CLERK’S
Q~P(’~
APR
I
02003
ILLINOIS POLLUTION CONTROL BOARD
STATE OFILLINOIS
CITY OF KANKAKEE,
Pollution Control Board
PCBO3-125
Petitioner,
)
.
\
(Third-Party Pollution Control Facility
Siting Appeal)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF
ILLINOIS, INC.
)
)
Respondents.
)
)
MERLIN KARLOCK,
)
PCBO3-133
Petitioner,
(Third-Party Pollution Control Facility
Siting Appeal)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS,
INC.
)
)
Respondents.
)
)
MICHAEL WATSON,
)
PCBO3-134
Petitioner,
(Third-Party Pollution Control Facility
Siting Appeal)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
)
KEITH RUNYON,
)
PCBO3-135
Petitioner,
(Third-Party Pollution Control Facility
Siting Appeal)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
70356545v1
813053
REPLY BRIEF IN SUPPORT OF MOTION TO
DISMISS PETITION FOR REVIEW
FILED BY THE CITY OF
KANKAKEE
NOW
COME
Respondents,
COUNTY
OF
KANKAKEE
and
COUNTY BOARD
OF
KANKAKEE, by
and
through their attorneys, HINSHAW
&
CULBERTSON,
and
as
and for
their Reply Brief in
Support
of Motion
to
Dismiss Petition
for Review
filed
by
the
City
of
Kankakee, state as follow:
I.
THE MOTION TO
DISMISS WAS TIMELY FILED
In
the
conclusory
fashion
the
City
of Kankakee
argues
that
the
County’s
Motion
to
Dismiss
“was
filed more than
30
days after the
service of the City of Kankakee’s Petition
for
Review” and further argues that the “motion was not filed in a timely manner”.
(See City brief,
Section I).
The City’s
argument is factually and legally erroneous.
The City’s
original Petition was filed on February 20, 2003 and an Amended Petition was
filed on February
21,
2003.
Obviously,
when the City filed the Amended Petition
the
time
for
dismissing
said
Petition
did
not
begin
to
run
until
the
filing
of
said
Amended
Petition.
Regardless,
30 days from
the date of the
filing of the original
Petition was Saturday, March 22,
2003.
30
days from the
filing ofthe Amended Petition (which was filed on February 21, 2003)
was Sunday, March 23, 2003.
Section 101.300 ofthe IPCB rules specifically provides:
Computation of any period oftime prescribed in the
Act,
other applicable
law, or
these rules will begin with the
first
calendar day following the day on which the
act,
event or development
occurs
and
will run until
the close of business on
the
last
day,
or the
next
business
day if
the
last
day
is
a
Saturday,
Sunday
or
a
national or state legal holiday.
35
Ill.Admin.Code
§
101.300(a) (2002) (emphasis added).
Section
101.3 00(b)(2) provides:
If a
document
is
filed
by
U.S.
Mail
subsequent
to
a
filing
deadline,
yet
the
postmark precedes the
filing deadline,
the document will be
deemed filed on the
postmark date, if all filing requirements are
met as set forth in Section
101.302 of
this Part.
2
70356545v1
813053
35 Ill.Admin.Code
§
101 .360(b)(1) (2002).
h~
this case, the Motion to Dismiss was filed by mail and postmarked Monday, March 24,
2)03.
Because 30 days from the
filing of the Original and Amended Petitions
fell on Saturday,
IMarch 22 and
Sunday March
23, 2003, pursuant to
§
100.300(a)
and (b)(1).
The date by which
the Reply was to
be placed
in the U.S.
Mail was March 24,
2003.
The Reply Briefwas mailed
on
that date and accordingly, pursuant
to the plain language of the Board rules,
the pleading was
tiMely
filed
and
the
Petitioner’s
statement
to
the
Board
otherwise
is
either
intentionally
or
negligently erroneous.
II. THE CITY’S ARGUMENT THAT THE MARCH 6, 2003 ORDER SOMEHOW
DEFEATS THE MOTION TO DISMISS, IS
ERRONEOUS
In Section
II of its brief, the City points out that on March 6,
2003
the Illinois
Pollution
Control Board (“Board”)
issued
an
Order establishing
the hearing decision and deadline.
Said
Order mentions that at that time “no
evidence for the Board indicates that this action is duplicitas
or frivolous.
The Board
accepts Petitioner’s
Petition for Hearing.”
(See
IPCB Order, March 6,
2003).
In a novel argument,
the Petitioners are asserting that by the Board issuing the March 6th
order
accepting
the
February
25
and
March
3
Petitions;
the Motion
to
Dismiss
is
somehow
untimely.
The City ofKankakee provides no authority for such a ludicrous position.
The Illinois
Pollution
Control Board
Rule
101.506
explicitly provides
that a party may
file a motion attacking the sufficiency ofa petition within 30 days after service ofthe challenged
document.
Furthermore,
101.500
provides
that
the Board may entertain
any
motions a
party
wishes to file which are permissible under the Act or applicable law ofthese rules of the Illinois
Code of Civil Procedure.
Obviously pursuant to the plain language ofthe rules a Respondent is
allowed 30
days to
file a motion attacking the sufficiency ofa petition.
The fact that the Board
promptly and efficiently issued an order accepting the petitions as timely filed and
establishing a
decision
deadline.
The
City’s
argument
is
disingenuous,
in
no
way
affects
the
right
of a
3
70356545v1
813053
Respondent to file a motion to dismiss
within 30
days ofreceiving a petition,
is misleading and
should obviously be rejected.
III.
THE ILLINOIS SUPREME COURT HAS ACKNOWLEDGED THAT THIRD
PARTY MUNICIPALITIES
ARE
NOT LOCATED AS
TO BE SUFFICIENTLY
AFFECTED BY FACILITIES PROPOSED TO
BE LOCATED WITHIN ANOTHER
UNIT OF LOCAL GOVERNMENT’S JURISDICTIONAL
BOUNDARIES
The only argument raised by the City ofKankakee is that “since the City ofKankakee is
allowed to
participate in these hearings as an objector and since the issue of lack of standing was
not raised prior to
the hearing by the County,
that issue if it has any merit whatever was waived,
accept
for the grounds
contained
in
Section
5/40.1(b).”
(See
City Brief,
Section
III
and
IV).
Once again, the City’s argument is erroneous.
The City has provided no
authority for its conclusion that the failure to raise the objection
at the County
level
is
in
any way a waiver.
Furthermore, though
Section
40.1(b)
does allow
anyone who
participated
in the
public
hearing conducted
by
the
County
Board
to
petition the
Board for a hearing to contest the approval by County Board, that section also provides that if the
Board
finds
that
a petition
is duplicitous,
frivolous,
or finds
a petitioner
is
not
located as to
be
affected by
the proposed facility,
then his
petition must be
dismissed.
Therefore,
a party to
a
39.2
proceeding is
not automatically
affected by the proposed facility then the petition may be
dismissed.
In this
case, the City ofKankakee has not refuted the fact that
the Illinois
Supreme
Court
has
held
that
when
a
local
governmental
entity
issues
a
siting
approval,
other
municipalities
should not be allowed to
use their considerable public budgets to file challenges as
the
likely
result
is
that
the
nearby
municipalities
will
always
object
to
a
landfill
thereby
overburdening the process and usurping the role of a local
governmental authority to
protect the
interests ofthe public.
This case is a perfect example ofthe concern that the Supreme Court raised.
The City of
Kankakee is using its budget to object to a landfill which is not within its borders, and is not even
4
70356545’,!
813053
c~ntiguousto
the City borders.
The City has cited no
case in
support
of its position that
it
is
sufficiently affected and instead merely attempts to
distinguish, unsuccessfully, the
Ogle
County
case.
In this
case, the
IPCB may
find as a
matter
of law
that
foreign
municipalities
are
not
sufficiently
affected
to
file
an
appeal
and
such
a
ruling
will
result
in
substantial
justice
by
avoiding the very problem that was foreseen by the Illinois
Supreme Court
in the
City of Elgin
case.
WHEREFORE, Respondent,
COUNTY OF
KANKAKEE, prays that this
Court dismiss
the Petition ofthe City ofKankakee, with prejudice.
Respectfully Submitted,
On behalfofthe COUNTY OF KANKAKEE
By: Hinshaw & Culbertson
Charle,s’P.Helster~/’
Richafd S. Porter
Oneof
Attorneys
HINSHAW AND CULBERTSON
100 Park Avenue
P.O. Box
1389
Rockford, IL 61105-1389
815-490-4900
This document utilized
100
recycled paper products
70356545v!
813053
AFFIDAVIT OF SERVICE
The undersigned, pursuant to
the provisions ofSection
1-109 of the Illinois
Code of Civil
Piocedure,
hereby
under
penalty of perjury under
the
laws of the
United
States of America,
certifies that on April 9, 2003, a copy ofthe foregoingwas served upon:
Dorothy M. Gunn, Clerk
Illinois Pollution ControlBoard
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, IL 60601-3218
Attorney George Mueller
501
State Street
Ottawa,IL 61350
(815) 433-4705
(815) 433-4913 FAX
Donald J. Moran
Pederson& Houpt
161 N. Clark Street, Suite 3100
Chicago, IL 60601-3242
(312) 261-2149
(312) 261-1149
FAX
Elizabeth Harvey, Esq.
Swanson, Martin &
Bell
One IBM Plaza, Suite 2900
330 North Wabash
Chicago, IL 60611
(312) 321-9100
(312) 321-0990 FAX
Kenneth A. Leshen
One Dearborn Square, Suite 550
Kankakee, IL 60901
(815) 933-3385
(815) 933-3397 FAX
L. PatrickPower
956 North Fifth Avenue
Kankakee,
IL60901
(815) 937-6937
(815) 937-0056 FAX
Keith Runyon
1165 Plum Creek Drive
Bourbonnais, IL 60914
(815) 937-9838
(815) 937-9164 FAX
Jennifer
J. Sackett Pohlenz
175 W. Jackson
Boulevard
Suite 1600
Chicago, IL60604
(312) 540-7540
(312) 540-0578FAX
Kenneth A. Bleyer
923 W. Gordon Terrace #3
Chicago, IL 60613-2013
Patricia O’Dell
1242 Arrowhead Drive
Bourbonnais, IL 60914
Daniel J. Hartweg
175 W. Jackson, Suite 1600
Chicago, IL 60604
(312) 540-7000
(312) 540-0578 FAX
Mr. Brad Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph,
11th Floor
Chicago, IL60601
(312) 814-8917
(312) 814-3669 FAX
By depositing a copy thereof, enclosed in an envelope in
the United States Mail at Rockford,,
Illinois, proper postage prepaid, before the hour of5:00 P.M.,
addressed as above
Firm No.
695
HINSHAW &
CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, Illinois 61101
(815) 490-4900
70334265v! 813053