BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
~ECEI1VE~
CITIZENS AGAINST LANDFILL
)
CLERK’S
Qp~p
EXPANSION,
)
)
SEP
052003
Petitioner,
)
STi~TEOF
ILUNOIS
~~llUtionControl Bo
d
v.
)
Case No. PCB-03-236
ar
)
AMERICAN DISPOSAL SERVICES OF
)
Hearing Officer Bradley Halloran
ILLINOIS, INC.
and
LIVINGSTON COUNTY,)
BOARD,
LIVINGSTON, ILLINOIS,
)
Defendant.
NOTICE OF
FILING
TO:
Carolyn K. Gerwin
705
S. Locust St.
Pontiac,
IL
61764
Douglas E.
Lee
Ehrmann, Gehlbach, Badger & Lee
215
E. First Street, Suite 100
Dixon,
IL
61021
Larry M. Clark
Suite 200
700 North Lake Street
Mundelein, IL
60060
Bradley Halloran, Hearing Officer
Pollution Control Board
100 West Randolph Street
James R. Thompson Center, Suite 11-500
Chicago, IL
60601-3218
PLEASE TAKE NOTICE that, on September
5,
2003, I caused to be filed with
the Illinois Pollution Control Board, by hand delivery, an original
and nine copies of the
accompanying Limited Appearance and Motion to Quash Subpoena.
Printed
on
Recycled Paper
Respectfully submitted,
WILLIAM DWYER
By:__
One ofHis Attorneys
William G. Dickett
John M. Heyde
SIDLEY AUSTIN BROWN & WOOD LLP
Bank One Plaza
10 South Dearborn St.
Chicago, IL
60603
(312) 853-7000
(312) 853-7036 (fax)
Dated:
September
5,
2003
-2-
CHI
2759999v1
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
CITIZENS AGAINST LANDFILL
)
~
EXPANSION,
)
CI~R~Q1~i
O~CE
Petitioner,
)
S~P0 ~ 2U03
v.
)
Case No. PCB-03-236
AMERICAN DISPOSAL SERVICES OF
)
Hearing Officer Bradley Halloran
ILLiNOIS, INC. and LIVINGSTON COUNTY,)
BOARD,
LIVINGSTON, ILLINOIS,
)
Defendant.
LIMITED APPEARANCE
I hereby entermy special, limited appearance as counsel for William Dwyer,
pursuant to 35 Ill. Admin.
Code
§
101
.400(a)(5),
for the limited purpose ofcontesting
jurisdiction and quashing a subpoena served on Mr. Dwyeron September 2, 2003.
Respectfully submitted,
SIDLEY AUSTIN BROWN & WOOD LLP
By:____
____
William G. Dickett
John M. Heyde
SIDLEY AUSTIN BROWN & WOOD
LLP
Bank One Plaza
10 South Dearborn St.
Chicago, IL
60603
(312) 853-7000
(312) 853-7036 (fax)
Dated:
September
5,
2003
Printed on Recycled Paper
CERTIFICATE OF SERVICE
John M. Heyde, an attorney, hereby certifies that he caused a true and correct
copy ofthe foregoing Limited Appearance to be served upon all counsel ofrecord on this
5th
day of September, 2003, as follows:
By overnight messenger service (Saturday morning delivery requested) to:
Carolyn K. Gerwin
705
S. Locust St.
Pontiac,
IL
61764
Douglas E.
Lee
Ehrmann, Gehlbach, Badger& Lee
215
E. First Street, Suite 100
Dixon, IL
61021
Larry M. Clark
Suite 200
700 North Lake Street
Mundelein, IL
60060
By messenger to:
Bradley Halloran, Hearing Officer
Pollution Control Board
100 West Randolph Street
James R.
Thompson Center, Suite 11-500
Chicago, IL
60601-3218
John M. Heyde
Attorney for William Dwyer
-2-
CH1
2759990v1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CITIZENS AGAINST LANDFILL
)
RECEIIVED
EXPANSION,
)
CLERK’S OFF1~E
s~
052003
Petitioner,
)
)
STATE OF
ILLINOIS
v.
)
Case No. PCB-03-236
Pollution
Control Bi~rd
)
AMERICAN DISPOSAL SERVICES OF
)
Hearing Officer Bradley Halloran
ILLINOIS, INC. and LIVINGSTON COUNTY,)
BOARD,
LIVINGSTON, ILLINOIS,
)
Defendant.
MOTION TO QUASH SUBPOENA
William Dwyer respectfullymoves the Board to quash a subpoena issued to him
by petitioner Citizens Against Landfill Expansion, purporting to require Mr. Dwyer’s attendance
on September 8, 2003 (the “Subpoena”).
(The Subpoena is
attached to this motion as Exhibit
1.)
Mr. Dwyer asks the Board to quash the Subpoena because it is untimely and,
therefore, null and
void on its face.
In addition, the Subpoena is burdensome and unlikely to add any meaningful
information to the hearing.
In support ofthis motion, Mr. Dwyer states as follows:
1.
Mr. Dwyer is
a senior attorney for BP Corporation North America Inc.
2.
On September 2, 2003, Mr. Dwyer received the Subpoena by certified
Express U.S. mail.
The subpoena requests his attendance at a “hearing/deposition” on
September
8, 2003, at 9 a.m., in Pontiac, Illinois.
Printed on Recycled Paper
3.
The Board’s procedural rules require that service ofa subpoena “must be
completed no later than
10 days before the date of the required appearance.”
35
Ill. Admin.
Code
§
10 1.622(b).
The Board’s rules further provide that:
In the case ofservice by registered or certified mail, or by
messenger service, service is deemed complete on the date
specified on the registered or certified mail receipt or the
messenger service receipt.
In the case ofservice by U.S.
Mail,
service is presumed complete four days after mailing.
35 Ill. Admin.
Code
§
101.300(c).
4.
Because Mr. Dwyer received the Subpoena on September 2,
service ofthe
Subpoena was not complete until September 2.
As a result, service was complete a mere six
days before the scheduled appearance, in violation of the Board’s rules.
Since the Subpoena was
not timely served, it is null and void on its face and should be quashed.
5.
In addition, attendance at a September
8 hearing would be burdensome.
Mr. Dwyer neither lives norworks in Livingston County; he works in DuPage County, and he
lives in Cook County.
Requiring Mr. Dwyer to take a day out ofhis busy schedule to travel to
Pontiac on short notice is burdensome
and unreasonable.
6.
Finally, any testimony Mr. Dwyer could provide would be oflittle
relevance.
As it has been explained to him, petitioner plans to
call Mr. Dwyerto testif~’
as to
whether a process server atten~ted
to
serve him on behalfofa company called “Amoco CCPS”
in November 2002.
However, Mr. Dwyer has no recollectionone way orthe other as to
whether
a process server contacted him or what he might have said to the process server, if anything.
Moreover, Mr. Dwyer is and never has been an officer or a registered agent forany company
-2-
called “Amoco CCPS.”
As a result, Mr. Dwyer cannot shed any meaningful light on the
adequacy ofany attempt to serve “Amoco CCPS.”
Forthe foregoing reasons, Mr. Dwyer respectfullyrequests that the Board quash
the Subpoena.
Respectfully submitted,
WILLIAM DWYER
By:
~
One ofHis Attorneys
William G. Dickett
John M. Heyde
SIDLEY AUSTIN BROWN & WOOD
LLP
Bank One Plaza
10 South Dearborn St.
Chicago, IL
60603
(312) 853-7000
(312) 853-7036 (fax)
Dated:
September
5,
2003
-3-
CERTIFICATE OF SERVICE
John M. Heyde, an attorney, hereby certifies that he caused a true and correct
copy ofthe foregoing Motion to Quash Subpoena to be served upon all counsel ofrecord on this
5th day of September, 2003, as follows:
By overnight messenger service (Saturday morning delivery requested) to:
Carolyn K. Gerwin
705
5.
Locust St.
Pontiac,
IL
61764
Douglas E. Lee
Ehrmann, Gehlbach, Badger & Lee
215
E. First Street, Suite
100
Dixon, IL
61021
Larry M. Clark
Suite 200
700 North Lake Street
Mundelein, IL
60060
By messenger to:
Bradley Halloran, Hearing Officer
Pollution Control Board
100 West Randolph Street
James R. Thompson Center, Suite 11-500
Chicago, IL
60601-3218
John M.
Heyde
Attorney for William Dwyer
-4-
Clii
2759936v1
Exhibit
1
Beforethe illinois Pollution Control Board
~TTT7.ENSAc~ATNSTLANDFILL
)
)
EXPANSION,
Petitioner
)
Complainant/Petitioner,
V.
AI4ERICAN DISPOSAL SERVICES OF
ILLINOIS,
INC.
atid
LIVINGSTON
COUNTY BOARD, LIVINGSTON
COUNTY,
ILLINOIS,.
Respondent.
SUBPOENA DUCES TECUM
J~th~i~y~
~
TO:
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4T~~rr~L(
pjp
C~
~
pA~-~-~
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h~t~
~
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11(O(
Uii~eI4
~octd____
• U)cccer~~j~k~
IL
~os~s—
Pursuant to Section 5(e) oftheEnvironmental Protection Act
(415
ILCS
5/5(e)
(2002))
and 35111. Adm.
Code
101, Subpart F, you areordered to attend and give
testimony at thehearing/deposition in the above-captioned matterat
9:00
a .m.on
September 8,
20 03
115 W. Howard Street, Pontiac,
IL 61764
You are also ordered to bring with you documents relevant to thematter under
consideration and designated herein, ______________________________________
:1
RECEIVED
CLERK’S
OFFf(~F
SEP02
2003
STATE OF IWNOIS
Pollution
Control Board
)
)
)
)
PCB—03—236
)
)
)
)
)
)
)
)
)
)
,
at
2
Failure to comply with this subpoena will subject you to sanctions under 35 Iii.
Adm. Code 101.622(g) and 101802.
ENTER:
Dorothy M. Gunn, Clerk
Pollution Control Board
Date: August
12, 2003
I served this
subpoena duces tecumby
handing a copy to
___________on
~20_________
Subscribed and sworn to before me this
_______
day of___________
20
.
•.
Notary Public
CERTIFICATE
OF
SERVICE
I hereby certify
that on
August 29, 2003, Iserved this Subpoena Duces Tecum by U.S.
Mail, postage prepaidfor guaranteed overnight delivery, return receipt requested, on:
w,ftiaL~w~~r
—
13e
~
~
~
J-l’ic.
‘-f/Of
1~W’i
~d
,~cad
~threi’lV,ife
IL
~CSSS~
With one copy by regular First Class Mail to:
Douglas E.Lee
•
Ehrmann, Gehibach,, Badger & Lee
215
E.FirstStreet, Suite 100
P.O.
Box 447
Dixon,
Illinois 61021
Larry M. Clark
Suite200
700 NorthLake Street
MundeleinIL
60060
•
Brad Halloran,Hearing Officer
Pollution Control Board
100 West Randolph Street
James R. Thompson Center, Suite 11-500
Chicago, Illinois
60601-3218
And one original and fourcopies by regularFirst Class
Mail to:
Dorothy Gunn, Clerk
Pollution Control Board
100
WestRandolph Street
James R. Thompson Center, Suite 11-500
Chicago,Illinois 60601-3218
&t&9~
/5~~1zo~
CarolynK ~i,ezwin
Counsel for~Petitioner
Subscribed and sworn to before
me
this 29th day
of
August, 2003.
OFFICIAL
SEAL
DIANA E. TULL
NOTARY PUBUC,
STATE OF ILLINOIS
MY COMMISSION
EXPIRES 5~31
.2004