BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
VED
LOWE TRANSFER, INC. and
)
CLERKS OFRCE
MARSHALL LOWE,
Co-Petitioners,
vs.
COUNTY BOARD OF McHENRY
COUNTY, ILLINOIS
)
SEP 022003
)
No. PCB 03-221
)
(Pollution Control Facil~1FA,~9~
)
Pollution Control &ard
)
Respondents.
)
NOTICE OF FILING
TO:
See List Referenced in Proof of Service
PLEASE TAKE NOTICE that on August 28, 2003, we filed with the Illinois Pollution
Control Board, the attached Lowe Transfer, Inc. and Marshall Lowe’s
MOTION TO
STRIKE
‘VILLAGE OF
CARY’S
RESPONSE
FILED ON AUGUST
27, 2003, AND
THE
VILLAGE’S REVISED
BRIEF
AND MOTION FOR SANCTIONS
in the above entitled
LOWE TRANSFER, INC. and
MARSHALL LOWE
By:
David W. McArdle
PROOF OF SERVICE
I, a non-attorney, on oath state that I served the foregoing Motion on the following parties by depositing
same in the U. S. mail on this
28TH
day of August, 2003:
Charles F. Heisten
Hinshaw and Culbertson
100 Park Avenue, P.O. Box 1389
Rockford, IL 61105-1389
Ms. Percy L. Angelo
Mayer Brown Rowe & Maw
190 South LaSalle Street
Chicago, Illinois 60603-3441
SUBSCRIBED and SWORN to before
me this
28th
day o~Auust, 2003
David W. McArdle
Attorney Registration No. 06182127
ZUKOWSKI ROGERS FLOOD & MCAPDLE
50 Virginia Street; Crystal Lake, Illinois 60014
(815)
459-2050
Bradley P. Halloran
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, IL 60601
1/
‘OFFICIAL SEAL”
SHEILA M. QUINLAN
Notary Public, State of Illinois
4
~ My Commission Expires 05/22/06 4
matter.
This document is printed on recycled paper.
BEFORE THE ILLINOIS POLLUTION CONTROL BOA~V~~
CLERK~SOFFICE
LOWE TRANSFER, INC. and
)
SEP 022003
MARSHALL LOWE,
)
Co-Petitioners,
)
No. PCB 03-221
STATE OF ILLINOIS
)
Pollution Control Board
vs.
)
(Pollution Control Facility
)
Siting Appeal)
)
COUNTY BOARD OF McHENRY
)
COUNTY, ILLINOIS
)
Respondent
)
CO-PETITIONERS’ MOTION TO
STRIKE
THE VILLAGE’S
RESPONSE
FILED ON AUGUST
27, 2003
AND THE VILLAGE’S
REVISED BRIEF AND MOTION FOR SANCTIONS
Co-Petitioners Lowe Transfer, Inc. and Marshall Lowe (“Lowe”), by Zukowski Rogers
Flood & McArdle, its attorneys, respectfully request the Pollution Control Board to strike both
the Village of Cary’s (the “Village”) Response filed on August 27, 2003, and its Revised Amicus
Brief and issue sanctions against the Village for failure to comply with Board rules and Board
and Hearing Officer orders. In support of this Motion, Lowe states as follows:
B
ack~round
1.
By orders issued July 10 and August 7, 2003, this Board determined the Village is
not a party in this siting approval appeal but afforded the Village “participant” status under
Sections 101.628 and 107.404 ofthe Board’s procedural rules. The order ofJuly
10th
granted the
Village permission to file an Amicus Brief
2.
On August 14, 2003, Hearing Officer Bradley Halloran issued a written order
outlining the post-hearing briefing schedule for this appeal.
THIS FILING PRINTED ON RECYCLED PAPER
3.
The order required parties to simultaneously file their briefs on August 22, 2003
and the Village to file its Amicus Brief on August
25,
2003. Additionally, the public comment
period was ordered closed on August 25, 2003.
4.
In compliance with the Hearing Officer’s order, Lowe and the County filed its
briefs on August 22, 2003. Both briefs complied with the page limitation provisions contained in
Section 101.302(k) ofthe Board’s rules.
5.
On August
25,
2003, the Village filed its 56-page Amicus Brief in direct violation
of Section 101.302(k).
6.
On August 26, 2003, Lowe filed a Motion to Strike Village ofCary’s Brief and a
Motion for Sanctions. This Motion is still pending before the Board.
Filin2s
by the Village Post Closing
7.
On August 27, 2003, the Village filed a “Response ofthe Village of Cary With
Respect to Co-Petitioners’ Motion to Strike Village of Cary’s Brief and Motion for Sanctions
Submitted as a Public Comment to the Extent Required by the Board”. In addition, the Village
submitted a 32-page Brief in support of its amicus position as an alternate to its 56-page brief.
8.
The Village’s Response and Revised Amicus Brief were filed after the public
comment period had closed.
Board Order and Rule Violations
9.
The Response filed by the Village is in violation ofboth orders issued by this
Board and the Board’s written procedural rules.
10.
Section 101.500(d) ofthe Board’s procedural rules very clearly states that only
parties may file a response to a motion.
THIS FILING PRINTED ON RECYCLED PAPER
2
“Within 14 days after service of a motion, a party may file a response to
the motion. Emphasis added.
11.
The issue ofwho are parties to this proceeding was resolved by this Board’s July
10 and August 7, 2003 orders.
12.
However, even with the Board’s orders and the extensive experience before the
Pollution Control Board ofMs. Percy Angelo, the Village’s attorney, Lowe and this Board are
once again forced to respond to another unauthorized filing from the Village.
13.
Tn its latest unauthorized filing with the Board, there even appears to be an attempt
to blame the Hearing Officer for the Village’s inability to follow the Board’s procedures.
14.
In paragraph 4 ofthe Village’s response, regarding the discussions conducted by
the Hearing Officer to establish the post-hearing briefing schedule, the Village states:
“There was no discussion ofthe required length ofthe briefs. After
the proceedings went back on the record, the Hearing Officer announced
the briefing and public comment process. Again there was i~discussion
ofthe required length ofbriefs or public comments.”
15.
The Village goes on to say in paragraph 10 ofits response that it “had no intention
ofviolating the Board’s requirements or the instructions ofthe Hearing Officer, but simply did
not understand that in light ofthe record and issues presented, that its post-hearing filing was to
be limited to 20 pages.”
16.
Lowe finds these self-serving representations from the Village and its attorney
incredible in light of Ms. Angelo’s extensive experience in front ofthis Board. A fact Ms.
Angelo proudly presented in filings with this Board in this appeal.
THIS FILING PRINTED ON RECYCLED PAPER
3
17.
From the actions of the Village, it would appear the Village believes that orders of
this Board and its Hearing Officer and the Board’s rules and procedures apply to everyone but the
Village.
18.
With its Response, the Village filed a 32- page revised Brief and asks leave for its
admission into this appeal. Even the length of this brief exceeds the 20-page limitation imposed
by Section 101.302(k). Village Response on page 4.
19.
This is nothing more than an attempt by the Village to file a second brief after the
Hearing Officer’s deadline and the public comment period has closed.
20.
Ms. Angelo, herself, has vigorously objected to such attempts in other
proceedings in front ofthis Board.
21.
In PCB
95-119,
125 in her client’s Objection to Motion for Leave to File Copy of
Amicus Brief and Response, Ms. Angelo in opposition to a party’s amicus brief, wrote:
“This attempt by the Agency and USEPA to cram the briefs
attached to the Motion into the Board’s record constitute nothing
more than the Agency’s attempt to file a second post-hearing brief
—
at
a
time designed to afford WSREC no meaningful opportunity
to respond— a flagrant contravention ofthe Board’s Rules, the
order ofthe Hearing Officer and fundamental principles of due
process.” West Suburban Recycling and Energy Center, L.P.’s
Objections to Motion for Leave to File Copy ofAmicus Brief and
Response at p. 6.
22.
As in its previous Motion to Intervene, the Village seems to assert that its
participation is necessary to insure the county’s decision is vigorously defended. Apparently, the
Village is still assuming either the incompetence or incapability of the County and its counsel to
defend its decision.
THIS FILING
PRINTED ON RECYCLED PAPER
4
23.
The County, as the local siting authority, is capable ofpresenting the issues in
defense of its decision. With both its initial briefand its reply brief, the County has 100 pages
allowed by Board rules. Since there are only three (3) criteria on appeal in this case, the County
and, therefore, the objectors through the County, have ample opportunity to present their case.
24.
There will be no prejudice to the objectors by the actions requested by Lowe as
the decision by this Board must be made solely on the record.
25.
However, the continual and flagrant violations ofBoard and Hearing Officer
orders and Board rules cannot be allowed to continue without undermining the authority and
integrity ofboth the Board and the statutory appeal process.
WHEREFORE, Co-Petitioners, Lowe TRANSFER, INC. and MARSHALL Lowe,
request that request the Pollution Control Board (1) strike the Village’s Response to Co-
Petitioners’ Motion to Strike, (2) strike the Village’s Revised Amicus Brief, and (3) issue
sanctions, including reimbursement ofattorneys fees incurred by Co-Petitioners, against the
Village for failure to comply with Board rules and Board and Hearing Officer orders in this
siting appeal.
Respectfully submitted,
LOWE TRANSFER, INC. and
MARSHALL LOWE
By: Zukowski, Rogers, Flood & McArdle
David W. McArdle, one of their attorneys
David W. McArdle, Attorney No: 06182127
ZUKOWSKI, 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)
U:\HAHARKIN\LOWE\mot2strike.transfer.wpd
THIS FILING PRINTED ON RECYCLED PAPER
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