copy
BEFORE THE ILLINOIS POLLUTION CONTROL~~1~VED
CLER~’S OFF1~
Co-Petitioners,
)
No. PCB 03-221
STATE OF ILLINOIS
)
(Pollution Control
b#i~p
~
NOTICE OF FILING
TO:
See List Referenced in Proof of Service
PLEASE
TAKE NOTICE that
Qfl
September 24, 2003, we filed with the Illinois Pollution
Control Board,
Co-Petitioners’ Motion to Strike Portions of
C’ounty’s
Response to Motion to
Deem
Site Location Application Approved
in the above entitled matter, a copy of which is
attached hereto.
LOWE TRANSFER, INC.
and
MARSHALL
LOWE
By:
David W. McArdle
PROOF
OF SERVICE
I,
a non-attorney,
on oath state
that
I served
the foregoing document on the
following parties by
depositing
same in the U.
S. mail on this
24th day of September, 2003.
Charles F.
Heisten
Hinshaw and Culbertson
100 Park
Avenue, P.O. Box
1389
Rockford, IL
61 105-1389
SUBSCRIBED and SWORN
to before
me
t
is
4th
day of September,
2003
Notary Public
David W. McArdle
Attorney Registration No.
06182127
ZUKOWSKI ROGERS FLOOD & MCARDLE
50 Virginia
Street; Crystal Lake, Illinois
60014
(815)
459-2050
I-!:\LOWE\NOTFILE8.TRANSFER.wpd
Bradley P.
Halloran
Illinois
Pollution Control Board
James
R. Thompson Center,
Suite
11-500
100 West Randolph Street
Chicago, IL
60601
LOWE TRANSFER, INC. and
)
MARSHALL LOWE,
)
vs.
COUNTY BOARD
OF McHENRY
)
COUNTY, ILLINOIS
)
Respondents.
)
SEP
2
1
2003
OFFICIAL
J~.L”~1
VONRAE ~OEU.E
M~CULLA~
NPubl~cfl~~
My Commiss4or~
~lrø~
O~3/26/05
This document
is printed
on recycled
paper.
BEFORE
THE ILLINOIS POLLUTION CONTROR~~~V~D
CLERK’S
LOWE TRANSFER, INC.
and
)
MARSHALL LOWE,
)
SEP
2 ~ 2003
Co-Petitioners,
)
No. PCB 03-221
vs.
)
(Pollution Contr~L~jtr ILLINOIS
£~U
uu
nControj Board
)
Siting Appeal)
COUNTY BOARD
OF McHENRY
)
COUNTY, ILLINOIS
)
Respondent
)
CO-PETITIONERS’ MOTION
TO
STRIKE
PORTIONS OF COUNTY’S RESPONSE TO MOTION
TO DEEM
SITE LOCATION APPLICATION APPROVED
Co-Petitioners, Lowe Transfer, Inc. and Marshall Lowe
(“LOWE”), by Zukowski,
Rogers, Flood & McArdle, its
attorneys, respectfully request the Pollution Control Board
strike
certain portions ofthe County Board ofMcHenry County’s
(“County”) Response to Lowe’s
Motion to Deem Site Location Application Approved.
In support ofthis Motion, LOWE states
as follows:
Lowe Did Not Assert Notice Must Be Printeclin McHenry County
1.
On
September
18, 2003, the County filed its Response to
Lowe’s Motion to Deem
Site Location Application Approved.
2.
In the first four (4) pages ofthe County’s
Response, the County argues the issue
ofwhether “published” means “printed” in McHenry County.
The County concludes,
“Consequently, Co-Petitioners’
assertion that the newspaper containing notice
must be printed in
McHenry County must fail”.
(County’s Response, pA).
3.
The County correctly cites Illinois court cases affirming that “published” does not
mean “printed” in the county.
However, nowhere in Lowe’s Motion did Lowe make any
assertion that the statutory notice under Section 40.1
must be printed in
McHenry County.
THIS
DOCUMENT PRINTED
ON RECYCLED PAPER
1
Lowe’s argument was two fold: (1) the notice was not published in McHenry County and (2) the
notice was not published in a newspaper of general circulation in McHenry County.
4.
While the discussion ofthis point ofstatutory construction is interesting, it has
nothing to do with the Motion filed by Lowe.
5.
The only possible explanation for this misstatement offact would
appear to
be in
an attempt by the County to
bolster their response by having their first argument misconstrue
Lowe’s position on a point oflaw and, thereby, taint the Board’s view of Lowe’s Motion.
6.
The inclusion of this misstatement ofLowe’s Motion will mislead the Board and
unduly prejudice Lowe.
WHEREFORE, Lowe requests that the County’s misrepresentation of Lowe’s Motion
regarding this
issue be stricken.
Respectfully submitted,
LOWE TRANSFER, INC.
and MARSHALL LOWE
By:
Zukowski, Rogers, Flood
& McArdle
By:
~
David W. McArdle
David W.
McArdle, Attorney No: 06182127
ZUKOWSKI, ROGERS, FLOOD & MCARDLE
Attorney for Lowe Transfer, Inc,
and Marshall Lowe
50 Virginia Street
Crystal Lake, Illinois
60014
815/459-2050; 815/459-9057
(fax)
THIS DOCUMENT PRINTED
ON RECYCLED PAPER
2