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 September 24, 2008, Leo P. Dombrowski, one

ofthe attorneys for Respondent, United City ofYorkville, filed via electronic filing the

attached

United City of Yorkville'sMotion

in

Limine #1, Motion

in

Limine #2,

Motion

in

Limine #3 and Motion

in

Limine

#4

withthe 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, September 24, 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 MOTION IN LIMINE # 1

Pursuant to the Hearing Officer'sOrder of September 22,2008 and 35 Ill. Admin. Code §

101.610, Respondent, the United City of Yorkville, City Council ("Yorkville"), by and through

its attorneys, moves the Hearing Officer in limine to exclude from the hearing on this matter the

following information: any and all arguments statements, questions, testimony, or evidence

of

any kind from Petitioner Fox Moraine and its counsel and from any other party, that refer to,

directly or indirectly, the alleged bias, predisposition, or unfairness

ofany City Council Member

other than Mayor Burd and Member Spears.

In

support of its motion, Yorkville states as

follows:

1.

In

this appeal, Fox Moraine generally alleges that Yorkville conducted an unfair

hearing and vote on Fox Moraine'slandfill application and that "various members"

ofthe

Yorkville City Council were biased against Fox Moraine, prejudged its application, and.were

otherwise fundamentally unfair. (Petition for Review'5.A-N)

2.

Because Fox Moraine chose to file its landfill application on December 1,2006,

the public hearing process fell in the middle

of campaigns for the Yorkville City Council, which

elections were held on April 17, 2007. A new Mayor and three new City Council members were

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

---

elected. As the applicant, Fox Moraine both provided and received loads of information

regarding the proposed landfill siting.

3.

The public hearing process

on Fox Moraine'sapplication was held over 23 days,

which resulted in over 125 hours of testimony and thousands of pages of related exhibits from a

wide variety of witnesses, including witnesses for the applicant, opposition groups, and members

of the public.

4.

If sitting City Council Members or candidates running for office displayed any

indication

of bias, predisposition, or unfairness, Fox Moraine had ample

~pportunity

to ascertain

this and raise it during the local siting process. Fox Moraine could have moved to disqualify

Council Members up to May

24,2007 (the last day of the public hearings was on April 20, 2007

(C15629-C15705); the last day

of the post-hearing public comment period was on May 21, 2007

(C15704); and the City Council voted

on the application on May 24,2007 (C18640-C18643)

(citations are to the Record

on Appeal).)

5.

During the public hearing, Fox Moraine did move to disqualify two Council

Members (but no others), alleging bias, predisposition and unfairness.

(See

Motion to Disqualify

at pp. 2-3, attached as Exh. A.) Fox Moraine acknowledged that it would waive these issues

if it

did not raise them at the local siting stage:

We are going to file at this time a motion to disqualify Aldermen Burd and Spears

from participating

in the decision-making process. . .. As you are well aware Mr.

Clark [Hearing Officer], the decisions of the Pollution Control Board indicate that

in the absence

of that type of motion, there is a - a danger of waiver should that

issue be raised in the future. And so the purpose

of that motion, really, at this

point, is to protect the record

in this matter. We want to bring of record our

concerns regarding prejudgment and bias.

.

(Transcript

of 3/7/07 Hearing at 15:12-16:1, attached as Exh. B.) Fox Moraine made no other

objections regarding bias, predisposition and unfairness

of any other Council members at the

-2-

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

---

public hearing, during the post-hearing period, or at any time else before Yorkville voted on Fox

Moraine's application.

6.

Yorkville raised the waiver issue early in this appeal through a Motion for a

Protective Order, seeking to limit Fox Moraine'sonerous and wide-ranging discovery. Fox

Moraine responded that it could not have raised issues

of bias, predisposition and unfairness

(other than as to Burd and Spears) because it was not aware

of them at the time ofthe landfill

hearings. (Fox Moraine Response to Yorkville's Motion at pp. 7-8, attached as Exh. C.)

7.

The Hearing Officer denied Yorkville's Motion for a Protective Order, noting that

Fox Moraine "seeks discovery

of information concerning fundamental unfairness that extends

beyond issues

of alleged bias and prejudice of Council Members [and] discovery may proceed

under the circumstances

of this case." (9/20/07 Order at p. 4, attached as Exh. D.)

8.

Yorkville agrees with the Hearing Officer that questioning regarding alleged

ex

parte

contacts are fair game at the hearing. However, through its various representatives, Fox

Moraine attended every public meeting regarding the annexation

of the landfill property and

every landfill public hearing. Fox Moraine also hosted at least two landfill informational

meetings at which the public and some Council Members attended. (Burnham Dep., 28:22-29:8,

attached as Exh. E; Murphy Dep., 18:18-20:19, 108:18-23, 122:1-12, attached as Exh. F; Varsho

Dep. 12:6-15:22, attached as Exh. G.) Fox Moraine also regularly monitored the press and

collected newspaper articles regarding City Council Members, election campaigns, and the

annexation and landfill hearings. (Exh. F, 25:8-28:4

(Q: Throughout the entire process, was Fox

Moraine "monitoring the press to see what was being written about it? A: "Yes."); Exh. F, 20:7-

21:2)

-3-

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

---

9.

Now that discovery has been had, it appears that Fox Moraine believed that every

Council Member except Member Besco was biased against it at the time the landfill hearings

were being held:

Q:

So everyone but Mr. Besco was biased?

A:

I believe that is the case.

(Exh. F, 18:8-9;

see also

Exh. F, 18:18-21 :21,23:11-48:23,59:6-63:11,66:8-67:9,67:14-70:16,

74:11-85:7,92:18-96:21,97:15-100:7, 105:9-106:11, 107:6-121:8, 124:1-125:7; Exh. E, 31:7-

35:15,39:22-40:7,44:3-24,46:17-55:21,58:11-59:11; Exh. G, 27:13-32:21, 40:6-44:4, 46:16-20

(these additional citations show that Fox Moraine believed every Council Member who voted on

the application, other than Member Besco, was biased against it and that Fox Moraine believed it

had evidence

of its claims of bias, predisposition, and unfairness well before Yorkville voted on

its application).

10.

The deposition testimony and documents provided by Fox Moraine in discovery

refute its claim that

it

did not know of "additional bias ... at the time of the hearing." (Exh. C at

I

p.7.)

11.

Fox Moraine concedes that ithad several opportunities to raise issues of bias,

predisposition, and unfairness before, during, and after the landfill hearings, and up until

Yorkville voted on its application, but chose not to do so (other than as to Burd and Spears).

(Exh. E, 66:5-24.)

12.

The law regarding waiver of unfairness and bias allegations in landfill siting

proceedings is well-settled. Failure to raise a claim

of disqualifying bias, predisposition or

unfairness in the original proceeding results in waiver

of such claims. "To allow a party to first

1 In

response to Yorkville'sdocument requests asking for all documents Fox Moraine had to support of its

claims

of bias, predisposition, and unfairness, Fox Moraine produced numerous newspaper articles, which

it had been collecting throughout the landfill hearing process. (Exh. E, 16:3-11.)

.

-4-

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

---

seek a ruling in a matter and, upon obtaining an unfavorable one, permit him to assert a claim of

bias would be improper."

E

&

E Hauling, Inc.

v.

Pollution Control Bd,

107

Ill.

2d 33,38-39

(1985); see also Waste Management ofillinois, Inc.

v.

Pollution Control Bd,

175 Ill. App. 3d

. 1023, 1039 (2

nd

Dist. 1988) ("claim of bias or prejudice on the part of a member of an

administrative agency or the judiciary must be asserted promptly after knowledge of the alleged

disqualification.");

A.R.F Landfill, Inc.

v.

Pollution Control Bd,

174 Ill. App. 3d 82,88-89 (2

nd

Dist. 1988) (landfill applicant waived claims of bias or prejudice of county board members when

it

withheld claims of bias until its appeal of unfavorable decision to PCB);

Land and Lakes Co.

v.

Village ofRomeoville,

PCB No. 92-25 at *16, 1992 Ill. ENV LEXIS 424 (Jun 4, 1992) (where

applicant claimed trustees' campaign literature showed bias against landfill siting, Board found

that applicant failed "to explain why it was unable to ascertain information relating to the alleged

bias which appears to have been available" prior to Village'svote

on application).

13.

Waste Management

is particularly applicable. There, the landfill applicant

contended that eight members

ofthe county board were biased and should have been disqualified

from voting

on its application. However, the applicant'smotion to disqualify at the local siting

stage alleged only four members were biased. The court held that the applicant had waived any

claims

of bias or prejudice as to the remaining four members and those claims would not be

considered. 175 Ill. App. 3d at 1039-40.

14.

As noted above,

Fox Moraine acknowledged it risked waiver if it did not raise

allegations

of bias, predisposition or unfairness at the local siting stage. Further, its claim that it

did not know

of"additional bias ... at the time of the hearing" is incorrect.

-5-

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

---

WHEREFORE. Respondent, UNITED CITY OF YORKVILLE, CITY COUNCIL

requests that the Hearing Officer enter an order barring any and all arguments statements,

questions, testimony,

or evidence of any kind regarding the issues of bias, predisposition or

unfairness other than as to Mayor Burd or Council Member Spears as discussed in this motion.

UNITED CITY OF YORKVILLE, CITY COUNCIL

By:

/s/ Leo P. Dombrowski

One

of Its Attorneys

Dated: September 24, 2008

Anthony

G. Hopp

Thomas

I. 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

-6-

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

---

EXHIBIT A

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

---

THE CITY COUNCIL OF THE UNITED CITY OF YORKVILLE,

KENDALL COUNTY, ILLINOIS

IN THE

MAnER OF:

)

)

REQUEST OF FOX MORAINE, LLC

)

FOR SITE APPROVAL FOR A NEW

)

LANDFILL SITING IN THE UNITED

)

CITY OF YORKVILLE, KENDALL

)

COUNTY, ILLINOIS

)

)

MOTION TO DISQUALIFY

NOW

COMES, FOX MORAINE, LLC, by and through its attorneys, George

Mueller and Charles

F. Helsten, and moves to disqualify Valerie Surd and Rose Ann

Spears from participation in the siting hearing to be held and the decision to be

rendered in this matter, and in support thereof states as follows:

1.

This proceeding is being conducted pursuant to 415 ILCS 5/39.2 and the

Yorkville Pollution Control Facility Siting Ordinance No. 2006-117. This

is an

adjudicatory proceeding, in which the decision is to be made on the basis

of the

evidence, and not on the basis

of bias, prejudgment, the wishes of constituents, or other

political

or personal motivation.

2.

The Courts have held that, "a claim of disqualifying bias or partiality on the

part

of a member of the judiciary or an administrative agency must be asserted promptly

after knowledge

of the alleged disqualification. The basis for this can readily be seen.

To allow a party

to first seek a rUling in a matter, and upon obtaining an unfavorable

one, permit him to assert a claim

of bias would be improper-"

Fairview Area Citizens

-1-

7051 7788v2 863858

,"

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

---

Task Force

v.

Pollution Control Board,

'190 III.App.3d 541, 555 N.End 1178 (3

rd

District

1990).

3.

That Alderman Burd and Alderman Spears have, between September 26,

2006 and the current date, made statements and engaged

in conduct which suggests a

disqualifying bias

on their part, and which prevents them from rendering a

fundamentally fair decision, These items include, but are not limited to:

(a)

Receipt

of legal advice by Alderman Spears from and on the

letterne'ad of Jeep & Blazer, LLC, attorneys retained by

Ke~dall

County to

oppose this application, said advice pertaining to the siting application and other

activities related thereto, including adoption

of a host agreement and annexation

agreement between the City of Yorkville and Fox Moraine, LLC;

(b)

Statements that the decision should be based upon the wishes

of

the majority of constituents rather than on the evidence, the most recent such

statement being from Alderman Burd at the Yorkville City Council meeting on

February 13, 2007;

(c)

Campaigning by Alderman Burd during the pendency of this

application on a platform

of unconditional landfill opposition;

(d)

Multiple statements to the press and members

of the public

evidencing bias and prejudgment

4,

Prejudgment

of adjudicative facts, is an important elements in assessing

fundamental fairness.

Hediger v. 0

&

L Landfill, Inc"

PCB 90-163, slip op. at 5(Dec.20,

1990). Courts have held that the local siting hearing

is the most critical stage of the site

approval process.

Land and Lakes Co. v. PCB,

245111.App.3d631, 616, N.E.2d 349,

-2-

70517788v2 863858

.,"

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

---

356 (1993). Where a municipal government "operates in an adjudicatory capacity, bias

or prejudice can be shown if a disinterested observer might conclude that the

administrative body,

or its members, had in some measure adjudged the facts as well

as the law of the case in advance of hearing it."

Concerned Adjoining Owners,

288 III.

App. 3d 565, 573, 680 N.E.2d 810,816. The appearance of impropriety as well as the

ability

to infer, even implicitly, that a decision was made because of

p~blic

opinion would

violate fundamental fairness.

Rochelle Waste Disposal v. City

of

Rochelle,

PCB 03-218

(slip opinion; April 15,2004).

WHEREFORE,

for the foregoing reasons, Fox Moraine, LLC respectfully prays

that Aldermen Rose Ann Spears and Valerie Burd be disqualified from participating in

the decision in this matter.

Respectfully submitted,

FOX MORAINE, LLC

George Mueller

MUELLER ANDERSON, P.C.

609 Etna Road

Ottawa,

IL

61350

(815) 431-1500 Phone

(8'15) 431-1501 Fax

Charles F, Helsten

HINSHAW & CULBERTSON

100 Park Avenue

Rockford, IL 61105-1389

- 3-

)

705 177&8v2 863&58

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

---

EXHIBITB

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

---

,',

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03'0707

UNITED CITY OF

YdRKVI~LE>

ILLINOIS

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PRESENT:

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MAYOR ARTHUR 'PROCHASKA, ,chai.rmaii,

,)VIR;' JAMES

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Alderman,

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'MS.ROS~

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MR. ' fv1AR"rY MUNNS ,A1de rman,

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MR,.:'JOHN 'JUSTIN WYETH,:Ci tYAt'to-rney0,

J.

"

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

---

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

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

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

---

'HEARING OFFICER

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.

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

---

030707 '

7'advisement wiJh all 'other'pretiminary inotiQnsand

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

---

EXHIBITC

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

---

Electronic Filing, Received, Clerk.s Office, August 30, 2007

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

Fox Moraine, L.L.C.,

Petitioner,

v.

United city ofYorkville, City Council,

Respondents.

)

)

)

)

)

)

)

)

)

PCB No. PCB No. 07-146

PETITIONER'SRESPONSE TO THE MOTION FOR .

PROTECTIVE ORDER LIMITING DISCOVERY

NOW COMES the Petitioner, FOX MORAINE, L.L.C., by and through its attorneys,

Charles

F. Helsten and George Mueller, and in response to the Motion for a Protective Order

Limiting Discovery, states as follows:

INTRODUCTION

The gist of the City's Motion for Protective Order Limiting Discovery is that the

Petitioner did not preserve its right to challenge the fundamental fairness violations

in

the

proceedings below, and is therefore barred from discovering evidence

of those violations and

revealing that evidence

in this appeal before the Board. The City'sassertion is not only patently

false, it ignores this Board'sRules concerning discovery and is an affront to the very principles

offundamental fairness.

The Petitioner, Fox Moraine, raised fundamental fairness concerns from the onset

of the

public hearing for siting approval, on March 7, 2007. (petition for Review, Exhibits B and

C).

At the

commenc~ent

of the hearing, the Petitioner filed a Motion to DisqualifY in which it

delineated the bias demonstrated

by two members of the. Council based.on their pre-hearing

expressions

ofpublic opposition to the Application, their solicitation oflegal advice for purposes

of opposing the Application, and a variety of other disqualifying conflicts ofinterest.

Id.

After

the close

of the siting hearing, when the rules prevented Fox Moraine from making any further

70S35372vl 863858

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

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Electronic Filing, Received, Clerk.s Office, August 30, 2007

comments or presentations, three newly elected Council members were seated; the timing of

their arrival then leaving the Petitioner unable to take any action to disqualify them.

Despite the recommendation

ofits own independent review staffand the Hearing Officer,

the City Council denied the siting Application, and, in the aftennath

of that decision, the

Petitioner appealed

to this Board on the basis of multiple fundamental fairness violations and on

the basis

that the decision was against the manifest weight ofthe evidence at the bearing.

In conjunction with its appeal to this Board, the Petitioner propounded discovery

consistent

with

35 Ill.Adm.Code 101.616. That section provides that "[a]11 relevant infonnation

and infonnation calculated to lead

to relevant information is discoverable, excluding those

materials

that would be protected from disclosure in the courts of this State pursuant to statute,

Supreme Court Rules or common law, and materials protected from disClosure under

35 ill.

Adm. Code 130." 35 ID.Adm.Code 101.616(a).

The Petitioner'sInterrogatories seek disclosure

of evidence that establishes bias,

ex parte

contacts, prejudgment and a decision based on matters outside the public record, all legitimate

areas

of inquiry as established by the case law

in

this area. The City bas been asked 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 infonnation outside the record

of proceedings which were considered by the

Council in reaching

its decision.

The

~etitioner's

Requests for ,Production simply seek

production

of the documentary evidence of these violations. The discovery propounded

in

this

case is

narrowly tailored to. result in disclosure of the evidence establishing violations of

fundamental fairness which lie at the heart ofthe instant AppeaL

Upon receiving the Petitioner's requestS for disclosures of evidence, the City responded

with a Motion foi Protective Order in

whiCh it asserted that it did not need to produce the

2

70S3S372vl 863858

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

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Electronic Filing, Received, Clerk.s Office, August 30, 2007

evidence because the Petitioner purportedly "waived the issues on which it seeks discovery." In

support

of this assertion, the City pointed to the fact that Motions to Disqualify were only filed

against two members of the siting authority. (Motion for Protective Order at p. 2). However,

and again, the City'smotion completely ignores the fact that the Petitioner also seeks evidence

of

ex parte

contacts, as well as evidence of the Council's consideration of materials outside the

record in reaching its decision,

and similarly ignores the timing of the post-hearing seating of

three members ofthe Council.

The

City's assertion that the Petitioner ''waivedits right" to discover evidence of the

fundamental fairness violations is not only

in contravention with the Board'srules providing for

discovery, it also seeks

to

deny the Board access to vital evidence. This attempt to withhold

evidence suggests the City

may be well aware of the fundamental fairness violations which

occurred in the proceedings below, and is doing everything possible

to prevent such conduct

from seeing the light of objective scrutiny.

ARGUMENT

1.

The Board'sProcedural Rules Concerning Discovery

Under the Board's Procedural Rules, "[a]l1 relevant infonnation and infonnation

calculated to lead to relevant information is discoverable, excluding those materials that would

be protected from disclosure

in

the courts ofthis State pursuant to statute, Supreme Court Rules

or common law, and materials protected from disclosure under 35 Ill. Adm. Code 130." Sec.

101.616(a).

The Rules provide that a protective order is available solely

"to prevent unreasonable

expense, or harassment,

to

expedite resolution of the proceeding, or to protect non-disclosable

materials from disclosure consistent with Sections 7 and

7.1 of the Act

and

35 Ill.Adm.Code

130." Sec. 101.616(d). No such basis for a Protective Order has been raised

by the City, and

3

70535372v1863858

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

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Electronic Filing, Received, Clerk's Office, August 30, 2007

indeed, the discovery requested by the Petitioner falls into none of the above-referenced

categories. Rather, the discovery here seeks only production

of evidence showing fundamental

fairness violations, including a request for disclosure

of

ex parte

contacts, any inappropriate

relationships between the Council members and Objector Participants, and materials

or

infonnation outside the record which were considered by the Council in reaching its decision.

For purposes

of Discovery, "the Board may look

to

the Code of Civil Procedure and the

Supreme Court Rules for guidance where the Board'sprocedural rnles are silen!." Sec. 101.616.

In

describing the scope of discovery, Supreme Court Rule 201(b)(1) states that "full disclosure

regarding any matter relevant

to the subject matter involved

in

the pending action" can be had.

Although the City points

to

Joliet Sand and Gravel v.

PCB,

163 D1App.3d 830, 516

N.E.2d 955 (3

rd

Dist. 1987) as authority for the Board to deny discovery, in that

case

the

petitioner sought

to "depose, subpoena or both no Less than 19 people. Many of these persons

bad

no direct bearing on the denial of the operating permit."

ld.

at 835. The Appellate Court

accordingly upheld

the .hearing officer's decision to limit the number of testifying witnesses

to

five, and declined. to require production of memoranda which had been created by IEPA

personnel and attorneys with respect to a decision on whether to bring an action against an

alleged polluter.

ld.

The discovery limitations imposed in

Joliet Sand and Gravel

clearly have

no relevance to the instant case, where the Petitioner has submitted narrowly tailored requests

which go directly to the issues raised in this appeal.

The other cas.e relied upon

by the City

in

its argument for limiting

discovery~

Snoddy v.

Teepak,

198 m.App.3.d 966,556 N.E.2d 682 (1

st

Dist. 1990), is a battery case far afield from the

matters before this Board, in which a worker sued his employer and

the manufacturer of

chemicals used at his employer's facility. The case is so dissimilar, and so utterly bereft of

factual

detai~

that its applicability to the instant case is nearly impossible to discern. Its only

4

70S3SJ72v1863858

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

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Electronic Filing, Received, Clerk.s Office, August 30, 2007

relevance derives from the fact that the Appellate Court held the trial oowt properly declined to

compel discovery which was "not calculated

to develop specific probative evidence regarding

the issue

of fraud, collusion, or tortious conduct."

Id.

at 969. Unfortunately, the opinion offers

no indication

as to what kind of evidence the plaintiff did seek, or on what subjects.

In

any

event, the Appellate Court found that the trial court correctly held that the requested discovery

was unnecessary

sin~

the case could be decided without an evidentiary hearing. Moreover, the

fact that there exists a case in which the Appellate Court once found that

it was appropriate to

limit discovery hardly supports the City's motion here. Finally, in contrast

with

Snoddy,

the

discovery

in

this case is focused directly at the issues on: appeal.

2..

Discovery

in

the Context of Fundamental Fairness

Ii1 the instant appeal, the Petitioner clearly raised fundamental fairness as an issue during

the proceedings below, and raised the issue again in its Petition for Review. Indeed, fundamental

fairness

is

the very core of

this

appeal. Thus it is clear that discovery intended

to

reveal

information and documents evidencing the fundamental fairness.violations that occurred below

is tailored to matters entirely relevant

to the instant appeal.

Because a Section 39.2 hearing must be fundamentally

fair to all participants, and must

be heard by a siting authority

which is objective and unbiased, the Board has a

statutory duty

to

consider the fundamental fairness ofthe siting process. 415 ILCS 5/40.1 (2002);

E

&

E Hauling,

Inc~

v.

Pollution Control Bd.,

116 m.App.3d 586, 596, 451 N.E.2d 555, 564 (2d Dist. 1983);

affd,

107 m.2d 33, 481 N.E.2d 664 (1985). ''TheAct

provid~that,

in reviewing a section 39.2

decision on site approval, the Board

must

consider the fundamental fairness of the procedures

used by the local governing body

in reaching its decision."

Land and Lakes v. PCB, 245

nl.App.3d 631, 616 N.E.2d 349 (3

m

Dist.

1993) (emphasis added) (reversing the Pollution

Control Board'sdecision, based on a lack

of fundamental fairness in proceedings below).

5

70535372vl 863858

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

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Electronic Filing, Received, Clerk.s Office, August 30, 2007

It

is well-settled

that

although the Act requires that Board hearings on siting decisions be

based exclusively on the record before the siting authority, the Board may consider new evidence

relevant to the fundamental fairness of those proceedings "where such evidence necessarily lies

outside ofthe record."

Land and Lakes Co. v. PCB,

319 lll.App. 3d 41, 743 N.E.2d 188, 194 (3rd

Dist. 2000) (emphasis added). Such a situation is present in this case, and is often true when it

comes to fundamental fairness violations.

Fundamental fairness involves considerations of bias, prejudgment, decisions based on

matters outside the record, and

ex parte

contacts. The discovery requests to which the City has

so strenuously objected merely ask that the City provide any evidence in its possession which

establishes such bias, prejudgment, consideration of matters outside the record, and

ex

parte

contacts (again, all well.;.established areas offundamental fairness inquiry).

It

is axiomatic that no person may play a decision-making role in a judicial or

administrative proceeding

in

which he or she has any personal or pecuniary interest in the

outcome which might influence his or her decision.

See e.g., Board ofEduc. ofNiles Tp. High

School Dist.

219.

Cook Co. v. Regional Bd. o/School Trustees o/Cook Co.,

127 m.App.3d 210,

213 (1

st

Dist.1984). Participation by such interested parties

in

the decision making process is

said to ''infectthe whole" and render the decision voidable.

[d.

Here, multiple members of the Council had a personal interest in the outcome, and

engaged in a variety of improper acts and conduct with respect to the Application, yet the City

asserts it should

be

.completely insulated from disclosing the evidence related to that conduct and

establishing those conflicts because the Petitioner didn't discover much of it until the hearings

were oVer. That assertion is at total odds with the law.

3.

Waiver

6

70S3S312v1863~S8

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

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Electronic Filing, Received, Clerk.s Office, August 30, 2007

. The City asserts that the Petitioner ''waived''its right to seek disclosure ofthe evidence of

fundamental fairness violations because it only filed a motion to disqualify two of the siting

authority members.!

In

support of its argument, the City cites to

E

&

E Hauling

v.

PCB

for the

proposition that it is improper for a party to raise a claim of bias for the first time on appeal.

(City's Motion at p.3).

In

the instant case, of course, bias was, in fact, raised as an issue in the

proceedings below, therefore bias is

not being raised as an issue for the first time on appeal.

Moreover, the City's argument and citation

to

E

&

E Hauling

fails to acknowledge that in that

case the Illinois Supreme Court observed the exceptions to the waiver rule, and went on to

address the petitioner's claims

of bias

in

great depth, despite the fact

that

they were apparently

not raised in the proceedings below.

E

&

E Hauling v. PCB,

107 m.2d 33, 38-9 (1985). It is also

worth noting that in

E

&

E Hauling,

the Supreme Court affirmed the Appellate Court, which had

explained that the waiver

rule

is ''not inflexible and may encompass challenges to the

composition

of administrative bodies made for the first time on administrative review wherein

injustice

might otherwise result."

E

&

E Hauling v. PCB,

116 rn.App.3d 586, 593, 451 NE2d

555 (2

nd

Dist. 1993),

aff'd

107 m.2d 33, 481 N.E.2d 664 (1985). The City points to

Waste

Management v. PCB,

175 Dl.Appp.3d 1023, 530 N.E.2d 682 (2

nd

Dist. 1988) as allegedly

providing additional support for

its waiver theory, yet the petitioner in that case failed to seek

disqualification

ofsiting authority memberS despite the fact that it knew they bad publicly voiced

opposition

to

the landfill, and

instead

urged disqualification ofthem only on appeal. The instant

case is easily distinguishable, since

the Petitioner here promptly nioved to disqualify those

members who publicly opposed

the Application,

and

now appeals concerning additional bias .

which was unknown at the time

ofthe hearing.

1 Notably, the City relies exclusively

on cases that are in excess offifteen years old to support its

waiver theory, thereby ignoring the

Board's clear duty to consider fundamental fairness issues,

as is clearly reflected

in

more recent cases addressing the subject.

7

70535372vl 863858

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

---

Electronic Filing, Received, Clerk.s Office, August 30, 2007

The City's reliance on

A.R.F. Landfllll'. PCB,

174 m.App.3d 82, 528 N.E.2d. 390 (2

nd

Dist. 1988), is similarly misplaced. The City asserts that in

A.RF.

the Appellate Court found a

landfill waived claims of bias when it withheld those claims until its appeal of an unfavorable

decision. (City's Memorandum of Law at p. 3).

In

A.R.F.,

however, the petitioner had been

allowed to submit written questions to the members ofthe siting authority prior to the hearing,

in

which the members were asked to - and did - disclose their public statements critical of the

landfill. Nevertheless, the petitioner failed to seek disqualification based on the statements

received from members until after the siting decision was annOlmced, raising its claims of bias

for the first time on appeal. The Appellate Court held in

A.R.F.

that the petitioner in that case had

a duty to raise the claim promptly after it obtained knowledge ofthe alleged disqualification.

Id.

at 88. This

is

clearly distinguishable from the facts present in the instant appeal

Here, waiver is inapplicable because the infonnation was unknown at the time of the

hearing.

A

waiver,is the voluntary relinquishment of a known right, and the Petitioner cannot be

deemed to have waived its objection to individuals who were not even seated as members of the

Council until after the hearing, when it was too late for the Petitioner to move for their

disqualification to disqualify them. Even

the

City acknowledges that a "claim of bias' or

prejudice on the part of a member ofan administrative agency...must be asserted promptly after

knowledge of the alleged disqualification." (City's Memorandmn of Law at p. 3, citing

Waste

Management v. PCB,

175 1ll.App.3d 1023 (2

nd

Dist 1988)(emphasis added). Here, knowledge

ofthe additional disqualifications

did

not occur until after the hearing had conclude4.

Similarly, the Petitioner could not possibly "waive" its right to discover materials outside

. the record which were considered by the Council in reaching its decision by failing to raise an

objection during the hearing to something which had not yet occurred or which was not yet

known.

8

70535372vl 863858

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

---

Electronic Filing, Received, Clerkws Office, August 30, 2007

Fox Moraine had reason to believe at the outset of the hearings that two Council

members were tainted, and properly moved to disqualify them. Fox Moraine did not and could

not know

at the time that the entire process was tainted, however, a decision which shockingly

ignored the strong recommendations for approval

by both the Hearing Officer and the City'sown

independent review staff makes no other conclusion possible. It

is the very nature of

ex parte

contracts that they are furtive, and it is the essence of bias that it is hidden. from those against

whom it will be directed. That is why the Board has a statutory obligation to examine the

fundamental fairness

ofa proceeding. No action on the part of Fox Moraine was required during

the hearing to preserve this issue beyond what was done.

The fact that Council members participated in heretofore undisclosed

ex parte

contacts,

based their final decision on previously undisclosed materials, communications, arid other .

infonnation outside

the record, and in other ways prejudged the Application and disregarded the

evidence at the hearing, does not justify a determination that the hearing was fundamentally fair,.

and the Board

has a statutory responsibility to detennine whether, in fact, the hearing process in

this case met the standards offundamental fairness.

If the City has no information or materials that would substantiate the violations, it has

nothing

to fear

in

answering the Petitioner's discovery requests.

It

is the altemative to that

proposition which should raise concern for this Board, and most likely explains

why the City has

so strenuously objected to an otherwise routine discovery request

in fundamental fairness cases.

CONCLUSION

It

has been said that the very essence ofconstitutional due process is based on the concept

of fundamental fairness, and llIinois courts have consistently held that at a minimum,

fundamental fairness

requiTes a fair hearing before a fair tribunal.

See e.g. Van Harken v. City of

Chicago,

305 m.App.3d 972 (tst Disl. 1999).

9

70S3S372v) 863858

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

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Electronic Filing, Received, Clerk's Office, August 30, 2007

As the Appellate court bas observed, shielding off-record considerations from judicial

review not only frustrates the purpose of review by preventing consideration of fundamental

fairness issues, it also visits unjust results on parties who have been "actually victimized by

unfair or improper procedures not ofrecord

u

E

&

E Hauling, Inc. v.

PCB,

116 D1App.3d 586,

593,451 N.E.2d 555, 562 (2

nd

Dist. 1983),

affd.,

107 ll1.2d 33, 481 N.E.2d 664 (1985). That

type

of victimization occurred in this case, and the Petitioner should be afforded access to the

evidence which reveals the extent ofthe violations that occurred in the proceedings below.

The City's Motion for Protective Order seeks to obfuscate this Board's

inquiry

into the

fundamental fairness

of the proceedings below, and to prevent consideration of relevant

evidence. The Petitioner accordingly requests that it be denied.

Dated:

August 30, 2007

Charles F. Helsten

Hinshaw

&

Culbertson LLP

100 Park Avenue

P.O.

Box

1389

Rockford,

n.

61105-1389

815-490-4900

George Mueller

Mueller

Anderson, P.C.

609

Etna

Road

Ottawa, minois 61350

815-431-1500

Respectfully submitted,

On behalf

ofFox Moraine, LLC

lsi

Charles F. Helsten

and

lsi

George Mueller

This document ntilized

10~~

recycled paper products.

70S35372vl

8638S8

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

---

EXHIBITD

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

---

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

CIJ:RK'S

OFAOE

SEP 202007

STATE OF IWNOIS

PollUtIon contfoI

BoIRI

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 first 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 of the nine

members

ofthe 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, September 20, 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.

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

---

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

ofYarkville's decision on petitioner'sproposed siting of a pollution

control facility in Yorkville, Kendall County. Petitioner appealed to the Board

on the grounds

that 1) Yorkville'sdecision 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'sstatus

by the Board on

Augu~t

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

offic~r

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 ForA Protective Order

In

its memorandum supportingits motion fora protective order,Yorkvillerelates that it

held23 days:ofpublic hearings concerning Fox Moraine'sapplication for siting. Yorkville also

noted that the hearing process

fell in the middle of the campaign process for the CityCouncll,

withanewrnayQrarid three new council

members.beillgele9t~d

on April 17, 2007. Yorkville.

acknowledges

Fox Moraine objected to two dfthe 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.

at2.

In

support ofits waiver argument, Yorkville cites various ,siting cases, finding

especially relevant Waste Management

of Illinois v. Pollution Control Board, 175 IlL App. 3d

1023 (2d Dist. 1988).

See

Memo. at 3-4, and cases cited therein. Yorkville argues that Fox

Moraine's"discoveryrequests to the unchallenged seven ,Council members are unreasonably

burdensome

and, unduly onerous attempt to uncover some evidence perhaps relevant to its

unsupported claims

ofunfairness, bias and prejudice". Memo. at 4.

Petitioner's Response

Oh 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

exparte contacts,

as well as evidence

ofthe Council'sconsideration ofmaterials 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 petitioneragrees that at the local siting hearing, it only moved to disqualify two

of the,

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

---

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

Partic~pant!Objectors;

the Council members' affiliations with the Objector organizations; and the.

materials and information outside the record ofproceedings 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

of the proceeding pursuant to Section 101.616 (d) ofthe Board'sprocedural rules.

Respondent's.Reply

On September 13,2007, Yorkville filed a motion fOJ;leave to file a reply and its reply.

Yorkville takes issue with Fox Moraine's allegation that due to the timing of the newly elected

,Council members,

it could not timely object or move to disqualify the new members.. Yor1..rville

" arguesthat.Fox Moraine could have objected below becausethe three new Council members

were-elected

on April 17, 2007; and the public heanpg did not close until April 20,2007.

Additionally, Yorkville argue!i.that petitioner could-have moved.for disqtialificatioricat any time

during: the post-hearing comment period. Reply at

2"

Finally; Yorkville argues that it '"'shouldnot be put to.the time and expense in responding

. to pointless discovery".

Replyat L

Discussion

'. On appeal of a municipality'sdecision to grant or deny a siting application, the Board

generally confmes

itselfto the record developed by the muIiicipality. 415 ILCS 5/40.1 (b) (2006).

However~

the Board will hear new evidence relevant to the fundamental faimess ofthe

proceedings where such evidence lies outside.the record. Land and Lakes Co.

v~

PCB ,.319 TIL.

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 TIL

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

ofevidence are important, but not rigid, elements in assessing fundamental

. fairness. American Bottom Conservancy

v. Village ofFainnont City, PCB 00-200 (Oct. 19,

20(0). The Board

must consider the fundamental fairnessofthe procedures used bythe

.. respondent in reaching its decision. 415 ILCS 5/40.1 (a) (2006). Additional evidence outside the

record

that may be considered include pre-filing contacts.

See

County of Kankakee v. City of

Kankakee, Town and County Utilities, me., and Kankakee Regional Landfill, LLC., PCB 03-31,

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

---

4

03-33,03-35 (cons.) (Jan. 23,2003).

The purpose

of discovery is to uncover all relevant infonnation 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

unreasonable expense,

or harassment, or to expedite resolution ofthe 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 infonnation 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

unreas<mable expense

or engenders harassment as set forth in 35 lll. Adm. Code 616(d)..

Yorkville

statel? only that it "should notbe put to the time and expensein.responding topointless .

discovery. Reply

at 1. For all of these reasons, Yorkville'smotion for a protective order is

dei1ied. YorkVille.

must file. its resQonses to the requested discovely on or before September 28, .

2007:.'

.

Finally;theprocedurahules-provide that parties may seek Board review ofdiscovery -

ndings pu(suant to 35 Ill. Adm. Code 101.616(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

ca..<;e, the hearing officermust manage the case to insure that discovery, hearing,

and briefirig schedules'allow for timely Board deliberation and decision

of the case as a whole.. '

ITIS SO ORDERED

Bradley P. Halloran

Hearing Officer

lllinois Pollution Control Board

James

R.

Thompson Center, Suite 11-500

100 W. Randolph Street

Chicago, lllinois 60601

312.814.8917

1

The ultimate determination as to whether the petitioner has waived any issu.es as to one or more

Council Members is a decision for the Board, and not the hearing officer, to make.

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

---

EXHIBITE

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

---

BEFORE THE

1

INDEX

~

ILLINOIS POLLUTION CONTROL BOARD

::.:

FOXvs.MORAINE,

Petitioner,

LLC,

~

No.

)

PCB

)

07 146

3

2

WITNESSJAMES

D. BURNHAM

EXAMINATION

I

UNITED CITY OF YO KVILLE, CITY )

I

COUNCIL,Respondent.

)

)

4

By Mr. Dombrowski

P.4

Ei

5

'J

The discovery deposition of JAMES D. BURNHAM,

i

taken in the above-entitled cause, before JENNIFER

6

~

CAMPBELL, anotary public of Kendall County,

~

2:10

Illinois,

p.m.,ontheat80012thGame

day of

Farm

September,

Road, Yorkville,2008

at

7

i

Illinois, pursuant to Notice.

8

~

9

~

nO

~

~

ReportedLicense

No.:

by:

084-003282

Jennifer Campbell, CSR, RPR

h2

n1

NUMBER

EXHIBITS

MARKED FOR ID

;

~

13

Yorkville Deposition Exhibit

I

~

14

NO.5

P.

5

-~

Ii

n5

(Retained by Mr. DombrowskL)

~~

t~

l~

16

I

P

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h8

B

)

h9

~

:::

DO

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~1

1

,

D2

I

1

~3

1

1

'4

~

;;

1

3 1

~

Il

.,

~

1

APPEARANCES:

1

(Witness duly sworn.)

~

!~

2

MUELLER ANDERSON, P.C., by

2

MR. DOMBROWSKI: Let the record reflect that

,""

1

3

MR. GEORGE MUELLER

3

this

is the deposition of Jim Burnham taken

"

4

609 Etna Road

4

pursuant to notice and agreement.

5

Ottawa, Illinois 61350

5

JAMES

D. BURNHAM,

6

(815) 431-1500

6

called

as a witness herein, having been first duly

7

Representing the Petitioner,

7

sworn, was examined

and testified as follows:

8

8

EXAMINATION

9

WILDMAN HARROLD ALLEN & DIXON, LLP, by

9

BY MR. DOMBROWSKI:

10

MR. LEO P. DOMBROWSKI

10

Q.

Would you state your full name for the

11

225 West Wacker Drive

11

record, please, sir.

12

Chicago, Illinois 60606

12

A.

James D. Burnham.

13

(312) 201-2562

13

MR. DOMBROWSKI: Mr. Burnham, I introduced

~

14

Representing the Respondent.

14

myself earlier to you. My name is Leo Dombrowski.

15

15

I'm an attorney for the City of Yorkville in this

~.

'.,

16

16

appeal. I'll be asking you some questions today.

"

:;

17

17

You understand that there's a court

'{

18

18

reporter here to record everything, and that we

19

19

shouldn't talk over each other; is that all right?

20

20

THE WITNESS: I do. Yes.

21

21

MR. DOMBROWSKI: And what will you do if you

22

22

don't understand a question or are confused by it?

23

23

THE WITNESS: Say as such.

24

24

2

4

"~

..

~.,mwli';::m:::i:»*,:;:;$.&'~~'fu~~·»;U,<~{Im.~./'h.

1 (Pages 1 to 4)

McCORKLE COURT REPORTERS, INC.

CHICAGO, ILLINOIS (312) 263-0052

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

---

1

MR DOMBROWSKI: And if you go ahead and answer

1

2

one of my questions, I will assume that you have

2

3

understood it; fair enough?

3

4

THE WITNESS: Fair enough.

4

5

BY MR DOMBROWSKI:

5

6

Q.

Are you on any drugs or medication or

6

7

anything today that would impair your ability to

7

8

give

full, complete, and honest testimony today?

8

9

A. I'm not.

9

10

Q.

Let me show you what we have marked as

10

11

Yorkville Deposition Exhibit NO.5.

11

12

Have you seen that before?

12

13

A. I have. Yes.

13

14

Q.

And have you taken a look at the document

14

15

rider that's attached to it?

15

16

A. I have. (Phone interruption.) Sorry.

16

17

Pardon me.

17

18

Q. Sorry. What was your answer to that

18

19

question?

19

20

A. Repeat the question, please.

20

21

Q.

Have you before today taken a look at the

21

22

document rider, the Exhibit A that is attached?

22

23

A.

You said Exhibit

A.

Yes.

23

24

Q.

And have you brought any documents with

24

5

A. I believe there was some transcripts to

some of the various hearings that I also reviewed

or looked

at.

Q.

And what hearings were those?

A. The document in regard to one of the

meetings hosted by Yorkville

on November -- or, you

know, it was

an informational meeting, and there

was a transcript attached to that that I reviewed.

I looked at some of the transcripts from

the decision process, the deliberation that the

Yorkville people at the -- the night that the vote

was rendered

on the Fox Moraine matter. And I

think that there was another transcript from one of

the hearings

in review of the -- the meeting

that -- a city council meeting at Yorkville looking

at or it was a meeting that they were reviewing

either the host agreement or maybe when they

re

visited the - revisited the annexation, annexation

vote.

Q.

Any other documents?

A. No. Not tliat I recall.

Q.

So as far as transcripts that you reviewed

to prepare for today's deposition,

we have first

the transcript of the meeting hosted by Yorkville

7

1

you today?

2

A. No.

3

Q.

And is it fair for me to assume that you

4

have no new exhibits or documents to give us other

5

than what Fox Moraine has already produced

in this

6

appeal?

7

A. That is correct.

8

Q.

What have you done to prepare or help

9

yourself remember what you're going to be

10

testifying about today?

11

A. I reviewed the interrogatory responses

12

that was supplied to me by Mr. Mueller. And

13

basically read the - read the document that had,

14

you know, principally newspaper'articles and a few

15

other -- a few other documents

in that regard.

16

Q.

So you read the newspaper articles that

17

Fox Moraine has produced to us?

18

A. Correct.

19

Q.

And what else did you read?

?O

A. Within the document was a letter from Dean

21

Wolfer to his constituents. There was an invoice

~2

from Wildman Harold, I believe. And there was --

~3

that's all I can recall.

124

Q.

Any other documents besides those?

6

1

in November 2006; is that correct?

2

A. I think it was November 30th.

3

Q.

2006?

4

A. Correct.

5

Q.

And the second was the transcript from the

6

evening the city council voted

on the landfill

7

application;

is that right?

8

A. I believe so, yes.

9

Q.

And third and final was a transcript of a

10

city council meeting where they were either

11

discussing the host agreement or revisiting the

12

annexation issue; is that right?

13

A. Correct.

14

Q.

Why did you review those three transcripts

15

in preparation for your deposition?

16

MR. MUELLER: I think that's been asked and

17

answered. He said he did it to refresh his

18

recollection.

19

MR. DOMBROWSKI: I haven't asked him that. Go

20

ahead.

21

THE WITNESS: I reviewed them because I thought

22

that some of those -- those transcripts were

23

available, and I thought it would be helpful to

24

remember, try to remember

and recall some of the

8

2 (Pages 5 to 8)

McCORKLE COURT REPORTERS, INC.

CHICAGO, ILLINOIS (312) 263-0052

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

---

1

comments that were made during those meetings by

1

business modeling. I do some project development

2

some of the people that were

in the public-comment

2

work similar to the role that I functioned with the

3

portion

of those meetings.

3

Fox Moraine Landfill. I do some valuation reports

4

BY MR. DOMBROWSKI:

4

for companies, and I participate

in brokering of

5

Q.

Did you ask someone for copies of these

5

companies for sale to other interested buyers.

6

transcripts or were they given to you?

6

Q.

What is the name of your business?

7

A.

I asked George for the transcript for

7

A.

JOB Consulting Services, Inc.

8

the -- the final vote by Yorkville. And the other

8

Q.

And where is your business located?

9

two, one I found

in some invoices for the project,

9

A.

4532 Seeley Avenue, S-e-e-I-e-y, Downers

10

one

of them I found in the invoices for the

10

Grove, Illinois.

11

project, and the other one I think it was forwarded

11

Q.

How long have you had the business?

12

to me by George, although I didn't request it.

12

A.

Five years in October.

13

Q.

Have you talked to anyone in preparation

13

Q.

And what's your relationship and the

14

for your deposition today?

14

relationship of your business to Fox Moraine, LLC?

15

A.

I spoke with George, and that's it.

15

A. They're a client of mine.

16

Q.

No one else other than Mr. Mueller?

16

Q.

When were they first a client?

17

A.

Not

in preparation for this. I know that

17

A.

September

of 2004. Maybe around that time

18

Charlie Murphy was deposed, but that's all

that--

18

frame.

19

Q.

Have you talked to him since his

19

Q.

And what did you start doing for them in

~O

deposition?

20

September of 2004?

121

A. I have.

21

A.

Pardon me. I misspoke.

~2

Q.

And what did you two talk about?

22

Could you repeat the question

on Fox

123

A.

A variety

of things, but nothing in regard

23

Moraine?

~4

to this.

24

Q.

Yes. When did you first start doing work

9

11

1

Q.

Nothing in regard to the landfill appeal?

1

for Fox Moraine?

2

A. Correct.

2

A.

I guess Fox Moraine was -- became an

3

Q.

Nothing in regard to his deposition?

3

entity

in 2006, maybe around March, so that's when

4

A. No.

4

I started doing work for Fox Moraine.

5

Q.

He didn't mention anything about his

5

Q.

In March of 2006?

6

deposition?

6

A. Yes.

7

A.

I asked how it went, but that was just

7

Q.

And what did you start doing for Fox

8

general conversation.

8

Moraine

in March of 2006?

9

Q.

And what did he say?

9

A. I was working on the Fox Moraine Landfill

10

A. He said it went -- it went fine. It was

10

project for them.

11

what it was.

11

Q.

And tell me everything you've done for Fox

12

Q.

Where do you work?

12

Moraine

on this landfill project.

13

A. I don't understand. Physically where do I

13

A.

Could you be more specific?

14

work?

14

MR. MUELLER: Kind

of a broad question.

15

Q.

Yeah. Who do you work for?

15

BY MR. DqMBROWSKI:

16

A. Myself.

16

Q.

Well, just tell me generally for starters

17

Q.

What do you do?

17

what you've done for Fox Moraine on this landfill

18

A. I'm a consultant for a variety

of clients

18

project?

19

that I have.

19

A.

Participated

in negotiations and the

20

Q.

What kind of consultant are you?

20

relationship with Fox Moraine and Groot.

21

A.

I don't really know how to describe it.

21

Participated in negotiations for the operation -

22

I do work for acquisitions, so companies

?2

the proposed operator of the landfill, Peoria

23

that are looking to buy other companies need people

23

Disposal. I participated in engaging the various

24

to do due diligence, I do some

of that. I do

~4

consultants that were expert witnesses. And, as we

10

12

3 (Pages 9 to 12)

McCORKLE COURT REPORTERS, INC.

CHICAGO, ILLINOIS (312) 263-0052

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

---

1

proceeded to file an application, I participated

1

, time I interfaced with the attorneys that represent

2

in, you know, attending various county meetings,

2

Fox Moraine

and represent or participate in various

3

attending the various meetings in regard to 2000

3

discussions with the management and owners of Fox

4

or,

you know, Fox Moraine's application of, you

4

Moraine.

S

know, petition for annexation, the -- the

5

Q.

If the landfill is eventually approved,

6

application

for -- the formal application for --

6

will you have any role

in the landfill after that

7

for the landfill.

7

point?

8

Q.

So you helped put together the formal

8

A.

Can you be more specific?

9

application for the landfill?

9

Q.

Well, we're going through an appeal

0

A.

I participated in -- I didn't put the

10

process. Should the iandfill be approved and cited

1

thing physically together, but, yes, I under -- I

11

and become an operating landfill, will you have any

2

was involved in preparing that application for

12

role in the landfill?

3

submittal.

13

A. Notthat--

4

Q.

And that application was submitted to the

14

MR. MUELLER: Go ahead.

5

City of Yorkville on December 1, 2006; correct?

15

THE WITNESS: Not that -- not that I've been

6

A.

Yes.

16

told that Iwould.

7

Q.

Did you have anything to do with the

17

BY MR. DOMBROWSKI:

8

landfill project after the application had been

18

Q.

So as far as you know, you wouldn't have

9

submitted?

19

any role?

~O

A.

Yes.

20

A.

I don't think that determination has been

71

Q.

And what was that?

21

made by the owners of Fox Moraine, that once the

I

22

A. I was involved in the hearing process. I

22

landfill would be started, what my participation

~3

sat through all, if not most of the hearing itself.

23

would be, if any, or not. I don't know.

24

Met with the expert witnesses, the attorneys, was

24

Q.

Do you have any financial interest in the

13

15

1

involved in the -- you know, the project management

1

landfill project?

2

of that project in conjunction with Charlie Murphy.

2

A.

Beyond consulting fees and a success fee,

3

Q.

So you went to all the landfill hearings;

3

no.

4

correct?

4

Q.

So if it does get approved, you get some

5

A. I believe so.

5

type

of bonus or contingency?'

6

Q.

And those were 23 or 24 in number?

6

A. That's correct.

7

A. Something in that regard, yes.

7

Q.

How long have you known Don Hamman?

8

Q.

Why did you go to all or most of all of

8

A. Probably -- I've met him from time to time

9

the landfill hearings?

9

starting in, you know, probably around 1995 range.

10

A. Because I was involved in the project and

10

Q.

Do you have anything to do with his

11

that was part of my scope of participation.

11

composting facility?

12

Q.

Did you testify at any of those hearings?

12

A. I do not.

13

A. I did not.

13

Q.

Now, I have seen you identified in

14

Q.

So was it fair to say that you showed up

14

newspaper articles as the spokesman for Fox

15

to basically see what was going on and who was

15

Moraine, LLC;

is that a fair characterization?

16

testifying as to what?

16

A. There was a time when -- when I was

17

A. Yes.

17

interfacing with the reporters, and that was, I

18

Q.

Did you have any involvement with the

18

guess, known that if they wanted to ask questions,

19

landfill project once the landfill hearings had

19

that I would

be available, so, yes, I was a

~O

ended?

~o

spokesman for the Fox Moraine Landfill, but not for

~1

A. Yes.

21

everything.

22

Q.

And what was that?

~2

Q.

Well, what then were you a spokesman for?

23

A. Dealing with various issues. I processed

~3

A. Like I said, the Fox Moraine .Landfill, but

24

the invoices to have people paid. From time to

24

there was other issues that people reached out that

14

16

4 (Pages 13 to 16)

McCORKLE COURT REPORTERS, INC.

CHICAGO, ILLINOIS (312) 263-0052

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

---

1

didn't involve me, so I wasn't the spokesman for

1

particular exchange basically said that Don Hamman

2

issues that

J

wasn't a spokesman for.

2

and, in conjunction, Fox Moraine had his hand in

3

Q.

And what other issues are you talking

3

the back pocket of Mayor Prochaska, which, in my

4

about?

4

opinion was, you know, just an example of just the

5

A.

Well, I guess if -- if you're -- if you

5

tactics that some of the people that were against

6

look at a company spokesman, a company spokesman,

6

the -- against the project, you know, presented

7

largely, you know, they deal with -- with all

7

their arguments and intimidated in some regards the

8

external and sometimes internal discussions in

8

various city council people.

9

regard to the company.

9

Q.

How do you think Mr. Milliron intimidated

10

I didn't -- I dealt with some of the

10

the city council members?

11

reporters specifically in regard to the application

11

A. Well, I think it was an example of

12

or the hearing process from time to time, but not

12

somebody would take a photograph out of the

13

always. So there could be other issues that people

13

newspaper, which could have been anybody, and that

14

needed to speak with Fox Moraine, the entity,

14

photograph was taken out of context and basically

15

about, but it didn't go through me.

15

defamed in some regard, at least in the way I look

16

Q.

Okay. How many times do you think you

16

at things, not only Mr. Hamman, but also the mayor.

17

spoke with reporters beginning in March of

'06

17

Q.

And as a matter of fact, Mr. Hamman sued

18

through, let's say, the filing of this appeal,

18

Mr. Milliron for defamation; right?

19

which was in July of

'017

19

A. I believe so, yes.

20

A.

25

times.

20

Q.

And that case was dismissed; correct?

21

Q.

Let's go back to the three transcripts

21

A. I'm not -- I don't exactly recall the

22

that you mentioned earlier. You said that you

22

outcome.

23

looked at those to see what members of the public

23

Q.

Do you know anything about the outcome?

24

had said at those public meetings; is that right?

24

A. I can't recall.

17

19

1

A.

Not all, all the transcripts, no.

1

Q.

Do you have any idea if the suit is still

2

Q.

But the three or so transcripts you

2

ongoing?

3

mentioned earlier is what I'm talking about.

3

A. I do not know.

4

A. Yeah. But all those didn't have public

4

Q.

Any other comments from that transcript

5

comments in it.

5

that you find relevant?

6

Q.

But some of them did?

6

A. I think George Gilson was another person

7

A.

One of them did.

7

that was outspoken in his opposition to the

8

Q.

Which one did?

8

landfill project. And I thought that his comments

9

A.

The re-annexation hearing or meeting

9

were also caustic. I thought that that was the --

0

transcript.

10

the reason that I was looking at that particUlar

1

Q.

And did you find any comments in there by

11

transcript is I thought that that was the one where

2

anyone from the public to be significant or

12

he basically stood up and said to the city council

3

relevant to this appeal?

13

people that if you move forward on this landfill

4

A. I thought that Todd Milliron's comments

14

project that you're -- nobody is going to want to

5

were a good example of how the public was

15

sit by you in church, and, you know, the

6

interfacing with the -- with the council, and, you

16

neighborhood is watching. And I also thought it

7

know, how they were presenting their side of the

17

was one of the times when he said that, you know,

~8

story and their -- their belief, I guess. And I

18

voters are going to vote you out of office if you,

~9

thought that that -- a couple of the people that

19

you know, go forward with this. So I thought

~O

spoke in that regard was reflective of, you know,

20

that -- I thought that is where he made some of

~1

the level of just how nasty the process at the time

21

those comments. And the one about the people

D2

had been going.

?2

sitting next to them in church wasn't in that

~3

Q.

Well, what did Mr. Milliron say?

23

transcript. I can't recall which one it is in, but

~4

A.

Well, he -- at that particular -- at this

24

it's in one of the transcripts. So I thought,

18

20

5 (Pages 17 to 20)

McCORKLE COURT REPORTERS, INC.

CHICAGO, ILLINOIS (312) 263-0052

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

---

1

again, that that was, you know, reflective

of how

1

meetings.

~

2

the opposition group, or FOGY,

if you'll call it

2

Q.

But you did have the opportunity to do so

>

3

that, the Friends

of Greater Yorkville, were really

3

just as members - other members of the public did;

4

going after the city council people during the time

4

correct?

~

56

leadinglandfill. up to the formal application

of the

56

A.

Q.

WeGo

ahead.did,

but if I may add.

I

~~

Are you saying, though, that the citizens

7

A.

John Phillipchuck, an attorney

~

7

Q.

~

8

didn't have a right

to say these things?

8

representing Fox Moraine, was also in attendance, I

;

I'm saying that I've been involved in

9

believe, at that meeting.

~

9

A.

,

10

various projects like this and I hadn't seen, one,

10

Q.

Let me show you what has previously been

1

i

11

people draw into, you know, public comments, and I

11

marked as Yorkville Deposition Exhibit No.3.

a

~~

12

even think that those comments were taken at an

12

MR. MUELLER: Are those the interrogatory

13

awkward time, at least in my view, of how they ran

13

answers?

i

,

14

a city council meeting, but that those comments

14

MR. DOMBROWSKI: Yes.

~

~

~

15

were - were just basically out of order when you

15

BY

MR. DOMBROWSKI:

1

~

1

16

bring into, you know, people's religion and, you

16

Q.

And have you seen these before?

:;

'\

§

17

know, defaming people about hands in back pockets

17

A. Yes.

il

18

and that kind of thing, so I thought that it

18

Q.

How did you come to see them?

I

2019

werereflectedreallythatgoingthoseafter-

thatthe thecity oppositioncouncil

people.people

2019

Mueller.

A.

They were provided to me by George

I

/,~

21

And I also thought it was also unusual that the

~1

Q.

When was that?

~

22

city council people were allowing them to just go

22

A. Couple days ago on one occasion, and then

H

?3

on and on, time after time, similar type of

23

maybe three or four weeks ago on another occasion,

I

24

comments.

24

by Chuck Helsten.

21

23

1

Q.

So Fox Moraine through you, for example,

1

Q.

Have you seen the petition for review in

I

;~

2

had a presence at these meetings; right?

2

this matter?

~

)

3

A.

I was - I was - I par - I

wa~

in those

3

A. I can't recall at this moment.

?i

4

meetings, yes.

4

Q.

All right. Let me show you what has

~

1

5

Q.

Was anyone else from Fox Moraine at these

5

previously been marked as Yorkville Deposition

~

:i

6

meetings?

6

Exhibit No.2, which is the petition for review

,

~

7

A.

Charlie Murphy was there. And I believe

7

that Fox Moraine has filed. And I'd like to ask

11

~1

8

George Mueller was at these meetings as well.

8

you some questions about these two documents.

i~

109

A.

Q.

NotAnyonethat

elseI

recallfromthatFoxspecificMoraine?one.

109

before?Have

you seen the petition for review

I

11

Q.

Did anyone for Fox Moraine speak up at any

11

A. I believe so, yes.

~

~~

12

of these meetings and say that the process was

12

Q.

And how did you come to see it?

~3

unfair or biased or anything like that?

13

A. I believe it was supplied by George

~

"

~4

A. Our position was it was going to be - you

14

Mueller or Chuck Helsten.

15

know, the burden

of proof was on Fox Moraine, and

15

Q.

And this would have been in the last week

16

that was going to be coming at the time that

we

16

or two?

-

~7

filed a formal application.

17

A. I don't recall when I actually got this.

~

~8

So our - our belief was that, once we

18

Q.

Let me refer you to Exhibit No.3, which

i

:i

~9

filed the application, that we would be able to

19

is the interrogatories, and specifically

.,

:i

~

20

demonstrate the merits

of the project in context of

20

Interrogatory

No.1 and the answer.

:i

~

21

the criterion as set forth in SP172, and that, you

21

Interrogatory 1 says identify each person

~

D2

~3

fundamentallyknow,

the basisfair,

of thatso

weprocessdid notis-

towebedid

not

2322

whopreparingsuppliedyourinformationresponse

thereto,or

documentsand

youusedseeinthat

I

I

:1

~

124

make public comments in that regard during those

24

you are one

of the people listed; correct?

22

24

~

~.",""dW

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6 (Pages 21 to 24)

McCORKLE COURT REPORTERS, INC.

CHICAGO, ILLINOIS (312) 263-0052

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

---

1

A.

Yes.

1

time to time would e-mail out articles in regard to

2

Q.

What was your role in putting together

2

the project.

3

. these interrogatory answers?

3

From time to time, Charlie would give me,

4

A.

I believe I may have supplied some of the

4

Charlie Murphy would give me hard copies of various

5

newspaper articles, and I may have had some

5

articles that he saw in the paper.

6

discussions with George or Chuck Helsten in regard

6

I believe I had received some of the

7

to their preparation of documents like this.

7

articles that I have from - from Don Hamman.

8

Q.

You say you supplied some of the newspaper

8

Q.

And why were these three people giving you

9

articles that Fox Moraine has given us?

9

the articles?

10

A. I said I may have.

10

A. It was just on informational type of

11

Q.

You don't know whether you did or not?

11

project information.

12

A.

I don't know if they used those -- mine or

12

Q.

And Jesse Varsho, he is with Shaw

13

not, or they used duplicate copies of somebody

13

Environmental, and he was the project manager for

14

else, because there was -- I would surmise that

14

the landfill at least at Shaw Environmental?

15

there was a variety of people giving the same

15

A. I believe so.

16

information to the attomeys.

16

Q.

And Charlie Murphy, he was also a

17

Q.

Am I right, though, that throughout the

17

consultant for Fox Moraine; correct?

18

process, beginning with your involvement through

18

A. Correct.

19

the city council's vote, that you were collecting

19

Q.

And Mr. Don Hamman, he is officer or

20

newspaper articles all along the way; is that

20

owner, I believe, of Fox Moraine, LLC?

?1

right?

21

A. He's one of the owners of the Fox Moraine,

22

A. That was times that I would collect

22

LLC.

23

newspaper articles and some that I did not collect,

23

Q.

And am I right that throughout this whole

24

because it either wasn't circulated to me or I just

24

process, which began with your involvement through

25

27

1

didn't get it.

1

the city council vote, Fox Moraine was monitoring

2

Q.

What reporters did you speak to throughout

2

the press to see what was being written about the

3

the process? What papers were they writing for?

3

landfill?

4

A. Heather Gillers was a reporter, and I

4

A. Yes.

5

think she was with the Beacon News, if I'm correct,

5

Q.

Did you do anything else other than --

6

out of -- she was office'd in Aurora. And Tony

6

other than you say you may have supplied some

7

Scott was another reporter that I talked with, and

7

newspaper articles and you spoke to Fox Moraine's

8

he, I believe, is with the Kendall County Reporter.

8

attorneys, did you do anything else to help Fox

9

Q.

Did you speak with any other reporters

9

Moraine prepare these interrogatory answers?

10

other than these two?

10

A.

Not that I recall.

11

A. I may have, but I don't recall their

11

Q.

All right. What do you understand the

12

names.

12

basis of Fox Moraine's appeal to be, by that I mean

13

Q.

Do you or does your business subscribe to

13

the landfill appeal?

14

the Beacon?

14

A. In -- in like a very general terms?

15

A. No.

15

Q.

Yes.

16

Q.

How about the Kendall County Reporter?

16

A. That the -- the hearing process was - the

17

A.

No.

17

decision makers were bias against the landfill, and

18

MR. MUELLER: Just so that the record is clear,

18

that the -- wasn't fundamentally fair in context of

19

it's actually the Kendall County Record.

19

SB

172,

which is the siting process.

?O

BY MR. DOMBROWSKI:

20

Q.

I'd like to ask you some questions about

21

Q.

Thank you.

11

that.

22

How did you come then to have some

22

Were there any landfill hearings,

?3

newspaper articles?

23

annexation hearings, any other hearings that

24

A. Shaw Environmental, Jesse Varsho, from

24

related to the landfill site or the landfill

26

28

7 (Pages 25 to 28)

McCORKLE COURT REPORTERS, INC.

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

---

1

application that you did not attend?

1

A.

Well, I believe that the responsibility

2

A.

There may have been one or two, but I

2

that the host municipality or authority is -

3

don't recall which ones those were. There may have

3

they're required to, per the act, do a

4

been a meeting that I missed because I was out of

4

fundamentally fair hearing, and I think that's

5

town on a different project.

5

the -- that's my interpretation of number one that

6

Q.

So it's fair to say that if you weren't at

6

you mentioned.

7

all of them, you were at 95 or 98 percent of them?

7

Q.

So how was the hearing not fair?

8

A.

I was --yes.

8

A.

I believe that some of -- a majority of

9

Q.

Let me refer you to Page 2 in the

9

the people that rendered the decision were -- were

10

interrogatories. And there are 12 items numbered 1

10

bias against the landfill application in general.

11

through 12 on that page. What I'd like to do is

11

Q.

Okay. Since this is a deposition, what

12

ask you what information or evidence or documents

12

I'd like to ask you about is any facts that you

13

or anything that Fox Moraine may have in support of

13

have to support this charge of bias, and I think

14

each of these items. All right. Are you with me?

14

you'll agree with me that saying someone is bias is

15

A.

I believe so.

15

a conclusion; would you agree with that?

16

Q.

By the way, have you been asked to testify

16

A.

I guess so.

17

at the hearing on this matter scheduled for

17

Q.

So what I'd like to ask you is what facts

18

October?

18

do you have to support that conclusion, and if you

19

A.

I'm not aware -- I -- I do not know.

19

would identify the council members that you think

~O

Q.

You have not been asked; correct?

20

were biased and, as I say, any facts in support of

~1

A.

I don't believe so.

21

the charge that they were biased?

~2

Q.

If asked to testify at that hearing, would

22

A.

I think that during the hearing process,

~3

your schedule or anything else prevent you from

23

Council Person Burd put on a -- a mayoral campaign

~4

doing so?

24

to be elected as the mayor, and I believe that some

29

31

1

A.

When is it set for?

1

of her comments in the newspaper included in the

2

Q.

It is scheduled for October 6th, 7th, and

2

attachment to these interrogatories suggest that

3

the 8th.

3

she was not -- and specifically she -- she states

4

A.

I'm not - I'm not sure. But I think I

4

that in the newspaper article that landfills aren't

5

have a business trip in New York maybe the 6th and

5

safe is the way I read the comment, and that was in

6

the 7th that's been scheduled, but I'm not - I'm

6

the middle of the hearings. That's one specific

7

not positive that that couldn't be moved should I

7

item.

8

need to, if I'm called as a witness on this.

8

I believe that other council people that

9

Other than business, no.

9

ultimately rendered the decision, Wally Wederich

10

Q.

All right. Let's look at the first item

10

was a pro Burd supporter. I think he was even

11

on this Page 2. And here Fox Moraine is saying

11

involved in her campaign. And then I think he

12

that the hearing on the application was not

12

ultimately ran for one of the council member's

13

conducted in accordance with Section 39.2 of the

13

seats. And I believe in the same article that

14

Illinois Environmental Protection Act, and that is

14

mentions the - in general, the candidates that are

15

the section that deals with landfill hearings;

15

running for reelection, how they feel about the

16

correct?

16

landfill and whether it's safe, that he believed

17

A.

I believe so.

17

that they weren't safe, either.

18

Q.

So for each of these items I'm going to

18

And I believe Joe Plocher, who Mayor Burd

19

ask you what information, evidence, documents or

19

supported in his reelection campaign, also made a

~O

anything that you or Fox Moraine have in support of

70

statement similar, too, that, you know, landfills

Q1

each of these allegations. Okay?

21

aren't safe.

22

A. Okay.

~2

And Robin Sutcliff, who ran in the

23

Q.

All right. What can you tell me about

~3

election and was also a decisionmaker at the end,

24

this Item No.1?

~4

was quoted as, you know, she felt that landfills

30

32

8 (Pages 29 to 32)

McCORKLE COURT REPORTERS, INC.

CHICAGO, ILLINOIS (312) 263-0052

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

---

1

weren't safe as well. So I believe that those

1

2

council people

who were ultimately elected in the

2

3

middle ofthe hearings ultimately

rendered a

3

4

decision at

the end and that they were elected on

4

5

an anti-landfill platform. And I believe that

5

6

Mayor

Burd, you know, knowingly had, you know, "no

6

7

landfill" signs

below her mayoral signs as you went

7

8

through town. It

was, the perception was that she

8

9

was against the landfill, and, you know, her -- her

9

10

responsibility as being one of the participants in

10

11

the SP

172

process, you know, she - she didn't do

11

12

anything to not take away from -- from that

12

13

perception as she would put out a mayoral sign and

13

14

a No Landfill sign goes below it, she didn't - she

14

15

didn't seem to mind that that was the case.

15

16

So I think that those particular people -

16

17

as well as -- more so not Rose Spears - during the

17

18

actual hearing process, but before the hearing

18

19

process, was -- was clearly bias and perhaps

19

20

intimidated by some of the public ongoings in

20

21

the -- in the, you know,

14

or

15

or

16

hearings

?1

22

relating to the annexation or informational

122

23

meetings and such where -- where, you know, she was 123

24

--

she was against the landfill as well.

124

33

1

Q.

All right. Let me ask you about your

1

2

statement that Burd

had landfill signs,

2

3

anti-landfill signs below or next

to her campaign

3

4

~~.

4

5

Are you saying Mayor Burd herself put

5

6

these signs next

to each other?

6

7

A.

I'm saying that I believe that I didn't

7

8

see them put the signs in the ground, whether whose

8

9

was there first, but

on several or, you know, quite

9

10

a.number of locations, they were together, so . . .

10

11

Q.

You're not saying Mayor Burd herself had

11

12

anything to do with that; correct?

12

13

A.

I'm saying that I'm not knowledgeable that

13

14

she had anything to do with putting them in

14

15

conjunction with each other, but I believe that her

15

16

responsibility in regard to this process, she -

16

17

she wasn't concerned about the perception that that

17

18

had.

18

19

Q.

And you say that helped render the process

19

bo

fundamentally unfair?

20

21

A.

I think it -- I think that she had an

11

22

anti-landfill platform in her mayoral campaign that

?2

?3

was supported by, in one instance, you know, the

23

?4

proximity of these signs together that I think that

24

34

she had a -- a bias that appeared in the middle

of - that's one instance, that was

in the middle

of the proceedings.

Q.

Are you saying Mayor Burd had a

responsibility

to drive around town and see what

signs,

if any, had been placed next to her campaign

signs?

MR. MUELLER: I'm going to object to that.

That calls for a legal conclusion.

And it is an

issue that the PCB has to address. That having

been said, Jim, you could answer

it, if you can.

THE WITNESS: Can you repeat the question?

MR. DOMBROWSKI: Read it back, please.

(Record read as requested.)

THE WITNESS: I think she did.

BY MR. DOMBROWSKI:

Q.

And why do you say that?

A.

It's a small community, Yorkville. There

is a lot of -- there was a lot of hearings prior to

the application, there was a lot of acrimony.

There was a lot of public citizens, people, you

know, saying

all kinds of, you know, things in

public, in public hearings, and that they -- they

were aware of their responsibilities

in -- in this

35

process in my opinion and she didn't have a - she

seemingly didn't have a concern that she was

related to a No-Landfill type of sign.

Q.

How often should she have driven around

town --

A. I don't know.

Q. --

to check the placement of the signs?

A. I don't know.

Q.

Well, you say she had a responsibility,

but you're saying you don't know how often she

should have exercised that responsibility?

A.

Correct.

Q.

And let's say she had driven around town

and saw an anti"landfili sign next to one of her

signs, what should she have done?

A. The landfill sign that I saw that had the

No Landfill underneath it, she could have easily

moved it a couple feet, and the perception would

have been different than it was as placed.

Q.

What if she were trespassing on someone's

property, should she still have done it?

A. I don't know.

Q.

Well, let's say the signs were on private

property, what's your position, should she have

36

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1

gone on the property and moved a sign or no?

2

A. I don't know.

3

Q.

How far should she have moved one sign

4

from the other?

5

MR. MUELLER: Leo, we're beating this to death.

6

What he thinks is not relevant in terms of what the

7

Pollution Control Board is going to think on this

8

issue.

9

MR. DOMBROWSKI: I'm almost done. Go ahead.

10

THE WITNESS: Repeat the question.

11

BY MR. DOMBROWSKI:

12

Q.

How far do you think she should have moved

13

one sign from the other?

14

A. I don't know.

15

Q.

Anything else that you would like to add

16

to this Item NO.1 on Page 2?

17

A. That's alii can think of at this time.

18

Q.

You say that Mayor Burd ran on an

19

anti-landfill platform; correct?

20

A. I didn't say landfill platform, but I

21

believe that she did.

22

Q.

And you mention the one statement in the

23

newspaper something to the effect that landfills

24

aren't safe.

37

1

ask you questions and get facts from you. Her

2

being quoted in a newspaper is a fact, whether she

3

was correctly quoted or not, but, as I say, I'd

4

like to go beyond your perceptions. Do you get me?

5

A. I can't recall anything at this time.

6

Q.

All right. So all you have is the one

7

statement by Mayor Burd in the newspaper; correct?

8

A. If you have a copy of those newspaper

9

clippings, I can look at that to refresh my memory.

10

Q.

Well, those say whatever they say. We

11

don't have to go through those. I'm asking you if

12

you know of anything other than what's in those

13

newspaper articles?

14

MR. MUELLER: All right. Now we're getting

15

someplace. Anything besides what's in the

16

newspaper articles that we've already produced.

17

MR. DOMBROWSKI: Correct.

18

THE WITNESS: Anything inside or outside?

19

MR. MUELLER: Anything outside that.

20

THE WITNESS: I'm trying to think at this

21

point. I can't think of anything.

22

MR. DOMBROWSKI: That's fine. You know of no

23

campaign literature, for example, that said, "I'm

24

opposed to the landfill."

39

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

What other statements, if any, did she

1

make that you would consider to be biased against

2

the landfill?

3

MR. MUELLER: That you can remember as you sit

4

here now.

5

MR. DOMBROWSKI: He's a big boy, George, he can

6

testify for himself.

7

MR. MUELLER: I think it's a pretty broad

8

question. He didn't memorize all of those

9

statements.

10

THE WITNESS: My comment is -- is general in

11

nature. I believe that -- I believe that through

12

the course of this -- this whole process, that she

13

was generally against the landfill, and that's --

14

that's -- that's my perception.

15

BY MR. DOMBROWSKI:

16

Q.

Well, I'd like to go beyond your

17

perception or belief or your feelings and ask you

18

if you have any facts in support of these

19

allegations. That's the point of this deposition.

20

I understand that it's your feeling, and

21

it's Fox Moraine's feeling and Charlie Murphy's

22

feelings that the process wasn't fair.

23

We're sitting here today so that I could

24

38

BY MR. DOMBROWSKI:

A. I'm not aware of that. I'm aware of that

Wally Wederich was involved in her campaign, and he

was a vocal opponent of the landfill, and I thought

it -- it, to me, made sense that she was

surrounding herself with people that were against

the landfill.

Q.

Other than the one statement that you

mentioned of Mr. Wederich and other statements that

might be in the articles you've given us, do you

know of anything that Mr. Wederich said that was

anti-landfill?

A. I can't recall.

Q.

And, again, not only as to Mayor Burd and

Alderman Wederich, but as to anyone either on the

city council before the elections of April 17th or

who was running for a spot, you know of no one who

had any campaign literature that proclaimed an

anti-landfill position; correct?

A. I did not see any physically myself.

MR. DOMBROWSKI: All right. We've been going a

little over an hour. Why don't we take a

five-minute break.

MR. MUELLER: How much more do you think you

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BY MR. DOMBROWSKI:

Q.

Well, I don't think it is. I mean, he

said he thought it was a summary denial.

So my question is: Is this what you would

consider to be a summary denial?

A. My -- my comment on summary denial was

that I don't recall them going through each

individual criterion and discussing them, the

merits of why they felt the applicant did or did

not meet that criteria.

Q.

Anything else in support of

NO.2

here?

A. Well, I believe that some of the council

people, you know, basically did not take into

account or had, you know, reservations about not

being able to review some of the work product from

the hearing officer and or the attorney

representing

the staff. And I thought that their

recommendations'

as being professionals was

important to the process. And some of them said

that they didn't have the time or they did not

review it.

it not?

MR. MUELLER: That's asking him to draw a legal

conclusion.

1

have?

1

2

MR. DOMBROWSKI: I guess that all depends on

2

3

how much Jim has. An hour maybe.

3

4

MR. MUELLER: I think your question is does he

4

.5

know anything other than what's in our discovery

5

6

responses,

the answer is going to be no.

6

7

MR. DOMBROWSKI: That would make it quick then.

7

8

MR. MUELLER: In a hurry then.

8

9

(Discussion off the record.)

9

10

MR. DOMBROWSKI: Let's go back on.

10

11

BY MR. DOMBROWSKI:

11

12

Q.

Mr. Burnham, as we go through the

12

13

remainder of my questions here, you can exclude any

13

14

statements that are made in the newspaper articles

14

15

you've given us, so we don't have to retread that

15

16

ground. Okay?

16

17

A. Okay.

17

18

Q.

So when I ask you what information or

18

19

evidence, et cetera, that you have in support of

19

20

one of these allegations, you can tell me if

20

21

there's anything that - that is not in the

121

22

newspaper articles. Okay?

122

23

A. Okay.

23

24

Q.

All right. Let's go on to 2, which is

124

41

(

~

I

I

I~

I

~

~

43.\

1---------------1-----------------4

1

1

that the vote taken by the city council was not

1

2

taken in accordance with Section 39.2.

2

3

What is Fox Moraine's basis for that

3

4

statement?

4

5

A. I believe that the official action was a

5

6

denial

of sorts. And I was under the impression or

6

7

I believe they need to go through each individual

7

8

criterion to say why the applicant proved or did

8

9

not prove that it satisfied that criteria. And, to

9

10

my recollection, they didn't do that. They just

10

11

summarily denied the application.

11

12

Q.

Let me refer you to Exhibit No.2, and

12

13

attached to that exhibit is the City Council's

13

14

resolution of May 24, 2007. Do you see that?

14

15

A. Isitthisone?

15

6

Q.

Yes.

16

17

A. Okay.

17

18

Q.

And on Page 2, Paragraph 2, if you would

18

~

9

turn to that, please.

19

~O

Do you see that the city council voted

20

~1

that certain criteria, I. believe six or seven

21 .

~2

criteria had not been met; do you see that?

22

~.

A.

~L

n

~4

Q.

That's different from a summary denial; is

24

42

Q. Anything else in support of this NO.2?

A. Not that

I can think of at the moment.

Q.

Let's go on to No.3. The allegation here

is that the city council failed to comply with its

siting ordinance, and that this failure rendered

the proceedings unfair.

What does Fox Moraine have to support that

allegation?

A. Well,

I believe that the -- that the

siting ordinance, that the Yorkville siting

ordinance, the framework for that siting ordinance

is to demonstrate compliance with, you know, the

Section 39.2, and I believe the obligation is

to

render a fundamentally fair hearing, and, in not

doing so,

I believe that that's the basis for

NO.3.

Q.

When you say in not doing so, what are you

referring to?

A. In - in my belief that the city council

people were bias against the project.

Q.

Well, again, I'm asking you for facts that

support that allegation.

A. Outside of what we've offered, I do not -

I don't have anything.

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1

Q.

Had the city council voted in favor of the

1

procedures used by the city council and that

2

application,

would that have meant that the hearing

2

those -- excuse me -- the proceedings, the

3

process was fundamentally fair?

3

post-hearing proceedings employed by the city

4

MR. MUELLER: That calls for him to speculate

4

council in their deliberations were not

5

on a fact not in evidence.

5

fundamentally fair.

6

MR. DOMBROWSKI: That's okay. You can answer.

6

What does Fox Moraine have in support

of

7

THE WITNESS: Well, I'm not going to speculate

7

that allegation?

8

on that.

8

A. I stated earlier that I don't think

9

BY MR. DOMBROWSKI:

9

that - that they -- some of the council people

10

Q.

Well, in your last answer, I thought you

10

reviewed the hearing officer's recommendation for

11

were saying that the fact that they voted against

11

the staff recommendation, and I thought that those

12

the recommendations of the hearing officer rendered

12

were valuable to the process.

13

the process unfair; is that correct?

13

Q.

Anything other than that?

14

A. I don'tthink I said that.

14

A. No.

15

Q.

Did the -- did the fact that the council

15

Q.

NO.6 says that the decision-making

16

voted against the hearing officer's recommendations

16

procedures used by the city council were not

17

make the process unfair?

17

fundamentally fair.

18

MR. MUELLER: That calls for a legal

18

What does Fox Moraine have

in support of

19

conclusion.

19

that allegation?

20

MR. DOMBROWSKI: I don't think

50.

20

MR. MUELLER: That's unique to that allegation

21

MR. MUELLER: Well, we're certainly going to

21

as opposed to that would be the same as the answers

22

argue that it did, legally.

22

to the previous allegations?

23

MR. DOMBROWSKI: You can go ahead and answer.

23

MR. DOMBROWSKI: Well, these are your

24

THE WITNESS: I stated, I believe, that they

24

interrogatory answers.

45

47

1

did

not incorporate their recommendations into

1

MR. MUELLER:

I understand, Leo, but, you know,

2

their decision process. Not that they voted

2

there's still some overlap here, and then some of

3

against it, the recommendation.

3

them you're rephrasing stUff.

4

BY MR. DOMBROWSKI:

4

MR. DOMBROWSKI: I understand. If he's got

5

Q.

And you're saying they should have

5

nothing new, he's got nothing new.

6

incorporated those recommendatic:ms into the

6

MR. MUELLER: Okay. That makes it simple for

7

process; correct?

7

you, Jim.

8

A.

I believe

they should have reviewed them,

8

THE WITNESS:

I don't have anything new to talk

9

yes.

9

about.

10

Q.

And if they reviewed them, would you say

10

BY MR. DOMBROWSKI:

11

that their vote was taken then in accordance with

11

Q.

No.7 charges that various members of the

12

39.2 and with

their siting ordinance?

12

city council were biased against Fox Moraine.

13

A. I'm

not going to speculate as to what they

13

What have you got in support -- or what

14

would have done

if they would have reviewed them.

14

does Fox Moraine have in support

of that

15

Q.

Anything else in support of this No.3?

15

allegation?

16

A. No. Not at this time.

16

A. In addition to what we've already offered?

17

Q.

Let's move on to No.4. That the hearing

17

Q.

Yes.

18

procedures and overall site location procedures

18

A. I don't have anything.

19

used by

the city council were not fundamentally

19

Q.

How about No.8, various members of the

='0

fair. What has Fox Moraine got in support of that

20

city council prejudged the merits of the

='1

allegation?

21

application.

22

A. Outside of what we've Offered, I don't

22

What does Fox Moraine have to support that

='3

have anything else outside of that.

23

allegation?

~4

Q.

NO.5 talks about the post-hearing

24

A. I think it's -- it's relatively the same

46

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1

as

what I previously said, so nothing.

1

You know, in general,

as I sat through

2

Q.

Nothing new to offer on that one; correct?

2

these, these hearings, it just seemed to me that

3

A.

Correct.

3

there was a lot more discussion amongst people.

I

4

Q.

9 says that various members of the city

4

think Fox Moraine we pretty much kept to ourselves

5

council tainted the collective decision-making

5

in regard to communicating with the city council

6

process

of the council as a whole.

6

people, but there was times when presentations were

7

What does Fox Moraine have to support that

7

made, and then right after the presentation, the

8

allegation?

8

opposition group or something would

be interfacing

9

A.

Nothing more than we've already offered,

9

with the city council.

10

that I've already offered.

10

So, specifically, do I recall those exact

11

Q.

And 10 says that various members of the

11

instances, no, but, in general, I felt that there

12

city council had disqualifying conflicts

of

12

was a lot of -- there was interaction amongst

13

interest.

13

people that didn't make sense to

me.

14

First off, can you explain to me what that

14

Q.

Anything else in support of this No. 11?

15

means?

15

A. No.

16

A. In what context? Can you-

16

Q.

All right. Let me ask you a couple things

17

Q.

Well, in the context of this landfill

17

about the various things you've mentioned here.

18

appeal.

18

You say, for example, that Jason Leslie

19

A. I don't know at this moment.

19

was

on his computer a lot; correct?

20

Q.

Okay. What does Fox Moraine have to

20

A. Correct.

?1

support the allegation here, NO.1

O.

21

Q.

Though you have no idea what he was doing

22

A.

Nothing beyond

what we've said.

22

on his computer?

?3

Q.

No. 11 says that the ultimate action,

23

A. I didn't know why he wouldn't have

24

meaning the vote, taken by the city council on the

24

otherwise been listening and paying attention to

49

51

1

application was not based upon the evidence and was

1

the proceedings instead

of working on his computer.

2

based,

in material part, upon matters outside the

2

Q.

Might he have been doing both?

3

record. What does Fox Moraine have to support

3

A. I could speculate, yes.

4

that?

4

Q.

But, again, you have no idea what he was

5

A.

In some cases, some of the city council

5

doing

on his computer; correct?

6

people, specifically Rose Spears, I believe, was

6

A. I did not ask him, no.

7

doing research

on their own, which is evidence that

7

Q.

And not only did you not ask him, you have

8

is outside

of the record.

8

no other means

of knowing what he was doing on his

9

I remember the -- Marty Munns having a

9

computer; right?

10

newspaper, or not a newspaper but a magazine

10

A. Correct.

11

article in regard to gasification, and I think. it

11

Q.

You say Mr. Munns read or at least had in

12

was on the same day or near to the day that

12

front

of him an article on gasification; correct?

13

somebody gave a presentation on gasification as

an

13

A. Correct.

14

alternative disposal methodology such that, in

14

Q.

And you said someone may have given to

15

general, you know, I felt that somebody may have

15

him. Any idea who may have given to him?

16

given it to him, you know, and there was, during

16

A. I can't remember the gal's name, but she

17

the process, during the hearings, there was

17

was a supporter of gasification as an alternative

18

various, I think specifically Jason Leslie was

on

18

disposal methodology.

19

his computer a lot, and, you know, it was -- it

19

I thought, as I mentioned before, that I

20

was -- I didn't understand exactly what he was

20

don't know where he got the article or where he got

21

doing on his computer, and if that was something

21

the magazine, but it seemed odd that it was at the

22

that was adding information to him that was

22

same time that or in close proximity to the time

23

material outside

of the -- outside of the evidence

23

that she gave a presentation.

24

in the process.

24

Q.

How do you know he had this article?

50

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1

A.

I believe it was a Popular Mechanics

1

wasn't -- didn't seem to make sense that she would

2

article or the magazine, and that was on his pile

2

have learned that outside

of the hearing process.

3

of stuff at his place where he sat during the

3

Q.

For example?

4

hearing.

4

A.

She spoke to types of grasses that are

5

Q.

Was it the entire magazine?

5

used on existing landfills. I specifically recall

6

A.

It was.

6

that, because

I. thought that that was unusual that

7

Q.

Was it open to a certain page or was it

7

she would even know it, and that those grasses were

8

closed?

8

apparently being used at the Settler's Hill

9

A.

It was just the entire magazine when I --

9

Landfill. I just thought that that was just

10

when I saw it.

10

outside

of common knowledge in her day-to-day job

11

Q.

How did you know that that issue contained

11

or - and it wasn't anything that we had introduced

12

an article on gasification?

12

into the application, I don't believe.

13

A.

Because somebody had given it to me

13

Q.

All right. So as far as specific things

14

that - somebody had given me a PopUlar Mechanics

14

go, you think or you believe that she may have. done

15

magazine that had that article in it.

15

independent research

on a certain type cover, is

16

Q.

Who gave you that issue?

16

that it, that's used at landfills?

17

A. I believe it was a friend. It was

17

A.

Vegetative cover.

18

completely outside

of these proceedings.

18

Q.

But you don't know this for a fact, you

19

Q.

So by chance you happened to have the same

19

are surmising this based on questions she asked at

20

issue that Mr. Munns had?

20

the landfill hearing; correct?

21

A. Correct.

21

A.

Correct.

22

Q.

Do you know whether he read the article on

22

Q.

And as far as anything she may have done

23

gasification?

23

before the application was filed, you have no facts

24

A.

I did not ask him.

24

as to research she did at that point; correct?

53

55

1

Q.

All right. That's the only thing as to

1

A.

I do not have facts.

2

Mr. Munns; correct?

2

Q.

It is all conjecture on your part;

3

A. I'm sorry?

3

correct?

4

Q.

That's the only thing as to Mr. Munns

4

A.

I believe in one instance that she was

5

that's relevant to Issue 11; correct?

5

given some information from Michael Blazer in

6

A.

That I recall, yes.

6

regard to Glenn Sechen and Charlie Murphy's work

7

Q.

And you mentioned Alderman Spears, but you

7

experience, and I believe she said that she came

8

didn't say anything about her -- well, you did say

8

across that on the Internet, and I found that hard

9

you thought that she had done some

of her own

9

to believe. And it made more sense to me that

10

research and accessed or read things outside

of the

10

somebody gave her that information. So

ifthat's

11

records; correct?

11

conjecture, then, so be it.

12

A. Yes.

12

Q.

And so the record is clear, Mr. Sechen had

13

Q.

And what did she do?

13

been proposed to be the landfill hearing officer;

14

A.

My general impression is that during the

14

right?

15

hearings and city council meetings that I sat in,

15

A.

Correct.

16

prior to the application being filed, she was, you

16

Q.

And then it came out that he, Mr. Sechen,

17

know, touted herself as looking at all the detail

17

had had business dealings with Charlie Murphy;

18

and doing her own research and being very diligent

18

correct?

19

about understanding the entire issue at hand. And

19

A.

Correct.

20

I believe that she was -- acted

in a similar

20

Q.

And the city council found that to be a

21

fashion during the application in the hearing

~1

disqualifying conflict of interests; correct?

22

process, and I thought that some

of the questions

~2

A.

I believe so.

23

that she asked some

of the expert witnesses were --

123

Q.

Now, how do you know she was given

24

were -- wasn't even remotely common knowledge and

~4

information about Mr. Sechen by Michael Blazer?

54

56

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1

A. Because Michael Blazer and Valerie -- or

1

Q.

Have you any idea what they spoke about?

2

Rose Spears, you know, they openly admit that they

2

A.

No. But, in general, when, you know, you

3

were talking to him, and he was involved in the

3

see the same people talking time after time, my --

4

same case with Charlie, Glen Sechen, such that I

4

my common sense tells me that it's not about the

5

thought that that was a logical conduit of that

5

weather.

6

information as opposed to a search on the Internet.

6

Q.

And you're saying they were -- there were

7

Q.

Well, if Mr. Sechen had a conflict of

7

nefarious conversations about the landfill

8

interest, wasn't it fair for the city counsel to

8

application?

9

say he shouldn't be the hearing officer?

9

A. I'm not speculating exactly what those

10

A. But I think that that conflict of interest

10

conversations were, but I found that the extended

11

was determined before he even was interviewed for

11

conversations were unusual.

12

it such that he wasn't even asked.

12

Q.

Anything else about those conversations?

13

Q.

Well, let me ask my question again.

13

A. No.

14

If the city council thought that there was

14

Q.

Let's move on to Item

12,

which is that

15

a conflict of interests between Mr. Sechen and Mr.

15

members of the city council engaged in prejudicial

16

Murphy, wasn't it fair for them to vote that

16

ex parte contacts with other participants in the

17

Mr. Sechen shouldn't be the hearing officer?

17

hearing process.

18

A. Well, I guess the question was in relation

18

What does Fox Moraine have in support of

19

to Rose Spears doing research on her own.

19

that allegation?

~O

Q.

Right. Now I've asked another question.

120

A.

Nothing beyond what I've just previously

b1

A. And so what's your question again.

~1

said.

~2

MR. DOMBROWSKI: Read it back if you would,

122

Q.

Did Fox Moraine at any time -- and by that

b3

please.

~3

I mean before the landfill application was filed or

~4

(Record read as requested.)

124

after the landfill application was filed -- express

57

59

1

THE WITNESS: Well, if there was a conflict of

1

its opinion or displeasure or whatever to the city

2

interest, I guess so, but was that a conflict of

2

council that the hearing process was unfair or that

3

interest? I don't know.

3

certain members were biased or that someone had

4

BY MR. DOMBROWSKI:

4

pre-judged the application or that something should

5

Q.

Anything else regarding Alderman Spears

5

be done to change the process to make it fair to

6

doing or allegedly doing independent research other

6

Fox Moraine?

7

than the vegetative cover and the hearing

7

A. Preceding, the time before the application

8

officer -- or the proposed hearing officer? Excuse

8

was filed, Fox Moraine did not attempt to cause

9

me.

9

more of a -- of an uproar than was already going

10

A. No.

10

on. So as far as that time frame, Fox Moraine did

11

Q.

Now, regarding this Item

11,

you also

11

not.

12

mention that members of opposition groups

12

Q.

All right. Well, let's -- let me stop you

13

interfaced with the city council at the landfill

13

there, and then we'll move on to after the

14

hearings. What do you mean by that?

14

application was filed.

15

A. I mean that at various times throughout

15

But you say that Fox Moraine didn't want

16

the hearing, the opposition groups during breaks or

16

to do anything to cause more of an uproar; is that

17

afterwards would be in extended conversations with

17

what you said?

18

various people of the city council, specifically

18

A. Correct.

19

Valerie Burd or Rose Spears, and I thought that

19

Q.

What do you mean by that?

bo

those -- those conversations were unusual.

~o

A. I mean that in theory we had as much - we

~1

Q.

How were they unusual?

121

could have made public comments during the public

~2

A. Typically, the opposition group people

~2

comment period as well. And we felt that -- that

b3

don't get an audience with people that are making a

~3

the whole process that City of -- or that Yorkville

?4

decision in the process.

~4

had let go on, we would not be adding to that by

58

60

15 (Pages 57 to 60)

McCORKLE COURT REPORTERS, INC.

CHICAGO, ILLINOIS (312) 263-0052

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

---

1

being confrontational during those -- during those

1

offered regarding the property protection plan if

t

.1

}!

2

hearings.

2

the application had not yet been filed by the time

3

Q.

Well, you could have gotten up at those

3

this meeting was held?

I

m

4

hearings and said something nonconfrontational;

4

A.

Because it was contained within the host

:)l

lj

5

correct?

5

agreement.

;

6

A. Such as?

6

Q.

And did you say something to the effect

1

~

7

Q.

Well, couldn't you have gotten up and said

7

that this should allay people's concerns about

•

8

to the city council, "I'm Jim Burnham, I'm here on

8

property values?

il

9

behalf of Fox Moraine, this is what I perceive to

9

A. Yes.

i

10

have taken place at these hearings, I ask that the

10

Q.

What did you say about the groundwater

;

12

11

city

A.

councilI

believedo

X

in

tosomeremedycircumstancesthat"?

or some of

11

12

issue?

A. That it should also be a -- encompass more

.

~

"

t.

13

the hearings, some brief statements were made, but

13

of the people that felt that they were going to be

I

14

I don't recall exactly the context of those brief

14

affected by - potentially affected by the

J

15

statements.

15

landfill.

I

')

~

16

Q.

Who made those statements?

16

Q.

And one purpose of these statements that

~1

~

~i

17

A. I believe I made -- made one of them

17

you made was to show the people of the City of

;>;

'l

18

during an informational hearing in regard to the

18

Yorkville that Fox Moraine was presenting what it

~l

:8;:;

19

property protection plan as well as the groundwater

19

thought to be an application that had merit;

.~

~

20

protection plan.

20

correct?

~

~

21

Q.

Who else made statements?

21

A. I don't think it was - that's a -- I

~.

1

22

A. I believe George Mueller at times made

22

guess I don't understand your statement.

i

2423

well,statementswho is

and

an attorneyPhillipchuckfor FoxmadeMoraine.some

statements as

23

24

making

Q.

Well,or

notwhenmakingI

askedpublicyoucommentabout Foxon Morainethe

fairness

I

~

~

61

63

,

J

~

1

Q.

All right. The informational meeting that

1

or unfaimess of the process, I believe you first

1

~

2

you just referenced, that was a meeting before the

2

said that Fox Moraine could have made public

1

3

application was filed; right?

3

comment, but it didn't; correct?

4

A. Correct.

4

A.

We chose not to in some - in - correct.

I

5

Q.

And that meeting was where?

Here at

5

Q.

But now you're saying Fox Moraine did make

'1

6

Yorkville City Hall?

6

some comments; correct?

H

0

7

A. No. It was at the high school.

7

A. Yes.

&

Jf

8

Q.

And that was a meeting to inform the

8

Q.

And the point of the comments was to -- am

~

~

9

public regarding the upcoming landfill hearings?

9

I correct, to tone down what you perceived as the

I

~

10

A. Yes.

10

hostility of the process?

ti

]

11

Q.

And what's -- you say you made a statement

11

MR. MUELLER: I don't think he ever testified

,1

,~

"

12

about the property protection plan and something

12

to that.

~~

;1

3

about the groundwater; right?

13

BY MR. DOMBROWSKI:

i.

.~

14

A. Correct.

14

Q.

You can answer. Go ahead.

"

1:

t~

15

Q.

What did you say?

15

A. I think there was some criticism that Fox

~

6

A. I believe we made a decision that we were

16

Moraine was receiving, and we felt that we would

~

"

7

going to propose an adjustment to the existing

17

present a broader coverage for some of the

18

property protection plan and a groundwater

18

environmental issues in regard to protection for

19

protection plan. That would be an expansion of

1,9

ground water and as far as the property protection

~O

what was previously offered.

~O

plan.

~1

Q.

And this property protection plan was part

~1

Q.

And these statements by you on behalf of

~2

of the application; correct?

~2

Fox Moraine at the meeting, that was to counter the

~3

A. II was contained within the application.

~3

criticism that you thought the public had been

~4

Q.

How did people know what had already been

24

leveling at Fox Moraine; correct?

62

64

16 (Pages 61 to 64)

McCORKLE COURT REPORTERS, INC.

CHICAGO, ILLINOIS (312) 263-0052

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

---

1

A. Correct.

1

MR. DOMBROWSKI: Why don't we take a short

2

Q.

Okay. Anything else regarding the

2

break. Let's go off the record.

3

statements you made pre-application?

3

(Discussion off the record.)

4

A. No.

4

MR. DOMBROWSKI: All right. Let's go back on.

5

Q.

What statements did Mr. Mueller make

5

Couple things to finish up, Mr. Burnham.

6

pre-application?

6

BY MR. DOMBROWSKI:

7

A.

There was various circumstances where we

7

Q.

Have you ever talked to any city council

8

made some statements, but they -- it was really --

8

members regarding the landfill application?

9

I don't know how to describe it. It wasn't a

9

A.

Yes.

10

statement, a public statement as in regard to the

10

Q.

Who?

11

fundamental fairness, but I was just saying that

11

A. Let me rephrase that. The landfill

12

from time to time during 15 odd hearings before the

12

application that was filed or about a landfill

13

application, we did make some statements. I don't

13

application?

14

recall the specific context of those statements.

14

Q.

About a landfill application.

15

Q.

Well, did they have to do with the

15

A.

All of them. I've talked with all of them

16

fairness or unfairness of the proceedings?

16

about the landfill application.

17

A. I don't recall. I don't believe so.

17

Q.

When did you speak to them about the

18

Q.

How about Mr. Phillipchuck, what did he

18

landfill application?

19

say?

19

A.

Initially in August of 2006.

~O

A. He made various comments, but, you know, I

120

Q.

And you spoke to all eight sitting council

1?1

don't recall the specific - I know that he made

~1

members plus the mayor?

~2

some comments, but I don't recall the specific

122

A.

Yes.

1?3

context of those comments.

~3

Q.

And where did these meetings take place?

~4

Q.

But, in sum, is it fair to say that,

Q4

A.

At Yorkville City Hall.

65

67

1

pre-application, members of the public had

1

Q.

Was Mr. Charlie Murphy with you?

2

opportunity to make comment as well as Fox Moraine;

2

A. Yes.

3

correct?

3

Q.

Anyone else with you on behalf of Fox

4

A. Yes.

4

Moraine?

5

Q.

All right. Let's go to the period

5

A.

Not that -- no.

6

following the filing of the application. You've

6

Q.

Was this one meeting?

7

talked about different things that you and Fox

7

A.

In regard to the council people, men and

8

Moraine believe rendered the process unfair. So

8

women, yes.

9

during the period from December 1, 2006 when the

9

Q.

So you spoke to all eight council people

10

application is filed up through the end of May 2007

10

at one meeting?

11

when the city council takes its vote, did Fox

11

A. No.

12

Moraine do anything to complain about or register

12

Q.

All right.

13

its displeasure as to what it perceived to be an

13

A. You asked if I -- if it was just once.

14

unfair process?

14

Q.

No. I said was it one meeting.

15

A.

J

think we took -- I think we filed a

15

A.

One meeting, for -- we met with Charlie

16

motion with the hearing officer to have Valerie

16

Murphy, and I met with I think it was Joe Besco and

17

Burd and Rose Spears not in the process.

17

Rose Spears together. We met with each council

18

Q.

Did Fox Moraine do anything other than

18

person with -- by ward; so, in other words, I can't

19

filing this motion to disqualify Burd and Spears?

19

remember who is in which ward, except for I think

20

A.

Not that I recall.

20

Marty Munns we met individually, and Jim Bock we

21

Q.

And had Fox Moraine wanted to, it could

21

met individually. Meaning that we met with Rose

22

have moved to disqualify aldermen other than these

22

Spears and Joe Besco together and Dean Wolfer and

23

two; correct?

23

Valerie Burd, I believe, together and Jason Leslie

24

A.

I would guess so.

24

and Paul James together, I believe.

.,

66

68

17 (Pages 65 to 68)

McCORKLE COURT REPORTERS, INC.

CHICAGO, ILLINOIS (312) 263-0052

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

---

1

Q.

And you also met with the mayor?

1

individually by ward was a prudent thing to do. We

I

2

A.

I have met with the mayor.

2

didn't - we didn't - we thought it would be

~

3

Q.

When did you meet with him?

3

better on an individual or by-ward basis as opposed

i

"i

1

4

A.

I don't recall a specific time that I met

4

to everybody at all once.

j

);

5

with him.

5

Q.

Well, had you met with them in more than

6

Q.

How many times did you meet with him

6

groups of two, you would have violated the Open

i

J

7

regarding the application or the application that

7

Meetings Act; correct?

~

~

1

8

was going to be filed for the proposed landfill?

8

A.

I - I guess so, yes. Is the Open

"

9

A.

Probably three times.

9

Meetings Act -- what is the Open Meetings Act,

~

10

Q.

And when did these meetings take place,

10

exactly?

11

approximately?

11

Q.

Well, I'm asking you.

12

A.

I believe there was a meeting in maybe

12

MR. MUELLER: Apparently, he doesn't know.

13

March of

2006,

I belieVe there was a meeting in

13

MR. DOMBROWSKI: He answered yes. That's good

,

1

Q;

14

maybe June or JUly of

2006,

and then a meeting

14

enough.

~

•

1615

probably

Q.

Why

in earlierdid

youAugustmeet with

2006.

these elected

16

15

BY

Q.

MR.

WhatDOMBROWSKI:

did you tell the members of the city

I

m

17

officials in groups of two or indiVidually?

17

council?

1:

~

18

A.

There was a lot of misinformation being in

18

A. We described the -- the SB

172

process in

~

~

~9

the press or we thought it would be wise to give

19

general. And that the burden of proof that the

I

~O

the council people by ward, you know, an overview

20

application, the burden of proof that the

~

~1

of what Fox Moraine was proposing.

21

application or the site was suitable in accordance

I

~.

~2

~

Q.

You say there was a lot of misinformation

22

with the criteria was that of the proposer, being

,

~

~3

in the press. What do you mean?

23

Fox Moraine, and that a - an application would be

>

~

~4

A. Kendall County had been going through a,

24

most likely forthcoming.

;

;~

69

71

~i

t

~

~

1

you know, a process by which they basically changed

1

Q.

And you told them how to vote; right?

I

2

their solid waste management plans so as to allow

2

A. No.

i

~

,

3

. landfills, and there was information in regard to

3

Q.

After these meetings, did you call up any

~

4

companies that were interested in coming to Kendall

4

of these people on the phone?

~

5

County to propose a landfill, and Fox Moraine was

5

A. I did not.

~

~

,

6

one of them. And there was various articles in the

6

Q.

Once the application had been filed, did

j

;;

7

newspaper about landfills, Kendall County, you

7

you talk to any city council members or the mayor?

~~

@

8

know, informational type of -- informational type

8

A.

Other than "hello," and just being --

9

of articles.

9

being a normal person saying hello, no.

I

10

Q.

So am I right you met with these people to

10

Q.

Anyone else assocIated with Fox Moraine

I

'f

11

counter this misinformation in the press; correct?

11

talk to the city council members or the mayor after

:;

12

A.

We met with these people to just tell

12

the application had been filed?

;j

m

13

them, you know, explain to them what our landfill

13

A. I'm not aware of what everybody did or

~

14

project was looking like at the time and that we

14

didn't do.

I

i

15

were going to go forward with filing an application

15

Q.

Did you have any involvement in putting

1

i

~

16

at some point and we wanted to make sure that they

16

together Fox Moraine's.post-hearing comments?

~

17

heard it from us.

17

A. As submitted by Shaw?

~

~

18

Q.

So you saw this as your opportunity to

18

Q.

Correct.

~

i

19

inform the city council members and the mayor as to

19

A. I reviewed them, but I didn't assemble the

a

~o

what you would be proposing; right?

20

documents or add documents to be put into it.

~

~

121

~2

A.

Q.

Basically.Why

didn't you meet with them in groups of

'1

22

of the

Q.

post-hearingWhy

were thosecommentsubmittedperiod?on the last day

I

ct

1

~3

three or four or all of them together?

23

A.

I believe that's when they were ready.

124

A. We fell that just that meeting them

'4

Q.

Could Fox Moraine have submitted them

I

70

72

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18 (Pages 69 to 72)

McCORKLE COURT REPORTERS, INC.

CHICAGO, ILLINOIS (312) 263-0052

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

---

1

before that?

1

2

A. I-- I do not know.

2

3

Q. Couple questions regarding the landfill

3

4

hearings.

4

5

Fox Moraine isn't claiming that it was

5

6

shortchanged

on time at the hearings; is it?

6

7

A. In what regard?

7

8

Q. Well, Fox Moraine had opportunity to put

8

9

on all its witnesses; correct?

9

10

A. Yes.

10

11

Q. And Fox Moraine had opportunity to submit

11

12

all the exhibits and materials in support of its

12

13

application; correct?

13

14

A. Yes.

14

15

Q.And Fox Moraine is not claiming that it

15

16

was somehow prevented or didn't have enough time at

16

17

the hearing to do what it wanted; correct?

17

18

A. Not to my knowledge.

18

19

Q. DoyouknowwhethertheCityofYorkville

19

20

had a Web page that it maintained throughout the

20

21

landfill hearing process?

21

22

A. I believe it did.

22

23

Q. Were things such as landfill hearing

23

24

transcripts and the application and other exhibits

24

73

understand that?

A. Yes.

Q. So my question is -- I don't want to be

blind-sided at the hearing,.so is there any reason

why you would be offering something additional at

the hearing that you didn't say today?

A. I couldn't think of anything. The only

thing that I would is that if I'm required to read

this transcript, it might refresh my memory on

something, but I can't imagine it's substantive to

the point that you feel you're blind-sided.

MR. DOMBROWSKI: Okay. Fair enough. I have no

further questions.

MR. MUELLER: We'll reserve signature.

FURTHER DEPONENT SAITH NAUGHT.

75

1

2

3

4

5

6

7

8

9

o

1

2

3

4

~5

~6

~7

~8

~9

~O

~1

~2

~3

~4

posted to that Web page?

A.

I believe so.

Q.

Did you, yourself, at any time access that

Web page during the hearing process?

A.

I may have once or twice.

Q. And why did you do that?

A.

I believe I checked one of the transcripts

of the real estate appraiser, Harrison.

Q. And is it your recollection that the City

of Yorkville would post, for example, hearing

transcripts to its

Web page within a couple days

after that hearing had concluded?

A.

I don't recall what the schedule of having

information posted was, but

I thought it was, in

general, relatively quickly.

Q.

Mr. Burnham, if you are called as a

witness

at the hearing on this matter, can you

think

of any reason why your testimony at that

hearing would be different from

your testimony

today?

A. In

what regard?

Q.

Well, I have tried to ask you questions to

elicit all the information you have

or Fox Moraine

has in support

of its petition for review; do you

74

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

BEFORE THE

ILLINOIS POLLUTION CONTROL BOARD

FOX MORAINE, LLC,

)

Petitioner,

)

vs.

) No. PCB 07 146

UNITED CITY OF YORKVILLE, CITY )

COUNCIL,

)

Resporident.

)

This is to certify that I have read the

.transcript

of my deposition taken in the

above-entitled cause by Jennifer Campbell,

Certified Shorthand Reporter,

on the 12th day of

September, 2008, and that the foregoing transcript

accurately states the questions asked and the

answers given by

me as they now appear.

JAMES

D. BURNHAM

SUBSCRIBED AND SWORN TO

before me this

day

of

2008.

Notary Public

76

19 (Pages 73 to 76)

McCORKLE COURT REPORTERS, INC.

CHICAGO, ILLINOIS (312) 263-0052

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

---

STATE OF ILLINOIS

MC CORKLE COURT REPORTERS, INC.

200 North LaSalle Street

2

) SS:

2

Su~e

300

3

COUNTY OF KENDALL )

Chicago, Illinois

60601

3

4

I, JENNIFER CAMPBELL, a notary public within

September 17, 2008

4

5

and

for the County of Kendall and State of

5

Mueller Anderson

PC

Mr. George Mueller

6

Illinois,

do hereby certify that heretofore,

6

609 Etna Road

7

to-wit, on

the 12th d.ay of September, 2008,

Ottawa, Illinois 61350

7

IN RE: Fox Moraine vs.

Un~ed C~y

of Yorkville

8

personally appeared before me,

at 800 Game Farm

8

Dear

Mr. Mueller:

9

Enclosed

is your copy of the

depos~ion

of JAMES D.

9

Road, Yorkville, Illinois, JAMES D. BURNHAM, in a

BURNHAM taken

on 9-12-08, in the above-entnled

10

action. Also enclosed are

add~ional

signature

10

cause

now pending and undetermined before the

pages and errata sheets. Please note that

11

signature was not waived.

11

Pollution Control Board wherein FOX MORAINE, LLC is

12

Please

subm~

the transcript to the deponent for

12

the Petitioner, and

UNITED CITY OF YORKVILLE, CITY

review and signature. The errata sheets have been

13

provided for

any

changes or corrections the

13

COUNCIL is the Respondent.

deponent wishes to make. All changes or

14

corrections must be made on the errata sheets, not

14

I further certify that the said witness was

on the transcript

~self.

Then have the deponent

15

sign all signature pages and have the signature

15

first duly sworn

to testify the truth, the whole

notarized. All errata sheets should also be

16

truth and nothing but the truth in the cause

16

signed.

17

After the deponent has completed the above, please

17

aforesaid; that the testimony then given by said

return all signature pages

and errata sheets to me

18

at the above address, and I will provide copies to

18

witness

was reported stenographically by me in the

the respective parties.

19

19

presence of the said witness, and afterwards

.If you have

any

questions regarding the above

reduced

to typewriting by Computer-Aided

20

procedure, please feel free to contact

me at

20

(312) 263-0052.

21

Transcription, and the foregoing is a true and

21

Sincerely,

22

correct transcript

of the testimony so given by

22

McCorkle Court Reporters, Inc.

23

said

witness as aforesaid.

23

24

I further certify

that the signature to the

24

BY:

----------------

77

79

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foregoing deposition

was reserved by counsel for

the respective parties.

I further certify

that the taking of this

deposition

was pursuant to Notice, and that there

were present at the deposition the attorneys

hereinbefore mentioned.

I further certify that I am not counsel for nor

in any way related to the parties to this suit, nor

am I in any way interested in the outcome thereof.

IN

TESTIMONY WHEREOF: I have.hereunto set my

hand and affixed my notarial seal this 17th day of

September, 2008.

78

McCORKLE COURT REPORTERS, INC.

CHICAGO, ILLINOIS (312) 263-0052

20 (Pages 77 to 79)

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

---

EXHIBITF

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

---

1

(Witness sworn.)

2

CHARLES MURPHY,

.3

called as a witness herein, having been first duly

4

sworn, was examined

and testified as follows:

5

EXAMINATION

6

BY MR. DOMBROWSKI:

7

Q.

Good morning, Mr. Murphy.

8

A. Good morning.

9

Q.

My name is Leo Dombrowski. I represent

10

the United City of Yorkville. I'll be asking you

11

some questions today.

12

What do you understand this deposition to

13

be about?

14

MR. PORTER: Objection. Vague.

15

THE WITNESS: Could you clarify that?

16

BY MR. DOMBROWSKI:

17

Q.

Pardon?

18

A. Could you clarify that?

19

Q.

Well, I think iI's a simple question. Do

20

you have any understanding of what this deposition

21

is about?

22

MR. PORTER: Objection. Vague. Argumentative.

23

Counsel, if you want to ask him a question, feel

24

free. It's your deposition. You tell us what it's

1

2

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24

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~5

~6

17

18

~9

~O

1:21

~2

~3

1:24

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

FOX MORAINE, LLC,

)

Petitioner,

)

vs.

) No. PCB-07-146

UNITED CITY OF YORKVILLE,

)

CITY COUNCIL,

)

Respondent.

)

The discovery dctposi ticn of CHARLES MURPHY,

taken in the above-antiUed cause, before

Elizabeth L. Vela, a. notary public of Cook County,

Illinois, on the 29th day of August, 2008 at the

time of 9:35 a.m. at 24 North Hillside, Hillside,

Illinois, pursuant to Notice.

Reported

by:

Elizabeth L. Vela, CSR

License No.: 084-003650

APPEARANCES:

HINSHAW & CULBERTSON, by

MR. RICHARD S. PORTER,

100

Park Avenue

P.O. Box

1389

Rockford, IL

61105

(815) 490-4900

Representing Fox Moraine, LLC,

WILDMAN, HARROLD, ALLEN

&

DIXON, by

MR. LEO

P. DOMBROWSKI,

225

West Wacker Drive

Chicago, IL

60606

(312) 201-2562

Representing United City of Yorkvill,

JEEP & BLAZER, LLC by

MR. MICHAEL S. BLAZER,

24

North Hillside Avenue, Suite A

Hillside, IL

60162

(708) 236-0830

Representing Kendall County.

1

1

2

3

4

5

6

7

8

9

o

1

2

3

4

5

6

7

8

9

'0

?1

'2

'3

?4

INDEX

WITNESS

EXAMINATION

CHARLES MURPHY

BY MR. DOMBROWSKI

4

BY MR. PORTER

127

EXHIBITS

NUMBER

MARKED FOR ID

Yorkville Deposition Exhibit

NO.1

7

NO.2

13

NO.3

14

No.4

15

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1 (Pages 1 to 4)

McCORKLE COURT REPORTERS, INC.

CHICAGO, ILLINOIS (312) 263-0052

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

---

1

about.

1

that would prevent you from giving complete and

2

THE WITNESS: I've asked

if you could restate

2

honest testimony today?

3

the question.

3

A. I'm not.

4

BY MR. DOMBROWSKI:

4

Q.

Anything else that would keep you from

5

Q.

You can't answer that question?

5

giving full and complete answers to

my questions

6

A.

I've asked you to restate the question.

6

today?

7

Q.

Well, answer my question. Can you answer

7

A.

Could you clarify that? It seems pretty

8

that question?

8

broad-based.

9

MR. PORTER: Counsel, it's been asked and

9

Q.

Well, you say you're not on any

10

answered. Please move on.

10

medications that would prevent you from doing so,

11

MR. DOMBROWSKI: It hasn't been answered.

11

correct?

12

MR. PORTER: It has.

12

A. Correct.

13

BY MR. DOMBROWSKI:

13

Q.

Just a general question. Anything else

14

Q.

You have no idea what the deposition is

14

that would prevent you from giving full and

15

about?

15

complete answers to

my questions?

16

MR. PORTER: Objection. Asked and answered.

16

A. From a medication, from a handicap,

17

Don't answer that.

17

from --

18

MR. DOMBROWSKI: What's the objection?

18

Q.

Anything.