CLERK’S OFF!
0198-001
JUN
2 S
2003
ILLINOIS POLLUTION CONTROL BOARD
STATE OF ILLINOIS
CITY OF KANKAKEE,
)
POl!Utjofl Control Board
)
PCBO3-125
Petitioner,
)
PCB 03-1 33
)
PCBO3-134
v.
)
PCBO3-135
(consolidated)
COUNTY OF KANKAKEE, COUNTY
)
(Pollution Control Facility Siting Appeals)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
NOTICE OF FILING
To:
(See attached Service List.)
PLEASE TAKE NOTICE that on this 23d day of June 2003, the following were filed
with the Illinois Pollution Control Board, attached and herewith served upon you:
-
County Board’s Motion to Exceed the Page Limit
CountyBoard’s Motion to Strike the Briefs of Petitioners Watson and Karlock
-
County Board’s Response to Watson’s Motion to Strike Public Comments
Numbers 3and4
COUNTY OF KANKAKEE and
COUNTY BOARD OF KANKAKEE
BYi~~
Qne of Its Attorneys
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
CERTIFICATE OF SERVICE
I, the undersigned, state that I served a copy of the described documents on June 23, 2003,
in the above-captioned matter as indicated on attached service list.
xi
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.
M. Podlin
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
(Federal Express)
Richard Porter
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105
Facsimile: 815/490-4901
Kenneth A. Leshen
**
One Dearborn Square
Suite 550
Kankakee, IL 60901
Facsimile: 815/933-3397
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
Facsimile: 815/433-4913
*
Hand Delivery
**
Facsimile
L. Patrick Power **
956 North Fifth Avenue
Kankakee, IL 60901
Facsimile: 815/937-0056
Jennifer
J. Sackett Pohlenz *
Querry & Harrow, Ltd.
175 West Jackson Boulevard
Suite 1600
Chicago, IL 60604
Facsimile.’ 312/540-0578
Keith Runyon
**
1165 Plum Creek Drive
Unit D
Bourbonnais, IL 60914
Facsimile: 815/937-9164
Kenneth A.
Bleyer
(U.S. Mail)
Attorney at Law
923 West Gordon Terrace, #3
Chicago, IL 6061 3-2013
Leland Milk
(U.S. Mail)
6903 S. Route 45-52
Chebanse, IL
60922-5153
Patricia O’Dell
(U.S. Mail)
1242 Arrowhead Drive
Bourbonnais, IL 60914
0198-001
ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
232003
OFF
-
CITY OF KANKAKEE,
)
STATEOFIL
)
PCB 03-125
pollutIon Control Board
Petitioner,
)
PCB 03-1 33
)
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.
)
COUNTY BOARD’S MOTION TO EXCEED THE PAGE LIMIT
Respondent COUNTY BOARD OF KANKAKEE (“County”), by its attorneys
Hinshaw & Culbertson and
Swanson, Martin & Bell, hereby moves the Board for leave
to file a brief in excess of the page limit:
1.
There are
four petitioners in this matter, all of whom have filed briefs.
Those brief total 137
pages, presenting petitioners’ arguments. The extensive
arguments include claims regarding jurisdiction, fundamental fairness, and the manifest
weight of the evidence.
2.
The County Board has done its best to stay within the 50-page limit on
briefs. (35 lII.Adm.Code 101.302(k).) However, it is impossible to adequately address
the myriad of arguments raised by petitioners within the 50 page limit.
3.
The County Board will be prejudiced if it
cannot respond to all arguments
raised by petitioners.
4. Therefore, the County Board seeks leave to file a brief in excess of the 50-
page limit.
WHEREFORE, the County Board seeks leave to file its
brief in excess of 50
pages,
and for such other relief as the Board deems appropriate.
RespectfullyCOUNTY
OFsubmitted,KANKAKEE and
COUNTY BOARD OF KANKAKEE
By:
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 3300
330 North Wabash Avenue
Chicago, IL 60611
312/321-9100
2
0198-001
RECEiVED
ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
JUN 232003
OFFICE
CITY
OF KANKAKEE,
)
STATE OF ILLINOIS
)
PCB 03-1 25
Pollution
Control
Board
Petitioner,
)
PCB 03-1 33
)
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.
)
COUNTY BOARD’S MOTION TO STRIKE THE BRIEFS OF
PETITIONERS WATSON AND KARLOCK
Respondent COUNTY BOARD OF KANKAKEE (“County”), by its attorneys
Hinshaw & Culbertson and Swanson, Martin & Bell, hereby moves the Board to strike
the briefs filed by petitioners Watson and Karlock:
1.
Pursuant to the briefing schedule agreed to by the parties, and adopted by
the hearing officer, petitioners’ opening
briefs were to be filed on
or before June 2,
2003. The hearing officer specifically stated that the mailbox rule did not apply to those
deadlines, such that the parties must
receive the briefs on June 2, 2003. IPCB Hearing
Transcript, May 6, 2003, at 130-131.
2.
Petitioner Karlock’s brief
was not received by either of the County Board’s
attorneys on June 2, 2003. Instead, Karlock’s brief
was mailed, via regular mail, to all
parties. The certificate of service for Karlock’s brief indicates that, while Karlock’s brief
may have been
filed, via hand delivery, with the Board on June 2, 2003,
the copies
served on the parties were sent via regular mail. (See Exhibit A.) The County Board’s
attorneys received that brief on June 4, 2003.
3.
Karlock’s late delivery of the brief to the County Board’s attorneys violated
the hearing officer’s ordered briefing schedule, and prejudiced the County Board. Thus,
Karlock’s brief should be stricken as untimely.
4.
While petitioner Watson’s brief
was timely served on the County Board’s
attorneys, that brief violates
the 50-page limit on briefs.
(35 IlI.Adm.Code 101 .302(k).)
While the
brief contains exactly
50 pages,
it is clear that Watson resorted to artificial
means to keep that brief at 50 pages. Those means include presenting large portions of
argument through the use of single-spaced “bullet points” (Watson Br. at 39-49), the use
of charts utilizing a small font (Watson Br. at 48-49), and “incorporating” arguments from
the public comment filed by Watson in the county proceeding, without making those
arguments in the brief before the Board (Watson Br. at 45). Although Watson could
have filed a motion
to file a brief in excess of 50 pages (see 35 Ill.Adm.Code
101.302(k)), he did not do so.
5.
Watson’s brief clearly contains more than 50 pages of argument, and thus
violates Section 101.302(k) of the Board’s procedural rules. The County Board moves
the Board to strike the portions of the brief beginning at page 39, which is the place
where Watson begins to use artificial means to squeeze his claims into 50 pages.
WHEREFORE, the County Board moves the Board
to strike Karlock’s brief as
untimely and in violation of
the hearing officer’s order, to strike pages 39
through 50 of
Watson’s brief as being in violation of Section 101.302(k) of the Board’s procedural
rules, and for such other relief as the Board deems appropriate.
Respectfully submitted,
COUNTY OF KANKAKEE
and
COUNTY BOARD OF KANKAKEE
~
2
Charles F. Helsten
Richard Porter
Hinshaw & Culbertson
100 ParkAvenue
P.O. Box 1389
Rockford, IL 61105-1389
815/490-4900
Elizabeth S. Harvey
Swanson, Martin & Bell
One IBM Plaza, Suite 3300
330 North Wabash Avenue
Chicago, IL 60611
312/321-9100
3
~,
C
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CITY OF
KANKAKEE,
)
Petitioner,
)
vs.
)
PCB03-125
COUNTY
OF
KANKAKEE,
)
(Third-Party Pollution Control
Facility
COUNTY BOARD OF KANKAKEE,
)
Siting Appeal)
and WASTE MANAGEMENT OF
)
ILLINOIS,
INC.
)
Respondents.
)
MERLIN KARLOCK,
)
Petitioner,
)
vs.
)
PCB03-133
COUNTY OF
KANKAKEE,
COUNTY
)
(Third-Party Pollution Control Facility
BOARD OF
KANKAXEE,
and WASTE
)
Siting Appeal)
MANAGEMENT OF ILLINOIS, INC.
)
Respondents.
)
MICHAEL WATSON,
)
Petitioner,
)
vs.
)
PCB03-134
COUNTY OF
KANKAKEE,
COUNTY
)
(Third-Party Pollution Control
Facility
BOARD OF
KANKAKEE,
and WASTE
)
Siting Appeal)
MANAGEMENT OF ILLINOIS,
INC.
)
Respondents.
)
KEITH
RUNYON,
)
Petitioner,
)
vs.
)
PCB03-135
COUNTY OF KANKAKEE, COUNTY
)
(Third-Party Pollution Control Facility
BOARD OF
KANKAKEE,
and WASTE
)
Siting Appeal)
MANAGEMENT OF ILLINOIS, INC.
)
Respondents.
)
NOTICE OF
FILING
TO:
See Attached Service List
PLEASE
TAKE
NOTICE that on
June 2, 2003 there has caused to be filed
with the
Clerk of the
Illinois Pollution Control Board
located at the James R. Thompson Center, Suite 11-
500, 100 W. Randolph St., Chicago, Illinois, via hand-delivery an original and 9 copies ofthe
following documents, a copy ofwhich is attached hereto:
BriefAnd Argument Of Petitioner,
GE
G M1JEL4~ER,Attorney at Law
EXHIBIT
PROOF OF SERVICE
I, Pat
Wheeler,
a non-attorney, on oath state that I served a copy of the above listed
documents by sending the
same
to each ofthe
parties listed
on the attached
Service List via U.S.
Mail from
Ottawa, Illinois, at
5:00 P.M. on June 2, 2003, with proper postage
pre-paid.
Pat Wheeler
SUBSCRIBED AND SWORN
TO
before
me this 2nd day ofJune, 2003.
o
LI
~
GEORGE MUELLER, P. C.
Attorney at Law
501 State Street
Ottawa IL 61350
P/zone: (815) 433-4705
SERVICE LIST
Bradley P. Holloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph St.
Chicago,IL
60601
L. Patrick Power
956
North Fifth Avenue
Kankakee, IL 60901
Donald 1. Moran
Pedersen & Houpt
161 N. Clark St., Suite 3100
Chicago, IL 6060 1-3244
Kenneth A.
Leshen
One Dearborn Square
~WLe
.)JU
Kankakee, IL 60901
Richard S. Porter
Charles F. Heisten
Hinshaw & Culbertson
100 Park Ave., P.O. Box 1389
Rockford, IL 61105-1389
Keith Runyon
1165 Plum Creek Drive
Bourbonnais,
IL 60914
Elizabeth S. Harvey
Swanson, Martin & Bell
One IBM Plaza, Suite 2900
Chicago,IL 60611
Jennifer J. Saekett Pohlenz
175
W. Jackson Blvd.
Suite 1600
Chicago, IL 60604
0198-001
CLERIcS
0~Eb
ILLINOIS POLLUTION CONTROL BOARD
JUN 2 3
2003
CITY OF KANKAKEE,
)
ST/i~TE
OP
ILLINOIS
Petitioner,
)
)
PCB
PCB
03-125
03-1 33
~
Controj~0~
)
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 BOARD’S RESPONSE TO WATSON’S MOTION TO STRIKE PUBLIC
COMMENTS NUMBERS 3 AND 4
Respondent COUNTY BOARD OF KANKAKEE (“County”), by its attorneys
Hinshaw & Culbertson and Swanson, Martin & Bell, hereby responds in opposition to
petitioner Watson’s motion to strike Public Comments 3 and 4:
1. Watson has filed a motion to strike Public Comments 3 (the affidavit of Joan
Lane) and 4 (the affidavit of Mike Van Mill). Those public comments were
submitted by the County on May 23, 2003, within the public comment period
established by the hearing officer. (IPCB
Hearing Transcript, May 6, 2003, at
130-131.)
2. Watson’s motion to strike Public Comments 3 and 4 are based upon his claim
that these affidavits present new evidence not present in the record on appeal.
To the contrary, however, the two affidavits simply respond to information and
argument made in the proceeding before the County Board. On November 18,
2002, on the first day of the local hearings, petitioner Karlock filed a motion to
dismiss the proceeding on fundamental fairness grounds. Among other issues,
that motion raised a number of claims about the alleged relationship between
Waste
Management and the law firm of Hinshaw and Culbertson, the County’s
special counsel. C695-795; C1245 at 46-71. The motion to dismiss, and the
subsequent argument, discussed issues relating to Hinshaw and Culbertson’s
invoices, and whether or not references
to the “Kankakee County Landfill”
indicated that Waste Management was the “true” client.
3. The affidavits submitted as Public Comments 3 and 4 respond to and discuss
issues related to the invoices, and thus are simply “arguments or comments
based on evidence contained in
the record.”
American Bottom Consei’vancy v.
Village of Fairmont City,
PCB 01-1 59 (Oct. 18, 2001; 2001 III. ENV LEXIS 489,
*15)
citing
35 lll.Adm.Code 101.628(c)(2). In fact, petitioner Karlock raises those
same arguments from his motion to dismiss at the local level, in his brief before
the Board. He alleges that
issues relating to Hinshaw and Culbertson’s billing
demonstrate “collusion
and pre-determination” of the issues. (Karlock’s Br. at 13-
16.) Thus, Watson is simply wrong when he contends that the subject matter of
the public comments is not based on evidence in the record. The public
comments do indeed relate to evidence in the record, and are proper.
4. If the Board somehow decides that the issue of Hinshaw and Culbertson’s billing
is not based on evidence
in
the record, such that the public comments are not
proper, the County moves that the Board strike pages 13-16 of Karlock’s brief, in
which he discusses that issue.
5. Finally, Watson asserts that the public comments should be stricken because the
two affiants (Ms. Lane and Mr. Van Mill) were not subject to cross-examination.
However, that claim goes to the weight to be given to the affidavits, not to
whether the comments are properly filed. The Board is more than capable of
assessing the relative weight to be given to sworn affidavits as opposed to
testimony which was subject to cross-examination.
The lack of cross-
examination is not a basis to strike the public comments.
WHEREFORE, the County asks that the Board deny Watson’s motion to strike
2
public comments, and for such other relief as the Board deems appropriate.. In the
alternative, if the Board decides that the issue of Hinshaw and Culbertson’s billing is not
based upon evidence
in the record, the County asks that the Board strike pages 13-16
RespectfullyCOUNTY
OFsubmitted,KANKAKEE
and
COUNTY BOARD OF
KANKAKEE
By:
Elizabeth S. Harvey
Swanson, Martin & Bell
One IBM Plaza, Suite 3300
330 North Wabash Avenue
Chicago, IL 60611
312/321-9100
of Karlock’s brief.
Charles F. Helsten
Richard Porter
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815/490-4900
3