MANAGEMENT OF ILLINOIS, INC
215,218(2ndDist 1976)

)

HINSHAW

CULBERTSON

Fax

815—963—9989

S~p~26

2003

ILLINOIS POLLUTION CONTROL BOARD

CITY OF KANKAKEE,

2 6

.2003

Petitioner,

PCB 03-425

~~llUtIon

co,’~

(Third-Party

Pollution Control Facility

°‘~d

Siting

Appeal)

COIJNTY OP

KANKAKEE,

COUNTY

BOARD OP KANXAK:EE,

and

WASTE

MANAGEMENT OF ILLiNOIS, INC

Respondex~ts.

MERLIN

KARLOCK,

Petitioiier,

PCB 03~-133

(T.hird-Farty Pollution

ControlPacility

Siting Appe~i)

COUNTY

OF KANKAKEE, COUNTY

BOARD

KANKAKEE,

and

WASTE

MANAGEMENT

OF ILLINOIS,

INC

Respondents

MICHAEL WATSON,

..,

Petitioner,

PCB 03-134

~.-..

•.-

(Third-Party

Po1~u~1Qn

Conto~cihtY

Siting

App~

COUNTY OP KANKAKEE, COUNTY

BOAR)

KANKAKEE, and WASTE

•--•~.-•• ---:

MANAGEMENT OF ILLINOIS, INC

Respondents.

KEITH RUN~1ON,

fl~

PCB 03435 .I~

(Third-Party

PoU~ioucoi~tro~

FacxLity

COTJ~TY

OF KANKAKEE,

COUNTY

BOARDOFKANKAKBE,andWASTE

MANAGEMENT

OF ILLINOIS, ~t.

Resp

oiidents

703.54235v1 ~2~6~49

HINSHAW

CIJLBERTSON

Fax:815—963—9989

Sep

20031!2.

p;~03:~.

NOTICE

FILING

All Counsel ofRecord (see attached

Service

List)

.-~

PLL4~SETAKE NOTICE

 that

September

26,

2003,

the under~giaedmed~withthe lillinois

Pollution Control Board,

100

West Randolph

Street,

Chicago,

Illinois 6060i~a~

rmgm~~~d.nine

copies

the

Response

Waste

Management

of Illinois,

Ixic

‘s

Motion to Reconsiderrcopiesot which

are

attached

hereto.

T..

flated

September 26, 2003

Respectfully

submitted,

—

behalfofthe COUNTY

KANKAKEB:

1.’

~—~‘

HINSHAW &

CULBERTSON...

HINSUAWAND CTJLBERTSON

100

Park Avenue

P.O. Box 1389

Rockford, IL 61105-1389

815-490-4900

One ofIts Attorneys

--!~

••:

.:_

—

_Lt

—

This documejit

utilized

100

recycled paper prod~Act~

~S42~5Vl

826~4~

NSHAW

CUL6E~TSON

Fax

815—963—9989

Sep

2003

AF~TDAVJT

OF SERVICE

_____

The

undersigned,

pursuanx to the pr~visionsofSection

1-109 ofthe Illinois

Code of Civil

Procedure,

hereby

under

penalty

pexjury under

the

laws

of the

United

States

America,

certifies that on September 26, 2003,

a copy of

the

foregomg was

served upon

DorothyM

 Gunxi, Clerk

Ilimois Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite 11-50O~

Clucago,IL60601-3218

Attorney George Mueller

501

State Street

—

Ottawa, IL 61350

(815)433-4705

:..

(815)

433-4913

FAX

--~

--•.

DonaldJ

Moran

Pederson & Houpt

~-~--~

161 N

Claik Street, Suite 3100

Chicago,

 IL60601-3242

(312)261-2149

(312)

26..1-1149.~FAX

Elizabeth Harvey, Esq.

Swanson,

Martin

Bell

One

IBM

Plaza,

Su~ite

2900

33ONortliWabaSIl

Chicago,

60611

(312) 321-9100

(312) 321-0990FAX

Kenneth A. Leslien

One Dearborn Square, Suite

550

Kankakée, IL

60901

(815)

 933-3385

(815) 933-3397 FAX

PamckPower

95óNortbFlfthAvenue

-~~-

Kankakee, IL 60901

. ~

~-.

(815) 937-6937

(815)

937-0056 FAX

- -~

HINSHAW

CULOEPTSON

Fax

815—963—9989

Sep

2003:12151k.:

-~-~~:

•~-

~-.-:~--

Keith Runyon

—

1165

Plum

 Creek

Drive.

Bourbomiais,IL

60914.

—

(815) 937-9838

(815)937-9164FAX

Jennifer

J. Sackett

Pohlenz

175 W. JacksonBoulevard

Suite

1600

Chicago,

XL 60604

(312)540-7540

(3l2)54O+0578..FAX-~..-

Kenneth A.. Bleyer

923

Gordon

Terrace #3

Chicago, IL 60613-2013

Patricia O’Dell

1242

Arrowhead Drive

Bourbomiais, IL 60914

Daniel 3. Hartweg

175 W. Jackson, Suite

1600

Chicago, IL 60604

(312) 540-7000

(312) 540-0578 FAX

——-

Mr. Brad ffa.loran

Hearing

 Officer

Illinois Pollution Control Board

100 West Randolph,

11th

Floor

Chicago, IL 60601..

-:---.

(312) 81~8917

.:..

(312)814-3669PAX

..—

faxing and by depositing a copy thereof, enclosed in an ei~velope

in the United States Mail at

Rockford, illinois, proper postage prepaid, before the hour

P M

addressed as

above

FirrnNo.

695

HINSflAW & CUJ-~BERTSON

100

Park

 Aveni.le

P.O. Box

1389

Rockford, Illinois 61101

(315)490-4900

7Q~3~~48v1

B7.6~49

.---

HINSHAW

CULBERISON

Fax:815—963—9989

Sep.26

2003

12:51

P.06

ILLINOIS POLLUTION CONTROLBOARD

EL)

—:

CITY OF KANKAKEE,

)

CLFRK S

OFFICE

Petition

PCB

03-125

S?P

2003

er,

(Third-Party Pollu~on

1~b~

—

Siting

Appeal)

Pollutton

Control Board

COUNTY

KANXAXiEE, COUNTY

)

BOARD OF KANKAKEE, and WASTE

)

.-:~::-.--

MANAGEMENT

iLLINOIS, INC.

)

Respondents

)

—

MERLIN

KARLOCK,

)

PCBO3-133

Petitioner,

(Third-Party

Pollution Control

Facility

Sit~gAppeal)

)

COUNTY

KANKAKEE, COUNTY

)

BOARD OF KANKAKEE, and

WASTE

)

MANAGEMENT

ILLINOIS, INC

)

Respondents

)

MICHAEL WATSON,

)

PCBO3-134

Petitioner,

(Third-Party Pollution Control Facility

Sith~gAppeai)

VS.

)

;~--

COUNTY OF

KANXAKBE, COUNTY

)

BOARD

KANKAKEE, and WASTE

)

MANAGEMENT OP ILLINOIS, INC

)

‘,--

~=,-~—

Respondents

)

KEITH RUNYON,

)

:)-~B03

135

Petitioner,

(Thixd-PartyPollution Conftol Facility

Siting

Appeal)

-:~

VS.

)

~---

COUNTY OF KANKAKEE, COUNTY

)

BOA-RD

KANKAKEE, and

WASTE

)

MANAGEMENT OF

ILLINOIS, INC

)

- -

Respondents

)

70378229v1

~2~S49

HNSHAW & CULBERTSON

 Fax:816—963—9989

Sep

 26 2O~3-1~:51~

 P.07

RESPONSE

WASTE

AGE~IENTOFILLXN0IS INC ‘S MOTION

NOW COMES,

Respondents

COUNTY OF .KANKAXEE AND

COUNTY BOARD O~

KANKAKEE,

by and through their

attorneys, ffLNSI~EAW

& CEJLBERTSON, and in response to~

Waste Management ofIllinois, Inc

‘s Motion to

Reconsider states as follows

September

12,

2003,

Waste Maii~geiiient

illinois

 filed a Motion to Reconsider~

The County

ofKai~kakeeand County Board of Kankakee reviewed the authonties

cited within

the

Waste Management bnef and

concur with

the

conclusion of Waste Management that

the

service

upon

the

owners

of the

Keller

property

was

sufficient

under

the

letter and

intent

of

Section

39 2(b)

of

the Environmental Protection

Act

(the

 “Act”)

The

County

agrees with

the

anajyses and

arguments raised

by

Waste Management

and

hereby adopts

and ircoiporates

the

brief

of

Waste Management as its

own as though

fiiUy stated verbatim herein.

In addition

those

arguments

 the TPCB should

reconsider and

reverse its

opthion and

order

 for the

reason~

stated

uifra

—

..-.~.

THE SERVICE

OBTAINFJ)

MRS. KELLER WAS

SUFFICIENT

TO PUT

HER

ON NOTICE

THAT WASTE MANAGEMENT INTENDED TO

FILE A~.

AJ~PLICATIONTO

EXPAND

ITS

LANDFLL~!~

-~,

--.

motion to

reconsider is

appropriate and a

 decision

sboüld be reversed if it is

apparent

that

an.

error

has

been made in

the

application of the

law.

Continental

Casualty

Company

‘~

Security Insurance

Company of Hartford,

279

Lll.App

-.815, 216

fll.Dec.

314,

317

(1st

Dist.

1996); CitIzens AgainstRegional landfill v.CothztyBoard of Whiteside,

PCB

93-156

(March Ii,

1993)

this

case

the

Illinois

Pollution

Control

Board

(“LFCB”)

held

that

service

Despite Mr.

1~ar16c~’s.argunient

the,

contrary, tPCB Rule

101.902

does

not restrict

limit the

IPCB

from

reconsidering

errors it

has

made in

the

application of

the

law.

(See Karlocic Respoxise k3ne±p.

2).

Rather,

101.902

provides thc

tP~B

“~

consider factors

inc1udin.~

new

evidence

or a change

law

to concluçle

that thc Beard’s decision was in error.”

IlLAdm.Code

101.902 (2003)

(emphasis

added).

Thcrefore, the

IPCB

cortsidex factors

determine if its

decision was

in error.

These factors

rncrely include

iaew

e~vidcnce

or a change in law.

These factors

would also

include errors in the application of the law (such ~s

requiring

strict

compliance with a

notice- statote

failing

to providc

appropriate

defere~iceto

thc

fa~ct

thiders).

Karlock

attempts

to deceive the PCB

stating that

“this

higher

standard in raTing

on motions

70378229vl

~26549

H1~SHA~

 & CUL8ERTS0~

 Fax:O15-963-99~9

 Se~26

2003

 12:52

 P.08

prop~

owners must

effeotuated using ce~i~ed

mail

re~

receipt requested or personal

service”

(Slip

15)

The IPCB reiterated

that in its opinion

“the legislature provided clear

precise language

to the

Board detailing what

steps

an applicant must take

provide notce.”

Id.

‘-

“

(~ruphasisadded)

Similarly,

the

PCB

held “failure

meet

the

strict

notice

requirements of

Section

39.2(b) ofthe Act (citation omitted)

divest the

County

Board ofjuxisdjctjon.

hear the~

matter.”

Id.

Therefore, it is apparent that the IPCB

based

 decisionupon the conclusion that

service

of the

pre-fihixig

notice

required

under

39.2(b)

may~

only

obtaincd by

personal’

—

service or certified marl

With

respect, this

conclusion

not

supported

by Illinois

law

and

should be reconsidered

Many courts

 have

held that -whethel~

a partyreceives actual

constructive

notice is more.

important than the forni of notice

provided.

Schumacher -v.

~VO~/

125

fll.App.

81,

(1st Dist.

1905);

Re Marriage

Garde,

118

Ill.App.3d

303,

308,

454,:N~~2d

1065,

1069

(5th

JJist.);~

Vole v.

george Akopoli~,

181

BJ.App.3d

1012,

1019,

538

N.E.2d 205,210

~2ndDist.

1909);~,

‘,,

Bateman

Bishop,

120

flLApp.3d

138,

144,

457

 N.E.2d 994,

998

(5th

Dist.

‘1984);’-

Olin

Corporatzon v

Bowling Manufacturing,

Ill

App 3d

113, 420 N E 2d 1047,

People

rel

Head

Board ofEducation of Thornton Fractional Township

‘.s’

South

High

School,

 Ill.App3d 78~

81, 419

 N.E.2d

505, 507

(1st

Dist.

1981);

People ex rel. Loeser v. .Loeser,

fll.2d 567,

57).,

283

NE 2d

884, 887

(111

1972),

Stratton v

Winona

Community

Unit

District No

133

Ifl 2d

413,431, 551

N.B.2d

640,

647

(1990).

‘~

‘~-.•

-‘

reconsider has

appro~ted

by t~e

Appeilath C&~rtin

Turlek

Pollution

Control

Boczrd,

274

tl1.App.3a

244

653

N,E.2d

1288

(1st Dist.

1995).”

First,

Turlek

has

never

held there was any “higher standard”

at the

PCB

than.the Illinois

Courts and oz~

the contaiy

Turlek

meicly

points out that the EPCB

dexiied

the motion

to reconsider because therewas no

new evidence or change in law “or any other reason to conclude

that the

(original LPC~)decision

was in

error.”

Turlek v. PCI),

234

IU.App.3d 1,

653

N.E.2d

1281’,

(1st

Dist.

1288).

Second,

there

ná

indication in

furle,(-

that

the

PCB

ever

even

argued that

there

was a different

standard

at the

IPCB

for ruling on

motions

reconsider th~xi.in the Illinois courts.

Thud, the

Turlek

case

:

makes

it clear, that

the

1PCB

review not

only new evidence and

changes

in law,

but~

also

“errors in

t~e

,tPCB’sl

appljcation of

the

exjsting

Jaw.”

id.

Finally,

the

EPCB

has

explicitly held

that

‘.:‘

purpose of a

niotion

reconsider is not

only

to bring

to the LFCB’s attention n~vevidence or

changes in

—

law, but aLso “errors in the

application of

the

existing law”

CiI~zens

4gainsr Regional Landfill v.

County

Boc~rd

Whiteside,

PCB

93-156

(Max.

11,

1993).

-:-‘~~~:~‘-

70i75225v1

526549

- -

-~:~-~

-.,

H)N3HA~&

CULBERTSO~

Fax

815—963—9989

Sep

2003

12

52

P

09

“The

object ofnotice is to infomi

the party notified, and

infoimatjo~

obtained in.

any

other way t1~an

by formal notice,

the object ofnotice is

attained.”

Zn Re Marriage of Garde,

1l~

TJLApp.3d

303,

308,

454

N.E.2d

1065,

1069

(5th

Dist.~

1983)

(quoting

Schumacher,

 125~

Ill App

81,

(1st

Dist

1904))

“Illinois

Courts

have

interpreted

the

stnct

requirements

notice by exaxmmnghow effectively a party did in fact notify the other

side

rather

than

simply

by basing

rights

 solely on whether every phrase

of the statute

was

 followed

exact detail.”

~-~:

—

Matthews Roofing

Compa,iy

Community

Bank

and Trust

Co,

 194 Iii App 3d 200, 205,

550

N.E.2d 1189, 1193 (1st Dist.

 1990).

 “The form of

mailing

notice

not

decisive” when~

alternative service

will

accomplish

the

purpose;

Fult,nan~i~-

Bishop,

120

 11l.App.3d 138, 143,~

457

N B 2d

994,

997

(5th

Dist

1984)

~ield ce~ed mailing wa~sufficient

though

statute

called

for registered

mail).

The

Courts

have

a’ready

held

that

alternative

service

appropriate

meet

the

~-:

requirements

of Section.

39.2(b) of

the

Act.

Bishop

Pollution

Control Board,

235

fll.App.3d~

‘

‘~‘

925.,

601

 N.E.2d 310

(5th Dist.

1992) (held

that

serviceb7c~rtifledmailing

was

sufficient under

Section

39.2(b) of the

Act).

Likewise, the First District has

 held that how noticeis obtained is

—

“not

of pivotal

importance”

the issue of

deterznirung

whether or not

notice

was

provided

People

e.~.ref

Head,

11.1 App 3d

881,

419

N E 2d

505,

507

The

Supreme

Court

also

has

acknowledged

that

notice provisions may be

satisfied

by methods

other

than

those

expLicitly

referenced in the

statute.

People ex ref.

Loeser,

IlL2d at 571,

283

N.E.2d 884,

887

(Lli.S.Ct.

1972).

Loeser

the

Supreme

Court

found that

s~idanga

copy of a

summons

other than

“restricted

niail

delivery” as required by

Illinois

law

was acceptable.

The

Court explained:

“th~

requisites

of due

process

are

satisfied

the

maimer

of effecting s~qiceof summons

gives

reasonable

assurance

that notice will actuallybe given

and the person against whom the action is

brought

given reasonable

time

appear

and

defend on the

merits.~’ 51

llL2d

572,

283

7Q3~1U2Z9v~

826549

‘

~NSHA~

 & CULBE~TS0N

 Fa~:815-963-9g8g

 Se~26 2003

 12:53

P10

•-~---

N E 2d

887

Additionally,

Stnitton

Wzno,za

Commumty

Unit Th~trzctNo

133

111

413,

431,

551

NE 2d

640,

647

(1990)

the

Supreme

Court

held

that

delivery

notice

e~pulsjonby

hand was

 sufficient even

though.

the

statute

required notice

only by

registered or

certified

mail.

The Supreme Court explained:

‘~

‘-

-‘~‘

--.

—

Due process

entails

orderly proceeding wherein

person

served

n.otice,

actusi ~

constructive,

and

has

an

opportunity

-be

heard

and

 to enforce

and

‘

protect

his rights.

frmndamental

requirement

 ofdue proàess in any

proceeding

which

accorded

finality

notice

reasonably

calculated,

under

the

circumstances,

apprise

interested

parties

of the pendei~cyof the action

and

afford

them an

o~portun.ity

 to present

their objections.-

The’notjce must be of such

nature as reasonably to

convey the required mfonnatjon

Citation

omitted

Due

process does not require useless fonnahty in the

giving

of notice,

citation.

omitted

requiring only a reasonable assurance that

notice’ will

actually

-be given

~:.

and

the person whose

nghts are

going to be affected be

given a

reasonable time to

appear and defend

133

fl1.2d

at 432-33.

551

N.E.2dat ~4$.~f~4pphasisadded).

-“

Purthermor;

the fllino-is

Pollution Control

Board itself has held on several occasions that.

other methods ofservice

beyond personal service

and registered mail may be

utilized to provide

the Section

39.2(b) nàtice,

See

Environmentally

C’oncerned

C’iiizens

Organizarion

L~zndfihl~

--.

-~::~-~

::.

LLC,

PCB

98-98,

(May

1998);

As/i

Iroquois County

Board,

PCB

87-29 (July

16,

1987);-

- -

Environmentally Concerned Cztzzen~Organization v

Landfill LLC,

PCB 98-98

(May 7, 1998)

In this case, the K.ellers

were

sexitn~é1~r’certified

mail, regular mail, personal service

‘

was

att~thptedon s~vera1occasions,

and

notices were

firmly

affixed to the door of their home

(the

home

which

 allegedly affected by the landfill) as established by

the

unrefuted testimony

the

~cess

~erve~.

Though

the

certified mailing

was

sent ~toMrs.

Keller’s

husband,

th~

regular i~nai1ing~

and postm~of notice

were

 all effectaated on

Mrs.

Keller.

Furthermore,

Mr.

Keller lives at

the same address

Mrs

Keller

T~ePCB’s

~olding

that there must

“strict”

compliance with

the notice

language of

Section 392(b) is simply unsupported by the overwhelming

case law on the topic

On occasion

a~fter

occasion tiiè

courts,

and

even the IPCB, have held that the

issue

only whether the servic~e

-‘

7O~7922.9v1~

~-:-:-~,‘.

HINSHA’,)

 & CUL6ERTSON

 Fax:615—963—9989

—

Sep

2003

12:53

 P.11

methods utthzed

were

“reasonably

calculated

under

the

circumstances,:to

apnse

interested

parties ofthe pendency ofthe action”.

Stratton,

133

JlL2d

at 431,

All ofthe niunerous methods

of service

that

the applicant utilized were

reasonably calculated to

apprise Mrs.

Keller of the~

•

proceedings at issue.

Indeed, the Kellers (jilciuding Mrs.

Keller) attended the hearing,

and

even:

testified in an

effort to

defeat the

application.

this case the IPCB

 ~xplicit1y

 based

its

decision•~

as to

Mrs

Keller

the

failure

utilize

the

two

specific

means of service

referenced in

the

statute.

The County respeotfujjy submits that pursuant to the

applicable

111mb

se law,

such a

—

decision was erroneous

and should be reconsidered and vacated

—~

11.

TIlE ILLINoIS POLLUTION CONTROL

BOARD

SHOULD GRANT

THE

MOTION

TO RECONSIDER FILED BY WASTE

MANAGEMIEr’~T

OF ILLINOIS

•

BECAUSE

KANKAKEE

COUNTY V~JGHED

THE

EVIDENCE A~N1)

CREDIBILITY

OF THE WITNESSES TO DETERMINE THAT SERVICE

WAS EFFECTIVE.

At the

heanxig Petitioner Watson called Mr

and Mrs

~(eUerto testify and motioned

quash the proceedings based

on. lack of service upon the Kellers.

On December

2001, the

Kanicakee County Board listened to the testimony of Mrs.

Keller,’Mr. Keller, and observed their

-:-.5.

conduct

on the witness stand.

They alsO heard the testimony ofthe process server who attempted

personal service

upon

the Kellers on

several

occasions

and

accon~plishedservice via certifie~

mail,

regular mail

and

by posting

the notice

their door

(W~4IEPub

hrg

713,

App

- -

additional information, Tab A, 12/5/02 Tr at

5-15,

18,

21-223, 26-27,

35,

4-4,46-47, 58-590, ~73~

74)

The

County

Board

weighed

the

credibility of all

of these

witnesses

and

came

the

conclusion that

both

of the Kellers

were

consmictively placed

notice

of the

Section 39.~

hearing.

This

further supported by

the fact that

Mr.

Kelle.r testified

that be knew

about th~

siting

hearing at least two weeks

before

coi~rinieuced (12/5/02, Tr

105)

Furthermore,

Keller testified that be picks up all ofthe mail and his wife “does not take care of the niail” that

sen.t

to both her

and

Mr. Keller.

(Id.

107).

The evidence

ixrefittable that

appropriate

7O37822P~-li26549

H!NSHA~& CUL8ERTSON

 Fax:815—963—9999

Sep

 26 ~

-::-~~~~::

no~cewas sent

by ce~~ed

mail

Keller and indeed the ~CB

has ~led

that se~icewas

effective as to him

 Since

Mrs

Keller

did

not collect,

open or

otherwise take care

the

m411

sent

the Kellers,

that

the

task

was

 solely perforn~edby Mr

 Keller,

there

was

ample

evidence that Mr

Keller was the

 appropriate

agent to

accept servic

noticeiienung

 their

property.

“It

for the local

siting

anthority -to

detennine the credibility

 ofwi~esses,to resolve~

i’~~.and

conEliicts

in the evidence and

weigh the eviden.ce presented”.

Land

and

Lakes

Co.

v. Iliinois~

‘Pollution

Gontroi Board,

319

llLApp.3d 41,

53,

743 N.E.2d188~197 (3d Dis~2000)(quoting

Concerned Adjoining

Owners

Pollution

Control Board,

288

Iii

App 3d

565,

680 NE 2d

810

(1997))

well

established

that

the

IPCB

not

reweigh

the

evidence

ofrnake

new

credibility

detenninations.

See

McLean

County

Disposal,

Inc.

County

of McLean,

207

-.~

Ill App 3d 477, 487,

566

2d 26,

(4th L~ist1991),

Fairview

A;ea

Citizens

TaskFoice

illinois Pollution Control Board,

198

fll.App.3d

541,

550-551,

5555

N.E.2d 1178,

184

(3d Dist;

L990)

5.5_S

•

this

case,

it was

 up to the Kaikakee County Board to

deten

e~~f1~--~believed

tb~

testimony

of the

process

server as

the numerous

attempts at personal

service.

Furthermore,

the CountyBoard witnessed the process server’s demonstiation as to howbe

affi\ed

 the notice to

the

Mrs. Keller’s door by taping

all four si~e~

o~e document fi~iyto the door with duct tape.

Finally,

the County

Board considered the credibility

the Keflers,

 the fact

that Mr

Keller was a

•

voluntary employee of a competitor to Waste Management and objection at the-hearing, and the

•

fact that

 the Kellers also participated at the bearing when they were called as

witnesses.

The

•

County

 Board also considered the

bearing officer’s

factual finding that Mr. I(eller’s testimonS,~

suggests he may have discarded

the ~otIc~w~ii

his junk-mail.

(12/5/02 Tr.

148).

TJlt~mately,

the County Board concluded that

the

service was

reasonably calculated to

provide

notice or lack

ofreceipt was incredible.

•~---

7O37822~vt826-549

FIINSHAW

CULBEPTSON

Fax

816—963—9989

Sep

2003

54~

Once

there has been receipt of notice (actual or constructive)th~t~cbm~iafx~quirements

of a notice statute

need not be

followed

See

Stratton,

133

Super

Vehicle

Registration

Number,

202

Il1.App.3d

 797, 801,

560

 N.E.2d 390, 392

(1990);

---:

Prairie VI~ta,Inc.

Central Illinois Light

Company,

 37 )JJ.App.3d 909, 912,346N.E.2d 72, 74

(4th Dist.

1976);

Estate

ofAboft v. First National Bank,

38IlLApp.3d

141,

144-45;

347

N.E.2d

215,218(2ndDist

1976)

Itis respectfully submitted that the IPCB did not consider tbat~determ~nation-ofwhether

notice

was

received

was

factual

determination

which

hinged

upon

consideration

th~

credibility of the witnesses

and weighing of the testimony as

the reasonable

expectation

receipt of the notice.

It is beyond the province of the Illinois Pollution Control Board

 to rejudg~

the credibility

of the witnesses

or their the testimony

Clea’~iythe determmation

whether

actual notice was

received was

a question ~offact that

could only bi~6vertumedif against the

manifest weight of

the

evidence.

thi~

case there was

more than ample

evidencä

that: th?

Kellers had

constructive

notice

of the app1ication~Therefore, the Motion to Reconsider filed by

~-‘

Waste Management

ofIllinois should be allowed.

:‘~

-•

DATED

—

~—

(~L~

2003

 Respectfully Submitted,

On behalfof the COT.JNTY

KANKAIKEE

‘

Thnshaw & Cu1bert~~

4~eiste~~~

RjchardS.Porter’

One of

Attorneys.

HII~~SHAW

CCJLBERTSON

100

Park Avenue

PQBox1389

Rockford,tL61105-1389

•‘~-‘-

--‘

8i5-490-4900

-•

This

document utilized 100

recycled paper products

7O37S~29vi~26S42

•

~ThAVIT

OF SERVICE

‘-

Sep

 26 2Oa~~14

The undersigned, pursuant to the provisions ofSection 1-109 ofthe illinois

Code ofCivil

Procedure, hereby

under

penalty

perjury

under

the

laws

lie~,,tJnitedStates

of Anierica,

certifies that on September 26, 2003, a copy ofthe foregoing was served upon

DorothyM.

Gurm,

Clerk

Illinois

Pollution ControlBoard

James R. Thompson Center

100 WestRandolph

Street,

Suite 11-500

Chicago,-1L60601’-3218

Attorney

George

Mueller

:1:

“.

501

State Street

Ottawa, IL

61350

(815)

433-4705

(815) 433-4913

FAX

Donald

Moran

Peclersori

Houpt

161 N. Clark,.Sjxeet, Suite 3100

Chicago,

T~0601-3242

-~-

(31-2)261-2149

-(3

12)

~i~-149

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

Lesben

Suite

550

Kankakee,I’

60901

(815)

933-3385

(815)

933-3397

FAX

L. Patrick

Power

956

North

Filth Avenue

Kankakee,IL6O9O1

(815) 937-6937

(815)

937-005-6

FAX

-‘:~i~:

HINSHAW

 & CLJLBERTSON

 Fax:815—963—9989

Jennifer

J. Sackett

?oblenz

-- -

175

W. Jackson

Boulevard

Suite

1600

Clncago,1L60604

~—-~

12)

540~7540

:~-~-

~---~

(3 12)

~40-0578

FAX

Kenneth

A; Bleyer

923

k3ordon

Terrace

Chicago,160613-2013

Patricia

O’Dell

1242 Axrowhead

Dnve

Bourboxinais, IL

60914~

DanielJ Hartweg

175 W

J2ckson, Suite 1600

Chicago,

60604

~(3t2)-~40-~000

(312)540-O57SFAX

Mr.

Brad

Halloran

Hearing

Officer

flbnois Pollution Control Board

100 West Randolph,

11th

Ploor

Chicago, IL 60601

(312) 814-8917

:--~

(312) &14~3669FAX

faxing and

depositing a copy thexer~f,~enc1osed

an envelope ur the tJmted States Marl

Rockford,

 Illinois,

proper postageprepaid,

b~fore

the hour

00 P M, addressed as abo~~e

FinnNo.695

-::.~-~.

~.-

HJNSRAW &

CIJLI3ERTSON

100

Park Avenue

Bo~1389

Roclcford, illinois 61101

(815)

490-4900

HJNSHAW

CUL6ERTSON

 Fax:815-.963-9959

 Sep-2~20O3- -~2:54;-~----P.15

-~~-;~

Keith

Runyon

1165

Plum CreekDrive

Bourbonnais, IL

60914

(815)937-9838

(815) 937-9164PAX

:-~~

7O~sS~4gvl

S265~9