RECEIVED
CLERK’S OFFICE
THE ILLINOIS POLLUTION CONTROL BOARD
NOV 1 72003
BYRONPetitioner,SANDBERG,
))
pollutionSTATE
OF
Control
ILLINOIS
Board
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, L.L.C.
)
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,)
and EDWARD D. SMITH,
KANKAKEE)
COUNTY STATE’S ATTORNEY,
)
Petitioners,
)
vs.
)
PCB04-35
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
& Country Utilities, Inc. and Kankakee Regional Landfill, L.L.C. by
their aftomey, George Mueller, (hereinafter “Town & Country”) and in their Response to the
Motion ofWaste Management ofIllinois, Inc.’s to compel answers to their previous Request To
Admit and to one oftheir Interrogatories, state as follows:
BACKGROUND
Waste Management ofIllinois previously served upon Town & Country 37 Requests To
Admit Or Deny pursuant to Supreme Court Rule 216. Town & Country filed Answers 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 ofnotice to the owners of Parcel 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 Applicatipn filed by Town & Country with the Kankakee
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 ofadditional 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 ofsupplemental 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 records also list the owners as “Bradshaw,
James and Bradshaw, Ted, et al., Skates, Judith A.” The records
2
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 ofservice 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 oras a representative of
some other group, is clearly a question oflaw whereas whether and how notice 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 of law within the meaning ofthose terms in Requests To
Admit. Huheny v. Chairse, (citation omitted), Robertson v. Sky Ci fsj~~(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 Corp., 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 ofRule 216 refers
only to factual issues.” (At 184 Ill.2d 236, 237).
The sum and substance ofthe facts regarding physical service ofnotice 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, and 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 “do Judith Skates.” The term ~
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 all is 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 of its
Opinion to what it referred to as the “Skates parcel.” (Slip Opinion at 16, 17). The Board
ultimately found in that case that “service
4
on Judith Skates only was consistent with the records ofthe Treasurer’s Office. Town &
Country has satisfied the requirements for service under Section 39.2(b) ofthe Act.”
The other set ofcontested 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 Kankakee 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 & Country
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 two Applications were substantially the same. Section 3 9.2(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 ofKankakee 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 ofits 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 found that two applications submitted to the
Village of Roxanna 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 applications are substantially the same, and the Board’s review is limited to a
determination ofwhetherthose findings are againstthe manifest weight ofthe evidence. The
Court specifically stated with regard to the determination ofwhether 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 and conclusions initially reached
simply because it would have weighed the evidence in a
different manner.” Laidlaw Waste Systems, Inc. v. Pollution
Control Board, 230 Ill.App.3rd 132,
595
N.E.2d 600
(5tl~
Dist. 1992).
6
On remand, the Pollution Control Board in its Opinion And Order ofSeptember 9, 1993
in PCB 90-137 applied the correct standard on review and found that the Village’s decision that
the two siting applications were not substantially the same was not against the manifest weight of
the evidence.
In this context, whether or not the two Applications ofTown & Country are substantially
the same is not a fact which can be 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 Ill.2d 224, held
that the purpose ofthe rule governing Requests To Admit is “to establish some ofthe material
facts in a case withoutthe necessity offormal proofat trial.” (184 I1l.2d at 237). Accordingly,
what Town & Country, or any other party, may think ofthe similarity ordissimilarity ofthe 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 theirInterrogatory No.
5
which
seeks Town & Country’s basis for any and all of its 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 of a 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 ofIllinois 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~
Ond’of Their Attorneys
GEORGE MUELLER, P.C.
Attorney at Law
501 State Street
• Ottawa, IL 61350
Phone: (815) 433-4705
8