75CM

ZUKO~SKIROGERS

FLOOD MCARDE 8154599057

(TUE) 08, 05 03

12::32/ST,

2:21/NO. 35~00G0263P

2(30

BEFORE THE

ILLINOIS

POLLUTION CONTROL BOAR

E~

CLERk’S

~

LOWE

TRANSFER,

JNC. and

~AUG

MARSHALL LOWE,

03

Co-Petitioners,

)

No. PCB

03-221

STATE OP ILLINOIS

v~.

)

(Pollution

Control

Facilit~SJt

~p

~J Board

COUNTY BOARD OF McFIENRY

)

COUNTY, ILLINOIS

)

Respondents

)

NOTICE OF FlUNG

TO:

See List Referenced in Proofof Servi~é

PLEASE TAKE NOTICE that

on

August

5,

2003, we filed with the IllinOis Pollution

Control Board, the attached Lowe Transfer, Inc.

and

Marsha

I Lowe’s

MOTIOJ~

TO

STRIKE

VILLAGE OF CARY’S RESPONSE~TOPETITIONERS’ MOTION IN LIMINE AND

MOTION FOR SANCTIONS AGAINST THE ViLLAGE OF CARY

in the above entitled

m after.

LOWE TRANSFER,

INC.

and

MARSHALL LOWE

By

:j~Qj

7’~’

~

i’David W.

McArdle

PROOF OF

SERVICE

I,

a non-attorney.

oxi oath

state

that

I

served the

foregoing Motion,~n

the following parties by

depositing

same

in

the

U.

~.

mail oii this

5TP

day of A~gust,

2003

and vj~

fax

ort

the

Sthday

of August, 2003:

Artornev for

C~o~ifv

Boardof

H~arinRdfficer

McH~nrii

co~rnrv,

I/i/no/s

Bradley P.

Halloran

Charles

F. 1-leisteri

IJIrnois Pollution Control Board

Hinshaw and Culbertson

James R. Thompson Center!

Suite 11-500

100 Park Avenue,

P.O~Bo~r1389

100

West Randolph S~eet

Rockford,IL

61105-1389

Chicago,

IL

60601

815-490-4900:

FAX 8)5/9(53-9989

SUBSCRIBED and

SWORN

tobefore

-

~7~dayoF~st

~

7/Notary Public

Oh-z’.

E~j.~kJ~’~

~

‘4C(~ULL~

Attorney Re

stratrnr~

No.

061821L~~J

ZIJKOWSKI ROGERS FLOOD &

MCARDLE

50

Virginia

Street

~

Crystal Lake,i1linois~i600J

4

(815) 459-2050

3~

1~/814-3

669

This document is printed on

recycled paper.

---

FROM ZUKO~SKIROGERS FLOOD MCARDLE 8154599057

(TUE)08. 0503

12::32/ST, 12:21/NO. :35090002~~3P ~~80

CTERc’~

OFFICE

~UG

52

BEFORE

THE ILLINOIS POLLUTION CONTROL

BOARD

STATE

OF

ILLINOIS

LOWE

TRANSFER, INC. and

-)

PO1IUtio~COfltT0/ Board

MARSHALL

LOWE,

)

Co-Petitioners,

)

No. PCB 03-221

)

vs.

)

(Pollution Control Facility

-

)

Siting

Appeal)

COUNTY BOARD OF McHENRY

)

COUNTY, ILLINOIS

Respondent

CO-PETITIONERS’

MOTION TO

STRIKE VILLAGE OF

CARY’S RESPONSE TO PETITIONERS’

MOTION IN LIMI~NE

A1NJ)J~JQTIO~N

FOR

SANCTIONS

AGAINST THE VJLLAGE_OJ~ARY

Co-Petitioners,

Lowe

Transfer,

lric

and

Marshall

Lowe

(“Lowe”),

by

and

through

its

attorneys. Zukowsici Rogers Flood

&

McArdle, respectfully request the Pollutidn Control

Board

strike

the Village of Cary’~

(the “Village”) Responsefto Petitioners’

Motion in

~imine and issue

sanctions against the Village for failure to comply’with

Board

orders issued

in this siting appeal.

In support of this Motion, Lowe states as follows:

-

L

On June 19, 2003, the Village filed a Motion

to Intervene in this siting appeaL

2.

On July

10,

2003,

the Pollution Control

Board

by

a unanirnous~vote denied the

Village’s Motion

to

Intervene.

The Board

order

is

attached hereto

and

incorporated herein

as

ExI~ibit

A

3

By its order the Board

did not grant the Village “party” status in this

siting appeal.

Board Order, p. 2.

4.

Instead, the Board found that the Village would be afforded “participant” status under

Sections 101 .628 and

107.404 ofthe Board’s procedural rules.

Board Order at p. 2.

5.

On J~4y

28, 2003,

Lowe tiled

a Motion in Limine.

1

THiS FILING IS PRINTED ON RECYCLED PAPER

---

FROM

ZUKO~SKTROGERS FLOOD MCARDLE :154599057

(TUE) 08.

05’ 0312,32/ST.

12:2

1/NO. .3509000258

P

4~30

6.

On July

28, 2003,

the Villagefiled an Appeal ofHearing OfficerDetermination a~id

Request forBoard Direction in which the Vi l1~ge.

solely a participant in this siting appeal, requested

that the

Board

overturn the Hearing Officer’s denial of the Village’s right

to

participate in or audit

any

status

conference

calls

in

this matter.

A

copy of the Village’s Appeal of Hearing

Officer

Determination aridRequest for Board Direction is attachedhereto and

incorporated

hereinasExhibit

B

7.

Tn

its

July 28, 2003

Appeal, the Village is requesting “party”

status in

relation to

participation

in

status confcrcnce calls~

This request and its appeal were made after the

Board

had

ruled

and issued its Order denying the Village “party’ status.

8.

On August 4, 2003,

in direct

violation of the Board’s order of July

10,

2003,

the

Village

filed a Response to

Petitioner’s M0t~0~

inLi’mine

A

copy of the Village’s Response to

Petitioners’

Motion in Lirninc is attached hereto and incorporated herein as Exhibit

C.

9.

Section 101.500(d) oftheBoard’sprocedural

ruI~s

very

clearly statos that only parties

f

rnayfilearesponsetoamotiori.

“Within 14 days after service ofa motion, a party may filea responseto the motion.

En~phasis

added.

10.

Ms.

Percy Angelo,

one

of

~he

attorneys representing

the

Village,

has

extensive

experiencebefore the Pollution Control

Board

going back to at

least

1990- A cop)) ofa

name

search

ofthe PCB website is attached hereto

and

inco~poratcd

herein as Exhibit D.

11.

Tn

fact,

in PCB

95-11

9,

1 25

in her client’s Objection to Motion forLeave

to

Pile Copy

ofArnicus Briefand Response,Ms. Angelo quite succinctlydescribedtherole ofa participant posing

as an arnicus curiae (as the Village has declareditself in this siting appeal).

Inopposition to a

party’s

amicus briefMs. Mgeo

wrote:

2

ThIS

FILiNG IS

PRINTED

ON

RECYCL~1D

PAPER

---

FROM ZUKOT1~SKI ROGERS FLOOD MCARDLE 3154599057

(TURbO. 05’

0:3

12:33/ST. 12:21/NO. 3599000253

P

5/30

“A

person posing as an

amicus

curia&has no direct interest in the matter athand and

should

not

be

permitted

to

delay th~resolution

of the

parties’

dispute:”

West

Suburban Recycling

and Energy Center, L.P.’s

Objections to Motion

for Leave to

File Copy of

Arnicus

Briefand Response at p.

3.

12.

It

is

clear

from

her

own pleadings

that

Ms

Angelo

is

aware

of the

rules

and

-

procedures of

the Pollution Control Board

distinguishing between “partIes” and “participants”.

13.

This

Board

has already

determined that the

Village is not a party to this siting appeal.

14.

As such, theVillage’sResponse to Petitioners’ Motion in Liminc should be

stricken.

15.

These repeated and f1agr~nt

refusals by the Village to comply with theBoard’s Order

can not be ignored.

116.

Lowe has

been forced to spend considerable time and expense in defending against

thes~

actions by the Village.

WHEREFORE, °Co-Petitioncr?,Lowe Transfer,

Inc.

and Marshall

Lowe.

request that the

Village ofCary’s Response to

Petitioners’ Motion

in Limine be stricken and that the Board issue

sanctions against the Village ofCarjfor failure to comply with the

Board’s Order

ofJuly

10, 2003.

Respectfully submitted,

LOWE TRANSFER, INC. and

MARSHALL LOWE

By: zukowski, Rogers, Flood & McArdle

i

By:

-

David W. McArdle

David W. McArdle

AttorneyNo:

06182127

ZUKOWSKI, ROGERS, FLOOD &

MCARDLE

Attorney for Lowe Transfer.

mc, and Marshal

Lowe

$0 Virginia Street

Crystal Lake, Illinoks

60014

815/459-2050;

815/459-9057

(fax)

3

TJ-JJS FlUNG

IS PRINTED ON RECYCLED PAPER

---

FROM ZUKO5~SKIROGERS

FLOOD ~ICARDLE

3154599057

(TUE)03. 0503

12~3:3/ST,12:21/NO. 3:500000253

P

5/30

ILLINOIS POLLUTION CONTROL BOARD

JuJy

1 0, 2003

LOWE TRANSFER. INC.

and MARSHALL

)

LOWE.

)

)

Petitioners,

)

v

)

PCB

03-221

)

(Pollution Control

Facility

COUNTY BOARD

OF MCHENRY

)

Siting

Appeal)

COUNTY,

ILLINOIS,

)

)

Respondent.

)

ORDER OF THE

BOARD

(by G.T.

Girard):

On June

5. 2003. Lowe Transfer, Inc. and Marshall

Lowe (petitioners) timely filed a

petition asking

the Board to review the May 6, 2003 decision of County Board of McHemy

County,

JlJ.inois (Mcllenry

County).

See ~.l5

ILCS

5/40.1(a)

(2002);

35111.

Adm.

Code 107.204.

McHenry

County deniçcFthe petitioner’s request far a~plicationto site a pollution control

facility

located

on

U.S. Route

14 in McHenr~County.

On~une19,

2003,

Village of

Cary

(Cary) filed a

motion to

intervene

in the

siting appeal (Mot.).

On July

7, 2003, petitioners

filed

a response to

the motion

(Resp.).

For the reasons discussed below the Board.denics the motion

to intervene

but

will allow

Cary

to

file an

wnicus

curiae

bi~ef.

Cary argues

that pursuant to tue

Board’s rules~t35

111. Ad.m.

Code

101.402, the Board

may allow intervention

in

an

adjudicatoryproceeding

before

the Board and a siting appeal is

an

adjudicatory proceeding.

Mot. at 3-4.

Cary puts forth five reasons why intervention should he

allowed.

First, Cary asserts that the site of the proposed waste transfer station at issue

is located

so as

to

havc

a

si~ificanLirnpacLon

Cary.

Mol.

at

I.

S~cond,Cary participatcd cxtcnsively

iii

the

proceeding below.

Mot. at 2.

Third, Cary asserts that a decision

by

the

Board

overturning

McHenry County’s decision would infringe on

Cary ‘a

rights

under Section 22.14 of the

Envfronxnental Protection Act (Act)

(413 ILCS 5/22.14 (2002)).

Fourth, Cary argues that

participation by Cary is necessary to insure that McHenry County’s decision is “vigorously

defended” on

appeal.

Mot.

at 7.

And last, Cary~aintainsthat participation by

Cary

is necessary

to prescrvc Cary’s right to appeal any grant of the siting application.

Id.

In response to the

motion to intervene,

petitioners cite to Act, the Board’s procedural

rules,

and case law.

First, petitioners cite Section 40.1 of the Act arguing that

Section

40.1

of the

Actallows

only

a siting applicant

to appeal

the

denial of siting approval.

Resp. at 2, citing 415

ILCS

5/40.1

(2002).

Section

40

1

of the Act then allows

other persons to

appeal the

decision to

grant siting approval, according to petitioners.

Id.

Second.

the petitioners cite to

35111.

Adm.

Code

107.202 of the Board’s procedural rules.

Petitioners

maintain that

the Board’s procedural

rules

mirror1he

Act~and

allow only for an applicant to

appeal a decision denying siting approval

and for

others to appeal only a grant of siting.

Id.

Third,

petitioners cite extensive case law in

EXHIBrF

A

to

~ti.on

to

Striice

---

FROM ZUKO~SKIROGERS FLOOD MCARDLE

3154599057

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05’

0:3

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P

7,/3Q

2

which the Board and courts have consistentL~’denied intervention status to third pa~1.iesin

appeals of siting approval de~ia1s.Kesp. at 2-3, citing McHen.ry_Counly Landfill, Inc.

v.

JEPA,

154

IlL. App. 3d

89,

506 N.E.2d 372 (2nd Dist.

1987); Waste Mana.~emcntof Illinois. Inc. v.

I?CB,

160 lU. App.

3d 434 513 N.E.2d

592

(2nd That.

1987); Laidiaw W~teSystems

v,

McHenrv County Board. PCB 88-27

(Mar.

10, 1987);

City of Rockford v. Wi~meb~.go

Count

Board, PCB

87-92 (Nov.

19,

1987); Clean Quality Resources. Inc.

v

Marion County Board,

PCB 90-216

(Feb. 28,

199!).

As petitioners point out, it

is well established that third-party objectors

arc

precluded

from uitcrvention

in an appeal

from

a deniaIóf siting approval.

See

Waste Managementv.

County Board of Katie County PCB 03-104, slip op. at 3

(Feb. 20, 2003); Land and Lakes

Co..

et ci.

v,

Villane of Romeovifle, PCB

94-195, slip op. at 4 (Sept.

1,

1994); cit~~zg~

Management of Illinois, Inc.

v. ?CB.

160111.

App. 3d434,

513

N.E.2d

592

(2ndDisi..

1987);

McHeriry County Landfill, Inc.

v.

IE~A,154

111. App. 3d

89, 506 N.E.2d 372 (2nd I)ist.

1987).

A third party may intci-vene only when the third party is a state’s attorney

or the Attorney

General’s Office

intervening to represent

the

public interest.

See,

e.g., Land

and

Lake~.,s1ip op.

at 3.

Cary

is

a third-party objector without the special

intervention rights

ola

state’s

attorney

or

the Attorney General’s

Office represei\ting the public intercat.

Accm~dingly,the petition to

intervene is denied.

Cary may, however,

contribute o~aJor written statements at hearing in this

matter in accordance with Sections

FOl.628 and J0Q404 of the Board’s procedural rules, but

may not examine

or

cross-examine witnesses.

35111, Adm.

Code

101.62.8(a), (b);

35 Ill. Adrn.

Code

107.404.

Cary may also participate through public comments

or

amicus

curl’acd

briefs

pursuant to Section

101.110(c), and in accordance

wjth

Sectionl01.628(c).

35

UI.

Adm. Code

101.110(c);

35

Iii, Adm.

Code

101,628(c).

IT IS SO ORDERED.

1,

Dorothy M. Gunn,

Clerk of the rllinois Pollution

Control Board, certify that the Board

adopted the

above order on,

by a vote of 7-0.

A.

DZ~rothy

M. Gurm.

Clerk

Illinois

Pollution Control

Board

---

FROM

ZUKO~SKI

ROGERS FLOOD MCARDL~3154599057

(TUE)03:,

05’

0:3

12j34/ST. 12:21/NO. 3.50000025:3

P

3/:30

BEFORE

TU1~

ILLINOIS POLLUTION CONTROL )3OA.R~

LOWE TRANSFER, tNC.

and

MAFSHALL

LOWE,

)

)

Co-Petitioners.,

)

)

PCB

03-221

vs.

)

(Pollution Control Board

)

Siting Appeal)

COUNTY BOARD OF MCRFNRY

)~..

COUNTY. ILLINOIS~

.

)

)

Respondent.

)

VILLAGE OF

CARY’S

APPEAL

OF

HEABJNG OFFICER

DETERMINATIONS

AND REQUEST

FOR

BOARD

DIRECTION

The Village of

Cary

(“Village”)

on behalf of the Village

and its

residents, by

and

through

its at1d~neys,hereby appeals the determinations

ofthe’Hearing

Officer in this matter Jimiting the

ability of

the

Village

andE~

citizens toparticipate

in’~and

be informed regarding the

status

of this

action, requests that

the

Board clarify,

and

review. if necessary~.tbeHearing Officer’s

order

permitting

withdrawal of the record, ~nd requests

that the Board provide direction regarding

future opportunities for citizen

participation.

In furtherance of its motion,

the

Village states as

follows:

FACTUAL 8ACKGROI~

1.

In order to allow the Village ~nd its citizens to remain fully informed

of

the

staPds

of this ma.tter so as to facilitate their effective part~cipationtherein, on

July

1,

2003,

and

then

again

on July

7,

as

further described

in the

attached afl5davits of Patricia Sharkcy and Percy

Angelo, the Village of Cary requested that the Hearing Officer allow the Village to participate in,

or at least listen to,

status conferences in this matter, which have been conducted

by telephone

and

are not othc~isepi~blicJy

accessible.

Attorneys for

the

Village

offered to come to the Board

offices to listen

to

status conferences

if that would facilitate matters.

F~HIBIT

B

to

~tion

to

S~i1~

THIS

FiL~fl’~ç

13 Fi~IN’TEDONRScYCIID

PAPER

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FROM ZUKO~SKIROGERS FLOOD MCARDLE 8154599057

(TUE)C2. 0503

12:,3:4/ST, 12:21/NO.

3500000258

P

9(3.0

2

The Hearing Officer denied the Village’s request,

allowing neithetparticipation in

nor auditing of

statu.s

conferences.

He explaihed that attomey-client privileged material

or other

private matters might

be discussed at such

conferences,

eventhough the attorney for the Village

protested that matters discussed

should

be publicly available, and

that it’vasn’t clear how there

could be

any attorney-client privilege in

discussions between opposing parties before the hearing

Officer for the Board.

The Hearing Officer furth~tstated that the Village

could

appeal the

Hearing

Officer’s ruling to

the Board.

3.

The 1-Tearing Officer aIs~infonned

the Village

that it was not allowed

to receive

copies of Hearing Officer orders,

but could purchase copies thereof from the Clerk’s Office if the

Village so desired.

The

Hearing Officer orders

are

also

not available on the Board’s website.

4

To

date,

two. status

conferen~eshave

beenheld in this matter: one on

July

7,

2003

and

one on July

14, 2003

‘‘he

Village

was

not pethiitted to

participate

in either

status

coaference,

5.

On July

15,

2003,

the

Hearing

Officer i~’suedaNotice scheduling apublic

hearing

in

this

matter.

Despite numerous public

comments expressing interest in the proceeding

and

requesting that the proceedings

be held after business hours so

as

to allow participation by those.

who must

work during

the day,

the notice did’not address opportunities for public comment

or

establish an evening public comment period

6

At the July

14,

2003

status ecufereuce, the

Village understands that

Petitioner

made an

oral motion

“withdrawing” a pending motion

requesting that

it be allowed to

“withdraw”

the

exhibits and records

which con~t1tute

the record of thc McHenry County Board’s

decision for its persona’i.use.

While a

written order was eventually issued indicating that “the

motion” was granted,

it was unclear which

motion was in fact grauted,

and

whether Petitioner

7

1H75 FIT

rNG

IS

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ONkEC~’CLED

PAPER

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ZUKO~SKIROGERS FLOOD MCARDLE 2154599057

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was permitted

to remove the record.

Because the Village was not permitted to audit the status

conference, it has no background from which~tounderstand this unclear order.

ARGUMENT

7.

The Hearing Officer’s rulings

have dcni~d

the Village

of,Cary

the

right

to

ft

participate in or audit the status

conferences.

have c~ompromisedthe Village’s

and

its citizens’

ability to remain informed regarding the status ofthe proceeding, and

have

inappropriately

limited

public information regarding

and

opportunities for participation in this proceeding

For

the reasons set forth

below,

the

VilIage1~ereby

appeals the Hearing Officer’s rulings,

and

requests that the

Board direct the

ilearing

Officer to

allow

the Village to participate in or audit

the

status

conferences in this matter

Further, given

the

demonstrated extensive public

interest in

this

proceeding,

the

Villagc.rcquests that th~

Board direct the hearing Officer to

schedule an

evening public comment period so as

to provide ap~ropriatcopportunities for public

participation in

the

Board hearing.

I

8.

Hearing

Notic.

Jt is

apparent that scheduling issues regarding the proposed

hearing before

this

Board were addressed at the July

14,

2003 status conference from which the

Village was excluded.

On July

15, 2003, the

Hearing

Officer

issued

a Notice ofTreating in this

matter, setting forth the proposed hearing schedule.

The notice contains a

barebones statement

merely identifying

the

hearIng dat;

time, arid location(lO:30 a.m. on August 14, 2003,

at the

Cary

Junior High Gymnasium.)

WThi1~the information provided in the notice is unremarkable,

what is significant is the

information which the notice fails

to

provide.

The Notice of Hearing

provides

no informati9n regarding hearing procedures, no information, regarding the proposed

order ofproceedings, ~~idno direction or guidance regarding the time forpublic

comment or

participation. Although

Section

1 07404 of the Board’s regulations governing these hearings

-4

THIS FILING IS PJ’~1NTF.DONRECYCI~~I)

PAPER

---

FROM

ZUK0~ISKI

ROGERS

FLOOD MCARDLE 8154599057

(TUE)08. 0503

12:34/ST. 12:21/NC,

3500000268

P

1j/:~O

requires that

‘Participants

may offer comrne~rtat a specifically determined time in the

proceeding..

,“

35

DL

Admin.

Code

I 07.404;’the Hearing Notice fails to

specify when public

comment

will

be heard. Furthermore,

the

notice does

not address or provide for evening hours

to

accommodate warJ~mg

members of the public who wish to

attend

and

participate in

the

hearing.

9.

Section. 101.110 of

the

Board’s regulations states

“The Board encourages public

participation in

aJ.1

of its proceedings.” In keep~rig

with this stated goal, in.

the

past, where a

s~ong

public interest

has been demonstrated, particularly in siting appeals, the Board has

accommodated public participatio.n by ~oldi~~gproceedings

in

the evening

to allow participation

by those who must work during business hours

Clearly, a different approach

has

been followed

here.

In the present matter, at

leastforly-two

public

comments have already been filed (both

from

residents of

Cary and

others), dernonslrating

significant public

interest in the proposed

hearing.

In many of these, comnmentcrs specifically request evening hours to facilitate their

participation. Yet

the

Hearing Officer’s

order does not address c~r

even acknowledge

the citizens’

I

concerns, provides

no

insiruction regarding public particIpation,

arid

makes

no

arrangements

for

an

after-hours comment period

Apparently,

it leaves citizens with no option but to

show up at

10:30 a.m. or potentially miss the opportunity to participate.

This

approach flies in the face of

the General Assembly’s stated intent

that

the

~nviro±imenta1 Protection Act

“increase public

participation in the task of protecting the enstironment,’

415

ILCS 5/2(a)(v),

as well

as the.

Board’s stated goals

and past

efforts to

encourage public participation in

its proceedings.

10.

Status

Conferences. The

Village has been informed that the Petitioner has

used

the statu.s conference as a forum to attack and impugn the motives ofthe Village of Gary.

These

attacks include

unfounded assertions that the Village will

seek

to

inappropriately supplement the

record with new facts no~

properly before the Board.

In fact, quite to the contrary, the Village

4

fl-115 FILING IS PRINTFDON RECYCLED PN’FR

---

• FROM

ZUKOTIISKI

ROGERS FLOOD MCARDLE 315459905~

(TUE)G3. 05

Q:3

12:35/ST.

2:21/NO. 35000C0268

P

12/30

believes that the record in this matter is exceptionally strong and fully

supports

the McHenry

County Board’s decision denying siting appró~’al.The strength ofthe record is due in large part

to the Village’s participation in

the proceeding below, including the presentati~ori

of a number of

expert witnesses.

In contrast to Petitioner’s unfounded assertions

regarding the Village’s

intcntioms, the Village intends

to

focus its eN~orts

In’ this proceeding on demonstratingthe

strength ofthe

existing recor±

0

11.

The Village’s participation

has

been limited by the

Hearing Officer’s

rulings

excluding it from status

conferences,

or~f~y

to have its positions

and

motives distorted by

Petitioner’s misrepresentations in its absence.

Exclusion

of the public from

status conferences is

being

used

by Petitioner to

attack the credibility of the objectors.

Opening such proceedings

to

the public

is

essential to

protecting them

fro’w misuse.

12.

Public Access

to ti

Record. As set fbrth

in the Viflage’s July II

,2003

Objection

to Plaintiff’s Motion

,

allowing Plaintiffs removal

of

exhibits

atid

records from

the Board

Office

/

could

significantly

impact

public participation by

making portions

of the record unavailable for

review by others, particularly since a prior Hearing Officer

ruling at the July

7,

2003 status

conference granted respondent McI-lenny County’s motion to

filed limited copies ofthe record,

resulting in

only a single copy of same cxhibi~s

being filed with the Board

Therefore, if the

record

is withdrawn, these materials will beüxjavailablc for review by the Board,

the Village or

its

citizens, and other members of the public, significantly hampering their ability to

participate

in the proceedings.

Such req~ova1of exhibits

and

records from the Board’s offices would

specifically

contraven?

Section

7(a) ofthe Act which requires

that

all flIes;

records,

and

data of

.the

Board shall he oj5~n

to reasonable public inspection...” 415 ILCS

5/7(a)

Ti-US FiLING IS PRINTED C1’4 RL~CYCLEDPAPER

---

FROM ZUKO~TSK1ROGERS

FLOOD MCARDLE

3!54599057

(TUE) 08. 05’ 0312 :35/ST. 12:21/NO. 3500000268

P

I

PRAYER

FOR

RELLEF

-

WHEREFORE, the Village ofCary requests that the Board reversethe Hearing Officer’s

determination denying the Village the right to participate in

or audit status

conferences, and

direct

the Hearing

Officer allow the Village to

participate in or audit future

status conferences in

this matter.

The

Village further requests that the Board direct the Hearing Officer to establish a

public comment

period outside of normal busines~hours as

part pfthe proposed hearing,

preferably

in

the evening~

so as to facilitate public participation by members ofthe public who

cannot

attend during

normal

business

h&urs.

Finally, it

is requested that the 1-Jearing Officer be

requested to

cIarii~’

his order regarding withdrawal of the record,

and,

to

the ex-tent such

clarification allows the record to be withdrawn, to

overrule such order to

the extent necessary to

ensure that a full

set

of r~cord

documcttts

rcm~ns

ayail~bJeat the Board’s offices.

Respectfully Submitted,

The YilJag~ofCary

/

Dated:

July28,

2003

•

By

~

0

One

o~’itsAtton~~s

Percy

L

Angelo

Patricia F.

Sharkey

Kevin G. Desharnais

Mayer, Brown, Rowe &

Maw

1 90

S. LaSalle Street

Chicago, IL

60603-3441

(312)

7~2-0600

6

TI-tIS

FILING

IS

PRINTED

ON

RECYCLF.D PAPER

---

FROM

ZUK0~\TSKI ROGERS FLOOD MCARDLE :~:15459~057 (TUE)

08.

05’

03

2:,35/ST. 12:21/NO. 3500000268

P

4/30

STATE OF ILLINOIS

0

-

)

SS:

COUNTY OF COOK

)

AFFIDAVIT

OF PERCY L. ANGELO

-

Percy L

Angelo, being

duly sworn

on oath:deposes and

states:

I

-

J

am

an

attorney representing the Village of Ca~y

in Illinois Pollution Control

Board matter ?CB

03-221.

1 previously represented the Village ofCary in the underlying

Pollution Control Facility Siting hearings held by the McHcnry County Board.

2

On July

7, 2003

1 contact~d

Bradley

Halloran, the Hearing

Office

in

this matter,

to request that the Village of Cary be permitted to listen to

status

conferences scheduled in this

matter.

I offered to come to

the

Board offices to

listen to those

status conferences if that would

facilitate matter&

•

3.

Mn Hafloran refused

to

allow the Vi11a~of Cary to listen to the status

conferences

and told

me that such auditing ~rasinappropriate,

as

private matters

and

attorney-

client privileged matters

cO’uld be

discu.ssed

I questit~iied

how an attorney-client privileged

matter could be discussed

between opposing parties ~beforethe

hearing

officer,

and stated that the

matters

discussed should be publicly available.

4.

Mr. Halloran

said it

was his

decision that

the

Village of

Cary

could not

listento

status

conferences, and

if

the Village

wanted? it could

appeal its decisiou to the Board.

Further Affiant Sayeth Naught.

Percy L.

-Angelo

Dated:

Subscribed

and sworn

to

before me this

~&day

of

July,

2003.

0

-

Notary Public

/

~ICIALSE~hI

Donna M. Draper

Nct~ry

PubUc, Sr~c

of

Uhnois

My

Commission

Exp.

03/2512006

T~llS

DOCUMENT

IS PF1J~\ITEDON P.EC~’CLED

PAPER

---

FROM ZUKO~TSKIROGERS

FLOOD MCARDLE ~154599O57

(TUE)08.

05

0:3

12:35/ST. 12:21/NO. :35OO0002F~ P

5/30

0

0

0

~0f

County of Cook

)

SS.

-

State ofillinois

)

AFFIDAVIT

OF

PATRICIA F. SHARKEY

I, Pa~icia

F. Sharkey.

an attorney licensed to practice law in Illinois and under

oath,

state as follows:

1.

1 am an attorney representing the Village of

Cary

in Illinois Pollution

Control

Board

matter

PCB 03-221. I previously represented the Village of

Cary in

the underlying Pollution

Control Facility Siting hearings held by the McHenry County Board.

2.

On behalf ofmy client, the Village of Cau-y, I had

a telephone conversation with Mr.

Bradley Halloran, the

assigned Hearing~Officer

in PCB 03~22l,on July 1,2003.

In that

telephone conversation7 I requested that the Village of

Cary

be allowed to participate

in

the

telephonic

status

conference scheduled for July 7, 2003. M:r.

Halloran.

denied that request stating

that only persons representing

parties in the appeal are

allowed to participate in

status

conferences

in

Pollution Control Facility Siting

appeal cases.

He further

stated that telephonic

status

calls

are

not open

to members of th~public

3.

Based o

-the~H-ea~g

Officer’s.

ruling, both~ndmy co-counsel representing the Village

of

Cary

hav~

been excluded from telephonic status~’confcrences

in which

the procedures for the

handling ofthe Board

record and the

dat; time,

place

and order ofthe Board hearings in PCB

03-221

have been discussed

and decided.

0

I

3

On

July

11,

2003,

I filed, an original and

nine

copies ofthe Village of

Cary’s

Objection to

the Petitioner’s Motion to Withdraw Exhibits

and Records

from the

Board

Offices with the

Pollution Control Board. The

Village’s Objection

was based

in large

part

on the fact that the

County filed with the Board

only one

copy

of

twenty two

over-sized exhibits

4

On or about July

17

2003,

I

read the

Board’s

Clerk’s Office On-Line

(~‘COOL”)

web

postings for PCB 03-221, and Ieame~

from the description, ofthe Hearing

Officer’s July

15,

2003

Order posted

on the web page that Petitioner’s Motion

to Withdraw Exhibits and

Records

from the

Board’s

Office had been

granted

As

the order itself

was not posted on the web,

I

called

the Clerk’s office to

vcrify this

and to obt~ia copy

and learn the substance of the ruling. I

requested that the

Hearing

Officer’s order be faxed to me. Iwas told that under Board

policy the

Clerk’s Office could not

fax

it to me.

I then requested that the

Clerk post the order on

the web

page,

as

are orders ofthe Board itself and

every other filing in Board cases.

The Clerk’s

staff

agreed to review this request with Board counsel,

and thereafter called

me

back and stated that

the

Board, as a policy,

did not post hearing Officer’s orders

and

would not do so in this case

even

in light of the significant public interest already expressed.

Finally, I was told

that the

Clerk’s staff

had heer~

instructed,

under Board policy, that the Village of

Cary

would

be charged

25

cents per pa~cfor c~piesof Hearing Officer orders.

IF-ris

FJLrNG

15 FRI~I

FED

ON

RDCYCLED

PAPFa

---

FROM ZUKO~SKIROGERS FLOOD MCAROLE 315459O05~

(TUE)C:3, 05

0:3

~2:35/ST,

2:21/NO. :~:500GGO2~:p

57:30

5.

Subsequently, I did

receive a copy

Of

the Hearing

Officer’s

July l5~

2003 nrder which,

on

the

subject of th.e Petitioner’s motion to

wIthd~’aw

the

record, states:

“On

July 9,2003, petitioners flied a motion tt

withdraw exhibits

and records.

On July

15,

2003.

the petitioners made an

oral

motion that the motion fiJed July 9, 2003,

be withdrawn. Petitioners’

motion is

~xanted.”

This

Order leaves

unclear

which

motion bad

been granted, the July

9, 2003 motion to

remove the record or the

July 15, 2003

oral motion

withdrawing the prior

motion. Because

I

and

i-nv co-counsel representing the Village were excluded from the Status Conference and thus were

unable to hear the discussion ofthese motions or the Hearing Officer’s ruling, I

have

no

background

information with

which to

clarify this

ruling arid advise

our client.

6.

On Monday, July 23, 2003 I cheo~ed

the

Board’s

web

page

and found the description of

the Hearing Officer’s July

15, 2003

ord~r

had been

changed. It

now reads:

“.

.granted

petitioner? oral motion

to withdraw their July 9, 2003

motion to withdraw exhibits

and

records;..

..~‘

7.

Based on the above series ofevents and what Ijjave been

told

is Board policy, I

and. my

co-courisel

and our client, the Village of

Cary,

remain uncertain as to

: F) the content ofthe

0

Hearing

Officer’s

July

15,

2003

ruling

on the

rem

ov~.l

6f

the record; 2) when there will be

an

opportunity for public comment at the August 14,

2(103

hearing;

3) whether the hearing will

include evening hours; and 4) whether the Petitione~

or Respondent will be presenting witnesses

or

new evidence. As a result,

I

and my co-counsel have

been hampered in our ability to prepare

forthe August 14, 2003

hearing.

0

(

Signed and

sworn before

i-ne

this.2K~ay

ofJuly. 2003.

1~/i

.

Notary

Public

1~I~~AL

SEAL”

Donna M. Draper

Notary

Pu~l~c,

S~at~

of I1Iir~o~s

~y

Comrniaion

E~p.

03/2312006

Further Affiarit Sayeth Not.

Sharkey

T~-flSFIliNG IS

P~Ui’~TED

ON

RECYCLED

PAPER

---

0

FROM ZUKO~ATSKIROGERS

FLpOD MCARDLE :3154599057

(TURbO.

05,03

12~:35/’ST,

2:21/NO. 3500000253

P

7,7:30

•

0 ‘

—

•~~0

•0I~,

.

•,

‘

•.

‘

‘‘t”I°i(’

‘o,

,.,~,0

~•‘‘‘~~‘

0’

ç~pIFICATE OF

SERVIç~

Percy L.

Angelo,

an attorney,

hereby

~rhfies

that a copy of the foregoing Notice of

Filing

and Village

of

Cary’s

Appeal of

Hearing

Officer Determination

and Request for Board

Direction

was

served on the persons listed below by

UPS

Ne,~t

Day Delivery on this 28th day

of

July, 2003:

David W. McArdle

Zukowski,

Rogers, Flood

& Mc~A.rdIe

50 Virginia Street

Crystal

Lake, IL

60014

Charles F.

Heisten

Iinshaw

and Culbertson

-

100 Park

Avenue, P.O. Box

1389

Rockford.Th

61105-1389

PercyL.

Angelo, Esq.

Pabicia F. Sharkey, Esg.

KeyinG.

Desharnais, Esq

Mayer

Brown,

Rowe & Maw LLP

190

South LaSaJJe

Street

Chicago, Illinois

60603

312-782-0600

1~

Percy

Angelo

0

THIS

DOCUMENT I-lAS

BEEN

PR1~4TEDON RECYCLED

PAPER

---

FROM ZUKO~\TSKI ROGERS FLOOD MOARDLE :3154599057

(TUE)CO. 0503

12:,36/S’T.

12:21/NO. 3500000268

P

l:V30

•

-

COPY

BEFOR~T~

ILLINOIS POLLUTION CONTROL

~BOARD

LOWE ThANSFER,

ll”TC. and

)

MARSHALL LOWE,

)

)

Co-Petitioners

)

)

V

)

PCB

No.

03-221

•

)

(Pollution

Control Board

COUNTY BOARD

OF MCRET’~Y

)

Siting Appeal)

COUNTY, ILLTh.IOIS,

)

)

Respondent.

)

NOTICE OF FILING

TO:

See

Attached

Certificate of Service

Please

take

notice that on

July

28,

2003,

we

filed with

the Illinois Pollution

Control

-

Board an original

and’nine

copies

ofthis

Notice

of~iling

and

Village of

Cary’s Appeal of

Hearing Officer Determinations

and

Request for Board Direction, copies

of which are

attached

and

hereby served upon you.

Dated: July 28, 2003

VILLAGE

OF

CARY

By:

One~ts~omeys~

Percy L. Angelo, Fsq.

Patricia F. Sharkey, Esq.

Kevin G. Desha.mais, Esq.

MAYER. BROWN.

ROV~?

& MAW

LLP

190

S. LaSalic

Street

Chicago, Illinois

60603

(312) 782-0600

TI-IrS DOCUMENT I-lAS

BEEN P)?JTh~TF.DON RJECYCLED PAPER

---

FROM ZUKO~TSXI ROGERS FLOOD MCARDLE

:31 5459g~57

(TUE) 08. 05’ 03:

12,36/ST.

12: 21/’N0. 3500000267

P

I 9/33

BEFORE THE

ILLINOIS POLLUTION

CONTROL

BOARD

LOWE r~NsFER;~c.

and

)

‘

MARSHALL LOWE.

)

Co-Petitiorier~,

)

)

PCB03-221

-

VS.

)

(Pollution Control Board

)

Siting Appeal)

COUNTY

BOARD OF MCHENRY

)

COUNTY, rLLrNors.

•

)

Respondent.

.

VILLAGE OF CARY’S RESPONSE

TQ

PETITIONERS’

MOTION TN

L1MN1~

The

Village of

Cary (“Vlll~ge”)

is a public body representing its

interests

and

those of

its

cilizcns in this proceeding.

~c

proposed Transfer S~ati~n

site is located directly

adjacent to the

•

Village of

Caxy

and

in

close proximity to

the homes

~fniany Cary residents

On behalfof the

residents of the Village ofCary.

arid

by

and

through the 1a~vyersè’mployed

by

the Village to

represent

us

citizens

in this proceeding, the

Village

hereby provides

its

responsc to

the

Petitioners’

Motion in Limine.

1.

Given

the unprecedented reliefreque~ed

by

this motion and the potential that a

ruling

on

this

motion could limit

the

record

in this care

in cortiravenrjori of law~

this motion

should

be

decided

by

the

Board

rather than the Hearing Officer.

2.

Pethioner’s

motion is

a

self-serving

attempt to limit public participation

in this

procccding to Petitioner’s advantage in

contravention ofthe Environmental

Protection Act

and

the Board~s~iIes

wh~ch

encourage public pa~icipationin all Board

proceedings.

The General

Assembly’s

stated

inlent

under

the Environmental

Protection Act

is to

“iflcrea5c public

participation in

ihc na~kofprorccting the environrnern~’4l5IUCS

5/2(a)(v)

Section

)Ol,l!0

of

Ti-ns

OOCIJMENT

HAS

BEEN PRINTED

ON

RF.C’~’Ci2D

PAPER

~~BIT

C

-1-

to

1’bt3.~1

to S~Jce

---

FROM ZUKO~SKIROGERS FLOOD MOARDLE ~I54599057

(TUE) 08. 9503

12:37/ST. I2,’~I/N0,

O000O~7

P

2’J/~O

the

Board’s regulations states

“The

Board encourages public

participation

in

all

outs

procecdirigs.’~

35

IlL

Admin

Code

101 .310 ~ lri the face of this statutory and regulatory

mandate encouroging public participation,

as

well

as the

Board’s

own

order

in

this

ease arid

scores of other

siting cases, Petitioner points to no

statutes, regulations or case law which give

him

a right to

this

unpreccdented

exclusion

and/or d~irIimiratia~son oral statements

by the

public.

3.

In

addition to offering

no legal

support for this unpreecdented

request, Petitioner

offers no evidence suggesting there

is a~eed

to

handle this

hearing any differen~y

than ~y

of

the

scores

of other siting hearings the

Board has held under Section 40i.

There is no factual

basis for believing that the

citizens attending this hearing will

comment on matters outside the

record.

On

the contra~,

the

record

in this ~se

demonstrates

that the ci~zensin

large

patt

rnad~

the record before

the

County

Board

—

including the

iestImony

in the record of numerous highly

pertinent expert witnesses

presented

by the

Village and other citizens.

Citizens

who actively

participated in the Coun~Board proceeding have

no need

or reason to

go outside the record in

this case to

find support

for the

County

board’s

decision.

These citizens are well versed in the

record ~d

have evefl right to highlight for the board

the portions of

the

record that support the

County’s decision

—

as

surely the Petitioner

h~sa right

to

highlight any portions of the record

he

believes

the Board should

focus on.

4.

While po~rayingthis motion

as based

on a concem that the Board will

be

confused

in the applJcation. of the manifest weight standard if cnizens are allowed to make oral

comments

or speak tqo long,

the Petitioner’s motion requests relief

that

goes

far

beyond

admoaishing

citizens ~and aflyone else) to l~mit

their

comments

io

the

cxt5ti~g

record

Rather,

Fcti~ioner

requests that

the Board exclude

oral commonts

by

the

public

altogether—

in a blanket

Titis

DOCUMENT

HAS SEEN

PRINTED

ON

RFCYCLED

PAPER

---

F~0M

ZUK0~7KIROCERO FLOOD iylO~RDL3:l~4~9~o~7

(TUE)o O~

0~

l~ 7/J~ 2

~l/~O

~000OQ~

P

/~0

ruling.

P~titioncr

also attempts

to

limit

even

the

reading of

writt~n

statements to

five minutes

on

the assumption that a hundred dtizens

will

‘~ianto comment.

~ut

there

is no

evidence that a

hundred of citizens will

warn

to make oral statemenTs

at this

hearing.

Furthermore,

given

the

fact

that the record

below is voluminous,

limiting comment

on

it to five minutes.woilld be

counter

productive.

To

do

so will

force members

of

the pubflc to

make only

genersi comments, rather

than provide specific comments ticd

to the record.

The

Village of

Cary

intends to

provide

focused, record-oriented

comments which will necessarily

take

more than i5ve minutes.

These

detailed comments

may

allow others to s~orten

their

comments

Bu~

to

arbi~ariIy

limit

the

Village’s

or

any other citizen’s ccrnmcnrs

to five minutes

could jeopardize

the record

in

this

~rocce4in.g7

-

,.

5

As aplethora of Board siting opinions de’monszrate, manifest weight of

rite

evidence is

a

standard

of

reviCvv

regularly applied

by the Board.

The Board

ha-s

been conducting

hearings under

this

standard

since

Section

40.1

was enacted.

Cdi~traryto Petitioner’s apparent

1•

assumption~the

Board

15

perfectly

capable of assigning bppropriate weight

to

information in the

record

and

info~ationpresented at hearing.

It

need

not

be shielded from public comment

in

order to

do

itsjob.

6.

Petitioner points to

a few cases~

and only one recent case, in which the Appellate

Court over r~nedthe Board’s decision in a siting

case as

against the manifest

weight.

But none

of these Appellate Coup reversals

were based

on a finding that

the Board

gave improper weight

to

a public comment made

in a

Section 40.

1

hearing.

The

fact that the Appellate Coup

ha

disagreed with the

Board in a handfiu! of cases on

where

to

draw the

line using

the manifest

weight standard

does r~tsupport the conclusion that

the

l-3oard

must

stop

accepting puHtc

corrrnient

at

its

hearings.

Furthermore, should

the Petitioner believe

that a public

comment

is

THIS

DOCUME\T

HAS

AEEN

PRIr~TI~D

ON

REcYCI.ED

PAPER

-3-

---

FROM

ZUKOTThEKI

ROGERS

FLOOD

MCARDLE 6l5459905~

(TUE):. 0503

12:37/ST.

12:21/NO.

:35cI0CO2~t;

P

2~7:~

outside

the

record. he h~

ever-I

opportunity

to

point that

out

to

the

Hoard

in his brief,

There is

s1mply

no support for the proposition that the Board

c~not

appropriately apply

the

standard or

review or that

allowing public

comment will somehow t~ntthe record.

7

The Board encourages public participation in

its proceedings, and has always

allowed public comment at hearings

on.

siting

appeals.

Typically, members

of the public arc

gi-ven

significant leeway

in

presenting their cothfl~ents.Lu

ourreview of Board siting cases, we

found no

case in which the

Board entered a

blanket

order

excluding public comment in Board

sidng appeal

hearings

—

and Petiiioncr h~pointed

to none.

We

also

found no case in

which the

Board

limited public comment to

the “fundamental fairness” issue

-~

and again Petitioner

has

pointed to none.

Finally, contrary to Petitioner’s assertion, the

Board’s taking of public

corr~menton whether the

record supports

th~

local siting body’s

deci~ior

has never

been

construed as reversible error

—

arid

Petitioner has pointed to

no

case

in

which it has.

8.

In fact,

there is

very good reason the Hearing

Officer should

not

attempt to limit

c

public comment

in

the

hearing

process.

The far

greatcr~

risk

of

reversible

error

is that

the

Hearing

Officer does

2S

Petitioner requests

and

cuts-off public comment in contravention of the

statute

and regulations. or, ~r hearing, from

the bench,

without the benefit of eleven

days of

County Board

hearing transcripts

before him, cuts-off

valid

public comment

actually

highlighting

the record

or

providing

legal

argumeiiton

facts

in

the record..

This would

he

reversible error.

The record

in

this

case is exten~iveand the Village and individual

citizens

from

both

Cary

and-other

neighboring communities participated

inevery day of

the

eleven

County

Board hearings.

We submit that the likelihood that the Hearing Officer

will mistakenly cut-off

peninent public coni~~nt

is greater than the risk

that

the

Board will be

misled

in the

application

of

ts

5tandard

of

review because a member of the public

strays

from the record.

T)-H~

DOCUMENI HAS

BEEN

PRINTaD

ON

RF:CYCLED

PAPER

-4-

---

FROM

ZUKOTATSKI

R0GEF~S

FLOOD

IIIICARDLE

8154599057

(TUE)O:.

05

03

12:33/8?.

2:21/NO,

:~5O0O002Fp,

p

(7~

9.

Finally, the Village fully agrec~

that

the

standard

of review here

is manifest

weight and that

the Board is limited

to the record presented to

the County Board.

T~e

Village

would

welcome art instruction from

the hearing officer at hearing to

ho/h

the

parties and the

public regardIng the

Board’s application of the standard of review and the need to

focus on

information contained in

the record.

-

WHE~FORE.Petitioner’s assertions

~e

without

merit and

its Motion should

be denied.

Respectfully Submitted,

The Village of Cary

Dated

August 4,2003

Th?

________

________

o~jt~

A~orney~

Pcrcy

L.

Angelo

Patricia F

Sharkey

Kevin

G. Deshamais

Mayer, Brown, Rowe

&

Maw,

LLP

190 S.

LaSafle Street

Chicago,

IL 60603-3441

(312)

782-0600

THN DOCUMCNr R-~s

~EN

PRtNTED ON

RECYCLED

PAPF~R

-5-

---

FROM

ZUKO’t~SKI

ROGERS

FLOOD

MCARDLE 3I54599057

(TUE)03.

0503

l2;38/ST.

12:21/NO. 3500000253

P 24/:30

CERTIFICATE OF

~Tj~

Patricia

F.

Sharkey,

art attorney, hereby

,certifies that

a copy of the

foregoing Notice

of

Filing and Village

of

Cary’s

Response to Petitioners’

Motion

in

Lirnine was served on the

persons listed below by facsimile

and

by depositing

same

in

the US. Mail at or before 5:00 p.m.

art

this 4th

day of August 2003.

David

W.

McArdle

Zukowski,

Rogers, Flood & McArdle

50

Virginia Street

Crystal Lake, IL

6001 4

Facsimile:

815-459-9057

Hearing Officer

Bradley

P.

-laflorari

Illinois Pollution Control Board

fairies

R.

Thompson Center

Suite

11-500

1 00 West

Randolph Street

Chicago

IL

60601

Facsimile: 31281.43669

Patricia F. Sharkey

Attorney for Village

of Cars’

Mayer,

Brown,

Rowe & Maw LLF

190

South LaSalle

Street

Chicago, Illinois

60603

312-787~-0600

1’

Charles F. Heisten

Hinshaw

and Cu,lbertson

.100

Park

Avenue, P.O.

Box

1389

Rockford. IL

61105-1389

Facsimile:

815-963-9989

THIS DOCUMENT HAS

SEEN

PftINTED

ON ~SECYCLED

PAPER

---

FROM

ZUKO~\TSK1 ROGERS FLOOD MCARDLE 3154599057

(TUR

03.

05,0312:33/ST.

12:21/NO.

3500000256

P 25(30

‘I

—

BEFORE TI-XE

tLLJNOIS

POLLUTION CONTROL .BOA~I)

LOWE TRANSFER. INC.

and

MARSHALL LOWE.

))

Co-Petitioners,

)

)

PCB No.

03-22 1

(Pollution Control Board

COUNTY

BOARD

OF

MCHENRY

Siting Appeal)

COUNTY,

ILLINOIS,

)

Respondcrtt

.

)

N_QTICEOFFJLIN~

TO:

See A~ached

Certificate ofService

Please take notice that

on August

4,

~O03,

we fil~d

with

the I1lino~isPollution Control

Board an original

and nine’ebpies

of

this Nodce ofFiling

and

Village of

Cary’s

Response to

Petitioners’

Motion

itt

Limnine,

copies of

which are attached and

hereby served upon

you.

Dated: August 4, 2003

~1LAOE

OF CARY

By:

One

~

Percy

L. Angelo, Esq

Patricia F.

Sharkey, Esq

Kevin 0.

Desharnais,

Esq.

MAYER, BROWN,

ROWE

& MAW

LLP

,

190

S.

LaSalie

Street

Chicago. Illinois

60603

(312) 7~2-0600

IHIS

DOCUMENT

HAS

BEEN PI~1NTED

OtJ RECYCLED

PAPER

---

FROM

ZUKO~\TSKi

ROGERS

FLOOD I~CARDL2

3J5~59~057(TUE)03.

05

03.

2:3,3/ST.

2:21

‘NO. 350000025:3

p

26/30

~ocL ~t.

ri~~iithç

~c•~rarr-~o

C1rk’sOffic~On-JJp,~g

...

~ul

7ex~

Documeg-it5e~arch

.,.

FuU Text Document S~arèh

Home

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~)

—

~

Village of Carys Appeal

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I

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OffIcer

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for

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,~,.

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~ ricIC~~T,/~r-fernal/resujts

~rJl.asp

8/5/03

---

FROM

ZUKOT/~SKI ROGERS FLOOD MCARDLE 3154599057

(TUE)0g,

05

03:

12:3:9/ST.

2:21/NO, 3:503000253 P

27/30

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

LOWE T1~ANSFER,

INC.

and

MARSHALL

LOWE,

Co-Petitioners,

COUNTY

BOARD

OF

McHENRY

COUNTY, ILLINOIS

Respondents.

vs.

)

)-

)

No. PCB 03-221

)

(Pollution Control Facijity Siting Appeal)

)

)

0

)

~TICF

OF FILING

TO:

See List

Referenced

in Proof of Service

PLEASE

TAKE NOTICE that

on

August

5,

2003,

we

flIed with the

Illinois Pollution

Control Board, the attached

Lowe

Transfer,

Inc.

and

Marshall Lowe’s

REPLY

TO

THE

COUNTY

J3OARJ~

OF MCHENRY$ RESPONSE

TO MOTION

IN LIMINE

in the above

entitled matter.

LOWE TBANSFER, INC. and

MARSHALL

David W. McArdfe

By:

PROOF OF SERVI

I,

a non-attorney,

on

oath s~te

that I

served

the

foregoing Reply

on

the following parties by

d.epositi.ng

same

th

thcU.

S. mail on

this

5~

day

of

August,

2003

and via fax

on the

SthdayofAugust,

2003:

Arjgrney

for Cowztv

3oae~j~

~ç,~j~nry

Cqy~ty,j7UnoL~

Charles

F.

1-Tejatert

Hinshaw

and

Culbertson

100

Park Aveirne,

Pfl.

Box 1389

Rockford,. IL 61105-1389

815-490-4900;FAX 815/963-9989

Heari~ig

Officer

Bradley

P.

Halloran

Illinois Pollution Control

Board

James R. Thompson Center. Suite 11-500

100 West

Baridolph

Sueet

Chios

,1L60601

312-8

4-8

17; AX3 2/814-3669

I,

‘

-

-~

4

‘o&’;-’’~.~i

,

~

~

JQ~LJ4E

~

h’~ot?r~

P~jkgc,~if~

~,?

FI~

My

Com,,il~Jøp

David W.

McArd1~

.

~

Atton,ey

Regisiration No-

06182127

ZIJKOWSKI

ROGERS FLOOD &

MCARDLE

50 Virginia Street,..

Ctystal

Lake,

IIlin~is60014

(815)459-2050

This

document is printed on recycled

---

FROM ZUKO~tiSKI ROG7RS

FLOOD MCARDLE 3154599057

(TUE)

08.

05

Q3:

12:39/ST.

2:2)/NO,

3503000253

P

28/~0

BEFORE THE ILLINOIS

POLLUTION CONTROL

BOARD

LOWE TRANSFER, INC. and

)

MARSHALL LOWE,

)

Co-Petitioners,

)

No.

PCB 03-221

)

vs.

)

(Pollution Control Facility

)

-

Siting Appeal)

COUNTYBOARD

OF McHENRY

)

COUNTY,

ILLINOIS

)

Respondent

)

CO-PETI’J’LONERS’

REPLY

TO THE

COUNTYBOARD OF MCHENRY’S

RESY_ONSE

10

MOIION IN LIMIN±~

Co-Petitioners,

Lowe

Transfer,

Inc.

and Marsh4l

Lowe (“Lowe”), by and through

its

attorneys,

Zukowski, Rogers,

Flood

& M~Ardle,resp~ctfu1lyrequest t~tePollution

Control Board

deny the County

Board c~McHenxy’s.(thc

“Count’~rBoard”)

Response to Motion in Liniine in

this siting appeaL

In

support

of

its

reply,

Lowe

states

as follows:

1.

On July 28,

2003,

L6we

flied a

Motion

in

Lirniric

in

this siting

appeaL

2.

The Motion in Limine requested the Pollution Control Board enter an order, in

Jimine, restricting the scope ofthehearing to be conductedon August 14, 2003,

to

preclude

Section 101.628(a) oraL statements or. in the alternative, to

limit

the time for Section 101.628(a)

oral statements, if allowed, to five

minutes

per participant in theevent the total number of

participants is 25

ormore

and,

additionally, limit

~jJ,

Section 101.628 statements by parties

arid

participants to

the record generated in the proceeding before the County Boaxd.

The CountyBoard,

in its response,misreads theBoard’s

rules

ofprocedure. The

CountyBoard argues that

the

Board rules

“explicitly provides that participants whowish to

make

TI-USDOCUMENT IS PRINTEDON

R.ECYCLEID

PAPER

---

FROM ZUKOi~KIROGERS

FLOOD MOARDLE

~1~9O57

(TUE)r

050

~

~/IT

02)/NO

~flnrro

F

P

~/~0

comments will be allowed

the opportunity

to do so”.

County’s

Response

to Motion in Limine, p.

I

4.

Yet what Section 107,404

really states

is:

‘Persons

who are

not

parties

as set

forth

in

Section

107202

of this

Part are considered participants

and

will h~we

heari~~

participation

nght.s

as deterjnined by

the hearjj~officer

in

accordance

with

35

1111.

Adrn.

Code 101 .62g.

(Emphasis

added.)

5.

Section 101.628(a) in

pertinent

part

states:

“Oral Statements.

The hearing officer ~

permit a participant to

make

oral statements o~therecord when

time, facilities

and

cozicerns for a_clear and c~rncIse

bearin~

record so

allow.

6.

Section l0l.628(c)(2)

states:

“All

public. comments must~

present arguments

or

comments based

on the evidence contained in the rec~r4.”

7.

Lowe’s siting appeal is based solely on

the

manifest weight of the evidence in the

record regarding Criteria 2, 3

and

S.~

8.

The

County

Board asserts,

in

its response, that the “proposition that the Pollution

Control

Board must review the record

developed

at

the

local siting

hearing

under

a manifest

weight ofthe

evidence

standard

is

simply

ir~relevant”. County’s Response to Motion

in Limine,

p.4.

9.

Not

only

is the as to the manifest weight of

the

evidence

standard relevant to

statements

made

at the public hearing, it is the only standard that can be applied in

this

siting

appeal.

2

THIS DOCUMENT

IS PRINTED ON RECYCLED PAPl~R

---

FROM

ZUKO~\TSKI

ROGERS

FLOOD

MCARDLE

31545J9057

(TUE)O6.

O~

UT:

12:30/ST.

12:21/NO.

35i900002r33

p

:~j/2O

10.

The record in this

siting approval application is voluminous,

“Unlimited public

comment”,

as proposed by the

County

Board~

is contrary to

the Board’s rules

“for a

clear and

concise

hearing record.

11.

Lowe’s

Motion in Limi.ne was

a simple request

given

the nature

of

th.is

siting

appeal to restrict

oral

arguments

to the parties or lijnitpublic comment to

a reasonable time

frame

and to confine the public comment to the record

and

prevent the presentation of evidence

outside of the record.

WHEREFORE,

Co-Petitioners~LoweTransfer, Inc.

and Marshall Lowe,

request that the

County Board ofMcHenry’s Response to Motion in Liminc be denied.

F~espectfullysubmitted,

LOWE TPANSP~R,

INC. arid

MARSHALL

LOWE

‘By:

zukowski, Rogers,

Flood & McArdle

By:

(~)~~-~1

~

~

David W.

McArdle

David

W.

McArdle

AttorneyNo:

061S2127

ZUKOWSKL

ROGERS,

FLOOD &

MCARDLE

Attorney

for Lowe Transfer.

mc, and

Marshall

Lowe

50

Virginia

Street

Crystal

Lake,

Illinois

60014

815/459-2050;

815/459-9057

(fax)

3

TElLS

DOCUMENT IS

PRINTED

ON RECYCLED

PAPER

---

FROM

ZUKO~SKI ROGERS

FLOOD

MCARDLE

:3154599057

(TUE)03. 0503

2:32/ST.

12:21/NO.

3500000253

P

/30

LAWOFFICES

ZUKOWSKI, ROGE~VS,FLOOD &

McARDLE

50

Virginia

Street

I

Ciystal

Lake. Illiriws

‘50014

(815) 459-2050

FAX(815)459-9057

CLET~’~

OFI~7c~

FAX

MESSAGE

DATE:

August

5,

2003

STATE OF ILLiNOIS

ollu tion Control Board

TO:

Charles F. Helsteri

815/963-9989

TO:

&adileyP.

Halloran

312/814-3669

FROM:

David W.

McArdle

NOTE:

THIS

TRANSMISSION CONTAINS

PAGE(S),

INCLUDING

THIS COVER

SHEET.

IF

YOU DO

NOT

RECEIVE

ALL

OF

THE

ABOVE,

&fk

IF

TIlE

QUALITY

OF

THE

TRANSMISSION

IS

POOR,

PLEASE

TELEPHONE

HELEN

AT (815)459~2O50.

IMPORTANT: IHJ$

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AND MAY

CO~TAIN

INFORMATIQN

THAT

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CONTIDE~JLsL,

D1OP.~EXEMPTFROMDISCLQSUREUNDE~.APPLICABLE

LAW.

IF

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~

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