WASTE MANAGEMENT OF ILLINOIS, INC.,
)
)
Petitioner,
)
)
vs.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
No. PCB
04-186
STATE
MAR
OF
152005
ILUNOIS
)
(Pollution Control Fa~1t~t10flCor~ro~~
)
Siting Appeal)
)
COUNTY BOARD OF KAI’TKAKEE COUNTY,
)
ILLiNOIS,
)
)
Respondent.
)
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on March
15, 2005,
we filed with the Illinois Pollution
Control Board, an original and four copies ofthe attached Waste Management ofIllinois, Inc.’s
Motion to Compel.
WASTE MANAGEMENT OF ILLINOIS, INC.
By:
Donald J. Moran
PEDERSEN & HOUPT
161 North Clark Street, Suite 3100
Chicago, Illinois 60601
(312) 641-6888
Attorney RegistrationNo. 1953923
/C~~—
388313
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
R~c~~
‘C’
~
WASTE MANAGEMENT OF
)
r~
~
OFFlr~
ILLINOIS, INC.,
)
MAR 1 5 20qs
Complainant/Petitioner,
)
~ou8~iT1~’~~Jr~,r~
V.
)
No. PCB 04-186
)
COUNTY BOARD OF KANKAKEE
)
COUNTY, ILLINOIS,
)
)
Respondent.
)
MOTION TO COMPEL
Now comes Complainant/Petitioner WASTE MANAGEMENT OF ILLTNOIS, INC. (“WMII”), by
and through its attorneys, Pedersen & Houpt, and for its Motion to Compel states as follows:
INTRODUCTION
This motion seeks an order permitting discovery as to why certain members ofthe County
Board ofKankakee County (“the County”)denied, without explanation, a siting application they had
previously approved on a substantially identical application and record. The County’s counsel has
consistently instructed County Board members not to answer questions regarding the County’s
otherwise inexplicable shift in position on the ground that such questions invade the “mental
process” or “deliberative process” privilege ofgovernmental decision-makers.
As set forth in detail below, these privileges do not apply here. First, the mental process
privilege only applies when the decision under review was made in conjunction with formal
administrative findings that explain the decision. No such findings explain the County’s change of
position in this case. Second, the mental process privilege does not apply when circumstances
indicate bad faith or improperbehavior in connection with the decision-making process. Here, the
407623.1
County’s inexplicable changein position, on the same application, record, and Planning Commission
recommendation, is sufficient to raise the inference of bad faith or improper behavior. Finally,
neither of the privileges protects communications made after the decision-making process is
complete. The Hearing Officer should issue an order compelling the County Board Members to
explain the basis for their change ofposition.
FACTS
A.
The County Board’s Change of Position
On August 16,2002, WIvill filedan application forlocal siting approval for an expansion of
its existing landfill in Kankakee County. The Kankaicee County Regional Planning Commission
(“the Planning Commission”) considered this application, issued findings that the proposed
expansion complied with the nine statutory criteria of Section 39.2 of the Illinois Environmental
Protection Act and recommended that the County approve the application. On January31, 2003, the
County Board followed the Planning Commission’s findings and recommendation, and approvedthe
application.
On August 7, 2003, the Illinois Pollution Control Board (“IPCB”) vacated the approval on
the groundthat notice to one property owner within the subjectarea was insufficient under 415 ILCS
5/39.2(b). On September 26, 2003, WMII filed a second application for approval of the same
expansion of the same landfill. This second application was also considered by the Planning
Commission, which found it to be “substantially similar (ifnot identical) to the application filed by
Wivil in 2002.” The Planning Commission foundthat the proposedexpansion complied w4tkS-ection
39.2’s nine criteria and, again, recommended approval of WMII’s application.
407623.1
2
In a surprising reversal, however, on March 17, 2004, the County Board rejected WMII’s
September 26 application. Without explanation, thirteen County Board members who previously
voted to approve the landfill expansion changed their votes with respect to one or more of the
statutory criteria and voted to reject the application. The County Board made no factual findings
explaining why it rejectedthe Planning Commission’s recommendations orwhy the statutory criteria
were not satisfied.
George Washington, Jr., a seventeen-year County Board member and chairman of the
Planning Commission, later testified that “considering all the information that was presented and
it was essentially the same as it was the first time, the second vote was very disappointing to me.
As a long standing county board member, I have never seen a reversal like that and not knowing
what it was based on.” (Washington Tr., p. 23:2-7).
B.
WMII Sought an Explanation but was Denied
On April 21, 2004, WMII fileda petitionfor review ofthe County’s March 17, 2004 decision
on the ground that it was fundamentally unfair and against the manifest weight ofthe evidence. To
conductsuch a review, the IPCB is required to review the “entire record.”
Chicago MessengerServ.
v. Jordan,
No. 1-03-1391, 2005 WL 396575, at *4 (Ill. App. Feb. 18, 2005). In this case, however,
nothing in the record explains whythe County approved the first siting application but rejected, on
a substantially identical application and Planning Commission recommendation, the second.
Accordingly, WMII sought to discover whether the County Board members who changed
theirvotes did so on the basis offacts contained in the administrative record. The County, however,
resisted all such attempts as invading the “mental process” or “deliberative process” privileges of
governmental decision-makers. The deposition ofCounty Board member LindaFaber, for instance,
407623.1
3
provides
Q
a typical
Did
exchange:
you become
1
aware at some point that Waste Management ofIllinois had
filed an application to expand the existing Kankakee landfill in August of
2002?
A
Yes.
***
Q
Was there a vote on that application in January of2003?
A
Yes.
Q
Did you vote on the application?
A
Yes, I did.
Q
And how did you vote?
A
I voted yea.
Q
You voted to approve the application?
A
Yes,Idid.
Q
Were you aware that Waste Management of Illinois filed another siting
application in September of2003?
A
Yes.
***
Q
Did you have any understanding as to whether the application filed in
September of2003 was the same or a different application than the one filed
in August of2002?
Objections and instructions not to answer similar questions seeking information relating to the Board
members reversal decision were made at the deposition of Board members Frances Jackson, Ralph Marcotte, Linda
Faber, Stanley James, Ruth Barber, Karen Hertzberger, Janiie Romein, James Vickery, Leo Whitten, Ed Meents,
William Olthoff, Lisa Waskosky, Mike LaGesse and Sam Nicholos.
407623.1
4
A
Not until I read the application. I picked up the book and read through it.
Q
And what was yourunderstanding? Were the applications same ordifferent?
A
I think it was the same.
***
Q
Did you vote on the application filed in September fo 2003?
A
Yes.
Q
And how did you vote on the second siting application?
A
I voted against it.
Q
What information or facts were made available to you in making your
decision to turn down the September 2003 application?
MR. PORTER:
Objection. Instruct the witness not to answer on the grounds
that invades the mental impressions ofa decision maker.
BY MR. MORAN:
Q
How did you become aware ofthe facts or information that you considered
in voting to deny the September 2003 application?
MR. PORTER:
Same direction.
BY MR. MORAN:
Q
Who provided those facts to you?
MR. PORTER:
Same direction.
BY MR. MORAN:
Q
When did you make your decisionon the September2003 siting application?
MR. PORTER:
Same direction.
407623.1
5
Q
Did you consider any facts or information that was different thanthe facts or
information you considered in voting on the application in January of2003?
MR. PORTER:
Objection.
...
I think that’s a direct question of a decision
makerofher mental impression in coming to her decision and
clearly is improper and I direct her not to answer.
(Farber Tr., pp.
6:10-14,
7:1-9,
8:8-16,
9:16-18, 10:3-23, 22:55-9,
22:13-17).
Not only did the County refuse to allow Board members to testif~yas to the basis for their
own, otherwise unexplained decisions, the County also refused to allow any Board member to testify
regarding the decisions of
other
Board members. For example, Ms. Faber was asked:
Q
Did you hear or learn ofany facts ofinformation from whatever source as to
why an county board member voted to deny the September 2003 siting
application when they ~iadpreviously voted to approve the January 2003
—
I should say August 2002 siting application?
MR. PORTER:
I’d ask the witness to answer this question, but it calls for a
yes or no response and no elaboration at this time.
BY THE WITNESS:
A.
Okay. Yes.
BY MR. MORAN:
Q
And what information or facts do you have as to why any county board
member who had voted to approve the August 2002 siting application voted
to deny the September 2003 siting application?
MR. PORTER:
Now that I have to direct you not to answer because it’s a
direct question as to the mental impressions ofthe witness
—
ofa decision maker.
(Id.,
pp. 22:18
-
23:14).
The County’s prohibition even extended to County employees who were not members ofthe
407623.1
6
County Board. For instance, Michael VanMill, the Count~splanning director, testified that he had
discussed the Board’s second vote
—
afterthe fact
—
with Culver James Vickeiy, a Board member.
The Countyrefused to allow Mr. VanMill to disclose the content ofthat conversation, however, even
though it did not bear on any decision-making process of Mr. VanMill’s and even though Mr.
Vickery’s decision-making process was, by definition, complete. (Vanmill Tr., pp 41:16
-
44:15).
ARGUMENT
The County’s reliance on the “mental process” and “deliberative process” privileges will
result in an incomplete record. As it is, the County Board has made no effort to explain its sudden
reversal of position with respect to ‘WlvIH’s two siting applications. In such circumstances, the
privileges do not apply. Moreover, the Board’s unexplained reversal ofposition—creates-an inference
ofbad faith or improper behavior sufficient to overcome the privileges. Finally, neither of the
privileges protects communications made after the decision-making process is complete. The
Hearing Officer should issue an order compelling the County Board members to explain the basis
for their change ofposition.
A.
The Mental Process Privilege Does Not Apply Absent Administrative Findings
The CountyBoard members can be compelledto explain theirdecision regardingthe second
siting application because a governmental decision-maker’s mental processes are only privileged
where contemporaneous administrative findings explain the decision.
“Before
an inquiry can be made into the decisionmaker’s mental processes
when a
contemporaneous formalfinding exists,
there must be a strong showing ofbad faith or improper
behavior.”
City ofRockford v. Winebago Cnty.,
(Nov. 19, 1987), PCB 87-92 at 9 (citing
Citizens to
Preserve Overton Park, Inc. v. Volpe,
41 U.S. 402, 91 S. Ct. 814 (1971)) (emphasis added). In
407623.1
7
Overton Park,
the United States Supreme Court held that “inquiry into the mental processes of
administrative decisionmakers” was permitted in the absence ofadministrative findings-e-xplaining
the decision.
Overton Park,
41 U.S. at 420, 91 5. Ct. at 825. Where there are no contemporaneous
administrative findings, examination ofdecision-makers’ mental processes may “provide the only
possibility for effectivejudicial review.”
Communityfor Creative Non-Violence v. Lujan,
908 F.2d
992, 997 (D.C. Cir. 1990) (citing
Overton Park).
In this case, no administrative findings explain why the County approved the first siting
application but rejected, on a substantially identical application and Planning Commission
recommendation, the second. The testimony ofMs. Farber and Mr. VanMill confirm that some
additional facts orinformation influenced thirteenBoar4mernbe-rs-to change theirvotes. Meaningful
review ofthat vote, however, is impossible without discovery regarding that information. Under the
longstanding rule of
Overton Park,
therefore, the mental processes ofthe County Board members
are discoverable.
B.
The Board’s Unexplained Reversal Implies Bad Faith or Improper Behavior Sufficient
to Overcome the Privilege
Even if contemporaneous administrative findings were present in this case, the Board’s
sudden and unexplained reversal creates an inference ofbad faith or improper behavior sufficient
to overcome the mental process privilege.
“Where there are administrative findings that were made at the same time-as the decision
theremust be a strong showing ofbad faith orimproperbehaviorbefore inquiry into the decision-
maker’s mental processes may be made.”
Overton Park,
41 U.S. at 420, 91 S. Ct. at 825. “To
conclude otherwise would be an abandonment ofanymeanin-gf3aijudiciai protection againstarbitrary
407623.1
8
administrative action.”
Abbott Labs. v. Harris,
481 F. Supp. 74, 78 (N.D. Ill. 1979).
“Courts should weigh the limited means plaintiffs have at this stage ofthe proceedings to
uncover
...
impropriety in determining whether they have made a ‘strong showing”.
Sokaogon
Chippewa Communityv. Babbitt,
961 F. Supp. 1276, 1280 (W.D. Wis. 1997). Where circumstances
are sufficient to “at least call into question whether or not non-statutory facts have been decisive,”
discovery should be allowed.
Abbott Labs.,
481 F. Supp. at 78.
In this case, the County Board has offered no explanation at all for its refusal to adopt the
Planning Commission’s recommendations and no explanation why it approved the first siting
application but rejected, on a substantially identical application and Planning Commission
recommendation, the second.
Sudden reversal ofpositions and rejectionoflengthy and consideredstaffrecommendations
create an inference ofbad faith orimproperbehavior. For example, in
Sokaogon Chippewa,
certain
Lake Superior Chippewa Indian bands challenged the Department of the Interior’s denial of an
application under the Indian Gaming Regulatory Act. 961 F. Supp. at 1284. Although the Indian
Gaming Management Staffhad released a report recommending the approvalofthe application, the
department inexplicably rejected the proposal less than threeweeks later.
Id.
The Secretary offered
a “briefexplanation” forthe department’sreversal ofpositionin a letter, but the
Sokaogon Chippewa
court held that this brief explanation “became suspect as pretext when compared with the much
lengthier, in-depth reports prepared by the
...
Indian Gaming Management Staff that reached the
opposite conclusion.”
Id.
Under these circumstances, the
Sokaogon Chippewa
court allowed discovery into the
processes the administrative decision-makers used to reach their decisions.
Id. See also Abbott
407623.1
9
Labs,
481 F. Supp. at 78 (discovery into mental processes warranted whenFDA refused to approve
food additive despite recommendations from prior FDA Commissioners and reported
recommendation by Bureau of Foods). Considering that the County has offered no explanation
whatsoever for its decision, the Hearing Officer should allow similar discovery here.
Moreover, the privilege does not apply to material which explicitiyevidences concern fur the
possible political ramifications or other factors unrelated to the decision-maker’s statutory mandate
and which suggests various actions in light ofthese political ramifications or other factors.
United
States v. Hooker Chems. & Plastics Corp.,
123 F.R.D. 3, 8 (W.D.N.Y. 1988). To the extent,
therefore, that the County Board members acted took into account political ramifications or other
non-statutory factors, theirmental processes cannot be privileged.
C.
The Deliberative Process Does Not Protect Post-Decision Communications
Conversations in which a County Board member or other County employee learned the
reason why a particularBoard member changed his or her vote is not protected by the “deliberative
process” privilege.
“The deliberative privilege
...
does not apply to post-decisional, or so-called ‘working law
communications,’
i.e.,
explanations orinterpretations or an existing government decision.”
Id.
“At
the point where the deliberative process comes to anend, the protection ofboth privileges comes to
an end.”
Id.
Inthis case, the County refused to allow BoardMembers and employees to answer questions
regardingafter-the-fact conversationsregardingthe decision to reject V v1Tssecondaiting proposal.
These communications fall outside the scope ofthe mental and deliberative process privileges, and
are discoverable.
407623.1
10
CONCLUSION
For all the reasons stated above, the Hearing Officer should issue an Order pursuant to
Section 101.610(g) ofthe Pollution Control Board Procedural Rules.
A.
Compelling the following members of the County Board to answer questions
regarding the reason fortheirrejection ofWMII’s second siting application: Frances
Jackson, Ralph Marcotte, Linda Faber, Stanley James, Ruth Barber, Karen
Hertzberger, Jamie Romein, James Vickeiy, Leo Whitten, Ed Meents, William
Olthoff, Lisa Waskosky, Mike LaGesse and Sam Nicholos.
B.
Compelling County Board members and Michael VanMill to answer questions
regarding their knowledge of or any communications regarding the reason any
County Board member reversed theirvote on WMII’s second siting application; and
C.
Granting such other reliefas the Hearing Officer deems just.
Respectfully submitted,
Donald J. Moran
PEDERSEN & HOUPT
161 North Clark Street, Suite 3100
Chicago, Illinois 60601
Telephone: (312) 641-6888
W
OF ILLINOIS, INC.
407623.1
11
PROOF OF SERVICE
Bridget Killing, a non-attorney, on oath states that she served the foregoing
Waste
Management ofIllinois, Inc.’s Motion to Compel
by enclosing same in an envelope addressed to
the following parties as stated below, and by depositing same in the U.S. mail at 161 N. Clark St.,
Chicago, Illinois 60601, on or before 5:00 p.m. on this 15th day ofMarch, 2005:
Mr. Rick Porter
Hinshaw & Culbertson
P.O. Box 1389
Rockford, IL 61105-1389
and by hand
delivery to:
Bradley Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Bridget Killii~g)
(~)
388313
—2—
