RECEIVED
CLERK’S OFFICE
ILLINOIS POLLUTION CONTROL BOARD
9
August 9, 2004
STATE OF ILLINOIS
WASTE MANAGEMENT OF
ILLINOIS,
)
Pollution
Control
Board
INC.,
)
)
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 ruling on the August 6, 2004 motion to
limit
the scope and duration of the subpoenaed deposition ofMichael
Watson, to be taken by counsel
for Waste Management ofIllinois, Inc.
The deposition, already once rescheduled, is to begin at
11:00a.m., August
10, 2004 in Kankakee.
This order also relates the arguments leading up to the hearing officer’s ruling made at a
conference call on August
10, 2004, beginning at 1:30 p.m.
The persons participatingn the call
were: counsel for Michael Watson, Jennifer J. Sackett Pohlenz; counsel for Waste Management,
Inc. Donald J. Moran; counsel for the respondent County Board ofKankakee County, Richard S.
Porter; and the undersigned Board Hearing Officer, Kathleen M. Crowley
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 of Illinois, Inc. (WMII).
WMII appeals
the March 17, 2003
denial ofsiting 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 of the 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
2
waive the decision deadline.
As discussed at the August
5,
2004 status conference, the current
decision deadline is December 2, 2004, as a result ofWMII waivers.
This is the second appeal before the Board ofa County decision concerning WMII’s
application for siting approval for this same proposed expansion.
City ofKankakee 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),
appealpending 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.).
(This set of cases will be referred to below as Kankakee (2003).)
On January 31, 2003,
the Kankakee County Board reached a decision granting site
location approval, with conditions, to Waste Management of Illinois, 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 lacked jurisdiction 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) ofthe 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.
(The issue ofjurisdiction was raised after hearing by, among others, Michael
Watson.)
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).)
Watson’s Motion and Supporting Arguments
Watson’s motion to
limit the scope and duration ofhis scheduled August
10, 2004
deposition requests two forms ofrelief.
The motion requests that the duration ofthe deposition
be limited
to one hour, and that its scope be limited
to
the scope ofthe July 7, 2004
subpoena
duces tecum.
In support ofthe request, the motion attaches three hearing officer orders issued in
the Kankakee (2003) cases
(Mot. Exh. A and B), correspondence between counsel for Watson
and WMII regarding the duration and scope ofthe deposition
(Mot. Exh. C and D), and a news
article concerning various allegations made concerning activities ofUnited Disposal, owned by
Mr. Watson (Mot.
Exh. E).
3
Ms.
Pohlenz argued that the goal ofthe motion was entry of a protective order to prevent any
harassment or intimidation ofMr. Watson.
Ms. Pohlenz asserted that, as stated in the motion,
the scope of the deposition should be limited to the scope ofthe documents listed
in
the
deposition.
In summary, these included documents relating to
“communications between August
1, 2003 and May 30, 2004” that Mr. Watson had regarding the proposed expansion ofthe
Kankakee County Landfill
1) “with any member ofthe Kankakee County Board”,
and 2) “Mayor
Donald Green, Bruce Harrison, Ronald Thompsen
and Keith Runyon”.
Mot. at 2.
Ms. Pohlenz stated her view that jurisdiction is not at issue in this case, and
that the only
issues raised in
the appeal were fundamental fairness and whether the County decision on three
criteria were against the manifest weight ofthe evidence.
Mot. at 2.
Ms.
Pohlenz stated that any
inquiry into the issues ofKankakee (2003) or the operations ofUnited Disposal were beyond the
scope ofthis proceeding.
She also objected to any suggestion that it was improper forcitizens to
act in concert with one another to voice their opposition to siting application.
WMII’S
RESPONSE IN
OPPOSTION
WMII did not
file a written response to Watson’s
motion.
In response, Mr. Moran argued
that there was no basis for limiting the duration ofthe deposition to
a period ofless than the three
hours customarily allowed under the Board’s procedural rules.
Mr. Moran argued that there were at least three areas ofrelevant inquiry:
jurisdiction,
fundamental fairness and ex parte communications,
and the record presented to the County
Board.
Mr. Moran stated that the courts have held that challenges to jurisdiction can be made at
any time.
He noted that the jurisdictional challenges regarding notice were brought up in the
prior case by persons, including Mr. Watson, who have sought to intervene here and who would
be participating at the Board’s hearing and filing
amicus
briefs.
Mr. Moran acknowledged that the operations ofUnited Disposal were not relevant to
this siting appeal.
THE
COUNTY’S STATEMENT
Mr. Porter stated for the record that, as counsel for the respondent County, he intended to
be present at the August 10, 2004 deposition noticed up by WMII.
Mr. Porter stated that the
County had no intention of getting into issues concerning United Disposal during the deposition.
Mr. Porter noted that,
as stated in Watson’s motion, the County had separate litigation pending
against Mr. Watson and United Disposal.
Mot. at 7, referencing County ofKankakee v. United
Disposal, Inc., Michael Watson,
et al.,
04-MR 427.
The County reserves the right to pursue its
own issues against Mr. Watson and United Disposal in its own litigation, and
does not intend its
failure to
do so here to prejudice any rights elsewhere.
4
THE RULING
In summary, my ruling denies the Watson’s motion to limit discovery.
Ms. Pohlenz is
correct that it is perfectly appropriate under the Board’s rules to request an
order regulating
discovery where necessaryto prevent, among other things,
harassment, and “fishing expeditions”
into irrelevant areas.
See 35
Ill. Adm. Code 101.616(d).
But,
Watson has failed to demonstrate
that a protective order is
needed at this time.
The purpose ofdiscovery is to uncover all relevant information and information
calculated to
lead to relevant information.
See
35
Ill. Adm. Code
101.616 (a).
WMII’s petition
for review challenges the County decision on the grounds offundamental fairness and alleges
that the decision on criteria 1, 3, and 6 were against the manifest weight ofthe evidence.
For the
purposes ofdiscovery, Mr. Moran demonstrated the relevance of an inquiry into possible
ex
parte
contacts,
and of a limited inquiry into jurisdictional issues.
As both WMII and the County
seem to be well aware ofwhich issues are and are not
relevant in this siting appeal
as framed by
WMII’s petition forreview, I find that entry ofa protective order is not presently warranted.
As to the requested limitation ofthe deposition’s duration to one hour, I found this case
distinguishable from Kankakee 2003, in part because the deadline date pressures that existed
there are not present
in this case.
Given the issues that are legitimately within the scope of
discovery here, the suggested one-hour limitation could be unduly constraining
In conclusion, this order denies the motion
to
limit the duration and
scope of Mr.
Watson’s deposition.
The parties are reminded to
conduct this deposition as expeditiously as is
practicable, mindful ofthe issues relevant in this siting appeal.
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
r
L
5
CERTIFICATE OF SERVICE
It is hereby certified that true copies ofthe foregoing order was mailed, first class,
on
August 9, 2004,
to each of the persons on the attached service list.
It is hereby certified that a true copy ofthe foregoing order was hand delivered to the
following on August 9, 2004:
Dorothy M. Gunn
Illinois
Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Ste.
11-500
Chicago, Illinois 60601
7z7~&~L~~
)~
Kathleen M. Crowley
Senior Attorney
Illinois Pollution
Control Board
James R. Thompson Center
100
West Randolph Street, Suite 11-500
Chicago, Illinois 60601
312.814.6929
