RECEIVEDCLERK'S
OFFICE
NOV 3 0 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDETATE OF
ILLINOIS
Pollution Control Board
PEORIA DISPOSAL COMPANY
)
D
LIcy
PCB 06-184
Petitioner,
V .
PEORIA COUNTY
BOARD,
Respondent
.
(Pollution Control Facility Siting
Appeal)
MOTION FOR LEAVE TO FILE
REPLY TO RESPONSE TO MOTION
FOR LEAVE TO SUPPLEMENT RECORD ON APPEAL
AND FILE SECOND AMENDED INDEX
NOW COMES
Respondent, the Peoria County Board, (hereinafter "County") by and
through one of its attorneys, David A
. Brown, and as and for its Motion for Leave to File the
attached Reply to Response To Motion for Leave to Supplement Record on Appeal and File
Second Amend Index, and in support of its Motion states as follows :
1 .
On or about November 6, 2006, the County filed its Motion for Leave to
Supplement Record on Appeal and File Second Amended Index ("Motion")
.
2.
On or about November 15, 2006, Peoria Disposal Company ("PDC") filed a
Response to the Motion .
3 .
In its Response, PDC misrepresented numerous items as more fully set forth in
the Attached Reply .
4.
The County respectfully requests leave to file the attached Reply with the
Pollution Control Board for consideration
.
WHEREFORE, Respondent, the Peoria County Board, respectfully prays that this
Board grant the County's Motion to file the attached Reply, instanter .
Black, Black & Brown
Attorneys at Law
101 S
. Main Street
P
.O
. Box 381
Morton, IL 61550
Phone : (309) 266-9680
Fax: (309) 266-8301
Respectfully submitted,
PEORIA COUNTY BOARD
By:
David A . Brown
One of its Attorneys
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDRECEIVEDCLERK'S
OFFICE
PEORIA DISPOSAL COMPANY
Petitioner,
V.
PEORIA COUNTY BOARD,
Respondent.
NOV 3 0 2006
IV
Pollution
STATE OF
Control
ILLINOISBoard
PCB 06-184
(Pollution Control Facility Siting
Appeal)
REPLY TO RESPONSE TO MOTION
FOR LEAVE TO SUPPLEMENT RECORD ON APPEAL
AND FILE SECOND AMENDED INDEX
NOW COMES
Respondent, the Peoria County Board, (hereinafter "County") by and
through one of its attorneys, David A
. Brown, and as and for its Reply to PDC's Response to
Motion for Leave to Supplement Record on Appeal and File Second Amended Index, and in
support of its Motion states as follows
:
INTRODUCTION
The County filed its Motion for Leave to Supplement Record on Appeal and File Second
Amended Index because PDC brought to the County's attention during the course of discovery
the fact that certain items were not included in the Record on Appeal
. For PDC to now claim
that they were previously totally unaware of these items and that allowing them to be included in
the Record on Appeal would be prejudicial and delay the proceedings appears to be disingenuous
at best
.
ARGUMENT
A.
There will be no material delay or prejudice
.
At paragraph 3 on page 2 of PDC's Response, PDC alleges that it will be forced to
depose some County Board members and County Staff members, and possibly depose additional
persons regarding the April 6 Proposed Findings and the Findings Page
. However, what PDC
fails to state is that it was fully aware that the April 6 Proposed Findings and the other
documents, were not included in the Record on Appeal at the very beginning of discovery in this
appeal, if not sooner. In fact, PDC did question Karen Raithel, the Peoria County Recycling and
Resource Conservation Director, about the April 6 Proposed Findings during her deposition .
Attached hereto as Exhibit "A" are portions of the transcripts from that deposition
. PDC was
fully aware of these documents throughout the proceedings and has had ample opportunity to
question any and all deponents about these documents, and for the most part has declined to do
so
. There will be no delay caused by including the documents as part of the Record .
B.
The April 6 Proposed Findings Were Made Available to PDC
PDC claims throughout its Response that the April 6 Proposed Findings were never
available to PDC or the Public at any time prior to PDC's filing of its Petition for Review .
Copies of the April 6 Proposed Findings which the committee considered at the April 6
th meeting
were handed out to the public at the door prior to the start of the April 6 committee meeting .
Although the version handed out at the committee meeting was not on colored paper and was
condensed, it was otherwise identical
. See Affidavit of Karen Raithel, attached hereto as Exhibit
In fact, PDC must have received a copy of the April 6 Proposed Findings at the time of
the April 6 meeting or shortly thereafter because the April 6 Proposed Findings were referenced
at least twice in PDC's Response to Committee of the Whole Vote which it filed with the County
Clerk on April 27, 2006, and which is included in the Record on Appeal at C 13461 through
C13488.
At the bottom of page 9 of PDC's Response to the Committee of the Whole Vote
(C13469), PDC states :
"A good example appears in the alternative proposed Findings of Fact which were
prepared by the County Staff to support either an affirmative or a negative vote .
The first proposed finding under a "no" vote on criterion ii is that "there is
evidence that the existing landfill may already be leaking into the aquifer
."
Likewise, at page 22 of its Response to the Committee of the Whole Vote (C13482), PDC states
:
"All of the conditions proposed by PDC and County Staff were incorporated into
the Proposed Findings of Fact prepared by the County Staff and discussed by the
County Board Members at the April
6th
meeting."
PDC's Response to Committee of the Whole Vote was file stamp by the County Clerk's office
dated April 27, 2006
. It is hard to believe PDC would have been able to accurately quote a
document that was "never available to PDC", or if the document was in fact some "[slecret,
internal documents used by the County Board, never shared with or made available to any
participant" (seep
. 6 of PDC's Response), or if "they saw the light of day for the first time
during this appeal" (see page 6 of PDC's Respopnse)
. For PDC to claim that "[a]t no time prior
to filing its appeal did PDC or the public have access to the April 6 Proposed Findings
. . . ." (see
bottom of p
. 6 onto top of p
. 7 of PDC's Response) is disingenuous at best and simply factually
incorrect .
The April 6 Proposed Findings were presented, discussed and made available to the
public, including PDC and its counsel, at the April 6 meeting of the committee
. The document
was used and considered by the County Board Members as is clearly demonstrated by the
transcripts of the April 6
th meeting
. Furthermore, the April 6 Proposed Findings were in fact
located in the Peoria County Clerk's office, albeit in the Clerk's County Board files as opposed
to the repository specifically relating to the application
.
PDC has long been aware of the April 6 Proposed Findings of Fact, and therefore there
will be no prejudice or delay caused by including the document in the Record at this time
.
WHEREFORE, Respondent, the Peoria County Board, respectfully prays that this
Board grant the County's Motion to Supplement the Record
.
Black, Black & Brown
Attorneys at Law
101 S
. Main Street
P.O. Box 381
Morton, IL 61550
Phone : (309) 266-9680
Fax : (309) 266-8301
Respectfully submitted,
PEORIA COUNTY BOARD
By:
David A . Brown
One of its Attorneys
EXHIBIT "A"
PORTIONS OF TRANSCRIPTS FROM
KAREN RAITHEL DEPOSITION
EXHIBIT
"A"
KAREN RAITHEL
9-28-2006
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
PEORIA
DISPOSAL COMPANY,
Petitioner,
-vs-
NO . PCB 06-184
PEORIA COUNTY BOARD,
Respondent .
noticewitness andherein,
Thethe depositionSupremecalled
Court
forof
KARENexamination
RulesRAITHEL,
as theypursuanta pertainmaterialto to
Countythe
SeptemberPeoria,Giftos,
taking
ofCSR,Illinois,28th,
Peoria,of
RPR,discovery
2006,andcommencingand atNotaryStatedepositions
416ofMainPublicatIllinois,theStreet,beforehourin
andonofSuiteAanafor2Thursday,:00theM1400,p
.
.m .
APPEARANCES :
GEORGE MUELLER, ESQUIRE
528 Columbus
Street, Suite 204
Ottawa, Illinois 61350
and
JANAKI
HAIR, ESQUIRE
BRIAN J . MEGINNES, ESQUIRE
Elias,
416Meginnes,
Main Street,Riffle
&Suite
Seghetti,1400
Peoria, Illinois 61602
on behalf of
the Petitioner ;
DAVID A . BROWN, ESQUIRE
Black, Black & Brown
101 South Main Street
Morton, Illinois 61550
on behalf of the Respondent
;
P . C .
Page 1
PEORIA DISPOSAL COMPANY v
. PEORIA
PCB06-184
COUNTY 130ARD
EXHIBIT "A"
Page 31
A A process server, yes .
2
Q That's still a cop .
3
A Yes .
4
Q
Why did you do it in that fashion?
5
A
Expediency
. They would be delivered that
6 day .
7
Q Time was of the essence as far as you were
8 concerned?
9
A Yes .
10
Q The supplemental staff report, was it also
1 hand delivered to county board members?
12
A I think so .
13
Q Whose decision, by the way, was it to issue
14 the first staff report before the end of the 30-day
15 post-hearing period thereby inviting response from
16 the participants?
17
A I don't know .
18
Q Was the supplemental staff report also
19 filed in the clerk's office?
20
A I don't know .
2
Q If it wasn't filed, was it the result of
22 inadvertence or because you didn't think it should
23 be part of the record?
24
A Probably inadvertence .
Page 32
1
Q
Moving forward then to April 6th, we've
2
lealned that there were floating around or at
3 least--that's a bad term, they were in the hands
4
of board members on April 6th some alternative
5
findings of fact on color coded sheets . Do you
6
recall that?
7
A Color coded, yes .
8
Q
We have the pink, purple and the yellow
9
sheets?
10 A Correct .
11
Q ,
The way that I remember it is that purple
12 stands for royalty
. So, of course, that would have
13
meant approval for Royal Coulter
.
14
A No comment .
15
Q.
You guys didn't happen to pick purple based
upon
the same reasoning, did you, for the approval
17 sheets?
18
19
20
21
22
23
' -
A With Royal Coulter, I don't think that was
the
reason
why we picked purple .
Q Okay
. So I'm the only one that made that
connection .
A
I believe those were the colors in our
supply .
24 Q
;I knew
there
would be a more mundane
KAREN RAITHEL
9-28-2006
Page 33
reason .
Who physically authored the alternative
sets of findings that were used on the color coded
sheets on April 6th?
A
I believe it was a collection of Dave
Brown, Chris Burger, Patrick Urich, myself .
•
Then once again, did it fall to you to
actually run them off and get them on the proper
color coded sheets and get them in the proper
number of copies?
A I myself and a helper
.
•
How and when did those color coded sheets
get into the hands of county board members?
A I don't remember .
•
Well, the reason I'm asking is because
board member Mayer showed up at the
April 6th meeting with his own set of color coded
sheets with regard to criterion l . Do you recall
that?
A Yes .
•
I think he had, like, an alternative set of
pink, disapproval findings for criterion 1 . Does
that ring a bell?
A I believe so, yes .
Page 34
•
So what we're trying to understand is how
did he get your version of the pink criterion I
findings and when did he get them in relationship
to the April 6th meeting?
A
I don't know .
•
Did he ever participate with any of you in
the drafting of proposed findings?
A Not in my presence.
•
Did he ever ask for advanced copies of
anything to be E-mailed or delivered to him for his
review?
A Not from me .
• Did you ever provide anything to him in
advance of it being provided to any other board
members?
A Not from me, no .
•
You say "not from me." Does that mean it
might have been provided with your knowledge from
other people?
A I wouldn t know .
•
So your answer is you have no knowledge
about Allen Mayer ever getting anything ahead of
time?
A Correc
Pages 31 to 34
PEORIA
DISPOSAL COMPANY v . PEORIA
COUNTY BOARD
PCB06- i"IT "A"
EXHIBIT "B"
AFFIDAVIT OF KAREN RAITHEL
EXHIBIT "B"
NOV-27-2006
13 :18
BLACK,BLACK & BROWN
309 266 8301 P.02
AFFIDAVIT OF KAREN RAITHEL
STATE OF ILLINOIS
)
as.
COUNTY OF PEORIA
)
1, Karen Raithel, having been first duly sworn upon oath, deposes and states as
follows:
1.
My name is Karen Raithel . i am the Peoria County Recycling and
Conservation Resource Director.
2.
As part of my duties for Peoria County, I was involved with working on
the Peoria Disposal Company application for site location approval filed with the Peoria
County Clerk.
3.
One of my duties was to assist with the preparation, production and
copying of certain Proposed Findings ofFact which utilized at the April 6, 2006, meeting
of the Peoria County Regional Pollution Control Site Hearing Committee .
4.
At the April 6, 2006, committee meeting, the committee had before it a set
of Proposed Findings of Fact which were on colored sheets ofpaper, with the colors
representing approval (purple), approval with conditions (yellow), and denial (pink) .
5.
At the April 6, 2006, committee meeting, an identical set of Proposed
Findings of Fact, except not on colored paper and in condensed form, was handed out to
the public
. A copy of the version handed out to the public at the April 6, 2006,
committee meeting is attached hereto and incorporated herein
as Exhibit A to this
affidavit.
NOV-27-2006 13 :19
BLRCK,BLACK & BROWN
309 266 9301 P.03
6.
Mr
. Brian Mcginnes, attorney for Peoria Disposal Company and other
representatives of PDC were present at that meeting, and would have had the opportunity
to obtain and review the Proposed Findings of fact which were distributed to the public
.
7 .
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
this2g' day of November, 2006 .
./aN;,'a'-tf,U UUf'-
Notary Public
OFFICUILSEAL
HEATHER A . FEENEY
NOTARY PUBUC-STATE OF IWNOIS
MY COMMISSION EXPIRES 5&2007
i_
1/A
rL~
RECEIVEDCLERK'S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
NOV 3 0 2006
Pollution
STATE OF
Control
ILLINOIS
Board
PEORIA
Petitioner,DISPOSAL
COMPANY,
rw
)
v.
)
PEORIA COUNTY BOARD,
)
Respondent.
)
PCB 06-184
(Pollution Control Facility Siting
Appeal)
RESPONDENT'S
MOTION FOR EXTENSION OF TIME TO RESPOND
TO PETITIONER'S MOTION FOR SUMMARY JUDGMENT
NOW COMES, Respondent, the Peoria County Board, by and through its attorneys, and
for this Motion for Extension of Time to Respond, states as follows :
1 . On or about November 20, Petitioner filed a Motion for Summary Judgment (415
ILCS §5/39 .2(e)) by U .S. mail.
2.
The Motion was served on Respondent by regular U .S. mail, and pursuant to the
Affidavit of Service attached to the Motion was placed in the mail on November 17, 2006 .
3 .
Pursuant to Board rules, Respondent may file a Response to the Motion, and the
Peoria County Board fully intends to file such a Response .
4.
According to Board rules, a Response is to be filed within fourteen (14) days after
service of the motion, which according to Board rules would be deemed to have been received
four (4) days after placement in the U .S
. Mail, or on November 21, 2006 .
5 .
The deadline for filing a Response would therefore December 5, 2006 .
6.
The Motion and its attachments are considerable and the arguments of Petitioner
are complex, and as a result Respondent, the Peoria County Board, requires more time than the
fourteen (14) days granted by Board rules to adequately formulate a Response to the Motion .
7 .
During the period of time given to respond to the Motion, Peoria County is also
working diligently to finalize responses to Petitioner's voluminous Requests to Admit, which are
due November 30, 2006 .
8 .
An extension of two (2) additional weeks is reasonable, necessary and appropriate
to allow the County time to fully, accurately and thoroughly respond to the Motion.
9 .
An extension to December 18, 2006, would provide the County with adequate
time to fully respond to the Motion, and will not cause undue delay, prejudice or hardship to the
Board, any of the parties, or the public .
WHEREFORE, the Respondent, the Peoria County Board, respectfully requests the
Board grant the County an extension until December 18, 2006, to respond to the Petitioner's
Motion for Summary Judgment.
DATED: November 28, 2006 .
mit
David A. Brown, One of the Attorneys
for Peoria County
AFFIDAVIT OF SERVICE
The undersigned, being duly sworn upon oath, states that a copy of the attached
Respondent's Motion For Extension of Time To Respond to Petitioner's Motion For Summary
Judgment was served upon the following persons by enclosing such documents in separate
envelopes, addressed as follows, and depositing said envelopes in the U .S . Postal Service mail
box at Morton, Illinois on the 28`h
day of November, 2006, before 5 :00 p.m., with all fees
thereon fully prepaid and addressed as follows :
Carol Webb
George Mueller, P.C.
Hearing Officer
Attorney at Law
Illinois Pollution Control Board
628 Columbus Street, Suite 204
1021 North Grand Avenue East
Ottawa, IL 61350
P.O. Box 19274
Springfield, Illinois 62794-9274
2
Brian J. Meginnes
Elias, Meginnes, Riffle & Seghetti, P .C .
416 Main Street, Suite 1400
Peoria, IL 61602
Dated: November 28, 2006 .
Black, Black & Brown
Attorneys at Law
101 S . Main Street
P.O. Box 381
Morton, IL 61550
Phone : (309) 266-9680
Fax: (309) 266-8301
Subscribed and sworn to before me, a Notary Public, in the County and State as
aforesaid, this 28 th day of November, 2006 .
OFFICIAL SEAL
HEATHER A
. FEENEY
-ky
w,
Notary Public
NOTARY PUBLIC-STATE OF ILLINOIS
MY COMMISSION EXPIRES 562007
3
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEORIA DISPOSAL COMPANY
Po
STATEllutionOF
Board
AFFIDAVIT OF SERVICE
The undersigned, being duly sworn upon oath, states that a copy of the attached
Motion For Leave To File Reply To Response To Motion For Leave To Supplement
Record On Appeal and File Second Amended Index and Reply To Response To Motion
For Leave To Supplement Record On Appeal And File Second Amended Index, was
served upon the following persons by enclosing such documents in separate envelopes,
addressed as follows, and depositing said envelopes in the U
.S
. Postal Service mail box at
Morton, Illinois on the7
,
RI
day of November, 2006, before 5
:00 p.m., with all fees
thereon fully prepaid and addressed as follows
:
Carol Webb
George Mueller, P.C.
Hearing Officer
Attorney at Law
Illinois Pollution Control Board
628 Columbus Street, Suite 204
1021 North Grand Avenue East
Ottawa, IL 61350
P .O
. Box 19274
Springfield, Illinois 62794-9274
Brian J . Meginnes
Elias, Meginnes, Riffle & Seghetti, P .C.
416 Main Street, Suite 1400
Peoria, IL 61602
Dated: November 28, 2006 .
Subscribed and sworn to before me, a Notary Public, in the County and State as
aforesaid, this
7 '1
rbay of November, 2006 .
OFFICIAL SEAL
HEATHER A.FEENEY
NOTARY PUBLIC-STATE OF
ILLINO
:3
MY COMMISSION EXPIRES 562007
Notary Public
RECEIVED
CLERK'S OFFICE
NOV 3 0 2006
Petitioner,
)
PCB 06-184
v.
)
(Pollution Control Facility Siting
Appeal)
PEORIA COUNTY
BOARD,
)
Respondent.
)
