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January 13, 1994


Appeal from the Order of the Illinois Pollution Control Board. PCB 92-156

Released for Publication February 23, 1994.

Present - Honorable Peg Breslin, Justice, Honorable Tom M. Lytton, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Breslin

JUSTICE BRESLIN delivered the opinion of the court:

The respondent, Waste Management of Illinois, Inc., filed an application for site approval of a regional landfill facility. The Whiteside County Board approved the application, despite a challenge from the petitioner, Citizens Against Regional Landfill (CARL). The Illinois Pollution Control Board (PCB) affirmed the county board's decision. CARL appeals contending that: (1) the proceedings before the county board were fundamentally unfair because a hearing officer in the case had a conflict of interest; (2) its discovery rights were unduly restricted; (3) the PCB erroneously failed to completely review a deposition before making its ruling; and (4) the PCB erred in imposing sanctions upon CARL's attorney for referring in a brief to matters not properly contained in the record. We affirm.

The record shows that in April 1992, Waste Management filed a request with the Whiteside County Board for approval of a nonhazardous waste landfill. The proposed site was adjacent to an area formerly operated by the county as a landfill. On April 21, 1992, the board appointed William Barrett, a Whiteside County Special Assistant State's Attorney, as a hearing officer in the matter. Barrett had been hired by the county specifically to represent it in environmental matters.

In March 1992, the county entered into a contract with Waste Management that provided that it was "subject to an affirmative order in the aforementioned siting procedure" and that "the consideration and execution of this agreement by the County [would] not impede or compromise the county's decision-making responsibilities and duties in the aforementioned siting process." The contract further provided that Waste Management would "pay 50% of all reasonable and necessary legal and engineering fees incurred by the county in connection with the proposed landfill prior and subsequent to the siting application." Attorney Barrett helped negotiate this contract on behalf of the county.

In July 1992, a public hearing was held on Waste Management's application. Attorney Barrett served as hearing officer. At the hearing, Waste Management presented the testimony of seven witnesses to establish that they complied with the nine statutory criteria for approving the application. One expert was retained by the county and testified regarding the landfills ability to meet the criteria. CARL presented the testimony of various lay witnesses. Members of the public also testified.

In September 1992, the county board approved Waste Management's application by a vote of 18-7. Thereafter, CARL appealed the county board's decision to the Illinois Pollution Control Board. The PCB appointed Stephen Gunning to serve as its hearing officer in the matter.

Gunning scheduled a hearing on CARL's petition for review to be held on December 18, 1992. On December 10, CARL requested that Gunning allow it to depose attorney Barrett the day before the scheduled hearing. The county board filed an emergency motion to quash the subpoena served on Barrett. In the motion, the board stated that Barrett represented the county in environmental matters, that he was its counsel on appeal, that if he was deposed he would be compelled to withdraw from the case and that there was no other attorney who could adequately represent the county in the matter. Gunning granted the County's motion to quash and issued a protective order preventing CARL from taking the deposition of Barrett.

CARL then filed an emergency motion before the PCB to require that Barrett attend the deposition. In support of that motion, CARL's attorney, Patrick Hudec, stated in an affidavit that he had received information to substantiate that Attorney Barrett's fees for his services exceeded $60,000 and were not paid until after the county had approved both the contract between Whiteside county and Waste Management and had received siting approval from the county.

The PCB found that based on Hudec's statement it would allow "exploration, by discovery, of the information Mr. Barrett may possess regarding his role and compensation in such contract." The PCB permitted the deposition to be taken at the beginning of the scheduled hearing for a "minimum amount of time to be determined by the hearing officer, presumably not more than two hours." The PCB further noted that the decision of whether to require or admit the testimony of Barrett at the hearing was to be left to Gunning's discretion based on his evaluation of the deposition.

Barrett was deposed on December 18, 1992. Based on the deposition testimony, Gunning determined that there was no factual support for the statement made in Hudec's affidavit in his emergency motion to the PCB. Thus, Gunning stated that Barrett would not be required to testify. At that point, counsel for CARL requested that the entire deposition be admitted as an offer of proof. Gunning ruled that the entire deposition would not be admitted but only those portions that were relevant to Barrett testifying. He further stated that he would select the relevant portions and give the parties an opportunity to present argument about what should be included. At the Conclusion of the hearing, Gunning found that the hearings of July 1990 were fundamentally fair.

CARL's appeal to the PCB was due on January 4, 1993. On that day, CARL filed its brief with the PCB along with the entire Barrett deposition transcript. On that same day, but after CARL had filed its brief with the PCB, Gunning faxed a letter to the respective counsels in the case indicating which portions of Barrett's transcript would be included in the record. CARL's brief in large measure ...

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