BEFORE THE ILLINOIS POLLUTION
CITY OF KANKAKEE,
)
)
Petitioner,
)
)
V.
)
)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.,
)
)
Respondents.
)
MERLIN KARLOCK,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLiNOIS, INC.,
Respondents.
MICHAEL WATSON,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
CONTROL BO~LtLERK~S
ATIRECEIVEDOFFICE
AUG 20 2004
PCB 03-125
STATE
OF ILLINOIS
PoIlut~OflControl Board
(Third-Party Pollution Control
Facility Siting Appeal)
PCB 03-133
(Third-PartyPollution Control
Facility Siting Appeal)
PCB 03-134
(Third-Party Pollution Control
Facility Siting Appeal)
PCB
03-135
(Third-PartyPollution Control
Facility Siting Appeal)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
KEITHRUNYON,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
DJM 394385 vi August2O,2004
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on August 20, 2004, we filed with the Illinois Pollution
Control Board, the attached
MOTION TO SCHEDULE
ORAL ARGUMENT
TO
CONSIDER WASTE
MANAGEMENT
OF ILLINOIS, INC.’S MOTION FOR RELIEF
FROM JUDGMENT
in the above entitled matter.
WA\~TEMANAGBM~N OF ILLINOIS, INC.
By
/ (I
__
Donald J. M~bran
One ofIts ~‘itorneys
Donald J. Moran
I
PEDERSEN & HOIJPT
Attorneys for Petitioner
161 N. Clark Street
Suite 3100
Chicago, IlL 60601
Telephone: (312) 641-6888
DJM 394385 vi August 20, 2004
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
CITY OF KANKAKEE,
V.
RECEIVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
AUG 202004
Petitioner,
)
)
)
)
)
)
)
)
)
)
)
Respondents.
)
MERLIN KARLOCK,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
MICHAEL WATSON,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
STATE OF ILLINOIS
PCB
03-125
PoIIuflon Control Board
(Third-Party Pollution Control
Facility Siting Appeal)
PCB 03-133
(Third-Party Pollution Control
Facility Siting Appeal)
PCB 03-134
(Third-Party Pollution Control
Facility Siting Appeal)
PCB 03-135
(Third-Party Pollution Control
Facility Siting Appeal)
KEITH RUNYON,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, andWASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
394330
MOTION TO SCHEDULE
ORAL
ARGUMENT TO CONSIDER WASTE
MANAGEMENT OF ILLINOIS, INC.’S MOTION FOR RELIEF FROM JUDGMENT
Respondent Waste Management of Illinois Inc. (“WMII”), pursuant to Illinois Pollution
Control Board (“IPCB”) Procedural Rules 101.700(a) and (d), moves for the entry of an order
scheduling oral argument on WMII’s Motion for Relief From Judgment. In support ofthis motion,
WJ\411 states the following:
I. PROCEDURAL BACKGROUND
1.
On July 20, 2004, during the course ofdiscovery conducted in WMII’s pending
appeal ofthe IPCB’s vacation ofthe Kankakee County Board’s January 31, 2003 siting approval
decision (“January 31 Approval”), WMII took the deposition of County Board Member Lisa
Latham Waskosky (“Waskosky”). Waskosky testified to a conversation with Mr. Robert Keller
in August of2002, prior to her election to the County Board in November, 2002. During the
conversation Mr. Keller admitted to Waskosky that both he and his wife Brenda had actual
knowledge ofthe pre-filing notice posted at their home, and that he instructed his wife on how to
avoid being properly served with such notice.
2.
On August 6, 2004, WMII filed a Motion for Relief from the August 7, 2003, and
October 16, 2003 Orders vacating the January 31 approval based upon the new evidence
establishing Mrs. Keller’s actual receipt ofpre-fihing notice. On August 6, 2004, WMII also
filed a Motion for Stay of Appeal and
Instanter
Remand for Presentation ofNewly Discovered
Evidence to the Illinois Pollution Control Board in the Third District Appellate Court. On
August 13, 2004, the IPCB filed its Response in Opposition of the Illinois Pollution Control
Board to the Motion for Stay ofAppeal and
Instanter
Remand for Presentation ofNewly
394330
2
Discovered Evidence to the Board (“IPCB Response”). The IPCB Response argues that the
newly discovered evidence is inadmissible as hearsay. Even if the evidence is admissible, the
IPCB contends, the evidence is irrelevant, because the issue is not whetherMrs. Keller received
notice but, rather, whether suchnotice was served by the proper method. According to the IPCB,
remand would serve no purpose because the evidence does not relate to the method ofservice,
which is the only issue that might affect the IPCB ruling.
3.
Based upon the IPCB’s response, it appears that the IPCB has rendered its
decision on the Motion for Relieffrom Judgment. Such decision is based upon a
misconstruction of applicable law. Oral argument is necessary to address this misapplication and
resolve the legal questions concerning pre-filing notice on Mrs. Keller.
II. ARGUMENT
A.
The Newly Discovered Evidence Establishing Actual Notice to the Kellers is
Relevant and Must be Reviewed by the IPCB.
4.
Mr. Keller’s statements to Waskosky established that both he and Mrs. Keller
received and had actual knowledge ofthe posted notice. The evidence ofactual pre-fihing notice
to the Kellers is material to the outcome ofthis jurisdictional issue, as the alleged absence of
such notice was the sole basis forthe IPCB’s decision to reverse the Approval. The IPCB
Response argues that actual notice to Mrs. Keller is irrelevant, and that the method ofservice is
the only determinative factor to be considered when reviewing whether or not service was
sufficient to confer jurisdiction. This position is contraryto Illinois law and runs counter not
only to the plain language ofthe Act, but also to the legislative intent behind Section 3 9.2(b).
See Wabash & Lawrence Co. Taxpayers v. Pollution Control Board,
198 Ill.App.3d 388, 391,
555
N.E.2d 1081, 1084 (5th Dist. 1990)(notice in compliance with the Act that puts interested
394330
3
persons on inquiry is sufficient to confer jurisdiction);
Sandberg v. City ofKankakee,
PCB 04-
33, 04-34, 04-35 (consol.) (March 18, 2004)(notice by certified mail to one of six co-owners is
sufficient notice to all);
ESG Watts, Inc. v. Sangamon County Board,
PCB 98-2, slip op. at 9
(June 17, 1999) (section 39.2(b) can be met through constructive notice).
5.
The IPCB’s Response relies on the mistaken belief that Section 3 9.2(b) must be
strictly construed to require service ofnotice only by one oftwo means: personal service or
certified mail. This position is also contrary to Illinois law.
See Splett v. Splett,
143 Ill.2d 225
(1991) (when patient had actual notice, formal statutory notice ofinvoluntary admission
proceeding excused);
Waite v. Green RiverSpecial Drainage Dist.,
226 Ill. 207 (1907)
(irrelevant that notice of condemnation action did not comply with Farm Drainage Act
requirements where owners received actual notice);
PrairieMgmt. Corp.,
289 Ill. App. 3d 746
(1st Dist. 1997) (landlord’s failure to strictly comply with the notice service requirements
provided in forcible statute excused because ofactual notice to tenant). The evidence clearly
establishes that Mrs. Keller received actual notice. It would be an illogical and unjust result to
conclude that actual receipt ofnotice was insufficient because it was obtained by posted service
or regular mail. Indeed, the fact that Mrs. Keller received actual notice is directly relevant to the
legal issue in this case and should be given careful consideration.
B.
The
New Evidence
Submitted
by WMII is Admissible as
an Admission
by a
Party.
6.
Citing the
IPCB’s August 7 Order, the IPCB Response argues that the “newly
discovered evidence” presented by WMII is hearsay and therefore it cannotbe considered by the
IPCB or the Appellate Court. However, the new evidence is admissible as a party admission
because the Kellers were required to receive notice pursuant to Section 39.2(b) of the Act for the
394330
4
Board to have jurisdiction to consider the Application. Here, the Kellers are “necessary parties”
to the action because notice to the Kellers was statutorily required by Section 39.2(b). Thus, Mr.
Keller’s admission that he and his wife received actual notice can be admitted as a party
admission.
7.
In addition, the IPCB has viewed opponents to a siting application as parties in
other contexts. In
Land and Lakes Company v. Randolph County Board ofCommissioners,
PCB 99-69, slip op. at 19 (September 21, 2000), the IPCB determined that contacts between non-
party opponents to a siting application (i.e. members ofthe public) and members of the Randolph
County Board of Commissions, were impermissible
exparte
contacts. This is significant
because
exparte
communications are defined as those that take place outside the record between
a decision maker and a
party
to the action.
Id.
Thus, as members ofthe public, the Kellers are
considered in the siting proceedings.
8.
It is a well settled principle under Illinois law that a party’s own statement in his
individual capacity maybe offered by an opposing party as an admission, and the matter need not
be related to a matter ofwhich the party had personal knowledge and it may contain opinions or
conclusions oflaw.
Gutherie v. Van Hyfle,
36 Ill.2d 252, 222 N.E.2d 492 (1967);
Breslin v.
Bates,
14 Ill.App.3d 941, 303 N.E.2d 807 (1973). Here, Mr. Keller made a statement to
Waskosky admitting that both Mr. and Mrs. Keller had received pre-filing notice. The
statement is an unequivocal admission that service had been effectuated upon Mrs. Keller.
C.
The IPCB’s Decision with Respect to WMII’s Motion for Relieffrom
Judgment and the Newly Discovered Evidence is Premature.
9.
In its Response, the IPCB seems to have already decided WIvill’s Motion for
Relief from Judgment. The IPCB’s decision at this juncture is inappropriate. In essence, the
394330
5
IPCB Response requests that the Appellate Court deny WMII’s request to stay the appeal and
remand the case to the IPCB for consideration ofthe “newly discovered evidence” because the
IPCB has already determined that the method of service ofMrs. Keller was insufficient. As
detailed above, this argument contravenes Illinois law and does not consider the legislative
intent, Illinois precedent or the plain meaning ofSection 39.2(b).
10.
Waskosky’s testimony established the admission of actual notice and constructive
service on the Kellers under circumstances where they were affirmatively avoiding service.
W1\’ffl
requests an opportunity to be heard with respect to the newly discovered evidence. Ifthe
IPCB were to determine that both Mr. and Mrs. Kellerhad actual receipt and knowledge of the
pre-fihing notice, it is highly probable that the IPCB would reverse its August 7 Order, which was
based solely on the determination that Mrs. Keller had not been sufficiently served pre-filing
notice. The new evidence is critical to a fair and complete determination ofthe jurisdictional
question, and should be explained and considered in the context ofthe lengthy, complex and
contested siting proceedings before the Kankakee County Board. The IPCB Response
sends an inappropriate message to the Appellate Court indicating that there is no need to remand
the case because the IPCB has already decided the issue.
394330
6
III. CONCLUSION
For the reasons set forth above and those in WMII’s Motion for Relief from Judgment,
WIvill respectfullyrequests that the IPCB schedule oral argument on WMII’s Motion for Relief
from Judgment and award such other and further relief as the IPCB deems appropriate.
Respectfully submitted,
WA~SThMANAGEMENT OF ILLINOIS, INC.
By:
~
One ofIts At~rneys
Donald J. Moran
Christine M. Decke Alt
Pedersen & Houpt, P.C.
161 N. Clark Street-Suite 3100
Chicago, Illinois 60601
(312) 641-6888
394330
7
PROOF OF SERVICE
Victoria L. Kennedy, a non-attorney, on oath states that she served a copy ofthe
foregoing
MOTION TO SCHEDULE
ORAL
ARGUMENT TO CONSIDER WASTE
MANAGEMENT
OF ILLINOIS, INC.’S MOTION FOR RELIEF FROM JUDGMENT
on
the following parties by hand delivery to Hearing Officer BradleyHalloran at 100 West
Randolph Street, Suite 11-500, Chicago, Illinois 60601 on this 20th day ofAugust, 2004, and by
depositing said copy in the U.S. mail at 161 N. Clark St., Chicago, Illinois 60601, on this 20th
day ofAugust, 2004 to all other parties at their addresses indicated below:
Bradley Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11th Floor
Chicago, Illinois 60601
Charles F. Helsten, Esq.
Richard S. Porter, Esq.
Hinshaw & Culbertson
100 ParkAvenue
P.O. Box 1389
Rockford, IL 61105-1389
Kenneth A. Leshen, Esq.
One Dearborn Square, Suite
550
Kankakee, IL 60901
Keith Runyon
1165
Plum Creek Drive, Unit D
Bourbonnais, IL 60914
Jennifer J. Sackett Pohlenz, Esq.
Querrey & Harrow
175 W. Jackson Boulevard, Suite 1600
Chicago, IL 60604
Elizabeth Harvey, Esq.
Swanson, Martin & Bell
One IBM Plaza
Suite 2900
330 North Wabash
Chicago, IL 60611
L. Patrick Power, Esq.
956
North Fifth Avenue
Kankakee, II. 60901
George Mueller, Esq.
501
State Street
Ottawa, IL 61350
Victoria L. Kennedy’
~J~Q) 7~
I
DJM 394385 vi August 20, 2004
