BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

FOX MORAINE, LLC

Petitioner,

v.

UNITED CITY OF

COUNCIL

Respondent.

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YORKVILLE, CITY )

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PCB No. 07-146

(Pollution Control Facility Siting

Appeal)

NOTICE

OF FILING

To:

See Attached Service List

PLEASE TAKE NOTICE that on October 7, 2008, Leo P. Dombrowski, one of

the attorneys for Respondent, United City of Yorkville, filed via electronic filing the

attached

United City of Yorkville's Reply in Support of Its Motion in Limine # 3,

with the Clerk of the l1linois 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. HoPI'

Thomas

I.

Matyas

Leo P. Dombrowski

WILDMAN, HARROLD, ALLEN

&

DIXON LLP

225 West Wacker Drive, 30th Floor

Chicago, l11inois 60606

Phone: (312) 201-2000

Fax: (312) 201-2555

110PI1 (( wildman.com

matyas

l/

\\iIJm:m.colll

dombrowski (/ wilulll<ln.I.:Olll

Electronic Filing - Received, Clerk's Office, October 7, 2008

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BEFORE THE

ILLINOIS POLLUTION CONTROL BOARD

UNITED CITY OF YORKVILLE,

COUNCIL

Petitioner,

Respondent.

FOX MORAINE, LLC

v.

)

)

)

)

)

)

CITY )

)

)

)

PCB No. 07-146

(Pollution Control Facility Siting

Appeal)

YORKVILLE'S REPLY IN SUPPORT OF ITS MOTION IN LIMINE # 3

Fox Moraine would have the Hearing Officer believe that the positions its counsel took

on behalf

of the Kankakee County Board in

Waste Mngl. v. County Bd. of Kankakee County,

PCB 04-186, are the same it advances here on behalf of Fox Moraine. In fact, in

Waste Mngt.,

Fox Moraine's counsel argued that statements made by a Kankakee County Board member that

she opposed all landfills in the

County should be excluded from the Pollution Control Board

hearing. The Hearing Officer granted the County's motion. Yet Fox Moraine takes a radically

different position here.

I.

FOX MORAINE CITES NOT A SINGLE STATEMENT THAT IT

CLAIMS MIGHT OVERCOME THE STRONG PRESUMPTION OF THE

CITY COUNCIL'S OB,JECTIVITY AND FAIRNESS.

In its Motion in Limine, Yorkville cited case law holding that even strong views made

during an election campaign or otherwise do not overcome the presumption that Council

Members were objective in judging the siting application.

Waste Mngt. of Illinois v. Po/lwion

Con/rol Bcl.,

175 III. App. 3d 1023, 1040 (2" Dis!. 1988) ("There is a presumption that

administrative officials are objective and capable of fairly judging a particular controversy.

Moreover,

the fact that an administrative official has taken a public position or expressed strong

views on an issue before the administrative agency does not overcome the presumption.") In its

Electronic Filing - Received, Clerk's Office, October 7, 2008

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response to the motion, Fox Moraine does not cite a single alleged statement by any Council

Member that might rise

to a level overcoming this weighty presumption. Instead, Fox Moraine

generally argues that some unspecified statements could show prejudgment. (Resp. at

p. 3.)

Fox Moraine has not come close to reaching the high hurdle set by lhe Appellate Court

and the Board. Without showing strong evidence

of bias-that the Council members actually

prejudged the adjudicative

criteria-the presumption applies. and Fox Moraine should not be

pennitted

to question Council Members about, argue regarding, or otherwise reference Council

Members' campaign statements.

II.

FOX

MORAl E CANNOT DlSTI 'GUISH ITS OWN ATTORNEYS'

ARGUMENTS REGARDING FIRST AMENDMENT PROTECTION OF

CAMPAIGN STATEMENTS, WHICH APPLY HERE WITH EQUAL

FORCE.

Fox Moraine makes only a weak-hearted attempt to distinguish the arguments its own

attorneys made

to bar campaign statements in

Waste Mgmt. v. County Bd. of Kankakee COllnty,

PCB 04-186. on the basis of the First Amendment. After all. its attome)'s successfully sought to

bar reference to a Kankakee County Board Member's campaign statements that she was

"opposed to proposed landfills being sited in Kankakee County:' (Waste Mngt. Motion in

Limine at p. 2, attached as Exhibit A.) Not only is this statement far more specific than any

allegedly made

by Council Members here (that "a safe. state-compliant landfill" might be "an

oxymoron" or that

"a perfect scenario" for a landfill involved "nothing around it for acres:' it

being "safe as far as leakage," and having "no impact on traffic"), but the statements in

Wasle

Mngl.

are pointedly opposed to a landfill, unlike any statement at issue here.

At the hearing in

Waste Mngl.,

Fox Moraine's attorneys argued that the following

statements were protected under the First Amendment and should be excluded from

consideration:

-2-

Electronic Filing - Received, Clerk's Office, October 7, 2008

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(I)

The Board member had signs posted outside her campaign office that were anti-

landfill-"No dump. no Chicago garbage." (Tr. 346:23-349: 19. auached as part

of Exhibit

8.)

(2)

The Board member's campaign literature noted she "was opposed to the landfills

in Kankakee County and making Kankakee a home for regional landfills. That

was

in my campaign literature:' (Exh. B at 353:5-354:12.)

(3)

The Board Member explicitly stated, before she voted on the proposed landfill

at

issue, that she opposed the proposal because it was not environmentally sound.

(Exh.

Bat 354:22-357: I.)

The Hearing Officer agreed with Fox Moraine'scounsel and granted their motion

in limine.

Fox Moraine now claims that these statements were "general"

in nature and had nothing

to do with the pending siting application. (Resp. at p. 4, fn.

I.)

Statements that someone is

opposed to every proposed landfill in the county and that she had already found the landfill

application deficient before she took her vote are very specific.

Fox Moraine's attempt to add

the modifiers "general"

or "generally" to such statements does not render them any less specific

or pointed.

Moreover, Fox Moraine's suggestion that the type

of campaign in which a statement is

made should make a difference to its admissibility on appeal defies logic.

In both this case and

in

Waste Mngt.,

the person who made the statement became or was a member of the governing

body that voted on the landfill siting application. The type

of campaign was not the an important

factor (or, in fact, even mentioned as a faclor in Kankakee County's motion

in limine) to exclude

the statements

in that case. Instead. the motion Fox Moraine's attorneys filed maintained that

"statements made

in the context of a campaign for

public office

are not relevant to the issues" in

the case. (Exhibit A at p. 2.) The Yorkville Council Members were likewise running for public

office. Thus,

just as Fox Moraine's counsel argued in

Waste Mngt.,

the campaigning Council

Members' statements should

be

excluded as protected by the First Amendment.

-,-

,

Electronic Filing - Received, Clerk's Office, October 7, 2008

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III.

CONCLUSION.

The Hearing Officer should grant Yorkville's motion in limine to bar all arguments.

statements, questions, testimony, or evidence of any kind from any party or its counsel that refer

Respectfully submitted,

UNITED CITY OF YORKVILLE, CITY

COUNCIL

By:

-':/s/"'---"L"'eo"-'-P~.

",D"o!.!.m",b",r",o,-,,,,,s,,,,ki

One of Its Attorneys

Dated: October 7, 2008

Anthony

G. Hopp

Thomas I. Matyas

Leo P. Dombrowski

WILDMAN, HARROLD, ALLEN & DIXON LLP

225 West Wacker Drive

Chicago, Illinois 60606

Telephone:

(312) 201-2000

Facsimile:

(312) 201-2555

matyas@wildman.com

dombrowski@wildman.com

-4-

Electronic Filing - Received, Clerk's Office, October 7, 2008

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EXHIBIT A

Electronic Filing - Received, Clerk's Office, October 7, 2008

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COpy

;

I

STATE OF

ILLINOIS

Pollution Conlrol Board

Case No. PCB 04-186

BEFORE THE ILLINOIS POLLUTIO CONTROL BOARD

A IEC IE

I veo

CLERK'S OFFICE

APR 0 I, 2OIl5

vs.

Petitioner,

Respondent.

WASTE MANAGEMENT OF ILLINOIS, INC.)

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COUNTY BOARD OF KANKAKEE

COUNTY, ILLINOIS,

MOTION IN LIMINE

NOW COME Defendants, COUNTY OF KANKAKEE and COUNTY BOARD OF

KANKAKEE, by and through their attorneys, HINSHAW

&

CULBERTSON LLP. and before

trial,

moves this Court

in

limine to exclude from the

trial

of this maner, the following

information:

Any and all arguments, statements. questions, testimony, or evidence of any kind from

Plaintiffs, Plaintiffs' cOWlsel, or Plaintiffs' lay and expert witnesses that make reference to,

directly or indirectly. by stating, comparing, inferring, or referring to any fact, allegation, or

conclusion regarding any statements. whether oral or written, made by Ms. Ann Bernard, County

Board Member, during her State Representative election campaign regarding her opposition to

several proposed landfills in Kankakee County, as such testimony or evidence is not relevant to

this case and will not assist the trier of fact.

I.

INTRODUCTION

Ms. Ann Bernard was elected to the Kankakee County Board in 1996. Her current term

I

!

will expire

in

2006.

In

November, 2003 Ms. Bernard ran for a llIinois State Representative

position.

During her campaign, Ms. Bernard never specifically mentioned WASTE

MANAGEMENT OF ILLINOIS, INC. or its proposed landfill expansion in Kankakee County.

Rather,

Ms. Bernard simply indicated

in

her General Assembly Questionnaire and her campaign

Electronic Filing - Received, Clerk's Office, October 7, 2008

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materials that she was generally opposed to proposed landfills being sited in Kankakee County.

and merely indicated

in materials published after the COWlty Board's vote on Waste

Management's second siting application that she had voted against the landfill. Respondent has

reason

to believe that Petitioner will attempt to introduce Ms. Bernard's statements

as

evidence

that

Ms. Bernard was biased. However, as a matter of law. any statement. oral or wrinen,

regarding Ms. Bernard's opposition to proposed landfills

in Kankakee County during her

election campaign for State Representative should be disregarded

by

this court as inadmissible

evidence, as such statements made

in the context of a campaign for public officer are not

relevant to

the issues particularly involved in this case.

u.

ARGUMENT

Ms. Bernard's public statements, both written and oral. made dwing her election

campaign for State Representative opposing landfilling

in Kankakee County were not in

contravention of the illinois Environmental Protection Act (Act).

In

fact, Section 39.2(d) of the

Act expressly allows such statements and,

in

pertinent part, provides as follows: ''Thefact that a

member

of the county board or governing body of the municipality has publicly expressed an

opinion on an issue related to a site review proceeding shall not preclude the member from

taking part

in

the proceeding and vnting on the issue." 415 ILCS 5/39.2(d) (emphasis added).

Therefore, Section 39.2(d) clearly provides that

Ms. Bernard was free to make public statements

concerning her opinion on landfills andlor proposed landfills

in general and/or those landfills

proposed

in Kankakee County. Because Section 39.2(d) specifically allows county board

members

to express their opinions related to landfill site review proceedings and landfills

generally, any such statements made by Ms. Bernard are not relevant and should not, therefore,

be admitted into evidence or considered

at the Board hearing.

2

Electronic Filing - Received, Clerk's Office, October 7, 2008

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Pursuant to this Board's procedural rules, evidence may be admitted at a Board bearing

only

if it is "material, relevant, and would be relied upon by prudent persons

in

the conduct of

serious affairs, unless the evidence is privileged." 35 Ill.Adm. Code §IOI.626(a).

In

this case,

Ms. Bernard's statements concerning the proposed landfill are not relevant because,

as set forth

in

Section 39.2(d), such statements are not improper. illinois courts define "relevant evidence"

as that which has "any tendency to make the existence of any fact that is of consequence to the

detennination

of the action more or less probable than it would be without the evidence."

Wojcik

v. City of Chicago,

299 Ill.App.3d 964, 971, 702 N.E.2" 303, 309 (1" Dist. 1998) (emphasis

added). Pursuant to Section 39.2(d), any statements made by

Ms. Bernard are of no consequence

to this action because,

as a mater of law under this provision, such statements could not be used

as a basis to disqualify Ms. Bernard from voting on the application.

Additionally, this Board should refuse

to admit or consider the statements made by Ms.

Bernard in her political campaign because Ms. Bernard had an absolute right to make those

statements.

See

U.S. Const., Amend. I;

see also

5 U.S.C. § 7323(c) (expressly allowing even

employees

of the federal government to express opinions on political subjects). In fact, Ms.

Bernard arguably had a duty, obligation and responsibility, as a candidate for public office, to

express her opinion on all pertinent political subjects.

In

[act, she was specifically asked her

opinion about such matters in the General Assembly Questionnaire. As such, this Board should

find that Ms. Bernard,

as a candidate for political office, was privileged to express her political

opinion without fear

of formal interrogation.

Furthennore, the statements made by Ms. Bernard cannot be used to establish that the

proceeding was ftmdamentally unfair because the fact that Ms. Bernard made statements

regarding her legislative position

on the proposed landfill will nol overcome the presumption

that,

as an administrative official, Ms. Bernard was objective in judging the siting application.

3

7044S3Cl4vl 826549

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Electronic Filing - Received, Clerk's Office, October 7, 2008

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See Waste Management of ntinois, Inc. v. Pollution Control Board,

175 llI.App,3d 1023, 530

N.E.2d 682 (2d Dist. 1988);

Residents Against a Polluted Environment v. County of LaSalle,

PCB 97-139 (June 19, 1997). As such, those statements are not relevant and should not be

considered by this Board.

CONCLUSION

Because public statements made by

Ms. Bernard regarding her position on proposed

landlills in Kankakee County were not in contravention

of Section 39.2 and, in fact, are

expressly protected under Section 39.2(d), and further do not establish that the siting proceeding

was unfair, they are not relevant and should

be barred.

WHEREFORE Respondent, COUNTY BOARD OF

KANKAKEE COUNTY,

ILLINOIS, by and througb

its attorneys, HINSHAW

&

CULBERTSON LLP, respectfully

requests this honorable Court to instruct Plaintiffs, Plaintiffs' counsel,

and Plaintiffs' lay and

information cited above.

It

is further requested that the Court instruct Plaintiffs and Plaintiffs'

expert witnesses not to

mention, refer to, interrogate, argue, or make any statement regarding

the

Dated:

_--,If'--l--'-'-+'

and every witness appearing for Plaintiffs to strictly follow this Order.

COUNTY BOARD OF

KANKAKEE

COUNTY, ILLINOIS,

Responde_n~,

---------"

I

[

HINSHAW

&

CULBERTSON LLP

100 Park Avenue

Rockford, IL 61105

815/490-4900

815/490-4901

(fax)

[

SONLLP

Cbarles

~~e:ii0:-

__'

......._---""';eorItsAttorneys

4

Electronic Filing - Received, Clerk's Office, October 7, 2008

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AFFIDAVIT OF SERVICE

The undersigned, pursuant to the provisions

of Section

1-109

of the

lIIinois Code

of Civil

Procedure, hereby under penalty of perjury under the laws of the United States of America,

certifies that on April!. 2005, a copy

of the

foregoing was served upon:

Dorothy M. Gunn, Clerk

I1linois Pollution Control Board

James

R.

Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, IL60601-3218

Donald

J.

Moran

Pedersen

&

Houpt

161 N. Clark Street, Suite 3100

Chicago, IL 60601-3242

(312) 641-6888

(312) 641-6895

FAX

Mr.

Brad Halloran

Hearing Officer

Illinois Pollution Control Board

100 West Randolph, 11th Floor

Chicago, IL 6060 I

(312) 814-8917

(312) 814-3669

FAX

By depositing a copy thereof, enclosed in an envelope in the United States Mail at Rockford,

lllinois, proper postage prepaid, before the hour of 5:00 P.M., addressed as above.

HlNSHAW

&

CULBERTSON

100 Park Avenue

P.O. Box 1389

Rockford, lllinois 61101

8151490-4900

8151490-4901

(fax)

------'~'-----

Electronic Filing - Received, Clerk's Office, October 7, 2008

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EXHIBITB

Electronic Filing - Received, Clerk's Office, October 7, 2008

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ILLINOIS POLLUTION CONTROL BOARD

WASTE MANAGEMENT Of ILLINOIS, INC.,

Appeared on behalf of the Petitioner,

HINSHAW & CULBERTSON,

100 Park Avenue

Rockford, Illinois 61105

(915)

490-4900

BY:

MR. CHARLES F. HELSTEN and

MR. RICHARD PORTER

PCB 04-196

Petitioner,

Respondent.

Vs

PEDERSEN & HOUPT,

161 North Clark Street

Suite 3100

Chicago, Illinois 60601

(312)

261-2149

BY:

MR. DONALD J. MORAN and

MS. NANCY RICHARDSON

COUNTY BOARD Of KANKAKEE COUNTY,

REPORT OF PROCEEDINGS had before HEARING

OFfICER BRADLEY P. HALLORAN, taken stenograph1cally

before TERRY A. BUCHANAN, CSR, a notary publiC

within and for the County of Will and State of

Illinois, at 189 East Court Street, Kankakee,

Illinois, on the 6th day of April, A.D., 2005,

commencing at 9:15 o'clock a.m.

A P PEA RAN C E S:

ILLINOIS POLLUTION CONTROL BOARD,

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

(312)

814-8911

BY:

BRADLEY P. HALLORAN, HEARING OFFICER

0001

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A.

Yes.

Q.

And were these individuals C1tizens?

MR. PORTER:

Again, I'm going to

object. Perhaps this could be done 10 the

offer of proof at this time. Now we're

asking for elaboration as to what those

cOMmunications entailed on the campaign

trail.

MR. MORAN:

1 just said were they

citizens.

HEARING

O~FICER

HALLORAN:

That's

true. So I overrule it at this time, but

stand ready, Mr. Porter.

You may answer.

BY THE WITNESS:

A.

Yes.

MR. MORAN:

At this point it does make

sense to proceed with what I think will be

the offer of proof on the matters relating to

the statements she made during her campaign

tomorrow morning. There are a number of

documents and I'm not sure how you will -- if

you will even allow me to present these

documents in the offer of proof.

I would ask

to be able to do that, to go through them, to

establish them, to have her testify about

them and it appears -- the only reason I

suggest this is obviously it appears the hour

is a little late and we're all having

difficulty understanding my questions and it

may make sense to put this off until

tomorrow.

MR. PORTER:

As much as I would like

to do that, Ms. Bernard has a conflict

tomorrow and needs to finish up tonight.

HEARING OFFICER HALLORAN:

I

guess

there we have it, fortunately or

unfortunately. Anyway, you may proceed, Mr.

Moran.

MR. MORAN:

Thank you.

BY MR. MORAN:

Q.

Ms. Bernard, did you see the signs

that were posted allover the

co~munity

that said no

dump, no

Chicago garbage?

A.

Yes.

Q.

Do you have any information as to who

placed those signs at various locations throughout

the community?

A.

1 would assume it would be landfill

opponents.

Q.

Do you have any information to

indicate that Mr. Harrison was putting these signs

allover the place?

A.

I think he might have been.

Q.

Did he offer to give you a sign to put

on your property?

Electronic Filing - Received, Clerk's Office, October 7, 2008

---

good.

BY MR. MORAN:

Q.

Ms. Bernard, did you take that sign

that said no dump, no Chicago garbage and authorize

its placement at your campaign headquarters?

A.

Well, we actually had a stand sign

that you put the letters on like a grocery store and

my campaign had put something like that up before

those other signs even came about, I believe.

O.

SO you had this other sign, which is

A.

He stopped by the campaign office, I

believe, or -- somebody stopped by and brought

signs.

Q.

And were those signs posted outside of

your campaign office?

A.

I think we had one.

MR. PORTER:

I'm going to object and

move to strike based on the mot10n in limine.

MR. MORAN:

She was given a sign

probably by Mr. Harrison, elected

t~

put it

where she thought it was appropriate. It

seems to me that the sign and whatever it

means is appropriate actions that go apart

from any issue relating to prejudgement.

HEARING OFFICER HALLORAN:

I'm going

to have to agree with Mr. Porter.

I'm

looking at this motion in limine and what I

ruled on it. It's basically any statements

made by Ms. Bernard and a sign in her yard or

property is a statement. So I would sustain

Mr. Porter's objection. Again, you can go in

an offer of proof if you so choose.

MR. MORAN:

Well, why don't we go into

the offer of proof?

HEARING OFFICER HALLORAN;

Sounds

There was the big one and I think

small one.

With respect to the communications

there was a

like the grocery store sign?

A.

Right, where you put the letters.

O.

And what did that say?

A.

Something like no outside garbage, no

Chicago garbage. You know, it's been over a year.

I don't recall the exact wording.

Q.

And I thought you said a few moments

ago that the signs that were posted about the town

saying no dump, no Chicago garbage was also a sign

that your campaign or you took and then placed on

the property at your campaign headquarters?

A.

Well, I believe I might have had a

small lawn sign as well because when you put out

political signs you have a lot of them.

Q.

And the best of your recollection is

there was one of these signs put at your campaign

headquarters?

A.

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Electronic Filing - Received, Clerk's Office, October 7, 2008

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that?

that you had with the citizens during your campaign

that we've mentioned a little bit earlier today,

these discussions related to the proposed expansion?

A.

I believe the discussions just related

If

landfill?

I object.

Did anyone ask you what your position

proposed expansion of the Waste

landfill?

You know, they might have.

I knocked

doors.

well,

didn't

Mr. Keller ask you what

was?

No, I don't believe so.

You don't recall Mr. Keller asking you

expansion of the waste Management

MR. PORTER:

Sorry.

on so many

Q.

your position

A.

Q.

for things like incineration, waste reduction,

alternative technologies and landfill has been, I

believe, a choice of last resort if I'm not

mistaken.

Q.

was on the

Management

A.

A.

No, I don't recall that.

Q.

And you don't remember any person

asking you at any point in time prior to the primary

election what your position was on the proposed

expansion of the existing Waste Management landfill?

A.

Well, you know, it might have come up

in

a debate and it might have come up door to door

and as far as I was concerned, once the hearings

were over, I heard the evidence I needed to hear.

Q.

what was your position on the proposed

to landfills in general, environmental issues, other

things I was running on.

Q.

Did they relate to landfills in

Kankakee County?

A.

I mentioned some of that in my

campaign literature, I believe.

Q.

I'm talking now about your

communications with the citizens.

A.

Well, when I was knocking on doors if

it came up as a topic of discussion, it was

discussed, if it came up at a forum,

it

was

discussed.

Q.

And were you asked by any of these

persons what your position was on the proposed

expansion of the Waste Management landfill?

A.

What I would tell people is what I

wanted to do as a state representative in the 79th

District if elected.

O.

And what you would say is what you

intended to do with respect to the proposed

expansion of the Waste Management landfill?

A.

No.

It was to do with just, you know,

looking at new technologies and different things in

general. The Illinois solid waste plan has called

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we're going to ask what she announced her

position to be on the election trail, I think

that could be done within the offer of proof,

but what he's doing right now is again

attempting to delve into the mental

impressions of a County Board member by back

dearing it in through this offer of proof.

HEARING

O~~ICER

HALLORAN:

Could you

read that question back, Terry?

(Whereupon, the requested

portion of the record

was read accordingly.)

HEARING OFFICER HALLORAN:

Mr. Moran?

MR. MORAN:

It's an offer of proof.

We're asking her about what her position was

regarding the proposed expansion.

MR. HELSTEN;

Well. Mr. Moran. is this

an offer of proof on her position as a

political candidate or are you going beyond

that? Is it limited to her position as a

candidate for office? I guess that was my

concern when I heard the question.

It seems

sort of open ended and maybe beyond the offer

of proof.

If the offer of proof was Just on

her position as -- and her activities as a

political candidate.

MR. MORAN:

The questlon is designed

to elicit her views or belief on the proposed

expansion. It doesn't inquire as to the

mental processes by which she arrived at

any

conclusion or arrived at her position or in

any way relate to the means by which she

considered whatever she considered to reach

an adjudicatory decision.

HEARING OfFICER HALLORAN:

Yeah.

I

don't think it right now delves inlo the

mental processes and is still under an offer

of proof. So at this time I am going to

overrule Mr. Porter's objection. You may

answer.

BY THE WITNESS:

A.

Yeah.

I had it in my campaign

literature that I was opposed to the landflils in

Kankakee County and making Kankakee a home for

regional landfills. That was in my campaign

literature.

BY MR. MORAN:

Q.

And that opposition was to both the

proposed expansion of the Waste Management lar.dfill

and the proposed Town & Country landfill in OttO

Township, is that correct?

A.

It was even beyond that because about

five years ago Van Drunnen (phonetic) tried to put

ground up garbage on his farm land and Jerry Joyce

has a really messy operation out on the western edge

Electronic Filing - Received, Clerk's Office, October 7, 2008

---

questionnai re.

Q.

Did you prepare the responses to this

questionnaire?

A.

Yes.

Q.

And all the responses are true and

accurate?

time

the

200'!?

been some

answers to

January of

would have

A.

It's my words.

Q.

When did you prepare these answers to

the questionnaire?

A.

It says here January 2003, but that

had to be 200'!.

Q.

And

were the

questionnaire submitted in

A.

I believe it

around then.

of the county, there's sludge that's been spread in

Pembrook.

I mean, there are several operations out

there, the Bauer operation.

MR. MORAN:

Mr. Hearing Officer, if I

might approach the witness?

HEARING OFFICER

~~LORAN:

You may.

BY MR. MORAN:

Q.

Ms. Bernard, let me show you what we

have marked as WHIr Exhibit No.4.

Have you had a

chance to look through it?

A.

Yeah.

1 don't know which part you

want me to look through.

Q.

I guess I first just wanted you to

identify WHIT Exhibit No. 4 for us.

A.

It's the IV!-IPO 2004 general assembly

Q.

I'm directing your attention,

Ms. Bernard, for a moment to page eight --

A.

Yes.

Q.

-- of Exhibit '! the answer written to

question No. 44, the first full paragraph. Could

you read for us out loud the last two sentences in

that first full paragraph?

A.

This answer was in regards to the

questions that said your comment should include

HEARING OFFICER HALLORAN:

Ms. Bernard, could you slow down, please?

Thank you .

BY THE WITNESS:

A.

This answer is in response to a

question that said your comments should include

enforcement of pollution statutes, recycling and

waste management. So the two sentences, just for

clarification, it says as far as recycling and waste

management, I have been an avid proponent of

recycling and using cleaner alternatives such as

closed loop gasification. Two regional landfills

are being proposed for --

HEARING OFFICER HALLORAN:

Ms. Bernard, slow down.

Thanks.

BY THE WITNESS:

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Electronic Filing - Received, Clerk's Office, October 7, 2008

---

BY MR. MORAN:

O.

Ms. Bernard, were you aware that the

And this article appeared on

2004 in the Kankakee Daily Journal?

That's what it says here on the

A.

I'm sorry. Two regional landfills are

being proposed for Kankakee County and both are

situated over aqu1fers. I oppose both proposals.

Neither is environmentally sound, especially over

the long term.

Q.

And those were accurate and true

statements when you made them in January of 2004?

A.

Yes. When I was filing out the

Okay.

Halloran, that

proof.

HALLORAN:

MS. Bernard, have you seen WMIr

before?

Yes.

Can you tell us what it is?

It's an endorsement letter.

And it was prepared by whom?

Leonard shakey Martin.

And he's a fellow County Board reember?

Yes.

Are all the statements contalned in

accurate?

I would say so.

I'm ready.

What is it?

It's a page from my campaign web site,

When was this prepared?

I believe 2004.

When in 2004?

Probably January.

Are all the statements contained in

No. 6 true and accurate?

Yes.

MR. MORAN:

Mr.

concludes the offer of

HEARING OFFICER

BY MR. MORAN:

Q.

Exhibi

t

No. 5

A.

Q.

A.

Q.

A.

Q.

A.

Q.

this letter

A.

Q.

March 10th,

A.

printout.

Q.

Let me show you we've marked as WMII

Exhibit No.6. Take a look at that and then when

you've completed reviewing it, if you can identify

it for us.

A.

Q.

A.

Q.

A.

Q.

A.

Q.

WMII Exhibit

A.

campaign questionnaire.

Q.

Ms. Bernard, I'm going to show you

what's been marked as WMII Exhibit No.5. I'll ask

you to take a look at that.

MR. PORTER: Mr. Helsten's concern is

Mr. Moran is still in his offer of proof

until he tells us otherwise?

HEARING OFFICER HALLORAN:

Yes, that.' 5

my understanding.

MR. HELSTEN:

Thank you.

HEARING OFFICER HALLORAN:

Thank you.

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Electronic Filing - Received, Clerk's Office, October 7, 2008

---

CERTIFICATE OF SERVICE

I.

Patti Racky, a non-attorney, certify that I caused a copy of the foregoing

Notice

of Filing and United City of Yorkville's Reply in Support of Its Motion in Limine

#

3 to be served upon the Hearing Officer and all Counsel

of Record listed on the attached

Service list

by sending it via Electronic Mail on October 7, 2008.

Is/

Patti Racki

[x]

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

CHAP. 1

10 - SEC 1-109, I cenify that the statements set forth

herein are true and correct.

Electronic Filing - Received, Clerk's Office, October 7, 2008

---

SERVICE

LIST

Bradley P. Halloran

Hearing Officer

Illinois Pollution

Control Board

James

R.

Thompson Center, Suite 11-500

100 W. Randolph Street

Chicago, Illinois 60601

George Mueller

Mueller Anderson, P.e.

609 Etna Road

Ottawa, Illinois 61350

george@muelleranderson.com

Charles I-Ielstcn

Hinshaw

&

Culbertson. LLP

100 Park Avenue

P.O. Box 1389

Rockford, Illinois 61105-1389

Michael S. Blazer

Jeep

&

Blazer, LLC

24 N. Hillside Avenue, Suite A

Hillside, IL 60162

Eric C. Weiss

Kendall CounlY State's Attorney

Kendall

Coullty

Courthouse

807 John Street

Yorkville, Illinois 60560

eweis@co.kendall.il.us

James J. Knippen, II

Walsh, Knippen, Knight

&

Pollock

2150 Manchester Road

Suite 200

Whealon, IL 60187

jim@wkkplaw.com

h~al

ht.'f

(I

\\

kk plm\ .com

James

8.

Harvey

McKeov.m, Fitzgerald, Zollner,

Buck,

Hutchison

&

Runle

24255 Glenwood Avenue

Joliet,IL 60435

jim@mckeownlawfinn.com

Electronic Filing - Received, Clerk's Office, October 7, 2008