fr
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR~EcEJvED
CLERK’S OFFICE
CITIZENS AGAINST LANDFILL EXPANSION,
)
AUG
.2
7
2003
Petitioner,
STATE OF ILLINOIS
)
Pollution
Control Board
vS.
)
No.
PCB 03-236
AMERICAN DISPOSAL SERVICES OF ILLINOIS,
INC.
and LIVINGSTON
COUNTY BOARD,
)
LIVINGSTON COUNTY,
ILUNOIS,
.
)
)
Respondents.
)
NOTICE
OF
FILING
To:
See Attached Service List
PLEASE TAKE NOTICE that on August27, 2003,
1 caused to be filed by first class
mail with
the
Illinois Pollution Control
Board
an original and
four copies of the
attached
Respondent,
Livingston
County
Board’s
Livingston
County,
Illinois,
Response
to
Petitioner’s Motion to Compel.
LIViNGSTON
COUNTY BOARD
Larry
M. Clark
PROOEOESERVIQE
The undersigned, under oath, states that on August 27, 2003,
he served
a true and
correct
copy of the foregoing
Notice of
Filing
together with
the
attached
Respondent,
Livingston County Board’s,
Livingston County,
Illinois, Response to Petitioner’s Motion to
Compel, uponthe following persons, atthe addresses indicated, byfirst class mail and that
prior to 3:00 p~m.
on August 27, 2003, said Responseto Petitioner’s Motion to Compelwas
sent by email to the
Hearing Officer and counsel for
the parties,
at the
email
addresses
indicated:
Dorothy M. Gunri,
Clerk
Illinois Pollution Control Board
James R.
Thompson Center
100 W Randolph Suite 11-500
Chicago IL 60601-3218
George Mueller
George Mueller PC
501
State Street.
Ottawa
IL 61350
gmueller~mchsi.com
Carolyn
K.
Gerwin
705
South Locust St
Pontiac IL 61764
gerwin~mchsi.com
Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
James
R. Thompson
Center
100W
Randolph, Suite
11-500
Chicago, IL 60601
halloran@ipcb.state.ii.us
Douglas
E.
Lee
Ehrmann Gehlbach
Badger & Lee
P0 Box 447
Dixon IL 61021
Iee©egbbl.com
Claire A. Manning
Posegate
&
Denes,
P.C.
111 N
Sixth
Street
Springfield,
IL 62705
Claire~posengate-denes.com
C. Thomas Blakem~n
Blakeman, Schrock & Bauknecht,
Ltd.
307 West Washington Street
Pontiac, IL 61764
tom@sbsltd.com
Subscribed and sworn to before me, a Notary Public, this
27th
day of August, 2003.
Notary Public
C. Thomas Blakeman
Attorney at Law
307 West Washington Street
Pontiac, IL 61764
Telephone: 815-844-6177
Fax: 815-842-3288
LarryM. Clark
Attorney at Law
700 N Lake St, Suite 200
Mundelein, IL 60060
Telephone: 847-949-9396
Fax: 847-949-9427
BEFORE THE
JLLINOIS
POLLUTION CONTROL BOARD
Citizens Against Landfill Expansion,
)
Petitioners,
)
)
vs.
)
.~
PCB 03-236
)
(Pollution
Control Facility Siting Appeal)
American D~sposai
Services of Illinois, Inc~,)
Respondent.
)
)
and
)
Livingston County Board,
Livingston
)
county,
Illinois,
)
Respondent
RE~P0NDENT
LIVINGSTON
COUNTY BOARD’S.
LIVLNGSTON COUNTY
tLLINOIS,
IIE$..e9NSE TO
PETITIONER’S
MOTION TO
COMPEL
NOW
COMES,
the
Livingston
County
Board,
Livingston
County,
Illinois,
by
its
attorneys,
Larry
M.
Clark
and
C.
Thomas
Blakeman,
and for Response to
Petitioner’s
Motion To Compel, states as follows:
1.
That Petitioner alleges thatthe Livingston County Board should be required
to answer Interrogatory Questions
1-4 because such questions are alleged
to bear
upon the issue of fundamental fairness ofthe Petition (sic).
2,
The
issue
of fundamental fairness goes
to
the fact
of whether
the public
hearing
was
conducted
in
such
a
manner that the
Petitioner
and
other
interested
parties
had
an
opportunity to
participate
in
such
hearing
and
whether the County Board Members were
biased in reaching their decision.
3.
None ofthe questions posed in Interrogatories 1-4 go to the hearing process
itself.
Rather, each
and every interrogatory was posed to go into the
mind
of the
County
Board
members
so as to
determine what they
reviewed
or
“studied”
prior to their vote on the
merits
of the
application
for
local
siting
approval.
Respondent
will
address
each
Interrogatory to
illustrate
said
Purpose.
4.
Interrogatory No.
1
asks forthe
Board
Members to identify each document
they reviewed
(“read or studied”) prior
to
their vote.
Clearly this question
is
Pagelof7
an attempt to
determine what each
Board Member relied
upon
in
making
their decision(s).
This
line
of inquiry
is
patently
improper.
See Ashy
jr~guois
County Boa~,
PCB 87-29 (1987) where the Pollution Control Board
states in response to a question to the County BoardMembers as to whether
the “County Board Members ‘lied read the transcript’.
Quite simply put, that
question should never have been asked.
There exists a substantial body of
case
law supporting the
principle that one cannot
invade
the
mind
of the
decision
maker.”
5.
Interrogatory
No.
2
similarly
attempts
to
ascertain
when
and
where
the
material was
reviewed.
It again simply attempts to invade
the
mind of the
decision
maker.
Furthermore
it
cannot
and will
not
lead to any
relevant
information.
6.
Interrogatory
No.
3
is
an
attempt
to
ascertain
which
Board
Members
attended
the
public hearings.
The
basis
upon
which each County Board
Member
makes
their
decision
is
not
subject
to
inquiry.
Rather
it
is
appropriate onlythat each Board Member have an opportunity to review the
transcript and the
record,
not whether or how they did
so.
7.
Interrogatory No. 4 is a similar question in that it can not lead to any relevant
information
other than to be used to
argue
that
the Board Members made
their decisions on one or more basis thatthe Petitioner does not agree with.
Any answers to these four interrogatories cannot
be used.
8.
Petitioner also
request
that the
Livingston
County
Board
be
required
to
answer Interrogatory No.
5.
The Livingston County Board, through
its
local
siting ordinance has provisions under which they may create a Independent
ReviewTeam.
Said Independent Review Team
is described in
more detail
in the Siting Ordinance,
but
its
name is indicative
of its
function.
It has an
independent nature
in that it does
not answer or respond to the
Livingston
County Board directly,
but rather only doe
so through
a
recommendation
made to the
Board after all ofthe testimony, evidence, and public comment
has been received.
9.
lnterrogatory No.
6
is overly broad
in that it states no time frame for which
the
question
is
posed.
Clearly
Petitioner’s
argument
is
that the
County
approved the siting Petition because they were afraid of the City of Pontiac
annexing
the
subject
property.
However,
the
County
Board
has
24
members,
each
of which
may
or
may
not
have
discussed
the
issue
of
possible annexation at any time over their period of incumbency or before I
In
order
to
make
any
claim
of
such
failure
to
judge
the
merits
of the
Application
Petitioner must narrow
its question
in order to allow an answer.
Petitioner continues to request an answer to this Interrogatory despite the
factthat American Disposal has provided a document thatdemonstratesthat
Pagc2of
7
the
County Board was put
on notice that American Disposal would not
be
seeking annexation tothe City of Pontiac.
Petitioner
is guilty of the
same
conduct
that
she
accuses
the
County.
of
in that she seeks answers to
questions thatshe has the answerfor, atconsiderable time and
effort to the
County Board Members.
10.
In
seeking
an
answer
to
Interrogatory
No.
8,
Petitioner
is
requesting
information that
is not relevant to an
issue
of
bias
or
prejudice
by
the
Livingston County Board.
This is a factual issue only and the public hearing
has been closed
for
all
facts relating
to the
criteria.
The
sole purpose of
discovery atthisjuncture istodeterminewhetherthe public hearingwas held
in a fundamentally fair manner and whether
or
riot
the
County
Board
Members were biased in any manner.
This question does not and will not
lead to any such information.
It
is clearly posed only in an attempt to inject
certain factuaJ information into the
record, which
has already been closed.
11.
Interrogatories 9, 13, and 14wereargued togetherand willbe responded to
together as well.
Again, each question clearly attempts to enterthe mind of
the decision makers, the County Board Members.
It goes even further in that
it asks the ultimate question
as to how each
County
Board Member would
vote
in different scenarios.
This is patently improper as discussed above.
Furthermore, answersto these questions would not further any argument
as
to alleged bias
or prejudice on behalf of the Board Members.
The record
is
clear that the County will receive additional host fees
if their approval
is
upheld. No answer
to
these interrogatories
will
lead to
additional relevant
information.
12.
Interrogatories 10 and 29 request information regarding meetings
thatmay
have occurred since January
1,2001
in regard to hostfees orthe expansion
of the
landfilL
The County originally refused such questions in that they
occurred outside ofthe time-frame during which
an Application for local site
approval was pending.
The Honorable Hearing Officer has indicated thatthe
PCB rulings may have
changed
in
regard to the prior law since the
ruling in
the
Kankakee
case last January,
2003,
(PCB
03-31).
This
PCB
opinion
differs in some regards to the issues raised in this appeal.
In the Kankakee
case, the Petitioners raised issues offundamental fairness because the prior
contacts
between
the
parties.
The
PCB
apparently
agreed
that
such
information may be admitted, although they did indicate that the weight to be
allotted to such information may be slight.
.
This
case attempts to request
of
each
County
Board
Member
information
regarding
each
and
every
contact.
Such discovery would be difficult and onerous to the County in that
the
Board consists of 24 members.
tithe Hearing Officer is so inclined to
order answers to
such
questions, the
County
would
request that only the
members
who
voted
in
favor of
the
Application
be
required
to
answer,
presumably
in
that
the
remaining
members
who
voted
against
the
Page3ofl
0•
Application,
have subsequently dies or abstained from voting would not lead
to information
not already held by Petitioners.
13.
Interrogatory No.
29 not only asks for the County Board Members to answer
certain
questions,
but
also
requests
the
Livingston
County
Board’s
“consultants” to respond
to
contacts with American
Disposal between the
pendency
of
the
Previous
Application
and
the
Application.
Any
such
responses would appearto yield little additionalinformation to the argument
ofbias or fundamentallyfair hearings.
The only “consultants”that the County
has retained
is the Independent Review Team that had no contact with
the
County Board Member until they presented their recommendations to the Ag
Committee.
None ofthe members of the Independent Review Team voted
or communicated with the County Board members regardingthe Application
until they forwarded their final recommendation to the Ag Committee.
14.
Interrogatories 11, 12, and 18 request certain information regarding contracts
between the Board Members and American Disposal.
Although the County
objected to Interrogatory No.
11, the question was answered anyway in that
all
such
agreements
are
part
of the
record.
Interrogatory
No.
12
was
responded to with the answer “None”.
What does Petitionerdesire further?
Finally Interrogatory No.
18 asks the County Board Members to describe all
“interests” that
a
County Board
Member may have with
a
contractor doing
work for American Disposal.
Such request is not limited
in any manner.
For
instance,
if
a County Board Member buys gravel from
the same vendor as
supplies gravel to the landfill, he or she has a “relationship” with
a third party
contractor.
How is each individual County Board Member supposed to know
who
does
business
with
the
Livingston
Landfill
in
an
amount
in excess of
$5,000.00 per year?
Furthermore
it is impossible to venture
a
guess as to
who may be doing business with the Livingston Landfill
in the future.
County
Board
Members
are
not
clairvoyant.
Many such
relationships may exist
without the Board Member even
being aware of such
a “relationship”.
This
Interrogatory
is
overly
broad
and
onerous
in
that
requests
substantial
information
with
little
likelihood
of
such
information
leading
to
relevant
information.
The
County
would
not
object to this
question
if
it
could
be
narrowed
so as limit innocuous contacts,
but as written,
it
is overly broad.
15.
Interrogatory No.
15 is
a requestfor information regarding ownership of land
within
2
miles of the landfill.
Counsel argues that this question
is relevant
because it may show that most County Board Members do not own property
within 2 miles ofthe landfill and therefore
approval of the Application will
not
directly impact their lives if statutory criteria were not met.
However Counsel
misinterprets the duty and responsibility of the Board Members.
They are to
vote on the merits of the Application and are presumed to do so.
Counsel
actually attempts to argue that ifthey own property within 2 miles, theywould
be more inclined to vote against the Application.
Such
a contortion ofthe law
Page 4
of
7
would be grossly improper. Answering this question, using Petitioners basis,
would not
lead to
any relevant information.
Indeed,
it would appear that
County Board Members owning property within 2 miles should not have been
permitted
to
vote,
under
Petitioner’s
logic,
because
they would
consider
things
other
than
the
record
and
that
County
Board
Members
owning
property beyond two miles should not vote because the landfill has no direct
impact upon their lives!
16.
Interrogatory 17 requests information regarding independent environmental
investigations performed by the
Livingston County
Board.
It does not
limit
in time or nature the type of investigations requested.
Petitioners Motion To
Compel does
not adequately describe the reasons
such answer should
be
required.
Petitioners
actually
argue
that
if
such
an
“independent
environmental
investigation”
was
performed,
it
could
support the
Boards
decision.
Even
if such
an investigation was
done,
it could
not support the
Boards
decision
in
that
it
would
have
contained
information
outside the
record.
Counsel has not indicated why or howthis interrogatory would lead
to relevant information.
17.
Interrogatory
No.
23
requested
the
process
by
which
the
County’s
Independent
Review
Team
was
formed
and
instructed.
The
County
responded by indicating that
t was
formed
and instructed
pursuant to the
Siting Ordinance.
It is directly responsive to the question
posed.
It indicates
that the Independent Review Team is to conduct a review ofthe Application
“independent from the Agricultural Committee and the County Board”.
Such
Siting Ordinance has been
made a
part of the
record.
If Petitioner wanted
additional
information
other than
what was
directly
asked,
such
specific
information should
have been specifically requested.
18.
Interrogatory
No.
25
requested
information
related
to
the
Independent
Review Teams “working
on matters relating
to Livingston
County
Landfill”
from
1995
to the
present.
The
County
responded
that
members
of the
Independent Review Team
continue to be
employed
by
the
County
with
regard to this Landfill, Although, based upon PCB 03-31, the County would
state further that Charles T.
Schopp has and
continues to be employed by
the
County
in
his
regular
capacity.
Gary
J.
Deigan
did
not
supply
any
services to the County prior to the Application for local siting approval for the
Streator Landfill and continues to provide services to the County in a variety
of
matters.
Larry
M.
Clark
provided
legal
services
to
the
County
in
negotiation
with
American
Disposal
for
an
amendment to
the
Host
Fee
Agreement dated February
15,
2001,
and continues to
provide services to
date.
Page5of7
19.
Interrogatory
No, 26
is a hypothetical question that cannot be answered with
any degree of accuracy.
What members ofthe
Review Team may do in the
future
is simply not
relevant.
20.
Interrogatory
No.
27
cannot
be
answered
by
the
County.
It
is
more
appropriately directed to American Disposal.
21.
Interrogatory
No.
28
cannot
be
answered
in
that
it
calls
for
certain
conclusions.
Livingston
County
reiterates
its
response
to
the
original
question and further states that this type of information
is not calculated to
lead to
relevant information.
22.
Interrogatory
No.
30
requests
“detailed
basis
for
denials
to
Petitioner’s
Requests for Admissions.
Livingston County respectively suggests that it did
supply a basis for said denials
when responding to same,
23.
Interrogatory No.
31
does
not seek additional responses.
24.
Notice
To
Produce
No.
7
requests
a
broad
spectrum
of
information
Livingston
County
has indicated
that due to
a
lack of specificity,
it cannot
answer such
a
request.
Should
it be
narrowed
down,
the
County
could
attempt to provide responses to this Notice To
Produce.
25.
Notice To Produce No.
13 again attempts to invade the mind of the decision
maker.
The information solicited
not only would serve to determine which
Board
Member
checked
out
certain
information,
but
has
the
audacity
to
request handwritten
notes,
presumably of the
Board
Members.
Such
an
inquiry cannot be made
in that it invades an impermissible area.
26.
Thatwith regardtolnterrogatoriesNos. 1,3,4,9,10,11,12,13,14,18
end
29 and
Notice to
Produce
No.
7,
Petitioner states that it
is concerned with
whether
Members
of the
Livingston
County
Board,
sitting
as
the
siting
authority who voted
in favor ofthe Application pre-judged
or failed to judge
whether the Applicant had satisfied the statutory criteria and/orwhether any
of those members of the
Board had
a
bias,
prejudice
or financial
interest,
and seeks specific information from each ofthe 24 Board Members.
That to
the
extent
Respondent
may
be
required
to
provide
information
from the
individual
Board Members, that such inquiry be limited only to those Board
Members
who
voted
in
favor of the
siting
application
who
are
still
alive.
Excluded would be the 4 Board Members who voted againstthe Application,
the
Board
Member who abstained,
and the
I
Board
Member who
passed
away on May 21, 2003,
Ronald Flessner, and his replacement to the Board,
Ronald L. Deany, who was appointed to the Board in June of 2003, after the
vote on the siting application occurred on May 15, 2003.
Certainly, Petitioner
can
have
no
quarrel
or demonstrate
any
impropriety
as to those
Board
Page 6 of
7
Members who voted
against the Application
or abstained.
Also
excluded
from any individual inquiry would
be those Board Members whose terms of
office
expired on
November 30,
2002, prior to the
date the Application was
filed on December 4 ,2002, and who are no longer on the Board and who did
not vote on the Application on
May
15,
2003.
Respectfully submitted,
LIVINGSTON COUNTY BOARD,
Livingston County, Illinois
By:
One of Its Attorneys
C.
Thomas
Blakeman
Attorney at Law
307 West Washington Street
Pontiac,
IL 61764
Telephone: 815-844-6177
Fax:
815-842-3288
Larry
M. Clark.
Attorney at Law
700 North Lake
Street, Suite 200
Mundelein, IL 60060
Telephone:
847-949-9396
Fax:
847-949-9427
Page 7 of
7
To:
Of:
Fax No.:
From:
Re:
Blakeman,
Schrock
& Bauknecht,
Ltd.
307 West Washington Street
Pontiac, IL 61764
815-844-6177
Fax:
81 5-842-3288
Email;
tom@sbsItd.com
FAX COVER SHEET
Claire
A.
Manning
Posegate
& Denes
PC
21 7-522-6184
C.
Thomas Blakeman
CALE vs. American Disposal, et aL;
PCB 03-236
RE CE IV ~ D
CLERK’S
OFFICE
AUG
2
7
2003
STATE OF ILLINOIS
Pollution
Control Bcard
George Mueller
George Muller PC
815-433-4913
Date:
August 27,
2003
DOCUMENTS
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NUMBER
OF PAGES*
~4oticeof Fjjin
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2
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Respondent, Livingston County Board’s Response to
.
7
-
Petitioner’s
Motion to Compel
-
.
.
.
.
.
_L_
______
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~‘
NOT COUNTTh~O
COVER SHE~.T.
IF YOU DO NOT
RECEIVE
~
PAGES,
PLEASE TELEP14ONE US
iMMEDIATELY AT 815-844-6177.
To:
Bradley
P.
Halloran
Douglas E.
Lee
Of:
IL Pollution Control Board
Ehrrnann
Gehlbach
Badger & Lee
Fax No.:
312-814-3669
.
815-286-3068
