PROOF OF SERVICE

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BEFORE

THE ILLINOIS POLLLTION CONTROL BOAR)

___________________________

STATE OF ILUNOIS

MICHAEL WATSON,

Pollution Control Boord

Petitioner,

No. PCB 03-134

vs.

(Pollution Control Facility Siting Appeal)

COUNTY BOARD

KANKAKEE COUNTY, Consolidated With PCB 03-125, 03-133,

ILLINOIS, and WASTE MANAGEMENT OF

03-135)

ILLINOIS, INC.,

Respondent.

1~$PONSETo

THE

COUNTY’S MOTION TO BAR

AND

FOR SANCTIONS

Now Comes Petitioner Michael Watson, by

and through his attorneys at Querrey

Harrow, Ltd. and as and for his Response to the County Board of Kankalcee’s (County Board)

Motion to Bar and for Sanctions, states as follows:

1. Petitioner Watson filed his List of Witnesses to Testify at the Public Hearing on

May

2, 2003 (Withess List). In response, the County Board tiled a Motion to Bar and for

Sanctions against Petitioner Watson. The County Board’s Motion, both with respect the bar

and sanctions is unjustified, and with respect to sanctions, does not meet

the

prerequisite

requirement for filing such a motion under Section 101.800

of the Illinois Pollution Control

Board (IPCB) rules.

2. The County Board seeks sanctions on the apparent basis

that

incorrectly perceived

the reference to “Elizabeth Harvey’7 on the Witness List to be “flaunting of repeated decisions

on this issue,” (Motion

~).

Nothing can be further from the truth and nothing in the Witness

List

“flaunts” any person, order or issue. Further, the fact that a Motion with such serious

allegations against counsel for Petitioner would be filed by counsel for the County without a

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coi.Irtesy call to clarify the intent of the filing if it was not understood’, is outrageous.

Ms. Harvey’s name was footnoted with a reference to Footnote 2. Footnote 2

references the Hearing Officer’s two orders, the first pertaining to the discovery deposition of

Ms. Harvey (and Mr. Moran, among others), and the second pertaining to a Rule 237 request

filed by counsel for Petitioner Karlock. The footnote goes on to say:

“Petitioner reserves his objections to this ruling and reiterates his

response to objections to the discovery deposition of this

individual that since Mr. Moran and Ms. Harvey were the only

two people identified as being involved in their conversations

occurring, ex parte, during January 2003, and prior to the

County’s decision on January 31, 2003, they are the only source

for information concerning the exact substance of that

communication.”

The fact that the names of Mr. Moran and Ms. Harvey’s names are footnoted with

an acknowledgement of the Hearing Officer’s rulings and a reservation with respect to

Petitioner’s objections, should have signaled that the listing of these individuals was hardly

intended to “harass,” be” vexatious”, and whatever other terms the County Board has

unjustifiably used against Petitioner Watson.

To clarify the Witness List: Mr. Moran and Ms. Harvey were listed in order to

~~çrve the issue on appeal. Absolutely nothing, no word, no Sentence in Petitioner’s

Witness List rising to the level of “vexatious” or “flaunting” and such allegations are offensive

on their face. Should Petitioner Watson not have listed these two individuals, surely the

County Board would argue Petitioner waived the issue on appeal.

Preserving

repleading

with reservation is not only a common legal practice in

Illinois, it is a perfectly acceptable and non-sanctionable act.

See,

Pfaff v. Chrysler

Corporation,

et al., 155

fll.2d.

35,

610 N.E.2d 51 (S. Ct. 1992). In Pfaff, the Illinois

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Supreme Court found that a party had abandoned its rights to appeal the Section

2-615

dismissal of certain counts of its complaint, when the party voluntarily withdrew its repleading

of those counts, and amended its complaint without those counts. Albeit a complaint is

distinguishable from a discover request, however, the legal concept of a withdraw due to

failure to preserve is the same.

7. Moreover, both the County Board’s allegations ofrepeated violations of IPCB and

Hearing Officer’s Orders as a rational for sanctions is unfounded given the circumstances of

this case. First, Petitioner Watson only listed the subject individuals (Harvey and Moran)

once, prior to its Witness List when it joined in the City of Kankakee’s list of deponents.

Second, had Petitioner Watson not made a record that these individuals were being requested

to appear at the hearing by him, then the County Board would argue Petitioner has no right to

appeal on that issue. Third, nowhere in the Witness List did it reference the IPCB’s order of

May 1, 2003 and, in fact, Petitioner’s counsel did not at that time and (other than the County

Board’s representations in its Motion) does not at this time know what that Order states, as, to

this counsel’s knowledge it is not yet published on-line (counsel has looked for it) and has not

been served on counsel for this Petitioner. Further, with the time limitations, number of

filings, and depositions that have proceeded (in this and other cases handled by counsel for this

Petitioner), since yesterday, when such an Order would have been entered, counsel has

not had

the time to call the

IPCB

to orally find out what the Order states.

Finally, Section 101.800(c) provides that the IPCB considers the following factors

in determining whether to award sanctions: the relative severity of the refusal to comply, the

past history ofthe proceeding, the degree to which the proceeding has been delayed or

prejudiced, and the existence or absence of bad faith. There was no refusal to comply by

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petitioner. the listing of Mr. Moran and Ms. Harvey on the wimess list was simply an attempt

~o preserve art objection. Petitioner’s past history in this proceeding has been respectful,

petitioner has complied with Hearing Officer Orders, and, contrary to the County Board’s

allegation, Petitioner has not violated any Order of this Board or the Hearing Officer. The

proceeding has not been delayed or prejudiced by the inclusion of the names of Mr. Moran and

Ms Harvey in the witness list, and the County Board alleges no such delay or prejudice. And,

there is no bad faith on the part of Petitioner in filing the subject Witness List, and the County

Board alleges no such bad faith.

9. It is unfortunate that the intent to preserve rather than the intent to call as a witness

was not understood, however, it is unclear, whether it would have made any difference to the

County Board had it been understood. It was something that a simple phone call could have

avoided, should the County Board have so misunderstood the wording of the Witness List. It

is i~ something that is sanctionabl&. It is ~ something that warrants a motion to bar.

Therefore, the County Board’s Motion to Bar and for Sanctions should be denied as moot or,

alternatively, simply denied.

Dated: May 2, 2003

PETITIONER MICHAEL WATSON

of hi~~~dys

Jennifer J. Sackett Pohlenz

Q1JJ~RREY& HARROW,

LTD.

175 West Jackson Boulevard, Suite 1600

Chicago, Illinois 60604

(312) 540-7000

Attorney Registration No. 6225990

Attorneys for Petitioner Michael Watson

I should be noted that no prayer for or identity of a sanction is provided by the County Board in its Motion,

therefore, it is impossible for Petitioner to respond to that aspect of the Motion. Given no relief is sought on the

sanctions portion of the Motion, Petitioner seeks to have it stricken by the IPCB.

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PROOF OF SERVICE

I, Jennifer J. Sackett Pohlenz, an attorney, certify that I have served the foregoing

I~sponseto the County Board’s Motion to Bar and for Sanctions, on the following parties

and persons at their respective addresses/fax numbers, this 2nd day of May 2003, by or before

the hour of 7:00 p.m. in the manners stated below:

Vi~Facsimile

_____________

Donald Moran

Pedersen & Houpt

161

North Clark Street

Suite 3100

Chicago, IL 6060 1-3242

Fag:

(312)

261-1149

Attorney for Waste Management of illinois, Inc.

Via Facsimile

Ker~nethA. Leshen

One Dearborn

Square

Suite

550

Kankakee, IL 60901

Fax: (815) 933-3397

Representing Petitioner in PCB 03-12

Via U. S.

Msiij

Patricia O’Dell

1242 Arrowhead Drive

Bourbonnais, IL 60914

Interested

Party

Via Facsimile

Keith Runyon

1165 Plum Creek Drive

Bourbonnaise, IL 60914

Fax: (815) 937-9164

Petitioner in PCB

03-135

Via Facsimile

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

Charles Heiston

Richard Porter

Hinshaw & Culbertson

100 Park Avenue

P.O. Box 1389

Rockford, Illinois 61105-1389

Fax: (815) 490-4901

Representing

Kankakee County

Board

Via Facsimile

L. Patrick Power

956

North Fifth Avenue

Kankakee, IL 60901

Fax: (815)

937-0056

Representing Petitioner in PCB 03-125

Via Facsimile

Elizabeth S. Harvey, Esq.

Swanson, Martin & Bell

One IBM Plaza, Suite 2900

330

North Wabash

Chicago, 

IL 60611

Fax: (312)

321-0990

Representing Kankakee County Board

Via Facsimile

Bradley

Halloran

Illinois Pollution Control Board

James R. Thompson Center, Ste. 11-500

100 W. Randolph Street

Chicago, IL 60601

Hearing

Ofticer

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