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 April 6, 2009, Leo P. Dombrowski, one of the
attorneys for Respondent, United City
of Yorkville, filed via electronic filing the attached
United City of Yorkville's Motion in Limine
#5, with the Clerk of the Illinois Pollution
Control Board, a copy
of which is herewith served upon you.
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
Respectfully submitted,
UNITED CITY
OF YORKVILLE
By:
/s/ Leo P. Dombrowski
One of their Attorneys
Electronic Filing - Received, Clerk's Office, April 6, 2009
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC
)
)
Petitioner,
)
)
v.
)
)
UNITED CITY OF YORKVILLE, CITY )
COUNCIL
)
)
Respondent.
)
PCB No. 07-146
(Pollution
Control Facility Siting
Appeal)
YORKVILLE'S MOTION IN LIMINE
#
5
Pursuant to the Hearing Officer's Order of March 23, 2009 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 or fact witness,
involving speculation or opinions regarding the beliefs or mental states
of other persons,
including but not limited to:
(1) opinions, speculation, or beliefs regarding the feelings,
impressions or mental processes
of Yorkville Council Members or other persons at the hearings
at issue; (2) opinions, speculation, or beliefs regarding the atmosphere
of the pre-landfill and
landfill hearings and/or its alleged effect on Council Members; and (3) opinions, speculation, or
beliefs regarding alleged bias
of Council Members. In support of its motion, Yorkville states as
follows:
1.
It
is clear from the depositions in this matter that Fox Moraine will contend, and
will seek to introduce evidence at the hearing, that the atmosphere
of the pre-landfill and landfill
hearings was
"hostile" and "threatening" and that this "poisoned" atmosphere so "intimidated"
Electronic Filing - Received, Clerk's Office, April 6, 2009
the Members of the Yorkville City Council that the City Council denied Fox Moraine's landfill
application without any reasoned basis. At deposition, Fox Moraine was asked to provide factual
support for its allegations, among others, that the hearings
"were not fundamentally fair,"
Council Members were "biased against Fox Moraine," and the Council's decision was based
upon
"political considerations."
(See
Second Amd. Petition for Review,
~
5.)
2.
the Fox Moraine deponents testified, in part, as follows:
Testimony
of Devin Moose
• That the atmosphere of the landfill hearings was "hostile because of a small
number
of ignorant people who took over the - took over the town." (Moose
Dep.17)
• That, in Moose's opinion, the city council members were "intimidated" or that
opponents were
"coached."
Q: Did you perceive that the city council members were intimidated by this
crowd? '
A: Absolutely.
Q: And how did you perceive that?
A: I perceived it by the nature of their questions. I perceived it by the level of
their attention during testimony. I perceived it by the catering to the opponents
during breaks.
Facial gestures, body language, the fact that they were allowed,
that the opponents were allowed to talk for hours upon hours with absolutely
no
interruption, no schedule, repeating stuff off the Internet with no validity to it at
all. Clearly, they were given
an absolute wide berth to -- and purposefully -- to
extend the hearing into the election.
And that was, in my opinion, done as a
strategic plan by not only the opponents. I
think it was the opponents with
assistance from others
that helped coach them on how to do that. (Moose
Dep. 17, emphasis added)
• That "it appeared that" the hearing officer was not running the hearing or "was
ordered to not use his best judgment."
Q: Who was running the hearing?
A: Good question. I think the hearing officer made an attempt to run the hearing,
but
it appeared to me that he was ordered to not use his best judgment and
stick with
what I considered to be ridiculous hours to conduct the hearing ...
-2-
Electronic Filing - Received, Clerk's Office, April 6, 2009
I believe Mr. Clark, the hearing officer, was working at the direction, I
believe,
of the Mayor, but I don't know that for sure.
Q: That is pure speculation on your part; right?
A: yes ....
Q: But you have no evidence or information or anything to indicate that the
city council was telling him how to do his job; right?
A: I do not have any information. (Moose Dep. 24-27, emphasis added.)
•
That Council Members "seemed" not to be "paying attention."
Q: What did you mean by that?
• A: When critical testimony occurred, they were found not paying attention ....
Some of them seemed to bear no interest in what I thought was a pretty
important criteria, Criteria
2. (Moose Dep. 27-28, emphasis added.)
•
That he "belie[ved]" that the Council members were "biased" or "ignorant."
Q: Any evidence that the council members who voted on the application were
biased against Fox Moraine?
A: I think that's the same question. Again, I focused on the technical component
of the application. My belief is there was significant bias based on the way
they viewed the evidence with virtually no weight given to the evidence
that
was submitted by the applicant and significant weight given to Internet
fodder, and
it's either bias or ignorance, I'm not sure which, but it has to be
one
of those two.
Q: And which council members did you say were biased?
A: I recall specifically Rose Spears and Valerie Burd, in my opinion, never
gave --- never weighed the evidence
at all. (Moose Dep. 44-45, emphasis
added.)
•
That the attorney for a citizens group attempted to "poison the well" by
characterizing the landfill applicant as a poor operator. (Moose Dep. 62; Moose
deposition excerpts are attached as Exhibit
A.)
Testimony by Jesse Varsho
•
That Council Members "could have been" intimidated or that there was bias or
intimidation.
Q: What did you think was unfair about [the 90-day period between filing and the
start
ofthe hearings]?
-3-
Electronic Filing - Received, Clerk's Office, April 6, 2009
A: ... during the, -- you know, this 90-day period was, there was a reannexation
hearing where there were threats made to the City Council by its citizens saying
that
if you vote for the annexation, we'll - you know, during the elections, we'll
vote you out. And you know,
it
could have provided a bias or intimidation
factor for the City Council before we even got to the public hearing.
Q: So you're saying, for example, someone saying to an elected official if you
vote for the landfill - or for the annexation or whatever it was, you will be
shunned at a restaurant, you're saying that tainted the process?
A: Yes.
Q: Why would that have tainted the process?
A: I believe that's intimidation. (Varsho Dep. 31-32, 33-34, emphasis added;
Varsho deposition excerpts are attached as Exhibit
B.)
Testimony by James Burnham
•
That he "belie[ ves]" city council members were biased.
A: I believe that through the course of this - this whole process, that [Mayor
Burd] was generally against the landfill, and
that's - that's - that's my
perception.
A: In - in my belief that the city council people were bias [sic] 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.
(Burnham Dep. 38, 44, emphasis added; Burnham deposition excerpts are
attached as Exhibit C.)
Testimony by Charles Murphy
•
That the public was "aggressive" and "intimidating" to Council Members.
Q: Okay. Tell me how you think Alderman Spears was biased.
A: ... And I think the behavior of - the aggressive nature of the behavior of
the public and the opposition people, I think lends itself to be intimidating.
Q: What behavior did you see that you claim to be hostile or intimidating?
A: Aggressive, in your face accusations.
Q: Well, can you give me any example-
A: If you approve the landfill - or approve the annexation, you're approving a
landfill. Throughout those times, the public was - you know, you're going to be -
-4-
Electronic Filing - Received, Clerk's Office, April 6, 2009
if you decide - make these decisions, you could be sitting alone. I think things
that were intimidating to me sitting there for someone who's been sitting in a
crowd as one of the only people representing a project was intimidated by
that.
I'm sure that that had to be as difficult for someone that was in a
decision-making position.
(Murphy Dep. 18-21, emphasis added.)
•
Speculating that Council members might have "felt intimidated."
Q: Just three left. How about Mr. Munns?
A: Mary Munns, again, subject to like the rest sitting through all the rancor and
proceedings prior to the landfill leading up to the behavior, the comments by all
who participated in that that potentially influences his ability to make a decision
based on the fundamental weight
of the - manifested weight of the proceedings to
come. .
.. And if Mr. Munns was looking at - felt - or maybe felt intimidated
or concerned that he could have - it could have affected his own political
career or other activities in the area may have been weighted heavily on his
decision to vote for
or against.
Q: How about Golinski?
A: Jerry [sic] Golinski, he replaced Dean Wolfer. And I guess Dean Wolfer is
somebody that I
don't think we can take off the list either, but Gary came into the
process in the middle
of all the craziness going on. . ..
Q: And didn't have enough time, you say, to get up to speed on everything?
A: I think that's an issue, but at the time he came on, he was in the height
of the
rancor and the craziness going on in these open meetings where you come in and
you're shell-shocked. You see the deer in the headlights and people coming at
you and intimidating or threatening that you're going to be voted out, so on
and so forth. You're not going to be sat by at a restaurant. You'll be alone
at church. And then, he's got that in his mind, and then, he's got to sit
through the landfill hearings to where
that behavior and that goes on again.
(Murphy Dep. 113, 118-20, emphasis added; Murphy deposition excerpts are
attached as Exhibit D.)
2.
Speculative statements or opinions by lay witnesses are not admissible.
Freeding-
Skokie Roll-OffSvc.,
Inc.
v.
Hamilton,
108 Ill. 2d 217, 222 (1985);
Brennan
v.
Wisconsin Cent.
Ltd.,
227 Ill. App. 3d 1070, 1085 (2
nd
Dist. 1992) (affirming exclusion of witness' blanket
statement where witness had no personal knowledge). Courts restrict fact witnesses to giving
facts and details and allow only the trier
of fact to draw inferences.
Freeding-Skokie Roll-Off,
-5-
Electronic Filing - Received, Clerk's Office, April 6, 2009
108 Ill. 2d at 222-23 (reversing judgment where trial court improperly allowed lay witness to
opine that driver could not have avoided collision).
3.
A witness's speculation as to the thought processes of a decision-maker should
also be excluded.
O'Regan
v.
Arbitration Forums, Inc.,
246 F.3d 975, 986 (7th Cir. 2001)
(upholding trial court's striking speculative statements in affidavit regarding company
president's
"thoughts" and purported characterization of president's hiring practices as
"discriminatory" because speculation was not based on personal knowledge);
Chiaramonte
v.
Fashion Bed Group, Inc.,
129 F.3d 391, 397 (7th Cir. 1997) (holding that speculative statements
by person who did not make termination decision regarding motives for termination did not
provide a basis for charging decision-maker with discrimination). In
Chiaramonte,
a witness
speculated that
"Age had to be a factor ... [for terminations] but I don't know." 129 F.3d at
397. The court held that
"[s]tatements by a non-decision-maker that amount to mere speculation
as
to the thoughts of the decision-maker are irrelevant to our inquiry."
Id.
4.
Here, while Fox Moraine's witnesses should be permitted to testify only as to
events or things they witnessed; they should not be permitted to speculate or conjecture or draw
inferences
as to subjective matters such as the purported significance of a person's "facial
gestures"
or "body language," the "atmosphere" of the hearings, or whether Yorkville Council
Members felt
"threatened" or "intimidated." Notably, the Hearing Officer has already entered an
order barring Fox Moraine from inquiring into the mental processes
of the City Council
members. Fox Moraine should be similarly forbidden from speculating as to those mental
processes and from offering unsubstantiated, self-serving opinion testimony from lay witnesses
about the hearings or what City Council members might have thought or how they might
have
felt.
-6-
Electronic Filing - Received, Clerk's Office, April 6, 2009
WHEREFORE. Yorkville requests that the Hearing Officer enter an order
in limine
barring all parties, their counsel, and all witnesses from eliciting, introducing or referring to
speculative remarks as noted in this motion.
Dated: April
6, 2009
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
hopp@wildman.com
matyas@wildman.com
dombrowski@wildman.com
Respectfully submitted,
UNITED CITY
OF YORKVILLE, CITY
COUNCIL
By: ________
~/s~/~L=e=o~P~.~D~o=m==br~o~w~s~ki
One of Its Attorneys
-7-
Electronic Filing - Received, Clerk's Office, April 6, 2009
EXHIBIT A
Electronic Filing - Received, Clerk's Office, April 6, 2009
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BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE
I
LLC,
Peti tioner ,
vs.
UNITED CITY OF YORKVILLE, CITY
COUNCIL,
Respondent.
)
)
) No. PCB 07 146
)
)
)
The discovery deposition of DEVIN MOOSE
I
P. E. ,
taken
in
the above-entitled cause, before JENNIFER
CAMPBELL, a notary public of Kendall County,
Illinois
I
on the 30th day of September, 2008 at
3:30 p.m.
r
at 800 Game Farm Road, Yorkville,
Illinois, pursuant to Notice.
Reported
by:
Jennifer Campbell, CSR, RPR
License No.:
084-003282
APPEARANCES:
MUELLER
ANDERSON, P.C., by
MR. GEORGE MUELLER
609 Etna Road
Ottawa,
Illinois 61350
4
(815) 431-1500
Representing the Petitioner;
5
WILDMAN HARROLD ALLEN & DIXON, LLP, by
6
MR.
LEO P. DOMBROWSKI
225 West Wacker Drive
7
Chicago,
Illinois 60606
(312) 201-2562
8
Representing the Respondent;
9
JEEP & BLAZER, by
MR.
MICHAEL S. BLAZER
10
24 North Hillside Avenue
Suite A
11
Hillside, Illinois 60162
Representing the Kendall County.
12
13
ALSO PRESENT:
14
Mr.
Charles J. Murphy, Fox Valley
15
Consulting Services, Inc., and
16
Mr. Don Hamman.
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IN D EX
WITNESS
EXAMINATION
DEVIN MOOSE
By Mr. Dombrowski
P. 4
By Mr. Blazer
P.76
EXHIBITS
NUMBER
MARKED FOR ID
Yorkville
Deposition Exhibit
NO.6
P. 5
NO.7
No.8
P. 34
P. 55
(Retained by Mr. DombrowskL)
(Witness duly sworn.)
MR.
DOMBROWSKI: Mr. Moose, my name is Leo
Dombrowski.
I represent the City of Yorkville in
this landfill appeal. I'll be asking you some
questions today.
Is it okay if I call you Devin?
THE
WITNESS: It is. And Leo okay with you?
MR.
DOMBROWSKI: Fine.
You understand that we have a court
reporter here to record everything that you and
I
say. And please let me finish my question before
you start your answer, and
I won't step on your
answer, as best
I can do; fair enough.
THE
WITNESS: Fair enough.
MR.
DOMBROWSKI: If you don't understand a
question,
please let me know. Otherwise, I'll
assume that you've understood it. Okay?
THE WITNESS: Yes.
DEVIN MOOSE,
called
as a witness herein, having been first duly
sworn, was examined and testified as follows:
EXAMINATION
BY
MR. DOMBROWSKI:
Q.
Are you on any medication or anything that
Ii
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McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS
(312) 263-0052
Electronic Filing - Received, Clerk's Office, April 6, 2009
1
about
how people could participate. It was
1
Let
me refer to -- this is the meeting on
2
hostile. It was hostile because of a small number
2
May 23rd,
2007, question from Page 22 starting at
3
of ignorant people who took over the -- took over
3
Line
13. This is from Alderman Werderich. I
4
the town.
4
probably pronounced that wrong also.
5
Q.
Did you perceive that the city council
5
Q. What page was that?
6
members were intimidated by this crowd?
6
A. Page 22. "QUESTION: Can I ask one last
I
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A. Absolutely.
7
question of the City attorney? Can you clarify how
8
Q.
And how did you perceive that?
8
much weight the city council should put in the
II
9
A. I perceived it by the nature of their
9
written evidence that is provided by the applicant
0
questions. I perceived it by the level of their
10
at this point since it's not subject to
1
attention during testimony.
I perceived it by the
11
cross-examination?
2
catering to the opponents during breaks.
Facial
12
"MR. ROTH: No, I can't. I can't tell you
I'
3
gestures, body
language, the fact that they were
13
how much weight
to give it. I'm sorry."
lo~
~4
allowed, that the opponents were allowed to talk
14
I think that's a question that he should
~5
for hours upon hours with absolutely no
15
have been able to answer.
~6
interruption, no schedule, repeating stuff off the
16
And based on my
nearly 50 hearings of this
~7
Internet with no validity to it at all. Clearly,
17
nature, based on what I've seen at every other
~8
they were given an absolute wide berth to -- and
18
hearing and evidence -- or advice that every other
~9
purposefully -- to extend the hearing into the
19
attorney has given
elected officials, that the
1
0
,
120
election. And that was, in my opinion, done as a
20
evidence should be weighed heavier for the
Ii'
21
strategic plan by not only the opponents. I think
21
testimony for the expert that testifies when he has
~2
it was the opponents with assistance from others
~2
the ability to cross examine. Evidence that's
Ii
23
that
helped coach them on how to do that.
~3
simply pulled off the Internet and thrown in the
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Q.
Who do you think coached them?
~4
record should not be given the same weight.
Here's
I:
17
19
1
A. It would have to be somebody I think
1
a case where they're
actually deliberating, trying
2
experienced
in this. Probably your firm. Maybe,
2
to find out how much weight to give the written
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maybe Jennifer Sackett
Polens, maybe
representatives from another waste company.
Q. Those are assumptions on your part?
A. Yeah.
Q. Are you saying otherwise the city
council
would
have voted before the elections?
A. I think otherwise the council would have
tried to
follow the law. I think the council would
have listened to the evidence and hopefully voted
on the evidence.
I think they clearly were steered in the
wrong direction to
prolong the hearing. Your firm
specifically I think -- I believe you're with
Michael Roth's firm. Anyway, Michael Roih clearly
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gave them what I think is, at least based on my
17
limited knowledge of the law, bad legal advice to
18
purposefully skew the vote. So there were a lot of
19
things that were done.
20
Q. What legal advice did Mr. Roth give the
21
council to purposefully skew the vote?
22
A. Maybe it's not legal advice. Maybe it's
23
lack of legal advice.
24
18
evidence, and nobody can give them any advice.
And I think Mr. Roth knows the answer,
because
Mr. Roth has shown up at these hearings
before, not
in Yorkville, but I've run across him
in DuPage County before, and he knew the answer to
that question.
Q. So it's your opinion that he purposefully
gave a wrong answer?
A. I don't know why he gave the wrong answer.
Maybe
I'm wrong. Maybe you're supposed to give
stuff of the
Internet equal weight. But my
experience at other hearings is the attorneys and
hearings officers have said that you ought to give
more weight
to the experts that testify and subject
themselves to cross exam, cross-examination.
Q. How many witnesses did Fox Moraine put on?
A: I don't recall.
Q. Well, you had a traffic expert; correct?
A. Yes.
Q. You had a land use expert; correct?
A. Yes.
Q. How many people from Shaw Environmental
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McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS
(312) 263-0052
Electronic Filing - Received, Clerk's Office, April 6, 2009
1
testified at the hearing?
1
is a very specific procedure on how you have to go
2
A. Three.
2
about estimating post closure costs for the IEPA,
3
Q.
And we would call them landfill experts;
3
and numbers were talked about.
4
correct?
4
People in the audience just took whatever
5
A. Need expert, geologist, and a landfill
5
number was testified about and started
6
expert, design engineer.
6
exaggerating, and said,
"Well, if you require,
7
We had an appraiser that testified.
7
let's just say, and I don't remember the number
8
So what are we up to nine-ish, what's
8
precisely, a hundred thousand dollars, people
9
that?
9
started throwing around,
well, make it 10 million,
Q.
Around there.
10
make it 20 million.
A. Yeah. Operator testified.
,11
And the question came from Rose Spears, on
Q.
But you're not claiming Fox Moraine was at
U
Page 85, let me back up a couple lines here, about
all prevented from putting on the evidence it
13
that. And then we get into whether there's going
wanted to in support of its application; are you?
14
to
be a drop-off facility.
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A. No. We weren't prevented from putting the
15
evidence
on, it just wasn't listened to.
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Q.
All right. So you're not claiming that
17
you had anything
less than a full and complete
18
opportunity to put
on your case; right?
19
A. We had the opportunity to put on our case,
20
The issue was that she was interested in
money. And
you'll see throughout the transcripts
numerous times when Ms.
Spears could not focus on
the criteria and the evidence and only focus on
money, despite it having absolutely nothing to do
with the criteria that was being testified
at the
that's correct.
21
Q.
Let's go back to a question I asked you
22
regarding whether you thought the city council
23
members were intimidated. And you said one way you
124
21
1
perceived it was by their questioning.
2
What did you mean by that?
3
A. Give me a minute, see .if I can find an
4
example.
5
There were questions that were asked that
6
focused on what
I recall as shouts from the
7
audience. They were during periods
of time when we
8
were
talking about something that was inconsistent
9
with the shouts from the audience.
10
It would have been, in my opinion, a lot
11
better served if the council members would have
12
focused
on the testimony instead of the people in
13
the stands.
14
One of these examples is testimony of
15
March 22nd,
2007. We're talking about post closure
16
and the EPA requirements.
17
MR. MUELLER: What date is that, Devin?
18
MR. BLAZER: March 22nd.
19
THE
WITNESS: This is on March 22nd. I'm on
20
Page 83 to 85, right in that area.
21
And then we get into how rules are
22
changed, kind of getting a little off, but there
23
were
people in the stands that want to just, you
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time. And that follows all the way through to the
meeting
on the 24th where she started attaching
special conditions with arbitrary and extremely
large
sums of money that she wanted -- if for some
23
reason the thing did get approved, she wanted these
big sums
of money. I believe all of that was in
direct effort to placate the objectors and to show
them that she was after the money.
On Page 58, she talks about what percent
of the revenue she's going to
be getting, or the
City,
I should say.
The question
is: "Are you going to go
ahead
and be selling the recyclable materials?
"Yes.
"Is
the City going to receive any percent
of the revenue that is coming in?" And it goes on.
But throughout this document, you can find
where Rose is
constantly hearing the money, and
then she goes and
talks about money or asks about
the money.
I don't think it's relevant to the
evidence.
BY MR. DOMBROWSKI:
Q.
Who was running the hearing?
A. Good question. I think the hearing
officer made
an attempt to run the hearing, but it
appeared to
me that he was ordered to not use his
best judgment
and stick with what I considered
24
know, because the issue of money came up, and there
24
ridiculous hours to conduct the hearing. Many
22
24
I:
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6 (Pages 21 to 24)
McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS
(312) 263-0052
Electronic Filing - Received, Clerk's Office, April 6, 2009
1
small hearings over a short period oftime ending
1
to bear some of that responsibility.
2
at
precisely 10:00 o'clock instead of 10:05,
2
Q.
But you have no evidence or information or
3
waiting for Ms.
Polens, who was habitually late, I
3
anything to indicate that the city council was
4
believe purposefully, to extend the hearings.
4
telling him how to do his job; right?
5
We
could have conducted this hearing in a
5
A.
I do not have any information.
6
much more efficient manner with more than
ample
6
Q.
Another thing you mentioned was you
7
opportunity for
public input, but I believe
7
perceive that they were threatened because of their
8
Mr. Clark, the hearing officer, was working at the
8
level of attention. What did you mean by that?
I'
I'
9
direction,
I believe, of the mayor, but I don't
9
A.
When critical testimony occurred, they
10
know that for sure.
10
were found not paying attention. Looking at their
11
Q.
That is pure speculation on your part;
11
laptops. Typing, for whatever reason I would
12
right?
12
not -- you know, I can't venture a guess. Getting
i
13
A. Yes.
13
up and going to the restroom. You know.
14
Q.
Same thing, for example, as to whether
14
I remember I spent a fair amount of time
15
Ms.
Sackett was habitually late on purpose is
15
up there, and
I tried to get eye contact with each
16
speculation on your part?
16
and every one of them.
17
A. Well, she knew where the place was. She
17
Some of them in particular seemed to bear
18
knew when the time started. We all knew how to get
18
no interest in what I thought was a pretty
19
here
on time. There was only one person who had a
19
important criteria, Criteria 2.
~O
problem getting here.
20
Q.
And that's all pure speculation on your
I,
121
Q.
Were the starts of the meetings delayed
21
part; correct?
~2
until she showed up?
22
A.
Well, I think a teacher would have a good
123
A. Yes.
23
idea whether students are paying attention.
~4
Q.
But it was Mr. Clark, it was -- he was
~4
I have been in nearly 50 hearings of this
I
25
27
Ii
1
authorized under the
City ordinance to run the
1
nature, and
I think you have an idea whether
2
hearing; correct?
2
somebody is paying attention to you when you're
1
3
A. He was hired as the
City -- as the hearing
3
speaking.
4
officer.
I don't know what direction he was to
4
Q.
Now, as far as you know, the city council
j
5
take from the
client, the City. I don't know.
5
members
also had the opportunity to review the
6
Q.
But he was the guy who ruled on
6
transcripts
of every landfill hearing; correct?
7
objections, for
example; correct?
7
A.
I would assume so. I don't know that.
8
A.
Yes.
8
Q.
You certainly received all the
9
Q.
And he was the guy who said, "Let's move
9
transcripts; correct?
10
the proceedings along, we're done with this
10
A. I did.
11
witness," for example; correct?
11
Q.
And as far as you know, every city council
12
A.
I don't recall him saying that.
12
member did as
well; right?
13
Q.
But he was the person, and not the city
13
A.
Yes.
14
council, charged with running these meetings in an
114
Q.
One other thing you mentioned was a
15
16
characterization,
orderly fashion, you
but
make
that was
take
his
issue
role
with
and
that
no one
1
115
16
the
catering
council
to landfill
members.
opponents at the hearings by
Il
17
else's; correct?
117
What did you mean by that?
18
A.
I'm not sure what direction he took from
118
A. They were giving them much -- an
I:
19
the
City at all.
119
inordinate amount of time and berth to get up and
I}
20
I know that the hearing officer is trying
~O
provide public comment that is, you know, A,
21
to rule on evidence and objections, trying to
21
factually wrong for the most part, B, repetitive,
:~
22
maintain order in somebody else's community.
22
on and on, I don't know how many times we'd hear
23
When the entire elected officials are
23
about
G. Fred Lee, a famous landfill opponent and
f
~4
sitting there, I think the elected officials have
24
Internet predator who feeds to frightening people.
26
28
7 (Pages 25 to 28)
McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS
(312) 263-0052
Electronic Filing - Received, Clerk's Office, April 6, 2009
1
Mr. Roth is saying, I can't help you, I'm
1
Q. Well, we'll get into that later.
2
paraphrasing, I don't know, you know, creates a
2
How many pages was it; do you know?
3
fundamentally unfair decision. The
council members
3
A. I don't remember the precise number of
4
did not know whether
to give equal weight to the
4
pages.
It was -- you know, it was a substantial
5
written material or should they give greater weight
5
submittal.
6
to the experts and the testimony that were
6
Q. Around 1400?
7
subjected to cross-examination.
7
A.
Probably. I don't know.
8
It was clear there was a high level of
8
Q.
All right. 5D I assume refers to May 23rd
9
frustration
on the 23rd, to the degree that they
9
and 24th. Anything to add in addition to what
10
postponed the meeting to the next day to give them
10
you've already testified to?
11
24 hours, take sleep and work away, let's give them
11
A. No.
12
16 hours there, eight hours to go through another
112
Q.
5E, multiple members of the council were
13
thousand pages of written material. I don't think
113
biased against Fox Moraine and pre-judged the
14
that's enough. I can't read a thousand page in
114
application. What information or evidence have you
15
eight hours.
15
got to support that allegation?
16
But despite that, the mayor ramrodded this
16
17
decision. The mayor decided that she, quote
17
18
unquote, is running the hearing, not the hearing
118
19
officer anymore. She was damn determined to have a
119
20
vote on that day. And people were dying for
120
21
direction. They wanted to know how to weigh the
:21
22
evidence, and the attorney turned their back on
122
23
them. I think that created an unfair situation.
:23
24
Q.
Well, these meetings on the 23rd and the
'24
41
A. All I have is -- I don't know have
evidence.
Alii have is their actions, their
behaviors, their body
language. I don't have
evidence that shows that they were
in collusion
with the FOGY members. That doesn't mean it does
not exist. That means that
I was focusing more on
the technical components.
Q.
Any evidence that the council members who
voted on the application were biased against Fox
1
24th, these were not for
the hearing officer to
1
Moraine?
2
run; correct?
2
A. I think that's the same question.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
A.
She made that clear. It was her. It was
3
Ms. Burd that was going to run them. She had been
4
elected the mayor, she was damn bound determined to
5
get those votes.
6
Q.
Well, who should have been running that
7
meeting?
8
A. I think I -- I'm not saying who should
9
have been running
it.
10
What I said it should have been done in a
111
time that allowed people to read the material. It
112
should have been done in a manner that they had
13
good
legal help when they called for legal
114
interpretation that somebody gave to it them, so
115
that they could fairly conduct the meeting.
'16
The fact that it was inadequate time to
17
review the written material, that there was no
18
legal direction on how to weigh the evidence
19
created a fundamentally unfair atmosphere
on those
20
two nights.
21
Q.
When did Fox Moraine submit its
22
post-hearings comments?
23
A.
I don't know. I don't recall.
~4
Again, I focused on the technical
component of the application. My belief is there
was significant bias based on the way they viewed
the evidence, the way they weighed the evidence
with
virtually no weight given to the evidence that
was submitted by the
applicant and significant
weight given
to Internet fodder, and it's either
bias or ignorance,
I'm not sure which, but it has
to be one of those two.
Q.
When you were reading articles that you
were receiving through the
clipping services, did
you see anything
in any of those articles that
indicated members of the city council might be
biased against Fox Moraine?
A.
No. I don't recall.
Q.
Do you recall seeing an article that
appeared on April 15th,
2007 in the Beacon News in
which candidates were asked about the landfill?
A.
I do not recall.
Q.
Did you ever say to anyone prior to May 23
and 24 of '07 that Fox Moraine should do something
to
disqualify people because of bias or
I~
.1
I'
I~
42
44
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11 (Pages 41 to 44)
McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS (312) 263-0052
Electronic Filing - Received, Clerk's Office, April 6, 2009
1
pre-judgment?
1
hearing. I have no opinion. I don't know who he
I'
2
A. No. It would not have been my roll.
2
is.
3
Q.
I understand it might not have been your
3
Q.
How about Robyn Sutcliff?
4
role, but did you ever mention that to anybody?
4
A. Was she elected at the time?
'j
5
A.
I mentioned to the attorneys I thought
5
Q.
At the same time, yes.
,
6
they were bias. I don't remember what date, but I
6
A.
Okay. She wasn't at the hearings as far
7
could
tell by the atmosphere, by their questions,
7
as I'm concerned. She didn't participate at the
8
by their mannerisms, they weren't listening, they
8
front table.
9
weren't paying attention.
9
Q.
Do you have any evidence or information
E
10
Q.
And these were perceptions that you had in
10
that she was biased against Fox Moraine?
~
n
11
March and April of '07; correct?
11
A. Don't know her.
~
12
A. Yes.
12
Q.
How about Marty Munns?
13
Q.
And which attorneys did you mention to
13
A. Marty seemed to weigh the evidence, pay
14
that you thought these people were biased?
14
attention. Marty in particular
on the 23rd and
15
A. I would have mentioned it to George
15
24th asked a significant amount of questions and
16
Mueller and Chuck Helsten.
16
expressed a lot of frustration that he didn't have
17
Q.
And which council members did you say were
17
the time to review all of the evidence before the
18
biased?
18
vote. And we can go through that testimony
if you
19
A. I recall specifically Rose Spears and
119
want, but I thought Marty was paying attention, and
~O
Valerie Burd, in my opinion, never gave -- never
!20
I think that he tried to listen. And on the 23rd
I;
~1
weighed the evidence at all.
,21
he said, "I just can't get through all this stuff.
,
~2
Q.
Anyone else other than those two?
:22
I heed some help." He asked questions, he pleaded
I,;
23
A. Not off the top of my head.
:23
for help, but Valerie Burd had -- would have none
24
Q.
All right. Let me refer you to the last
24
of it.
!~
45
47
1
page of Exhibit 7 here.
1
Q.
Well, there was a vote on the/23rd as to
2
This lists the eight council members at
2
whether to table the proceedings for another day;
3
the top
of that last page who voted on the
3
was there not?
4
application.
4
A. Yes.
5
Did you think Mr. Werderich
was biased
5
Q.
And that was voted down?
6
against Fox Moraine?
6
A. No. It was accepted to delay another day,
7
A. Was he a council member during the
7
but they took -- the comfort zone that people had
8
hearings?
8
the next day, there were still questions about the
I'
9
Q.
He was elected on April 17th.
9
ability to read that or to go through the material.
If,
10
A.
See --
110
There was still questions about how to weigh the
Ii
11
Q.
But he was running for office.
11
material.
12
A.
He didn't sit in on the council -- he
12
Q.
So any evidence that Mr. Munns was biased?
13
didn't sit in on the hearings. He wasn't sitting
13
A. Not that I can think of.
I;;
14
there. He wasn't the audience that I testified to.
14
Q.
How about Mr. Golinski?
15
He wasn't the guy that
I looked into the
15
A.
I don't believe he was on the council, or
16
eye that
I tried to show drawings to, that I passed
16
I don't remember him.
17
around pieces
of synthetic liner to.
17
Q.
How about Mr. Leslie?
18
The people that
I testified in front of
18
A. No. I think Mr. Leslie weighed it fairly.
19
are not the same group
in total that voted on this,
119
Q.
How about
Mr. Plocher?
~O
as you know.
120
A.
I don't believe he was on the council
~1
Q.
I understand. But do you have any
121
during the hearings.
~2
evidence or opinion that Mr. Werderich was biased
122
Q.
He was not.
23
against Fox Moraine?
:23
A. Then I have -- I have no idea who they
24
A. I don't even know if he attended a single
i24
are, whether they even looked at the evidence.
I~
46
48
1\
..•.•....
" .. '<
',,'m-' "'v,
',),.',-"" .)'-.-:";',"
12 (Pages 45 to 48)
McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS
(312) 263-0052
Electronic Filing - Received, Clerk's Office, April 6, 2009
This particular landfill I did the siting
expansion on back in
early 2000s, I did the design.
And the attempt here was to try and show that this
facility is a well-run facility and can be a good
neighbor to the
people that live around it.
I.
In this particular landfill, since I have
personal information, we were able to obtain a
letter of support by every contiguous property
owner around the
landfill supporting the expansion
of the landfill. It's a demonstration that the
people are good neighbors, that they know how to
run a
landfill without impacting property values,
dust, noise, odors, litter, all of the things that
were thrown out there to try and scare the
local
citizenry. These people wanted the landfill
expansion, and it demonstrates that PDC knows how
. to run a
landfill. And it goes directly in the
face of the other things that were given much more
considerable weight despite evidence to the
contrary.
Q.
So these would have been documents that
you
already had in your office because you had
worked on this
landfill?
A.
Yeah. I probably would have had these.
i'
I~
~
__________________________ .-_________________________
63~1"
Q. All right. The next attachment is
Attachment 6, which is
listed as a noise
evaluation.
It
begins at C17635. I included just the
first page.
It's about a 28-page attachment.
This is something that
Shaw had done as of
March 27, 2007; correct?
A.
Correct.
Q. Let me refer you to the first page of
Attachment 8, which is the PM analysis.
MR. MUELLER: What's the date on that or
the --
MR. DOMBROWSKI: The number is C17665.
THE
WITNESS: Okay.
BY MR. DOMBROWSKI:
Q.
And this was something that Shaw had
completed as of what date?
A.
Around May 15th. Well, it would have
been
-- the way -- we have a three-level check
system.
The work is done by a
-- in this case, an
engineer,
Zach Christ, the data input for that
would be done by somebody else, so that we have
16 (Pages 61 to 64)
McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS
(312) 263-0052
Electronic Filing - Received, Clerk's Office, April 6, 2009
EXHIBITB
Electronic Filing - Received, Clerk's Office, April 6, 2009
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
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23
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 deposition of JESSE VARSHO, taken
in the above-entitled cause, before
Elizabeth L
Vela, a notary public of Cook County, Illinois, on
the 29th day
of August, 2008 at the time of
1 :30 p.m. at 24 North Hillside, Hillside, Illinois,
pursuant to Notice.
Reported
by: Elizabeth L. Vela, CSR
License No.: 084-003650
APPEARANCES:
MUELLER
ANDERSON, by
MR.
GEORGE MUELLER"
628 Columbus Street, Suite 204
Ottawa, IL 61350
(815) 431-1500
Representing Fox Moraine, LLC,
WILDMAN, HARROLD, ALLEN
&
DIXON, by
MR.
LEO P. DOMBROWSKI,
225 West Wacker Drive
Chicago,
IL60606
(312) 201-2562
Representing United City
of
Yorkville.
1
2
3
4
5
6
7
8
9
ho
11
12
13
14
15
r
6
~7
~8
n9
CW
~1
tz2
~3
tz4
1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
IN D EX
WITNESS
EXAMINATION
JESSE VARSHO
BY MR. DOMBROWSKI
5
EXHIBITS
NUMBER
MARKED FOR ID
(NO EXHIBITS MARKED)
(Witness sworn.)
MR. DOMBROWSKI: Would you state your name,
please, sir?
THE
WITNESS: Jesse Varsho.
MR. DOMBROWSKI: Mr. Varsho, my name is
I?
,i
:
i
:j
i1
i~
:'
:
~
:
~
:
h
I:
I:
11
Ii
31:;
Leo Dombrowski. I represent the United City of)
Yorkville in this landfill appeal. We're going to
be asking you some questions.
~
Do you understand we have a court reporter
here
and she'll be taking down everything you, I,
and your lawyer say?
THE
WITNESS: Yes, I understand that.
MR. DOMBROWSKI: Please answer audibly so that
she
can get that down,
Also, let me finish my question before you
start answering.
Is that all right?
THE WITNESS: That is understandable.
11
I~
I~.
MR. DOMBROWSKI: And I will let you finish your
i
answer before I proceed on to my next question.
Now, if you don't understand a question,
would you let me know?
THE
WITNESS: Okay.
MR. DOMBROWSKI: So if you don't understand it,
,~
I'll rephrase it.
2
4
1
1 (Pages 1 to 4)
McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS
(312) 263-0052
Electronic Filing - Received, Clerk's Office, April 6, 2009
MR. MUELLER: You never asked him whether he
Q.
So as far as that goes, there was no
2
was present.
You asked him whether he had anything
2
difference between these annexation meetings and
3
to do with the annexation process.
3
the
landfill meetings, right?
4
BY MR. DOMBROWSKI:
4
A. No.
5
Q.
How many of these preapplication meetings
5
Q.
All right. So have we exhausted
6
were you at?
6
everything that you thought was unfair about the
7
A. You mean prefiling meetings?
7
prefiling period?
8
Q.
Yes.
8
A. Yes.
9
A. Probably three or four.
9
Q.
All right. And next, you were, I believe,
10
Q.
And these were separate from the two
10
talking about the 90-day period between filing and
11
meetings that Shaw and Fox Moraine put on, correct?
111
the start of the hearings, is that right?
12
A. Correct.
112
A. Correct.
13
Q.
Now, at those two meetings, you certainly
13
Q.
And what did you think was unfair about
14
had
an opportunity to provide information about the
14
that?
15
landfill and to address people's concerns, correct?
15
A. Well, I think the -- there's a couple
16
A. It was an informational meeting.
16
conditions.
17
Q.
And you took questions from the public,
'17
First of all, the County lawyers showed
18
correct?
18
up. And this kind
of transitions to the prefiling,
19
A. Yes.
19
but during the prefiling, the County showed up and
20
Q.
Well, why do you think that having
20
threatened a lawsuit if the City annexed it and
21
citizens of Yorkville voice their displeasure or
21
already was providing a -- you know, an attitude
22
however you want to put it with the annexation
22
that we're going to fight you, you know,
if you
23
process rendered the proceedings fundamentally
23
annex this piece
of property prior to the siting.
24
unfair?
24
Then, during the
90-day kind of stand-by
29
1
2
3
4
5
6
7
8
9
A. Well, there's a couple reasons. I mean,
1
period between
filing the hearings, the County's
attorneys showed up and essentially threatened the
City
on their choice of a hearing officer at that
first is, the City
Council is essentially required
2
to attend the annexation meeting. They were not
3
required to attend the Fox Moraine
informational
4
meetings.
5
Second of all is, one of the things I
6
think makes the siting
SB 172 process a very good
7
process, it requires experts to go under testimony
8
and provide scientific data or evidence, where at
9
these meetings, these
public meetings, people can
'10
go up and just voice their displeasure.
11
They're not recognized as experts, they're
12
time and made statements that
I thought were really
inappropriate, stating that -- taking attacks on
personnel from Fox Moraine that weren't even at the
meeting,
alleging connections or innuendos about,
you know, behind-the-room
deals, and then, just,
you know, offering
legal advice to the City Council
even though they were -- had
already showed bias
towards this
application.
In addition, during the -- you know, this
31
10
11
12
13
14
15
16
17
18
19
~O
~1
Q2
23
24
not experts, they're not being -- providing
13
evidence under sworn testimony.
14
90-day period was, there was a reannexation hearing
where there were threats made to the City Council
So there is a very large difference, you
15
know, between that process. And
I believe that's
16
why the --
our State Government set up the SB 172
17
process, to
help separate evidence from concerns by
118
the public.
119
Q.
And during the landfill hearings, people
120
also had the same opportunity to get up and say
121
whether they were pro-landfill or anti-landfill,
122
~re~
~
A. Correct.
124
30
by its citizens saying that if you vote for the
annexation, you know, we won't sit next to you at
church,
we'll -- you know, during the elections,
we'll
vote you out.
And you know, it
could have provided a
bias or intimidation factor
to the City Council
before we even got to the public hearing.
Q. So you think the citizens of Yorkville did
not have a right to voice their concerns about the
landfill?
32
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McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS (312) 263-0052
Electronic Filing - Received, Clerk's Office, April 6, 2009
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A. I didn't say that.
Q.
You think they did have a right to voice
their concerns about the
landfill?
A.
They have a right to voice their concerns
about the
landfill at the appropriate time.
Q.
You mean they can't as citizens register
their concerns during some time that doesn't
fall
within a landfill hearing?
A. That's how the process was set up.
Q.
Was anything illegal done by the citizens?
MR. MUELLER: Objection.
I think you're asking
him for a
legal conclusion. He's not a lawyer.
BY MR. DOMBROWSKI:
Q.
Anything you know to be illegal done?
MR. MUELLER:
If you know, Jesse.
THE
WITNESS: No.
MR. MUELLER:
No, you don't know, or no,
nothing illegal was done?
THE
WITNESS: No, I don't know.
BY MR.
DOMBROWSKI:
Q.
So you're saying, for example, someone
saying to
an elected official if you vote for the
landfill -- or for the annexation or whatever it
was, you
will be shunned at a restaurant, you're
33
saying that tainted the process?
A. Yes.
Q.
Why would that have tainted the process?
A.
I believe that's intimidation.
Q.
Well, certainly, it wasn't any -- there
were no threats
of physical intimidation, were
there?
A. Not to my knowledge.
Q.
So let me ask you a couple of things about
the County.
And this is
Kendall County we're talking
about, right?
A.
Correct.
Q.
What's wrong with the County saying we're
going to sue you
if you take certain action if the
County has a right to do that?
A.
Can you specify
what action you're
referring to?
Q.
Well, you're saying that the Kendall
County attorneys threatened who? The City?
A.
Yes.
Q.
All right. Threatened the City of
Yorkville that they would sue if the City annexed
the property?
Was that it?
34
" .. , "',.,,,',
, .. ,
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A. Yes.
Q.
And what's wrong with that?
A.
I don't -- the reason they were
threatening a
lawsuit was that they couldn't have a
landfill within the City of Yorkville. And that
was based on their determination.
And it was not the appropriate time,
because during the annexation, this was about
annexing the property into the United City
of
Yorkville. It was not about siting a landfill.
And if they wanted to threaten to sue the
City about siting a
landfill, that should have
occurred during the
landfill siting process where
Fox Moraine
would have had the opportunity to
either rebut, agree, or disagree with that
assertion.
Q.
Well, if they had to, Fox Moraine would
have had an opportunity to take a position on the
lawsuit, right?
A.
If they -- yes, you're correct.
Q.
Now, you mentioned something about
backroom
deals. Did I hear that right?
A.
Correct.
Q.
And who said what about that?
A.
There was concerns about the relationship
between
the proposed hearing officer at that time
and his relationship to Charlie Murphy, PDC.
Q. That's Peoria Disposal?
A. Correct, Company.
Q.
Well, again, who said what?
A. I believe it was Mr. Blazer came in and at
35
the beginning of the meeting stood up, said he
represented the County and made, you know, four or
five claims, which again, in my profeSSional
opinion were not appropriate at that time,
especially considering that
at that time, he had
also made it clear that they were going to fight
the facility, showing bias towards this
application.
Q. Well, Kendall County is not the
decision-maker
on your application, right?
A. Correct.
Q.
Who was the proposed hearing officer?
A. At that meeting, it was Glen Seshon
(phonetic).
!
I~j
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11
;
!
11
Q.
And some of the City Council also had
'1
concerns about Mr. Seshon, did they not?
A. Correct.
9 (Pages 33 to 36)
McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS
(312) 263-0052
Electronic Filing - Received, Clerk's Office, April 6, 2009
EXHIBIT C
Electronic Filing - Received, Clerk's Office, April 6, 2009
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BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE,
LLC,
)
Petitioner,
)
~
)~~B~1~
UNITED CITY OF YORKVILLE, CITY )
COUNCIL,
)
Respondent.
)
The discovery deposition of
JAMES D. BURNHAM,
taken in the above-entitled cause, before
JENNIFER
CAMPBELL, a notary public of Kendall County,
Illinois, on the 12th day of September, 2008 at
2:10 p.m., at 800 Game Farm Road, Yorkville,
Illinois, pursuant to Notice.
Reported by:
Jenn~er
Campbell, CSR, RPR
License No.:
084-003282
APPEARANCES:
MUELLER ANDERSON, P.C., by
MR. GEORGE MUELLER
609 Etna Road
Ottawa, Illinois 61350
(815) 431-1500
1
INDEX
2
WITNESS
EXAMINATION
3
JAMES D. BURNHAM
4
By Mr. Dombrowski
P. 4
S
6
7
a
9
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h1
h2
h3
h4
nS
h6
~7
EXHIBITS
NUMBER
MARKED
FOR ID
Yorkville Deposition Exhibit
No.S
P. S
(Retained by Mr. Dombrowski.)
ha
~9
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~4
1
(Witness duly sworn.)
2
MR.
DOMBROWSKI: Let the record reflect that
3
this
is the deposition of Jim Burnham taken
4
pursuant to notice and agreement.
5
JAMES D. BURNHAM,
6
called
as a witness herein, having been first duly
Representing the Petitioner,
7
sworn, was examined and testified as
follows:
8
WILDMAN HARROLD ALLEN & DIXON, LLP, by
9
MR. LEO P. DOMBROWSKI
110
225 West Wacker Drive
111
Chicago, Illinois 60606
112
(312) 201-2562
113
Representing the Respondent.
114
2
115
116
117
118
119
~O
~1
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~3
~4
EXAMINATION
BY
MR. DOMBROWSKI:
Q.
Would you state your full name for the
record,
please, sir.
A. James D. Burnham.
MR.
DOMBROWSKI: Mr. Burnham, I introduced
myself earlier to you. My name is Leo Dombrowski.
I'm an attorney for the City of Yorkville in this
appeal. I'll be asking you some questions today.
You understand that there's a court
reporter here to record everything, and that we
shouldn't talk over each other; is that all right?
THE
WITNESS: I do. Yes.
MR. DOMBROWSKI: And what will you do if you
don't understand a question or are confused by it?
THE
WITNESS: Say as such.
3
4
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McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS
(312) 263-0052
Electronic Filing - Received, Clerk's Office, April 6, 2009
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 all I can think of at this lime.
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.
1
2
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5
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12
What other statements, if any, did she
make that
you would consider to be biased against
the landfill?
MR. MUELLER: That you can remember as you sit
here now.
MR. DOMBROWSKI: He's a big boy, George, he can
testify for himself.
MR. MUELLER: I think it's a pretty broad
question. He didn't memorize all of those
statements.
THE WITNESS: My comment is -- is general in
nature. I believe that -- I believe that through
13
the course of this -- this whole process, that she
14
was generally against the landfill, and that's --
15
that's -- that's my perception.
16
BY MR. DOMBROWSKI:
17
Q.
Well, I'd like to go beyond your
18
perception or belief or your feelings and ask you
19
20
21
22
23
24
if you have any facts in support of these
allegations. That's the point of this deposition.
I understand that it's your feeling, and
it's Fox Moraine's feeling and Charlie Murphy's
feelings that the process wasn't fair.
We're sitting here today so that I could
37
38
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
112
you know of anything other than what's in those
I.'
I~
113
newspaper articles?
114
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.
120
THE WITNESS: I'm trying to think at this
'21
point. I can't think of anything.
n
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
BY MR. DOMBROWSKI:
2
3
4
5
6
7
8
9
A. I'm not aware of that. I'm aware of that
I;
Wally Wederich was involved in her campaign, and he
was a vocal opponent of the landfill, and I thought
I
I;;
11
10
11
12
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. Wed erich said that was
anti-landfill?
13
A. I can't recall.
14
Q.
And, again, not only as to Mayor Burd and
15
Alderman Wederich, but as to anyone either
on the
16
city council before the elections
of April 17th or
17
who was running for a spot, you know
of no one who
18
had any campaign literature that proclaimed
an
19
20
21
22
23
124
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
40
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McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS
(312) 263-0052
Electronic Filing - Received, Clerk's Office, April 6, 2009
1
have?
it not?
2
MR. DOMBROWSKI: I guess that all depends on
2
MR. MUELLER: That's asking him to draw a legal
3
how much Jim has. An hour maybe.
3
conclusion.
4
MR. MUELLER: I think your question is does he
4
BY MR. DOMBROWSKI:
5
know anything other than what's in our discovery
5
Q.
Well, I don't think it is. I mean, he
6
responses, the answer is going to be no.
7
MR. DOMBROWSKI: That would make it quick then.
6
said
he thought it was a summary denial.
8
MR. MUELLER: In a hurry then.
8
7
consider
So
to
my
be
question
a summary
is: Is
denial?
this what you would
I~
9
(Discussion off the record.)
9
A. My -- my comment on summary denial was
10
MR. DOMBROWSKI: Let's go back on.
!10
that I don't recall them going through each
11
BY MR. DOMBROWSKI:
11
individual criterion and discussing them, the
12
Q.
Mr. Burnham, as we go through the
12
merits of why they felt the applicant did or did
13
remainder of my questions here, you can exclude any
13
not meet that criteria.
14
statements that are made
in the newspaper articles
14
Q. Anything else in support of No.2 here?
15
you've given
us, so we don't have to retread that
15
A. Well, I believe that some of the council
16
ground. Okay?
16
people, you know, basically did nottake into
17
A. Okay.
17
account or had, you know, reservations about not
18
Q.
So when I ask you what information or
18
being able to review some of the work product from
19
evidence, et cetera, that you have in support of
19
the. hearing officer and or the attorney
20 . one of these allegations, you can tell me if
20
representing the staff. And I thought that their
21
there's anything that -- that is not in the
21
recommendations as being professionals was
22
newspaper articles. Okay?
[22
important to the process. And some of them said
23
A. Okay.
123
that they didn't have the time or they did not
24
Q.
All right. Let's go on to 2, which is
[24
review it.
41
43
1
that the vote taken by the city council was not
1
Q.
Anything else in support of this No.2?
2
taken in accordance with Section 39.2.
2
A. Not that
I can think of at the moment.
3
What is Fox Moraine's basis for that
3
Q.
Let's go on to NO.3. The allegation here
4
statement?
4
is that the city council
failed to comply with its
5
A.
I believe that the official action was a
5
siting ordinance, and that this failure rendered
6
denial of sorts. And I was under the impression or
6
the proceedings unfair.
7
I believe they need to go through each individual
7
What does Fox Moraine have to support that
I;
8
criterion to say why the
applicant proved or did'
8
allegation?
9
not prove that it satisfied that criteria. And, to
9
A.
Well, I believe that the -- that the
10
my recollection, they didn't do that. They just
10
siting ordinance, that the Yorkville siting
11
summarily denied the application.
11
ordinance, the framework for that siting ordinance
12
Q.
Let me refer you to Exhibit No.2, and
12
is to demonstrate compliance with, you know, the
13
attached to that exhibit is the City
Council's
3
Section 39.2, and I believe the obligation is to
14
resolution
of May 24,2007.
Do you see that?
114
render a fundamentally fair hearing, and, in not
15
A. Is it this one?
115
doing so, I believe that that's the basis for
~
16
Q.
Yes.
116
No.3.
17
A.
Okay.
117
Q.
When you say in not doing so, what are you
18
Q.
And on Page 2, Paragraph 2, if you would
i18
referring to?
19
turn to that,
please.
119
A.
In -- in my belief that the city council
~O
Do you see that the city council voted
~O
people were bias against the project.
I:j
~1
that certain criteria, I believe six or seven
21
Q.
Well, again, I'm asking you for facts that
22
criteria had not been met; do you see that?
22
support that allegation.
23
A.
Yes.
23
A.
Outside of what we've offered, I do not --
I:;
24
Q.
That's different from a summary denial; is
24
I don't have anything.
I,'
42
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'",.,.,
........
'>"',
11 (Pages 41 to 44)
McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS (312) 263-0052
Electronic Filing - Received, Clerk's Office, April 6, 2009
EXHIBITD
Electronic Filing - Received, Clerk's Office, April 6, 2009
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"'..w,"'
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
FOX MORAINE, LLC,
)
Peti tioner,
)
vs.
) No. PCB-07-146
UNITED CITY OF YORKVILLE,
)
CITY COUNCIL,
)
Respondent.
)
The discovery deposi tion of CHARLES MURPHY,
taken in the above-anti tled 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.
""",oM"'",,
""",.;c,,<
1
2
3
4
5
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7
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0
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2
., >oW
INDEX
WITNESS
CHARLES MURPHY
EXAMINATION
BY MR. DOMBROWSKI
BY MR. PORTER
EXHIBITS
4
127
NUMBER
MARKED FOR ID
Yorkville Deposition Exhibit
No.1
7
No.2
13
NO.3
No.4
(Witness sworn.)
CHARLES
MURPHY,
14
15
called as a witness herein, having been first duly
sworn, was examined and testified as follows:
EXAMINATION
BY MR. DOMBROWSKI:
Q.
Good morning, Mr. Murphy.
A. Good morning.
Q.
My name is Leo Dombrowski. I represent
the United City of
Yorkville. I'll be asking you
some questions today.
What
do you understand this deposition to
be about?
MR. PORTER: Objection. Vague.
THE
WITNESS: Could you clarify that?
BY MR. DOMBROWSKI:
Q. Pardon?
A. Could you clarify that?
Q.
Well, I think it's a simple question. Do
you have any understanding of what this deposition
is about?
MR. PORTER: Objection. Vague. Argumentative.
Counsel, if you want to ask him a question, feel
free. It's your deposition. You tell us what it's
3
:
4
1 (Pages 1 to 4)
McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS (312) 263-0052
Electronic Filing - Received, Clerk's Office, April 6, 2009
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~1
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t24
counsel for the County and comments that were made
that were preadjudication
of the merits of our
application prior to basically
filing where it was
made to
be of issue that the -- whether it was an
annexation or host agreement or such, there were
many comments and rancorous activity amongst
members
of the opposition group that led to a
prejudgment,
I believe, on the Council's part in
their ability to make a fundamentally fair decision
on the merits of the hearing and process that
subsequently
followed all of those activities.
Q.
So which members of the Council do you say
were biased?
A. Well, I believe Alderman Spears.
Alderman Burd at the time prior to being elected, I
believe
as well.
And subsequent to filing, I guess Plocher,
Sutcliff,
Werderich, were biased in their decision
ultimately in the ultimate vote. I'm forgetting
what --
Q.
Well, if you look at Exhibit 2, there's
a -- the
last page of Exhibit 2 lists the mayor and
the eight
alderman.
A.
Spears, Sutcliff, Plocher--
17
Q.
You've given me five names of people you
are
claiming were biased.
A.
Munns.
Q.
Pardon?
A. Munns.
Q.
Munns was biased?
A.
Actually,
Leslie, Golinski.
Q.
So everyone but Mr. Besco was biased?
A.
I believe that is the case.
Q.
Okay. I'm going to ask you some follow-up
questions.
I want you to be as specific as you can
for me, because you can
say someone was biased.
It's, I think, a very general statement,
but
I want you to give me any facts that you
have -- any facts that Fox Moraine has to support
these allegations. Fair enough?
A. Fair enough.
Q.
Okay. Tell me how you think
Alderman Spears was biased.
A.
Well, I believe she was party to the
process which
was the initiation of this ultimate
landfill
application by annexation, host agreement,
siting ordinance preparation, reannexation and
so
forth.
18
. ","
........ "' ...•
"~
..
,.,,.""
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1
2
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24
And the behavior
of -- during those
times -- or meetings was made to be
an open forum
by the opposition group, the
public, other members
of the public.
The County had weighed in on their
position regarding consistency with the
plan and
the threat of suit.
And
I think that the behavior of -- the
aggressive nature
of the behavior of the public and
the opposition
people, I think lends itself to be
intimidating, and as
well, showing that at the time
of consideration of these prior issues to a
landfill application that it was more about a
landfill than it was about the issues at hand.
And
I think that her legislative position
was compromised -- or compromised her
ability to be
a quasi-judicial judge for a subsequent landfill
application.
Rose Spears had
also had during the --
during -- had
also had outside contact regarding
issues
relative to the process.
I believe she's had communications and
open communications with the County's attorneys
regarding process and host agreement -- other
comparisons,
potential hearing officers.
And as
well, she had out -- information
gained outside
of the process through
communications that she had with Kane County
Environmental Group regarding issues that weren't
the subject
of the -- the subject of the
application.
Q. Okay. Let's go through those. So you say
her
legislative position was compromised because of
the -- are we
talking about Friends of Greater
Yorkville, that group?
A.
That -- yes, that would be the most
boisterous group,
along with, I guess,
Todd
Milliron, who was or wasn't a member but the
most aggressive behavior at these meetings.
Q.
But these were public meetings, correct?
A.
They were public meetings.
Q.
And were you present at these meetings?
A. I was.
Q.
What behavior did you see that you claim
.~
to be hostile or intimidating?
A. Aggressive, in your face accusations.
Q.
Well, can you give me any example --
A. If you approve the landfill -- or approve
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the annexation, you're approving a landfill.
Throughout those times, the public was --
you know, you're going to be --
if you decide--
make these decisions, you could be sitting alone.
You know, going to the restaurant, you'll
be sitting alone.
If you're going to church,
you'll be sitting alone.
I think things that were
intimidating to me sitting there for someone who's
been sitting in a crowd as one
of the only people
representing a project was intimidated by that.
I'm sure that that had to be as difficult
for someone that was in a decision-making position.
Q.
All right. Who made what statements?
A. It would be the group. It was
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George Gilson to Todd Milliron to Gilmour, Judy and
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Tom, and others who were very aggressive in their
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behaviors, along with other residents.
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I don't have specific recollection of the
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exact statements by each. I think the records from
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those meetings would reflect that and I think that
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I gave you one.
MR.
DOMBROWSKI: Well, then, you make that
objection.
BY MR. DOMBROWSKI:
Q.
Go ahead and answer.
A.
I believe that would be subject to the ex
parte rules.
Q.
So you're claiming that would be an
example
of an improper ex parte contact?
A.
I believe it would.
Q.
Now, when you say threatening calls or
statements, did they
go be -- did those statements
go beyond anything like we're not going to vote for
you
if you vote for the landfill?
Were these people threatened with physical
harm?
A.
My understanding, it was more of the
nature
of threatening physical harm.
The comments of you're going to lose your
seat if you vote for this, that was definitely in
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would show in specific, I guess.
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Q.
You're not claiming any of these people
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the conversation throughout all of these meetings.
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They were--
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did anything illegal, are you?
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Q.
But they --
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MR. PORTER: Objection. It calls for a legal
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A. They were told that they were going to be,
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conclusion. You can answer to the extent you know.
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WITNESS: I am aware of threats to people
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I believe,
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was one who represent -- or Alderman Besco had
represented he had threats at home.
And
I believe, as well, Alderman Munns had
concerning phone calls, as well as,
I believe at
the time, the Mayor, Mayor
Prochaska, had
concerning phone calls to his home.
Q.
Well, when you say concerning phone calls,
can't a constituent call up --
A. Threatening phone calls.
Q. --
his or her elected officials and make a
comment as to an important issue in the community?
MR.
PORTER: I'll object to the extent that
calls for a legal conclusion.
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Counsel, as you probably know, no, they
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cannot. That's the decision-maker. That is an
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improper ex parte communication. Having said that,
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if you know, go ahead and answer.
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objection. I think that's in the nature of a
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speaking objection. You're coaching him.
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you know, voted out.
People were going to vote
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them out of office if they pursued this.
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Q.
Okay. I understand that, but my question
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is, there were no threats of physical harm to
anyone, correct?
A. My understanding is, there was threats to
physical harm.
Q.
And what is your understanding based on?
A. Conversations with -- from those people at
meetings that they had had calls to their home
threatening them and to where they had
actually
called and talked to the police about it.
Q.
Okay. Who -- now, when you say
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threatening, go deeper for
me. What do you mean by
that?
A. Some sort of threat that related to a
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positive vote supporting this process, be it
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annexation or the landfill potentially would lead
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to some type of harm to them.
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Q.
Some sort of physical harm?
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A. Some sort of harm. I don't know if it was
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physical or what.
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Again, it's a secondhand conversation or
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annexations and ultimately approval of a landfill.
And I believe that he was biased in that a
member of the community with some political
horsepower. And if Mr. Munns was looking at --
felt -- or maybe felt intimidated or concerned that
he could have -- it could have affected his own
political career or other activities in the area
may have been weighted heavily
on his decision to
vote for or against.
Q.
That's just speculation on your part? I
mean --
A.
No. That's conversation I got from one of
the
Council people. And it was either
Alderman Munns directly or Alderman Besco at some
point.
Q.
So did Alderman Munns tell you he had
spoken with Greg Ingemunson or did you get that
information from someone
else?
A. I got that from Mr. Munns.
Q.
When did he tell you that?
A. And that was prior to our filing the
application that the concern for Ingemunson was out
there, contact.
Q.
So did Ingemunson say to Munns that he
113
wanted the landfill property annexed or --
A. No.
Q. -- he didn't want it?
A.
He would prefer it didn't get annexed.
Q.
But Munns voted in favor of the
application -- in favor of the annexation, correct?
A.
He voted in favor of the application but
ultimately denied -- voted in denial of the
landfill.
Q. Right. You said application. I think you
meant annexation, right?
A.
He voted in favor of the annexation and
ultimately voted -- or denied the application for
the landfill.
Q.
Right. So he took a position contrary to
what Mr. Ingemunson may have wanted him to?
A.
I don't know that you can say that.
Ultimately, the landfill was denied.
And I think ultimately, the concern for
the landfill was as much the concern versus the
annexation.
His client was part of the annexation
corridor, but I think ultimately, the concern was
for the landfill. His father has ties to the
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competing landfill in the county and political
influence, I believe, hoping to swing a vote there.
Q.
So the father, Dallas, has ties to waste
management?
A. To their
application, yes.
Q.
Does he represent them?
A.
He is -- he is representing them not
specifically on the application but on other
issues.
Q.
But again, if Mr. -- if Greg Ingemunson
told Marty Munns to vote against the annexation,
Munns
would have disregarded that admonition,
correct?
MR.
PORTER:
Objection. It calls for
conjecture.
THE
WITNESS: If you could restate that or
re --
BY MR. DOMBROWSKI:
Q.
Right. Are you saying Greg Ingemunson
told Marty Munns to vote against annexation of the
landfill property?
A. He was concerned about annexation and
subsequent to have a
landfill.
Q.
Right, but let's just stick with the
annexation.
A.
I don't take it that he wanted him to deny
the annexation.
I took it that his ultimate goal
was that the landfill didn't get sited.
Q.
But the annexation was all part of that,
right?
A.
The annexation was a part of the property
being brought into
Yorkville.
Q. Anything else --
A.
Additionally, with -- as far as
115
Ingemunson -- Boyd Ingemunson, who ran for State's
Attorney, it was
knowledge that, as well, the
Ingemunsons' campaign or Boyd Ingemunson's
campaign, they
had peppered the community with
anti-Eric Weiss brochures that
I believe created --
intending
to create a bias to Eric because he took
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campaign donations from Hammon and had pictures of ;
Eric Weiss in front of garbage -- or in front of a
\
landfill with garbage behind him and they sent out
these fliers.
So the knowledge of the Ingemunsons or --
and the play of them to market in a campaign prior
and during this period of time also showed that
there was a bias on their part, certainly in
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influencing the public to try to intimidate them or
2
to vote for someone other than Eric Weiss or to
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vote for Boyd because of the landfill connection.
4
Q.
Wasn't their a bias on the part of Fox
5
Moraine to influence the landfill -- to influence
6
the public and the aldermen to vote in favor of the
7
landfill?
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A. Is there a bias --
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Q.
Right.
~O
A. -- on Fox Moraine's part to influence the
~1
public?
~2
Q.
And the aldermen to vote in favor of the
~3
landfill.
~4
A.
How was that?
5
Q.
I'm asking you.
jl6
A. No, I don't see how we biased that. We
7
presented our application and we're looking for a
8
fundamentally fair hearing down the road.
9
Q.
Right. And you put on your case, correct?
:>0
A.
We put on our case.
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Q.
And the objectors put on their case,
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correct?
:>3
A.
That's correct.
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Q.
And you had competing interests, am I
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And I guess Dean Wolfer is somebody that I don't
think we can take off the
list either, but Gary
came into the process
in the middle of all of the
craziness going on.
I don't remember exactly when
he was seated.
He was appointed by Mayor Prochaska, but
he
would have been subject to all of the acrimony
and rancorous behavior and
public comment and so
forth
in these public forums that were not about
the
landfill prior to the landfill.
And he sat through the hearings and
listened to all of the testimony on both sides and
Ii
I:
then was subject to making a decision based on
)
something short of all of the record without having
,
the ability to -- and he commented in the decision
meetings that they were
unable to and it wasn't
fair and
it would be hard for them to consume the
hearing officer's transcript and the -- their
attorney and their experts and then
subsequently
Fox Moraine's, as well.
So I believe
that that puts him in a
fundamentally unfair position
to vote on the merits
or the manifested weight of the evidence for Fox
Moraine.
1----
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right?
A.
I did. I didn't have competing
influences.
Q.
Anything else on Mr. Munns?
A.
Mr. Munns, as well, during the hearing was
evaluating or looking at alternative energy sources
and --
Q.
That's the one article you had referred to
earlier?
A.
The Popular Science.
Q.
Anything else?
A.
His -- well, I think I started with his
overall participation from stem to stern of the
open meetings and public meetings from annexation
and
all the way up to filing and subsequently
participated in the meetings that the public
commented on that were clearly ex parte or were on
the issue of landfill when the landfill was not up
for consideration yet. We hadn't had our day
in
court yet.
Q.
Anything else on Munns?
A.
I think that will tie him up.
Q.
How about Golinski?
A.
Jerry Golinski, he replaced Dean Wolfer.
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Q. Because he was replacing Alderman Wolfer?
A.
Not just --
I;
Q.
And--
A.
Go ahead.
Q.
And didn't have enough time, you say, to
get up to speed on everything?
A.
I think that time was an issue, but at the
time he came
on, he was in the height of the rancor
and the craziness going
on in these open meetings
where you come
in and you're shell-shocked.
You see the deer in the headlights and
people coming at you and intimidating or
threatening that you're going to be voted out, so
on and so forth. You're not going to be sat by at
a restaurant.
You'll be alone at church.
And then, he's got that
in his mind, and
then, he's got to sit through the landfill hearings
to where that behavior and that goes on again.
We never had any -- we didn't present
during any time prior
to the application -- or the
hearing,
I should say, we didn't present anything
to -- or we didn't have that opportunity because it
was time to shut up.
It was time to wait to put it on at the
I!
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McCORKLE COURT REPORTERS, INC.
CHICAGO, ILLINOIS
(312) 263-0052
Electronic Filing - Received, Clerk's Office, April 6, 2009
CERTIFICATE OF SERVICE
I, Susan Hardt, a non-attorney, certify that I caused a copy ofthe foregoing
Notice
of Filing and United City of Yorkville's Motion in Limine
#5, 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 April 6,
2009.
/s/ Susan Hardt
[x]
UnderpenaIties as provided by law pursuant to ILL. REV. STAT.
CHAP. 110 - SEC 1-109, I certify that the statements set forth
herein are true and correct.
Electronic Filing - Received, Clerk's Office, April 6, 2009
SERVICE
LIST
BradleyP. Halloran
Hearing
Officer
Illinois Pollution Control Board
James R. Thompson Center,
Suite 11-500
100
W. Randolph Street
Chicago, Illinois
60601
hallorab@ipcb.state.il.us
George Mueller
Mueller Anderson, P.C.
609 Etna Road
Ottawa, Illinois 61350
george@muelleranderson.com
Charles HeIsten
Hinshaw
&
Culbertson, LLP
100 Park Avenue
P.O. Box 1389
Rockford, Illinois 61105-1389
chelsten@hinshawlaw.com
James
S. Harkness
Momkus McCluskey, LLC
1001 Warrenville Road, Suite 500
Lisle, IL 60532
jharkness@momlaw.com
Eric C. Weiss
Kendall County State's Attorney
Kendall County 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
Wheaton,IL 60187
jim@wkkplaw.com
heather@wkkplaw.com
James
B.
Harvey
McKeown, Fitzgerald, Zollner,
Buck, Hutchison
&
Ruttle
24255 Glenwood Avenue
Joliet,IL
60435
jim@mckeownlawfirm.com
Electronic Filing - Received, Clerk's Office, April 6, 2009
