J3YRON SANDBERG,
Petitioner,
‘vs.
THE CITY OF
KANKA.KEE,
ILLINOIS
CITY
COUNCIL, TOWN & COUNTRY
UTILITIES, INC., and KANKAKEE
REGIONAL LANDFILL, L.L.C.
Respondents.
vs.
THE CITY OF
KANKAKEE,
ILLINOIS
CITY COUNCJL, TOWN & COUNTRY
UTILITIES, NC., and
KANKAKEE
REGIONAL LANDFILL, L.L.C.,
Respondents.
COUNTY OF
KANKAKEE,
ILLINOIS,
and EDWARD D. SMITH,
KANKAKEE
COUNTY STATE’S ATTORNEY,
Petitioners,
vs.
TILE
CITY OF
KANKAKEE, ILLiNOIS
CITY COUNCIL, TOWN & COUNTRY
UTILITIES,, INC.~and
KANKAKEE
REGIONAL LANDFILL, LL.C.,
Respondents.
PCI3 04-33
(Third Party
Pollution Control Facility
Siting Appeal)
PCB 04-34
(Third
Party Pollution Control Facility
Siting Appeal)
TO: See Attached
Service List
PLEASE TAKE NOTICE
that on November 14, 2003 there caused to be filed via U.S. Mail with the
Illinois Pollution Control Board an original and 4 copies of’ the following document, a copy of
which
is attached
hereto:
TOWN & COUNTRY
UTILITIES, INC.’S RESPONSE
TO WASTE MANAGEMENT OF ILLINOIS, INC.’S MOTION TO COMPEL
STATE OF ILLiNOIS
)
BY:__
~
Attorn at Law
PROOF OF SERVICE
)SS.
COUNTY OF LASALLE
)
The undersigned~being flrst duly sworn, state that served a true and correct copy of the Foregoing Notice,
togetherwith a copy of each document referred to therein, upon the person(s) indicated via their facsimile numbers
as indicated in the Service List on the 14th Day of November,
SUBSCRIBED
and SWORN
TO
Before~
f~~~ber,2003.
ILLINOIS POLLUTION CONTROL
BOARD
RE CE ~V ED
CLERK’S
OFFrCE
NOV 142003
STATE OF ILLINOIS
Pollution Control Board
WASTE MANAGEMENT OF ILLINOIS)
INC.,
Petitioner,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
PCBO4-35
)
(Third
Party
Pollution Control Facility
)
Siting
Appeal)
)
(Consolidated)
)
)
NOTICE OF FILING
Notary
Public
OFFiCIAL SEAL
GENIA FOX
• .
‘1
~I~’ii.
SERVICE LIST
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph St.
Chicago,
IL
60601
Donald
J.
Moran
Pedersen & Houpt
161
North
Clark St.
Suite 3100
Chicago. IL 60601
Fax: (312)261-1149
Kenneth A. Leshen
Christopher W. Bohien
Pat Power
City ofKankakee Corporate Counsel
385
East
Oak
St.
Kankakee,
IL
60901-1787
Fax: (815) 933-3397
Byron Sandberg
109 Raub St.
Donovan, IL 60931
byronsandherg(2.1~starband.net
Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph St.
Chicago,IL
60601
Fax:
(312) 814-3669
Edward
D.
Smith, State’s Attorney
Charles F.
Heisten, Esq.
Richard S. Porter, Esq.
Hirishaw and
Cuibertson
P.O. Box 1389
Rockford, IL 61105-1389
Fax: (815)490-4901
Elizabeth Harvey, Esq.
Swanson,
Martin &
Bell
One IBM Plaza
Suite
2900
330
North
Wabash
Chicago, IL 60611
Fax: (312)321-0990
Claire Manning
Posegate & Denes
lii N. 6th St., Suite 200
Springfield. IL 62701
Fax: (217) 522-6184
THE ILLiNOIS POLLUTION CONTROL BOARD
BYRON SANDBERG,
)
PetitIoner,
)
vs..
)
PCB04-33
THE CITY OF KANKAKEE, ILLINOIS)
(Third
Party
Pollution Control Facility
CITY
COUNCIL, TOWN & COUNTRY)
Siting
Appeal)
UTILITIES, INC., and
KANKAKEE
)
REGIONAL LANDFILL, LLC.
)
Respondents.
)
WASTE MANAGEMENT OF ILLINOIS)
INC.,
)
Petitioner,
)
vs.
)
PCB04-34
THE
CITY OF
KANKAKEE,
ILLINOIS)
(Third
Party
Pollution Control Facility
CITY COUNCIL, TOWN & COUNTRY)
Siting Appeal)
UTILITIES, INC., and
KANKAKEE
)
REGIONAL LANDFILL, L.L.C.,
)
Respondents.
)
COUNTY OF KANKAKEE, ILLINOIS,)
2nd EDWARD D. SMITH,
KANKAKEE)
COUNTY STATE’S ATTORNEY,
)
Petitioners~
.
)
vs.
)
PCB 04-35
THE
CITY OF
KANKAKEE,
ILLINOIS)
(Third
Party
Pollution Control Facility
CITY COUNCIL, TOWN & COUNTRY)
Siting Appeal)
UTILITIES, INC., and
KANKAKEE
)
(Consolidated)
REGIONAL LANDFILL, L.L.C.,
)
Respondents.
)
TOWN & COUNTRY
UTiLITIES,
INC.’S RESPONSE
TO WASTE MANAGEMENT OF ILLINOIS, INC.’S MOTION TO COMPEL
Now
come Town. & Countty
Utilities, Inc. and Kankakee Regional Landfill, L.L.C. by
their attorney, George Mueller, (hereinafter “Town & Country”) and in their Response to the
Motion ofWaste Management offlhinois, Inc.’s to compel answers to their previous Request To
Admit and to one oftheir Interrogatories, state as follows:
BACKGRO1JND
Waste Management ofIllinois previously served upon Town & Country 37 Requests To
Admit Or Deny pursuant
to
Supreme
Court Rule 216. Town & Country filedAnswers admitting
some Requests, denying others and objecting to a number ofRequests. What remains at issue are
Town & Country’s Responses to Requests 2 through
5
where Town & Country objected to each
Request, but did also provide a Response. These Responses are apparently insufficient for Waste
Management. Also at issue is Town & Country’s objection to Requests 19 to 36. Requests 2
through
5
deal with the service of notice to the owners ofParcel 13-16-23-400-001. Requests 19
through 36 address the question ofwhether or not the Town & County Siting Application is
substantially the same as a previous Application filed by Town & Country with the Kanicakee
City Council.
DISCUSSION
With regard to Requests 2 and 3, Town & Country objected to the same as calling for a
legal conclusion, but Town & Country also offered, by way of additional response, that the
records ofthe Kankakee County
Treasurer speak for themselves. Town &
Country, at this time,
withdraws the objection that these Requests call for a legal conclusion, but submits that the
answer already provided is sufficient. However, by way of supplemental answer, Town &
Country would State both in response to Requests 2 and 3 the following:
“Respondent admits that the named individuals are listed as owners,
but points out that the Request is incomplete and misleading in. that
the records also list Judith A. Skates as the designated representative
to receive tax bills. The record.s also list the owners as “Bradshaw,
James and Bradshaw, Ted, Ct at, Skates, Judith
A.”
The records
also list the owners as, “Skates, Judith A.” The records
also list
the owners as, “Skates, Judith and Bradshaw.”
With regard to Request To Admit No. 4, Waste Management argues; “The word
‘individually” refers to whether the Notice was served on Mrs. Skates personally, as opposed to
collectively or in a representative capacity, and thus relates to the method of service and the
capacity in which she received notice.” To the extent that Town & Country believes the
foregoing sentence is incomprehensible, it tends to prove the point in the objection that the
Request required Town & Country to legally interpret the meaning ofthe word “individually.”
The capacity in which Judith Skates received notice, either individually or as arepresentative of
some other group, is clearly a question oflaw whereas whether and hownotice was physically
delivered to her is a question offact.
Waste Management cites a number ofcases on the issue ofwhat constitutes a question of
fact and what constitutes a question oflaw within the meaning of those terms in Requests To
Admit. Huheny v. Chairse, (citation omitted), Robertson v. Sky Chefs,Inc. (citation omitted),
and Szczeblewski v. Gossett, (citation omitted), all cited by Waste, are all auto accident cases
where the contested admissions dealt with the manner and form ofa party’s driving a motor
vehicle. These cases are all the progeny ofour Supreme Court’s decision in PRS International,
Inc. v. Shred Pax Co~, 184 Ill.2d 224 (1998). In that case, the Court gave a useful example of
when a Request To Admit calls for a fact and when it calls for a legal conclusion:
“For example, a party’s conduct pursuant to a contract, including
what actions that party did or did not take, would be a factual
question properly included in a Request To Admit. However.
whether that conduct amounts to a material breach is a legal
rather than a factual question, and thus is not appropriate for a
Request To Admit. In subsequent filings, the other party may
3
refer to that
party’s conduct under the contract and argue that
it amounts
to a breach, but the
language
of Rule 216 refers
only
to factual issues.” (At 184 IU.2d 236, 237).
The sum
and
substance of the facts regarding physical service of not ice on Judith Skates
is set forth in. more detail in Town & Country’s Supplemental Response to Request To Admit
No. 4, as follows:
“A certified mail notice was sent to “Judith
A. Skates, 203 S. Locust,
Onarga, IL
60955”
as mailing number 70022410000628156442.
Said
notice
was
signed for by Judith Skates on February 12, 2003.
A certified mail notice was
sent to
“Gary
L. Bradshaw, James R.
Bradshaw, J.D. Bradshaw, Ted A. Bradshaw, arid
Denise Fogel,
do
Judith Skates,203 S. Locust, Onarga, IL
60955
as
mailing number
70022410000628156428. Said Notice was signed for by Judith Skates
on February
12, 2003.”
The foregoing arguments also all apply to Request To Admit No.
5.
The phrase used by
Waste Management in this Request, “on behalf of’ again calls for Town & Country
to render
legal conclusions regarding
legal status and capacity. As indicated on the face ofthe relevant
certified mailing
card,
a copy ofwhich was included with the siting Application, the Notice was
sent to the individuals
named in this Request “c/o Judith Skates.” The term “do” is
generally
understood to mean “care of.” The fact, then, is no longer is dispute. Whether the other
individuals in the named Request are by reason ofthis fact deemed to be served, constructively, in
representative capacity, or not at allis a question for the Pollution Control Board to resolve.
More precisely, it is a question that the Pollution Control Board already ~ resolved in its
decision ofJanuary 9, 2003 in PCB 03-31 where the Board actually devoted a full page ofits
Opinion to what it referred to as the “Skates parcel.” (Slip Opinion at 16, 17). The Board
ultimately thund in that case that “service
4
en
Judith Skates only was consistent with the
records
ofthe Treasurer’s Office. Town &
Country has satisfied
the
requirements for service under Section 3 9.2(b) ofthe Act.”
The other set of contested Requests present an entirely different issue altogether. Waste
Management’s Requests To Admit No.19 through 36 all address factual similarities or
dissimilarities between the instant Application and a previous Application for siting approval
filed by Town & Country Utilities. The issue in this instance is not whether the Requests call for
a legal conclusion, but rather whether or not they are relevant and material.
In 2002, Town & Country filed a Request For Siting Approval with the City ofKankakee
which was unanimously granted by the Kankákee
City Council. The PCB reversed on
January 9,
2003 in PCB Case No.03-31 finding that the City Council’s decision that the proposed facility
was so designed, located, and proposed to be operated. as to protect the public health, safety, and
welfare was againstthe manifest weight ofthe evidence. On March 7, 2003, Town & Countzy
filed a second siting Application with the City ofKankakee seeking siting approval for the same
property. At the outset ofthe siting hearing, Waste Management filed a Motion To Dismiss
based upon the fact that the twoApplications were substantially the same. Section 39.2(m) of
the Act provides that, “An applicant may not file a request for local siting approval which is
substantially the same as a request which was disapproved pursuant to a finding against the
applicant under any of criteria 1 through 9 ofsubsection(a) of this section within the preceding
two years.” After hearing argument and authority from both sides, the Hearing Officer denied
the Motion, and the siting hearing proceeded. Subsequently, the City of Kankakee granted siting
approval and found both that the PCB’s decision reversing the previous siting approval on the
first Application was not “disapproval” within the meaning ofthat term in Section 39.2, and also
5
that the two Applications were not “substantially the same.” The Kankakee City Council’s
findings on this issue
and
detailed factual findings with regard to differences in the two
Applications are set forth on Page 4 of its final Findings Of Fact
And
Conclusions Of Law.
The way in which the Board is to consider
this issue has
been directly
addressed in
the
past,
both by the Board
and
the Appellate Court.
When
this
was an
issue offirst impression, the
Board in PCB 90-137 on
November
29, 1990
foundthat
two applications submitted to the
Village of Roxarina by Laidlaw Waste Systems were substantially the
same. Laidlaw appealed,
and
the Appellate Court reversed
and
remanded. Specifically, even though the Board had
previously deemed the issue ofsubstantial similarity a “jurisdictional issue,” the Appellate Court
found that the
local siting authority
is required to
make
findings of fact
with
respect to whether or
not the two siting a~plicationsare
substantially the
same, and the Board’s review is limIted, to a
determination of whether those findings are against the manifest weight of th.e evidence. The
Court specifically stated with regard to the determination of whether applications are
substantially similar:
‘Laidlaw is correct with respect to the standard ofreview to
be utilized by the Board in reviewing the decision ofthe
Village ofRoxanna. In administrative law, the determinations
and conclusions ofthe fact finder, in this case the (local
governing body) are generally deemed conclusive. The
reviewing tribunal is not allowed to determine issues
independently, to substitute its own judgment, or to re-weigh
the evidence. In other words, the reviewing tribunal should
not reverse the findings arid conclusions initially reached
simply because it would have weighed the evidence in a
different manner.” Laidlaw Waste Systems, Inc. v. Pollution
Control Board, 230 IlLApp.3rd 132,
595
N.E.id 600
(5th
Dist. 1992).
6
On remand, the Pollution Control Board in its Opinion And
Order of September 9, 1993
in PCB 90-137 applied the correct standard on review and found that the Villages decision that
the two siting applications were not substantially the same was not againstthe manifest weight of
the evidence.
In this context, whether or not the two Applications of Town & Country are
substantially
the
same is not a
fact which
can
he proven by Waste
Management at the upcoming Board
hearing, or disproven by Town &
Country
at that hearing.
Our Supreme Court
in the lead case
cited by Waste Management in their Motion To Compel, PRS International. 184 I1l.2d 224, held
that the purpose of the
rule governing Requests To Admit
is “to establish some of the material
facts in a case without the necessity offormal proof
at trial.”
(184 Ill.2d at 237). Accordingly,
what Town & Country, or
any
other party, may think of the similarity or dissimilarity of the two
siting
Applications is factually irrelevant to the closed record since the law is well established
that on
this
issue the PCB’s
only
job is to review that record to determine
whether or not the City
Council’s findings offact
are against the manifest weight ofthe evidence.
Lastly, Waste Management seeks to compel answer
to
their Interrogatory No.
5
which
seeks Town & Country’s basis for any and all ofits denials in the Requests To Admit. This
Interrogatory is clearly vague and over broad. IfRequests To Admit truly are limited to facts,
then a denial ofa Request simply means that the responding party believes the fact not to be true.
Consider, for example, Town & Country’s denial of Waste Management’s Request No. 37, a
statement that prior to August 18, 2003 Town & Country received a copy ofthe final report of
.7
Mr. Ralph Yarborough ofGeo-Technical Associates, Inc. The statement is denied because it is
not true. Town & Country never received the report prior to August 18, 2003. No other basis or
explanation is required.
CONCLUSION
For the foregoing reasons, Town & Country prays that the Motion To Compel ofWaste
Management of Illinois be denied, subject only to the supplemental information and clarification
provided by Town & Country herein.
Respectfully Submitted,
Town& Country Utilities, Inc. and
Kankakee Regional Landfill, LLC
BY:
Q~
fl1w~)
On6of Their Attorneys
GEORGE MUELLER, P.C.
Attorney at
Law
501 State
Street
Ottawa,
IL 61350
Phone: (815) 433-4705
8
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GEORGE MT1ELLEI4 P.C
501 Stale
Street
Owzwa,11 61350
Phone: (815)
453-4705
Fax.’ (81~)433-4913
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