BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC
)
)
Petitioner,
)
)
v.
)
)
)
UNITED CITY OF YORKVILLE, CITY )
COUNCIL
)
)
Respondent.
)
PCB No. 07-146
(Pollution Control Facility Siting
Appeal)
NOTICE OF FILING
To:
See Attached Service List
PLEASE TAKE NOTICE that on January 8, 2008, Leo
P. Dombrowski, one of
the attorneys for Respondent, United City of Yorkville, filed via electronic filing the
attached
United City
of Yorkville's
Response to Petitioner's Amended Motion to
Compel and for Sanctions
with the Clerk of the Illinois Pollution Control Board, a copy
of which is herewith served upon you.
Respectfully submitted,
UNITED CITY OF YORKVILLE
By:
/s/ Leo P. Dombrowski
One
of their Attorneys
Anthony
G. Hopp
Thomas
1. Matyas
Leo
P. Dombrowski
WILDMAN, HARROLD, ALLEN
&
DIXON
LLP
225 West Wacker Drive, 30th Floor
Chicago, Illinois 60606
Phone: (312) 201-2000
Fax: (312) 201-2555
hopp@wildman.com
matyas@wildman.com
dombrowski@wildman.com
Electronic Filing - Received, Clerk's Office, January 8, 2008
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC
)
)
Petitioner,
)
)
v.
)
)
UNITED CITY OF YORKVILLE, CITY )
COUNCIL
)
)
Respondent.
)
PCB No. 07-146
(Pollution Control Facility Siting
Appeal)
YORKVILLE'S RESPONSE TO PETITIONER'S
AMENDED MOTION TO COMPEL AND FOR SANCTIONS
In its barebones, three-page Amended Motion, Petitioner claims that: 1) Yorkville waived
each, every, and all objections to Petitioner's discovery
by not including each, every, and all
objections in Yorkville's motion for a protective order (this is Petitioner's sole disagreement with
Yorkville's objections); and 2) Yorkville'sdiscovery responses are, in part, insufficient..
Petitioner cites no authority to support its novel claim
of waiver, and it is apparently the
first party who has ever raised this waiver argument, as its argument finds no support or even
passing mention in the statutes, rules, case law, or elsewhere. Petitioner also fails to explain how
Yorkville's responses are insufficient. By failing to provide any support for its two arguments,
Petitioner has waived these contentions.
Petitioner also suggests that Yorkville does not take seriously its discovery obligations.
This is nonsense. Yorkville provided extensive and detailed responses to Petitioner's discovery
requests.
It
provided names, dates, and numerous other details, and identified responsive
documents.
See, e.g.,
Yorkville'sAnswers to Interrogatories 1,4-5, and 7, which are attached to
Petitioner's Amended Motion. Yorkville also produced 75 pages
of responsive documents.
I.
YORKVILLE DID NOT WAIVE ANY OF ITS OBJECTIONS TO
PETITIONER'S DISCOVERY REQUESTS.
A.
Petitioner Cites No Authority in Support of Its Novel Waiver
Argument, Because There Is None.
Instead of picking up the telephone and attempting to resolve discovery differences,
Petitioner filed a Motion to Compel and For Sanctions on December 14,2007, taking issue with
some
of Yorkville's responses to Petitioner's interrogatories and document requests. In its
Motion, Petitioner claimed, among other things, that Yorkville had produced no documents.
Mot.
~
6.B.
During the December 18, 2007 telephonic status conference held with the Hearing
Officer, Petitioner'scounsel, George Mueller and Charles Helsten, admitted that, despite having
been served on November 6, 2007 with Yorkville's documents, both attorneys had failed to even
look at them.
1
Two days later, Petitioner filed almost the exact motion, with the sole exception
of now acknowledging that it had received the documents produced by Yorkville.
The crux
of Petitioner's Amended Motion is that Yorkville waived all objections,
permanently and forever, to Petitioner's interrogatories and document requests "by failure to
include them in their original motion for protective order." (Amnd. Mot.
~~
6.A., 7.A.)
Significantly, other than its waiver argument, Petitioner does not take issue with any aspect
of
Yorkville's objections. By failing to do so, Petitioner concedes the legal sufficiency of the
objections.
1 Although the parties probably would not have been able to resolve their discovery differences given
Petitioner's extreme take on discovery matters, at least Petitioner's counsel would have been spared the
embarrassment of conceding that they had not bothered to review the documents produced by Yorkville
before Petitioner filed its first motion to compel based on,
in part, Yorkville's not producing any
documents.
-2-
Despite the importance of its waiver claim to Petitioner'sAmended Motion, Petitioner
offers no statute, rule,
or case law in support. Petitioner offers nothing because there is
nothing-nowhere in the Supreme Court Rules, Code of Civil Procedure, Pollution Control
Board Rules, case law, or elsewhere is there anything that lends any credence to Petitioner's
novel theory. By failing to offer any authority regarding its theory, Petitioner has waived it.
See,
e.g., People
v.
Gemeny,
313
Ill.
App. 3d 902, 914 (2
nd
Dist. 2000) ("defendant makes several
cursory arguments that are supported by no pertinent authority. These arguments are waived and
we need not consider
them.")?
Section 101.616(d) of the Board Rules provides that a hearing officer may issue
protective orders "to prevent unreasonable expense, or harassment, to expedite resolution
ofthe
proceeding, or to protect non-disclosable materials from disclosure." Supreme Court Rule
20 I(c)(1) authorizes courts to issue protective orders "as justice requires, denying, limiting,
conditioning, or regulating discovery to prevent unreasonable annoyance, expense,
embarrassment, disadvantage,
or oppression." Neither these rules nor any other authority
(including all other Board Rules and Supreme Court Rules) require a party seeking a protective
order to include all discovery objections in its motion for a protective order or risk waiving them.
Such a requirement would be absurd, as it would prohibit parties from filing concise
motions seeking protective orders
on discrete issues, such as the confidentiality of financial
information.
If Petitioner were correct, a party seeking any kind of protective order-whether it
sought to protect trade secrets, guard financial information, or shield the names
of minors-
would have to include all its objections to pending discovery requests in its motion for a
2
Neither Yorkville nor the Hearing Officer should be forced to guess what possible support there could
be for Petitioner's novel contention.
If Petitioner had any legal support for its contention, it certainly
would have included it
in its Amended Motion.
-3-
protective order or risk waiving them. This would force the hearing officer or trial judge to
spend time and effort resolving objections that otherwise might never be challenged. The law
does not require or encourage such wasteful motion practice.
B.
Petitioner Misrepresents the Substance of Yorkville's Motion for
a
Protective Order and the Hearing Officer's Ruling.
Contrary to Petitioner's contention (Amnd. Mot.
~
3), Yorkville did not seek a protective
order finding that Petitioner's discovery requests were overly broad or burdensome. Rather, it
filed a motion for a protective order arguing that Petitioner "had waived its discovery requests
regarding possible bias or prejudice against petitioner by seven
of the nine members of the City
Council because it did not object to these members' participation as decision makers at the local
siting hearing."
(See
Hearing Officer's Sept. 20,2007 Order at p.
1,
attached as Exhibit A.)
Yorkville also sought a stay of discovery pending the Hearing Officer's ruling on its motion for
the protective order.
Id
The Hearing Officer denied Yorkville's motion for a protective order, ruling that the issue
of waiver by Petitioner was ultimately one for the Board, and not the Hearing Officer, to make.
Id
at p. 4, n. 1. Consequently, at this early stage in the appeal, the Hearing Officer concluded
that "discovery may proceed under the circumstances of this case."
Id
at p. 4. Nowhere did the
Hearing Officer rule or even suggest that Yorkville had waived discovery objections by not
including them in its motion for the protective order.
3
Despite the absence of any discussion by the Hearing Officer on this issue of waiver (nor
did Petitioner raise the issue in its response to Yorkville's motion for the protective order
4
),
3 The Hearing Officer also granted Yorkville's motion for the discovery stay, and Yorkville timely
answered Petitioner's discovery within the time allowed.
4
Under Petitioner's reasoning, by failing to raise the waiver issue in its response to Yorkville's motion for
the protective order, Petitioner
is precluded from raising it in its Amended Motion.
-4-
Petitioner now makes the curious claim that Yorkville's discovery "objections had been
preempted to the extent that the Hearing Officer's order of September 20,2007, found that the
requests were not burdensome and onerous." Amnd., Mot.
~
6.A. Yet, true to form, Petitioner
does not cite to any part of the Order to support its claim, nor does Petitioner attempt to explain
to what "extent" the Hearing Officer found that Petitioner's discovery requests were or were not
unreasonably burdensome or onerous. In fact, the Hearing Officer found that Yorkville did not
base its motion for the protective order
on any allegation that Petitioner's discovery "creates an
unreasonable expense or engenders harassment." Order at p. 4.
Yorkville did not waive any objections to Petitioner's discovery. As was its right, it filed
a motion for a protective order on a discrete issue, namely, Petitioner's failure to raise certain
issues
of bias and unfairness below. It also sought and received a discovery stay so that
Petitioner could not claim that Yorkville's discovery responses were served beyond the time
allowed for answering.
Petitioner offers no authority or explanation showing how Yorkville might have waived
its discovery objections. Its Amended Motion should be denied.
II.
YORKVILLE
PROPERL
Y ANSWERED OR OBJECTED TO
PETITIONER'S DISCOVERY REQUESTS.
A.
Responses to Document Requests.
Petitioner appears to suggest Yorkville's responses to Requests 1-6 and 13-16 are
insufficient for the sole reason that, although Yorkville produced numerous documents in
response to these requests, it did not provide a statement that the production was complete.
Amnd. Mot.
~
6.B. Petitioner does not cite to any rule or case law that such a statement is
required, because none is.
Nor did Petitioner provide such a statement with its responses to
Yorkville's document requests.
-5-
As to requests 7-12, Petitioner claims that Yorkville has not produced any responsive
documents. Yorkville did not produce any documents because these requests are objectionable
for several reasons. Significantly, Petitioner does not take issue with any
of Yorkville's
objections, and its entire argument regarding these requests and objections consists
of one
sentence: "With respect to requests 7 through 12, Respondent has not produced anything nor
indicated that they would produce any documents without waiving their objections."s Amnd.
Mot.
~
6.C. By not including any authority or explanation in support of its contention that these
responses or objections are insufficient, Petitioner has waived it.
Gemeny,
313
Ill.
App. 3d at
914.
Requests 7-8 sought documents "portraying the proposed Fox Moraine landfill or any
property located within one (1) mile
of the proposed Fox Moraine landfill" that were not
included in the record. Yorkville objected for several reasons, including relevance and scope. In
its Amended Motion, Petitioner does not explain how documents "portraying" any property
located within one mile of the proposed landfill are at all relevant to this appeal (nor did
Petitioner define, either in its requests or in its motion, what meaning it is assigning to the word
"portray"). Relevant documents regarding the proposed landfill are already contained in the
record on appeal.
6
In Requests 9-10, Petitioner sought "notes, drafts, memoranda, correspondence and
transcripts" considered by the Yorkville City Council that are not part of the record. Yorkville
5 Here, Petitioner concedes that Yorkville has not waived any of its objections.
6 As noted above, Petitioner's sole disagreement with Yorkville's objections is its novel waiver argument.
Because Petitioner does not dispute the legal sufficiency
of Yorkville's objections, thereby conceding that
the objections are sound, Yorkville has no duty
in this response to show that its objections are legally
sufficient. However, because Yorkville takes seriously its discovery obligations, it explains herein how
they are proper. By discussing its objections as if Petitioner had provided some kind of meaningful
argument, Yorkville does not intend to waive them and this response should not be construed as a waiver
of any of its objections.
-6-
objected, among other reasons, because these Requests "sought information protected
fr~m
discovery by legislative or deliberative or other privilege." Petitioner offers nothing as to why
this is not a proper objection. (The Hearing Officer sustained a similar objection in a different
landfill appeal.
See
II.B., below.) Additionally, subject to its objections, Yorkville stated that it
was not aware
of any documents in its possession responsive to these requests.
In Requests 11-12, Petitioner sought documents relating to the annexation
of the landfill
property and vacation
of a portion of a nearby road. Yorkville objected on several grounds,
including relevance. Petitioner fails to show why documents regarding these issues are at all
relevant to this appeal.
B.
Answers to Interrogatories.
Petitioner contends that Yorkville's answers to Interrogatories 2-5 are either incomplete
or not specific enough. Amnd. Mot.
~
7.B. Again, by not including any authority or explanation
in support of its contention, Petitioner has waived it.
Gemeny,
313
Ill.
App. 3d at 914.
More specifically, Petitioner claims that Yorkville "failed entirely to answer
Interrogatories 2 and 3." Amnd. Mot.
~
7.B. In Interrogatory No.2, Petitioner sought
information regarding City Council communications regarding annexation of the landfill
property and vacation
of a portion of a nearby road. As noted above regarding Document
Requests 11-12, this is objectionable because, among other reasons, the Interrogatory seeks
information not relevant to this appeal. Petitioner does not even attempt to explain how such
infOlmation might be at all relevant.
In Interrogatory
No.3, Petitioner sought information regarding meetings between City
Council members where the landfill application was discussed or considered, excepting official
Council meetings. Yorkville objected for several reasons, including on legislative and
-7-
deliberative process grounds, because "allowing Fox Moraine to ask about communications
between Council Members would lead to the chilling
of discussion between elected officials who
are charged with evaluating and deciding an application for the siting of a local landfill. ,,7
Although cited by Yorkville in its response to Interrogatory No.3, Petitioner does not attempt in
any way to distinguish the Hearing Officer's decision in
Waste Mngt. v. County Bd. ofKane
County,
nor does it otherwise seek to dispute the validity of Yorkville's objections.
In Interrogatories 4-5, Petitioner sought information regarding campaign contributions
and any Council member's association with Friends
of Greater Yorkville. Petitioner claims that
Yorkville's answers are not specific enough and that they do not address the subparts. However,
beyond this simple statement, Petitioner does not explain how these answers are insufficient.
In its answers, Yorkville provided names
of Council members receiving campaign
contributions, the entity making those contributions, the name
of a Council member who was a
secretary
of Friends of Greater Yorkville, and the time period he held that position. If Petitioner
believed that these answers were insufficient, it had a duty to explain, beyond a simple statement
that the answers are "not specific,"
how the answers were inappropriate.
Gemeny,
313 Ill. App.
3d at 914 ("These arguments are waived and we need not consider them.")
III.
CONCLUSION
By filing motions to compel and for sanctions, Petitioner had an obligation to support its
arguments with legal authority and explanation.
It
failed to do so. If any conduct is
sanctionable, it is Petitioner's filing unsupported, baseless motions, especially its counsel's failure
7 The Hearing Officer sustained the same objection in a Kane County landfill appeal.
See Waste Mngt.
v.
County Bd. ofKane County,
Mar. 12,2003. There, Kane County argued that discussions between Board
members were shielded from discovery, as Yorkville does here. For ease
of reference, the Kane County
Board's objections that were at issue are attached as Exhibit B
(see
pp. 3-5) and the Hearing Officer's
Mar.
12, 2003 Order sustaining the objection is attached as Exhibit C
(see
p. 2: "the hearing officer
sustained the objection premised on the deliberative process privilege.).
-8-
to review the documents produced by Yorkville before they filed a motion seeking to compel the
production
of documents already in their possession. Petitioner's Amended Motion should be
denied.
Respectfully submitted,
UNITED CITY
OF YORKVILLE, CITY
COUNCIL
By:
-'--"/s"-/
--"L=e=o~P,--,.,-"D",-o=m=br"-,,o:....:.w~s=ki
One of Its Attorneys
Dated: January
8, 2008
Anthony
G. Hopp
Thomas
1. Matyas
Leo P. Dombrowski
WILDMAN, HARROLD, ALLEN
&
DIXON LLP
225 West Wacker Drive
Chicago, Illinois 60606
Telephone:
(312) 201-2000
Facsimile:
(312) 201-2555
hopp@wildman.com
matyas@wildman.com
dombrowski@wildman.com
-9-
Exhibit A
UNITED CITY OF YORKVILLE, CITY
COUNCIL,
PCB 07-146
(pollution Control Facility
Siting Appeal)
FOX MORAINE, LLC,
Petitioner,
v.
Respondent.
KENDALL COUNTY,
Intervenor.
ILLINOIS POLLUTION CONTROL BOARD
September 20, 2007
)
)
)
)
)
)
)
)
)
)
)
)
)
)
RECEIVED
ClERK'SOFFICE
SEP 202007
STATE OF IWNOIS
PollUtIon COntrOl
Board
HEARING OFFICER ORDER
On August 2,.2007, petitioner Fox Moraine, LLC, (Fox Moraine) served respondent
United City
of Yorkville, City Council (Yorkville) with a first set of interrogatories and fiTst set
. of requests to admit. On August 23,2007, Yorkville filed a motion for a protective order
limiting discovery (Mot.), accompanied
by a memorandum of law (Memo.) in support, attaching
among other things the discovery requests that are the subject
of this motion. (Memo, Ex. C &
D). In its argument for the protective order, Yorkville argues that petitioner has waived its
discovery requests regarding possible bias or prejudice against petitioner
by seven ofthe nine
members
of the City Council because it did not object to these members' participation as
decision makers at the local siting hearing. Yorkville also filed a motion for stay
of discovery
pending the hearing officer'sruling on the motion for protective order, noting that otherwise
Yorkville'sresponses would
be due today, September20, 2007. To date, Fox Moraine has not
filed a response.
On August 30, 2007, Fox Moraine filed its response, asserting that discovery was
necessary and that
it had not waived issues ofbias or prejudice (Resp.). On September 13,2007,
Yorkville filed a motion for leave to file a
reply and its reply in favor of issuance of a protective
order. (Reply).
.
Yorkville'smotion for leave to file a reply is granted. For the reasons set forth below,
Yorkville'smotion for a protective order is denied. As a practical matter, Yorkville'smotion for
a discovery stay has in essence been granted. Yorkville'sresponses are now due to be filed on or
before September
28,2007.
2
Procedural Status of the Case
On June 27,2007, Fox Moraine filed a petition for review asking the Board to review the
May 24,2007, decision
of Yorkville'sdecision on petitioner'sproposed siting of a pollution
control facility in Yorkville, Kendall County. Petitioner appealed to the Board on the grounds
that
1) Yorkville's decision was fundamentally unfair, alleging bias and prejudice on the part of
various and unnamed council members, and 2)Yorkville 's findings regarding certain criteria
were against the manifest weight
ofthe evidence.
Kendall County was granted intervenor's status
by the Board on August 23, 2007. The
County has
not participated in the briefing of this discovery issue.
Pursuant to Fox Moraine'swaiver, the statutory decision deadline
in this case is now due
January 24,2008. Hearing has yet to be scheduled.
In the hearing officer order entered August
20,2007 after the telephonic status conference entered that day, Yorkville'stime to respond to
outstanding discovery requests was extended to September 20, 2007.
Yorkville's Motion For A Protective Order
In its memorandum supporting its motion for a protective order, Yorkville relates that
it
held 23 days .ofpublic hearings concerning Fox Moraine's application for siting. Yorkville also
noted that the hearing process fell
in the middle ofthe campaign process for the City Council,
with
anew mayor and three new council members being elected on April 17, 2007.. Yorkville.
acknowledges Fox Moraine objected to two
ofthe nine council members at the local siting
hearing alleging bias, predisposition and unfairness
in
its motion to disqualify at the March 7,
2007.hearing. Memo. at 2. Yorkville argues that because Fox Moraine failed to object at the
local
siting hearing concerning the other seven members ofthe City Council on those grounds, Fox
Moraine waived its right to raise these issues
in the proceedings before the Board. Yorkville
accordingly objects to providing discovery. concerning, the remaining seven council members
Memo. at
2. In support ofits waiver argument, Yorkville cites various siting cases, tinding
especially relevant Waste Management
ofIllinoisv. Pollution Control Board, 175 TIL App. 3d
1023 (2d Dist. 1988).
See
Memo. at 3-4, and cases cited therein. Yorkville argues that Fox
Moraine's"discovery requests to the unchallenged seven Council members are unreasonably
burdensome and unduly onerous attempt to uncover some evidence perhaps relevant to its
unsupported claims
ofunfaimess, bias and prejudice". Memo. at 4.
Petitioner'sResponse
On August 30,2007, Fox Moraine filed a response in opposition (Resp.) to Yorkville's
motion for a protective order. Fox Moraine argues,
in summary, that Yorkville'smotion
"ignores the fact that the Petitioner also seeks evidence
of
ex parte contacts,
as well as evidence
ofthe Council'sconsideration of materials outside the record in reaching its decision, and
similarly ignores the time
of the post-hearing seating ofthree members of the Council." (Resp. at
3). The petitioner agrees that at the local siting hearing, it only moved to disqualify two
of the .
3
council members alleged to be biased, but argues that it has not waived its right to discovery
requests concerning the other council members, including the three newly elected Council
members
.. Resp. at 1-2. Fox Moraine states that it asked the City to disclose" the
ex parte
communications; the gifts and/or transfers between Council members and the
Participant/Objectors; the Council members' affiliations with the Objector organizations; and the
materials and information outside the record
of proceedings which were considered by the
Council in reaching its decision". Resp. at 2. Fox Moraine characterizes its discovery requests as
"narrowly tailored to result in disclosure
of the evidence establishing violations of fundamental
fairness which lie at the heart of the instant appeal. Id. Petitioner argues that case law and the
Board'sprocedural rules require disclosure, and that the Waste Management case cited by
respondent is distinguishable on its facts. Resp. at 3-6.
Finally, Fox Moraine argues that the respondent does not allege that the issuance
of a
protective order motion would prevent unreasonable expense,
or harassment, or to expedite
resolution
ofthe proceeding pursuant to Section 101.616 (d) ofthe Board'sprocedural rules.
Respondent's.Reply
On September 13, 2007, Yorkville filed a motion for leave to file a reply and its reply.
Yorkville takes issue with Fox Moraine'sallegation that due to the timing of the newly elected
.Council members, it.couldnot timely object or move to disqualify the new members. Yor1..'Ville
. argues that.Fox Moraine could have objected below because the three new COUncilmembers
Were elected on April 17, 2007, and the public heanngdid not close until April 20,.2007.
Additionally, Yorkville
argues that petitioner could have moved for disqaali:ficatiOl'l,atany time
during the post-hearing comment period. Reply at
2;
Fina11)'; Yorkville 3rgues that it '-'shouldnot be put to the time and expense in responding
to pointless discovery".
Replyat 1.
Discussion
.On appeal of a municipality'sdecision to grant or deny a siting application, the Board
generally confines
itselfto the record developed by the municipality. 415 ILCS 5/40.1 (b) (2006).
However, the Board will hear
new evidence relevant to the fundamental fairness ofthe
proceedings where such evidence lies outside the record. Land and Lakes Co. v. PCB
,319 Ill..
App. 3d
41,48, 743 N.E. 2d 188, 194 (3d Dist. 2000). Public hearing before a local governing
body is the most critIcal stage of the site approval process. Land and Lakes Co. v. PCB, 245 Ill.
App. 3d
631,616 N.E.2d 349,356 (1993). The manner in which the hearing is conducted, the
opportunity to
be heard, whether
ex parte
contacts existed, prejudgment of adjudicative facts, and
the introduction of evidence are important, but not rigid,
eh~ments
in assessing fundamental
fairness. American Bottom Conservancy
v, Village ofFairmont City, PCB 00-200 (Oct. 19,
2000). The Board must consider the fundamental fairness of the procedures used by the
. respondent in reaching its decision.-415 ILCS 5/40.1 (a) (2006). Additional evidence outside the
record
thatmay be considered include pre-filing contacts.
See
County of Kankakee v. City of
Kankakee, Town and County Utilities, Inc., and Kankakee Regional Landfill, LLC., PCB 03-31,
4
03-33,03-35 (cons.) (Jan. 23,2003).
The purpose
of discovery is to
uncov~r
all relevant information and information
calculated to lead to relevant information. 35 Ill. Adm. Code 101.616(a). The Board'srules also
allow issuance
of a protective order that deny, limit, condition or regulate discovery to prevent
umeasoriable expense,
or harassment, or to expedite resolution of the proceeding. 35 Ill. Adm.
Code 101.616(d).
Yorkville'smotion for a protective order is denied. When
a fundamental fairness issue is
raised before the Board, the whole purpose
of discovery is to attempt to uncover relevant
evidence or evidence calculated
to lead to relevant evidence that is outside the record, evidence
that is presumably unknown to the party propounding the discovery.
Fox Moraine has
persuasively argued that it seeks discovery
of information concerning fundamental unfairness
that extends beyond issues
of alleged bias and prejudice of Council Members. Fox Moraine has
cited case law and distinguished
thatcited by Yorkville sufficient for the hearing officer to
conclude that discovery
may proceed under the circumstances of this case. This is particularly so
since, as Fox Moraine alleges, Yorkville does not allege that the requested discovery creates an
umeasonable expense
or engenders harassment as set forth in 35 Ill. Adm. Code 616(d).
Yorkville states only that it "should
notbe put to the time and expense inresponding t.o pointless.
discovery. Reply at
1.
For all of these reasons, Yorkville'smotion for a protective order is
deilied. Yorkville
must file its res.Qonses to the requested discovely on or befor.e September 28, .
2007.
Finally, the proceduralrules provide that parties may
seek Board review ofdiscoveICY -
rulings pursuant to 35 Ill. Adm. Code 101.6l6(e). The hearing officer reminds the parties that
the filing
of any such appeal of a hearing officer ruling does not stay the proceeding.
In
a
deadline
date caRe, the hearing officer must manage the case to insure that discovery, hearing,
and briefing schedules allow for timely Board deliberation and decision
of the case as a whole.. .
IT IS SO ORDERED
~ ~.
\~c>~-~.
-
\
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control
Board
James R.Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois 60601
312.814.8917
1
The ultimate determination as to whether the petitioner has waived any issues as to one or more
Council Members is a decision for the Board,
and not the hearing officer, to make.
Exhibit B
Petitioner,
vs.
COUNTY
BOARD OF KANE COUNTY,
ILLINOIS,
Respondent.
No. PCB 03-104
\="EB 2 6 2.001
~T
'co
OF lLUN01S
(Pollution Control
Fa\lM~
;mtiJ:!g tro IBoard
Application)
Po 1_.1
RESPONDENT'S OBJECTIONS TO PETITIONER'S INTERROGATORIES
NOW COMES Respondent, COUNTY BOARD OF :KANE COUNTY, ILLINOIS, by 0
its attorney, Jennifer J. Sackett Pohlenz of Querrey
&
Harrow, Ltd, and in objection to
Petitioner's Interrogatories stated by Petitioner to have been mailed on February 13, 2003,
states
as follows:
OBJECTIONS TO DEFINITIONS
D.
"Siting Application" means Petitioner's request for site location approval of the
Woodland Transfer Facility located in unincorporated Kane County, Illinois,
including the Site Location Application filed February 13, 2002, and June 14,
2002.
OBJECTION: Subject to and without waiving any additional objections made with respect to
the individual
Interrog~tories,
below, Respondent has the following objections to Definition D.
Respondent objects
to Definition
"D,"
to the extent it includes in its definition a "siting
application" filed on or about February 13, 2002, as such application is
not part of the public
record in this matter,
is not the application on which public hearings were held or on which the
Respondent made its decision pursuant
to Section 39.2 of the Illinois Environmental Protection
Act. The siting application on which public hearings were held and a decision rendered by the
Printed On Recycled Paper
Respondent was filed on June 14, 2002, and is referenced in the Record on Appeal as Bates
COOOOO l-COO 1159, including full-sized drawings, C001160-C001171. Therefore, this
definition
is overly broad, not relevant, not calculated to lead to admissible evidence in this
matter, and seeks discovery concerning and relating
to an .application
(i.e.,
the February 13,
2002 application) for which the Illinois Pollution Control Board has no jurisdiction and on
which a decision was not rendered by the Respondent.
H.
The relevant time period for answering the interrogatories is from January
1,
2002 to January 13, 2003.
OBJECTION:
Subject to.and without waiving any additional objections made with respect to
the individual Interrogatories, below, Respondent has the following objections
to Definition H.
The siting application which is the subject of this matter was not filed until June 14, 2002 and,.
a decision on it was rendered by Respondent on December 10, 2002; therefore, the time frame
provided by the Petitioner
is overly broad, not relevant, burdensome and not calculated to lead
to admissible evidence
in
this matter. As respects that portion of the time frame prior to June
14, 2002, essentially six months,
is ovefIy broad and burdensome, particularly given the fact
that any discussions pre-filing of the siting application were not
ex parte.
Additionally, that
portion
of the time frame after December 10, 2002
(i.e.,
the date on which Respondent made
its decision on the siting application), is not relevant, not.calculated.to lead to admissible
evidence,
is
ov~r1y
broad and burdensome. After Respondent renders its decision on a siting
application, the siting process before
it is complete and its post-decision communications to the
public, Petitioner, and others, are not
ex pdrte.
Further, no fundamental fairness issues related
2
Printed on Recycled Paper
Jennifer Sackett-Pohlenz [sic].
John Hoscheit.
Dan Walter.
Any citizen or member of the public.
Any municipal official, representative or agent..
Any state official, representative or agent.
to the siting process'can occur after the Respondent makes a siting decision.
Additionally, Respondent objects to this time frame to the extent a County Board
member was a citizen and not an elected, appointed or sworn as a County Board member
during the subject timeframe, as not relevant, overly broad and burdensome.
OBJECTIONS TO INTERROGATORIES
INTERROGATORY NO.2:
Identify all communications of each County Board
member that refer or relate to the Siting Application or the Facility with the foll?wing
.persons:
(a)
(b)
(c)
(d)
(e)
(f)
OBJECTION:
Respondent repeats and incorporates its objections to Definitions "D" and
"H" as and for the first part of its objections to Interrogatory No.2. Additionally, Respondent
objects to Interrogatory No.2, and its respectIve subparts, as follows.
As respects subpart (a), any communication with or between Ms. Sackett Pohlenz and a
County Board member before June 14, 2002, and after December 10,2002, is attorney-client
privileged communication, as during that period of time, Ms. Sackett Pohlenz was a Special
Assistant State's Attorney, and this siting application was not pending before the Respondent.
J
f
To the extent there were such communications, without waiving said objections and subject to
ruling on the remainder of these objections, a privilege log will be provided in answer to this
Interrogatory.
3
Printed on Recycled Paper
As respects subparts (b) and (c), this portion of the Interrogatory seeks communications
between members of Respondent, as both Mr. Walter and Mr. Hoscheit were members of the
Kane County Board during the stated period of time applicable to this Interrogatory. As such,
any communications between Kane County Board members, either before, during or after the
subject siting application was filed and was decided by Respondent, are and can not be
ex parte
communications, and this Interrogatory is overly broad, burdensome, not relevant, and not
calculated to lead to'admissible evidence. Further, from a public policy standpoint, allowing a
siting applicant to inquire into County Board member-only discussions, when such discussions
have no relevancy to potential fundamental fairness issues raised by the Petitioner, is a
burdensome process, which, if allowed, can result in the future "chilling" of discussion
between the decision makers.of a local government who are presented with a siting application.
As respects (a) through (t), to the extent this Interrogatory seeks to inquire as to
communications of current County Board members of Kane County, who. were not County
Board members during the entire time frame outlined in Petitioner's Definition "H," this
Interrogatory is objectionable, as prior to election as a Board Member, such persons were
citizens of Kane County and had no obligations regarding
ex parte
communication. Therefore,
this Interrogatory is overly broad, burdensome,. not relevant, and not calculated to lead to
admissible evidence in this matter. Therefore, the timeframe as respects such persons should
be limited to the date on which they were sworn into office.
Finally and moreover, as respects this entire Interrogatory, Respondent objects.as no
claim of
ex parte
communications is being alleged by Petitioner in this appeal, and thus, this
4
Printed on Recycled Paper
Electronic Filing - Received, Clerk's Office, January 8, 2008
Interrogatory amounts to nor more than a "fishing expedition" with no relevancy to this
appeal.
(See,
"Waste Management of Illinois, Inc. 's Answers to Interrogatories Propounded by
Respondent, County Board
of Kane County, Illinois" attached as Exhibit A).
Dated: February
26,2003
Jennifer J. Sackett Pohlenz
QUERREY
&
HARROW, LTD.
175 W. Jackson, Suite 1600
Chicago, Illinois 60604
(312) 540-7000
Attorneys for Respondent
Illinois Attorney No. 6225990
Document #: 806647
Respectfully Submitted,
RESPONDENT, COUNTY BOARD OF KANE
COUNTY, ILLINOIS
By~IiJiP~
.
of its A 0
5
Printed on Recycled Paper
Electronic Filing - Received, Clerk's Office, January 8, 2008
r:....___ e.-"'"
..... t..r ....._
_.
__
BEFORE THE
ILLI~OIS
POLLUTION CONTROL BOARD
WASTE MANAGEi\1ENT OF ILLINOIS, INC.,
)
)
Petitioner,
)
)
V5.
)
)
COUNTY BO.A..RD OF :K.A.'\1E COlJ"NTY,
)
ILLINOIS,
.
)
)
Respondent.
)
No. PCB 03-104
(Pollution Control Facility
Siting Application)
WASTE
MASAGEMENT
OF ILLINQIS, INC.'S
A.
~S\VERS
TO
~TERROGATORIES
PROfOUNDED
BY RESPONDENT, COUNTY BOA.RD OF KANE COUNTY, ILLINOIS
Now comes Petitioner; WASTE Mk"'-:AGEMENT OF ILLINOIS, INC. ("WMII") and
for their Answers toInterrogatories propounded
by Respondent, County Board of Kane County,
Illinois, states
as follows:
1.
Identify the Person(s) answering these Interrogatories, by providing their name,
address, phone number, and the name of the current employer.
ANSWER:
Donald 1. :\.1oran
Pedersen
&
Houpt
161 North Clark Street, Suite 3100
Chicago,
IL 60601
(312) 641-6888
2. -
Identify the Person(s) who provided information to answer
or to aid in answering
these Interrogatories, by providing their name, address, phone number, the name of their current
employer, and the Interrogatory number(s) on which the person provided information.
ANSWER:
See answer to Interrogatory number 1.
ThEJ Document
il
Printed
on
Recycled Paper.
DJM 359291 vi Februl!:Y 24,2003
EXHIBIT
I
A
. ,
3.
Identify all Person(s) who Waste Management of Illinois, Inc. intends to call
as
a
witness at the hearin,g
in
this matter, by providing their name, address, phone number, the name
of their current employer, and a description oftheir expected testimony.
ANSWER:
WMII has not identified any persons it may intend to call
as
a witness at
the hearing in this appeal.
WMII \\111 disclose such persons if and when they are identified.
4.
Identify and describe each and. every basis for Waste Management of Illinois,
Iric.'s assertion, allegation and/or argument that the siting proceedings which are a subject
of this
appeal were
fundamentally unfair, by providing, at a minimum, the'following information:
a.
a
statemen~
describingea;ch individual basis for Waste Management of
Illinois, Ir.c.'s assertion, argument and/or allegation of fundamental
unfairness;
b.
an explanation as to why Waste Management ofIllinois, Inc. believes such
basis
(i. e.,
each individual statement identified in 4.a., above) to be
fundamentally unfair;
c.
the date(s) 2.nd time(s) wherein such alleged fundamental unfairness
occurred; and
d.
a description of what, if any, prejudice Waste Management of Illinois, Inc.
asserts
it suffered as a result of such alleged unfairness.
AJ.~SWER:
The decision of the Kane County Board on WMU's Site Location
Application for WoodlandTra.'1sferFacility,
is set forth in Resolution No. 02-431 dated
December 10, 2002, was fundamentally unfair because it
was
a legislative decision not based on
the evidence presented
of record. In addition, the decision misapplied the correct legal standard
in determining whether the
sta:titory criteria were met. As a result of this fundamental'
unfairness. Kane County denied the Site Location Application. WMlI reserves the right to
supplement this response as facts are disclosed
in
discovery.
[hi! Document Is printed on Recycled Paper.
DN
359m
vi february 24, 2003
..
FEB 24 2003
17:2~ =~
5.
Identify each and every transcript
by
date which \Vaste Management of Illinois,
Inc. alleges was
not timely; identify what time (by date and hour, as applicable), Waste
Management
of Illinois, Inc. asserts such transcript
shoul~
have been available, the location of its
availability, and when it was available to Waste
Management of Illinois, Inc. or others, as
applicable;
and identify what, if any, prejudice Waste Management of Illinois, tnc. asserts it
suffered as a resulr. of such transcripts which are alleged by it to have been untimely.
. ANSWER:
WMlI is unable to respond to Interrogatory No.5 because it has not yet
received infonnation
from Kane COlUlty regarding the availability ofthe hearing transcripts.
. \VMII will supplement its response as necessary after completion of discoYery.
Date:
February a 2003
PEDERSEN
&
HOUPT
161 North Clc.rk, Suite 3100
Chicago, IL 60601
(312) 641-6888
DIM
359291 vI February 24. 2003
Respectfully Submined,
\V
S~\
MANAGEMENT
r
ILLINOIS, INC
By:_--"-
Donald J. Mar
-"'--~--'--------------
One of Its Art meys
Thi! Document is Printed
Oil
Recycled Paper.
,
CERTIFICATION
.
I,
Donald 1. Moran, being first duly sworn on oath, state that I have read the foregoing
Answer to Interrogatories propounded by respondent, County
Board of Kane CountY, Illinois,
and that the ans.wers are complete, true and correct to the best afmy knowledge and belief.
. Dated this 24th day afFebruary, 200 .
SUBSCRIBEDand SWORN
to
before me this 24th day of February, 2003.
"OFFICL\L SEAL"
Vic~aria
Kennedy
Notary Public. State oflllinois
My Commi,<i",,. Ex?in:.s March 9. 2005
W~-...
...
",,·,~<·
..
~~-,."..,.~,.
This Document
is
Prir:ted on Recycled Papu.
DN 359291 vI February 24, 2003
L
__
.1.
PROOF OF SERVICE
Victoria
L.
KeIU1edy, a non-attorney, on oath states that she served the foregoing WASTE
MANAGEMENT OF ILLINOIS, INC'S ANSWERS TO INTERROGATORIES
PROPOUNDED BY RESPONDENT, COUNTY BOARD
OF KANE COUNTY, ILLINOIS
on the following parties by facsimile to Jennifer J. Sackett Pohlenz and by depositing same to all
parties in the
U~S.
mail at 161 N. Clark St., Chicago, Illinois 60601, at 5:00 p.m. on this 24th day
of February, 2003:
Jennifer
J. Sackett Pohlenz
Querrey
&
Harrow, Ltd.
175 W. Jackson, Suite 1600
Chicago,
IL 60604
Via Facsimile
- (312) 540-0578
Mr.
Michael W. McCoy
Chai~an
- Kane County Board
Kane County Government Center
719
S, Batavia Avenue, Building A
Geneva,
IL 60134
John
A. Cunningham
Kane County Clerk
Kane County Government Center
719 S. Batavia Avenue, Building A
Geneva,
IL 60134
{~~.~
Victoria
L.
Ke~)
This Document is Printed on Recycled Paper.
Exhibit C
,.
WASTE MANAGEMENT OF ILL
INC.,
Petitioner,
v.
COUNTY
.
..-
-
BOARD
_.
OF'KANE
- -
. . .
COUNTY
.
-
)
ILLINOIS,
Re~pondent.
~lli~~~'P
MAR 12 2003
STATE'OFIWNOIS
f>oUutl6n.Qmtrb] BQard
PCB 03-104
(Pollution Control
Facility
Siting Appeal)
HEARING OFFICER ORDER
On March
n,
2:003~,allpartiesparticipated
in ateleplronic hearing with the hea,ring
anie'er. Att1Ie
confer~nce,.the
hearing officer addressed
respondent~sobjections
to petitioner's
interrogatories.
SpooificaJiy, respondent objected topetitioner'sdefinitiQu(d), def.'iningsiting
a,pplication-and.definitioD (h)t defining
ther~levant
time period for answering the i:trten:ogatories.
.R;espondieJ;lt.also objectedtQ'petitiQrter'sintettogatoryno. 2,
,whiy~requestsrespondent
to
identify all communications ofeach county board member that refer(:lrrelate to the siting
applicationor the'facilitywiththe following persons: (a) Jennifer Sackett Pohlenz; (b) John
Hoscnejt; (c) Dan Walter, Cd) any citizen or m:einher ofthe p\,lblie-; (C) any tnumcipalofficial,
representative
orflgertt;(f}'~~lystate
officia:I, representative or agent .Based on the pIea"din.gstnat
were submitted by the respectiveparti.es,thehearing officer made
ruling~
as summarized below.
R¢Spond'ent's,objectionstopetitioner"s.defirtiti(m{d), regarding the siting application
definiti()t1, which includesthe site loeationapplication filed February 13, Z002,and June 14,
2002, is denied.
Thepattiestep:r~stillted~hat
an applicatIon was flIed on Februai'y 13, 2002; but
laterwithdrawnon of about May IOt2002. Asecond application wasfileQotl June 14,2002.
In
its petition tiled with t.he Board, petitioner alleges thattheprocedures use<lby the Kane County
Board were fundamentally unfair. Thehearing'officer
;fQund
that pre;-,filingcofitacts maybe
.;
probativeofprejudgmen't
of:adjudlc~tivefacts,
Which i$
an~lel11ent
the BQaro'considers'in
assessitlg fundamental fairness. Thlsnecessarl"lY includes the February 13,2002 filing and the
June 14,2002 filing.
Likewise; and fortlie'same reasons, the hearin"g officer denied respondent;sobjectioi1 t'O
petitioner'sdefinition(h);which deftfied the relevant titne period for answering the
inteITogatorlt;swas fi;omJanuary l,2Q01.toJanuaty ] 3, 2003; The hearing officer
Qonclud~d
.thatinfonnation.
ctmcetrfip;g.thistirn.ef1'ame·m~y
be ndevant or Iead'to'relevant:informatiott
Respondent;sobjection. to petitioner'sll1terrogat()I:Y 110. 2 was granted.in part and denied
in part,. First. respondent objected to the discovery ofcommunications between her and the
County Board mern:bers
,duung,
the,reJevanltime period 011 the grounds of attorney-client
2
privilege. Sackett Pofilenz states that she'wasa Specicd Assistant State's Attomeyrepresenting
Kane County an(l the'KaneCounty staffprior to the filing o[the February 13, 2002, application
and through and subsequent to the decision 'renderedon December 10, 2002. However, the Kane
Cotmty RulesofPtocedure for New Regional Pollution Control Facility Site Approval
Applications prohibit any cOIIlrtmnicatlonhetween 'SackettPohlenzand,the'hearingofficer and
thedir~ctoT
of the
County
Department of Bnvironmental Management, both of
whoadvis~
the
Kane County Board. conunencing when au<lpplication or petition is filed.
Therefore~
the hearing
efficerfound that Sackett Pohlenz cOlild not have represented the Kane County Board and that
the attomey-clienfprivllege
did not attach between February 13,2002, to on or about May 10,
2002,
when the first application was withdrawn, and commencing again June 14, 2002, when the
second application was :tiledto .and including December 10, 2002, when the decision was
rendereq. The hearing officer fOtihdthat any communication between Sackett Pohlenz and Kane
County
after the December 10, 2002 decision was privileged.
.
R;¢gardiT)'gre~pondent'
s opjection.t9thediscovery ofcommunications between County
Boardmemberslitid HoShtit
.
and 'Walter,
.
.
also Board members, the hearing officer
..
sustained the
O:bjecti.on premised onthe deliberative process priVilege. Respondent's objection to interrogatory
no. 2
(d)., (e) and (f) was denied.
.
Respondent's motion to strike petitioner'sreference to matters outside the record found in
itsresponse
filed March 3, 2002, was'denied. Respondent argued that petitionerwaived its
at~mentthat
members who-appear at the lasunom¢nt to
vo~
oJi a
sitingl'.~CJ.l1estarenot
excused
ftomftmdamental
fairness issues hecausepetitioner did-not raise it at the County Board level.
The'hearingofficerfound that the petiti'Qrierdid not waive. its argument and, in any event, failure
ofthe13'0arrltoconsidet this issue might otherwise result in an injustice.
Finally, petitioner represented that ithas withdrawn the 23
subpoena~
that it issued to the
respondent. To
thatei:ld~ respondenf'~
emergency motion to quash; filed March 5, 2003, is moot
The parties are directed to participate ina telephonic statuscQn;ference with the hearing
offiver on March 19, 2003, at 2:30
p;m.
The status conference must be initiated by the petitioner,
buteacll!partyis,nofietlll}les~responsible
f())r its own appemance. .At
the~statllsconferenee,
the
parties. must he ptepared
to
discUSs the status oftheabove':"captione<lmatter and thcirreadiness
forh~aring.
IT IS'SOQRDERED.
..
",
....
..
3
;2b.Q
p--,,--,-\
\QO_........
_-_
Br~noran
.
He;uing Officer
Ulinois Pollution Control Board
James
R. ThoQ.lpson Center, Suite 11-500
100 W. Ranu<JtphStreet
Chicago.
Illinois 60601
312.814.8917
.'
..
• .! ,.
4
CERTIFICATE OF SERVICE
Itis herebycertified tha.t true copies ofthe foregoing order were mailed, first
Class, to each of the following on March 12,2003:
Donald 1. Moran
Pedersen
&
Houpt
161 N. Clark Street
Suite.3l00
Chicago, IL 60601-3224
John
A.
Cunningham, County Clerk
Mich~el
W. McCoy, Chainnan
Kane County
719 South Batavia
Geneva,JL (5"0134
Carol Hecht
FRESH
754 E. Middle Street
SouthElgin,tL 61077
Jennifer J. Sackett Pohlenz, Attorney
Querrey& Harrow, Ltd.
175 W. Jackson
Suite 1600
Chicago, IL
60604
IUs hereby certified that a true copy ofthe foregoing order was hand delivered to
the following on March 12, 2003:
....
.Dorothy M.Gunn
Illinois Pollution Control Board
James R.ThornpsonCentet .
100 W: Randolph St., Ste. 11-500
Chicago, TIlinois 60601
t.-«J
BradleyP
%~P.
Jh0ran
llC??---
Hearing OfftGer
IllinOIS Pollution Control Board
JameS R. Thompson Center
woW.
RandolphStteet, StIite 11-500
Chicago, IDinols 6060J
312/814,..6929
CERTIFICATE OF SERVICE
I, Susan Hardt, a non-attorney, certify that I caused a copy of the foregoing
Notice
of Filing and United City of Yorkville's Response to Petitioner's Amended Motion to
Compel and for Sanctions
to be served upon the Hearing Officer and all Counsel of
Record listed on the attached Service list by sending it via Electronic Mail on January 8,
2008.
/s/. Susan Hardt
[xl
Under penalties as provided
by
law pursuant to
ILL.
REV. STAT.
CHAP. 110 - SEC 1-109, I certify that the statements set forth
herein are true and correct.
Fox Moraine, LLC v. United City ofYorkville
PCB
No. 07-146
SERVICE LIST
Bradley
P. Halloran
Hearing Officer
Illinois Pollution Control Board
James
R. Thompson Center, Suite 11-500
100
W. Randolph Street
Chicago, Illinois 60601
hallorab@ipcb.state.il.us
George Mueller
Mueller Anderson, P.C.
609 Etna Road
Ottawa, Illinois 61350
george@muelleranderson.com
Charles Helston
Hinshaw
&
Culbertson, LLP
100 Park Avenue
P.O. Box 1389
Rockford, Illinois 61105-1389
chelsten@hinshawlaw.com
Michael
S. Blazer
Jeep
&
Blazer, LLC
24 N. Hillside Avenue, Suite A
Hillside, IL 60162
mblazer@enviroatty.com
Eric
C. Weiss
Kendall County State'sAttorney
Kendall County Courthouse
807 John Street
Yorkville, Illinois 60560
eweis@co.kendall.il.us
James.
H. Kippen, II
Walsh, Knippen, Knight
&
Pollack, Chartered
601 W. Liberty Dr.
Wheaton,IL 60187-4940
jim@wkkplaw.com
James. B. Harvey
McKeown, Fitzgerald, Zollner,
Buck, Hutchison,
&
Ruttle
2455 Glenwood Avenue
Joliet, Illinois 60435
jim@mckeownlawfirm.com
