ms. Harvey as to alleged improper contacts, which the City has
claimed occurred. Counsel’s affidavits demonstrate that those calls were not
improper. Allowing the City to depose counsel on their affidavits, which were
submitted only to rebut the City’s unsupported allegations, would allow the City to
create a reason to depose counsel by simply making unsupported statements
which counsel would be required to rebut. Such an occurrence would fly in the
face of the Board’s long-standing reluctance to allow the depositions of attorneys.
See, e.g., Citizens Against Regional Landfill v. County Board of Whiteside
County,
PCB 92-156 (February 25, 1993).
2. Contrary to the City’s claims, the submittal of affidavits, to rebut unsupported
allegations, does not waive the County’s objections to the depositions of Mr.
Helsten and Ms. Harvey. The County did not raise attorney-client privilege on
the limited issue of the January 2003 phone calls, and thus has not waived any
attorney-client privilege. As to its other objections to the depositions (as set forth
in the County’s response), the City cites no support for its claim that the County
has waived those objections merely by submitting affidavits in support of the
objections.
3. The City raises new matter regarding the discovery deposition testimony of
Leonard Martin, a Kankakee County Board member. The City asserts that Mr.
Martin testified at his deposition that Mr. Helsten had contacts with WMII
regarding the conditions imposed by the County, and that those contacts
occurred prior to January 31, 2003. The City attaches just three pages of the
transcript of Mr. Martin’s testimony.
4. However, the City has grossly misrepresented Mr. Martin’s deposition testimony.
Mr. Martin clarified his testimony to indicate that, to his knowledge, any such
conversations between Mr. Helsten and WMII occurred after January 31, 2003,
2
not prior to that date. (See Exhibit 1, page 38, lines 2 through page 39, line 6.)~
5. In fact, even the limited portion of the transcript provided by the City casts doubt
on its representation of Mr. Martin’s testimony. On page 23, Mr. Martin testifies
that he believes that Mr. Heisten’s contact with WMII occurred “faifter the County
Board passed the siting and the application from Waste Management I think that
he was---he was told by the County that he could negotiate the conditions on
behalf of the County Board.” (Page 23, lines 16-20 (emphasis added)(attached
as Exhibit A to the City’s reply.)
6. The City’s motion misrepresents and misstates the substance of Mr. Martin’s
testimony, stating that Mr. Martin testified that contacts occurred before January
31,
2003, when it is clear that Mr. Martin stated that the contacts took place after
January 31, 2003. Contacts after January 31, when the County Board made its
decision on the siting application, are simply irrelevant to this appeal, and cannot
violate fundamental fairness.
7. In view of the City’s misrepresentations, which are the basis for the majority of
the City’s reply, the County moves the Board to impose sanctions on the City,
pursuant to Section 101.802 of the Board’s rules. The City’s misrepresentations
constitute an abuse of discovery procedures.
8. Even considering Mr. Martin’s testimony in the light set forth by the City, that
testimony does not provide a basis for the deposition of Mr. Helsten, and
certainly provides no basis for Ms. Harvey’s deposition.2 As pointed out in the
County’s response, Mr. Helsten did not represent the County Board, the
decisionmaker in this matter, during the local siting proceeding. Thus, it is
The County regrets that the extremely short time frame (less than five hours) to respond to
the City’s reply prevents the County from providing a complete certified transcript. Upon
direction by the Board, the County will provide a complete transcript.
2
In fact, Mr. Martin testified that he is not aware of any contacts between Ms. Harvey and
WMII. See Exhibit 1.
3
difficult to understand how contacts with Mr. Helsten could have been improper
ex parte
contacts. Prohibited
ex parte
contacts occur between decisionmakers
and those seeking to influence the decisionmakers. Assuming, without admitting,
that a substantive contact between Mr. Helsten, who did not represent the
decisionmaker during the local proceeding, and WMII did occur, such a contact
cannot be improper.
9. In short, the City is trying desperately to create a reason to depose Mr. Helsten
and Ms. Harvey, by asserting half-truths and red herrings. In reality, nothing the
City has raised overcomes the presumption, long held by the courts and this
Board, that attorneys can be deposed ~jy when: (1) no other means exist 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 of the case.
Citizens Against Regional Landfill v. County Board of
Whiteside County,
PCB 92-156 (February 25, 1993). The City has failed to
make any of those three required showings. The County asks the Board to
uphold the hearing officer’s rulings regarding depositions, and to impose
sanctions on the City for its abuse of discovery procedures.
Respectfully submitted,
COUNTY OF KANKAKEE and
COUNTY BOARD OF KANKAKEE
By:
4
Charles F. Helsten
Richard Porter
Hinshaw & Culbertson
I
co
Park Avenue
P0. Box 1389
Rockford, IL 61105-1389
815/490-4900
Elizabeth S. Harvey
Swanson, Martin & Bell
One IBM Plaza, Suite 2900
330 North Wabash Avenue
Chicago, IL 60611
312/321-9100
5
04/30/2~03 14:49 FAX
DEPOSITION OF LEONARD
MARTIN
—
4/29/03
38
1 THE WITNESS:
2
A.
The thing that I, as I understood it that
3 the County has authorized Mr. Helsten to negotiate with
4
Waste Management
and
also with the City
as
to, for
5
exainpJ.e, the cost of the double liner in trying to come
6 to some kind of a solution to whatever that problem might
7 be.
8 MR. FLYNN:
9
Q.
Did those conversations occur before or
10 after the Regional Planning Commission
made
the
1) recommendation?
12
A.
After.
13
Did those conversations occur before or
14 after the siting application was ruled upon?
15
A.
Of the Kankakee City you mean?
16
Q.
No, of the County of Kankakee.
17
A.
I don’t
——
has it been ruled upon?
18
Q.
Well, you had a Board Meeting on January
19
31, 2003
——
20
A.
Yes.
21
Q.
-—
where the application was approved?
22
A.
Yes, it would be after that.
23
Q.
Are you aware of any conversations that
24 occurred between Elizabeth Harvey and Waste Management at
MARILYNN MROZYNSKI. CSR,
KANKAKEE,.
ILLINOIS
815-439-1390 FAX 815-439-8370
~PR 3~‘~314:53
PRI3E.39
04/30/2~O314:49 FAX
wju~u
DEPOSITION OF LEONARD MARTIN
-
4/29/03
39
1 any time between March of 2002 and January 31 of 2003?
2
A.
No.
3
Q.
Are you aware of any conversations that
4 occurred between Hr. Heisten and Waste Management during
5 that time frame?
6
A.
Not that I know.
7
Q.
You were present at the hearing on January
8 31, 2003?
9
A.
You talking about the Regional Planning
10 Commission?
11
Q.
No. I’m talking about the County of
12 Kankakee Board Meeting.
13
A.
Yes, yes.
14
Q.
Do you recall what time the meeting
15 started that day?
16
A.
Probably 9:00, but I can’t say for sure.
17 They all start at nine.
18
Q.
Do you know what time it ended that day?
19
A..
No.
20
Q.
Did it run straight through from start to
21 finish?
22
A.
I didn’t hear that.
23
Q.
Did the meeting go straight through from
24 start to finish?
MARILYNN MROZYNSKI, CSR. KANKAKEE, ILLINOIS
815-439-1390 FAX 815-439-8370
APR 30 ‘03 14:53
PAGE. 40