NOTICE OF FILING
BEFORE THE ILLINOIS POLLUTION CONTROL BOi~W,
CO-PETITIONERS’ REPLY TO
COUNTY’S RESPONSE TO MOTION TO DEEMLOWE’S SITE LOCATION APPLICATION APPROVED
C. Notice Under Section 40.1(a) is Mandatory and Jurisdictional

BEFORE

THE ILLINOIS POLLUTION CONTROBQPY

LOWE TRANSFER, INC. and

MARSHALL LOWE,

vs.

Co-Petitioners,

COUNTY BOARD OF McHENRY

COUNTY, ILLINOIS

Respondents.

)

RECEIVED

CLERK’S

OFFICE

)

No. PCB 03-221

SEP 2 (32003

)

(Pollution Control Facility ~

)

Pollution Control Board

)

NOTICE OF FILING

TO:

See List Referenced in Proof of Service

PLEASE TAKE NOTICE that on September

25,

2003, we filed with the Illinois Pollution

Control Board,

Co-Petitioners’ Reply to County’s Response to Motion to Deem Lowe’s 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

25”

day of September, 2003.

Charles F. Hels~en

Hinshaw and Culbertson

100 Park Avenue, P.O. Box 1389

Rockford, IL 

61105-1389

SUBSCRIBED and SWORN to before

me this

25”

day of September,

Notary Public

David W. McArdle

Attorney Registration No. 06182127

ZUKOWSKI ROGERS FLOOD & MCARDLE

50 Virginia Street; Crystal Lake, Illinois 60014

(815) 459-2050

H:\LOWE\NOTFJLE9.TRANSFER.wpd

Bradley P. Halloran

Illinois Pollution Control Board

James R. Thompson Center, Suite 11-500

100 West Randolph Street

Chicago, IL ~060l

~ “OFFICIAL SEAL”

7~4~/~.

SUSAN K. BAUER

Notary

Public, State of Illinois

~ My Commission Expires

04/03/05

This document is printed on recycled paper.

BEFORE THE ILLINOIS POLLUTION CONTROL BOi~W,

LOWE TRANSFER, INC. and

)

CLERK’S OFFICE

MARSHALL LOWE,

)

SEP

2 G 2003

Co-Petitioners,

)

No. PCB 03-221

)

(Pollution Control Fa~.i~ThTE

OF ILLINOIS

vs.

)

Siting Appeal)

of ution Con trol Board

COUNTY BOARD OF McHENRY

)

COUNTY, ILLINOIS

)

Respondent

)

CO-PETITIONERS’ REPLY TO

COUNTY’S RESPONSE TO MOTION TO DEEM

LOWE’S SITE LOCATION APPLICATION APPROVED

Co-Petitioners, Lowe Transfer, Inc. and Marshall Lowe, submit this Reply Brief to the

response brief filed by McHenry County on September 18, 2003.

Newspapers Containing Notice Were

Not First

Issued in McHenry County

The County argues that the three post offices in McHenry County where Pioneer Press

newspapers were delivered for further distribution are the locations of “first” issue and, thus,

publication in McHenry County. (County’s Response, p.

5).

It should be noted the County

completely ignores the two separate and distinct Pioneer Press newspapers delivered to post

offices in Lake County. In an attempt to support their position, the County cites the same

Attorney General opinions contained in Lowe’s Motion. However, the County misstates the

holdings ofboth opinions.

In the 1981 Attorney General Opinion the newspapers were ultimately delivered to

subscribers in both Douglas and Moultrie Counties, however, all ofthe newspapers were sent to

~ post office, Moultrie, and mailed from there. 1981 Ill. Atty. Gen. Op. 91 (No. 8 1-037). The

Attorney General correctly determined that the location of “first” issue ofthe newspapers was the

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Moultrie Post Office because eveiy mailing originated from this one post office. In this instance,

the newspapers for subscribers within McHenry County were printed, sorted and bundled in

Northfield then delivered by a private trucking company to five separate and distinct post offices

within two different counties. There can be only one place ofpublication. 1992 Ill. Atty. Gen.

Op. 010 (No. 92-010). See also

Garcia v. Tully,

72 Ill. 2d 1(1978). Therefore, the location of

the “first” Pioneer Press issue and thus, publication, was the place where the newspapers were

sorted, bundled, and picked up for delivery by a private trucking company, i.e., the Pioneer Press

facility in Northfield, Cook county, Illinois.

The County also misstates the opinion in the 1992 Attorney General Opinion. 1992 Ill.

Atty. Gen. Op. 92-010. At page

of its brief, the County provides a quotation from this opinion

to the effect that the newspaper in question was pubhshed “only in the township in which it is

delivered for labeling and distributing topost offices”. However, this partial quotation was taken

completely out of context. The full quotation states:

The publisher contends that “publication”, for purposes ofsection 103,

occurs in each township in which the publisher’s triick delivers the papers

to a post office. This contention was rejected in opinion No. F-1287,

issued November 6, 1964 (1964 Ill. Att’y Gen. Op. 249), wherein Attorney

General Clark concluded that a newspaper could have only one place of

publication. The publication ofa newspaper takes place where it is first

issued to the public, i.e., where the first actual distribution of bulk

deliveries of the newspaper originates. This conclusion is supported by

the opinion in Garcia v. Tully (1978), 72 Iii. 2d 1, wherein the court

distinguished between “publication” and “circulation” of a newspaper,

concluding that simultaneous circulation of a newspaper within

several townships is not the equivalent of pubJication in each

town~j!jQ.

Accordingly, it is my opinion that the newspaper in question is

published, for purposes ofsection 103 ofthe Revenue Act of 1939, only in

the township to which it is delivered for labeling and distribution to post

offices.

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The first actual distribution of bulk deliveries of the Pioneer Press newspapers originates at their

Northfield facility.

In fact, the County actually supports Lowe’s position when stating,

“. .

.clearly the separate

newspapers printed by Pioneer Press have separate circulations and are issued at different

locations”. (County’s Response, pp.

5-6).

Under the Supreme Court’s ruling in

Garcia v. Tully.

72 Ill.2d 1 (1978), such multiple places of issuance ipso facto do not constitute publication at

each location. (“The simultaneous circulation ofa newspaper within several communities is not

the equivalent ofpublication in each community.”)

Id.

at 14.

Notice

Was Required in a Newspaper of General Circulation in McHenry County

—

Not a

Newspaper of General Circulation

Cary

The County argues, “The fact ofthe matter is that the Lowe Transfer Station was

proposed to be located in the southeastern portion ofMcHenry County, close to the border of

Lake County. Therefore, it was

entirely appropriate to provide notice to newspapers

circulated in those areas.”

(County’s Response, p. 9). The county, by this admission,

acknowledges that notice was not given to residents in all parts ofMcHenry County but only to

those residents ofthe southeastern portion of the county. What was “entirely appropriate”and

legally mandated, however, was for the notice to be published in a “newspaper of general

circulation in McHenry County” as required by Section 40.1(a) ofthe Act. The people in the rest

ofMcHenry County are entitled to be given notice of a hearing for a proposed transfer station

located in the unincorporated territory of the county.

In support ofits argument the County

citesPeople ex rd. Tonian v. 110 South Dearborn

Street Bldg. Corp.

372 111.459;

Eisenberg v. Wabash, 355 111.495; Polzin v. Rancl~McNally & Co.,

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250 Ill.

561; Loy v. Knaak,

309 Ill.App. 574 and

Organization oft/ic Greater Algonquin Park

District v. Village ofLake in the Hills,

103 I11.App.3d

1056.

There are several distinctions that

must be noted with the cases cited by the County.

First, the County relies on

Loy

for the holding that a newspaper “was of ‘general

circulation’ not~~iithstandinga large percentage of its circulation was on the south side of

Chicago”. (County’s Response, p. 6).

Loy

is an abstract opinion. The use of abstract opinions is

not allowed by the courts. “The use of abstract opinions and rule 23 orders as precedent

consistently has been condemned by courts of review

—

condemnation so universal that no

citation is required”.

C’ochran v. GreatAtlantic & Pacific Tea Company, Inc.,

203 Ill.App.3d

935

(5th

Dist 1990). See also

Schusse v. Pace Suburban Bus Division,

334 Ill.App.3d 960 (1St

Dist 2002). Because of the County’s misuse ofan abstract opinion, all reference to and reliance

on the

Loy

case should be totally disregarded by the Board.

The County also misstates the holding in

Organization of GreaterAlgonquin Park

District v. Village ofLake in the Hills.

103 Ill.App.3d 1056

(25d

Dist 1982). The County cites

this case for the proposition that “unrebutted proofwas sufficient to establish that the newspaper

at issue was ofgeneral circulation”. (County’s Response, p. 8). However, the facts in

Algonquin.

are clearly distinct from the circumstances in the Lowe appeal.

Algonquin,

as the court stated, “No proofwas offered by the objectors at the hearing on

the objections that The Cardunal Free Press was not of general circulation within the proposed

park district....Under

these circumstances,

the unrebutted proofis sufficient to establish that The

4

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Cardunal Free Press is a newspaper of general circulation in the proposed park district 

and

this

obj ection cannot be sustained”.

Id.

at 1061.

Algonquin

wduld only have relevance if the objectors to the issue ofgeneral circulation

have offered no proofor evidence. Lowe’s Motion, however, provided an abundance of

evidence demonstrating that the Pioneer Press newspapers have only a local and limited

circulation within McHenry County 

—

not the general circulation within McHenry County

required by Section 40.1(a). The County’s reference to and reliance 

Algonquin

should be

totally disregarded by the Board.

The County places the weight of their argument on general circulation on three cases

dating back to before 1940 

Toman, Eisenberg

and

Poizin.

(County’s Response, pp. 6-9). The

Supreme Court has, however, since clarified the issue 

of general circulation in

a series of more

recent decisions.

In

Garcia v. Tully,

72 Ill.2d 1 (1978), the court noted, “The very purpose of requiring the

publication of official notices is to inform the people concerning proceedings of a public nature

for the general welfare.” 

Id.

15.

The Supreme Court in 

North Shore Savings and Loan

Association v. Gr~ffin,75

Ill.2d 166 (1979) further clarified the issues regarding proper notice. In

its holding the Court stated, “the Commissioner’s interpretation of the statute would pennit a

savings and loan association to place notice in a Chicago newspaper, which has a general

circulation throughout 

the

State, to notify residents 

of downstate communities of a proposed

relocation. It is unlikely that the legislature intended such a result”. 

Id.

171.

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The purpose of notice is to give all parties 

an opportunity to support or oppose a matter at

issue. 

Kleidon v. City ofHickory Hills,

120 Ill.App.3d 1043, (1St Dist 1983). Substantial

compliance with notice provisions has been held to be insufficient where 

statutory provisions are

not merely technical requirements but are jurisdictional. 

Village ofSouthern View v. County of

Sangamon,

228 Ill.App.3d 468 

(4t~~

Dist 1992), citingML. 

Ensininger Co. v. Chicago Title &

Trust Co.,

74 Ill.App.3d 677, (ist Dist 1979). Notice cannot be a mere gesture.

Abandonment of

Wells Located in Illinois v. Department ofNaturalResources,

2003 WL 21977009 (Ill.App.

Dist),

cititig Mu/lane v. Central Hanover Bank & Trust Co.,

339 U.S. 306

(1950).

Lowe’s application for a siting location approval was for a site in unincorporated

McHemy County and by law had to be filed with McHenry County. The service area for Lowe’s

facility was all of 

McHenry

County. (000001, Sec. 1). Transfer stations have been identified by

the County itself as part of an overall approach to solid waste planning for all the residents of

McHenry County. (C00001, Appendix H). All residents of McHenry County are entitled to be

given an opportunity to voice their opinion at the required public hearing.

The County in its Response, however, argues that notifying 

only those residents of the

southeastern part of McHenry County meets the requirements of notice within the County. The

Pioneer Press newspapers used for the notice are “local and limited” newspapers. Pioneer Press

by its own notice of publication makes no pretense of being a McHenry County newspaper.

Notice in a newspaper of special or limited character such as the Pioneer 

Press newspapers does

not constitute notice

within McHenry County as required by Section 40.1(a).

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Notice Under Section 40.1(a) is Mandatory and Jurisdictional

The County in its Response relies heavily on

McHenry County Landfill, Inc. v. Illinois

Environmental Protection Agency,

154 Ill.App.3d 89 (2nd Dist. 1987) forthe proposition that the

procedural requirements ofSection 40.1(a) are not jurisdictional. (County’s Response, p. 9).

While citing extensively to portions of this ruling, the County fails to include the last paragraph

ofthe section dealing with notice. The Court concluded its holding by stating:

Illinois Power,

the court recognized that, in addition to its pubic health

concerns, the Act requires the PCB to expedite its review process. If the

court had not deemed the permits issued under the circumstances

presented there, it would effectively have allowed the PCB to avoid the

consequences of an impending violation of the 90-day limit by

disregarding the notice requirement (137 Ill.App.3d 449, 452, 92 Ill.Dec.

167, 484 N.E.2d 898.) By contrast, the 120-day deadline was in 

danger

of expiring here. Had the PCB recognized its error, it would have had

ample time to give 21-day notice and still hold the hearing within the

prescribed period. While we agree that the requirement the PCB may not

disregard the 21-day notice requirement at will, we conclude that where, as

here, the PCB’s failure strictly to comply with it was inadvertent, resulted

in no prejudice to the appellant, and did not permit the PCB to avoid

another, clearly mandatory provision ofthe Act, the deficiency will not

give the appellate the option of deeming the site approved.

Id.

at 97. Emphasis added.

The circumstances in

McHenry

are clearly and distinctly in direct opposition to the facts

in the Lowe appeal. The

McHenry

ruling depends on three factors being meet: (1) failure to

comply was inadvertent; (2) failure to comply resulted in no prejudice; and (3) failure to comply

did not pennit the PCB to avoid another clearly mandatory provision ofthe Act. Only under

these circumstances does the ruling in

McHenry

apply.

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However, the facts in Lowe’s appeal clearly demonstrate that the appeal mirrors exactly

the situation in 

Illinois Power

—

not the situation in 

McHeniy.

The purpose of notice is to give

all parties an opportunity to support or oppose a matter at issue. 

Kleidon v. City ofHickory Hills,

120 Ill.App.3d 1043, 

(

Dist 1983). Lowe was prejudiced in that the only McHenry County

residents who had notice of the hearing were those neighbors in the southeastern part of the

county who are opposed to the siting for purely parochial reasons. When notice is provided to

only the area of opposition to a matter, the hearing is effectively skewed such that the opinions

that will be heard at any public meeting are one-sided.

The August 14, 2003 public hearing is void because of lack of proper notice and there

does not remain enough time to hold another public hearing. If the Board is allowed to ignore

the failure of its notice and have no legally noticed public hearing before the end of the 120-day

decision deadline, the Board would clearly be in violation of another mandatory provision of the

Act. Under both 

Illinois Power

and

McHenry,

Lowe’s site location application should be

deemed approved.                 

The County in its Response extends its argument further, “Based on 

McHenry County

and

the authorities cited above, it is clear that the notice.provisions of section 40.1(a) are not

mandatory and jurisdictional, as Co-Petitioners contend”. (County’s Response, p. 12). The

County attempts to support this bold assertion by offering the legal argument that while notice

under Section 40 is jurisdictional, notice under Section 40.1(a) is not. The language used in both

sections is exactly the same 

—

“shall publish that 21 day notice in a newspaper of general

circulation 

that county”. Yet, somehow, the County wants the Board to rule that while the

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courts have found this requirement jurisdictional for cases filed under Section 40, it is not

jurisdictional for cases filed under Section 40.1(a).

It is well settled that in construing statutes one must ascertain and give effect to the intent

the legislature. 

Madigan v. Dixon-Marquette Cement, Inc.,

2003 WL 22049138 (Ill. App. 2

Dist.), citing 

Harris v. Manor Healthcare Corp.,

11111. 2d 350. In ascertaining the intent of the

legislature, one examines the statutory enactment and seeks” ‘to determine 

the objective the

statute sought to accomplish and the evils it desired to remedy’ 

“Madigan

at

citing 

Harris,

111111. 2d at 362. The courts presume that the General Assembly, in passing legislation, did not

intend absurdity, inconvenience, or injustice. 

Madigan

at

citing

Harris,

111111. 2d at 363.

To assert that the legislature when it approved two sections of the Act, one immediately

following the other, with the same provisions for notice, intended notice to be treated differently

for each section is an argument that clearly rises to the level of both absurdity and injustice.

Clearly under both legislative intent and court decisions, the notice requirements of Sections 40

and 40.1(a) demand the same compliance and both are mandatory and jurisdictional. To adopt

the interpretation of the County achieves nothing other than circumventing both the appeal

process and the purposes of the Act.

Lowe’s Motion Is

Not

Barred by Waiver, Estoppel and/or Laches

The County incorrectly argues Lowe’s motion is barred because “of failing to raise this

issue at the Board hearing”. (County’s Response, p. 13). The notice requirements of Section

40.1(a) are mandatory and jurisdictional as Lowe demonstrated 

its Motion and in previous

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sections of this reply. The issue of subject matter jurisdiction cannot be waived and can be raised

at any time. 

Belleville Toyota, Inc. v. Toyota Motor Sales, USA, Inc.,

199 Ill.2d 325 (2002).

The PCB ‘s failure to comply with the notice provisions of Section 40.1(a) have rendered

any subsequent actions by the PCB void. The PCB ‘s lack of compliance with the jurisdictional

requirements is subject to attack at any time or in any court, either directly or indirectly.

Abandonment, of Wells Located in Illinois v. Department ofNatural Resources,

2003 WL

21977009 (Ill.App. 

Dist). See 

also

Ogle County Board v. Pollution Control Board,

272

Ill.App.3d 184, 

(25d

Dist 

1995).

WHEREFORE, for the reasons set forth above and in Lowe’s Motion, the Co-Petitioners

request that the Board issue an order (1) finding that the hearing notice was defective and the

Board lacks authority to issue a final decision on the merits, and (2) deeming Lowe’s site

location application approved in accordance with 415 Ill. Comp. Stat. 5/40.1(a).

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, mc, and Marshall Lowe

Virginia Street

Crystal

Lake, Illinois 60014

815/459-2050; 815/459-9057 (fax)

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