RECEIVED

ILLiNOIS POLLUTION CONTROL BOARD

CLERK’S

OFFICE

OCT

o

6

2003

LOWE TRANSFER, INC. and MARSHALL

)

)

STATE OF IWNOIS

Pollution Control Board

Petitioners,

)

)

vs.

)

Case No.

PCB 03-22 1

)

COUNTY BOARD OF

MCHENRY COUNTY,)

ILLINOIS

)

)

Respondent.

)

NOTICE OF FILING

TO:

See Affidavit ofService

PLEASE TAKE NOTICE that on October 2, 2003,

we mailed for filing with the Illinois

Pollution

Control

Board,

the

attached

Respondent

County

Board

of

McHenry

County,

Illinois’

Response

to

Co-Petitioners’

Motion

to

Strike

Portions

of County’s

Response

to

Motion to Deem Site Location

Application Approved,

a

copy ofwhich is

attached hereto.

Dated: October 2, 2003

Respectfully Submitted,

On behalf ofthe County Board ofMcHenry

County, Illinois

By: Hinshaw & Culbertson

~1~jQ~J

~Mki

One ofits Attorneys

HINSHAW & CULBERTSON

100 Park Avenue

P.O. Box 1389

Rockford, Illinois

61105-1389

815/490-4900

70379297v1 830017

---

RECEHVE~

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

CLERK’S

OFFICE

OCT 062003

LOWE TRANSFER, INC. and MARSHALL

)

LOWE,

)

STATE OF ILLINOIS

Pollution

Control Board

Petitioners,

)

)

vs.

)

Case No.

PCB 03-221

)

Pollution Control Facility Siting Appeal

COUNTY BOARD OF

MCHENRY COUNTY,)

ILLINOIS

)

Respondent.

)

RESPONDENT COUNTY BOARD OF MCHENRY COUNTY, ILLINOIS’

RESPONSE

TO

CO-PETITIONERS’ MOTION TO

STRIKE

PORTIONS OF COUNTY’S RESPONSE

TO MOTION TO

DEEM SITE LOCATION APPLICATION APPROVED

NOW COMES, Respondent,

COUNTY BOARD OF

MCHENRY

COUNTY, ILLiNOIS,

by and

through its

attorneys, Hinshaw

&

Culbertson,

and

in response to

Co-Petitioners’ Motion

to

Strike Portions ofCounty’s Response to Motion to Deem Site Location Application Approved,

states as follows:

1.

Co-Petitioners’ Motion to Strike is improper.

Co-Petitioners’

Motion

to

Strike is

inappropriate as it generally consists

of an

argument

and

disagreement with

Respondent’s

Response to

Co-Petitioners’

Motion

to

Deem

Lowe’s Site

Location Application Approved.

This

is

not

the purpose

of a

motion

to

strike.

A

motion

to

strike

is

appropriate when a pleading

is

insufficient in

law or contains

immaterial matter.

See

735

ILCS

5/2-615

(2002);

see

also

35

Ill.Adm.Code

101.500(a)

(explaining that that the Board

may entertain motions permissible under the Illinois Code of Civil Procedure).

In this case, the

matter attacked by Co-Petitioners in their Motion to

Strike are not immaterial matters but, rather,

is a matter ofargument.

As such, Co-Petitioners’ Motion to Strike is improper.

Through their Motion to

Strike, Co-Petitioners are clearly attempting to raise an issue and

argument

that

they have

no

right

to

raise in

such a motion.

Rather,

the appropriate vehicle in

---

which to

raise such an

issue would be through

a Reply to

the

County’s Response,

afler seeking

and receiving permission from the Board or hearing officer

to

file such a document.

See

35

Ill.

Adm.

Code

§

101.500(e).

Co-Petitioners

have

filed

a

Reply, but

they have

failed

to

seek

or

receive permission from

this

Board

or the hearing

officer to

file such a Reply;

therefore,

that

Reply

should

be

disregarded.

(See

Respondent’s

Motion

to

Strike

Co-Petitioners’

Reply

to

County’s

Response

to

Motion

to

Deem

Lowe’s

Site

Location

Application

Approved).

Furthermore, Co-Petitioners’ Reply fails to mention the issue raised in Co-Petitioners’ Motion to

Strike.

As such, that issue should be deemed waived.

To

the

extent

that

this

Board

considers

the

argument

raised

by

Co-Petitioners,

Co-

Petitioners’ arguments have no merit,

as set out below.

2.

Co-Petitioners erroneously implied that notice had to be printed

in McHenry

County.

Co-Petitioners contend that they did not

assert that, notice under

section 40.1

of the

Act

had

to be printed in McHenry County; however,

in

Co-Petitioners’ Memorandum

in

Support of

their Motion, Co-Petitioners assert that

Pioneer Press’ newspapers are published at its Northfield

facility, the location where

the newspapers are printed and bundled.

(See

Lowe’s Memorandum

in

Support of Motion to

Deem

Lowe’s

Site Location Application Approved Due

to

the Board’s

Failure to

Comply with

the Act’s Publication and Notice Requirements, pp.

5-6).

By

asserting

that publication

of the newspaper

occurred where

the newspapers were

printed, Co-Petitioners

were clearly suggesting that the location of printing

is also

the location ofpublication.

As such,

it was entirely appropriate for Respondent

to

supply to

this

Board the

overwhelming

authority

that provides that “published”

does not mean “printed.”

It is

simply nonsensical for Co-Petitioners to

assert that they were not suggesting

that the

location ofprinting

is

also the location ofpublication in

light of Co-Petitioners’ assertion that the

---

place ofpublication of the newspapers at issue was the Northfield facility

—

the location of their

printing.

Co-Petitioners further contended that

Northfield could be

the

only possible place of

publication because the newspapers were distributed from that facility.

However, it only makes

sense

that

newspapers

will

be

distributed

from

the

facility

from

which

they

are

printed.

Therefore,

under

Co-Petitioners’

reasoning,

the

location

of the

printing

of a

newspaper

will

always

be

its

place

of publication

because

newspapers

obviously

have

to

be

distributed

from

their place of printing.

As such, Co-Petitioners were clearly asserting that a newspaper’s location

ofprinting also

determines the location ofthe newspaper’s publication, thereby implying that the

newspapers

at

issue

in

this

case

had

to

be

printed in

McHenry to

meet

the

requirements

of

section 40.1 ofthe Act.

As set

forth in Respondent’s Response, such assertions are erroneous.

WHEREFORE,

Respondent,

County

Board of McHenry

County,

Illinois,

respectfully

requests that this Board deny Co-Petitioners Motion to Strike.

I)

Dated: October

2’.~’

2003

Respectfully Submitted,

RESPONDENT COUNTY BOARD

OFMCHENRY COUNTY, ILLINOIS

By:_______

Charles F. Helsten

Heather K. Lloyd

HINSHAW& CLfLBERTSON

100 Park Avenue

P.O.

Box 1389

Rockford, IL 61 105-1389

815-490-4900

70379171v1 830017

---

AFFIDAVIT

OF SERVICE

The undersigned, pursuant to the provisions ofSection 1-109 ofthe Illinois Code of Civil

Procedure,

hereby under

penalty

of perjury under

the

laws of the United

States

of America,

certifies that on October 2, 2003, the Respondent

County Board of McHenry County, Illinois’

Response

to Co-Petitioners’

Motion

to

Strike

Portions

of County’s Response

to Motion to

Deem Site Location Application Approved,

was sent to:

DavidMcArdle

Zukowski, Rogers, Flood

& McArdle

50 Virginia Street

Crystal Lake, IL

60014

Dorothy M. Gunn

Illinois Pollution Control Board

James R. Thompson Center

100W. Randolph St., Ste.

11-500

Chicago, IL

60601

Bradley Halloran

Illinois Pollution Control Board

James R. Thompson Center

100W. Randolph St.,

Ste.

11-500

Chicago, IL

60601

By depositing

a

copy thereof,

enclosed in

an

envelope

in

the United States Mail at Rockford,

Illinois, proper postage prepaid, before the hour of 5:00 P.M.,

addressed as above.

~4z9~L~

HINSHAW & CULBERTSON

100 ParkAvenue

P.O. Box 1389

Rockford,IL 61101

(815)

490-4900

70379295v1 830017