RECEIVEDCLERK'S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOA
2,0 2007
PEORIA DISPOSAL COMPANY,
)
Petitioner,
)
v.
)
PEORIA COUNTY BOARD,
)
Respondent .
)
PCB 06-184
(Pollution Control Facility Siting Appeal)
Pollution
STATE OF
Control
ILLINOISBoard
PETITIONER'S RESPONSE IN OPPOSITION TO OBJECTION TO
PETITIONER'S EXHIBITS TO BRIEF AND MOTION TO STRIKE
NOW COMES Petitioner, Peoria Disposal Company (hereinafter "PDC" or
"Petitioner"), by its attorneys, Brian J . Meginnes and George Mueller, and as and for its
Response in Opposition to the Objection to Petitioner's Exhibits to Brief and Motion to
Strike (the "Motion to Strike"), filed by Respondent, the Peoria County Board (the
"County"), states as follows :
1 .
PDC filed its Brief on February 16, 2007
. The Brief includes three
Exhibits :
a. Exhibit 1 is an invoice dated June 28, 2006, generated by the
County, requesting payment of $242,092 .66 for "[r]elated expenses to the PDC
Landfill Siting Application Review . . ." by PDC, and a cover letter sent therewith .
b.
Exhibit 2 is an invoice dated August 1, 2006, generated by the
County, requesting payment of $41,534 .03 for "[r]elated expenses to the PDC
Landfill Siting Application Review . . ." by PDC, and a cover letter sent therewith .
c.
Exhibit 3 is a table prepared by PDC, summarizing and
approximating the costs incurred by PDC in technical consultants and experts,
during the proceedings on the Application before the Board (not including
attorneys' fees or costs incurred by PDC itself), in the amount of $222,239.26 .
2 . The Exhibits were submitted with the Brief in conjunction with PDC's
request that the Board award PDC its costs incurred in the first, failed hearing, that
would be again incurred in a second hearing, if this matter were to be remanded to the
County by the Pollution Control Board for a second hearing based on the failure of the
County to provide a fundamentally fair hearing . Referring to Exhibits 1, 2 and 3, PDC
states that the costs incurred by PDC in the first hearing that would be duplicative of
costs incurred in a hearing on remand are reasonably estimated to be over $500,000 .
(See Brief, pgs. 83-86).
3 .
Along with its responsive Brief, on April 6, 2007, the County filed the
Motion to Strike
. Therein, the County states that "Exhibits 1, 2 and 3 to PDC's brief are
not part of the certified record or the evidentiary record from the Board's hearing, and
therefore are not appropriate to reference or include with its brief' and that "Exhibits 1, 2
and 3 are not valid evidence in this appeal, and should be stricken from the record of
these proceedings." (Motion to Strike, ΒΆΒΆ9 & 11) .
4.
PDC agrees that the documents attached to the Brief as Exhibits 1, 2 and
3 do not have evidentiary value because they were not submitted to the Pollution
Control Board prior to the filing of the Brief (though PDC does question why the
County's own invoices and letters to PDC (Exhibits 1 and 2) were not included in the
certified Record filed by the County in this appeal)
. However, the invoices, being
County documents, are certainly probative and reliable
. PDC included same for
2
illustrative purposes and to put the County on more detailed notice of the relief it is
seeking .
5 .
Clearly, if the Pollution Control Board awards PDC its costs (in lieu of
simply reversing the purported decision of the Peoria County Board and deeming the
Application approved), PDC will be required to prove up such costs with specificity and
sworn testimony in a supplementary proceeding before the Pollution Control Board .
6 . Nevertheless, PDC objects to and opposes the Motion to Strike
. The
Pollution Control Board should be able to consider Exhibits 1, 2 and 3, without affording
the Exhibits undue evidentiary weight .
WHEREFORE, Petitioner, Peoria Disposal Company, prays that this Board deny
the Objection to Petitioner's Exhibits to Brief and Motion to Strike filed by Respondent,
the Peoria County Board, and award Petitioner, Peoria Disposal Company, such other
and further relief as is deemed appropriate under the circumstances.
Respectfully submitted,
PEORIA DISPOSAL COMPANY
George Mueller
GEORGE MUELLER, P .C.
Attorney at Law
609 Etna Road
Ottawa, Illinois 61350
(815) 431-1500
- Telephone
(815) 431-1501 - Facsimile
907-0377b
3
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
Notary Public
George Mueller
GEORGE MUELLER, P.C.
Attorney at Law
609 Etna Road
Ottawa, Illinois 61350
(815) 431-1500 - Telephone
(815) 431-1501-Facsimile
AFFIDAVIT OF SERVICE
The undersigned, being first duly sworn upon oath, states that copies of the
Response in Opposition to the Objection to Petitioner's Exhibits to Brief and Motion to
Strike of Petitioner, Peoria Disposal Company, will be served upon the following
persons by enclosing same in separate envelopes, addressed as follows, and sending
same via Federal Express, overnight delivery, from Peoria, Illinois, on the 19th day of
April, 2007, before 5:00
p .m .,
with all fees thereon fully prepaid and addressed as
follows
:
Mr. William Atkins
Assistant State's Attorney
Peoria County
324 Main Street, Room #111
Peoria, IL 61602
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
dbrownVblackblackbrown .com
Ms. Carol Webb, Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P. 0. Box 19274
Springfield, IL 62794-9274
(217) 524-8509 - Telephone
webbcAipcba .state .il .us
Subscribed and sworn to before me, a Notary Public, in the Co
aforesaid, this 19th day of April, 2007
.
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
AFFIDAVIT OF FILING
The undersigned, being first duly sworn upon oath, states that
ten (10) copies of
the Response in Opposition to the Objection to Petitioner's Exhibits to Brief and Motion
to Strike of Petitioner, Peoria Disposal Company, will be filed with the Illinois Pollution
Control Board via Federal Express, overnight delivery, sent on the 19th day of April,
2007, sent before 5 :00 p.m .
Subscribed and sworn to before me, a Notary Public, in the Peoria County,
Illinois, this 19th day of April, 2007
.
Notary Public
OFFICIAL SEAL
JESSICA M ROCKEY
NOTARY
PL".
STATE OF ILLINOIS
My
COMMISSION
EXPIRES
: 08.13-07
