RECEiVED
BEFORE THE
CLERK’S OFFW~P
ILLINOIS POLLUTION CONTROL BOARD
AUG
7 2003
LOWE TRANSFER, INC. and
)
STATE OF ILLINOIS
MARSHALL
LOWE,
)
Pollution
Control 3oard
)
Co-Petitioners,
)
)
V.
)
PCBNo.03-221
)
(Pollution Control Board
COUNTY BOARD OF MCHENRY
)
Siting Appeal)
COUNTY, ILLINOIS,
)
)
Respondent.
)
NOTICE OF FILING
TO:
See Attached Certificate of Service
Please take notice that on August 6, 2003, we filed with the Illinois Pollution Control
Board an original and nine copies ofthis Notice of Filing and Public Comment ofthe Village of
Cary With Respect to Lowe’s Motion to Strike and Motion for Sanctions, copies ofwhich are
attached and hereby served upon you.
Dated: August 6, 2003
VILLAGE OF CARY
By:
L.
One ofith Attorneys
~9
Percy L. Angelo, Esq.
Patricia F. Sharkey, Esq.
Kevin G. Deshamais, Esq.
MAYER, BROWN, ROWE & MAW LLP
190 5. LaSalle Street
Chicago, Illinois 60603
(312) 782-0600
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER
0
RECEiVED
CLFRK’S
“~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AUG
7 2003
LOWE TRANSFER, INC. and
)
MARSHALL LOWE,
)
STATE OF ILLINOIS
Pollution Control Board
Co-Petitioners,
)
)
PCBO3-221
vs.
)
(Pollution Control Board
)
Siting Appeal)
COUNTY BOARD OF MCHENRY
)
COUNTY, ILLINOIS,
)
)
Respondent.
)
PUBLIC COMMENT OF THE VILLAGE OF CARY WITH RESPECT TO
LOWE’S MOTION TO
STRIKE
AND MOTION FOR SANCTIONS
The Village of Cary by its attorneys furnishes this public comment in opposition to Lowe
Transfer, Inc. and Marshall Lowe’s (“Lowe”) Motion to Strike Village ofCary’s Response to
Petitioners’ Motion in Limine and Motion for Sanctions Against the Village ofCary (“Sanctions
Motion”), and in support thereofstates as follows:
1.
Lowe has filed a motion in limine seeking to significantly limit public
participation in this proceeding.
2.
The Village ofCary filed a public comment pointing out that it would be
improper for the Board or its hearing officer to restrict public comment in the manner requested
by Lowe.
3.
Lowe has now moved for sanctions against the Village ofCary for pointing out
the impropriety ofthe Lowe request for limitations on public comments, arguing in effect that
the public has no right to comment on the degree ofpublic comment allowed.
4.
Lowe did not serve the Village ofCary with a copy ofits request for sanctions
against the Village, apparently assuming that it is appropriate to sanction Cary essentially ex
parte.
THIS DOCUMENT IS FILED ON RECYCLED PAPER
5.
Similarly, Cary has been barred even from auditing status conferences at which
the process ofthe hearing and Lowe’s motions have been discussed. Lowe claims Cary sought
to participate as a party in such status conferences. Sanction Motion at ¶ 7. This is incorrect.
The record is clear that Cary’s request included simply the ability to audit, to hear what was
being said, so it could prepare itself for public participation. Village of Cary’s Appeal of
Hearing Officer Determination and Request for Board Directions. (Cary has already identified
ambiguities and inaccuracies in the reports ofthe hearing officer’s orders issued following the
status conferences. Without hearing the status discussion it has not been possible to understand
the status ofthis case from the Board’s website alone.)
6.
Between the hearing officer’s order barring Cary from hearing status conferences,
and Lowe’s motion in limine to limit public participation and its motion for sanctions to prevent
a public comment on its motion in limine, Lowe would make a mockery ofthe statutory and
regulatory requirements for public participation. Lowe wants to bar the public from hearing
what is happening or commenting orally or in writing. Public participation when the public can’t
hear, see, speak or write is not public participation.
7.
There is no Board nile, and Lowe cites none, denying a member ofthe public the
right to file a public comment on an issue which directly affects it, such as a motion to
significantly limit public comment.
8.
Lowe’s ad hominem comments about Cary’s attorney are inappropriate
—
and
misdirected.1 The ideathat an amicus curiae should not delay a matter is unexceptional, and not
In fact, Cary’s attorney has been participating in Board proceedings since 1972, and has never been
involved in a proceeding where the public was barred from hearing what was happening or commenting on the
scope of its participation. In fact the Board has always been welcoming of public participation.
THIS DOCUMENT IS FILED ON RECYCLED PAPER
in any way inconsistent with the Village’s comments in this case. In fact, it is inefficient not to
consider public comment on the scope ofpublic participation prior to the hearing.
9.
It is unclear what “repeated” and “flagrant” abuses Lowe is referring to in his
motion as a basis for sanctions. Cary, pursuant to indication by the hearing officer that his denial
of access to hear the status conference could be appealed to the Board, simply did as the hearing
officer suggested. It filed a public comment on the scope ofpublic participation. Apparently
Lowe will be happy only if the public is kept in the dark about procedures and then muzzled at
the hearing on this matter. That may be more efficient for Lowe in trying to overturn McHenry
County’s denial ofhis siting, but it is totally contrary to the public participation requirements of
the Environmental Protection Act and the Board’s rules.
10.
Accordingly, Cary believes that Lowe’s motion for sanctions and to strike its
response to Lowe’s motion in limine should be denied.
Respectfully Submitted,
The Village of Cary
Dated: August 6, 2003
By _______________________
One o~its Attorn s
Percy L. Angelo
Patricia F. Sharkey
Kevin G. Desharnais
Mayer, Brown, Rowe & Maw, LLP
190 S. LaSalle Street
Chicago, IL 60603-3441
(312) 782-0600
THIS DOCUMENT IS FILED ON RECYCLED PAPER
CERTIFICATE OF SERVICE
Percy L. Angelo, an attorney, hereby certifies that a copy ofthe foregoing Notice of
Filing and Village of Cary’s Response to Petitioners’ Motion in Limine was served on the
persons listed below by depositing same in the U.S. Mail at or before 5:00 p.m. on this 6th day
of August 2003.
David W. McArdle
Zukowski, Rogers, Flood & McArdle
50 Virginia Street
Crystal Lake, IL 60014
Facsimile:
815-459-9057
Hearing Officer
Bradley P. Halloran
Illinois Pollution Control Board
James R. Thompson Center
Suite 11-500
100 West Randolph Street
Chicago, IL 60601
Facsimile: 312-814-3669
Percy L. Angelo
Attorney for Village of Cary
Mayer, Brown, Rowe & Maw LLP
190 South LaSalle Street
Chicago, Illinois 60603
312-782-0600
Charles F. Helsten
Hinshaw and Culbertson
100 Park Avenue, P.O. Box 1389
Rockford, IL 61105-1389
Facsimile: 815-963-9989
•~LL7L~4~
Percy L. Angelo
THIS DOCUMENT HAS BEEN PRINTED ON RECYCLED PAPER