1
GEORGE MUELLER
628 Columbus Street, Suite #204
Ottawa, Illinois 61350
(815) 431-1500 – Telephone
(815) 431-1501 - Facsimile
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEORIA DISPOSAL COMPANY,
Petitioner,
v.
PEORIA COUNTY BOARD,
Respondent.
)
)
)
)
)
)
)
)
)
PCB 06-184
(Pollution Control Facility Siting Appeal)
NOTICE OF FILING
TO:
See attached service list
PLEASE TAKE NOTICE THAT
on the 6th day of December, 2006, George
Mueller, one of the attorneys for Petitioner, Peoria Disposal Company, filed the original
Response of Peoria Disposal Company in Opposition to Peoria County Board’s Motion
for Leave to File Reply to Response to Motion for Leave to Supplement Record on
Appeal and File Second-Amended Index and also filed the Affidavit of Brian J.
Meginnes, with the Clerk of the Illinois Pollution Control Board, via electronic filing as
authorized by the Clerk of the Illinois Pollution Control Board.
Respectfully submitted,
PEORIA DISPOSAL COMPANY
BY:
/ s / George Mueller
One of its attorneys
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 6, 2006
2
GEORGE MUELLER
628 Columbus Street, Suite #204
Ottawa, Illinois 61350
(815) 431-1500 – Telephone
(815) 431-1501 - Facsimile
STATE OF ILLINOIS
)
)
SS
COUNTY OF LASALLE )
AFFIDAVIT OF SERVICE
The undersigned, a non-attorney, being first duly sworn upon oath, states that a
copy of the Response of Peoria Disposal Company in Opposition to Peoria County
Board’s Motion for Leave to File Reply to Response to Motion for Leave to Supplement
Record on Appeal and File Second-Amended Index and the Affidavit of Brian J.
Meginnes, was served upon the following persons by the methods indicated below on
the 6
th
day of December, 2006, before 5:00 p.m., with all fees thereon fully prepaid and
addressed as follows:
Service List
Mr. David A. Brown
Black, Black & Brown
Attorneys at Law
101 South Main Street
P. O. Box 381
Morton, IL 61550
(309) 266-9680 - Telephone
(309) 266-8301 - Facsimile
dbrown@blackblackbrown.com
E-mail, first-class mail and facsimile
transmission
Ms. Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P. O. Box 19274
Springfield, IL 62794-9274
(217) 524-8509 - Telephone
webbc@ipcb.state.il.us
E-mail
Mr. Kevin Lyons
State’s Attorney
Office of the Peoria County State’s Attorney
324 Main Street, Room #111
Peoria, IL 61602
Hand-delivered
BY:
/ s / Lynn Cutler
Legal Assistant
Subscribed and sworn to before me, a Notary Public, in the County and State as
aforesaid, this
6th day of December, 2006.
BY:
/ s / George Mueller
Notary Public
My commission expires:
August 23, 2009
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 6, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEORIA DISPOSAL COMPANY,
Petitioner,
v.
PEORIA COUNTY BOARD,
Respondent.
)
)
)
)
)
)
)
)
)
PCB 06-184
(Pollution Control Facility Siting Appeal)
RESPONSE OF PEORIA DISPOSAL COMPANY IN OPPOSITION TO
PEORIA COUNTY BOARD’S MOTION FOR LEAVE TO FILE REPLY TO
RESPONSE TO MOTION FOR LEAVE TO SUPPLEMENT RECORD ON APPEAL
AND FILE SECOND AMENDED INDEX
NOW COMES
Peoria Disposal Company (“PDC”), by its attorneys, Brian J. Meginnes
and George Mueller, and as and for its Response in Opposition to the Motion for Leave to File
Reply to Response to the Motion for Leave to Supplement Record on Appeal and File Second
Amended Index, filed by the Peoria County Board (the “County Board”), states as follows:
On or about November 6, 2006, the County Board filed its Motion for Leave to
Supplement Record on Appeal and File Second Amended Index (the “Motion”), seeking to
supplement the Record with the Supplemental Staff Report (to which filing PDC does not
object), the “April 6 Proposed Findings” and the “Findings Page (as defined in the Response).
On November 16, 2006, PDC filed its Response to the Motion (the “Response”). On or about
November 30, 2006, the County Board filed its Motion for Leave to File Reply, and attached
thereto the Reply it proposes to file (the “Proposed Reply”). PDC hereby
objects to the County
Board’s Motion for Leave to File Reply, because the Proposed Reply contains several
misstatements of fact.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 6, 2006
In the Proposed Reply, the County Board concerns itself only with the “April 6 Proposed
Findings”, and does not address the “Findings Page”. Regarding the “April 6 Proposed
Findings”, the County Board submitted an Affidavit of Karen Raithel with the Proposed Reply,
stating, in pertinent part, as follows:
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 of paper, 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. [The referenced document is not
attached to the Affidavit.]
6.
Mr. Brian Meginnes, 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.
(Proposed Reply, Exhibit B: Affidavit of Karen Raithel).
Essentially, the County Board’s claim is that the “April 6 Proposed Findings” attached
with the Motion,
i.e.
that specific document which the County Board seeks to place in the
Record, was previously disclosed, in a different format, to PDC.
In fact, PDC admits that it received a copy of
some Proposed Findings of Fact on April 6,
2006. (
See
Affidavit of Brian J. Meginnes, Exhibit 1 hereto, ¶3). PDC
denies that the packet
presented to it on April 6, 2006 is “identical” to the document the County Board now seeks to
file. PDC affirmatively states that the document the County Board seeks to file differs from the
document distributed to the public on April 6, 2006, in at least the following
substantive
respects:
2
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 6, 2006
1.
The document the County Board seeks to file includes numerous hand-written
notations, which did not appear in the handout distributed to the public (Exhibit 1,
¶7);
2.
The document the County Board seeks to file includes the page stamped
“C139649”, which did not appear in the handout distributed to the public and was,
on information and belief, tendered only to the members of the Peoria County
Pollution Control Site Hearing Committee (the “Committee”) by Board member
G. Allen Mayer at the meeting (Exhibit 1, ¶8)
1
; and
3.
The document the County Board seeks to file includes the pages stamped
“C139653” through “C139658”, which did not appear in the handout distributed
to the public (Exhibit 1, ¶9).
In addition, the handout was in 8- or 10-point font, was condensed, and was arranged differently
(by position (“yes”, “no”, “yes with conditions”) rather than by criterion). (Exhibit 1, ¶¶4-6).
Also, it is PDC’s belief that the document the County Board seeks to file differs from the
Proposed Findings of Fact actually distributed to and considered by the Committee in at least the
following respects:
1.
The document the County Board seeks to file includes numerous hand-written
notations, which most likely did not appear in the Proposed Findings of Fact
actually distributed to and considered by the Committee;
1
Board member Mayer at the April 6, 2006 Committee meeting acknowledged that his alternative pages
(“pink sheets”) were not distributed to the public.
See
Transcript of April 6, 2006 meeting, pg. 130, lines
21-23; C13443. Moreover, the excerpt from the deposition of Karen Raithel attached as Exhibit A to the
Motion for Leave to File Reply includes the following relevant exchange:
Q [by Mr. Mueller] How and when did those color coded sheets get into the hands of
county board members?
A I don't remember.
Q 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 1. Do you
recall that?
A Yes.
Q
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.
(Exhibit A to Motion for Leave to File Reply, pg. 33, lines 12 through 24).
3
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 6, 2006
2.
The document the County Board seeks to file includes the page stamped
“C139649”, which Proposed Findings of Fact actually distributed to and
considered by the Committee and was, on information and belief, separately
tendered to the Committee members by Board member G. Allen Mayer during the
meeting
2
; and
3.
The document the County Board seeks to file includes the pages stamped
“C139653” through “C139658”, which may or may not have been included with
the Proposed Findings of Fact actually distributed to and considered by the
Committee.
In summary, the document the County Board seeks to file differs from (a) the handout
distributed to the public at the April 6, 2006 meeting, and (b) the Proposed Findings of Fact
actually distributed to and considered by the Committee, in at least the following respects:
Document attached to the
Motion for Leave to
Supplement
Proposed Findings of Fact
distributed to the public at
the April 6, 2006 meeting
Proposed Findings of Fact
presented to the Committee
at the April 6, 2006 meeting
12 point font, black-and-white 8-10 point font, condensed,
black-and-white
12 point font, colored
Arranged by criterion
Arranged by position (“yes”,
“no”, “yes with conditions”)
Arranged by criterion
(presumably)
Handwritten notations
No handwritten notations
No handwritten notations
(presumably)
Includes C139649: page
possibly prepared by Board
member Mayer
Did not include C139649
May have received C139649
from Board member Mayer
separately
Includes C139653-58: charts
pertaining to perpetual care
Did not include C139653-58
May have included C139653-
58 (unknown)
Because the document sought to be filed by the County Board as the “April 6 Proposed
Findings” is
not the document distributed to the public or the document considered by the
Committee, the document is not properly filed by the County Board in the Record. One set of
Proposed Findings of Fact is
not just as good as any other set. PDC has not deposed County
2
See
footnote 1,
supra
.
4
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 6, 2006
Staff concerning the handwritten notations, page C139649, or the charts at C139653-58 in the
document sought to be filed.
The County Board’s spurious accusation in the Proposed Reply that PDC was given a
copy of the document the County Board seeks to file is false. The document the County Board
seeks to file was
not tendered to PDC prior to the filing of the Petition for Review in this case on
June 7, 2006. (Exhibit 1, ¶10).
For all the foregoing reasons, the Motion for Leave to File Reply to Response to Motion
for Leave to Supplement Record on Appeal and File Second Amended Index should be denied.
WHEREFORE,
Peoria Disposal Company prays that the Motion for Leave to File Reply
to Response to Motion for Leave to Supplement Record on Appeal and File Second Amended
Index, filed by the Peoria County Board be denied.
Respectfully submitted,
PEORIA DISPOSAL COMPANY
By:
/s/ George Mueller
One of its attorneys
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
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
906-1533
5
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 6, 2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 6, 2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 6, 2006
2
GEORGE MUELLER
628 Columbus Street, Suite #204
Ottawa, Illinois 61350
(815) 431-1500 – Telephone
(815) 431-1501 - Facsimile
STATE OF ILLINOIS
)
)
SS
COUNTY OF LASALLE )
AFFIDAVIT OF SERVICE
The undersigned, a non-attorney, being first duly sworn upon oath, states that a
copy of the Response of Peoria Disposal Company in Opposition to Peoria County
Board’s Motion for Leave to File Reply to Response to Motion for Leave to Supplement
Record on Appeal and File Second-Amended Index and the Affidavit of Brian J.
Meginnes, was served upon the following persons by the methods indicated below on
the 6
th
day of December, 2006, before 5:00 p.m., with all fees thereon fully prepaid and
addressed as follows:
Service List
Mr. David A. Brown
Black, Black & Brown
Attorneys at Law
101 South Main Street
P. O. Box 381
Morton, IL 61550
(309) 266-9680 - Telephone
(309) 266-8301 - Facsimile
dbrown@blackblackbrown.com
E-mail and facsimile transmission
Ms. Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P. O. Box 19274
Springfield, IL 62794-9274
(217) 524-8509 - Telephone
webbc@ipcb.state.il.us
E-mail
Mr. Kevin Lyons
State’s Attorney
Office of the Peoria County State’s Attorney
324 Main Street, Room #111
Peoria, IL 61602
Hand-delivered
BY:
/ s / Lynn Cutler
Legal Assistant
Subscribed and sworn to before me, a Notary Public, in the County and State as
aforesaid, this 6th day of December, 2006.
BY:
/ s / George Mueller
Notary Public
My commission expires:
August 23, 2009
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 6, 2006
Back to top
