SALINE COUNTY LANDFILL, INC.,

PETITIONER,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

RESPONDENT.

NOTICE OF FILING

ANO

PROOF OF SERVICE

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CL.ERK’g

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To:

Brian E, Konzen, Esq.

Lueders, Robertson, I(on~en

&

Fitzhenry

1939 Delmar, P.O. Box 735

Granite City, IL

62040

Pollution Control Eoard, Attn: Clerk

100 West Randolph Street

James

R. Thompson Center

Suite

11-500

Chicago, IL 60601-3218

Carol Sudman

Hearing Officer

Illinois Pollution Control Board

600

South Second Street, Suite 402

Springfield7

IL

62704

John Kim

Division ofLegal

Counsel

Illinois Environmental Protection Agency

1021

North Grand Avenue East

P.O. Box

19276

Springfield,

IL

62794-9276

PLEASE TAKE NOTICE that on the/5/day

of

2004, we sent via FedEx

delivery to the Clerk ofthe Pollution Control Board the original

and four copies ofthe

COUNTY OF SALINE’S

MOTION iN LIMINE for filing

in

the above entitled cause.

The undersigned certifies that

a true

and

correct

copy of the above-described document

was

served

upon

each of the

above-identified

individuals

via

FedEx

(a

private

courier),

by

enclosing

the

same

in

envelopes

properly

addressed

and

by

depositing

said

envelopes

in

a

FedEx dropbox in Harrisburg, Illinois,

all on the

day of

,

2,~04.

Rod

Wolf

Saline

County State’s Attorney

10 E.

Poplar

St.

Han~isburg,

IL

62946

618-253-7169 phone

618 253-4106 fax

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

)

)

)

)

No. PCB 2004-117

)

(PERIVIIT APPEAL)

)

)

)

TillS

FILINO

IS SUI3MflTED

ON

RECYCLEL)

PAPER

---

OLERK’~,’

OFF

BEFORE

THE ILLINOIS POLLUTION CONTROL BOARD

~

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~

SALINE COTJN1Y LANDFILL, INC,

)

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~

)

PETITIONER,

)

)

)

No. PCB2004-117

)

(PERMIT APPEAL)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

RESPONDENT.

)

)

)

COUNTY OF SALINE,

)

)

INTERVENOR.

COUNTY OF SALINE’S MOTION

IN LIMINE

COMES

NOW

the

COUNTY OF

SALINE, Intervenor,

through its undersigned State’s

Attorney, and for its Motion in Limine, states as follows:

1.

This motion in limine is directed to the hearing officer, requesting advance rulings

on certain evidentiary issues which may or are likely to arise at hearing.

2.

The County of Saline

asks that the hearing officer prohibit Petitioner from

eliciting any testimony concerning permit decisions by

the Illinois Environmental

Protection

Agency

(“IEPA”) other than decisions with respect to

facility 165808001

(Petitioner’s

facility,

known as Saline County Landfill, Inc.). for the following reasons:

A.

This case concerns only the

Saline County Landfill, Inc.,

and no

other

facility.

Hence, deci~ionsconcerning other facilities have no relevance to

this proceeding.

In

this permit appeal proceeding,

the tEPA’s permit denial

letter frames the issues for review.

That

denial

letter stated that the permit application

was denied because granting it would cause a

violation of the Illinois Environmental

Protection Act

or the Board’s regulations

(see Petition for

---

k.eview of Permit Denial Per 4l5

ILCS

40(a)(1), at paragraph 2), and

specifically that “the

application did not provide proof oflocal siting approval pursuant to Section 39(c) ofthe Act.

The siting provided in the application expired.”

(~

Petition for Review of Permit Denial Per

415

1LCS 40(a)(1),

at paragraph 3).

Neither the IEPA’s permit denial letter, nor Petitioner’s

Petition for Review, rely upon any other permit application or decision with respect to the penuit

decision being challenged.

13.

Petitioner’s Petition for Review does not assert any basis

why decisions

with respect to other permit applications could have any bearing upon this

proceeding.

The

issue

before the Board

in this case is the correct

interpretation ofthe statute and whether this

specific

pen-nit application, if granted, would violate the Act;

this issue

is not whether the IEPA has ever

been faced with other permit decisions in

other cases with similarities to this

one.

C.

Petitioner has served upon the IEPA certain discovery requests relating to

other facilities; however, the files pertaining to

permit actions or other decisions with respect to

such facilities have not been produced or made available to the County ofSaline.

In light of

Petitioner’s failure to have timely produced these documents or made them available in support

ofthe Petition, the County ofSaline

will

be extremely prejudiced by any attempt

by Petitioner to

introduce

any

evidence relating to

any such other facilities.

D.

IfPetitioner is permitted to

introduce e’vidence

concerning permit

decisions with respect to other facilities,

then such evidence should be permitted only

on

condition that the entire permit files for each such facility and permit

decision be also introduced.

In the absence ofcomplete production, neither this

Board nor the parties (and particularly

not the

County of Saline) will have any assurance that the information introduced is accurate and

relevant, or if instead it had been superceded, withdrawn, or otherwise

is for some reason

---

incomplete or

inaccurate information, or for any reasons

the

permit decision

was not analogous

or similar to

the decision at issue here.

E.

Petitioner has served a substantial number ofdiscovery requests upon the

IEPA seeking information regarding other JEPA decisions involving other facilities.

Although

pursuant to this Board’s procedural

rules these requests may be “relevant” for discovery

purposes; they are not necessarily also relevant for purposes of introduction at hearing.

Indeed,

Board procedural rule

101.616(e), 35 Ill.

Adm. Code

101.616(e), specifically recognizes that

relevance for purposes ofdiscovery is much broader than for purposes of trial.

$~

~

35

Ill.

Adm. Code

101.616(a).

For this reason, the mere fact that Petitioner was permitted to

ask such

questions in discovery is no justification for their introduction in

evidence.

F.

Hence, County of Saline requests

that this Board,

through its hearing

officer, enter an order

in limine barring Petitioner from presenting evidence not relevant to

any

issue

in this proceeding concerning other IEPA permit decisions regarding other facilities.

3.

In addition,

County of Saline requests that the hearing officer memorialize the

oral ruling made during the February 26, 2004 conference call, that the February 27, 2004

deposition ofJoyce Munie will be for purposes of discovery only, and

the transcript will not be

offered or accepted into evidence.

All parties agreed to this

during the February 27 status

conference call.

4.

The County of Saline also requests that the hearing officer bar Petitioner from

offering into evidence the interrogatory responses submitted by IEPA in response

to

interrogatories propounded

by Petitioner.

The

interrogatories,

and their responses, were made

for discoveryonly; if information is contained therein that is relevant and admissible at hearing,

Petitioner must present at hearing the testimony or documentary

evidence.

See

Board procedural

---

rule 101.626,

35

III. Adm. Code 101.626 (setting forth

the

types of evidence admissible at

hearing).

Further,

the

County

of Saline would strenuously object to simply introducing those

responses into evidence because the County ofSaline has had virtually no

opportunity to

address

the interrogatory responses through cross examination.

Though it may be appropriate for parties

to work together to reduce the need for hearing on particular issues,

this goal cannot be advanced

oyer the needs ofany

individual party to present its own

case, including cross examining other

parties’

witnesses,

it would

be

highly

inappropriate

and prejudicial

to

the County of

Saline for

the

discovery responses ofthe IEPA to

simply be introduced into these proceedings as evidence;

conversely, Petitioner, which propounded

the

interrogatories and obtained the answers, can

reproduce responses it deems desirable at

hearing, in a forum and

in a manner that will

permit

the County of Saline to conduct

its

examination ofthe

relevant witnesses, will

suffer no

prejudice whatsoever.

~

Supreme Court Rule 213(h) and 212(a)

(stating’ interrogatories may

be used for impeachment and as admissions,

but only may be offered as evidence upon

reasonable notice where party answering interrogatory is dead or otherwise unable to attend).

Therefore

the suggestion ofPetitioner, made during the February

26 conference

call, that the

interrogatory responses might simply be introduced into evidence, should be denied, in advance,

by the hearing officer, and the County of Saline hereby expresses its objection

to any such

procedure.

WHEREFORE Intervenor, COUNTY OF

SALNE,

asks that the hearing officer enter an

order in limine limiting Petitioner’s evidence as expressed above.

4

---

Rod Wolf

Saline County State’s Attorney

lOB. Poplar

St.

Harrisburg, IL

62946

(61 8) 253~7169phone

(618) 253-4106

fax

‘Respectfully

submitted,

Saline County, Intervenor

By

its attorne

By

State’s Attorney

aline County

---

;~

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CLEF~(’S~

OFF~C&;

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.

R ~9L~~Vi.9L.F’

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‘~‘

STATE

S ATTORNEY

~

~

SALINE

COUNTY STATE’S ATTORNEY’S

OFFICE

~

Cont~o!

Bo~

SALiNE COUNTY COURTHOUSE

10 EAST POPLAR STREET

I-JARRISBURG

IL 62946

618-253-7169

FAX COVER

SHEET

FAX NUMBER TRANSMITTED TO: (312) 814-3669

To:

Attn: Clerk

-

From: Rod Wolf

Re:

Saline

County

Landfill, Inc. vs. IEPA Case No,

PCB 2004-117

Date:

March

1, 2004

DOCUMENTS

____

NUMBER

OF PAGES*

Motion InLimine

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