1. NOTICE OF FILING
      2. PROOF OF SERVICE
      3. SERVICE LIST
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
WASTE MANAGEMENT OF ILLINOIS,
INC.~dKENDALLCOUNTYLAND
AND CATTLE, LLC,
Petitioner
v.
COUNTY BOARD OF KENDALL
COUNTY, ILLINOIS,
Respondent
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PCB 09-43
(Pollution
Control Board Facility Siting
Appeal)
NOTICE OF FILING
To: All Counsel of Record, See Attached Service List
PLEASE TAKE NOTICE that the undersigned has, on this 17th day of February, 2009,
caused to be filed with the Clerk of the Illinois Pollution Control Board, via electronic filing, the
attached
Notice of
Demand
for
Bill
of Particulars
on behalf of the County Board of Kendall
County, Illinois, a copy
of which is herewith served on you.
Respectfully submitted,
James
F. McCluskey (ARDC No. 3124754)
James
S. Harkness (ARDC No. 6237256)
Momkus McCluskey, LLC
1001 Warrenville Road, Suite 500
Lisle, IL 60532
Tel: (630) 434-0400
Fax: (630) 434-0444
jfmcc1uskey@momlaw.com
jharkness@momlaw.com
W:\26 _59\4587. 080S23\Pleadings\NOF-2.17 .09.doc
County Board of Kendall County, Illinois
By:
Is/James
S. Harkness
Electronic Filing - Received, Clerk's Office, February 17, 2009
PROOF OF SERVICE
Under penalties as provided by law, pursuant to Section 1-109 of the Code of Civil
Procedure, Sabrina Sanders, the undersigned non-attorney certifies that she served a true and
correct copy
of the foregoing Notice of Demand For Bill of Particulars, by (1) e-mail
transmission and (2)
U.S. Mail to all respective addresses as listed on the Service List from Lisle,
Illinois
60532 on February 17,2009.
James F. McCluskey (ARDC No. 3124754)
James
S. Harkness (ARDC No. 6237256)
Momkus McCluskey, LLC
1001 Warrenville Road, Suite 500
Lisle, IL 60532
Tel: (630) 434-0400
Fax: (630) 434-0444
jfmccluskey@momlaw.com
jharkness@momlaw.com
W:\26 _59\4587 .080523\Pleadings\NOF-2.17 .09.doc
Sabrina Sanders
Electronic Filing - Received, Clerk's Office, February 17, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
WASTE MANAGEMENT OF ILLINOIS,
INC. and KENDALL COUNTY LAND
AND CATTLE, LLC,
Petitioner
v.
COUNTY BOARD OF KENDALL
COUNTY, ILLINOIS,
Respondent
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PCB 09-43
(Pollution Control Board Facility Siting
Appeal)
SERVICE LIST
Donald
J.
Moran
Pedersen
&
Houpt
161 North Clark Street, Suite 3100
Chicago, IL 60601
312-261-2149
312-261-1149 - Fax
E-Mail: dmoran@pedersenhoupt.com
Bradley P. Halloran
Illinois Pollution Control Board
James R Thompson Center
100 West Randolph Street
Suite
11-500
Chicago, IL 60601
E-mail: hallorab@ipcb.state.il.us
Eric C. Weis
Kendall County State's Attorney
807 West John Street
Yorkville,
I L 60560
E-mail: eweis@co.kendall.il.us
Rennetta Mickelson
Kendall County Clerk
111 Fox Street
Yorkville,
IL 60560
Electronic Filing - Received, Clerk's Office, February 17, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
WASTE
MANAGEMENT OF ILLINOIS, INC.)
and KENDALL COUNTY LAND AND
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CATTLE, LLC,
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Petitioners,
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vs.
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COUNTY BOARD OF KENDALL COUNTY, )
ILLINOIS,
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Respondent.
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PCB 09-43
(Pollution Control
Board Facility
Siting Appeal)
NOTICE
OF DEMAND FOR BILL OF PARTICULARS
To:
See Attached Service List
Please take notice that Respondent, COUNTY BOARD OF KENDALL COUNTY,
ILLINOIS ("County Board"),
pursuant to 735 ILCS 5/2-607 and 35 III. Adm. Code
107.208(c), demands that Petitioners, WASTE MANAGEMENT OF ILLINOIS, INC. and
KENDALL COUNTY LAND AND CATTLE, LLC, (collectively, "Petitioners") file and serve
a copy upon
MOMKUS McCLUSKEY, LLC, attorneys for Respondent, a Bill of
Particulars of the allegations contained in Petitioners'
Petition for Hearing to Contest Site
Location Denial
("the Petition") within twenty-eight (28) days of service of this demand.
In support of this demand, the County Board states as follows:
1.
Petitioners' only allegation, contained in paragraph 7 of the Petition is
both a conclusory statement and fails to meet the pleading requirements of 35 III. Adm.
Code
101(c) and 35111. Adm. Code 107.208(c). The Petitioners' sole allegation states:
"WMII and KLC contest and object to this decision and its denial of criteria
(ii) and
(iii) as fundamentally unfair, unsupported by the record and
against the manifest weight of the evidence."
(Petition, paragraph 7).
Electronic Filing - Received, Clerk's Office, February 17, 2009
2.
The standard articulated in the Pollution Control Board Regulations, 35 III.
Adm. Code 107.208, requires that:
"In addition to the requirements of 35 III. Adm. Code 101, Subpart C, the
petition must also include:
***
c)
In accordance with Section 39.2 of the Act, a specification
of the grounds for the appeal, including any allegations for
fundamental unfairness or any manner
in which the
decision
as to particular criteria is against the manifest
weight of the evidence."
3.
In
Konicki v. Will County Board and Waste Management
of
Illinois, Inc.,
PCB 99-140 (consolidated with PCB 99-136 and PCB 99-139), the Illinois Pollution
Control Board, on May 6, 1999, granted a "Motion to Make More Definite the Petition for
Review" that was filed by the County Board of Will County because the Petition in that
case was "insufficient to allow the Respondent to prepare its
defense" and failed to
"allege any facts that support [Land and Lakes Company's] contention that the siting
process was
fundamentally unfair ... " (May 6, 1990 Order). The Illinois Pollution Control
Board required the
Petitioner to amend its Petition to allege facts to support its
contention that the siting process was fundamentally unfair.
Id.
4.
The Petition in this case is analogous to the
Konicki
case, as it is vague
and alleges conclusory statements without factual support. As a result, Respondent is
currently unable to prepare its defense.
5.
Therefore, pursuant to 735 ILCS 5/2-607, Respondent demands that
Petitioners file and serve upon Respondent's counsel a Bill of Particulars of the
allegations contained
in their
Petition for Hearing
to
Contest Site Location Denial
within
twenty-eight (28) days of service of this deamnd. Respondent demands that the bill,
in
detail, state and/or include:
a.
Identify what portions of the underlying site proceeding were
fundamentally unfair;
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Electronic Filing - Received, Clerk's Office, February 17, 2009
b.
Identify the date, time, place and content of any and all activities
of any of the County Board members, before during or after the site proceeding, that
support
allegations of fundamental unfairness and specifically name which member(s)
participated in said activities;
c.
Identify the date, time, place and content of any and all
communications of any of the County Board members, on or off the record, that support
allegations of fundamental unfairness and specifically name which member(s)
participated
in said communications;
d.
Identify the date, time, place and content of any and all statements
made,
on or off the record, by any of the County Board members that support allegations
of fundamental unfairness and specifically name which member(s) made said
statements;
e.
Identify the date, time, place and content of any and all activities
of the hearing officer, before during or after the site proceeding, that support
allegations
of fundamental unfairness;
f.
Identify any and all rulings made by the hearing officer that were
fundamentally unfair and detail how and why those rulings where fundamentally unfair;
g.
Identify the date, time, place and content of any and all statements
made
by the hearing officer, on or off the record, that support allegations of fundamental
unfairness;
h.
Identify the date, time, place and content of any and all
communications made by the hearing officer, on or off the record, that support
allegations of fundamental unfairness;
i.
Identify the date, time, place and content of any and all activities
of the
Kendall County Clerk, before during or after the site proceeding, that support
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Electronic Filing - Received, Clerk's Office, February 17, 2009
allegations, if any, of non-compliance with the Kendall County Site Approval Ordinance
for
Pollution Control Facilities;
j.
Identify the date, time, place and content of any and all
communications of the Kendall County Clerk that support allegations, if any, of non-
compliance with the Kendall County Site Approval Ordinance for Pollution Control
Facilities;
k.
Identify the date, time or place during the site proceeding wherein
Petitioners sought to
be heard by the County Board, but where not;
I.
Identify any date, time, and place during the site proceeding
wherein Petitioners sought to cross-examine
an adverse witness, but were not granted
leave to do
so;
m.
Identify any and all rulings made by the hearing officer that were
impartial, unfair and/or biased
and state specifically how and why those rulings were
impartial, unfair and/or biased;
n.
Identify the date, time and place of any and all acts of fundamental
unfairness
on the part of any individual, group, entity or party during the site proceeding;
o.
State any and all factual support for Petitioners' allegation that the
County Board's decision to deny the Application was
fundamentally unfair;
p.
State any and all factual support for Petitioners' allegation that the
County Board's finding that criteria
(ii) was not met ("criteria (ii) finding") was
unsupported
by the record;
q.
Identify any and all evidence presented during the site proceeding,
including, but not limited
to, expert reports, exhibits, and testimony, that supports the
allegation that the County Board's criteria (ii) finding was unsupported by the record;
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Electronic Filing - Received, Clerk's Office, February 17, 2009
r.
State any and all factual support for Petitioners' allegation that the
County Board's criteria (ii) finding was against the manifest weight of the evidence
presented during the siting proceeding;
s.
Identify any and all evidence presented during the site proceeding,
including, but not limited to, expert reports, exhibits and testimony, that supports the
allegation that the County Board's criteria (ii) finding was against the manifest weight of
the evidence;
t.
State any and all factual support for Petitioners' allegation that the
County Board's finding that criteria (iii) was not met
("criteria (iii) finding") was
unsupported
by the record;
u.
Identify any and all evidence presented during the site proceeding,
including, but not
limited to, expert reports, exhibits, and testimony, that supports the
allegation that the County Board's criteria (iii) finding was unsupported by the record;
v.
State any and all factual support for Petitioners' allegation that the
County Board's criteria
(iii) finding was against the manifest weight of the evidence
presented during the siting proceeding;
w.
State any and all factual support for all allegations of non-
compliance with the
Kendall County Site Approval Ordinance for Pollution Control
Facilities during the site proceeding;
x.
Identify any and all evidence presented during the site proceeding,
including, but not
limited to expert report, exhibits and testimony, that supports the
allegation that the County Board's criteria (iii) finding was against the manifest weight of
the evidence;
5
Electronic Filing - Received, Clerk's Office, February 17, 2009
Date:
James
F. McCluskey
James
S. Harkness
Jennifer
L. Friedland
MOMKUS McCLUSKEY, LLC
1001 Warrenville Road, Suite 500
Lisle, IL 60532
(630) 434-0400
(630) 434-0444
FAX
Attorneys for Respondent
W:\26_ 59\4587. 080523\Pleadings\1 PCB\DemandBiIIParticulars V.3.doc
6
OF KENDALL COUNTY
Electronic Filing - Received, Clerk's Office, February 17, 2009

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