BEFORE THE ILLiNOIS POLLUTION CONTROL BOARD
TO: See Attached Service List
NOTICE OF FILING
CITY OF KANKAKEE,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE,
AND
WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
REC~VED
CLERK’S OFFICE
AUG 242004
STATE OF ILLJNOIS
Pollution Control Board
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.
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PCB
03-0125
PCB 03-133
PCB 03-134
PCB
03-135
Consolidated Third-Party
Pollution Control Facility
Siting Appeal,
on appeal,
3-03-0924
(3rd
Dist.)
KEITH RUNYON,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY BOARD
OF KANKAKEE, AND WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
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PLEASE TAKE NOTICE that on August 23, 2004, there was caused to be mailed by
overnight mail, for immediate filing with the Illinois Pollution Control Board, the following
documents:
Motion for Leave to File Response Instanter
Merlin Karlock’s Response Objecting to WMII’s Motion for
Relief from Judgment
G~th~eMueller
Mttomney for Merlin Karlock
PROOF OF SERVICE
I, Susan McCollum, a non-attorney, on oath state that I served
a
copy of the foregoing
documents by sending same to the persons on the attached service list, by depositing same in the
U.S. Mail at Ottawa, Illinois, at 5:00 p.m. on August 23, 2004.
SUBSCRIBED and SWORN to before me this
~
c~L~
23k’ ay ofAugust, 2004.
~
Notary PubhU
~ói~iI~T
~
G’~I~~OX
NO IAR\ H
S
OF
LLINOIS ~
~ MY COM
~SSIO~
EXPIRES
1/3/08 ~
George Mueller, ~
501 State Street
Ottawa, IL 61350
815/433-4705
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Service List
Donald Moran
Pedersen
&
Houpt
161 North Clark Street, Suite 3100
Chicago, IL 60601
Edward Smith
Kankakee County State’s Attorney
Kankakee County Administrative Bldg.
189 East Court Street
Kankakee, IL 60901
Charles F. Helsten
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105
Jennifer J. Sackett Pohlenz
Querrey & Harrow, Ltd.
175
West Jackson St., Ste. 1600
Chicago, IL 60604
Keith Runyon
1165 Plum Creek Drive, Unit D
Bourbonnais, IL 60914
Kenneth A. Leshen
One Dearborn Square, Suite
550
Kankakee, IL 60901
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 KANKAXEE, COUNTY
BOARD OF KANKAKEE, AND WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
COUNTY OF KANKAKEE, COUNTY BOARD
OF KANKAKEE, AND WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
PCB 03-135
Consolidated Third-Party
Pollution Control ‘Facility
Siting Appeal,
on appeal,
3-03-0924
(3rd
Dist.)
AUG 242004
MOTION FOR LEAVE TO FILE RESPONSE
INSTANTER
NOW COMES MERLIN
KARLOCK
by his attorney,
GEORGE
MUELLER,
P.C.,
and
CITY OF KANKAKEE,
Petitioner,
V.
RE
CE
V ED
BEFORE
THE
ILLINOIS POLLUTION CONTROL
BOARBLERKS OFFICE
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STATE OF ILLINOIS
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PCB 03-0125
PollutiOn Control Board
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PCBO3-133
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PCBO3-134
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KEITH RUNYON,
Petitioner,
v.
—1—
moves for leave to file his Response to the Motion ofWMII for Supplemental Relief
instanter,
and
in support thereofstates as follows:
1. Waste Management of Illinois, Inc. filed a Motion to Supplemental Relief herein on
August 6, 2004, and pursuant to Board Rules, Responses to said Motion were due by August 20,
2004.
2. Your Movant did not receive WMII’S Motion until August 10, 2004, and additionally,
your Movant’s attorney has been without a secretary for a significant period oftime betweenAugust
10, 2004, and the current date, by reason ofpersonnel changes in his office.
3. Allowing a late filing ofthis Responsedoes not prejudice any ofthe parties or materially
delay resolution ofthe issue.
WHEREFORE, MERLIN KARLOCK PRAYS that this Court grant him leave to file his
Response to the Motion ofWMII for Supplemental Relief
instanter.
MERLIN KARLOCK
By:
rnéy for Merlin Karlock
George Mueller, P.C.
Attorney at Law
501 State Street
Ottawa, IL 61350
815/433-4705
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RE!
~E!i1VED
CLERK’S OFFICE
BEFORE THE
ILLINOIS POLLUTION CONTROL
BOARD
AUG 2
‘~2004
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MERLIN KARLOCK’S
RESPONSE OBJECTING TO
WMII’S
MOTION FOR RELIEF FROM
JUDGMENT
NOW COMES MERLIN KARLOCK by his attorney, GEORGE MUELLER, P.C., and. in
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.
STATE OF ILLINOIS
Pollution Control Board
PCB
03-0125
PCB
03-133
PCB 03-134
PCB 03-135
Consolidated Third-Party
Pollution Control Facility
Siting Appeal,
on appeal,
3-03-0924
(3rd
Dist.)
KEITH RUNYON,
Petitioner,
V.
COUNTY OF KANKAKEE, COUNTY BOARD
OF KANKAKEE, AND WASTE
MANAGEMENT OF ILLINOIS, INC.,
Respondents.
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response to WASTE MANAGEMENT OF ILLINOIS, INC.’S Motion for Relief from Judgment,
states as follows:
1. That Waste Management ofIllinois, Inc., (WMII) has filed herein a Motion for Relief
from Judgment, pursuant to Section 101 .904(b)(1) ofthe Board’s Rules. The relief requestedis that
the Board reverse its Decision of August 7, 2003, based upon some so-called newly discovered
evidence. Concurrently with the filing ofits Motion before the Board for relief from Judgement,
WMII also filed in the Third District Appellate Court, a Motion for Stay ofAppeal and
Instanter
Remand for Presentation ofNewlyDiscovered Evidence.
2. Thatthe Attorney Generalofthe State ofIllinois has filedin Case No. 3-03-0924, pending
in the Third District Appellate Court, on behalfofthe Illinois Pollution Control Board, a Response
in opposition to WIvifi’S Motion inthe Appellate Court. This Responsepoints out that the Pollution
Control Board was divested ofjurisdiction in this matter by WMII’S Notice ofAppealofthe August
7,2003 Decision, that the so-called newly discoveredevidence is nothing but inadmissable hearsay,
and that the so-called newly discovered evidence is irrelevant in that it deals with possible,
constructive or actual receipt of “posted” notice when this Board haspreviously.ruled that posting
is not an acceptable method of serving pre-filing notice of Landfill Siting Applications. The
Attorney General’s Response filedin the Appellate Court is entirely appropriate and relevant here,
and KARLOCK hereby attaches a copy ofthe same to this Response and adopts the same as if set
forth fully by him.
3. Thateven ifthis Board retainsjurisdiction to grant supplemental relief, WMIIhasnot met
the test for receiving such relief. Board Rule 101.903 (b)(1) purports to make supplemental relief
available based upon “newly discovered evidence that existedat the time ofhearing and that by due
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engaged in extensive discovery prior to the Board Hearing. WMII’S failure to serve required
statutory Notices on Mr. and Mrs. Keller was an issue known and recognized by all ofthe parties at
the time that pre-hearing discovery took place. The testimony ofMr. and Mrs. Keller regarding
WMII’S failure to serve them with Notice was part ofthe Record ofthe local siting hearingbefore
the Kankakee County Board. WMII had every opportunity to engage in discovery, including, but
not limited to, Interrogatories to the County and the deposition ofCounty Board Members, but WMII
chose not to take that route.
4. That although the Board Rule is not explicit on the point, newly discovered evidence, in
order to be the basis ofpost-judgment relief, needs to be conclusive and indisputable, and needs to
be ofsuch a nature that it would most probably change the outcome. Neither ofthese tests if met
here. As pointed out by the Attorney General in her Response in the Appellate Court, the newly
discoveredevidence consists merely ofthe hearsay statements ofa County Board Member regarding
discussion she allegedly had with Robert Keller. These statements come from a known supporter
of WMMI’S Siting Application. They are unconoborated by any other person or any physical
evidence and they were not cross-examined or tested by any participant in this proceeding.
Additionally, these hearsay statements by a biased County Board Member are hardly conclusive or
likely to alter the previous outcome. While the statements appear to contradict the testimony of
Robert Keller, they leave open the question ofwhose testimony is more credible. Disagreement of
one witness with another on an issue that is at best a collateral point, falls far short ofthe kind of
evidence required to change a result after a hearing oftrial is fmally concluded.
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5.
For the foregoing reasons, MERLIN KARLOCK prays that the Motion of Waste
Management ofIllinois, Inc. for Supplemental Relief be denied.
MERLIN KARLOCK
~~~ttorney for Merlin Karlock
George Mueller, P.C.
Attorney at Law
501 State Street
Ottawa, IL 61350
815/433-4705
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No. 3-03-0924
INTHE
APPELLATE COURT OF ILLINOIS
THIRD JUDICIAL DISTRICT
WASTE MANAGEMENT OF
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Petition for Review of an Order of the
ILLINOIS, INC., a Delaware’
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Illinois Pollution Control Board,
corporation,
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PCB 03-125, 03-133, 03-134 & 03-135
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Petitioner,
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v.
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ILLINOIS POLLUTION CONTROL
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BOARD, COUNTY OF KANKAKEE,
COUNTY BOARD OF KANKAKEE,
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CITY OF KANKAKEE, MERLIN
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KARLOCK, KEITH RUNYON, and
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MICHAEL WATSON,
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Respondents.
RESPONSE IN OPPOSITION OF
THE ILLINOIS POLLUTION CONTROL BOARD
TO THE MOTION FOR STAY OF APPEAL AND
INSTANTER
REMAND
FOR PRESENTATION OF
NEWLY DISCOVERED EVIDENCE TO THE BOARD
Respondent, ILLINOIS POLLUTION CONTROL BOARD, through its
attorney, LISA MADIGAN, Attorney General of Illinois, responds in opposition to
Petitioner’s “Motion for Stay of Appeal and
Iristan~ter
Remand” and states the
following:
1. In its August 7, 2003 final decision, the Board vacated the Kankakee
County Board’s January 31, 2003 decision granting Waste Management of Illinois,
Inc.’s application for expansion ofits existing pollution control facility. The
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Petitioner filed a petition for review, seeking this Court’s review of that
determination.
2. Petitioner has now filed a motion to stay its appeal, requesting that the
Court remand the matter to the Board. It has contemporaneously filed a motion
with the Board asking the Board to grant relief from the Board’s judgment that the
County Board of Kankakee lacked jurisdiction to review the siting application.
3. The Board lacks jurisdiction to rule on the motion currently pending
before it: “It is fundamental that the proper’ filing of a notice of appeal causes the
jurisdiction of the appellate court to attach
instanter
and deprives the trial court of
jurisdiction to modify its judgment or to rule on matters of substance which are the
subject of appeal.”
Cain v. Sulthar,
167 Ill. App. 3d 941, 521 N.E.2d 1292, 1294
(4thI
Dist. 1988) (citing
Montgomery Ward & Co. v. Wetzel,
98111. App. 3d 243, 423
N.E.2d 1170
(1st
Dist. 1981)).. This Court is the proper venue to address the
substance of the motions.
4. Nevertheless, the Board respectfully submits that remand is
inappropriate for two distinct reasons.
5. First, the new evidence that the Petitioner submits warrants remand is
clearly hearsay, and the Petitioner has offered no applicable exceptions to the
hearsay rule that would warrant the Board’s consideration of that evidence.
6. Second, the new evidence is not relevant. The gist ofpetitioner’s motion is
that the new evidence indicates that Brenda Keller was aware of a posted notice of
Petitioner’s siting application, and that this would persuade the Board to change its
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final, decision in this matter. Petitioner misconstrues the rationale and findings in
the Board’s decision.
7. The Board found that, under Section 39.2 (b) of the Environmental
Protection Act (415 ILCS 5/39.2 (2002)), service on property owners specified in the
section “must be effectuated using certified mail return receipt or personal service.”
(R. CL vol. 10, pp. 001547-1564, 1561.) The Board further found that Mrs. Keller
was not served via certified mail and was not served personally. (slip op at 16.)
Consequently, the Board found that the statutory notice requirements were not
met.
8. The Board’s decision in this case specifically addressed, the issue of
“posting” notice and found that such notice was inadequate under the statute.
Specifically, the Board ruled:
Waste Management argues that both “posting” notice and notice by
regular mail was sufficient notice of~animpending landfill siting
application. However, the Act envisions two and only two types of
service: personal or certified mail return receipt requested. Therefore,
the attempts by Waste Management to serve property owners by
methods such as sending notice of an application by regular mail and
“posting” notice are not authorized by the plain language of Section
39~2(b)of the Act. 415 ILCS 5/39.2(b) (2002). Waste Management
cites one case (Greene) on the issue of posting notice as a means of
service; however, the United States Supreme Court found in Greene
that posting a notice was insufficient even though the statute at issue
specifically allowed for posting. The Board has reviewed the case law
and can find no case where posting notice was adequate in place of
personal service except pursuant to specific statutory language. There
are statutes which allow for notice to be posted.
See
65 ILCS 5/11-
19.2-4, 5/11-31.1-land 735 ILCS 5/9-104 and 5/9-107 (2002). However,
the plain language of Section 39.2(b) of the Act (415 ILCS 5/39.2(b)
(2002)) does not allow for posting of notice. Therefore, the Board finds
that “posting” notice is not sufficient to meet the notice requirements
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of Section 39.2(b) ofthe Act (415 ILCS 5/39.2(b) (2002)), and notice by
regular mail is insufficient based on the plain language of Section
39.2(b) of the Act. 415 ILCS 5/39.2(b) (2002). (R. CL vol. 10, pp.
001547-1564, 1562.)
9. Therefore, even ifthe “newly, discovered evidence” was true and
admissible, the evidence would not alter the Board’s decision in the underlying’ case.
10. Following its ‘discussion of the adequacy of “posting notice”, the Board
addressed arguments based on dicta in one of its prior cases concerning whether
notice requirements could be met through “constructive notice”. The Board
distinguished this case from its prior cases, all of which involved the mailing of
notice. (R. CL vol. 10, pp. 001547-1564, 1563.) Here, the Board specifically found
that mailing a certified letter to Brenda Keller’s husband “was not sufficient to find
constructive rwtice” on Brenda. (R. CL vol. 10, pp. 001547-1564, 1564.) Given the
Board’s finding that statutory notice requirements to a landowner could be met only
through personal service or service by certified mail, return receipt requested, the
Board’s discussion ofits prior “constructive notice” cases and dicta is mere
surplusage. Constructive notice is not contained within the plain wording of
Section 39.2.
11. The issue of what Section 39.2 ofthe Act requires is squarely before this
Court. The issues have been fully briefed‘by both Petitioner (see Brief of Petitioner
pages 18-19) and the Board (See Brief of Respondent pages 29-30). Therefore,
granting Petitioner’s motion would unnecessarily delay the ultimate resolution of
this proceeding.
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12.
For these reasons, the Board respectfully requests that this Court deny
petitioner’s motion for stay and remand of this cause to the Board. Instead, in the
interests ofboth judicial and administrative economy, the Board urges this Court to
schedule oral argument and proceed to rendering its decision in this appeal.
Respectfully submitted,
LISA MADIGAN
Attorney General
State ofIllinois
BY:________
J~RALDS. POST for
~7’KAREN J. DIMOND
Assistant Attorney General
100 West Randolph Street
l2t1~~
Floor
Chicago, Illinois 60601
(312) 814-2274
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