BEFORE THE ILLINOIS POLLUTION

CONTROL BOARD

LOWE TRANSFER, INC. and

)

MARSHALL LOWE,

)

Co-Petitioners,

)

)

PCBO3-221

vs.

)

(Pollution Control Board

)

Siting Appeal)

COUNTY BOARD OF McHENRY

)

COUNTY, ILLINOIS,

)

Respondent.

)

CLp~~’~~

~RKS

OFFICE

JUL

2

8

2003

Po//~j~~

ILINOIS

NOTICE

OF FILING

TO:

See Attached

PLEASE TAKE NOTICE that on July 24, 2003, we mailed for filingwith the Illinois Pollution

Control Board, the attached Lowe Transfer, Inc. and Marshall Lowe’s

Motion

in Limine

in the

above

entitled matter.

LOWE TRANSFER, INC.

and

MARSHALL LOWE

By:___________

One of Its Attorney

PROOF OF

SERVICE

I, a non-attorney, on oath state that I served the foregoing Motion

in Limine on

the parties

listed

in the attached service list by depositing same in the U. S~i~pail

at or before 5:00 p~m.

on this

24th

day of

July,

2003.

Subscribed and Sworn to before me

this

24th~

day of July,

2003

David W. McArdle

ZUKOWSKI ROGERS FLOOD & MCARDLE

50 Virginia Street

Crystal Lake, Illinois 60014

(815) 459-2050

Attorney Registration No.

06182127

U:\HAHARKIN\LOWE\NOTFILE2TRAN5FER.wpd

Notary Public

tS_

~

V()~flA~

~~OELLE

~

~

~

~

This document is printed on recycled paper.

---

July 24, 2003

(3:48pm)

U:\HAHARKIN\LOWE\servicelist.lowe.wpd

Lowe Transfer,

Inc. and Marshall Lowe

v.

County Board of

McHemy

County, Illinois

Before the Illinois Pollution Control Board

Case No. PCB 03-221

SERVICE LIST

Attorney for County Board ofMcHenrv

County, Illinois

Charles F. Heisten

Hinshaw and Culbertson

100 ParkAvenue

P.O. Box

1389

Rockford, IlL61105-1389

815-490-4900

Hearing Officer

Bradley P. Halloran

Illinois Pollution Control Board

James R.

Thompson Center

Suite 11-500

100 West Randolph Street

Chicago, IL 60601

312-814-8917

---

BEFORE THE

ILLINOIS POLLUTION CONTROL

1~~’~EIVED

CT FRK’S

OFFICE

LOWE

TRANSFER, INC. and

)

MARSHALL LOWE,

)

JUL

2

8

2003

Co-Petitioners

)

)

PCB 03-22

1

STATE OF ILLINOIS

vs.

)

(Pollution Control

B~ffi~tb0n

Control

Board

)

Siting Appeal)

COUNTY BOARD OF McHENRY

)

COUNTY, ILLiNOIS,

)

Respondent.

)

MOTION IN LIMINE

The Co-Petitioners, LOWE TRANSFER, iNC. and MARSHALL LOWE, through their

attorneys, ZUKOWSKI, ROGERS, FLOOD & McARDLE, herebymove the Pollution Control

Board to enter an order, in limine, restricting the scope ofthe hearing to

be conducted on August

14, 2003,

to

(1) preclude Section 101.628(a) oral statements;

(2) limit the time for Section

101.628(b) oral comments to five minutes per participant in the event the total number of

participants is 25

or more, and

(3) limit

all Section 101.628 statements by parties and participants

to

Criteria 2, 3,

5,

the un-numbered criteria and the fee conditions imposed by the County Board,

and based only on the record generated in the proceeding before the McHenry County Board.

The grounds for this motion are as follows:

1.

This is

an appeal, pursuant to

415

LCS

5/40.1(a), ofthe denial by the McHenry

County Board of Co-Petitioners’ application for siting of a municipal solid waste transfer facility.

The basis of the Co-Petitioners’

appeal is essentially limited to whether the decision by the

McHenry County Board was against the manifest weight ofthe evidence.

No issues of

fundamental fairness were raised.

THIS

FILING IS PRINTED

ON RECYCLED PAPER

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2.

Illinois

law clearly provides that the Pollution Control Board must confine itself to

the record developedby theLocal PollutionControl Facility Siting Authoritywhere issues of

fundamental fairness of theproceeding

are

not involved.

Land and Lakes

Co.

v. Illinois

Pollution Control Board,

319 Ill. App. 3d

41

(generally, the PCB must confine itself to the

record developed by the Local Pollution Control Facility siting authority; however, in some

cases, it is proper for the PCB to hear evidence relevant

to the fundamental fairness of

proceedings where such evidence necessarily liesoutside the

record).

City ofEast Peoria

V.

Illinois Pollution Control Board,

117 Iii. App. 3d 673

(in reviewing the denial by the County

Board ofthe petition for approval to

locate a sanitary landfill, it was

error for the Pollution

Control Board to consider,

on a de novo basis, the evidence in the record concerning public

health impact ofthe proposed landfill;

instead, the Pollution Control Board should have

determined whether the County Board’s conclusions concerning the public health consequences

ofthe proposed siting ofthe sanitary landfill were against the manifest weight ofthe evidence);

Waste Management ofIllinois v. Illinois Pollution Control Board,

123

Ill. App.

3d

1075 (1984)

(holding that the

petitioner’s

argument that the record on review should have been determined on

a de

novo basis was incorrect, “although we recognize the statute as drafted does not clearly

establish the proper standard

to be applied by the PCB (citations omitted),

the courts which have

considered this question concluded the PCB’s application ofthe manifest weight standard is

correct”);

County ofLake

v. Illinois Pollution Control Board,

120

Ill.App. 3d 89

(2nd

Dist.

1983)

(wrongful application of a de novo hearing standard invalidated PCB findings).

3.

35

Iii.

Adm. Code

107.404 provides, in part, as follows:

THIS

FILING IS

PRINTED ON

RECYCLED PAPER

2

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Parties to the proceedings will have all rights ofexamination and

cross-examination relevant in anyjudicial proceeding.

Persons

who are not parties, as set forth in Section 107.202 ofthis part are

considered participants and will have hearing participation rights,

as determined by the hearing officer, in accordance with 35

Ill.

Adm.

Code

101.628.

Participants

rngy offer commentas

a

specifically determined time in the proceeding, but may not

examine or cross-examine witnesses for either party. (Emphasis

added.)

4.

35

Ill.

Adm. Code

101.628 provides for three different levels ofstatements from

participants, oral statements, written statements and public

comments or amicus curiae briefs.

Section 628(a)

clearly makes oral statements permissive, determined by the hearing officer:

The hearing officer rngypermit a participant to make oral

statements on the record when time, facilities and concerns for a

clear and

concise hearing record so allow.

The oral statements

must be made under oath and are subject to cross-examination.

(Emphasis added.)

5.

In the instant case, because the appeal is based strictly on manifest weight of the

evidence, and based

on the cases cited above,

it may very well lead to

a reversible error to permit

oral statements from participants at the hearing.

Section

101.628(a), oral statements,

should be

allowed only de novo proceedings where

evidence is required for the Board to decide

the merits

ofthe case and, thus, cross-examination is

required.

Participants will still be permitted to

express their positions via Section

10 1.6289(b) or (c), so long as the written statements are based

on

the record.

6.

Section 628 statements, in any form

allowed by the hearing officer, should be

strictly limited

to the record as generated at the McHenry Count Board level.

Statements beyond

THIS FILING IS

PRINTEDON RECYCLED

PAPER

3

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that migrate into the de novo process.

Any such statements

are outside the record and will

constitute reversible error if allowed.

7.

It is the undersigned’s understanding that the Village ofCary is anticipating more

than 100 residents to

be in attendance at the scheduled hearing on August

14, 2003.

If this is the

case, a time limit should be imposed to

prevent an unreasonablylonger process. The record

already in existence no doubt contains everyone’s concerns and extraneous comments should be

restricted.

WHEREFORE, the undersigned attorney, on behalfofthe Co-Petitioners, LOWE

TRANSFER iNC.,

and MARSHALL LOWE, request the Pollution Control Board to enter an

order, in limine, restricting the scope ofthe hearing to

be conducted on August

14, 2003,

to

(1)

preclude Section

101.628(a)

oral statements; (2) limit the time

for Section

101.628(b) oral

comments to five minutes per participant in the event the total number ofparticipants is 25 or

more,

and (3)

limit

all

Section 101.628

statements by parties and participants

to the record

generated in the proceeding before the McHenry County Board.

Respectfullysubmitted,

LOWE TRANSFER, iNC. and

MARSHALL LOWE

By: Zukowski, Rogers, Flood

& McArdle

David W. McArdle

David W. McArdle, Attorney No:

06182127

ZUKOWSKI, ROGERS, FLOOD

& MCARDLE

Attorney for: Lowe Transfer,

Inc. and Marshall Lowe

50

Virginia Street

Crystal Lake,

Illinois

60014

815I459~2050;815/459-9057

(fax)

U:\HAHARKIN\LOWE\MOTLIMINE3 .TPANSFER.wpd

THIS FILING IS PRINTED ON RECYCLED PAPER

4