RECEIVED
CLERK’S OFFICE
ILLiNOIS PO1J~
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AUG
03
2004
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STATEOFILLINOIS
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Pollution Control Board
WASTEMANAGEMENTOFILL1NO
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INC.,
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Petitioner,
)
)
PCBO4-186
v.
)
(Pollution Control Facility
)
Siting Appeal)
COUNTY BOARD OF KANKAKEE
)
COUNTY,
)
)
Respondent.
)
HEARING
OFFICER ORDER
This order memorializes in writing the oral denial ofthe fax-filed August 2, 2004 motion
to quash subpoenas for the depositions ofFrank and Brenda Keller, to be taken by counsel for
Waste Management of Illinois, Inc. The Kellers depositions were scheduled, respectively, for
1:00 p.m. and 2:30 p.m., August 2, 2004 in Kankakee. This order also relates the arguments
leading up to the hearing officer’s ruling made at a conference call held between counsel for
Waste Management, Inc., the Kellers, and the undersigned hearing officer between 12:20 p.m.
and 1:15 p.m. on August 2, 2004.
BACKGROUND
While hearing officer orders do not ordinarily contain a description ofthe past history of
a proceeding, this background is set out here to contextualize and abbreviate the later description
ofthe premises ofthis motion and the arguments concerning it.
The siting approval process before the County and the appeal before the Board are
governed by, respectively, Sections 39.2 and 40.1 ofthe Environmental Protection Act (Act)
(415 ILCS
5/39.2
and 40.1 (2002)). The Board opened this docket on April 22, 2004, upon
receipt ofthe petition for review ofWaste Management ofIllinois, Inc. (WMII). WMII appeals
the March 17, 2003 denial of siting approval by the County Board ofKankakee County for
WMIPs September 26, 2003 application for expansion ofthe existing Kankakee County landfill.
WMII sought approval to expand around its existing 179-acre site, to result in an expanded site
covering 664 acres, with a 302-acre disposal site. WMII challenges the fundamental fairness of
the proceeding, and also contends that the County’s finding that criteria 1, 3, and 6 ofSection
39.2 had not been met was against manifest weight ofthe evidence.
The Board has 180 days from the filing ofthe petition to allow the parties to conduct
discovery, and the Board to conduct a public hearing, receive briefs, conduct its deliberations,
and issue a written opinion and order. Only the party who has applied for siting, here WMII, can
waive the decision deadline. The current decision deadline is November 19, 2004, as a result of
WMII waivers.
2
This is the second appeal before the Board of a County decision concerning WIVHI’s
application for siting approval for this same proposed expansion. Cityof Kankakee v. County of
Kankakee, Kankakee County Board and Waste Management ofIllinois, Inc.; Merlin Karlock v.
County ofKankakee, Kankakee County Board and Waste Management ofIllinois; Michael
Watson v. County Board ofKankakee County, Illinois and Waste Management ofIllinois, Inc.;
Keith Runyon v. County ofKankakee, Kankakee County Board, and Waste Management of
Illinois, Inc., PCB 03-125, PCB 03-133, PCB 03-134, PCB 03-135 (cons.) (Aug. 7, 2003),
appeal pending sub. nom.
Waste Management ofIllinois, Inc. v. PCB, County ofKankakee,
County Board ofKankakee, City ofKankakee, Merlin Karlock, and Keith Runyon, No. 3-03-
0924 (Third Dist.).
On January 31, 2003, the Kankakee County Board reached a decision granting site
location approval, with conditions, to Waste Management ofIllinois, Inc. for a “regional
pollution control facility”. The County ofKankakee as well as Michael Watson, owner of
United Disposal Systems (a competitor to Waste Management), and two individual citizens
(Merlin Karlock and Keith Runyon) each filed separate appeals ofthe same County decision.
The various appeals argued that the County lackedjurisdiction to decide siting (raised by all
petitioners save Runyon), that the County proceedings were fundamentally unfair, and that the
County decision finding that the statutory siting criteria had been met was against the manifest
weight of the evidence.
In its August 7, 2003 opinion and order, the Board determined that the County lacked
jurisdiction to decide the application because Waste Management had improperly failed to notify
all landowners as required by Section 39.2 (b) of the Environmental Protection Act. 415 ILCS
5/39.2(b))
(2002). The Board found that, although Robert Keller had been properly served,
Brenda Keller had not been properly served. (These persons are the same Robert and Brenda
Keller whose depositions was the subject ofthe August 2, 2004 motion to quash at issue here.)
The Board accordingly vacated the County decision without reaching the other issues presented.
(On the same day, in a separate order in a separate case, the Board granted Waste
Management’s motion to withdraw its appeal ofthe conditions the County had imposed on its
grant ofsiting approval.
See
Waste Management ofIllinois, Inc. v. Kankakee County Board,
PCB 04-144 (Aug. 7, 2003).)
THE HANDLING OF THE KELLERS’MOTION TO QUASH
The substance ofthe motion will be discussed later, in the discussion ofthe conference
call. The facts behind the Board’s receipt ofthe motion follow. At 8:47 a.m. on Monday,
August 2, 2004, the office ofthe Clerk ofthe Board began to receive a telefaxed filing addressed
to the regular hearing officer in this matter, Bradley Halloran. The filing was a motion to quash
the subpoenas for Robert and Brenda Keller, signed by Robert B. LaBeau ofthe firm LaBeau,
Dietchweiler, and Associates in Kankakee. The depositions were scheduled to commence on the
same day, August 2, 2004 at the Kankakee Administrative Building at 1:00 p.m. and 2:30 p.m.,
respectively.
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The Board’s procedural rules provide that telefax filings are accepted only with prior
approval ofthe Clerk or the hearing officer. The Assistant Clerk who received the filing
determined that no appearance had previously been filed by this firm on behalfofthese
individuals. After learning that Mr. Halloran would not be in the office Monday, the Assistant
Clerk referred the motion to Senior Attorney Kathleen Crowley. He also told Ms. Crowley that
he had received a call from the office ofWIVIII’s counsel asking for Mr. Halloran to discuss the
motion.
At some time after 10:00 a.m., WIVIII’s counsel Donald Moran called Ms. Crowley and
asked if there would be an opportunity to respond to the motion. He stated that he would be
taking depositions in this case, and that he would not be available until after noon. He asked that
further instructions be left on his voicemail. Ms. Crowley reviewed the motion. Given the
nature ofthe motion’s allegations, and the timing ofthe deposition, she authorized the Assistant
Clerk to accept the filing.
Ms. Crowley unsuccessfully attempted totelephone movant’s counsel Robert LaBeau at
approximately 11:00 a.m. Having been told he was in a meeting, she left a message stating that
the Board had received the motion and that she needed to set up a conference call to discuss the
motion. When she had not received a phone call from Mr. LaBeau by 11:45 a.m., Ms. Crowley
left a message to that effect for Mr. Moran, and asked him to call her.
Shortly before 12:00 noon, Ms. Crowley again attempted to reach Mr. LaBeau, who was
not available. Again explaining the situation to a secretary, Ms. Crowley was then connected
with Mr. LaBeau’s parter, Mr. Michael Dietchweiler. Mr. Deitchweiler explained that he was
unfamiliar with the motion to quash or with the Board. Ms. Crowley explained the situation, and
stated that she would hear argument from Mr. Moran by telephone, and wanted a member ofthe
movant’s firm present if possible. Mr. Deitchweiler stated that he would participate in a
conference call anytime after 12:15 p.m. Mr. Moran called Ms. Crowley, who then set up 12:20
p.m. as the time for the call.
THE CONFERENCE CALL
The conference call commenced at 12:20 p.m. and lasted until 1:15 p.m. As a
preliminary matter, Mr. Deitchweiler advised the hearing officer and Mr. Moran ofthe Kellers’
filing ofa petition for injunction and temporary restraining order against Mr. Moran in the
Kankakee County Circuit Court. The case, No. 2004 MR 735, was filed at 11:45 a.m. on
August 2, 2004. He explained that the case was premised on some ofthe allegations ofwitness
harassment related in the motion and supported by the supporting affidavits ofthe Kellers. Mr.
Deitchweiler explained that, while he was unfamiliar with the siting appeal before the Board, that
he had worked on the case filed in the Circuit Court, and had not connected the two prior actions
prior to his review ofthe motion to quash.
Mr. Deitchweiler for the Kellers objected to the short notice he had been given of the
conference call, and Mr. Moran for WMII objected to the filing ofthe motion so shortly before
the deposition was scheduled to commence. Ms. Crowley overruled both objections. As to
issues oftiming, the motion to quash itself could have been filed earlier, since the subpoenas had
4
been issued 13 days before on July 21, 1004. But, given the Board’s preference that motions to
quash subpoenas be ruled on in advance ofthe scheduled start time ofthe deposition, and the
nature ofthe allegations, Ms. Crowley determined that argument on the motion would be heard.
The Substance of the Kellers’ Motion and Supporting Arguments
The motion to quash is based on two major premises: (1) that the purpose ofthe
subpoenas was to harass and intimidate the Kellers; and (2) that there was no relevant material
that could be discovered, since jurisdiction is not at issue in this case. Mot. at 2. More
specifically, the motion asserts that Mr. Keller had already appeared at the appointed place and
time for deposition twice, on June 22 and June 23, 2004. As he had twice taken time offfrom
his job at Pickett Stone Company, he argued that he should not be forced to appear again.
The motion also asserted that Mr. Moran, accompanied by a woman, had appeared
uninvited at the Kellerresidence on or about July 20, 2004. Mr. Moran allegedly stated that
unless they signed and Affidavit or other document be brought with him that Mr.
Moran would present proofofperjury ofthe Kellers..
.
but that if they signed
the document that WMII would not pursue their alleged perjury. Mot. at 2.
Attached to the motion was the affidavit ofRobert Keller, as well as two subpoenas. The first
required appearance at 1:00 p.m. on a June date—the date part ofthe typewritten date ofJune 22
was crossed out and “23” was inked in. The other subpoena was for August 2 at 1:00 p.m. Also
attached to the motion were the affidavit ofBrenda Keller, and her August2 subpoena from
WMII.
WMII’S RESPONSE IN OPPOSTION
In response, Mr. Moran explained that the June subpoena should have had a 4:00 p.m.
start time, and not a 1:00 p.m. start time. He said it was his understanding that one of the County
attorneys had explained that to Mr. Keller, who also suggested that he come back at that time or
contact Mr. Moran with questions. Mr. Moran stated that he was told that Mr. Keller said he
would not be back later on June 22. Mr. Moran stated that Mr. Keller had not called him, and
that he had no idea who may have told Mr. Keller to return on June 23. Mr. Moran denied that
he had harassed the Kellers at their home on July 22, 2004, or at any other time, asserting that the
Kellers had in fact invited him to their home.
Mr. Moran reminded that the purpose ofdiscovery is to uncover all relevant information
and information calculated to lead to relevant information.
See 35
III. Adm. Code 101.616 (a).
He argued that there were at least two areas ofrelevant inquiry. The first would be their receipt
ofnotice ofthis application, despite the Kellers’ affidavits asserting that notice was not an issue
in this case. Mr. Moran stated that the courts have held that challenges to jurisdiction can be
made at any time. He noted that the jurisdictional challenges regardingnotice were brought up
in the prior case by persons who have sought to intervene here and who would be participating at
the Board’s hearing and filing
amicus
briefs.
5
Second, Mr. Moran noted that Mr. Keller had testifiedbefore the County in opposition to
the second, September 26, 2003 application on appeal here. Mr. Moran also stated that he
wished to depose the Kellers on the subject of ex parte contacts between the County Board
Members and members ofthe community. Mr. Moran did not allege that the Kellers themselves
had made such contacts. Mr. Moran stated that he had information and beliefthat an individual
living in a trailer on the Kellers property had left the Kellers’ phone number as a contact number
forpersons opposed to the landfill.
THE RULING
In summary, my ruling denies the Keller’s motion to quash the subpoenas. For the
purposes ofdiscovery, Mr. Moran demonstrated the relevance ofan inquiry into possible ex
parte contacts, and of a limited inquiry into the Keller’s admission that they had received notice.
I ordered the rescheduling ofthe depositions ofthe Kellers, stating that this written order would
follow.
I have given great weight to the fact that Mr. Keller has already taken offfrom work two
days in June. The record is clear that Mr. Keller has been inconvenienced by WMII’s time error
in the June 22 subpoena. But, it appears that by inquiryto WMII’s counsel, Mr. Keller could
have avoided further inconvenience. Mr. Keller could have returned later, as suggested by one
ofthe County attorneys. Additionally, the source ofany iristruction to return for deposition on
June 23 was unclear. Again, I made no ruling on any allegations concerning harassment ofthe
Kellers by Mr. Moran on July 20 or any other date.
Mr. Moran requested that the deposition be rescheduled within one week. I did not grant
that motion, as the Board has no details as to the exact scope ofthe relief requested in the
Kankakee circuit court. Again, this order is in no way intended to conflict with any order
entered by the Kankakee Circuit Court.
In conclusion, the motion to quash subpoenas is denied. These depositions shall be
conducted as expeditiously as is practicable, consistent with any order ofthe Kankakee Circuit
Court. The parties are directed to take due care to minimize additional loss ofwork time by Mr.
Keller.
IT IS SO ORDERED.
Kathleen M. Crowley
Senior Attorney
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois 60601
312.814.6929
