65448-POH

REC~~VED

BEFORE

THE

ILLINOIS POLLUTION CONTROL BOAR~~ERK’SOFF

JUL

3

?flfl~

MICHAEL WATSON,

STATE OF ILLINOIS

Petitioner,

No. PCB 03-134

POIIUtlOfl Control

Board

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)

ILLINOIS, INC.,

Respondent.

NOTICE OF

FILING

TO:

See Attached Service List

PLEASE TAKE NOTICE that on July 3, 2003, we filed with the Illinois Pollution

Control Board, the attached Petitioner, Michael Watson’s, Reply Brief in Support of his

Petition Contesting the January 31, 2003 Decision of the

Kankakee County Board,

Conditionally Approving Wi’s/III’s Application to Expand the

Kankakee County Landfill, a

copy of which is attached hereto and served upon you.

QUERREY & HARROW, LTD.

Jennc~.ack~j~~

Jennifer J. Sackett Pohlenz

QUERREY

&

HARROW,

LTD.

175

West Jackson Boulevard

Suite 1600

Chicago, Illinois 60604

(312) 540-7000

Attorney Registration No. 6225990

Attorneys for Petitioner Michael Watson

Document #: 838437

Printed on Recycled Paper

---

PROOF OF SERVICE

Alesia Mansfield, a non-attorney, on oath states that she served the foregoing Notice of Filing, along

with

copies

of document(s) set forth

in

this Notice, on the following parties and persons at their respective

addresses and/or fax numbers, this 3’~day of July, 2003, by or before the hour of 4:30 p.m. in the manners stated

below:

Via Facsimile

Donald Moran

Pedersen & Houpt

161 North Clark Street

Suite 3100

Chicago, IL 60601-3242

Fax:

(312) 261-1149

Attorney for Waste Management of Illinois, Inc.

Via Facsimile

Kenneth A. Leshen

One Dearborn Square

Suite

550

Kankakee, IL 60901

Fax:

(815) 933-3397

Representing Petitioner in PCB 03-125

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 60922-5 153

Interested Party

Via Facsimile

Charles Helston

Richard Porter

Hinshaw & Culbertson

100 Park Avenue

P.O. Box 1389

Rockford, Illinois 61105-1389

Fax: (815) 490-4901

Representing Kankakee County Board

Via U. S. Mail

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

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 Hand Delivery

Bradley P. Halloran

Illinois Pollution Control Board

James R. Thompson Center, Ste. 11-500

100 W. Randolph Street

Chicago, IL 60601

Hearing Officer

Alesia Mansfield

Printed on Recycled Paper

---

I

RECEIVED~

CLERK’S

fl~”~

BEFORE THE ILLINOIS POLLUTION CONTROL BOAJW.

32003

STATE OF ILLINOIS

Pollution Control Board

MICHAEL WATSON,

Petitioner,

~To.PCB 03-134

vs.

(Pollution Control Facility Siting Appeal)

COUNTY BOARD OF KANKAKEE COUNTY,

ILLINOIS, and WASTE MANAGEMENT OF

Consolidated With PCB 03-125, 03-133.

ILLINOIS, INC.,

03-135)

Respondent.

PETITIONER MICHAEL WATSON’S REPLY BRIEF IN SUPPORT OF

HIS PETITION CONTESTING THE JANUARY 31, 2003 DECISION OF THE

KANKAKEE

COUNTY BOARD CONDITIONALLY APPROVING,

WMII’S

APPLICATION TO EXPAND THE

KANKAKEE COUNTY LANDFILL

Jennifer J. Sackett Pohlenz

QUERREY

& HARROW, LTD.

175 W. Jackson, Suite 1600

Chicago, Illinois 60604

(312) 540-7000

Attorneys for Michael Watson

Illinois Attorney No. 6225990

---

I

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MICHAEL WATSON,

Petitioner,

No. PCB 03-134

vs.

(Pollution Control Facility Siting

COUNTY BOARD OF

KANKAKEE

COUNTY,

Appeal)

ILLINOIS, INC.,

Respondent.

133, 03-135)

PETITIONER MICHAEL WATSON’S REPLY

BRIEF

IN SUPPORT OF

HIS PETITION CONTESTING THE JANUARY 31, 2003 DECISION OF THE

KANKAKEE

COUNTY BOARD CONDITIONALLY APPROVING,

WMII’S APPLICATION TO EXPAND THE

KANKAKEE

COUNTY LANDFILL

This reply brief, submitted by Petitioner Michael Watson by and through his attorneys

at Querrey & Harrow, Ltd., addresses the response briefs submitted by the County Board and

County of Kankakee, jointly (and collectively referenced herein as “Kankakee County”), and

Waste Management of Illinois, Inc. (WMII) in this matter. In particular, this reply addresses

five subjects (1) WMII’s attempt to change the standard of review on a jurisdictional issue

from

de novo

to manifest weight must fail, as

de novo

is the correct standard; (2) that

Kankakee County’s decision is null and void, as jurisdiction did not vest in Kankakee County,

since WMII failed to serve notice on Brenda and Robert Keller pursuant to Section 39.2(b); (3)

that the Kankakee County proceedings were fundamentally unfair, for the individual and

collective reasons set forth in Petitioner Watson’s opening brief, (4), that the decision of

Kankakee County was against the manifest weight of the evidence with respect to Criteria (i),

(ii), (iii), (v), (vi), (vii), and (viii) ofSection 39.2 ofthe Act; and

(5)

that, if the Illinois Pollution

Control Board (IPCB) finds that Kankakee County’s decision stands, then this matter should be

scheduled for further discovery and hearing before the IPCB, due to certain rulings during the

---

‘-1

course of this proceeding that prejudiced the Petitioners and hindered their ability to develop a

record for this appeal.’

1.

The Standard of Review of a Jurisdictional Issue, Such as Notice, Is

De Novo

WMII asserts that the standard of review on appeal to the IPCB of a jurisdictional issue

should be the manifest weight of the evidence and, in support, cites Land and Lakes v.

Pollution Control Board, 743 N.E.2d 188

(3rd

Dist. 2000). WMII is incorrect both concerning

its proposition concerning the standard of review and its as~ertionthat Land and Lakes is

authority for such a proposition. The proper standard of review is

de novo.

Geneva Cmty.

Unit Sch. Dist. No. 304 v. Prop. Tax Appeal Bd., 695 N.E.2d

561, 564

(2~Dist.

1998)(agency’s determination of the scope of its jurisdiction is a question of law that is

reviewed

de novo).

Land and Lakes does not support WMII’s position and, in fact, its cited to in Petitioner

Watson’s opening brief (p. 3) in support of the

de novo

standard of review, which is actually

what the page citation provided by WMII references. Thus, WMII cites Land and Lakes

incorrectly, and fails to provide any legal or other basis for changing the standard of review on

jurisdictional issues to manifest weight. Therefore, the IPCB should find that and should

review, the jurisdictional issue(s) in this case

de novo.

Petitioner Watson notes that the Respondents devote a large portion of their brief making assertions based on

arguments raised by the parties, not the actual IPCB holdings, in the City of Kankakee case. Neither Watson nor

his counsel were a party or representing a party, respectively, in that case, and these “assertions” by Respondents

2

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2.

Kankakee County’s Decision Should Be Found Null and Void, as WMII Failed

to Perfect Pre-Fifing Notice, Pursuant to Section 39.2(b), and, thus, the County

Board Did Not Have Jurisdiction

WMII and Kankakee County argue that (a) People

ex rel.

$39~700U.S. Currency, 776

N.E.2d 1084 (2002), is ‘controlling and overrules the long standing case law requiring notice to

actually be received (except in circumstances of recalcitrance), by property owners within the

distance requirements of Section 39.2(b) of the Illinois Environmental Protection Act (Act); (b)

that the IPCB should find constructive notice, with or without the necessary finding of

recalcitrance; and, WMH alone argues, (c) that the IPCB should expand the flexibility of

39.2(b) of the Act beyond that even provided for in forcible entry and detainer law, and find

that contested testimony, as in this case, concerning whether’ notice is posted is sufficient to

satisfy this important jurisdictional requirement.2II Kankakee County’s and WM1I

‘

s arguments

must fail, as they: (a) misapply People

ex rel.

$39,700 U.S. Currency, which, although it

distinguishes Avdich v. Kleinert, (1977), 69 Ill.2d 1, 370 N.E.2d

504,

does not overrule either

it or Ogle County Board v. Pollution Control Board, 272 lll.App.3d 184, 649 N.E.2d

545

(2nd

Dist.

1995),

and thus, Ogle County Board remains controlling law on this issue; (b) neither the

IPCB nor any Court has found that service under Section 39.2(b) can be achieved through

constructive notice, without proof of recalcitrance and there is no proof that either Brenda or

Robert Keller were recalcitrant; and (c) WMII fails to provide any legal or other basis for its

theory that posting is sufficient, alone, or with other “attempts” on the eve of the statutory

are not precedential, are not holdings of the

IPCB in the City

of Kankakee case, and should not be considered in

this matter.

3

---

deadline for service when there is no proof of recalcitrance. Therefore, the IPCB should find

that neither Robert nor Brenda Keller were served pre-fihing notice pursuant to Section 39.2(b)

of the Act, Kankakee County had no jurisdiction, and, thus, the IPCB should vacate the

decision of Kankakee County.

(a) Ogle County Board Is Precedential and Requires that the IPCB Vacate

Kankakee County’s Siting Decision, for Lack of Jurisdiction

Kankakee County and WMII contend that People

ex rel.

$30,700 U.S. Currency

establishes that service was completed on the Kellers as early as July

25,

2002, the date on

which notice was purportedly sent to both Robert Keller and Brenda Keller via regular mail.

They are wrong. People

ex rel.

$30,7000 U.S. Currency is inapposite to the instant matter.

In that case, the Illinois Supreme Court held that under the Drug Asset Forfeiture Procedure

Act (“the Act”), 725 ILCS 150/1 et seq. (2000), service of notice by mailing is perfected when

the notice is deposited in the mail, as opposed to when it is received by an addressee. Pivotal

to the Court’s ruling, however, was the fact that the Drug Asset Forfeiture Procedure Act

contained an explicit provision stating that notice served under it was effective upon mailing.

Specifically, the Act provided, in relevant part: “Notice served under this Act is effective upon

personal service, the last date of publication, or the mailing of written notice, whichever is

earlier.” ~

725 ILCS

150/4(B).

Also crucial to the Court’s holding was the remedial

purpose underlying the Drug Asset Forfeiture Procedure Act and the fact that individuals who

are typically served under its provisions

(i.e.,

mere couriers of drug trafficking proceeds)

generally have no interest in receiving certified mail notifying them of forfeiture proceedings.

2111

~ should also be noted that the Respondents fail to address the application

of

the analogous Illinois Code of

Civil

Procedure requirements for substitute service, rather than constructive notice, as both a summons and pre-

4

---

This case concerns the Illinois Environmental Protection Act, not the Drug Asset

Forfeiture Procedure Act. As such, the ruling in People

e~rel.

$30,7000 U.S. Currency has

no place here. Indeed, Kankakee County and WMH have attempted to analogize when no such

analogy is appropriate given the

expressly limited holding

of People

ex rel.

$30,7000 U.S.

Currency. Notwithstanding Kankakee County and WMII’s suggestions to the contrary, Ogle

County Board

—

an d not People

ex rel.

$303000 U.S. Currency

—

controls in this matter, and

clearly establishes that notice of the Application was never properly served upon the Kellers.

(b) Constructive Receipt of Section 39.2(b) Pre-Filing Notice Is Not Proper,

Except In Circumstances of Recalcitrance, and Neither of the Keller’s were

Recalcitrant

Despite the Respondents arguments that the IPCB has held that constructive notice

absent recalcitrance,

i.e.,

refusal to be served, is allowed to perfect Section 39.2(b) notice, that

is not the case. In fact, the IPCB was explicit in the one of the three cases referenced by

WMII which contains reference to constructive receipt as to its

limited

use; and,

notwithstanding, all of three cases are inapplicable and distinguishable from the instant

circumstances. In ESG Watts, Inc. v. Sangamon County Board, PCB 98-2 (June 17, 1999),

even though the IPCB did

not

find constructive receipt in this case, the IPCB was very careful

in its notation that “a property owner

. . .

may be deemed to be in constructive receipt of a

nOtice if the property owner refuses service before the deadline.” (emphasis added).

Likewise, the City of Columbia,

et al.

v. County of St. Clair,

et al.,

PCB

85-177,

85-220,

85-

223 (consolidated)(April 3, 1986), does not support WMII’s use of it, as in that case, the IPCB

filing siting notice require receipt of their respective documentation.

5

---

found no jurisdiction, as the applicant was unreasonable in its attempt at service by sending out

notice the fifteenth day prior to filing.

Similarly, DiMaggio, PCB 89-138 (Jan. 11, 1990), is distinguishable, as neither of the

Keller’s moved from their address, and thus, the holding of this case, decided before Ogle

County Board is also inapplicable to the instant facts. Finally, Waste Management of Illinois

v. Bensenville, PCB 89-28 (Aug. 10, 1989), is not applicable to the precedent for which WMII

suggests, as it was decided by the IPCB prior to the Appellate Court’s decision in Ogle County

Board v. Pollution Control Board, 272 Ill.App.3d 184, 649 N.E.2d

545

(2” Dist. 1995)32.

Additionally, the IPCB ‘s seeming acceptance of the “served when mailed” argument presented

in Bensenville, is clearly rejected in Ogle County Board, and this case is factually

distinguishable from Bensenville, as in Bensenville, the property owner signed and returned the

registered mail notice, albeit three days following the 14-day pre-fihing notice deadline,

wherein, in this case, there is uncontested testimony that neither Brenda nor Robert received

any

notice.

Thus, the only circumstance wherein the IPCB has articulated a constructive receipt

exception (and the only case of the three cited by Respondents after the Ogle County Board

r

Appellate decision), is ESG Watts, Inc. Since there is absolutely no proof of recalcitrance or

refusal of service on either the part of Brenda or Robert Keller, or anyone who would be

allowed to accept abode service, this exception is not applicable.

3121 Likewise, City of Columbia was decided prior to the Appellate Court’s holding in Qg~County, thus any dicta

referenced by

WMII

(and likewise referenced by it from City of Columbia in the Bensenville case) cannot be

consideredprededential.

6

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In terms of arguing refusal of service and recalcitrance, the Respondents essentially

make two arguments: the Kellers were friends of Watson and thus, the IPCB should find that

they are not credible, and the mere number of times service was attempted starting on July

25,

2002 (when the deadline for service was August 2, 2002), along with an alleged and

mysterious woman at the door, is enough to show refusal of service.

Neither of these

arguments can prevail.

First, the fact that Brenda and Robert Keller admitted being friends of Watson is no

more discrediting to them than the fact that WMII hired and paid Ryan Jones to perfect

service. In fact,. Mr. Jones, who testified he has served at least one person a work-day

between the time of his last attempted service on the Kellers and the date of his testimony

(totaling at least 88 other persons served), and who took no notes on the mysterious woman

who appeared at the Keller’s house while both were at work4131, is not believable from not only

a financial and potential liability motivation standpoint, but also because of his lack of

documentation concerning his woman at the Keller house encounter, and his lack of clarity

concerning other service attempts he made, in addition to the other reasons raised in Watson’s

opening brief. 54

4(3)

Robert Keller testified concerning his work schedule; Brenda Keller, however, could not be absolutely certain

at the time of her testimony whether she was at work, thus, her employer filled out and signed an affidavit

proving she was at work at the time in question. (Watson Written Comment, Exhibit N). Additionally, Robert

Keller testified concerning the work schedule of the only other person who resides with them (a tall male, who

comes nowhere near the description Jones provides of the mysterious woman), which likewise puts him at work

during the days when this Jones to woman encounter occurred.

5)4

WMII alleges that Watson’s

counsel’s reference to posting on a door, generally, not a particular door, within a

document filed with the County, is somehow suspicious and WMII attempts to assert that as evidence to impeach

the Keller’s credibility. This is nonsense. All the main cases (forcible entry and detainer) discussing posting talk

about it being on a door. What else would it be? This is not suspicious, this was common sense.

WMII attempt

to insert counsel’s argument, without any

evidence

concerning how information about a

“door” then, on WMII’s

theory, got from the Kellers (who testified that they had not spoken with Watson’s counsel until very recent to

7

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Second, it does not matter if an applicant starts eight, nine or ten days in advance of its

service deadline, if there is no refusal of service, there is no law to support constructive receipt

of service. There is absolutely no evidence cited or presented or otherwise in the record that

either Keller, at any time, refused service. There is also no contention (as obvious from

Brenda’s work’s affidavit and her description of herself and inability to identify Ryan) that

Brenda Keller was Jones’ mysterious woman. Supportive of the Keller’s lack of refusal of

service is the fact that on WMII’s first attempt to file an application in March 2002, Robert

Keller accepted personal service and gave the green card he received in the mail (at the

Keller’s residence) to Brenda, who signed for it and picked it up from the post office.

Additionally, there was no certified mail attempt on Brenda Keller; and, the one certified mail

attempt on Robert Keller (who picked up the mail from his house, had previously picked up the

notice that he had certified mail on WMII’s first attempt in March 2002 for pre-fihing notice),

was “unclaimed” and the uncontradicted testimony is that Robert Keller never received another

notice for a certified mail following the March 2002 siting application attempt by WMII.

Finally, although there were five personal service attempts on the Keller house, all of those

occurred on weekdays and all except for two occurred during typical working hours. This

combined with Mr. Jones’ admission that the best time for serving people at home is after 5:00

p.m. (12/05/02 6:00 pm Tr.26), Mr. Jones’ and WMII’s failure to even attempt to telephone

the Kellers who have an answering machine and were cooperative with service during WMII’s

March 2002 application attempt, and the fact that service attempts were not

started

until July

25th (when there is an August

2nd

notice deadline), shows, if anything WMII was unreasonable

their testimony), to counsel for Watson. WMII’s assertion is not supported by evidence, is nonsense, and should

8

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in its attempts at service and provides no support for the Respondents’ arguments and baseless

allegations of recalcitrance. Therefore, the IPCB should find that the evidence shows that the

Kellérs were not

served

with pre-filing notice for the WMII application which is the subject of

this case (filed August 16, 2002), and vacate Kankakee County’s decision for lack of

jurisdiction.

(c) Posting Notice Alone and Without Circumstances of Recalcitrance, Does Not

Meet the Requirements of Section 39.2(b)

WMII contends that posting meets the service requirements of Section 39.2(b), while

admitting that there is no case law on point. As legal support for its unique position, however,

WMII cites Greene v. Lindsey, 456 U.S. 444 (1982), in which the U.S. Supreme Court

actually found (as footnoted by WMII), that posting was not sufficient, under the circumstances

of the case. Additionally, WMII fails to address or distinguish Edward Hines Lumber Co. v.

Erickson, 29 Ill. App. 2d

35,

172N.E.2d 429 (2d Dist. 1961)(service by posting only proper

after doing “all that was possible under the circumstances,” in this case repeated calls and 4 or~

5 visits to defendants home, finally talking to wife of defendant who refused service after she

called husband on telephone), which supports lack of notice and failure to perfect jurisdiction

in this case, even if posting is allowed as a form of service under Section 39.2. Thus, the

IPCB should find that service of pre-fihing notice on Brenda and Robert Keller was not

perfected and, thus, the IPCB should vacate Kankakee County’s decision for lack of

jurisdiction.

not be given any weight by the IPCB.

9

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3.

Individual and Collective Reasons Set Forth in Petitioner Watson’s Opening

Brief

Petitioner Watson raised four areas of fundamental unfairness in his opening brief:

(a)

unavailability of the record;

(b)

perjury of Patricia Beaver-McGarr;

(c)

predetermination; and

(d)

ex parte

contacts. The Respondents’ arguments against each ofthese are addressed separately,

below.

(a) WMII’s

CompleteApplication Was Not Provided to the Participants or Properly

made Available for Public Review in Violation of 415 ILCS 5/39.2(c) and

Rendered the Proceedings Fundamentally Unfair

WMII argues, incorrectly, that Petitioners need to show actual prejudice and have not, as

a result of the unavailable portions of the siting application (multi-box operating record and

exhibits to the property value protection plan portion ofthe host agreement). Kankakee County

argues, despite testimony from its own Clerk supporting a contrary conclusion, and without

addressing Mr. Clark’s or Ms. Fox’s testimony, that the record was available, and even if it was

not available until the first day ofhearing, that is an acceptable and non-prejudicial practice. All

of these arguments must fail. The testimony is uncontradicted

(see,

summary and citations on

pp. 17-18 of Watson’s opening brief), and the case law is clear. The unavailability of the

application creates a presumption of prejudice, and neither WMII nor Kankakee County has

overcome that presumption.

See,

American Bottom Conservancy v. Village of Fairmont City,

PCB 00-200 (October 19, 2000).

Further, Kankakee County’s attempt to distinguish the American Bottom Conservancy

precedent by arguing that, in that case, none of the application was available until two weeks

prior to the public hearing, must fail. Kankakee County asks for the IPCB to carve out an

exception that will create a slippery slope: this time multiple boxes containing the operating

10

---

record were not available, what if next time all of Criterion 2 is not available? The cases cited by

the County for support of a proposition that an applicant only has to provide its full application

prior to the close of the hearing and can leave out substantive material at the time of filing, are

distinguishable, most concern availability oftranscript and not the application

(e.g.

Landfill 33 v.

Effingh.am County Board, PCB 03-43 (February 20, 2003)), and the proposition asserted by

Kankakee County is directly contrary to the stated purpose ofthe minimum 90-day wait between

filing of the application and the first public hearing, to allow review of the application in

preparation ofhearing.

Finally, prejudice should be presumed with the unavailability ofthe record and, even if it

is not, it is shown by the volume of the material which was not available at the Clerk’s office

(multiple boxes ofthe operating record, even with a portion of it on microfiche), and the fact that

it wasn’t until the first day of hearing that this material was made available to the public. Even

though the operating record is otherwise available through a Freedom of Information Request to

the Illinois Environmental Protection Agency, the volume of the record is so large, that any

public participant wanting to obtain the response would have to spend a great deal of money to

obtain copies, which is contrary to the intent of having these documents available for review at

the Clerk’s office. Lastly, the alleged ~‘sign”in the Clerk’s office regarding documents being

available at libraries doesn’t defer the duty of the Clerk and logic dictates that a person who asks

and is denied the operating record from the keeper of this record, the County Clerk, is not going

to think a local library and “unofficial” copy, is going to somehow have documents not

maintained by the Clerk’s Office.

11

---

Thus, the IPCB should find the proceedings were fundamentally unfair due to the

unavailability of the operating record as well as the unavailability of the exhibits to the property

value guaranty

(b) The

plan.

Decision

6

of Kankakee County Is Fundamentally Unfair or, Alternatively,

Against the Man

jfest

Weight of the Evidence, as it Relied on the Perjured

Testimony of Patricia Beaver-McGarr; Further, the Proceedings were

Fundamentally Unfair, as WMII Failed to Produce Beaver-McGarr’s Diploma

and Refused to Submit her for the Completion ofCross-Examination

Respondents argue that Patricia Beaver-McGarr did not commit perjury and that even if

she did, it was not fundamentally unfair, because, essentially, her testimony relies on her

experience rather than her representations of her education.

As respects the procedural

component, the Respondents argument interestingly amounts to no more than an assertion that an

attorney’s argument (without the supporting evidence) is sufficient to bring the credibility of Ms.

Beaver-McGarr into consideration, and that the promise of the diploma or putting Beaver-

McGarr back on the stand was properly revoked, despite Petitioner’s reliance on same. The

Respondents are simply wrong, on all arguments: about their asserted lack of “knowledge” by

Ms. Beaver-McGarr that she was lying, concerning the material nature ofher lie, and concerning

the procedural ability of Watson to Beaver-McGarr’s credibility “at issue” in the proceeding.

Further, Respondents fail to show any law that contradicts the two legal premises asserted in

Watson’s brief: that the IPCB can and should review Ms. Beaver-McGarr’s credibility as it is

6

Throughout Respondents’ briefs they allege Petitioners’ misstated facts and missaplied the law. There are not

enough pages to address each of these allegations, individually, however, Petitioner Watson denies those

addressed against him and states that the record speaks for itself. For example, Kankakee County asserts that

Watson’s statement that the exhibits to the property value protection plan were not available “is simply erroneous”

and blame it on Petitioners not re-acquiring the application. However, the local Hearing Officer also was without

the exhibits, (11/21/02 9:00am Tr. 92-96); Watson specifically asked the Clerk’s office what new material was filed

after the August 16, 2002, filing, and no mention was made of the exhibits to the property value protection plan,

among other things. (Watson Written Comment, Exhibit 0).

12

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against the manifest weight ofthe evidence that her testimony could be found credible7 and that

the use of perjured testimony is fundamentally unfair and it cannot be relied on by

a trier

offact.

Eychaner v. Gross,

et a!.,

202 Ill.2d 208, 779 N.E.2d 1115, 1130 (S.Ct. 2002) and People ofthe

State of Illinois v. Moore, 199 Ill.App.3d 747, 557 N.E.2d 537 (1st Dist. 1990), respectively.

First, the testimony of Ms. Beaver-McGarr and Ms. Powers proves that Ms. Beaver-

McGarr knowingly made false statements concerning her credentials, namely her alleged degree,

under oath. The most striking evidence ofthis, which is not contradicted in either Respondents’

briefs, is Ms. Beaver-McGarr’s false statements that not only did she have a degree from Daley

College, but that her degree was

in her attic

and that she could and world get a copy Qf her

diploma and present it at the hearings. (11/19/02 6:50pm Tr.

5-9,

36-37; 11/20/02 9:00 am Tr.

13-14). When considered with Ms. Power’s testimony that approximately in May of 2002 (one

year prior to Ms. Power’s testimony at the IPCB hearing), prior

to

Ms. Beaver-McGarr’s

testimony at the Kankakee County public hearings, Ms. Powers informed Ms. Beaver-McGarr

that Ms. Beaver-McGarr

had not graduated

and even explained to her that she did not have

enough credits to graduate and

was not entitledto a degree.

(IPCB Hearing 5/6 Tr. 6 1-65). This

evidence shows that Ms. Beaver-McGarr knew prior to, and thus knew at the time of her

testimony in November 2002 before Kankakee County, that she not only had no degree, but that

she was not qualified to obtain one.

Second, to

propose

that an expert’s credentials and its testimony or perjury concerning

those credentials is not material, is nothing less than ridiculous.

Ms. Beaver-McGarr’s

credentials, including her non-existing degree, were supplied by WMII and her as the foundation

for her qualification as an expert. There was no testimony that a degree is irrelevant to being an

~‘

No express fmding was included in Kankakee County’s decision concerning credibility of Ms. Beaver-McGarr,

13

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expert appraiser for purposes of Criterion 3, further, if someone lies about their degree,

something at such a basic credential level, how can

any

oftheir testimony, particularly technical

testimony, be considered credible? If her non-existent degree had no material role in her

qualifications, why was it even presented as part of her qualifications, particularly when she

knew she did not actually have a degree at the time she testified, under oath, to having one? To

find that Ms. Beaver-McGarr lied about her degree, but the lie was not material to her testimony

is a finding that would not only go against public policy, but also common sense.

Third, Respondents arguments on the procedural aspect of this issue, specifically,

Watson’s denial of a right to finish his cross-examination of Beaver-McGarr when the alleged

diploma was not produced as promised (by WMII counsel and under oath by Ms. Beaver-

McGarr), essentially seeks the IPCB’s finding that an applicant’s obstruction of disclosure at a

public hearing is acceptable. Respondents argue that Watson had no right to “re-cross,” when

actually, he did and it was a right to complete his cross.

Watson relied on WMII’s

representations that it would produce the diploma or Beaver-McGarr, when it discontinued its

cross of Beaver-McGarr on her qualifications. Watson did not waive this issue or “voluntarily”

discontinue, as argued by Respondents, as he did it pursuant to and in reliance on WMII’s.

representations. Throughout the hearing Watson asked for the diploma and Beaver-McGarr’s

return to the stand and was delayed by WMII, even after the hearing, during public comment,

Watson sought the information from WMII and was repetitively denied the information

(see,

Watson Written Comment, Exhibit H).

Additionally, Respondents’ argument that the mere raising of the issue by counsel for

Watson at the time of the hearing and during closing statements is ludicrous, particularly when

however, in order to find Criterion 3 was met, Kankakee County had to accept Ms. Beaver-McGarr’s testimony.

14

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counsel for Kankakee County is also arguing that “The statements made by attorneys during

opening and closing arguments, and during examination, are not evidence, and cannot be used to

prove a particular position.” (Kankakee County Bf.

58).

Watson repetitively attempted and was

denied evidence concerning Beaver-McGarr’s lack of diploma, despite his reliance on WMII’s

promise to provide it or produce Beaver-McGarr to finish cross-examination on this issue.

WMII delayed response on this issue until after the public hearings and written comment period

were closed (when it had to have known by then that there was no diploma, and, thus, the reason

why it refused to put Beaver-McGarr back on the stand and refused to produce her transcript or

authorization for Watson to obtain it, which shows she has no degree). Further, WMII has

attempted to prevent evidence of perjury from coming to light in this proceeding by tying to bar

Ms. Powers from testifying through both a motion to quash her subpoena (which was correctly

denied by the IPCB Hearing Officer) as well as a motion to bar her testimony (which was

incorrectly granted by the IPCB Hearing Officer8, however, the IPCB Hearing Officer correctly

allowed an offer of proof).

Therefore, Respondents’ arguments must fail and the IPCB should find, consistent with

the Illinois Supreme Court’s and Fist District Appellate Court’s holdings in Eychaner v. Gross,

et

,

and People of the State of Illinois v. Moore, that either Kankakee County proceeding was

fundamentally unfair due to Kankakee County’s consideration (and the local hearing officer’s

failure to strike) Ms. Beaver-McGarr’s testimony as a result of her perjury, or due to Watson’s

denial of completion ofhis cross-examination of Beaver-McGarr; or alternatively, that Kankakee

County’s decision was against the manifest weight ofthe evidence as concerns Criterion 3, and

8

The IPCB Hearing Officer granted WMII’s motion to bar based on his understanding that the IPCB could not

weigh credibility of witnesses, however, this finding goes against the Supreme Court’s holding in ~ychaner v.

15

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reverse the decision of Kankakee County. In either circumstance, although the normal remedy

for fundamental unfairness is to remand to correct the unfairness, in this circumstance, perjury

camiot be “corrected,” thus, to the extent the IPCB’s decision finds that Beaver-McGarr perjured

herself, the decision should be reversed. To the extent the IPCB’s decision relies solely on the

proceedings being rendered fundamentally unfair through denial of Watson of either the non-

existent diploma or completion of his cross-examination of Beaver-McGarr, then the proceeding

should be remanded with direction for a new hearing at which Beaver-McGarr should be ordered

to take the stand for completion of her cross-examination and that the testimony ofMs. Powers

can be read into evidence before the Kankakee County Board.

Fundamentally Unfair

Respondents’ arguments in response to prejudgment relies on the application of

Residents Against a Polluted Environment v. County of LaSalle and Landcomp, PCB 96-243

(September 16, 1996), wherein the IPCB Hearing Officer’s decision not to allow evidence of the

adoption

of the Solid Waste Management Plan (SWMP) was upheld, and some allegedly

neutralizing language in the host agreement. Neither of these arguments should prevail. First,

the Residents Against a Polluted Environment holding is not applicable, as it concerns the IPCB

denial of a petitioner’s request to review the

adoption

ofa SWMP. In this case, Petitioner is not

seeking review of the manner in which Kankakee County adopted its SWMP or amendments, its

is pointing to the SWMP, itself, as evidence that, at a minimum, Kankakee County

predetermined the location and operator of, and therefore, at a minimum predetermined at least a

Gross,

et al.,

202 Ill.2d 208, 779 N.E.2d 1115, 1130 (S.Ct. 2002) and, therefore, the evidence submitted as an offer

ofproof(Ms. Power’s testimony and related exhibits), should be admitted.

16

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large portion of Criteria 1, 2, 39, and

5.

Neither Respondent is able to point to any case in which

a County had similar designating language in its SWMP and was found not to have

predetermined at least a portion of the nine criteria of Section 39.2 of the Act. Further, neither

Respondent points to any case in which the decision-maker received accelerated payments for

siting approval. In fact, EE Hauling, referenced by WMJI for the proposition that government

decision-makers make decisions regularly about money and are presumed neutral is

distinguishable, as the money involved in that case was being paid as part of an on-going

operation, which is not the circumstance here. The $500,000 cash plus other benefits (new GPS,

police cars, etcetera) were paid in addition to the existing host fee for the existing site, as an

accelerated payment for siting approval and nothing, including the language of the agreement,

rebuts the, at a minimum, predisposition this creates. Combined with a SWMP designating this

site, the pre-approval payment and gifts guaranty, and the testimony of County Board Member

Martin10, prejudgment becomes evident to any “disinterested observer.” Therefore, the IPCB

should find that Kankakee County was predisposed to and prejudged the subject application, thus

rendering is proceeding fundamentally unfair.

~The language of the SWMP specifically finds the expansion would limit impact to the surrounding area that is

already affected by a landfill

(see,

Kankakee County Bf. 13-14), which at a minimum is a finding inconsistent

with siting law, which holds that an existing site has no relevance to whether an expansion is compatible, and also

shows predisposition as to Criterion 3.

~a

Kankakee County apparently questions the authenticity of the citation to Martin’s testimony in Watson’s

opening brief. One of the two exchanges occurred as follows:

Q:

From March 2002 until August 2002 only looking at that time period, in those time periods did

you share your belief that the site had been pre-selected with other members of the County Board?

A:

When you say share, what do you mean?

Q:

Talk, communicate in any way?

A:

I

would say no.

Q:

At that point in your mind was it a foregone conclusion?

A:

It

seemed that way so there was no use talking about it.

(Martin Tr. p. 15).

17

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the Decision of the County Board, Rendered the Proceedings Fundamentally

Unfair

Petitioner Watson raises, essentially, two areas of

ex parte

communications: admitted

communication between Mr. Moran and Ms. Harvey, and admitted communication between Mr.

Heiston and the County Board Members between March 2002 and January 31, 2003, regarding

the Amendment to the SWMP (Kruse Dep. Tr. 40). Kankakee County responds by denying the

record contains evidence of such communication, even though WMII answers to interrogatories

disclose, under certification, that such communications occurred~,and failing to respond to the

Mr. Heiston-Count Board communications, other than to criticize Watson’s reference to Mr.

Hoekstra’s testimony that I-Ielston was “our WMII attorney.” As respects this criticism, Mr.

Hoestra reserved signature and had plenty of time to correct his testimony, including when he,

again, testified at the IPCB hearing. The fact that he did not correct it, means it stands.

Kankakee County has no evidence that the statement was a “typo” as it asserts.

WMII responds to Watson’s

ex parte

issues by asserting that no “reliable” evidence was

presented and no prejudice was established. WMII’s fails however to assert how the evidence,

primarily its own answers to interrogatories and Kankakee County Board Chairman Karl Kruse’s

testimony is not reliable, thus this argument should be disregarded. Further, part of Watson’s

argument is that, since he was unable to depose or cross-exam those persons involved in the

communications (particularly with respect to Mr. Moran and Ms. Harvey), the substance and

~ Kankakee County also responds that the communication between Mr. Moran and Ms. Harvey concerned

“procedure” per an affidavit of Ms. Harvey, except Petitioners were denied the opportunity to cross-examine

either Ms. Harvey or

Mr.

Moran on these communications, and denied the opportunity to cross-examine Ms.

Harvey on her affidavit, by the IPCB Hearing Officer’s ruling preventing those depositions. Watson has asserted

that such ruling was in error and, particularly when Ms. Harvey submits an affidavit as “evidence,” Watson

should have been provided an opportunity to cross-examine her on, at least, the contents of the affidavit and what

she has, in a conclusory fashion, termed “procedural” communications.

18

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effect ofthose communications is impossible to investigate and, therefore, should either be found

prejudicial as a presumption or this proceeding should be remanded to the IPCB Hearing Officer

to allow those depositions to proceed.

Therefore, the IPCB should fmd that the

ex parte

communications that occurred caused

the proceeding to be fundamentally unfair.

4.

The decision of Kankakee County was against the manifest weight of the

evidence with respect to Criteria (i), (ii), (iii), (v), (vi), (vii), and (viii) of Section

39.2 of the Act

Petitioner Watson addressed Criteria (i), (ii), (iii), (v), (vi), (vii), and (viii) in his opening

brief and Respondents submit argument contesting Watson’s argument on each of these Criteria,

which is addressed, per Criterion, below.

(a) Criterion (i) Was Against the Manifest Weight ofthe Evidence

The basic premise of Petitioner Watson’s argument on Criterion 1 is that WMII did not

provide sufficient, clear evidence to establish a prima facie showing that a 30 million ton

expansion ofthe Kankakee Landfill was necessary and, in fact, the evidence presented by WMII

was inconsistent (overestimating generation and underestimating capacity), speculative, and

biased, such that the Kankakee County Board’s was against the manifest weight ofthe evidence.

WMII and Kankakee County respond to Watson’s argument by contesting the generation and

capacity calculations, in particular the capacity of Spoon Ridge, and minimizing the

insufficiency of WMII’s burden to prove the need for the 30

million tons capacity,

as opposed

to some lesser figure, it seeks, by characterizing, without any law to support the theory that the

numeric testimony concerning “need” is “methodology” and, thus, credibility. The Respondents’

arguments must fail.

In American Bottom Conservancy, the IPCB acknowledged that

“necessary” means a “degree of requirement or essentiality” and not just that a landfill be

19

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“reasonably convenient.” Sierra Club V. City of Wood River, PCB 98-43, slip op. at 4 (Jan. 8,

1998),

citing

Waste Management of Illinois v. PCB, 122 Ill. App. 3d 639, 461 N.E.2d at

546.

The IPCB went on to cite that the Illinois Appellate Court Second District adopted this

construction of “necessary,” adding that the applicant

must demonstrate both an urgent needfor,

and the reasonable convenience of the new facility.

Waste Management of Illinois v. PCB, 175

Ill. App. 3d 1023, 1031, 530 N.E.3d 682, 689 (2nd Dist. 1988); A.R.F. Landfill, 174 Ill. App. 3d

at 91, 528 N.E.2d at 396; Waste Management of Illinois v. PCB, 123 Ill. App. 3d 1075, 1084,

463 N.E.2d 969, 976 (2nd Dist. 1984) (emphasis added). Thus, the numeric items at issue are

not merely credibility factors, they are the basis for the need analysis which, if it has not

demonstrated both an urgent need and reasonable convenience for the proposed 30 million ton

expansion, should be found to be against the manifest weight of the evidence.

As respects Spoon Ridge, the main thrust of the Respondent’s argument appears to be

that Smith did not waiver in maintaining unavailability ofthis capacity, even though this landfill

is fully permitted. Thus, Respondents seek to revise the standing law that permitted facilities

must be included in capacity analysis, by creating an exception for, apparently, “economic

viability.” First, the economic argument, although it can be considered, should not be

controlling. American Bottom Conservancy, PCB 00-200 at

59.

Second, Respondents argue

that Smith did not testify that Spoon Ridge was not being used for economic reasons, however,

the transcript (11/20/02 6:00 pm Tr. 68-71) shows otherwise. In particular, after a serious of

questions and answers concerning why Spoon Ridge was not operating, the exchange ended

with:

Q:

And Spoon Ridge is an existing permanent alternate location that isn’t even being

used because it’s not profitable?

20

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A:

Smithj

Correct.

(11/20/02 6:00 pm Tr. 71).

Thus, even if the numbers are re-adjusted to account for WMII’s asserted Watson

mathematical errors and Watson’s asserted mathematical errors, or, taking it a step further,

in

arguendo,

no generation numbers are adjusted and take Smith’s for what they state, and the

minimum additional capacity considered, which was not considered by Smith is Spoon Ridge,

WMII still fails to prove a need for 30 million tons of cap~pity(even looking as far out as

2030).12 Therefore, the Kankakee County decision should be reversed as it is against the

manifest weight ofthe evidence.

(b) Criterion (ii) Was Against the Manifest Weight of(lieEvidence

The thrust of the Respondents argument is that the points raised by Watson in his brief

are inaccurate. Watson disagrees with this assertion and states that the record cited by Watson in

support of the failures of WMII to provide Criterion (ii) speaks for itself. For example, the

testimony of Mr. Nickodem is clear that he did not consider the proposed location of the

expansion in his design, or, at a minimum failed to present any evidence concerning location

standards during his testimony or in the application, since it was “not required” in his view, by

the local siting ordinance. (11/22/02 1:30pm Tr. 12-13). While a local government may expand

on documentation required in its local ordinance for siting, can it minimize and exclude that

information, thereby limiting the public review of the location issues? Under WMII’s theory it

can; under Watson’s it cannot.

Another example of heightened concern is Mr. Nickodem’s failure to consider

downstream water intakes. The Respondents argue that Nickodem was not given an opportunity

21

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to look up the information and respond to the question, however, that is not the case, as, when he

resumed his testimony (after a weekend break), he testified he looked into that question and

concluded that the supply was located upstream of the proposed expansion. (11/25/02 9:00 am

Tr. 4-5).

Finally, Watson joins in Petitioner Karlock’s reply brief concerning Criterion 2.

Therefore, the IPCB should find that Kankakee County’s decision was against the manifest

weight of the evidence.

(c) Criterion (iii) Was Against

the

Manifest Weight ofthe Evidence

Petitioner Watson’s reply to arguments raised by Respondents concerning Kankakee

County’s decision on Criterion 3 being against the manifest weight ofthe evidence are addressed

in Section 2(b) ofthis brief, above, and, therefore, will not be repeated in this Section.

(d) Criterion (v) Was Against the Manifest Weight ofthe Evidence

Respondents assert the same types ofarguments in response to Criterion (v) as they did in

response to CriteriOn (ii) and, as in Criterion (ii), Watson submits that the record speaks for

itself. For example, although Nickodem describes the fact that a landfill operator is required, by

law, to respond to landfill gas in excess of the lower explosive limit, he admits there is no plan

for such response in the application:

Q:

Do you have any plan included in this application for the event that one ofthose

monitoring wells does collect a sample that is five percent ofthe LEL?

A:

Niekodem

I don’t know if there is any specific plan. I mean that is something

you address with IEPA when that comes up...

(11/22/02 1:3OpmTr. 59).

12

Smith’s generation number of

186,367,304

—

(Smith’s capacity number of 89,433,450 + 39,500,000 for Spoon

22

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For a concern as fundamental and dangerous if it occurs as landfill gas migration, should

there not be a plan rather than a “wait until it becomes an issue” approach? In fact, the

application does not contain a plan to address the situation in which gas is found in excess offive

percent ofthe lower explosive limit in a monitoring well.

Therefore, based on the record in this case, the IPCB should find that Kankakee County’s

decision is against the manifest weight of the evidence.

(e) Criterion (vi) Was Against the Manifest Weight pf the Evidence

Again, the trust of Respondents’ arguments concerning Criterion (vi) is that Watson

presents no data showing a lack of minimization of impact on traffic, in an apparent attempt to

argue that the manifest weight standard cannot be met if the evidence itself, as presented by the

applicant is not sufficient. This simply is neither the law nor the circumstances of this case. If

an applicant does not meet its burden of proof, and the decision ofthe local government based on

the evidence presented by the applicant is against the manifest weight ofthe evidence, then that

decision must be reversed. The Respondents’ “smoke and mirrors” type arguments with the data

is insufficient to rebut the fact that there is simply insufficient evidence submitted by WMII to

uphold Kankakee County’s decision.13 Therefore, the IPCB should find that Kankakee County’s

decision was against the manifest weight of the evidence.

Ridge)

=

20,657,746 shortfall.

‘~

The County’s assertion that performing the traffic count in the winter when two activities producing an increase

in traffic in the area (fair grounds and farming) is just as representative of traffic conditions as if the count was

performed in the summer

(i.e.,

its “reversal” argument) is seriously flawed. How can taking a count at a high

period of activity in traffic be less or as representative as raking it during the low period in traffic. That’s like

saying an applicant can take off-street peak hour counts only and not consider street-peaks

(i.e.,

high periods of

traffic) and satisfy its evidentiary burden. Likewise, the County’s assertion that the 7,000 ton per day figure is

not in evidence is flawed. Per words taken from WMII’s own brief (p. 3), the expansion will receive

no more

than 7,000 tons and there is no limitation preventing WMII from taking 7,000 tons per day. Thus, is it not

necessary to provide data in an application to support a Criterion (vi) fmding at tonnage above 4,000 up to 7,000

tons per day? WMII fails to provide

any

evidence that in support of this Criterion at any tonnage above 4,000

tons.

23

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(f)

Criterion (vii) Was Against the Manifest Weight ofthe Evidence

Kankakee County argues that this Criterion applies only if the proposed facility is going

to “accept” hazardous waste and, therefore it was inapplicable. WMII argues that there is no

evidence to support that leachate from the existing facility is hazardous and, even if it were, there

is no evidence that it would be treated, stored or disposed of at the expansion. The Criterion

specifically provides: “if the facility will be treating, storing or disposing ofhazardous waste..

.“

and there is no condition of “acceptance” of hazardous waste as Kankakee County argues.

Therefore, Kankakee County’s argument should fail. To hold otherwise would mean that a new

pollution control facility that generates hazardous waste and stores it on-site is not subject to this

Criterion, which is neither fitting with the language ofthe Criterion nor logical.

WMII on the other hand, is correct (and it was never asserted by Watson to the contrary)

that there is no evidence that the existing facility’s leachate is hazardous, but, likewise, there is

no evidence it is

not

hazardous. Isn’t it the applicant’s burden to show the inapplicability of the

condition? The only testimony on this issue is inconclusive, as the witness (Nickodem) did not

know, and the only other “evidence” is the conclusory assertion (with no specificity if this

leachate issue was even reviewed) that this Criterion is not applicable. Further, the application

shows that all the leachate (existing and new) will be stored in the same location on the site,

albeit, apparently, in separate tanks.

(See, e.g.,

Drawing 4). Thus, based on insufficiency of

evidence, the IPCB should find that Kankakee County’s decision was against the manifest

weight of the evidence.

24

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(g) Criterion (viii) Was Against the Manifest Weight of the Evidence

The crux of the argument between the parties on Criterion 8 appears to be whether

consistency means an applicant does not have to comply with the Solid Waste Management Plan

(SWMP). WMII cites as legal support for the proposition that an applicant can not comply, yet

still be consistent with the SWMP, City of Geneva v. Waste Management of Illinois, Inc., PCB

94-58 (July 21, 1994), yet City of Geneva, stands for a much more narrow proposition, namely

that: “There is no requirement in Section 39.2(a)(8) that the S~VMPbe followed to the letter. It

is within the County’s purview to determine “consistency” on a specific circumstance as raised

herein; it is the County who is responsible for drafting the plan. So long as the approval is not

inapposite of the SWMP, (e.g., the SWMP calls for closure, and the siting decision expands the

landfill for an additional 20 years) determining consistency is within the realm of the County’s

decision-making power under Illinois’ landfill siting law.” City of Geneva, PCB 94-58 at 48-49.

Unlike City of Geneva, where it was five verses approximately 9 years of landfill activity

at issue, in this case WMII’s proposal is inconsistent and fails to comply, and simply fails to

address with

any evidence

significant requirements of the SWMP. Respondents’ attempts to

diminish the importance of these requirements, such as the requirement “the protection of

groundwater is one of the primary concerns in siting a landfill.

.

.

and a

. .

.site should not be

located above or near a groundwater recharge zone or a heavily utilized water supply aquifer”

must fail when the only testimony or evidence on this issue shows that WMII has not complied

with the requirement. Therefore, the IPCB should find that Kankakee County’s decision is

against the manifest weight of the evidence.

25

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5.

If the Illinois Pollution Control Board (IPCB) finds that Kankakee County’s

decision stands, then this matter should be scheduled for further discovery and

hearing before the IPCB, due to certain rulings during the course of this

a record for this appeal

Only Kankakee County responds to the portion of Watson’s brief which raising this issue.

Kankakee County argues that Watson is entitled to “minimal” standards of due process and

that he has not shown prejudice, however, Kankakee County’s application of “minimal” due

process is not explained and its argument of failure to show prejudice is incorrect, thus its

arguments must fail. Watson has asserted prejudice from those ruling specified in his opening

brief (Watson Bf. p.

49-50):

since the majority of the rulings concern barring depositions and

certain discovery, the prejudice suffered is not having access to that information in the

discovery portion of this proceeding. This is clearly stated in Watson’s brief (p.

50),

when it is

stated that the Petitioners were:

“. . .

prejudiced in their ability to obtain evidence related to

and in support of the fundamental fairness issues raised in their Petition’s before the IPCB for

review.”

Supreme Court Rule 201(b)(1) and the objective of discovery as a mechanism which

allows parties to better prepare for trial, seek the truth of a matter, eliminate surprise, and

promote expeditious and final detennination of controversies. IL S.Ct. Rule 201(b)(1); and

D.C. v. S.A., et al., 178 Ill. 2d

551;

687 N.E.2d 1032, 1037 (S.Ct. 1997). Starting with

those rulings concerning discovery and following those rulings barring admission of evidence,

this case is like in any case where a ruling is made against a party barring that party from

obtaining information during discovery or preventing that party from presenting evidence, that

party has a right to seek review of that ruling and the prevention from it either obtaining the

discovery or presenting evidence (whichever the argument may be). Thus, the County’s

26

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arguments should fail and the IPCB, if it decides to uphold Kankakee County’s decision,

should review the specified rulings and return this case for additional discovery and hearing, to

correct the prejudice caused by barring the Petitioners from obtaining evidence through the

discovery.

CONCLUSION

WHEREFORE, Michael Watson respectfully requests the Illinois Pollution Control

Board to vacate the decision of the Kankakee County Board approving the Application of Waste

Management of Illinois, Inc. Alternatively, Michael Watson respectfully requests that the

Illinois Pollution Control Board remand the decision of the Kankakee County Board for further

hearings and proceedings, to cure the fundamental unfairness of the subject decision and

hearings.

Dated: July 3, 2003

Respectfully Submitted,

PETITIONER MICHAEL WATSON

QUERREY&HARROW,

LTD.

By:____________

175 W. Jackson, Suite 1600

Chicago, Illinois 60604

(312) 540-7000

Fax: (312) 540-0578

Illinois Attorney No.6225990

27