RECEIVED
CLERK’S OFFICE
BEFORE THE.ILLINOIS POLLUTION CONTROL BOARD
MAR
032004.
SALINE COUNTY LANDFILL, INC.,
)
STATE OF ILLINOIS
)
PollutIon
Control Board
PETITIONER,
)
)
v.
)
No. PCB 2004-117
)
(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 ofSaline asks that the hearing officer prohibit Petitioner from
eliciting any testimony concerning permit decisions by the Illinois Environmental Protection
Agency (“JEPA”) 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, decisions concerning other facilities have no relevance to this proceeding.
In
this permit appeal proceeding, the IEPA’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 ofthe Illinois Environmental Protection Act or the Board’s regulations (see Petition for
Review ofPermit Denial Per 415 ILCS 40(a)(1), at paragraph 2), and
specifically that
“the
application did not provide proof oflocal
siting approval pursuant to
Section 39(c) of the Act.
The siting provided
in the application expired.”
(~
Petition for Review of Permit Denial Per
415
ILCS 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 permit
decision being challenged.
B.
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 of the statute
and whether this
specific
permit 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 of Saline.
In light of
Petitioner’s failure to have timely produced these documents or made them available in support
of the Petition, the County of Saline will be
extremely prejudiced by any attempt by Petitioner to
introduce any
evidence relating to any
such other facilities.
D.
If Petitioner is permitted to
introduce evidence 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 of complete production, neither this Board northe 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
2
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 of discovery 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
JEPA 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 of Joyce Munie will be for purposes ofdiscovery 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 discovery only; if information is contained therein that
is relevant and admissible at hearing,
Petitioner must present at hearing the testimony or documentary evidence.
$~
Board procedural
3
rule
101.626,
35
Ill. 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 of Saline has had virtually no opportunity
to address
the interrogatory responses through cross examination.
Though it may be appropriate for parties
to
worktogether to reduce the need for hearing on particular issues, this
goal cannot be advanced
over the needs of any 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.
See 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 of Petitioner, 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 SALINE, 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
10
E. Poplar
St.
Harrisburg, IL
62946
(618) 253-7169 phone
(618) 253-4106 fax
5
Respectfully submitted,
Saline County, Intervenor
By its attorney
By
/
.
od Wolf
State’s Attorney fo
aline County
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
MAR
032004
SALINE COUNTY LANDFILL,
INC.,
PETITIONER,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
RESPONDENT.
NOTICE OF FILING AND PROOF OF SERVICE
To:
Brian E. Konzen, Esq.
Lueders, Robertson, Konzen &
Fitzhenry
1939 Delmar, P.O. Box 735
Granite City, IL
62040
Pollution Control Board, 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
Springfield, IL
62704
John Kim
Division ofLegal
Counsel
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O. Box
19276
Springfield,
IL
62794-9276
/
/~4aL
PLEASE TAKE NOTICE that on the/ 5tday of~
2004, we sent via FedEx
delivery to the Clerk of the Pollution Control Board the original and four copies of the
COUNTY OF
SALINE’S MOTION IN LIMINE for filing in the above entitled cause.
The undersigned
certifies
that a true
and correct copy ofthe 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.
Harrisburg, IL
62946
618-253-7169 phone
618 253-4106 fax
STATE OF ILLINOIS
)
Pollution Control Board
)
)
)
No.PCB 2004-117
)
(PERMIT APPEAL)
)
)
)
THIS
FILING
T5 SUBMITTED
ON
RECYCLED PAPER