CLERK’S OFFICE
0198-001
MAY 052003
ILLINOIS POLLUTION CONTROL BOARD
STATE OF IWNOIS
CITY OF
KANKAKEE,
)
PollutIon Control Bo2rd
PCB 03-1 25
Petitioner,
)
PCB 03-133
)
PCB 03-1 34
•v.
)
PCBO3-135
)
(consolidated)
COUNTY OF KANKAKEE, COUNTY
)
(Pollution Control Facility Siting Appeals)
BOARD OF KANKAKEE, and WASTE )
1~ANAGEMENTOF ILLINOIS, INC.
)
)
Respondents.
)
NOTICE OF FILING
To:
(See attached Service List.)
PLEASE TAKE NOTICE that on this 5th day of May 2003, the following County’s
Motion
in
Limine to Bar Evidence Relating to the Host Agreement, directed
to the
hearing officer, was filed with the Illinois Pollution Control Board, attached and herewith
served upon you.
COUNTY OF KANKAKEE and
COUNTY BOARD OF KANKAKEE
~
of Its Attorney
Elizabeth S. Harvey
SWANSON, MARTIN & BELL
One IBM Plaza, Suite 2900
330 North Wabash Avenue
Chicago, Illinois 60611
Telephone: (312) 321-9100
Firm LID. No. 29558
CERTIFICATE OF SERVICE
I, the undersigned, state that I served a copy of the described document in the above-
captioned matter via hand-delivery to the hearing officer (at hearing) and via hand-delivery (at
hearing)/U.S. Mail to all persons listed on the service list on May 5, 2003.
x
Under penalties as provided by law
pursuant to 735 ILCS 5/1-109, I certify
that the statements set 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
ILLINOIS POLLUTION CONTROL BOARD
CLERKS OFFICE
MAY 052003
CITY OF KANKAKEE,
)
)
PCB 03-125
STATE OF
IWNOIS
Petitioner,
)
PCB 03-133
Pollution Control
Board
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.
)
COUNTY’S MOTION
IN LIMINE
TO BAR EVIDENCE RELATING TO THE HOST
AGREEMENT
Respondent COUNTY BOARD OF KANKAKEE (“County”), by its attorneys
Hinshaw & Culbertson and Swanson, Martin & Bell, hereby moves the hearing officer to
bar the introduction, at hearing, of any evidence regarding the adoption of the Host
Agreement between the County and respondent WASTE MANAGEMENT OF ILLINOIS,
INC. (‘WMII”). In support thereof, the County states:
1. Petitioners have conducted discovery (both written discovery and depositions)
regarding the adoption of the Host Agreement between the County and WMII.
That Host Agreement was adopted by the County on December 21, 2001.
Petitioners’ inquiry into the adoption of the Host Agreement was pursuant to the
hearing officer’s ruling that WMII and the County must respond to discovery
regarding the Host Agreement “to the extent that the reference to the “Host
Agreement” pertains to the eventual siting decision.” (Hearing Officer Order,
April 17, 2003, at page 3.)
2. However, petitioners should be prohibited from introducing evidence relating to
the adoption of the Host Agreement at hearing. The Host Agreement in this case
does not pertain to the eventual siting decision.
3. It is well-settled that adoption of a host agreement between an applicant and the
decisionmaker is a legislative function which is not an indication of prejudgment
or bias. In
Residents Against a Polluted Environment v. County of LaSalle and
Landcomp,
PCB 96-243 (Sept. 16, 1996), the Pollution Control Board upheld the
hearing officer’s refusal to allow petitioners to introduce evidence (at the Pollution
Control Board hearing) regarding the adoption of a host agreement between the
applicant and the decisionmaker. The Board, relying on the decisions in
E & E
Hauling v. Pollution Control Board,
107 lll.2d 33, 481 N.E.2d 664 (1985);
Fairiiew
Area Citizens Taskforce (FACT) v. Pollution Control Board,
198 lll.App.3d 541,
555 N.E.2d 1178 (3d Dist. 1990);
Woodsmoke Resorts v. City of Marsailles,
174
III.App.3d 906, 529 N.E.2d 275 (3d Dist. 1988); and
Gallatin National v. Fulton
County Board,
PCB 91-256 (June 15, 1992), found that the host agreement was
“not indicative of predisposition or bias”, but was a “permissible preliminary step”.
LaSalle,
PCB 96-243 (Sept. 16, 1996, slip op. at 16-17). The Board made the
same finding in
Residents Against a Polluted Environment v. County of LaSalle,
PCB 97-1 39 (June 19, 1997),
aff’d
293 lll.App.3d 219, 687 N.E.2d 552 (3d Dist.
1997).
4. The Board’s rulings were consistent with its ruling earlier in the first
Landcomp
case that any ex
parte
contacts between the applicant and the decisionmaker
prior to the filing of the application are irrelevant, since any such contacts are not
impermissible.
Residents Against a Polluted Environment v. County of LaSalle,
PCB 96-243 (July 18, 1996, slip op. at 3-4),
citing Citizens for a Better
Environmentv. City ofBeardstown,
PCB 94-48 (January11, 1995).
5. In short, the Board has repeatedly held that the events surrounding the adoption
of a host agreement are irrelevant to a local siting appeal, as the adoption of a
host agreement is not indicative of predisposition or bias. Additionally, the Board
has held that contacts between an applicant and a decisionmaker prior to the
2
filing of the application are irrelevant. Thus, the events surrounding the adoption
of the Host Agreement in this case (adopted on December 21, 2001, twenty
months prior to the filing of the siting application on August 16, 2002) cannot be
used to determine whether the County’s siting proceeding was fundamentally
fair.
WHEREFORE, the County moves that the hearing officer bar the introduction at
hearing of any evidence relating to the December 21, 2001 Host Agreement, and for
such other relief as the hearing officer deems appropriate.
Respectfully submitted,
COUNTY OF KANKAKEE and
COUNTY BOARD OF KANKAKEE
By: ~bet~S.~Harv/
e of Its Attorn ys
Charles F. Helsten
Richard Porter
Hinshaw & Culbertson
100 Park Avenue
P.O. 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