RECEIVED
CLERK’S OFFICE
TH~~LL1NO1S POLLUTiON CONTROL
BOA~
MAR
052004
STATE OF ILUNOIS
s
~
L~i~:
cc:-~~:v
LANDH ~r
~
)
Pollution Control Board
)
PETflT~O~ER,
)
v.
)
No.
PCB 04-117
)
(PERMIT APPEAL)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
RESPONDENT.
)
NOTICE
OF FILING
John Kim, Esq.
Rod Wolf
Division of Legal Counsel
Saline County State’s Attorney
Illinois Environmental Protection Agency
10 E.
Poplar
1021
North Grand Avenue East
Harrisburg, Illinois 62946
P.O.
Box
19276
Springfield, Illinois 62794-9276
Carol Sudman, Esq.
Hearing Officer
Illinois Pollution COntrol Board
1021
North Grand Ave. East
P0 Box 19274
Springfield, Illinois 62794-9274
Please take notice that I have today filed with the Hearing Officer Petitioner’s Response to
County ofSaEr.e’s Motion in Limine, and ce.~i~•cate
of senvice. on hehnlf ofSaline County Land~i1,
Inc.,
copies cf which ace
hecewith
scr;ed upon
you.
Brian 1~
Konzen, Esc(
/
Lueders, Robertson,
Konzen LLC
1939 Delmar, P.O. Box
735
Granite City, Illinois 62040
Phone:
(618) 876-8500
ARDCNo.:
06187626
45117
RECEIVED
CLERK’S OFFICE
MAR 05
200’~
~3F~FOi.J~
THE.
IL.UfNO1S
~‘OL
hUTOi’~
CO
hTROL
~
STATE OF ILLINOIS
Pollution Control Board
~~y
cou~r”y
LANDU1LL, i~c...
PE~fiTiONER,
)
)
v.
)
No.
PCB 04-117
)
(PERMIT APPEAL)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
RESPONDENT.
PETITIONER’S
RESPONSE TO COUNTY OF SALINE’S MOTION
IN LIM~E
Comes now Petitioner, Saline County Landfill, Inc., and responds
to the County ofSaline’s
motion
in limine.
1,
To
the extent the motion
in limine requests “advance rulings” on broad
topics,
it should
be denied without prejudice by the Hearing Officer. The topics ofevidence referenced in the motion
in limine are defined too broadly to allow a ruling in advance ofhearing, without significant risk of
reversible error.
Instead, Petitioner respectfullysubmits the Hearing Officer should hearthe specific
evidence on
point proffered at hearing, if any,
and then rule.
2.
35
Illinois
Administrative
Code
101.610
et seq., does not
require advance
rulings
on
evidentiary matters by a hearing officer.
Ihc
~nct~on
in
rrdne ccc .ce~ts
a
bur of ev~hencc
oonceruiau per
rut ciec~sioncother than
decisions with respect
to Saline County Landfill, Inc.
Paragraph 2A.
The motion
in lirnine
argues
Petitioner
does
not
rely
on
any
other permit
application
or decision
with
respect
to
the
permit
decision challenged in
the instant appeal.
Petitioner can
and will proffer evidence the IEPA
acted inconsistently.
Petitioner pleads
in
paragraph
5
ofits petition for review that the IEPA’s reversal ofinterpretation of Section 39.2 (f~
of
?:ete
ton
acichrarv and oapnc:ors.
\~:he~her
die
Agency
incc.nsis:emly
~:ernre1e:~yard
~.1hd~,ic rerun
a:;
to ~c~he~h,r:
it interecen the statute correcd/
today, and
as
whether the State’s interpretation
is entitled
any
defecence,
La the administrative record, Intervenor
repeatedly argued for deference to its
interpretation of sec.
39.2(t).
Therefore,
Petitioner must be
allowed to respond by presenting evidence of the inconsistency of the State’s interpretation ofsec.
39.2(f),
Reversible error will result otherwise.
4.
The motion
in limine argues complete files pertaining to permit actions or decisions with
respect to other facilities have
not been produced or made available
to
County of Saline,
and the
failure
to produce them would be prejudicial to
the County of Saline.
This argument should be directed to bar evidenceproffered by the Party theIntervenor claims
to
support,
the IEPA.
The IEPA has responded
to
discovery served
by
Petitioner
in
this
cause,
stating the
IEPA was unable to
query specific information sought,
as referenced
in
the motion
in
limine.
See answers to interrogatories 6 and
12, attached.
The failure to produce such information,
or complete files pertaining to such information,
is not the fault of the Petitioner.
Petitioner timely
served
discovery requests,
but
did
not
receive
all
timely or
complete answers.
See
Petitioner’s
previously filed motion
to
compel.
Further, the deposition ofJoyce Munie, taken February 27, did
rot fully provide all the
information sought
in such interroaatohes.
The Hearing Officer should not
cc
evideac
pcoffrre:1 hr
E’eiidcuer.
due to
Respondent’s
faiiure
to
mliv
answer.
This portion
of
the motion
in
lirnine should therefore be denied
as well.
5.
The motion
in
limine further seeks
to
bar
the admissibility
of the
IEPA’s
discovery
responses, arguing that the County of Saline had “virtually no opportunity
to address interrogatory
responses throu~h
cross examination.”
Motion,
paragraph 4.
In fact, the County ofSaline had
ample opportunitvto cross-examine regarding the lEPA’s
iar:c~atccie:;.Those a:isv’ecs
~
i~ite;To~-nt
c
err
ad fled
under oath, anti
erhbh
camber
~.
SaNtar,
ne
:narr,ant.
Jarce
Urn::’
is
‘.~:esun::
pais~tr:
cri~oem.’ signeri and
verified
the
interrogatory ans’,ve
rs as correct
and
truthful.
See
anached.
The
Pai~y
now
moving
in
limine
chose
not
to
ask
any
questions
at
the
deposition
concerning
the
interrogatory answers.
Therefore, the County of Saline
cannot claim prejudibe as asserted in
the
motion in limine, should the interrogatoryanswers be proffered as admissions, or as other evidence.
Therefore, Petitioner, Saline
County Landfill, Inc.,
prays the motion
in limine be denied.
22
/~~/7
Brian E. Konzen,
Esq.
Lueders, Robertson &
Konzen LLC
1939
Delmar, P.O.
Box
735
Granite City, Illinois 62040
Phone:
(618) 876-8500
ARDCNo.: 06187626
45108
I:
j~f,j:t” fri
tHi
O,d,U d~i3SUL~Ch’J,O,~
cJOcTRc:L JlOARJ3
U-U
S
ffbL’TY
:
,\,ND~’ifU Li’..
PSTi’f:’~ER,
)
V.
)
No.
PC’S
04-117
)
(PERMIT APPEAL)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
RESPONDENT.
PROOF OF SERVICE
I, the undersigned, verifycopies of the forgoing Petitioner’s Response to County of Saline’s
Motion
in
Limine
were
served
by fax
and mail upon
the following persons by
5:00 p.m.,
on this
?~,;(
day of March, 2004:
John
Kim, Esq.
Division of Legal
Counsel
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O.
Box
19276
Springfield,
Illinois 62794-9276
Carol Sudman, Esq.
Hearing Officer
Illinois Pollution Control Board
1021
North Grand Ave. East
P0 Box
19274
Springfield.
illinois 42794-9274
Saline County
State’s Attorney
10 E. Poplar
Harrisburg, Illinois
62946
Dorothy Gtinn,
Clerk
Illinois Pollution
Control
Board
lOOVv’.
Randolph,
Suite
11-500
Chicago,
Illinois
60601
4510$
Brian Konzeh~
/
s’r~r~
~
.)
i’.
~.
k
~,t\
~
_)
\L
t’~~
‘lidS
Uj’.Vj
:f
,‘~r
Ii. LINDIS
-
?~rt::ioner.
)
PCB No. 04-liT
ILLINOIS
ENVIRONMENTAL
)
(Permit Appeal)
PROTECTION AGENCY,
)
Respondent.
)
RESPONSE TO
PETITIONER’S INTERROGATORIES
NOW
COMES
the
Respondent, the
Illinois
Environmental
Protection
Agency
(“Illinois
EPA”),
by
one of its
attorneys,
John J.
Kim,
Assistant
Counsel
and
Special
Assistant
Attorney
General, and,
pursuant
to
the
Illinois
Pollution
Control
Board
(“Board”)
Rules
at
35
Iii.
Adm.
Code
101.6 16
and
101.620, hereby responds
to
the Interrogatories propounded by the
Petitioner,
Saline County Landfill,
Inc.
(“SCLI”).
GENERAL
OBJECTIONS
The
Illinois
EPA
objects
to
each
of the
Petitioner’s
interrogatories,
definitions,
and
instructions
to
the
extent
that,
individually
or
cumulatively, they
purport
to
impose
upon
the
Illinois
EPA
duties
or obligations
which
exceed
or
are
different
from
those
imposed upon
the
illinois EPA by the Board’s procedural
rules.
The
Illinois
EPA
further objects
to
each
of the
Petitioner’s
interrogatories,
definitions,
if,:’
even:
rh.::
the:
ca’.i
fn,-
nr.:n’n:’~-riie’nra’a.:aanica:ic’:.s.
between or among Illinois EPA’s counsel,
attorney work product,
or
any
other privileged matters.
The Illinois EPA reserves the
right
to
make further objections
in the
future if new information
or
circumstances warrant.
?SUUi•C~NEht’Sl~~’~I5’’1._’r.~S:’:E’S
1’~
—H”~-—
-
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‘———‘—--‘‘
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L.~’~~,.t’_L.L
.2,
.),,2,
1
~.L’:\
.‘,.~
~LO. .~2j~.’2-1 2,
Aoswer:
Joyce Munie, Manager
Chris
Liebman,
Solid Waste (“SW”) Unit Manager
Christine Roque, Environmental Protection Engineer III, SW Unit
Gwenyth Thompson,
SW Groundwater Assistance Unit (“GAU”) Manager
Paul
Eisenbrandt,
Environmental Protection Geologist
III, GAU
Mike Summers,
Environmental Protection Geologist III, GAU
All persons work in
the Permit
Section of the Bureau of Land ofthe Illinois EPA,
located
at
1021
North Grand Avenue East,
P.O.
Box
19276, Springfield,
Illinois,
62794-9276
2.
For each person identified
in
your answer to
interrogatory no.
1,
above,
list in
detail
the
activities
performed
by
that
specific
person
to
so
participate
in
the
decision
to
issue
the
permit
denial,
(i.e.,
recommended or
directed
a
change
in
the
TEPA’s
historic
interpretation
of
415
ILCS
5.-’392(f~,drafted
the
language
of the
written permit
denial,
determined
the
reason
stated for the permit denial, etc.).
Answer:
aria r:-nr’nc.
‘at
tate.
car2:::’,
rr a:
Chris
Liebman:
Reviewed
and
approved Christine Roque’s draft of the final decision
Christine
Roque:
ReUewed
permit
application
and
drafted
final
decision
pursuant
to
Joyce Munie’s direction,
Gwenvth Thompson:
Reviewed Paul
Eisenbrandt
and
Mike
Summers’
recommendations
related
to potential
impact
tO
g:’cund\’-’ater presented by the permit application.
T’.~i1:a
San’,rinc’r~:
Re’~
i-e’,vac
rermit
an:liosni:~:a:::i araparef
final
rercmnanfrinorr
fur
Ciwenyth
Tho:npsor~.
3.
For each person identified or referenced
in your answers
to interrogatories no.
I
and 2,
above, state all
the dates on which each person performed the activities you
detailed.
Answer:
The
Illinois
EPA
objects
to
this
interrogatory
on
the
grounds
that
it
is
unduly
burdensome,
in
that
it would
require
the review
of bi-weekiy time
sheets
submitted
by
all
the
identified
personnel
to
determine
exact
dates
upon
which
work
was
performed
as
described.
Without
waiving
that
objection, the activities
described
in
answers to
interrogatories nos. I
and 2
took place during the time period of April
7,
2003,
and December 5,2003.
4.
Identify
all
persons
having
knowledge
of any
of
the
facts
stated
in
the
language
underlined in
the attached letter dated March
12, 2003.
Answer:
The
Illinois
EPA
objects
to
this
interrogatory
on
the
grounds
that
it
is
unduly
burdensome,
in
that the Illinois
EPA does not have access
to
knowledge of all
persons outside of
objectIon,
the Iil;nois
EPA ident:fies Joyce
Munie, Chris Ltebnian and
Christ;ne Roque.
5.
Identify
all
persons
having
knowledge
of
statements
made
by
employees
and
representatives of the IEPA’s
Bureau of Land,
that
a
landfill’s
local
siting approval expires
in
3
t/aar5
crdv
if
a
permit
arplicatien has
r:ot
bean
submitted
to
the EPA
duriinc tha;
-venr
p~ricd.
Your
ans’,ver
should
include
the identity of each person told
the
local
siting
had
not
expired for
The
Illinois
EPA
objects
to
this
intermgato~ on
the
grounds
that
it
is
unduly
burdensome,
in that the Illinois
EPA does not
have access
to
or knowledge of all
persons outside
of the
Illinois
EPA
that
may fall
within the
scope
of the
interrogatory.
Without
waiving that
objection, the Illinois EPA identifies Steve Hedinger.
6.
List by
name
and
site
number each
landfill
in
the
State
of Illinois
that
since
1996,
received a developmental permit
from
the EPA
over three years
after that
landfill received local
siting approval for some
or all ofthe air space referenced in
that developmental permit.
Answer:
The
Illinois
EPA
objects
to
this
interrogatory
on
the
grounds
that
it
is
unduly
burdensome,
in
that
it
seeks
information
that
is
not
maintained
in
database
form.
Without
waiving
this
objection,
the
Illinois
EPA
is
attaching
a
printout
of database
information
that
identifies
all action taken, if any,
on
applications for new landfills
from
1996 through 2004.
The
Illinois
EPA
notes
that
some
of
the
applications
approved
may
fall
within
the
scope
of
the
interrogatory,
but
that
it
would
require
a
file-by-file
review
of each
application
to
determine
a,:
~
~
v,
‘,.nm
-.ne
‘
,‘~.:‘.n,
-.‘
,:r:,’-,.
::
L
--
‘~.
.
of the
list
and the
administrative
constraints on
the Illinois
EPA
staff qualified to
review
these
applications,
further answer is
not possible at this time.
7.
List by
name
and
site number
each landfill
in
the
State
of Iii.ricis
that,
sin-ce
i9~t3,
r:rel’-.’ed
both
a
notice
of
OcUal
cf
a
permit
aopii:a:ior.
anti
a
da’aeiconnerunl
permit
f:crn
the
EPA,
-over
three
years
after
that
landfill
received local
siting
anproval
for some
or all
of the
air
Since
1996,
no
lan-Jflhs
have recei’-.’ed
both
a
notice of denial of a permit
apphca:i’a’n
arid
a
development
permit
from
the
Illinois
EPA
over
three
years
after the
landfill
received
local
siting approval for some or all of the air space referenced
in the development permit.
8.
List each
landfill
in
Illinois
for
which
the IEPA
denied
a
permit
application
since
1996,
based
in
whole or in
part
on
justification stated by the IEPA that
local
siting had
expired.
Limit
your answer to
landfills
that
had
submitted
to
the EPA
an
application
for developmental
permit
within three
years of receiving
local
siting
approval.
For
each
landfill
listed,
state
the
IEPA
log number for which the IEPA denied the permit
application,
and the date of the notice of
permit denial.
Answer:
Saline County Landfill,
Inc., LPC #1658080001, Log No. 2003-113, December 5,2003.
9.
State
whether the permit application
in
IEPA
log
no.
2003-113
was complete,
except
for the possibility local siting had expired.
If your answer
is
in
the
negative,
explain
how
the
permit
application
was
incomplete.
in
v. hich
the
application
failed
to
demonstrate
compliance
with
the
Iilir~oisEnvironmental
Protection Act, and with all
statutes and
regulations of the State of Illinois.
Answer~
The permit
application
described
was
deemed
complete
except
for
the
possibility
that
l:c::l
sif,:, a had
expirati.
It-ran: ha.~.:amn:-t
,i
:-:
tic
P A
a
co
aa:iir-::ie
a
tie’.
‘iicp
raaamt
l::e:n.::
~
three years
eftar
local
siiitm’ v~
as
granted
f-or
some
or
all
of
the
air
5:20cc
approved
at
that
local
siting.
Answer:
The
Illinois
EPA
objects
to
this
interrogatory
on
the
grounds
that
it
is
unduly
burdensome,
in
that
it
seeks information that would
date back
to
1981.
The
Illinois
EPA does
not
maintain
a
database that
would
allow a search for this
type of information,
and therefore the
only
means of fully answering the interrogatory
would
be
to
review
all
denials of development
permits
issued
by the Illinois EPA over a 22
year period.
ii.
Identify all
persons who answered, or assisted in
answering, these interrogatories.
An
sw
er:
Joyce Munie,
Chris
Liebnian, Christine
Roque.
12.
State
the
name
of
each
landfill
in
Illinois
that
submitted
to
the
IEPA
a
permit
applicatton
since
January
1,
1996.
For
each 1andii~1listed,
state
the
date the
landfill
received
local
siting approval, the date the permit
application was submitted to the
IEPA,
and the date the
include
the EPA
log number f-or each permit
application listed.
Answer:
See the answer to
Interrogatory No.
6.
-r~
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021
North Grand Avenue, East
P.O.
Box
19276
Springfield,
Illinois 62794-9276
217(782-5544
217/782-9143 (TDD)
Dated:
February 24, 2004
‘~997Q75
1997-140
1997-161
-
‘~
997-220
1997-233
1997-261
1997-26
1998-028
1998-110
1998-249
1999-047
166’91173
1999-291
1999-295
1999-381
1999-387
2000-064
2000-131
2000-199
2000-300
2000-455
2001-021
2001-152
200 1-24~
2002-007
2002-046
2
C’
-33-239
2003-344
ISSUED
ISSUED
OEM ED
001
SSUED
ISSUED
ISSUED
DOI
ISSUED
•ISSUED
DENIED
DOl
ISSUED
ISSUED
ISSUED
DE Nfl ED
ISSUED
ISSUED
ISSUED
ISSUED
ISSUED
ISSUED
ISSUED
ISSUE C
ISSUED
1/97
o9_;0s’99
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10/1 5197,
65/29/97
12/12/97
09/03/98
06/22/98
1 0/27197
07/31/98
07/1 5/99
05/07/99
06/25/99
1
bioë’io’ó
09/24/03
0 5/16/0 1
0 1/04/02
03/10/00
09/28/01
10/24/02
11/21/01
05/25/01
01/16/04
0511 3/02
06/28/02,
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1358030005
MACON
COUNTY
LANDFILL #2
& #3
1158040003
COTTONWOOD HILLS RDF
-
1630755017
PCLAND-BRIGGS
0950050003
SPOON
RIDGE
LANDF1LL
-0578080002
CIPS
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NEWTON
POWER STATION
LF
0798085001
LEE COUNTY LANDFILL
1030205110
POLAND-BR~GGS
-
.
-
0950050003
SETTLER’S HILL RDF
0890100009
COTTONWOOD HILLS
RDF
-
1630755017
POLAND-BRIGGS
-
0950050003
DIXON,
MARQUETTE
CEMENT
.1030205037
UPPER ROCK ISLAND COUNTY LF
6181000i4
PRAIRIE VIEW RDF
-
971105050
WEST
END
DISPOSAL FACILITY
-
1650155005
SALINE COUNTY
LANDFiLL
1658080001
ENVIRONTECH
INC
-
0638140002
PERRY
RIDGE LF
-
.1450105039
SANGAMON VALLEY LANDFILL
-
-
-
-
1678220037
-
MARION
RIDGE LANDFILL
1990555136
kNóx
COUNTY LANDFILL #3
0958160003
ADS/MCLEAN
COUNTY LANDFILL #2
1130200042
HENRY COUNTY
LANDFILL #2
0730200003
COLES COUNTY LANDFILL
-
0298050007
N-TONAL
STEEL
COP
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1i9C’4C?0C’~
LANDFILL 33 LTD
0498100007
ENVIROFIL WASTE
MANAGEMENT
1096100003
ORCHARD
HILLS
LANDFILL
-
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1410175005
a’o:~s~N
LUND’S
PE,D’t2.,LL7
WINNEBAGO RECLAMATION
SVC
-
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2018080001
LIVINGSTON
LANDFILL
-
-
1058210002
I, Joyce
Munie,
unon
my
oath, do hereby state as follows:
1.
1am employed
as the Manager of the Permit
Section
for the Bureau of Land for the Illinois
Environmental Protection Agency.
2.
I have reviewed the Response to Petitioner’s Interrogatories propounded in the case of Saline
County Landfill, Inc.
v.
Illinois
EPA, PCB 04-1 17.
3.
To
the best ofmy knowledge, the responses are factually true and
accurate.
FURTHER AFFIANT SAYETH NOT.
Joyce Munie
/
Subscribed and sworn to
before me
this
~~dayof
~
Notary Public
±
OFFICIAL
SEAL
BRENDA
BOERNER
~4OTA~
PUSUC,
STATE
OF
LuNo~:~
/
—