BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEORIA DISPOSAL COMPANY,
)
R E R
S OFFICEFFICE
etitioner,
)
OCT 2.0 2006
PCB 06-184
STATE OF ILLINOIS
V .
)
Pollution Control Boaro
(Pollution Control Facility Siting Appeal)
PEORIA COUNTY BOARD,
)
Respondent .
)
RESPONSE TO OBJECTION TO
PETITIONER'S FIRST SET OF
REQUESTS TO ADMIT, OR IN THE ALTERNATIVE,
MOTION FOR EXTENSION OF TIME
TO RESPOND
NOW COMES Petitioner, Peoria Disposal Company (hereinafter
"PDC"), by its
attorneys, Brian J
. Meginnes and George Mueller, and as and for its Response to the
"Objection to Petitioner's First Set of Requests to Admit or in the alternative Motion for
Extension of Time to Respond" (the "Objection") filed by the Peoria County Board (the
"County Board"), states as follows
:
INTRODUCTION
The volume of PDC's First Set of Requests to Admit is explained by one
irrefutable fact :
the County Board received hundreds (if not thousands) of ex parte
communications during the siting process
. The First Set of Requests to Admit seeks to
authenticate 379 such ex parte
written communications
. If the First Set of Requests to
Admit is considered "burdensome and unreasonable" by the County Board (Objection,
¶4), the burden and unreason were caused directly by the failure of the County Board to
abide by the law governing ex parte communications during the siting process
.
STATEMENT OF FACTS
PDC served its First Set of Requests to Admit (the "Requests to Admit") on the
County Board on September 21, 2006, which document consists of 1,976 separate
Requests to Admit facts in this appeal . Requests 1 through 67 concern documents
included in a binder used during the depositions in the case . Requests 68 through 81
concern three documents attached to the Requests to Admit . The largest portion of the
Requests to Admit, namely, Requests 82 through 1,976, concern a binder of 379
documents sent directly to some or all of the County Board members by opponents of
PDC's Application for siting approval (the "Application") . All 379 documents in the
binder (the "Ex Parte Documents") were transmitted to the County Board members ex
parte and were not filed in the Peoria County Clerk's office or with the Pollution Control
Board .
As to each of the
Ex Parte Documents, the following five Requests to Admit are
propounded to the County Board :
-
.
Document [#], enclosed in the binder produced
herewith, is a true and accurate copy of a communication
received by one or more members of the County Board .
-
.
Document [#], was not tendered to Peoria
Disposal Company by the author and/or the sender
.
-
.
Document [#], was not filed with the Peoria County
Clerk prior to May 3, 2006 .
-
. Document [#], was
not tendered to Peoria
Disposal Company by the County Board or
any
representative thereof prior to the hearing in this matter on
May 3, 2006
.
-
.
Document [#],
has not been filed in the Record
submitted to the Pollution Control Board in this appeal
.
These same five questions are posed as to each of the 379
Ex Parte Documents, for a
total of 1,895 Requests to Admit regarding the
Ex Parte Documents.
At the request of counsel for the County Board, on or about September 27, 2006,
counsel for PDC caused a copy of the Requests to Admit to be transmitted
2
electronically to counsel for the County Board
. (See the Affidavit of Counsel attached
herewith as Exhibit A and incorporated herein by this reference, ¶¶3-4)
. Subsequently,
counsel for the County Board demanded to know from what sources PDC had obtained
the Ex Parte
Documents . (Exhibit A, ¶5)
. Counsel for PDC stated affirmatively that all
the Ex
Parte Documents had been received from members of the County Board, either
in discovery or through other means
. (Exhibit A, ¶6)
. Counsel for the County Board
insisted that he be informed as to the specific members of the County Board who
provided PDC the
Ex Parte Documents
. (Exhibit A, ¶7)
. In order to facilitate the County
Board's responses to the Requests to Admit, counsel for PDC generated a chart listing
the known, actual recipient(s) of each and every
Ex Parte
Document, and faxed the
chart to counsel for the County Board
. (Exhibit A, ¶8)
.
On October 13, 2006, the County Board filed its Objection
. In this Response,
PDC sets forth the foundation of the Requests to Admit, facts regarding the County
Board's malfeasance as to
ex parte
communications in general, and PDC's agreement
to extend the deadline to respond to certain Requests to Admit on reasonable terms
.
ARGUMENT
PDC carefully and laboriously reviewed and cataloged the
Ex Parte Documents
from the boxes of documents produced by the County Board and from its own
investigations, and prepared requests to admit that specifically seek only those
admissions directly relevant to this appeal
. While PDC could have asked each County
Board member PDC deposed about each of the 379
Ex Parte
Documents, as is
suggested by counsel for the County Board in the Objection, PDC elected to take a less
hostile and more efficient approach
. PDC created a binder, arranged chronologically, of
the 379 Ex
Parte
Documents, and posed only five Requests to Admit as to each
Ex
3
Parte Document .
Moreover, after serving the Requests to Admit, PDC accommodated
the demands of counsel for the County Board in order to facilitate the County Board's
responses to the Requests to Admit
.
Contrary to the assertion in the County's Objection that certain of the Requests to
Admit seek information about what third parties might have done, the specific requests
seek only answers and information exclusively available to the County
.
The sad fact of the matter is that the volume of Requests to Admit directly
correlates with the enormous volume of
ex parte
communications from opponents that
occurred during the siting process in this case, contacts that were in some cases invited
by County Board members and that were seldom, if ever, rejected or discouraged
. In
fact, the majority of the County Board members deposed believed it was appropriate to
receive ex parte
communications from opponents
. For example, County Board member
Michael Phelan testified as follows
:
•
(by George Mueller]
During the course of your being on the county
board while the Peoria Disposal Company application was pending, what
was your understanding of the correct procedures or rules to be followed
by board members in connection with communications with members of
the public?
A
That communication was allowed but discussion was not
.
•
Can you distinguish for me the difference between communication
and discussion?
A
Discussing how we would vote or how we felt about the case or any of
the facts
. We were not to discuss that with the public but that we could
take phone calls and listen to their concerns
.
•
Was your understanding that the same rules applied to your
communications with representatives of the actual participants at the
hearing?
A Can you repeat that?
4
•
Let me ask it a different way . It was your understanding that you
could listen to members of the public and get their input and opinions on
the siting application?
A
I don't believe I had an understanding that I was to take their
testimony into account on the facts, but I do --
the way I understood the
process that the public was allowed to weigh in on this
.
•
That they were allowed to weigh in only at the hearing or privately to
you as well?
A Both .
(Deposition of Michael Phelan, September 12, 2006, pg
. 7, line 3 - pg . 8, line 7).
County Board member James Thomas also believed it was appropriate to
entertain the opinions and comments of the opponents :
•
[by George Mueller] As a result of that conversation or advice from the
State's Attorney's office, did you believe that you were not supposed to
talk to representatives of PDC about the application?
A Yes .
•
Did you have a similar belief about not talking to representatives of
the opposition groups?
A Yes, with exceptions .
•
What's the exception?
A
I'm an elected representative
. I have to listen to my constituents. If
you mean by talking, did I give opinions or did anything other than listen to
their point of view, then I didn't do any of that
.
(Deposition of James Thomas, September 12, 2006, pg
. 17, line 13 - pg. 18, line 3) .
A
We were instructed that while we could not discuss in the sense of
giving opinions that it was all right to listen to constituents
.
There's obviously nothing we can do to stop them sending a letter but
that they were to be
--
what did I say, set aside in the sense that while it's -
- you know, it's constituent opinion, it's simply opinion, and that the
decision could not have anything to do with these opinions
.
5
You -- we were not to express any preferences one way or another
until we had heard all of the facts and made a formal vote
.
(Deposition of James Thomas, September 12, 2006, pg . 21, lines 4-15) .
County Board member Carol Trumpe believed she could receive ex parte
communications from opponents, regardless of whether or not such opponents were
registered participants in the public hearing, and could not receive ex parte
communications from PDC:
• [by George Mueller] Now, during the hearing process and the
decision-making process after the hearing, what was your understanding
of the County Board's role and responsibility with regard to receiving
communications outside the hearing context?
A
We were told we were not to communicate with people about it .
•
And did you also have an understanding with regard to receiving
communications about the proposal?
A I think we were to hold onto them and turn them in
.
w
x
+
•
Was it your understanding that while you weren't supposed to
communicate your opinions about the proposal, it was appropriate for you
to receive opinions from the public?
A Yes
. I could receive them .
(Deposition of Carol Trumpe, September 13, 2006, pg
. 9, line 7 -pg . 10, line 4) .
• [by George Mueller]
Was it your understanding that the litigants,
meaning the actual parties in the hearing, were not supposed to be
contacting board members outside of the hearing process?
A You mean the proponents and the opponents? Clarify that
.
•
Yeah . That's correct .
A I'm not sure
.
•
Well, was it your understanding that the proponents were not
supposed to be contacting County Board members outside of the hearing?
6
A
Yes, because they were really the litigants
. I did not see these other
people who were in opposition here as individuals as litigants .
•
Well, you were aware that the Sierra Club was actually a registered
objector at the hearing?
A
I didn't know they were registered .
•
Well, you're saying you're not aware that the Sierra Club signed up
as an objector and had an attorney who cross-examined witnesses?
A Yes .
•
And that the Peoria Families Against Toxic Waste group did the same
thing?
A Yes . I did know that .
•
But your position is you did not perceive either the Sierra Club or the
Peoria Families Against Toxic Waste as being litigants?
A
At that time, they were opposing it
; but I guess I didn't .
•
Am I also correct then that, while you understood the prohibition
against proponents contacting board members outside the hearing, you
did not understand that it applied to opponents?
A
Well, the opponents had been sending all of this material to us
through the mail and even forwarded e-mails from the County
.
So we
were getting things from them all the time sent out by the County Board to
us.
Q
It never occurred to you that that was against the rules?
A
Why would they -- I guess no .
•
Did it ever seem to you that it was strange that the applicant couldn't
talk to you but that the opponents could?
A
I was listening to the applicant talk to me every time they testified at
the hearing .
•
Well, but the applicant didn't talk to you outside the hearing?
A No.
•
You never got any e-mails from PDC, did you?
7
A No.
•
You never got any letters from PDC, did you?
A No.
•
You did get e-mails, letters, and fliers from the Sierra Club, though,
didn't you?
A Yes .
•
And you did get e-mails, letters, and fliers from Peoria Families
Against Toxic Waste?
A Yes .
•
And the same would be true for River Rescue?
A Yes .
(Deposition of Carol Trumpe, September 13, 2006, pg
. 38, line 16 - pg. 41, line 6) .
County Board members Phil Salzer and Brian Elsasser also entertained
ex patio
communications :
•
[by George Mueller]
Right . So it was your understanding that you
should not from that point [prior to filing of the Application] on have any
communication with Peoria Disposal Company or its people including
members of the Coulter family?
A We were instructed not to discuss it with anyone and to take an
attitude of listen
. You can listen to people, but you cannot give opinions
and so forth .
(Deposition of Phillip Salzer, September 14, 2006, pg
. 11, lines 16-24) .
•
[by George Mueller] At the time that you started this process of
deciding on the Peoria Disposal application for landfill expansion, we
understand there was a meeting where ground rules for board members to
follow were basically handed down .
What was your impression after that point in time as to what
communications you could have with participants and the public outside
the hearing process?
8
A
You know what, I don't recall exactly
. Maybe I should, but I don't recall
what all the rules were .
•
Well, did you believe that it was appropriate or inappropriate for you to
be contacted by representatives of Peoria Disposal Company about the
application outside the hearing process?
A I'm not sure
. That would be --
I mean, I welcome anybody's phone
calls at any time if they have something they want to say to me
.
•
So it was not your impression that outside contacts to you about the
subject matter of the application was inappropriate, is that correct?
A
They may have mentioned that that might, but I don't remember
. That
meeting was a long time ago .
•
I don't want to get into what they mentioned because that might
actually get into the attorney-client privilege
.
What I want to understand is your belief about how the procedures
were going to work in terms of outside contacts .
A That would be correct
. I was assuming that I would get telephone
calls from the opponents and proponents both.
•
And that would be okay, is that right?
A
I don't remember what they said that night, but to me, I would assume
that would be okay because how else can people air their views one way
or the other
.
(Deposition of Brian Elsasser, September 14, 2006, pg
. 11, line 4
- pg . 12, line 19) .
The understanding of the foregoing County Board members mirrors that of the
County Board Chairman, Dave Williams
:
A Well, we was told, you know, to limit conversation among ourselves
and to the citizens, just to listen and not make a commitment or get into
--
add on to the discussion
.
•
[by George Mueller] You were told to listen, though?
A Yes .
•
Was that listening to everybody or only listen to the public?
9
A Listen to everybody
. We don't have a choice whether he calls, you
call . We've got to --
you know, we're going to take the call
. We'll tell you
the same thing . We can't discuss this
. I can't tell you how I'm going to
vote because I haven't heard the case yet
.
•
But if let's say -- do you know Chris Coulter?
A I met him once, I think, yes
.
•
Let's say if Chris Coulter had called you back in March of this year to
give you some what he thought was inside information about something,
you would have listened to him? You wouldn't have told him you're not
supposed to be talking to me?
A
I would have told him if he's adding information to the stuff that's not
on the record I can't listen to that . If he wants to give me his opinion that
he thinks it's a good thing to do, then that's different
.
Generic statement is one thing .
If he's trying to add information to
that's not part of the record, then I would have to cut him off
. I can't worry
about anything else
. I can't listen to this .
•
Did you actually ever have to apply that kind of rule to any of the
communications that you received while this hearing was going on?
A Yes . " " .
(Deposition of David Williams, September 15, 2006, pg .13, line 3 - pg
. 14, line 13) .
The particular Ex Parte
Documents included with the Requests to Admit are only
a fraction of the total received by County Board members
. The Ex Parte Documents
are those
ex parte documents produced in discovery by the County Board and
uncovered by PDC in its investigations, that PDC believes were not even filed in the
Peoria County Clerk's office or included in the Record before the Pollution Control
Board . It appears that many of the County Board members
never filed
any
of the ex
parte communications they received from opponents of the Application
. County Board
member James Thomas testified that he "stacked up" correspondence received from
10
opponents, never making any of the correspondence available to PDC or to the public
generally:
•
[by George Mueller]
When you received correspondence from
members of the public including representatives of the opposition groups,
what did you do with it?
A I stacked them up on my desk .
•
Were they then ultimately discarded intentionally or inadvertently as
part of your move?
A Intentionally .
•
What was the purpose of discarding them as opposed to turning them
over to the State's Attorney or the county clerk?
A I wasn't aware that was necessary
.
(Deposition of James Thomas, September 12, 2006, pg
. 32, line 18 - pg . 33, line 5) .
•
[by George Mueller] When you stacked up these communications, did
you ever make any copies of any of them?
A No.
•
You never gave any of them to your wife [the Peoria County Clerk]?
A No.
(Deposition of James Thomas, September 12, 2006, pg
. 34, lines 3-7).
Similarly, County Board member Michael Phelan testified that he filed none of the
hundred-plus ex parte
communications he received from opponents of the Application :
•
[by George Mueller] How many letters would you say you received?
A Literally dozens .
•
More or less than 100, if you know?
A I don't know specifically, but I would say it could have been more than
100 .
•
So it's up therein that 100 range?
11
A
Yes.
Some might have been from the same person on several
different days .
(Deposition of Michael Phelan, September 12, 2006, pg
. 10, line 22 - page 11, line 6) .
•
[by George Mueller] You said you also get E-mails?
A Yes .
•
Approximately, how many E-mails would you say you got?
A
There again, I'd say dozens, not maybe nearly as many letters but
quite a few
.
(Deposition of Michael Phelan, September 2, 2006, pg
. 13, lines 6-11)
.
•
[by George Mueller] * * *
. Now, with regard to all of these E-mails and
letters that you got, what did you physically do with them?
A
I think shortly after the vote was concluded like I do with most of my
county things I get rid of it, just throw it out
.
•
Did it ever occur to you while you were receiving that material that you
should be turning it in to the county clerk?
A No
. I don't recall that .
•
As a matter of fact, you did not turn stuff over as you got it, is that
correct?
A No.
•
No, it's not correct or
--
A
No, you are correct
. I did not turn it over .
(Deposition of Michael Phelan, September 12, 2006, pg
. 22, line 21 -
page 23, line 12).
County Board member Eldon Polhemus also retained all the ex parte
communications he received, failing to file same
:
A * * *
. I'd read enough of each letter to see whether they were for or
against it . That's all I'd do
. I stacked them up and kept track of them
.
12
•
[by Janaki Nair]
What was your general understanding as to overall
what people thought for and against?
A Well, the letter count I had and the phone call count it was very high
against it.
•
You reference these letters that you got
. Can you take a guess as to
how many letters you received?
A
There were over 100, between 100 and 125
.
•
Did these letters come to your home?
A Yes.
•
What did you do with the letters when you got them? I know you
mentioned stacking them up
.
A
After the final vote on the county board, I threw everything away .
•
When you received them, did you keep the only copies you had or did
you give them to the county clerk or anything?
A
I kept everything .
(Deposition of Eldon Polhemus, September 15, 2006, pg
. 10, line 12 - pg. 11, line 9) .
County Board member Brian Elsasser also failed to file any ex
parte
communications :
•
[by George Mueller]
Now, with regard to the communications that you
received outside of the hearing process, and I'm interested really in the
period from November 9th, 2005 until May 3rd, 2006, did you receive any
E-mails?
A Yes.
•
Can you tell us approximately how many E-mails you received?
A I'm not sure I turned in X number
. You have those
. I mean, I didn't
count them .
•
Did you keep all of the E-mails that you got?
A No. * * * .
13
(Deposition of Brian Elsasser, September 14, 2006, pg
. 13, lines 9-21).
•
[by George Mueller] Did you also get letters in paper form?
A Yes
. I saved -- I know I saved all the letters
. I turned those in .
•
So whatever you got was saved and turned in?
A Yes.
(Deposition of Brian Elsasser, September 14, 2006, pg
. 16 lines 1-6) .
•
[by George Mueller]
When did you turn over all of the things that you
kept?
A
Probably a month ago, was it, that I mailed them to you? Maybe a
month ago or so, a month and a half
. I don't recall the exact date .
•
So sometime after the decision was made?
A Yes
. It was, like, somewhere between 30 days ago and 45 days ago,
my guess .
•
Okay
. It was your belief that from the beginning that you should keep
the stuff that you got?
A Yes
. They said to try to save the E-mails and the letters .
(Deposition of Brian Elsasser, September 14, 2006, pg
. 16, line 24 - pg . 17, line 13) .
Additionally, PDC hopes to prove that it was deprived of a fair hearing by
opponents who knowingly and intentionally disregarded the rules regarding
ex parte
communications in landfill siting hearings .
These opponents were represented by
counsel
; they had a full opportunity to participate in the public hearing
; they were in
some cases like that of the Sierra Club well experienced in siting procedures and rules
;
and they nonetheless systematically engaged in and encouraged others to engage in a
pattern of
ex parte
communication, intended to deluge the County Board and politically
overwhelm its ability to make a fair decision based on the evidence
. In fact, certain
County Board members admitted at their discovery depositions that they considered
14
and took into account in the decision making process the substance of some of the ex
parte communications received
. See, for example, the testimony of County Board
members Lynn Scott Pearson, Michael Phelan, Phil Salzer, Brian Elsasser and Eldon
Polhemus, below :
• [by George Mueller]
And you also said that you waited to make up
your mind until you had read everything that you could get your hands on
;
is that right?
A Everything that was presented to me, yes
.
•
And that would include all of the e-mails that you got?
A Oh, yes .
•
[by George Mueller]
Now, did you have an understanding when this
hearing process started of whether you could or couldn't have
communications with the various factions outside of the hearing process?
A Say that again, please
.
•
I knew that I asked that in a bad way
. What was your understanding
or belief at the start of the hearing process about whether people with
opinions on the application could communicate with you and whether you
could communicate with them?
A
That I was not supposed to communicate with them
.
•
How about their communicating with you?
A
Yes. They could communicate with me
. I'm a public servant
.
•
Does that mean then that you never discouraged anyone from
delivering their opinions to you?
A
No.
•
No, you didn't ; or no --
A
No, I didn't .
Q
Okay
. And in that regard, you took all of those communications into
account as well ; is that right?
15
A I am not sure how to answer that because I read them, as we spoke
of the e-mail
; but as far as remembering every one and pulling everything
together, I don't think so . I think that it was my duty to read them .
•
I'm not asking if you remembered every specific one .
A Oh, no. Thank you .
•
And I'm sure that you gave more weight to some than to others
because, you know, you get something from Tom Edwards, you may not
consider it as much as something from the Sierra Club, right?
A
It's about 50/50 there.
(Deposition of Lynn Scott Pearson, September 13, 2006, pg
. 24, line 3 - pg. 25, line
22).
•
[by George Mueller] Now, was it your understanding that your decision
was to be based only on the evidence that came in at the public hearing?
A The evidence and the facts, yes .
•
Well, what's the difference between the evidence and the facts?
A I don't know
. I can't answer that . That was -- the facts were the term
that Mr. Atkins used when explaining the rules of the Peoria County
Board. We used facts
. I guess you're using evidence .
•
Could you gather facts from sources other than the public hearing?
A I don't recall that, that part of what could be used and what couldn't be
used coming up . I don't recall Mr
. Atkins and the State's Attorney's office
advising us on that particular item
.
•
Well, was it your belief that you could gather facts from sources other
than the public hearing?
A
Yes
. In general, yes .
•
Did you receive communications from members of the public including
representatives of opposition groups during the hearing process?
A Yes, I did .
(Deposition of Michael Phelan, September 12, 2006, pg . 8, line 23 - pg
. 9, line 24) .
16
•
[by George Mueller] In fact, you did listen to a lot of different input from
different people outside of the hearing process on this application, didn't
you?
A Yes.
• Is it your belief that you were -
while you weren't supposed to talk to
anyone and express your views, it was useful to get the views of everyone
including your constituents?
A Not really .
•
How so not really?
A It was a waste of time in some cases
.
• I couldn't agree with you more
. In other cases, though, you did
receive useful information from constituents and members of the public
outside the hearing process, right?
A I can't say that I absolutely did .
•
Well, can you say that you absolutely didn't?
A
I tried to be very open-minded and listen and not make any
commitments of any type to anyone.
(Deposition of Phillip Salzer, September 14, 2006, pg
. 12, lines 4-24).
•
[by George Mueller] Going back for a second to what you said that you
understood that you --
it was appropriate for all sides on the issue to
contact you privately.
Is it then fair that you understood that you should take the content of
all of those communications into consideration in making your decision?
A
I didn't think I could take them all in, if I didn't have time to read them
all .
•
But the ones that you read and you were aware of, did you
--
obviously, you must have felt it was appropriate to take all of those
--
all of
those for what they were worth into consideration in reaching your final
decision?
A That's difficult to answer .
•
What's difficult about that question that makes it hard to answer?
17
A
Because some crackpot letters, you know, I just discarded those .
• But the ones that weren't crackpot letters that offered substantive
information which wasn't at the hearing those you felt you were free to
consider?
A Yes, but I didn't consider everything .
(Deposition of Phillip Salzer, September 14, 2006, pg . 17, line 1
- pg . 18, line 1) .
• [by George Mueller] What was your impression as to what you should
do with the information that you gathered by E-mails, telephone calls and
letters from both proponents and opponents?
A We were supposed to maintain the E-mails or at least try to and the
letters.
• Was it your belief that you should consider that information along with
all other information including information gathered at the hearing in
making your decision?
A Yes . I think the information that I gathered at the hearing should have
been the most important information .
(Deposition of Brian Elsasser, September 14, 2006, pg . 12, line 20 - pg . 13, line 8) .
• [by Janaki Nair] What was your understanding for what information you
should gather to come up with that decision, your independent reasons for
denial?
A I will tell you I make a lot of my decisions yes and no on important
votes like that by the, what do you say, the information I acquire from
these letters and things like that because I don't go out and go to parties
and stuff like that .
•
So by those letters, do you mean the letters that you were getting at
your home from members of the public?
A Yes.
•
So it was your -- so you considered the information that you received
at your home?
A No. I -- the only way I considered the letters and that I got was I used
it like a tally sheet. If I got 100 letters and 80 or 90 of them were against it,
18
I felt that's the way the public felt, that's the way --
I was supposed to
represent the public, too .
We've had many decisions on different things, and my decision hasn't
been wholly on letter count, but I consider that a good part of my
reasoning .
(Deposition of Eldon Polhemus, September 15, 2006, pg . 37, line 2 - pg . 28, line 1) .
It is the County Board's fault that there are so many Requests to Admit . If the
County Board had used proper procedures to prevent ex parte
communications during
the siting process, PDC would not have
three hundred seventy-nine (379) Ex Parte
Documents to authenticate on appeal .
CONCLUSION
In light of the volume of ex parte communications in this case, the Requests to
Admit are entirely reasonable . This being said, PDC understands that it will be difficult
for the County Board to prepare responses to the Requests to Admit
. The current
deadline for responding to the Requests to Admit is Thursday, October 19, 2006 . PDC
agrees to extend the deadline for the County Board to respond to Requests to Admit 1
through 81 (i.e., the Requests to Admit that do not pertain to the Ex Parte Documents)
for two (2) weeks, to Thursday, November 2, 2006 . PDC does require responses to
these Requests to Admit in a timely fashion, as PDC has begun drafting a motion that
will include such Requests . PDC further agrees to a four (4) week extension of the
County Board's time to respond to Requests to Admit 82 through 1,976 (i.e.,
the
Requests to Admit pertaining to the Ex Parte Documents), to Thursday, November 16,
2006.
19
WHEREFORE, Petitioner, Peoria Disposal Company, prays that the Hearing
Officer deny the County Board's request to strike the Requests to Admit, and that the
Hearing Officer grants, at most, the extensions described above .
Respectfully submitted,
PEORIA DISPOSAL COMPANY
George Mueller
GEORGE MUELLER, P.C
.
Attorney at Law
628 Columbus Street, Suite #204
Ottawa, Illinois 61350
(815) 431-1500 - Telephone
(815) 431-1501 -
Facsimile
20
Brian J. Meginnes
ELIAS, MEGINNES, RIFFLE & SEGHETTI, P
.C .
Attorneys at Law
416 Main Street, Suite #1400
Peoria, IL 61602-1153
(309) 637-6000 - Telephone
(309) 637-8514 - Facsimile
Board).
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEORIA DISPOSAL COMPANY,
)
Petitioner,
)
PCB 06-184
v.
)
(Pollution Control Facility Siting Appeal)
PEORIA COUNTY BOARD,
)
Respondent .
)
AFFIDAVIT OF COUNSEL
STATE OF ILLINOIS
)
ss.
COUNTY OF PEORIA
)
Brian J
. Meginnes, having been first been duly sworn upon his oath, deposes
and states as follows :
1 .
My name Brian J
. Meginnes
. I am one of the attorneys representing the
Petitioner, PEORIA DISPOSAL COMPANY
("PDC"), in the above-captioned matter
.
2 .
PDC served its First Set of Requests to Admit (the "Requests to Admit")
on the Peoria County Board in the above-captioned matter on September 21, 2006
3 .
On or about September 27, 2006, Dave Brown, counsel for the Peoria
County Board herein, asked me for an electronic copy of the Requests to Admit
.
4.
I had my associate, Janaki Nair, email an electronic copy of the Requests
to Admit in "Word" format to Dave Brown on September 27, 2006
.
5.
Subsequently, in a telephone conversation, Dave Brown demanded to
know from what sources PDC had obtained the
Ex Parte
Documents (as defined in
PDC's Response to the "Objection to Petitioner's First Set of Requests to Admit or in
the alternative Motion for Extension of Time to Respond" filed by the Peoria County
1
I
EXHIBIT
A
6 .
I told Dave Brown that all the Ex Parte Documents had been received
from members of the County Board, either in discovery or through other means
.
7.
Dave Brown insisted that he be informed as to the specific members of the
County Board who provided PDC the
Ex Parte Documents.
8 .
Finally, in order to facilitate the County Board's responses to the Requests
to Admit, I had my associate, Janaki Nair, generate a chart listing the known, actual
recipient(s) of each and every Ex Parte Document, and I faxed the chart to Dave Brown .
9.
I am an adult and if called upon to testify in this matter, I could
competently testify to the facts stated herein .
FURTHER AFFIANT SAYETH NOT .
Subscribed and sworn to before me
this 19th day of October, 2006.
2
OFFICIAL SEAL
JESSICAM ROCKEY
NOTARY PUBLIC-STATE OF ILLINOIS
MYOOABA9SOIEXPWES:Ob130T
908-1378
STATE OF ILLINOIS
)
SS
COUNTY OF PEORIA
)
AFFIDAVIT OF SERVICE & FILING
The undersigned being first duly sworn on oath, states that the foregoing
RESPONSE TO THE "OBJECTION TO PETITIONER'S FIRST SET OF REQUESTS
TO ADMIT OR IN THE ALTERNATIVE MOTION FOR EXTENSION OF TIME TO
RESPOND" was served upon the following persons by enclosing copies of same in
separate envelopes, addressed as set forth below, and sending/delivering said
envelopes as follows, on the 19th day of October, 2006, before 5
:00 p.m., with all fees
thereon fully prepaid .
Illinois Pollution Control Board
100 W. Randolph, Suite 11-500
Chicago, Illinois 60601
[ORIGINAL + TEN (10) COPIES]
via Federal Express
from Peoria, Illinois
Mr. David A
. Brown
Black, Black & Brown
101 South Main Street
P .O. Box 381
Morton, Illinois 61550
via Federal Express from Peoria, Illinois
Subscribed and sworn to before me this 19th day of October, 2006
.
Notary Public
George Mueller
GEORGE MUELLER, P.C.
Attorney at Law
628 Columbus Street, Suite #204
Ottawa, Illinois 61350
Ms
. Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P
.O
. Box 19274
Springfield, Illinois 62794-9274
via Federal
Express from Peoria, Illinois
Mr . Kevin Lyons
Peoria County State's Attorney
324 Main Street, Room #111
Peoria, Illinois 61602
via hand delivery
Brian
C
J . Meqinne
(print name)
OFFICIAL SEAL
JESSICA M ROCKEY
NOTARY PUBLIC-STATE OF ILLINOIS
MY COMMISSION EXPIRES
: 00-1347
Brian J
. Meginnes
ELIAS, MEGINNES, RIFFLE & SEGHETTI, P.C.
Attorneys at Law
416 Main Street, Suite #1400
Peoria, IL 61602-1153
(815) 431-1500 - Telephone
(309) 637-6000 - Telephone
(815) 431-1501 - Facsimile
(309)
637-8514 - Facsimile
