CLERICS OFFICE
BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD NOV
102003
BYRON SANDBERG,
)
Pollution
STATE OF
Control
ILLINOIS
Board
Petitioner,
)
)
vs.
)
)
CITY OF KANKAKEE, ILLiNOIS, THE CITY) Case No. PCB 04-33
OF KANKAKEE, ILLINOIS CITY COUNCIL,)
TOWN AND COUNTRY UTILITIES, INC.,
)
and KANKAKEE REGIONAL LANDFILL,
)
L.L.C.,
)
)
Respondents.
)
•WASTE MANAGEMENT OF ILLINOIS,
)
INC.,
)
)
Petitioner,
)
)
vs.
)
)
Case No. PCB 04-34
THE CITY OF KANKAKEE, ILLINOIS CITY)
COUNCIL, TOWN AND COUNTRY
)
UTILITIES, INC., and KANIKAKEE
)
REGIONAL LANDFILL, L.L.C.,
)
)
Respondents.
)
COUNTY OF KANKAKEE, ILLINOIS and
)
EDWARD D. SMITH, KANKAKEE COUNTY)
STATE’S ATTORNEY,
)
)
Petitioners,
)
)
vs.
)
)
Case No. PCB 04-3
5
CITY OF KANKAKEE, ILLINOIS, THE CITY)
OF KANKAKEE, ILLINOIS CITY COUNCIL,)
TOWN AND COUNTRY UTILITIES, INC.,
)
and KANK.AKEE REGIONAL LANDFILL,
)
L.L.C.,
)
)
Respondents.
)
CLERK’S OF~Jr~E
PETITIONERS’ COUNTY OF
KANKAKEE,
ILLINOIS
AND
NOV 102003
EDWARD D. SMITH,
KANKAKEE
COUNTY STATE’S ATTORNEYSIATE OF
ILLIN
RESPONSE TO RESPONDENT, TOWN & COUNTRY UTILITIES,
IN~öl1&jonCon trol B
REQUEST FOR ADMISSION OF FACTS
AND
oard
GENUINENESS OF DOCUMENTS
NOW COME the Petitioners,
COUNTY OF
KANKAKEE, ILLiNOIS and EDWARD
D.
SMITH, KANKAKEE
COUNTY
STATE’S ATTORNEY, by and through their attorneys,
HINSHAW & CULBERTSON, and for their Response to Respondent’s, TOWN & COUNTRY
UTILITIES, INC.’s, Request for Admission of Facts and Genuineness of Documents, states as
follows:
1.
The authentic tax records of Kankakee County, Illinois, are maintained by the
Kankakee County Assessor and the Kankakee County Treasurer in a shared database.
RESPONSE: Objection, this is not a request for admission of fact and rather seeks the
admission ofa legal conclusion as to what constitutes the “authentic tax records”.
Subject to this objection and without waiving same, the Kankakee County
Assessor and the Kankakee County treasurer do utilize a shared data base.
2.
The shared database of the Kankakee County Assessor and Kankakee County
Treasurer represents the most accurate, up-to-date, and authentic records ofproperty ownership
in Kankakee County.
RESPONSE: Deny. The most up to date and authentic records of property ownership in
Kankakee County are kept with the County Recorder.
3.
All property owners entitled to service of pre-fihing notice are named in Exhibit
“A” of the service affidavit.
RESPONSE: Objection, this Petitioner has insufficient knowledge to admit that each
and every owner entitled to service is named in Exhibit A and, rather,
the Petitioner demands strict proof thereof. Subject to this objection,
and without waiving same, this Petitioner is aware that the shared
database ofthe treasurer and assessor’s office provide that the Bradshaw
property owners were Gary Bradshaw, James Bradshaw, Jay Bradshaw,
Ted Bradshaw and Denise Fogle. Exhibit A indicates that those owners
are do Judith Skates only, which would seem to indicate she is the only
recognized owner, which is erroneous. Therefore though the Petitioner
2
has not at this time verified that all other owners entitled to notice are
appropriately named in Exhibit A, the Petitioner denies this allegation
based at least on the Bradshaw property.
4.
The affidavits of service and certified mail receipts attached to the service
affidavit as group Exhibit “C” are true and correct copies of said affidavits and receipts.
RESPONSE: Objection, the County of Kankakee has no personal knowledge of whether the
service affidavits are true and correct copies.
Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil
Procedure, the undersigned certifies that the statements set forth in this instrument are true and
correct, except as to matters therein stated to be on information and belief and as to such matters
the undersigned certifies as aforesaid that he verily believes the same to be true.
RICHAR~’S.PORTER
On behalf ofthe COUNTY OF KANKAKEE,
ILLiNOIS, and EDWARD D. SMITH,
KANIKAKEE COUNTY STATE’S ATTORNEY,
SUBSCRIBED and SWORN to
before me this
7~”
day ofNovember, 2Q03
HINSHAW AND CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
70382978v1 827167
This document utilized 100
recycled paper products
Notary Public
3
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions ofSection 1-109 ofthe Illinois Code ofCivil
Procedure, hereby under penalty of perjury under the laws of the United States of America,
certifies that on November 7, 2003, a copy ofthe foregoing was served upon:
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, IL 60601-3218
Attorney George Mueller
501 State Street
Ottawa, IL 61350
(815)
433-4705
(815)
433-4913 FAX
Donald J. Moran
Pederson & Houpt
161 N. Clark Street, Suite 3100
Chicago, IL 60601-3242
(312) 261-2149
(312) 261-1149 FAX
Elizabeth Harvey, Esq.
Swanson, Martin & Bell
One IBM Plaza, Suite 2900
330 North Wabash
Chicago, IL 60611
(312) 321-9100
(312) 321-0990 FAX
Kenneth A. Leshen
Leshen & Sliwinski, P.C.
One Dearborn Square, Suite 550
Kankakee, IL 60901-3927
(815)933-3385
(8 15) 933-3397 FAX
Christopher W. Bohlen
200 E. Court Street, Suite 602
P.O. Box 1787
Kankakee, IL 60901
(815)
939-1133
(815) 939-0994 FAX
70377853v1 827167
L. Patrick Power
956
N. Fifth Avenue
Kankakee, IL 60901
(815) 937-6937
(815) 937-0056 FAX
Byron Sandberg
109 Raub St.
Donovan, IL 60931
byronsandberg~starband.net
Anjanita Dumas, Clerk
City ofKankakee
385 E. Oak Street
Kankakee, IL 60901
(815) 933-0480
(815) 933-0482 FAX
Claire A. Manning
Posegate & Denes, P.C.
111 N. Sixth Street
Springfield, IL 62705
(217) 522-6152
(217) 522-6184 FAX
Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, IL 60601
(312) 814-8917
(312) 814-3669 FAX
By faxing and by depositing a copy thereof, enclosed in an envelope in the United States Mail at
Rockford, Illinois, proper postage prepaid, before the hour of 5:00 P.M., addressed as above.
HINSHAW & CULBERTSON
~
~
100 Park Avenue
P.O. Box 1389
Rockford, Illinois 61105-1389
(815) 490-4900
70377853v1 827167
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDC1~ERK’SQF’p~
BYRONSANDBERG,
))
STAfENV
V
OF
102003
IWNOIS
Petitioner,
)
Pollution Control Board
)
vs.
)
)
CITY OF KANKAKEE, ILLINOIS, THE CITY) Case No. PCB 04-33
OF KANKAKEE, ILLINOIS CITY COUNCIL,)
TOWN AND COUNTRY UTILITIES, INC.,
)
and KANIK.AKEE REGIONAL LANDFILL,
)
L.L.C.,
)
)
Respondents.
)
WASTE MANAGEMENT OF ILLINOIS,
)
iNC.,
)
)
Petitioner,
)
)
vs.
)
)
Case No. PCB 04-34
THE CITY OF KANKAKEE, ILLINOIS CITY)
COUNCIL, TOWN AND COUNTRY
)
UTILITIES, INC., and KANKAKEE
)
REGIONAL LANDFILL, L.L.C.,
)
)
Respondents.
)
COUNTY OF KANKAKEE, ILLINOIS and
)
EDWARD D. SMITH, KANKAKEE COUNTY)
STATE’S ATTORNEY,
)
)
Petitioners,
)
)
vs.
)
)
Case No. PCB 04-3
5
CITY OF KANKAKEE, ILLINOIS, THE CITY)
OF KANKAKEE, ILLINOIS CITY COUNCIL,)
TOWN AND COUNTRY UTILITIES, INC.,
)
and KANKAKEE REGIONAL LANDFILL,
)
L.L.C.,
)
)
Respondents.
)
RECE~IVED
CLERK’S OFFICE
PETITIONERS’, COUNTY OF
KANKAKEE,
ILLINOIS AkQ~V
102003
EDWARD D. SMITH,
KANKAKEE
COUNTY STATE’S AT1~J~iEY,
ANSWERS TO RESPONDENT, TOWN & COUNTRY UTILI~’f~.~~INOIS
INTERROGATORIES
utlyjr:
Control Board
NOW COME the Petitioners,
COUNTY OF
KANKAKEE, ILLINOIS AND EDWARD
D. SMITH, KANKAKEE
COUNTY STATE’S ATTORNEY,
by and through their attorneys,
HINSHAW & CULBERTSON, and for their Answers to Respondent, TOWN & COUNTRY
UTILITIES, INC.’S, Interrogatories, state as follows:
1.
Identify the person answering these Interrogatories and, if different, identify the
person signing these answers.
ANSWER:
Richard S. Porter, Special Assistant State’s Attorney for County of Kankakee,
Illinois.
2.
State the factual basis ofany claim that the City lacked jurisdiction to conduct the
siting hearing.
ANSWER:
1) See Petition for Review, investigation continues.
2)
The application filed on March 17, 2003 by Town & Country was
substantially the same as the application filed on March 13, 2002 because the
design, location and operation plan contained in both applications were identical.
3)
The application filed on March 17, 2003 was incomplete, as it failed to
contain sensitivity analyses.
4) The applicant failed to establish that proper notice was given to all landowners
within 250 feet ofthe proposed landfill, as there are no return receipts for some of
the owners and many receipts were signed by individuals who were not the actual
owners and with no proofthat these individuals were authorized agents ofthe
owners. Specifically, the following defects in notice existed:
a.
Although the Applicant identifies that a parcel was owned by Gary L.
Bradshaw, James R. Bradshaw, Jay D. Bradshaw, Ted A. Bradshaw, Denise Fogel
and Judith A. Skates, notice was sent only to Judith A. Skates’ address and not to
the addresses ofany of the other listed owners.
b.
The following certified mail return receipts were not signed
by the addresses, his or her agent or even an apparent family member:
2
(i)
Certified mailing sent to Gary L. Bradshaw, James R. Bradshaw,
Jay D. Bradshaw, Ted Bradshaw and Denise Fogle was signed for
by Judith Skates.
(ii)
Certified mailing addressed to Linda Skeen was signed for by
Coralee Skeen, who did not declare herself as her agent. Coralee
Skeen also signed for Certified mailings addressed to Geraldine M.
Cairn, Shirley A. Marion, Delmar L. Skeen, Robert S. Skeen,
Norma J. Stauffenberg, Judith M. Trepanier, and Skeen Farms, but
did not declare herself as agent for any of the above. Robert S.
Skeen later signed for a Certified mailing himself at 1590 W. 3500
S. Rd., Kankakee, IL 60901. Coralee Skeen had previously signed
a Certified mailing for Robert S. Skeen at that same address.
(iii)
Certified mailing addressed to Willie Walker was signed for by
Leslie Wilson, Jr., who was not declared as an agent.
(iv)
B. Paquette signed for Certified mailings addressed to David
Ledoux, Rebecca Ledoux, and Norman L. Paquette, but did not
declare herself as an agent of them. E. Paquette did sign for her
own Certified mailing.
(v)
Certified mailings addressed to Frederick Forte and Mary
Thompson were signed for by Lana Forte, who did not declare
herself as an agent ofeither.
(vi)
Certified mailing addressed to Kankakee Federal Savings Bank
was signed for by Karen Clutz, who did not declare herself as its
agent.
(vii)
Certified mailings addressed to ICC Railroad and Illinois Central
Railroad Co. Real Estate Tax Dept. were signed for by R.
Jedlinski, who did not declare himself as agent of either.
(viii) Certified mailing addressed to Leland Milk was signed for by
someone who I could not read their handwriting, and who did not
declare themseif as an agent.
(ix)
Certified mailing addressed to Milo Fleming was signed for by
Nancy Davenport, who did not declare herself as his agent.
(x)
Certified mailing addressed to Charles R. Burke was signed for by
Mary Grace, who did not declare herself to be his agent.
c.
The following certified mailings were sent to government personnel, but
not signed forby agents:
3
(xi)
Certified mailing addressed to Pat Welch, State Senator, was
signed forby L. Bland, who did not declare herself agent.
(xii)
Certified mailing addressed to Debbie Halvorsen, State
Representative, was signed for by Jeanne Mathy, who did not
declare herself as her agent.
(xiii) Certified mailing addressed to Lawrence Walsh, State Senator, was
signed for by Beverly Bdman, who did not declare herself as his
agent. The Certified mailing to Mr. Walsh was not on the Notice
List but was found in the return receipts.
(xiv) Certified mailing addressed to John Novak, State Representative,
was signed for by Colleen Priebal, who did not declare herself as
his agent.
d.
The following Certified mailings were signed by apparent family relations,
who were not declared as agents:
(xv)
Certified mailing addressed to Michael P. Belluso was signed for
by Yolanda M. Belluso, who did not declare herself as his agent.
(xvi) Certified mailing addressed to Lawrence L. Horrell by was signed
for by Patti Horrell as addressee.
(xvii) Certified mailing addressed to William Ohrt was signed for by
Marilyn Ohrt, but she did not declare herself as his agent.
(xviii) Certified mailings addressed to Jeannine Kinkin and Russell
Kinkin were signed for by Danny Kinkin, who did not declare
himself their agent.
(xix) Certified mailing addressed to Jill A. Hansen was signed for by
Kevin Hansen, but he did not declare he was her agent. A
Certified mailing addressed to Kevin Hansen contained a different
address than it was addressed to: 876 B. 3100 N. Rd., Clifton, IL
60927, but it was signed for by Kevin Hansen.
(xx)
Certified mailing addressed to Bessie Jordan was signed for by
Jake Jordan, who did not declare himself as her agent.
(xxi) Certified mailing addressed to Rose Perkins was signed for by
Domesha Perkins, who did not declare herself as her agent.
(xxii) Certified mailing addressed to Louise Gutierrez was signed for by
Adrian Gutierrez, who did not declare himself as her agent. This
occurred twice.
4
(xxiii) Certified mailing addressed to Donald Benoit was signed for by
Barbara ~ênoit, who did not declare herself as his agent.
(xxiv) On each of these parcels the box on the return receipt which
indicates that the signor was the agent of the addressee was not
marked. Therefore, each such receipt on its face, indicates the
signor was not the agent of the addressee.
No further
documentation was submitted by the Applicant to confirm either:
(1) that the individual who did accept service for a specific parcel
was the authorized agent of the owners of that parcel; or (2) that
the owners that appear in the authentic tax records of the County
actually received the pre- filing notice in a timely fashion.
e.
The following were signed by individuals other than the owner, but the
“agent” box on the receipt was checked:
(xxv) Certified mailing addressed to Minnie Creek Drainage District was
signed for by Bret Perreautt as agent.
(xxvi) Certified mailing addressed to Ron Thompson, Otto Township
Supervisor, was signed for by Betty Thompson as agent. A new
address was indicated: 803 B. Rosanne Cir., Kankakee, IL 60901.
(xxvii) Certified mailing addressed to Dr. Shari L. Marshall,
Superintendent of Schools for Central Community Unit District #4,
was signed for by Cindy Saxson as agent.
(xxviii)Certified mailing addressed to IDOT was signed for by Patrick
Woulfe as agent.
(xxix) Certified mailing addressed to Mary K. O’Brien, State
Representative, was signed for by Mike McGuire as agent.
(xxx) Certified mailing addressed to Katie Cooper was signed for by
Charles Cooper as her agent.
(xxxi) Certified mailing addressed to Randy Tobenski was signed for by
Randy Tobenski as agent.
(xxxii) Certified mailing addressed to John F. Mullin was signed for by
Rita Mullin as agent.
(xxxiii)Certified mailing addressed to Bret Perreault was signed for by
Margaret Perreault as agent. Also listed was a different address:
4527 5. 5000 W, Kankakee, IL 60901
(xxxiv)Certified mailing addressed to Margie A. Hartman was signed for
by Gerald Hartman as agent and addressee.
5
3.
Identify each and every member ofthe City Council who you claim prejudged or
failed to judge whether Kankakee Regional Landfill, LLC and Town & Country Utilities, Inc.
that satisfied the statutory criteria, and for each member identified, state the basis for your claim.
ANSWER:
See Petition for Review.
The City Council pre-judged the Application as
evidenced by the extensive pre-filing and post-filing contacts, including the
February 19, 2002 hearing that was held in front of the City Council (without
notice to any landowners or objectors) concerning the Applicant’s purported
compliance with the Section 39.2 criteria, numerous other meetings and
discussions of representatives of the City Council occurred with the Applicant
both before and after the filing of the Application, including those described and
evidenced in regard to Town & Country I. Furthermore, as Mr. Werthmann
explicitly testified, he and other representatives of the Applicant had discussions
with the City Council or its agents after the filing of the instant Application and
before decision. The pre-adjudication by the City Council was further evidenced
by it directing its attorneys to file a declaratory judgment and injunctive action
against the County of Kankakee in the Circuit Court of the 21st Judicial Circuit,
City ofKankakee v. County ofKankakee, 02-CH-400, wherein the City attempted
to enjoin the County from funding its defense ofits solid waste management plan
which called for only one landfill and from funding its opposition to the joint
venture of the Applicant and the City to site a landfill which clearly violates the
County Solid Waste Management Plan. The obvious pre-adjudication of the
merits was further evidenced by the City filing another injunctive case, before the
Section 3.2 hearing in this matter, against the County, seeking to bar the County
from enforcing its solid waste management plan or participating in the Section
39.2 siting hearing. City of Kankakee v. County of Kankakee, 21st Judicial
Circuit, 3-CH-166. Within that proceeding the City judicially admitted its pre-
adjudication of the application because the City asserted the County ofKankakee
was “attempting to interfere with the siting by the City.” The City further argued
that the solid waste management plan “restricted the City’s right to site a facility
within its boundaries.” The City alleged it would be caused irreparable harm if
the County was not enjoined from participating in the City’s siting hearing
because the City argued the practical effect of the County plan was to prohibit the
City from siting a second landfill “anywhere but adjacent to the County’s current
landfill.” Upon information and belief he City Council directed its attorneys to
file the aforementioned causes of action. therefore, it is abundantly clear that the
City Council had already decided that it would approve the application ofTown
& Country Utilities, Inc. before the Section 39.2 hearings.
Investigation
continues.
6
4.
Identify each and every document or other writing that shows or tends to show
that any member ofthe City Council prejudged, or failed to judge, whether Kankakee Regional
Landfill, LLC and Town & Country Utilities, Inc. had satisfied the statutory criteria.
ANSWER:
Objection, to the extent this interrogatory seeks discovery concerning the bases
for the Petitioner’s claim that the decision of the City Council, as to certain
criteria of Section 39.2 of the Act, was against the manifest weight of the
evidence, such is beyond the scope of discovery in this proceeding. Subject to
this objection, and without waiving same, to the extent this interrogatory seeks
information on pre-adjudication of the merits and the lack of fundamental
fairness, see answer to Interrogatory #3 and the entire record of the Town &
Coutnry I proceeding, all of the discovery that was exchanged in regard to Town
& Country I, the pleadings concerning the aforementioned lawsuits filed by the
City of Kankakee against the County of Kankakee, any minutes of City Council
meetings concerning the filing of the aforementioned lawsuits or communications
with the Applicant, (copies of which should be produced by the City ofKankakee
in response to the discovery propounded by this Petitioner).
Investigation
continues.
5.
If you are aware of any oral statement or conduct by any member of the City
Council evidencing a bias in favor ofthe Applicant or Application, for each such oral statement
or conduct:
a.
Describe the oral statement or conduct;
b.
State when and where such oral statement was made or such conduct
occurred; and
c.
Identify all witnesses to such oral statement or conduct.
ANSWER:
See answer to Interrogatory #3; all of the documents previously produced in
Town & Country I; minutes of the February 19, 2002 meeting; any minutes of
meetings concerning the filing of the aforementioned lawsuits against the County
of Kankakee, various newspaper and media quotations of City Council members,
investigation continues.
7
6.
If you are aware of any impermissible ex parte contact between any member of
the City Council and any representative of Kankakee Regional Landfill, LLC and Town &
Country Utilities, Inc., for each such contact:
a.
Describe the nature ofthe contact;
b.
State when and where such contact occurred, and;
c.
Identify all witnesses to such contact.
ANSWER:
See answer to Interrogatory #3.
7.
Identify each and every pre-filing and post-filing contact between the Applicant
and the City, and/or their respective agents or representatives, which you claim to be prejudicial
or supportive of allegations of prejudgment, and for each such contact set forth the facts which
prove that such contact occurred and the facts which support the allegation that such contacts
were prejudicial or supportive ofallegations ofprejudgment.
ANSWER:
See answer to Interrogatory #3.
8.
State any and all other instances of fundamental unfairness claimed by you, and
for each instance:
a.
State the factual basis for such claim;
b.
Identify eachperson who has knowledge ofsuch claim;
c.
State the substance of each suchperson’s knowledge, and
d.
Identify each document that supports, or tends to support, such claim.
ANSWER:
See Petition for Review and answer to Interrogatory #3, investigation continues.
9.
Identify each landowner entitled to pre-filing notice who did not receive the same,
and for each such landowner, set forth the facts supporting the allegation that he or she was
entitled to pre-filing notice and the facts supporting the allegation that he or she did not receive
8
the same. Also, identify any documents supporting the allegation that any landowner entitled to
receive notice did not receive the same.
ANSWER:
See Answer to Interrogatory No. 2. Likewise, each owner of a property who was
entitled to notice which did not personally sign the returned receipt was denied
proper pre-filing notice. Gary Bradshaw, James Bradshaw, Jay Bradshaw, Ted
Bradshaw, and Denise Fogle were all entitled to be sent pre-filing notices,
however, none of these individuals were sent such a notice. Investigation
continues.
10.
Identify each witness who you will call to testify at the hearing on the Petition,
and describe in detail the subject matter on which that witness will testify and the substance of
the expected testimony.
ANSWER:
This Petitioner has not yet determined which~witnesses it expects to call at
hearing, investigation continues.
Respectfully Submitted,
On behalfof the COUNTY OF KANKAKEE,
ILLINOIS, and EDWARD D. SMITH,
KANKAKEE COUNTY STATE’S
ATTORNEY,
By: Hinshaw & Culbertson
‘~‘
Richard ~4~orter
One of Attorneys
HINSHAW AND CULBERTSON
100 ParkAvenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
This document utilized 100
recycled paper products
70382986v1 827167
9
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions ofSection 1-109 ofthe Illinois Code ofCivil
Procedure, hereby under penalty of perjury under the laws of the United States of America,
certifies that on November 7, 2003, a copy ofthe foregoing was served upon:
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, IL 60601-3218
Attorney George Mueller
501 State Street
Ottawa, IL 61350
(815) 433-4705
(815) 433-4913 FAX
Donald J. Moran
Pederson & Houpt
161 N. Clark Street, Suite 3100
Chicago, IL 60601-3242
(312) 261-2149
(312) 261-1149 FAX
Elizabeth Harvey, Bsq.
Swanson, Martin &
Bell
One IBM Plaza, Suite 2900
330 North Wabash
Chicago, IL 60611
(312) 321-9100
(312) 321-0990 FAX
Kenneth A. Leshen
Leshen & Sliwinski, P.C.
One Dearborn Square, Suite
550
Kankakee, IL 60901-3927
(815) 933-3385
(815) 933-3397 FAX
Christopher W. Bohien
200
B. Court Street, Suite 602
P.O. Box
1787
Kankakee, IL 60901
(815) 939-1133
(815) 939-0994 FAX
70377853v1 827167
L. Patrick Power
956
N. Fifth Avenue
Kankakee, IL 60901
(815) 937-6937
(815) 937-0056 FAX
Byron Sandberg
109 Raub St.
Donovan, IL 60931
byronsandberg(~starband.net
Anjanita Dumas, Clerk
City of Kankakee
385 E. Oak Street
Kankakee, IL 60901
(815) 933-0480
(815) 933-0482 FAX
Claire A. Manning
Posegate & Denes, P.C.
111 N. Sixth Street
Springfield, IL 62705
(217) 522-6152
(217) 522-6184 FAX
Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, IL 60601
(312) 814-8917
(312) 814-3669 FAX
By faxing and by depositing a copy thereof, enclosed in an envelope in the United States Mail at
Rockford, Illinois, proper postage prepaid, before the hour of 5:00 P.M., addressed as above.
~2~iT~
HINSHAW & CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, Illinois 61105-1389
(815) 490-4900
70377853v1 827167
CLERK’S 0~FICE
BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD NO
V 102003
BYRON SANDBERG,
)
STAlE OF
)
POllUtjOfl Controj Board
Petitioner,
)
)
vs.
)
)
CITY OF
KANKAKEE,
ILLINOIS, THE CITY) Case No. PCB 04-33
OF
KANKAKEB,
ILLINOIS CITY COUNCIL,)
TOWN AND COUNTRY UTILITIES, INC.,
)
and KANKAKEE
REGIONAL LANDFILL,
)
L.L.C.,
)
)
Respondents.
)
WASTE MANAGEMENT OF ILLINOIS,
)
INC.,
)
)
Petitioner,
)
)
vs.
)
)
Case No. PCB 04-34
THE CITY OF KANKAKEE, ILLINOIS CITY)
COUNCIL, TOWN AND COUNTRY
)
UTILITIES, INC., and KANKAKEE
)
REGIONAL LANDFILL, L.L.C.,
)
)
Respondents.
)
COUNTY OF KANKAKEE, ILLINOIS and
)
EDWARD D. SMITH, KANKAKEE
COUNTY)
STATE’S ATTORNEY,
)
)
Petitioners,
)
)
vs.
)
)
Case No. PCB 04-35
CITY OF
KANKAKEE, ILLINOIS, THE CITY)
OF
KANKAKEE, ILLINOIS CITY COUNCIL,)
TOWN AND COUNTRY UTILITIES, INC.,
)
and KANKAKEE REGIONAL LANDFILL,
)
L.L.C.,
)
)
Respondents.
)
WED
CLERK’S
OFFICE
PETITIONERS’, COUNTY OF
KANKAKEE,
ILLINOIS AND
EDWARD D. SMITH,
KANKAKEE
COUNTY STATE’S ATTO1~M(,1
02003
RESPONSE TO RESPONDENT, TOWN & COUNTRY
UTILITIES, INC.’S REQUEST FOR PRODUCTIO1~,STATE OF ILLINOIS
OF DOCUMENTS
ollutlon Control Board
NOW COME the Petitioners, COUNTY OF KANKAKEE,
ILLINOIS and
EDWARD D.
SMITH, KANIKAKEE
COUNTY STATE’S ATTORNEY,
and for their Response to
Respondent, TOWN & COUNTRY UTILITIES, INC.’s, Request for Production of Documents,
states as follows:
1.
All statements relating to any
issue raised in the Petition filed herein, including
notes and memoranda ofconversations and tape recordings ofany statements not transcribed.
RESPONSE: See all documents exchanged in regard to County ofKankakee v. Town &
Country Utilities, Inc., et al., PCB 03-3 1, 33, 35 (IPCB 2002) (Town &
Country I); see Complaint for Declaratory Judgment, 21St Judicial Circuit,
2-CH-400, attached hereto; see the exhibits to Defendant’s Motion to
Quash filed in this case; see the record for the City of Kankakee
proceedings; investigation continues.
2.
All documents that have been identified in Petitioner’s Responses to the
Interrogatories propounded by the Respondent, Town & Country Utilities, Inc.
RESPONSE: Attached hereto is a copy of the Complaint for Declaratory Injunctive
Relief, all other documents referenced in the response to interrogatories
have already been produced to Town & Country in the prior proceedings,
or in the underlying City ofKankakee hearing; investigation continues.
3.
All reports ofany kind, nature or extent whatsoever that have been prepared by or
relied upon by any witness who will give opinion testimony during the hearing in this cause.
RESPONSE: Not applicable.
4.
All documents Petitioner intends to present as evidence during the hearing in this
cause.
RESPONSE:
All of the documents upon which Petitioner will rely have been produced
to Town & Country Utilities, Inc. previously or are a part of the
underlying record, or will be seasonably supplemented, investigation
continues.
5.
All documents Petitioner relies upon in support of any of the
allegations in the
Petitioner for Review of Site Location Approval.
2
RESPONSE: See response to request #4.
6.
Any other document not otherwise produced that regards, relates to, or concerns
Petitioners’ claim that (a) the Kankakee City Council lacked jurisdiction to conduct the siting
hearing, or (b) the process conducted by the Kankakee City Council was fundamentally unfair.
RESPONSE: See response to request #4.
Respectfully Submitted,
On behalf of the COUNTY OF
KANKAKEE,
ILLINOIS, and
EDWARD D.
SMITH,
KANKAKEE COUNTY STATE’S
ATTORNEY,
By: Hinshaw & Culbertson
Richard S. Porter
One of Attorneys
HINSHAW AND CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
70382980v1 827167
This document utilized 100
recycled paper products
3
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 ofthe Illinois Code ofCivil
Procedure, hereby under penalty of perjury under the laws of the United States of America,
certifies that on November 7, 2003, a copy ofthe foregoing was served upon:
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, IL 60601-3218
Attorney George Mueller
501 State Street
Ottawa, IL 61350
(815) 433-4705
(815) 433-4913 FAX
Donald J. Moran
Pederson & Houpt
161 N. Clark Street, Suite 3100
Chicago, IL 60601-3242
(312) 261-2149
(312) 261-1149 FAX
Elizabeth Harvey, Esq.
Swanson, Martin & Bell
One IBM Plaza, Suite 2900
330 North Wabash
Chicago, IL 60611
(312) 321-9100
(312) 321-0990 FAX
Kenneth A. Leshen
Leshen & Sliwinski, P.C.
One Dearborn Square, Suite 550
Kankakee, IL 60901-3927
(815) 933-3385
(815) 933-3397 FAX
Christopher W. Bohien
200 E. Court Street, Suite 602
P.O. Box 1787
Kankakee, IL 60901
(815) 939-1133
(815) 939-0994 FAX
70377853v1 827167
L. Patrick Power
956
N. Fifth Avenue
Kankakee, IL 60901
(815)
937-6937
(815) 937-0056 FAX
Byron Sandberg
109 Raub St.
Donovan, IL 60931
byronsandberg~starband.net
Anjanita Dumas, Clerk
City of Kankakee
385 E. Oak Street
Kankakee, IL 60901
(815)
933-0480
(815) 933-0482 FAX
Claire A. Manning
Posegate & Denes, P.C.
111 N. Sixth Street
Springfield, IL 62705
(217) 522-6152
(217) 522-6184 FAX
Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, IL 60601
(312) 814-8917
(312) 814-3669 FAX
By faxing and by depositing a copy thereof, enclosed in an envelope in the United States Mail at
Rockford, Illinois, proper postage prepaid, before the hour of5:00 P.M., addressed as above.
HINSHAW & CULBERTSON
100 Park Avenue
P.O.
Box 1389
Rockford, Illinois 61105-1389
(815) 490-4900
70377853v1 827167
‘~
~
IN THE CIRCUIT COURT
FOR
THE TWENTY-FIRST JUDICIAL CIRCUTT
KANKAXEE
COUNTY,
ILLINOIS
CITY OF KANKAKEE, an Illinois municipal
)
corporation, and DONALD B. GREEN,
)
individually and as Mayor ofthe City ofKankakee,
)
)
PLAINTIFFS,
)
vs.
)
NO. 02-~4
L~b7j
)
COUNTY OF KANXAKEE,
)
)
DEFENDANT.
)
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Now cometheplaintiffs, CITYOF KANKAKEE, an Illinois municipal corporation, andDONALD
E. GREEN, individually and as Mayor of the City ofKankakee, by and through ChRISTOPHER W..
BOHLBN, Corporation Counsel for the City ofKankakee, and complain ofthe defendant, COUNTY OF
KANKAKEE, by alleging and stating as follows:
COUNT I
CLAIM
FOR DECLARATORY RELIEF
I.
PARTIES AND VENUE
1.
The plaintiff, CITYOF KANKAKEE, is amunicipal corporation ofthe State ofIllinois and
is located within the County ofKankakee.
2.
The plaintiff, DONALD E. GREEN, is an individual who resides in the City ofKankakee
and has been the duly-elected Mayor of the City ofKankakee.
3.
Th&~defendant, COUNTY OF KANKAKEE, is a municipal corporation located in the
Coi.inty ofK~nkakeeand is operated by a legislature consisting ofa Board ofSupervisors and, from that
board, a duly-elected chairman ofthe Board ofSupervisors.
C00003.
:~
-2-
II.
CLAIM
4.
This action for declaratory relief is brought pursuant to 735 ILCS 5/2-70 1 against the
defendant, County ofKankakee.
5.
The City of Kankakee, as a municipal corporation, is responsible for the collection and
disposal ofsolid waste generated by the residents ofeach municipality.
6.
The Mayor ofthe City ofKankakee is required, pursuant to applicable regulations of the
Illinois Environmental Protection Act, applicable statutes ofthe State of Illinois, and other applicable
regulations, to assure that the solid waste collection system is accomplished in accordance with said
applicable rules and regulations, including meetingthe goals established by the County ofKarikakee Solid
Waste Plan regardingthe elimination ofrecyclable materials from the collection and disposal ofthe• solid
waste collected in said municipality.
• 7.
Donald E. Green is also a resident ofthe City ofKankakee and has an interest in assuring
that the municipality is in compliance with all applicable ordinances and regulations and, as an individual
taxpayer and payor offees for the services provided, has a direct pecuniary interest in any funds available
forthe purposes ofdefraying any ofsaid costs.
8.
For purposes of this complaint,, the defendant, County of Kankakee, is a unit of local
government as defined in the Local Solid Waste Disposal Act, in which a solid waste disposal facility is
located pursuant to the terms of 415 ILCS 5/22.15(j).
•
•
9.
Pursuant to sajd statutory provisions, the County of Kankakee is authorized to establish,
and has, in facts established, a• fee, tax or surcharge with regard to •the permanent disposal ofsolid waste
in the amount of $1.27 per ton effective January 1, 1992, and thereafter. In addition, the County of
C00004
•
-3-
Kankakeehad established a fee, tax orsurcharge on the disposal ofsolid waste in the amount
of $.95
prior
to
Jarniary
1, 1992.
10.
Pursuant to said statutory provisions, the defendant, County ofKankakee, was required as
follows:
The fees, taxes or surcharges collected under this subsection (j) shall be
placed by the unit oflocal government in a separate fund, and the interest
•
received on the monies in the fund shall be credited to the fund. The
monies in the fund may be accumulated over a period of years to be
expended in accordance with this subsection.
Further, pursuant to said subsection:
The funds received are “to be utilized forsolid waste managernentpurposes,
•
including long-term monitoring and maintenance of landfills, planning,
implementation, inspection, enforcementand other activities consistent with
the Solid Waste ManagementAct and the local Solid Waste Disposal Act.”
•
•
11.
Based upon information and belief, the County ofKankakee has expended said funds in
such a manner that is in violation of the Act. Specifically, the County ofKankakee has expended funds
to:
(a)
Reimbursethe general fundofKankakee County
for
expenditures involved
in the litigation against the City ofKankakee in the amount currently in excess’ ofOne
Hundred Twenty Thousand and No/lOU Dollars ($120,000.00);
•
(b)
Reimburse the general fund ofKankakee County for expenditures made to
pay for salaries ofthe Planning Department ofthe County ofKankakee and for which no
allocation oftime has justified the reimbursement ofsaid expenditures;
•
(c)
Pay for solid waste planning for which no planning has occurred;
(d)
Loan said funds to the defendant’s general fund without repayment ofsaid
funds from the general fund and withoutthe generation ofinterest as a result ofsaid loan;
and
c0000s
-4-
(e)
In other ways has misused and misappropriated the funds obtained as a
result ofsaid fees.
12.
The expenditures made herein by the County of Kankakee are not justified and are in
violation ofthe applicable provisions ofthe Act and are inconsistent with the purposes for which said
funds were collected.
13.
The municipal corporation hereinhas applied with other municipal corporationsto usesaid
funds for purposes ofrecycling and other projects related to solid waste disposal. However, said request
forreimbursement has generally been limited in amount or denied totally.
•
14.
•
The funds, if utilized in accordance with the Act, would have been and can be used for
purposes of assisting in reduction ofthe amount ofsolid waste to be disposed of and/or for the planning
and obtaining of resources for the assistance of local municipalities, including the plaintiff, City of
Kankakee, which are engaged in the actual collection and disposal of solid waste.
15.
An actual controversy exists in that said funds are currently being used forreimbursement
of legal expenses related to the siting of a landfill by Kankakee County, as well as in opposition to the
siting of a landfill by the City ofKankakee.
16.
The use ofsaid funds for any purpose not consistent with the Act is in violation ofthe Act,
and the Kankakee County Board should be required to reimburse the funds to assure that the money is
•
available and used for purposes consistent with the statutes previously cited herein.
III. RELIEF REQUESTED
17.
The plaintiffs hereinrequest that this Court enterajudgment determiningthat the County’s
utilization of said funds, for all purposes other than those consistent with the Act as it should be strictly
construed, be determined to be improperand enter an order requiringthe County ofKankakee to reimburse
the funds established pursuant to said applicable statutory~provisionsfor all monies improperly expended.
coooo~
-5-
WHEREFORE, the plaintiffs, CITY OF KANKAKEE, an Illinois municipal corporation, and
DONALD B. GREEN, individually and asMayor ofthe City ofKankakee, request this Court entera order
declaring the use ofsaid funds by the defendant, COUNTY
OF
KANXAKEE,
to be improper
and illegal
and, further, to enter a judgment against the COUNTY OF KANKAKEE, requiring the County to
reimburse said funds herein.
• •
•
COUNTII
CLAIM FOR INJUNCTIVE RELIEF
•
I. PARTIES AND VENUE
1.
Theplaintiff, CITYOF KANKAKEE, is amunicipal corporation ofthe State ofIllinois and
is located within the County of Kankakee.
•
2.
The plairitiff, DONALD B. GREEN, is an individual who resides in the City’ ofKankakee
and has been the duly-elected Mayor of the City of
Kankakee.
3.
The defendant, COUNTY OF
KANKAKEE, is a municipal corporation located in the
County ofKankakee and is operated by a legislature consisting ofa Board ofSupervisors and, from that
board, a duly-elected chairman ofthe Board ofSupervisors.
II. CLAIM
‘
4.
•
This action for declaratory relief is brought pursuant to 735 ILCS 5/2-701 against the
defendant, County of Kankakee.
5.
The City of Kankakee, as a munióipal corporation, is responsible for the collection and
disposal of solid waste generated by the residents ofeach municipality.
•
6.
The Mayor ofthe City ofKankakee is required, pursuant to applicable regulations ofthe
Illinois Environmental Protection Act, applicable statutes of the State of Illinois, and other applicable
regulations, to assure that the solid waste collection system is accomplished in accordance with said
C00007
-6-
applicable rules and regulations, including meeting the goals established by the County ofKankakeeSolid
Waste Plan regarding the elimination ofrecyclable materials fromlhe collection and disposal ofthe solid
waste collected in said municipality.
7.
Donald E. Green is also a resident ofthe City ofKankakee and has an interest in assuring
that the municipality is in compliance with all applicahie ordinances-and regulations and, as an individual
taxpayer and payor offees for the services provided, has a direct pecuniary interest in anyfunds available
for the purposes ofdefraying any of said costs.
8.
•
For purposes of this complaint, the defendant, County of Kankakee, is a unit of local
government as defmed in the Local Solid Waste Disposal Act, in which a solid waste disposal facility is
located pursuant to the terms of4,15 ILCS
5/22.15(j).
9.
Pursuant to said statutory provisions, the County of Kankakee is authorized to establish,
arid has, in fact, established, a fee, tax or surcharge with regard to the pei~manentdisposal ofsolid waste
•
in the amount of $1.27 per ton effective January
1,
1992, and thereafter. In addition, the County of
Kankakee had established a fee tax or surcharge on the disp6sal ofsolid waste in the amount of$.95 prior
to
January 1,
1992.
10.
Pursuant to said statutory provisions, the defendant, County ofKankakee-, was required as
follows:
The fees, taxes or surcharges collected under this subsection
(j)
shall be
placed by the unit oflocal government in a separate fund, and the interest
•
received on the monies in the fund shall be credited to the fund. The
monies in the fund may be accumulated over a period of years to be
expended in accordance with this subsection.
Further, pursuant to said subsection:
•
•
The funds received are “tobe utilized forsolid waste management purposes,
•
•
including long-term monitoring and maintenance of landfills, planning,
implementation, inspection, enforcement and other activities consistent with
the Solid Waste Management Act and the local Solid WasteDisposal Act.”
c00008
-7-
11.
Based upon information and belief, the County ofKankakee has expended said funds in
such a manner that is in violation ofthe Act. Specifically, the County of Kankakee has expended funds
to:
(a)
Reimbursethe general fund ofKankakee County for expenditures involved
in the litigation against the City of Kankakee in the amount currently in excess of One
Hundred Twenty Thousand and No/lOU Dollars ($120,000.00);
(b)
Reimburse the general fund ofKankakee County for expenditures made to
pay for salaries ofthe Planning Department ofthe County ofKankakee and forwhich no
allocation oftime hasjustified the reimbursement of said expenditures;
(c)
Pay for solid waste planning for which no planning has occurred;
(d)
Loan said funds to the defendant’s general fund withoutrepayment ofsaid
funds from the general fund and without the generation ofinterest as a result ofsaid loan;
and
-
(e)
•
In other ways has misused and misappropriated the funds obtained as a
result of said fees.
•
•
12.
The expenditures made herein by the County of Kankakee are not justified and are in
violation of the applicable provisions ofthe Act and are inconsistent with the purposes for which said
• funds were collected.
•
•
13.
•
The municipal corporation hereinhas applied with othermunicipal corporations to use said
• funds forpurposes ofrecycling and other projects related to solid waste disposal. However, said request
for reimbursement has generally been limited in amount or denied totally.
14.
The funds, if utilized in accordance with the Act, would have been and can be used for
purposes of assisting in reduction of the amount of solid waste to be disposed ofand/or for the planning
C00009
-8-
and obtaining of resources for the assistance of local municipalities, including the plaintiff, City of
Kankakee, which are engaged in the actual collection and disposal of solid waste.
15.
An actual controversy exists in that said funds are currently being used forreimbursement
of legal expenses related to the siting of a landfill by Kankakee County, as well as in opposition to the
siting ofa landfill by the City ofKankakee.
16.
The use of said funds for any purposenot consistent with the Act is in violation ofthe Act,
and the Kankakee County Board should be required to reimburse the funds to assure that the money is
available and used for purposes consistent with the statutes previously cited herein.
17.
The plaintiffbring this cause o,faction for an injunction seeking to enjoin the defendant
from any further misappropriate, misuse or improper expenditure of the funds described in said section.
18.
The plaintiffs have no remedy at law in that if said injunction is not entered, the County of
Kankakee will continue to use said funds improperly in the future, as they have done so up to this point
in time.
• III. RELIEF REQUESTED
19.
The plaintiffs request this Court to grant them injunctive relief against the defendant,
enjoining the defendant from improper expenditure of funds.
WHEREFORE, the plaintiffs, CITY OF KANKAKEE, an Illinois municipal corporation, and
DONALD B. GREEN, individually and as Mayor ofthe City ofKankakee, request this court:
A.
Enter ajudgment declaring that the expenditure offunds by the defendant, COUNTY OF
KANKAKEB, has been and is illegal and improper;
• B.
Issue an injunction prohibiting the defendant, COUNTY OF KANKAKEE, from further
expending said funds in an illegal and improper manner;
G000io
-9-
C.
Award the plaintiffs the cost ofthis action; and
•
D.
Award the plaintiffs any other and further relief as it considers proper.
Respectfully submitted,
CITY OF KANKAKEB, an Illinois municipal
•
corporation, and DONALD E. GREEN,
•
individually and as Mayor ofthe City of Kankakee,
•
~ffs~•~
Christopher W. Bohlen
Corporation Counsel
STATE OF ILLINOIS
COUNTY OF KANKAKEE
DONALD B. GREEN, being first duly sworn and under oath, deposes and states that he is one of
the plaintiffs in the above-entitled cause, that he is the Mayor of City of Kankakee, that he has read the
above
,
and foregoing Complaint for Declaratory and Injunctive Relief, and that the contents therein
contained are true and correct to the best of his
Subscribed and sworn to before me
‘this
~2Q
~
•
V~fr~L—
~
Notary Public
•
Notary PubUc, State of Hhino~s
CHRISTOPHER W. BOHLEN
Reg. No. 00244945
•
Corporation Counsel
•
• •
CityofKankakeee
385 East Oak Street
Kankakee,IL 60901
•
(815) 933-0500
coooii_
‘ •
Donald B. Green
