BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

Notice of Filing PCB092408_3
Motion to Compel Answers to Deposition Questions3
Dep Q Exhibits

George Mueller

Mueller Anderson, P.C.

609 East Etna Road

Ottawa, Illinois 61350

(815) 431-1500 – Telephone

(815) 431-1501 - Facsimile

george@muelleranderson.com

Charles Helsten

Hinshaw

& Culbertson LLP

100 Park Avenue

Rockford, Illinois 61101

(815) 490-4900 - Telephone

(815) 490-4901 - Facsimile

BEFORE THE

ILLINOIS POLLUTION CONTROL BOARD

UNITED CITY OF YORKVILLE,

See Attached Service List

PLEASE TAKE NOTICE that on this 24th day of September, 2008,

George Mueller, one of the attorneys for Petitioner, Fox Moraine, LLC, filed via

electronic filing of the attached

Motion to Compel Answers to Deposition

Questions

with the Clerk of the Illinois Pollution Control Board, a copy of which is

herewith served upon you.

Respectfully submitted,

FOX MORAINE, LLC

By:__/s/ George Mueller__________

One of its Attorneys

Electronic Filing - Received, Clerk's Office, September 24, 2008

George Mueller

Mueller Anderson, P.C.

609 East Etna Road

Ottawa, Illinois 61350

(815) 431-1500 – Telephone

(815) 431-1501 - Facsimile

george@muelleranderson.com

Charles Helsten

Hinshaw

& Culbertson LLP

100 Park Avenue

Rockford, Illinois 61101

(815) 490-4900 - Telephone

(815) 490-4901 - Facsimile

Fox Moraine, LLC v. United City of Yorkville

Illinois Pollution Control Board

James R. Thompson Center

1000 West Randolph Street

Ancel, Glink, Diamond, Bush & Krafthefer

P.C.

140 South Dearborn Street

Rockford, IL 61105-1389

PCB 2007-146

Jeffrey D. Jeep

Jeep & Blazer, LLC

24 North Hillside Avenue

Wildman, Harrold, Allen & Dixon

225 West Wacker Drive

Suite 3000

Chicago, IL 60606-1229

PCB 2007-146

Anthony Hopp

Wildman, Harrold, Allen & Dixon

225 West Wacker Drive

Suite 3000

Chicago, IL 60606-1229

PCB 2007-146

Thomas I. Matyas

Wildman, Harrold, Allen & Dixon

225 West Wacker Drive

Suite 3000

Chicago, IL 60606-1229

PCB 2007-146

James B. Harvey

Buck, Hutchison & Ruttle

2455 Glenwood Avenue

Joliet, IL 60435

PCB 2007-146

Ms Valerie Burd, Mayor

Michael Roth, Interim City Attorney

Kendall County State’s Attorney

Kendall county Courthouse

Walsh Knippen Knight & Pollick

2150 Manchester Road

Suite 200

Wheaton, IL 60187-2476

Electronic Filing - Received, Clerk's Office, September 24, 2008

George Mueller

Mueller Anderson, P.C.

609 East Etna Road

Ottawa, Illinois 61350

(815) 431-1500 – Telephone

(815) 431-1501 - Facsimile

george@muelleranderson.com

Charles Helsten

Hinshaw & Culbertson LLP

100 Park Avenue

Rockford, Illinois 61101

(815) 490-4900 - Telephone

(815) 490-4901 - Facsimile

chelsten@hinshawlaw.com

CERTIFICATE OF SERVICE

I, Sharon Twardowski, a non-attorney, certify that I served a copy of the

foregoing

Notice of Filing

and

Motion to Compel Answers to Deposition

Questions

to the Hearing Officer and all Counsel of Record listed on the attached

Service list, by sending it via Electronic Mail on September 24, 2008, before 5:00

p.m.

__/s/ Sharon Twardowski______________

[x]

Under penalties as provides by law pursuant to ILL. REV. STAT.

CHAP. 110-SEC 1-109, I certify that the statements set forth

Herein are true and correct

Electronic Filing - Received, Clerk's Office, September 24, 2008

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

UNITED CITY OF YORKVILLE,

MOTION TO COMPEL ANSWERS TO DEPOSITION QUESTIONS

NOW COMES Fox Moraine Landfill, LLC hereinafter (“Fox Moraine”), by its

attorneys, George Mueller and Charles Helsten and moves for an order compelling

deponents Jason Leslie and Wally Werderich to answer certain questions previously put

to them in discovery depositions and in support thereof state as follows:

That Jason Leslie and Wally Werderich were Yorkville aldermen who

voted to conditionally deny the Fox Moraine Siting application. However, the record is

unclear as to how the aldermen voted on individual siting criteria. Their depositions were

taken on September 19, 2008, at which time Leo Dombrowski, one of the attorneys for

the City of Yorkville, instructed them multiple times not to answer questions concerning

the public deliberations on the sitting application, the council vote on the siting

application, their intentions as compared to a subsequently prepared resolution and other

matters. Relevant excerpts of those depositions are attached hereto and made a part

hereof as Exhibit A.

On May 23, 2007, the city council met for public deliberations on the

siting application. Various aldermen gave statements expressing personal opinions on

various aspects of the evidence. These statements were diverse and followed no

Electronic Filing - Received, Clerk's Office, September 24, 2008

particular outline. This process continued on May 24, 2007, at which time the city

council was handed a draft resolution which apparently resolved to deny the siting

application with conditions. This Resolution (a copy of which has never been made a

part of this record or seen by Fox Moraine) was orally amended prior to its adoption,

directing the city attorney to draft a final Resolution including or omitting special

conditions as he deemed fit and appropriate. The resulting final Resolution was not

reviewed by the city council and the same is attached hereto as Exhibit C. The transcript

of the city council deliberations on May 24, 2007 regarding amendment and adoption of a

resolution (Tr. May 24, 2007 pp 32-41) is attached hereto as Exhibit B.

During the deliberations on May 23 and May 24, 2007, there was never a

vote on whether any individual statutory siting criteria had been proven, nor were there

any written prepared finding of facts adopted. The individual aldermen did not

universally express opinions with regard to each siting criterion. Additionally, there was

never any vote to adopt, endorse, or incorporate any particular expression of personal

opinion on the evidence from any particular alderman.

On May 23, 2007, the city council also received final reports including

proposed findings of fact and recommendations of law from the hearing officer, Larry

Clark and from the city expert technical staff. Said staff report was authored by staff

attorney, Derke Price. Both of these reports recommended approval of the application

with conditions.

On May 23, 2007, Alderman Wally Werderich advised the entire city

council that if an application does not meet the statutory siting criteria on its face and

Electronic Filing - Received, Clerk's Office, September 24, 2008

without conditions, it must be denied. (Tr. May 23, 2007 pp 88-89) Attached hereto as

Exhibit D.

The Resolution denying siting included all the conditions of approval

recommended by the Clark report and the Price report plus some additional conditions

asked for by various aldermen.

The Resolution tendered to Fox Moraine as the final decision of the city

council (Exhibit C) recites Fox Moraine’s alleged failure to prove statutory siting criteria

1, 2, 3, 5, 6, 8, 9 and 10, with criterion 10 being the operator experience. (See 415 ILCS

5/39.2(a)(i –ix)). In the prior personal statements by aldermen, there was little or no

discussion on several of these substantive criteria.

In the foregoing context, the deposition questions in Exhibit A were asked.

There is ample reason to believe from the entire record and the references cited herein

that some or all of the aldermen did not know what they were voting on, that there was no

majority for the legal finding that one or more siting criteria had not been met and that no

findings of fact were ever adopted.

The basis for the refusal of aldermen Leslie and Werderich to answer

certain questions as directed by one of the City’s attorneys is that said questions allegedly

invaded the deliberative process privilege. The Illinois Supreme Court has ruled that

there is no deliberative process privilege which protects public officials from disclosures.

People,

ex rel

Joseph Birkett vs. City of Chicago

, 184 Ill. 2

521, 705 NE 2d 48 (1998).

(Attached hereto as Exhibit E) In

Birkett

the Court also found that privileges exempting

disclosure under the Freedom of Information Act are not applicable to discloser in

litigation. Lastly, the Court found that refusal to disclose information by public officials

Electronic Filing - Received, Clerk's Office, September 24, 2008

is not favored, that claims of privilege are not favored and that accordingly privileges

exempting disclosure cannot be created by judicial decision but only by the legislature.

10.

Even if there is some limited deliberative process privilege applicable here

(and Fox Moraine maintains that prior PCB precedent to that effect has been overruled by

Birkett

), the questions put to Alderman Leslie and Werderich, which are the subject of

this motion, did not invade that privilege. The questions did not ask the aldermen why

they voted a certain way or how they arrived at a certain decision or why they believed

certain evidence and not other evidence. Instead, the questions merely asked the

aldermen what they believed to be the facts and more relevantly what they believed that

they were voting on. Given the procedural and logical inconsistencies created by

attempting to deny an application with conditions and by not voting whether individual

criteria had been proved, the questions represent a fair inquiry into whether Aldermen

Leslie and Werderich even knew what was happening, both procedurally and

substantively, on May 23 and May 24, 2007. Petitioner has the right to know how the

aldermen intended to vote and whether the record, which purports to be a denial on all

but two criteria, is an accurate reflection of their intentions. Additionally, the questions

sought answers to a line of inquiry regarding whether the aldermen voted in a manner

consistent or inconsistent with their public statements. This would be probative of

whether they understood or failed to understand what they were voting on. An inquiry

into whether a recorded vote as expressed in a Resolution prepared after the fact

accurately expresses the intent of the voter is clearly appropriate. Furthermore, questions

regarding the aldermens’ agreement or disagreement with various aspects of the hearing

officer’s report and the expert staff’s report are appropriate in light of the fact that the

Electronic Filing - Received, Clerk's Office, September 24, 2008

recommended conditions of approval from those reports were incorporated in the final

resolutions.

WHEREFORE, Fox Moraine prays for an order directing Aldermen Leslie and

Werderich to answer the questions set forth in Exhibit A and similar questions related to

the answers provided.

Respectfully submitted,

FOX MORAINE, LLC

By:

_____/s/George Mueller____________

One of its attorneys

George Mueller

MUELLER ANDERSON, P.C.

609 East Etna Road

Ottawa, Illinois 61350

Telephone (815) 431-1500

Facsimile (815) 815-1501

Gmueller21@sbcglobal.net

Charles Helsten

Hinshaw and Culbertson, LLP

100 Park Avenue

Rockford, Illinois 61101

Telephone (815) 490-4900

Facsimile (815) 490-4901

chelston@hinshawlaw.com

Electronic Filing - Received, Clerk's Office, September 24, 2008