Dec 08 03 O1:46p

Pose~ate ~ Denes

2175226184

p.IO

CL~

~E

OF~!r’p

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

1J~I~

t;

WASTE MANAGEMENT OF ILLINOIS, COUNTY OF

)

STATE OF ~LL1NOi5

KANKAKEE, ILLINOIS and EDWARD D. SMITH.

)

Pollution Control

&QT~

KANKAKEE COUNTY STATE’S ATTORNEY,

)

And BYRON SANDBERG

)

)

Petitioners

)

v.

)

PCB Nos 04-33, 04-34, 04-35

THE CITY OF KANKAKEE, ILLINOIS. TOWN AND

)

COUNTRY UTILITIES, INC. and KANKAKEE

REGIONAL LANDFILL, L.L.C.

)

LIVINGSTON COUNTY, ILLINOIS

)

Respondents

NOTICE OF FILING

PLEASE TAKE NOTICE that on December 9, I caused to be flied, with the Board’s

Clerk’s Office, via fax, with permission, one copy of the attached RESPONSE TO THE

COUNTY’S MOTION TO DISQUALIFY. I also placed, on December 9, 2003, in United States

mail, copies of tile attached RESPONSE to all those on the effective service list, as set forth in

the attached PROOF OF SERViCE. I also placed, in United States overnight mail, on December

9, 2003, an original and nine (9) copies of this document, addressed as follows:

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 W.

Randolph, Suite 11-500

Chicago, Illinois 60601-32 iS

Claire A. Manning, Attorney

Printed on Recycled Paper

In

accordance with 35 III.

Adrn.

Code 101.202 and 101.3(~(g)

---

Dec 09 03 01:43p

Pose~te ~ Denes

2175226184

:RE ~

~VED

~‘

L.t~t-

~

BEFORE THE ILLINOIS POLLUTiON CONTROL BOAR!)

~

~ 2

S’l~T~OF ILLINOIS

\VASTE MANAGEMENT OF ILLINOIS. COUNTY OF

)

Pollution

Control

Board

IKANKAKEE. ILLINOIS and EDWARD D. SMITH.

)

KANKAKEE COUNTY STATE’S ATTORNEY,

)

And BYRON SANDBERG

)

)

Petitioners

)

V.

.

)

PCB Nos 04-33. 04-34, 04-35

THE CiTY OF KANKAKEE, ILLiNOIS, TOWN AND

)

COUNTRY UTILiTIES. iNC. and KANKAK.EE

)

REGIONAL LANDFILL, L.L.C,

)

LiVINGSTON COUNTY, ILLINOIS

)

)

Respondents

RESPONSE TO COUNTY’S MOTION TO DISOU~LffY

Now comes CLAIRE A. MA~ING,of counsel to Pos~gate& Denes, P.C., and in

response to the County’s Motion to Disqualify (“Motion”), filed with Board Hearing Officer

Bradley Halloran on December 1, 2003, provides the following.

As a preliminary matter, the County’s Motion is unnecessary, in that it was preceded by a

“Request Concerning Appearance” (“Request”) which I myself filed with the Board on

November 20, 2003, to which the County had already responded. While my Request was not

styled a “motion,” it nonetheless “moved” for a Board determination regarding the applicability

ofBoard procedural Rule 101.112(b) (35 Ill Mm. Code 101.112(b)) to my continued appearance

in this matter as counsel to Town and Country Utilities, Inc. As a question concerning the

application of that procedural rule to my appearance in this matter had been raised, and could

only be resolved through the Board’s own processes, I sought tile Board’s determination on this

matter and, clear from my request, would accept the Board’s interpretation ofthis rule to these

circumstances. Accordingly, there is and was. no need for the County’s Motion to Disqualify.

---

Dec 05 03 01:44p

Pose~ate ~ DeneS

2175226184

p.3

Nonetheless, since such motion was filed, I

offer the

following

in

response to the

County’s Motion,

as well as to its

“Response and Objections

to Attorney Manning’s Request

Concerning Appearance” (County’s Response) flIed with the Board on November 25. 2003.

Since the County’s filings are replete with misrepresentations concerning the events that gave

rise to my Request, this Response will also attempt to offer clarification and context to that

Request.

First and foremost, regardless of the attempts of County’s counsel to portray it otherwise,

the Board is well aware that I am not seeking to appear in a proceeding that was pending while I

was at the Board. Recognizing that my participation in most cases that were filed and docketed

during my tenure as Chairman would be “personal and substantial,” I have already determined

that I will not appear in any proceeding that was docketed and pending while was at the Board.

Thus, the Board’s recent decision in

People v. Skokie Vailep Asphalt Co., inc.,

PCB 96-

98 (October 16, 2003), while raised by the county and argued to be dispositive ofthe issue ofmy

participation in this matter, is really not even relevant to the applicability o~’Rule101.112(b) to

tile instant circumstances. In that case the Board disqualified former Board Attorney Assistant

Joel Sterustein, now an Assistant Attorney General, from participating in that proceeding, as a

representative ofthe People, because the case was docketed and pending while Mr. Sternstein

was at the Board. The Board determined that, as an Assistant to a Board member, Mr.

Sterustein’s participation in any pending proceeding would have been “personal and substantial”

and accordingly would require the application of Rule 101.112(b), which requires consent ofall

parties prior to participation:

“No former Board Member or Board employee may represent any other person in any

Board proceeding in which he or she participated. personally and substantially as a Board

Member or Board employee, unless the Board and, as applicable, all parties or

Printed

on

Recycled Paper

In accordance with

35 111. Adni.

Code 101.202 and 101.302(g)

,~

Pa~e2

---

Dec

09 03

01:44p

Pose~ate & Denes

217S226184

proponents in the proceeding consent in writing afler disclosure of the participation.” 35

Ill. Adm Code 101.112

By

its

very language this rule only applies to the representation of a party in any

~‘Board

proceeding” in which the tbrmer Member or attorney participated “personally and substantially”

while he or she was at the Board. Yet. the County uses the Board’s deterrninatioii in

Skokie

Valle)’

to call for a Board determination as to whether my participation in the earlier proceeding

wtis

personal and substantial and, if it

was, bootstrap the application ofRule 01.112(b) to the

instant proceeding as well.

However, the Board’s focus on my Request ought not to be whether my participation in a

prior and different proceeding was personal and substantial as the Board interpreted that

phraseology in

Skokie Valley.

Indeed, such argument puts the “qart before the horse” because

Rule 101.112(b) only presumes conflict (and accordingly requires consent olihe parties) in those

proceedings that were pending while I was at the Board. Thus, since the instant PCB 04-33, 04-

34. 04-35 (consolidated) is an entirely different docketed proceeding than PCB

03~-3

1,

03-33

and

03-35 (consolidated), Board Rule 101.112(b) neither requires consent for my appearance in this

proceeding norprohibits that appearance.

The argument urged by the County not only fails to focus on the language of the rule

itself, it urges a reading ofthe rule that expands it well beyond its intended prohibition. A

review ofthe letter from Kankakee County State’s Attorney Ed Smith to me dated October 28,

2003 (see Request, Attachment

C),

makes that expansion clear. It was, indeed, Mr. Smith’s

letter, and his application of

Skokie Valley

to the instant proceeding, that motivated me to file the

Request so that the Board might clearly address the application ofRule 101.112(b) to this

particular proceeding.

Printed on Recycled Paper

In accordance with 35 111. Adxri. Code 10 1.202 and 101.302(g)

~

Page

3

---

Dec

05

03 01:44p

Fose~te ~ Denes

217522S184

p.S

County’s

counsel, in its obvious zeal to preclude

me

from representing

Town & Country

in

this matter, ignores

the language of the rule itself and, regrettably and seriously, misinterprets

the arguments I made in my Request. I did not indicate that Rule 101.112(b) would unduly

restrict me

in the practice of law (County

Response,

Paragraph 19), nor did I attempt to “draw

this Board’s

attention away

from her conflict ofinterest in this case by insinuating that some

other attorney who has entered an appe4rance in this proceeding also has a conflict ofinterest.”

(County Response, Paragraph 17). Rather, my comments in paragraph IX, set forth verbatim

below, were simply made in response to the County’s attempts to broaden the intended

application of Rule l0l.112(b)’s restrictions to proceedings that, while not the same as the one at

issue, nonethcless have a dearee of commonality of issues and parties:

“Since there is, quite often a similarity of issues and identity of parties in the practice of

law, and especially so in a specialized practice, the Board should exercise great care in its

interpretation of Rule 101.112(b). Specifically, to interpret the rule so broadly that it

applies, and consent is required, whenever there is a similarity of issues and identity of

parties would unduly restrict me, and others, in the proper and appropriate practice of

law. As the Board knows, the environmental law community has a myriad of lawyers

within its ranks that were once members or employees of the Illinois Pollution Control

Board. Indeed, there is another attorney in this very proceeding, engaged by the county,

who was au attorney assistant at the Board during the late 80’s and 90’s who, during her

tenure, provided considerable input into the landfill siting decisions that today serve as

the precedent for other landfill siting issues, some ofwhich are

~e1evantto the legal issues

in this very proceeding.” (Request, Paragraph 18)

Those comments were no more intended to impugn the integrity of an excellent former

Board attorney, regardless ofher actual status in this proceeding, than theywere intended to

impugn my own. The point is simply that rules are written so that those who practice before the

Board know what their obligations and responsibilities are. Rule 101. 112(b), on its face,

requires that if a party desires to engage me to represent them in a proceeding that was pending

while I was at the Board, I can only do so with the consent of all parties. For my own personal

Printed on Recycled Paper

In accordatice

with 35

Iii.

Mm.

Code 10 1.202 ai-id 10 1.302(g)

~ Page 4

---

Dec 09 03 0l:44p

Poseg~te ~ Denes

2175225184

p.6

reasons.

I

have deteniiined never to represent any party in any proceeding that was pending

while I was at the Board. Thus, issues concerning the nature ofmy participation in a proceeding

that had been pending while I was Chairman should never be the focus of inquiry and “consent”

to my participation generally should not be required.

The County asks the Board in this proceeding, however, to obscure that bright line. In a

not so slight ofhand County’s counsel: ignores the language of the Board’s rule; makes no

argument concerning

why these separate “proceedings” should be considered the same for

purposes of Rule 101.112(b); obfuscates the fact that it waslwho sought the Board’s

clarification of the application of Rule 101.112(b) to my appearance in this proceeding; and,

generally, misconstrues the nature and intention of my Request. The Board should not be

hoodwinked by such chicanery.

To get to the meat of this issue, there are several reasons why the Board, for purposes of

Rule 101.112(b), should declare that this rule does not apply to my participation in the instant

proceeding and that this proceeding, for purposes of Rule 101.112(b) is simply not the same

proceeding

as the earlier City of Kankakee landfill siting appeal. Those reasons are as follows:

(1)

The rule uses the word “proceeding;” it does not use any other word or concept; a

basic and general rule of statutory and regulatory construction is that words ought to be given

their generally understood meaning;

(2)

The gencrally understood meaning of“proceeding” in Board practice, and in the

Board’s definition contained in its procedural rules, is

that a

proceeding is an “action” (sec

35

Ill.

Adrn. Code 101.202), docketed and numbered at the time of filing. While dockets may get

consolidated, and then would constitute the same “proceeding,” such is not the case here.

Printed on Recycled Paper

In accordance with 35 Ill. Adrn. Code 101.202 and 10 1.302(g)

,~

Page 5

---

Dec 05 03 01:45p

Pcse~te ~ Denes

21 5225184

p.7

(3)

The instant

three

cases, filed in September of 2003, and docketed into a single

proceeding (PCB 04-33, 04-34, 04-35), constitute three

separate appeals of a siting determination

made by the City ofKankakee in August of 2003, pursuant to an application filed by Town and

County in March of 2003, and a hearing held before the City on that application in June of 2003.

All those actions occurred after I left the Board (December 31, 2002).

(4)

The prior three cases, filed with the Board on September 20, 2002 and docketed

into a single proceeding (PC.B 03-31, 03-33, 03-35)

constituted

an appeal of an earlier siting

determination made

by

the City of Kankakee, pursuant to a different

application and, obviously,

with an entirely different set ofhearings.

(5)

That proceeding

was filed in my waning days as Chairman and Ihad the

following role: (a)

I

authored

and moved the Board’s

administr~tive“Set for Hearing Order”;

(b) I authored and moved a Board order denying the County’s Motion for Summary Judgment;

(c)

I

assigned the matter to the authoring Board member.

(6)

The

swnmary judgment motion and

order, referenced above, solely concerned the

County’s argument that the City’s hearing, held in June of2002, was fiLudamentallyunfair.

Certainly a rarity in a landfill siting appeal, the County’s summaryjudgment motion, filed with

the Board on October 23, 2003, itself stated that it was brought “on the sole issue ofthe failure to

provide a public hearing, as such is

aper se

violation of fundamental fairness, and dispositive of

the entire case.” (October 23 Motion at p. 2) The order denied the motion, so that all substantive

matters would be decided in the Board’s final Opinion and Order concerning th.is appeal.

(7)

The entirety of the substantive issues before the Board in PCB 03-31, 03-33, and

03-3

5

were decided by the Board in its Opinion and Order which was rendered after I left the

Printed

on.

Recycled Paper

In accordance

with

35

Iii. Adni.

Code 10 1.202

and 101.3O2(g) ~ Page 6

---

Dec 09 03 01:45p

Fcjse~te ~ Denes

2175226184

p.8

Board and

in which I did not participate. Further, I did

not articipate

in any of the deliberations

or Board or staff discussions that led to the Board’s decision on the issues in that proceeding.

Clearly, the County desires that the Board expand the scope of Rule lOLll2(

),

so that

the issue of consent will preclude me from appearing in this matter. While I certainly appreciate

that the rule was promulgated to serve as a watchdog for conflict, the rule should he interpreted

as written. As I stated in my Request, when Town and Country approached me in October of

2003, I reviewed this rule, as well as the Rules of Professional Conduct for

Attorneys. I was

also, ofcourse, aware of the degree of my participation, and non-participation, in PCB 03-3 1, 03-

33 and 03-35. Obviously, I did not consider that my participation in that proceeding created a

conflict in terms of my representation of Town and County in this proceeding. For the Board to

broaden the scope of its rules, by analyzing the degree of my participation in an earlier.

tangentially related proceeding, is to add unwritten requirements to Rule 101 .112(b)

—

requirements that

were not there when I agreed to serve as counsel to Town and County.

I appreciate the Board’s attention in this matter and will, of course, abide by the

consequences ofits interpretation ofRule 101.112(b).

Res ectfully submit

Claire A. Manning, Attorney

CLAIRE A. MANNING

/

Posegate & Denes, P.C.

lit N. Sixth Street

Springfield, Illinois 62705

(217) 522-6152

(217) 522-6184 (FAX)

claire@.ppsegate-denes. corn

Printed on Recycled Paper

In accordauce with

35 Ill. Adni.

Code

101.202 arid 101.302(g)

Page 7

---

Dec 09 03 01:45p

Posegat’e ~ Denes

2175226184

R

~

c

i~

V E~

p.9

Ct.FT~’~

C1~C

- ~

02003F~JCE

BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD

Pdll~tj~

~

Board

WASTE MANAGEMENT OF ILLINOIS, COUNTY OF

KANKAK.EE, ILLINOIS and EDWARD D. SMITH,

KANKAKEE COUNTY STATE’ S ATTORNEY,

And BYRON SANDBERG

)

)

)

)

V

Petitioners

THE CITY OF KANKAKEE, ILLINOIS,

TOWN

AND

COUNTRY UTILITIES, INC. and KA.NKAKEE

REGIONAL LANDFILL, L.L.C.

LIVINGSTON COUNTY, ILLINOIS

Respondents

)

)

PCB Nos 04-33, 04-34. 04-35

)

)

)

)

)

AFFIDAVIT

OF CLAIRE A. MANNING

Now comes affiant, CLAIRE A. MANNING, of Posegate & Denes, P.C. and states that

all of the facts set forth in the preceding document, entitled RESPONSE TO COUNTY’S

MOTION TO DISQUALIFY are, to the best of my kno\vledge, true and accurate.

Furthereth, Affiant sayeth not.

)

ss

County of Sangarnon

)

Subscribed and sworn to before me this

9th

da of December

•~

.Y PUBLIC, STATE OP

ll.UNO~

~

Public

~.)MMISSIONEXPIRES 11’2~2O~

Printed on Recycled Paper

In accordance with

35

111. Adrn. Code 101.202 and l01.30~(g)

State of Illinois

)

Claire A.

Manning, Attorney

---

Dec 09 03 01:46p

Pcse~ate ~ Denes

2175226184

PROOF OF SERVICE

The undersigned hereby under penalty ofperjury under the laws of the United States of

America, certifies that on December 9, 2003 she served a copy ofthe for.egoing upon:

Dorothy M. Guim, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100W. Randolph, Suite 11-500

Chicago, Illinois 60601-3218

Bradley P. Halloran, Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100W. Randolph, Suite 11-500

Chicago, Illinois 60601-3218

(312) 814-8917

(312) 814-3669 FAX

George Mueller

501 State Street

Ottawa, IL 61350

(815) 433-4705

(815) 433-4913 FAX

Donald J. Moran

Pedersen & Houpt

161 North Clark Street

Suite 3100.

Chicago, IL 6060 1-3224

(312) 261-2149

(312) 261-1149—FAX

Elizabeth S. Harvey

Swanson, Martin & Bell

One IBM Plaza, 330 North Wabash

Suite 2900

Chicago, IL 60611

(312) 321-9100

(312) 321-0990

FAX

Edward

Smith

Kankalcee County Administration Bldg

189 B. Court St.

Kankakee,

IL

60901

(815) 937-3932 FAX

Kenneth A. Leshen

Leshen & Sliwinski

One Dearborn Square, Suite 550

Kankakee, IL 60901

(815) 933-3385

(815) ~933-3397FAX

Christopher Bohien

Barmann, Kramer and Bohlen, P.C.

200 East Court Street, Suite 602

P.O. Box 1787

Kankakee, IL 60901

(815) 939-1133

(815)

939-0994 FAX

L. Patrick Power

956

NorthFifth Avenue

Kankakee, IL 60901

(815)

937-6937

(815) 937-0056 FAX

Richard S. Porter

charles F. Heisten

Hinshaw & Culbertson

100 Park Avenue

P.O.

Box 1389

Rockford, IL 61105-1389

(81 5)490-4900

(815) 937-3932 FAX

Byron Sandberg

109 Raub St.

Donovan, IL 60931

~onsandber~@starband.net

Anjanita Dumas, Clerk

City of Kankakee

385E. Oak Street

Kankakee, IL 60901

(815) 933-0480

(815) 933-0482 FAX

Printed on Recycled Paper

In accordance with 35111.

Adm. Code

101.202 and 101.302(g)

---

• Dec 09 03 01:46p

Pose~ate ~ Denes

2175226184

p.12

by depositing a copy thereofenclosed in an envelope in the U.S. Mail at Springfield, Illinois.

proper postage prepaid, before the hour of 5:00 p.m. addressed as above.

2

~ / /1

Claire A. Manning

Posegate

&.

Denes. P.C.

111 N. Sixth Street

Springfield, Illinois 62701

(217) 522-6152

(217) 522-6184

(FAX)

c1aire~,posegate-denes.corn

---

Dec 09 03 01:43p

Poseg~te ~ Denes

2175228184

p.t

POSEGATE & DENES,, P.C.

Attorneys

at Law

111 North

6U1

Street, Suite 200

P.O. Box

338

Springfield, IL 62705-0338

•C~ ~p~-~ç.

dEc -

9

2003

SD-\TE OF ILLINOIS

PoIl~t,0~C’ontroi Board

Telephone (217) 522-6152

Facsimile (217) 522-6184

FROM:

RE:

MESSAGE:

FAX

TRANSMISSION

DATE:

~

Q2~

FAXNO:

~

~1+~-3~~

FAX NO: (217) 522-6184

NUMBER OF PAGES INCLUDING THIS SHEET:

I

s.—.

CONFIDENTIALITY NOTICE: The documents accompanying this fax transmission contain confidential information

belonging to the sender which is legally privileged. The information is intended only for the

use

of the individual or entity

named above, If you are not the intended recipient, you are hereby notified that

any

reading, disclosure, copying, distribution

or the taking of any action

in

reliance on or regarding the contents of this faxed information is st:rictly prohibited. If you have

received this fax in error, please immediately notify us by telephone to arrange for return of the original documents to us.

NOTE: IF ANY PART OF THIS TRANSMISSiON WAS MISSING OR UNREADABLE, PLEASE CALL THIS OFFICE

IMMEDIATELY AT (217) 522-6152.

Carol Hansen Posegate

Jane Nolan Denes

ClaireA. Manning

Of Counsel

4: