PROOF OF SERVICE
(05/01/03)
10(F).

Querrey ~ Harrow

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BEFORE

THE

ILLINOIS POLLUTION CONTROL BOARIX

MICHAEL

WATSON,

K S

Petitioner,

No. PCB 03434

M~Y o

vs.

(Pollution Control Facility

~?RPigControi2oard

Application)

COUNTY BOARD OF KANKAKEE COUNTY,

ILLINOIS, and WASTE MANAGEMENT OF

ILLINOIS, INC.,

Respondent.

NOTICEQF

FILNG

TO:

See

Attached Service List

PLEASE TAKE NOTICE that on May 1, 2003, we filed with the Illinois Pollution

Control Board,, an original and 9 copies of the attached Response to WMII’s Motion to

Quash Subpoenas to Persons at Richard J.

Daley College, copies of which are attached

hereto and served upon you.

QUERREY & HARROW,

LTD.

Jennifer J. Sackett Pohlenz

Attorney for Petitioner Michael Watson

175

West Jackson Boulevard

Suite 1600

Chic~ago,Illinois 60604

(312) 540~7000

Attorney Registration No. 6225990

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PROOF OF SERVICE

Judith M. Teeghman, under penalties of perjury, certifies that she served Notice of

Filing and Response to WlVffl’s Motion to Quash Subpoenas to Persons at Richard

Daley College,

on the following parties and persons at their respective addresses/fax numbers,

this 1st day of May, 2003, by or before the hour of 4:30 p.m. in the manners stated below:

Via Facsimile & U.S. Mail

Via

U. S. Mail

Donald Moran

Patricia O’Dell

Pedersen & Houpt

1242 AxToWbead Drive

161 North Clark Street

Bourbormais, IL 60914

Suite 3100

Interested Party

Chicago, IL 60601-3242

Fax:

(312)

261-1149

Attorney for

Waste Management of Illinois, Inc.

Via Facsimile

US Mail

Kenneth A. Leshen

One Dearborn Square

Suite

550

Kankakee, IL 60901

Fax:

(815) 933-3391

Representing Petitioner in PCB 03-125

Via Facsimile

Keith Runyon

1165

Plum

Creek Drive

Bourbonnaise, IL 60914

Fax: (815) 937-9164

Petitioner in PCB

03-135

Via Facsimile & U.S. Mail

George Mueller

George Mueller, P.C.

501 State Street

Ottawa, IL 61350

Fax: (815) 433-4913

Representing Petitioner in PCB 03-133

Via U. S. Mail

Leland Milk

6903 S Route 45-52

Chebanse, IL 60922-5153•

Interested Party

Via

Facsimile & U.S. Mail

L. PatrickPower

956 North Fifth Avenue

Karikakee, IL 60901

Fax: (815) 937-0056

Representing Petitioner in PCB 03-125

Via Facsimile & U.S. Mail

Elizabeth S. Harvey, Esq.

Swanson, Martin & Bell

One IBM Plaza, Suite 2900

330 North Wabash

Chicago, IL 60611

Fax: (312) 321-0990

Representing Kankakee

CountyBoard

Via Facsimile & U.S. Mail

Charles Helston

Richard Porter

Hinshaw & Culbertson

100 Park Avenue

P~O.Box 13 89

Rockford, Illinois 61105-1389

Fax: (815) 490-4901

Representing Kankakee County Board

Via Facsimile

(05/01/03) &

Hand

Delivery

(05/01/03)

Bradley P. Halloran

Illinois Pollution Control Board

James R. Thompson Center, Ste. 11-500

100 W. Randolph Street

Chicago, IL 60601

Hearing Officer

Judith M. Tee4~~n

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65448-POll

BEFORE THE ILLINOIS

POLLUTION CONTROL BOARD

MICHAEL WATSON,

______________________

Petitioner,

No. PCB 03-134

vs.

(Pollution Control Facility Siting Appeal)

COUNTY BOARD OF KANKAKEE COUNTY, Consolidated With PCB

03-125,

03-133,

ILLINOIS, and WASTE MANAGEMENT OF

03-135,

03-144)

ILLINOIS, INC.,

Respondent.

RESPONSE TO WMII’S MOTION TO QUASH SUBPOENAS TO

PERSON$ AT RICHARD J. DALEY COLLEGE

Now Comes Petitioner Michael Watson, by and through his attorneys at Querrey &

Harrow, Ltd. and as and for his Response to Waste Management ofIllinois, Inc.’s (WMII)

Motion to Quash the subpoenas to Registrar Saundra Listenbee & Mary Ann Powers of

Richard J. Daley College stares as follows:

1. Petitioner Watson served two subpoenas for testimony at trial. The first to Saundra

Listenbee and the second to Mary Ann Powers. Both individuals are employees at Daley

College.

2. WMII seeks to quash these subpoenas alleging, essentially, that Petitioner Watson

has not raised a fundamental fairness issue, and is, instead asking the Illinois Pollution Control

Board to reweigh the credibility of Ms. Beaver-McGarr who was one of WMII’s purported

expert witnesses on Criterion. 3. WMII not only has no standing to raise such a motion to

quash; it has waived its argument; and it’s motivation is simply to exclude or bar the testimony

and prevent a truly fundamentally unfair issue to be•raised by Petitioner Watson to the Illinois

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Pollution Control Board. Therefore, WMII’s Motion to Quash should be denied.

3. WMII has

standing and has asserted no basis for standing to challenge the

subpoena. In 

United States v. Milkr

425

U.S. 

435, 48

L. Ed. 2d 71, 96 S. Ct. 1619 (1976),

the Illinois Supreme Court held that a defendant lacked standing to 

challenge a subpoena, when

that

aefendant possessed no private interest in 

the materials subject to

the subpoena. In

WMII’s Motion to Quash it

provides 

no basis for

standing, 

delineates no private interest or

right to protect the documents or the testimony which will be elicited at hearing from

disclosure, and presents no representation that it is counsel for the persons subject to the

subpoena. In fact, WMII’s counsel represented at hearing today that he does not represent the

persons subject to the subpoena, Moreover, the persons subject to the subpoena are not

challengi1n~It. Counsel for City Colleges of Chicago (of which Daley College is one) has

contacted counsel for Petitioner Watson, accepted service on behalf of the two employees

identified in the subpoena, and is fully cooperating with the request that was made.

4. WMII waived

its objections to subpoenaing of the individuals identified. If this

Hearing Officer 

determines that WMTI

has

standing to move to quash the subject subpoenas,

then the Hearing Officer slaould find that WMII waived its objections to the subpoenas, when it

failed to object to the subpoena

duces tecum

issued to Daley Colleges (and which was filed and

served on March 31, 2003).

S. Finally,

Motion to Quash a

subpoena is

not appropriately used to object to or

seek

to bar admissible evidence.

WMII argues that the subpoenas should be quashed, since

they don’t concern a fundamental fairness issue and WMJI alleges “Petitioner fails to

demonstrate how said alleged failures prejudiced him

or other participants in the public

hearing.” (Motion ¶2). First, it is not procedurally proper to bar testimony, or find it

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inadmissible, in response to a motion to quash, opposed to a motion to bar. However,

notwithstanding and without waiving that objection to WMII’s Motion, the testimony of these

individuals is directly relevant to Petitioner Watson’s Amended Petition for Review, Paragraph

10(F).

6. WMII attempts to downplay the significance of what occurred at hearing. Ms.

Beaver-McGarr swore, undór oath, a~nongother

things, 

that

she obtained a degree 

from Daley

Colleges. Petitioner Watson stopped cross-examination on this issue, and on the issue of her

qualifications stemming from the degree-issue, -based 

on WMII’s representation that it would

produce Ms. Beaver-McGarr’s diploma and it would produce her for continued cross-

examination on that diploma or failure to produce one. WMII never produced a diploma for

Ms. Beaver-McGarr. WMII refused to put Ms. Beaver-McGarr back on the stand to allow

Petitioner Watson to finish cross-examination, which was deferred until WMII produced the

diploma. No subpoena powers are

provided for in 

the local-level siting process, therefore,

Petitioner Watson was not able to obtain Ms. Beaver-McGarr’s Daley College records below.

However~it did subpoena them in this proceeding and found out that Ms. Beaver-McGarr

never obtained a d~grq~

from Daley College. In other words, she lied, under oath.

7. Why is this fundamentally unfair?

Because, 

the use ofperjured testimony is

fundamentally unfair and it cannot be relied upon by a trier offact. People of the State of’

Illinois v. Moore, 199 IlL App. 3d 747,

557

N.E.2d

537

(l~Dist. 1990). Therefore,

Petitioner Watson should be allowed to present evidence that Ms. Beaver-McGarr perjured

herself, her testimony should have been barred, and, as a result of it not being so barred, the

decision of the County Board was fundamentally unfair as it relied on the testimony. Further,

Petitioner Watson should be allowed to present such evidence, as the proceeding itself was

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unfair,

since Watson relied on and deferred its cross-examination based on WMH’s

representations that it would produce the diploma and produce Ms. Beaver-McGarr for further

questioning on the diploma, both of which representations, WMII later retracted. Therefore,

Petitioner Watson should be allowed the opportunity

to present evidence of this 

unfairness and

the prejudice it 

has caused.’

WHEREFORE, Petitioner Watson respectfully requests

the Ilearing Officer deny WMII’s

Motion to Quash, for the reasons stated above.

Dated: May 1, 2003             

PETITIONER MICHAEL WATSON

•

___

Jennifer

Sackett Poblenz

QUERREY & HARROW,

LTD.

175

West 

Jackson Boulevard, Suite 1600

Chicago, Illinois 60604

(312) 540-7000

Attorney Registration No.

6225990

Attorneys for Petitioner Michael Watson

‘WMII appear to content

that

Watson has to present evidence or prejudice prior to hearing in this matter. Watson

objects to any such implication, as nowhere is that required by the rules of the IPCB and WMII’s implications and

statements to that effect (including, but not

limited

to Paragraph 2) should be stricken.

Printed on Recycled Paper

** TOTAL PAGE.O? **

Querrey ~ Harrow

Qucr~ey& Harrow, Ltd.

175

West JacksonBoulovard

Suite

1600

chicago, IL 60604-2827

TEL (312)540-7000

FAX (312)540-0578

Jennifer

Snci~ettPohlenz

Direct Dial: (312)

540-7S40

E.-xz,a~I:fpoh1eue~ey&nzn

Other

Offices:

Crystal Lake, IL

JoIieL

Merrillvile, IN

New York, NY

Waukegan, IL

Whea~on,IL

Representative

U.K. Qifice;

London

FROM:

NAME

COMPANY:

Bradley Halloran. / IPCB

Donald Moran / Pedersen & Houpt

Kenneth A. Leshen

George Mueller

L. Patrick Power

Elizabeth S. Harvey / 

Swanson,

Martin & Bell

Richard Porter 

Hinshaw & Culbertson

Keith Runyon

Jennifer J. Sackett Pohlenz

RE CE )iVED

CLERK’S

OmCE

MAY

012003 -

FAX NUMBER:

STATE OF ILLINOIS

(312) 814-3669

PollutIon Control Board

(312) 261-1149

(815)

933-3397

~(815)

433-4913

(815) 937-0056

(312)321-0990

(815)

490-4901

(815)

937-9164

USER NO.:

CMR NO.:

9328

65448

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POll

SENT BY:

Please see enclosed Response to WMII Motion to Quash Daley Subpoenas.

The

information contained 

this facsimile communication is 

attorney privileged and confidential

information

intendcd only for th~u~cof th~individual or entity to whom or to which it is addressed. If the recipient of this

iransmission is not the intended recipient, the recipient is hereby notified that any dissemination, distribution, or

reproduction ofthis communication is strictly prohibited. If you have received this communication in error, please

notify QUERREY

HARROW,

LTD.

at the above telephone number and return the communication to

QUERREY & HARROW, LTD. at the above address via the U.S. Postal Service. Thank you.

TO:

FAX TRANSMISSION SR~ET

DATE:

May 1, 2003