REC~jV~r~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
OFflCE
CITY OF KANKAKEE,
)
Petitioner,
)
SEP 2 5 2O~3
vs.
)
PCB03-125
COUNTY OF
KANKAKEE,
)
(Third-Party Pollution
COUNTY BOARD OF
KANKAKEE,
)
Siting Appeal)
oard
and WASTE MANAGEMENT OF
)
ILLINOIS, INC.
)
Respondents.
)
MERLIN KARLOCK~,
)
Petitioner,
)
vs.
)
PCB03-133
COUNTY OF
KANKAKEE,
COUNTY
)
(Third-Party Pollution Control Facility
BOARD OF
KANKAKEE,
and WASTE
)
Siting Appeal)
MANAGEMENT OF ILLINOIS, INC.
)
Respondents.
)
MICHAEL WATSON,
)
Petitioner,
)
vs.
)
PCB03-134
COUNTY OF
KANKAKEE,
COUNTY
)
(Third-Party Pollution Control Facility
BOARD OF
KANKAKEE,
and WASTE
)
Siting Appeal)
MANAGEMENT OF ILLINOIS, INC.
)
Respondents.
)
KEITH RUNYON,
)
Petitioner,
)
vs......
....)..P.C~B.O3-135
COUNTY OF
KANKAKEE,
COUNTY
)
(Third-Party Pollution Control Facility
BOARD OF
KANKAKEE,
and WASTE
)
Siting Appeal)
MANAGEMENT OF ILLINOIS, INC.
)
Respondents.
)
MERLIN KARLOCK’S OBJECTION AND RESPONSE
TO
WASTE MANAGEMENT OF ILLINOIS. INC.’S MOTION TO RECONSIDER
Now comes Petitioner, Merlin Karlock, by his attorney, George Mueller, P.C., and in
opposition and response to Waste Management ofIllinois, Inc.’s Motion To Reconsider the
Board’s decision ofAugust 7, 2003, states as follows:
The Motion To Reconsider Does Not Set Forth Sufficient Grounds
For Reconsideration By The Board
General procedural rule 101.902 states, “In ruling upon a Motion For Reconsideration, the
Board will consider factors including new evidence, or a change in the law, to conclude that the
Board’s decision was in error.” This standard exists in order to prevent parties from simply
rearguing issues and legal principles that the Board has already fully addressed in its opinion. It
is clear that something more is required for the Board to reconsider its previous rulings than a
mere reworking of arguments already made. This higher standard in ruling on Motions To
Reconsider has been approved by the Appellate Court in Turlek v. Pollution Control Board, 274
Ill.App.3rd 244,
653
N.E.2d 1288 (Pt Dist.
1995).
The Motion ofWaste Management of Illinois
to reconsider does not allege any new evidence, it does not allege any change in the law. It does
not even allege any factual errors in the Board’s decision. The arguments in that Motion are
therefore best made in a Brief to the Appellate Court contesting the correct decision ofthis
Board.
The Service Reciuirements Of Section 39.2 Are Mandatory And Jurisdictional
The portion ofthe statue in question states,
“No later than 14 days prior to a request for location approval, the applicant shall
cause written notice ofsuch request to be served either in person orby registered
mail, return receipt requested, on the owners
...“
415 ILCS
5/39.2
(b)
Contrary to Respondent’s assertion that the legislature did not intend that personal service and
registered mail service would be the only means by which notice may be caused to be served, the
Courts ofthis State have consistently held that this service requirement is mandatory because it is
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jurisdictional. Respondent discusses legislative intent and asserts without authority that the
legislature’s intent in enacting 415 ILCS 5/39.2 was to allow multiple other forms ofconstructive
or substitute service. Respondent does not cite any ofthe legislative history, but correctly points
out that the first way one ascertains legislative intent is to look at the plain meaning ofthe words
in the statute. When the word “shall” is used in a statute, such language generally evidences the
legislature’s mandatory intent. Jones v. Dodendorf 190 Ill.App.3rd
557, 546
N.E.2d 92 (1989).
Additionally, substantial compliance with mandatory statutory requirements is typically not
sufficient. Wollan v. Jacoby, 274 Ill.App.3rd 388,
653
N.E.2d 1305
(1995).
This would be
particularly true when the statutory requirement is jurisdictional in nature as is the case here. The
Illinois Supreme Court has long taken the position that notice and timeliness requirements, when
property or procedural rights are involved, need to be strictly adhered to. An excellent discussion
is found in Andrews v. Foxworthy, 71 Ill.2d 13, 373 N.E.2d 1332 (1978).
The possibility of additional burden to a party required to give notice, and the possibility
ofwhat Respondent calls “absurd results” do not give this Board a basis to disregard clearly
established legislative intent, particUlarl Whcn that inteit has ~
~~rifled in multiple Appellate
Court opinions.
Respondent argues that this Board and the Appellate Courts have consistently refused to
strictly construe Section 39.2 (b) when doing so would contravene its true purpose.
Respondent’s support for this argument comes from dicta in various opinions rather than from
the holdings ofthe Board and the Appellate Courts. Some of Respondent’s authority for this
proposition is inapplicable. For example, Respondent cites Doubs Landfill, Inc. v. Pollution
Control Board, 166 Ill.App.3rd 778, 520 N.E.2d 977
(sth
Dist. 1988). Section 39.2 (b) requires
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that the notice shall state the “location of the proposed site.” In Doubs the Appellate Court
correctly ruled that this language did not invalidate a notice which contained an erroneous ~g~j
description, but otherwise accurately and correctly described the location ofthe site. This
holding is therefore inapplicable to the specific service requirement at issue here.
To the extent that this Board’s previous holdings in DiMaggio v. Solid Waste Agency of
Northern Cook County (PCB 89-138) and City of Columbia v. County ofSt. Clair (PCB 85-177)
support the proposition that receipt ofactual notice is not required when there is proofoftimely
and diligent attempts to obtain service ofnotice, those holdings were effectively overruled by the
Appellate Court in Ogle County Board v. Pollution Control Board, 272 Ill.App.3rd 184, 649
N.E.2d
545
(2~Dist.
1995).
This is actuallypointed out by the Board in its decision in ~j
Watts, Inc. v. Sangamon County Board, (PCB 98-2, June 17, 1999). Interestingly, Respondent
cites ESG Watts for the proposition that constructive service may be permitted, when the Board,
in that case, strictly construed the service ofnotice requirements as to every landowner whose
notice was at issue. Ogle County remains good law and binding despite the fact that this Board,
in its decision in the instant case, found that it had been partially overruled only as to when
certified mail is completed by our Supreme Court’s decision in People Ex. Rel. Devine v.
$30,700 U.S. Currency, 199 Ill.2d 142,
766
N.E.2d 1084 (2002), which held that certified mail
service is deemed completed upon deposit at the post office.
All ofRespondent’s arguments suggesting that Mrs. Keller was constructively served
must fail by reason of Ogle County Board’s holding that a service defect is available to all
participants to argue. Accordingly, a party on whom proper service was not effected does not
even have the power tO waive the defect.
4
No Court has ever ruled directly on whether constructive service would apply in light of a
finding that a landowner was actively attempting to frustrate the notice process by avoiding
service. Certainly, the Ogle County Board decision left open that possibility, but it becomes
irrelevant in light of the fact that there is no evidence in this record that Mrs. Keller attempted to
frustrate service, nor is there any finding in that regard by the Kankakee County Board in this
case. In fact, Respondent erroneously argues that constructive service should be found based
upon the timeliness and diligence ofservice attempts. This proposition is not supported by any
Appellate Court decision.
Respondent argues that Mrs. Keller, on whom no certified mail service was attempted,
should be deemed to have actuallyreceived notices purportedly served by regularmail and
posting on her front door. The fact that these methods are not approved by the legislature in this
case and that this Board is not authorized to contravene the legislative intent by designating
alternative service methods has been argued thoroughly in the Briefs ofthe parties. Respondent
relies on the fact that the Board and the Courts now accept certified mail service even though the
statute calls for registered mail. However, this ignores the well established line of cases which
find that registered and certified mail are legally interchangeable and functionally identical for
service purposes. With regard to regular mail, Respondent argues that the reliability ofthe same
has been established in Montalbano Builders, Inc.v. Rauschenberger, 794 N.E. 2d 401
(3rd
Dist.
2003). Montalbano Builders is an inapplicable precedent, a discovery sanctions case where the
Court held that regular mail must be assumed to be received in those situations where the service
of discovery requests by regular mail is authorized by statute.
5
Additionally, ifthe County Board lackedjurisdiction, should its finding on the issue be given any
weight at all?
What Respondent misses in this Board’s decision of August
7th
is that this Board found
that the Kankakee County Board lacked jurisdiction as a matter oflaw. This Board found that
Waste Management failed to attempt certified mail service on Brenda Keller and failed to
complete personal service on her. Those facts are not in dispute. The remaining facts regarding
the number of service attempts, the posting on the door, the regular mail, and when Mrs. Keller
was home are extraneous. This Board made a finding as a matter oflaw on undisputed facts.
Accordingly, the correct standard has been applied, and Respondent’s argument that it should
apply a different standard in deciding this issue has no merit.
Conclusion
For the foregoing reasons, the Motion ofWaste Management ofIllinois, Inc. to reconsider
should be denied.
Merlin Karlock,
BY:
~
His Attor~ey
GEORGE MUELLER, P.C.
Attorney at Law
501 State Street
Ottawa, IL 61350
Phone: (815) 433-4705
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