CLERK’S OFF~F
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUL
1 2003
THE CITY OF KANKAKEE, an Illinois
)
STATE OF ILLINOiS
Municipal Corporation
)
Pollution Control Board
)
Petitioner
)
v.
)
No. PCB 03-125
COUNTY OF KANKAKEE, a body politic and
)
(Third-Party Pollution Control Facility
Corporate; KANKAKEE COUNTY BOARD;
)
Siting Appeal)
And WASTE MANAGEMENT OF ILLINOIS,
)
INC.,
)
Respondent
)
)
MERLIN KARLOCK,
)
Petitioner
)
)
v.
)
No. PCB 03-133
COUNTY OF KANKAKEE, a body politic and
)
(Third-Party Pollution Control Facility
Corporate; KANKAKEE COUNTY BOARD;
)
Siting Appeal)
And WASTE MANAGEMENT OF ILLINOIS,
)
INC.,
)
Respondent
)
)
MICHAEL WATSON,
)
Petitioner
)
)
V.
)
No. PCB 03-134
COUNTY OF KANKAKEE, a body politic and
)
(Third-Party Pollution Control Facility
Corporate; KANKAKEE COUNTY BOARD;
)
Siting Appeal)
And WASTE MANAGEMENT OF ILLINOIS,
)
INC.,
)
Respondent
)
KEITH RUNYON,
)
Petitioner
)
)
V.
)
No. PCB 03-135
COUNTY OF KANKAKEE, a body politic and
)
(Third-Party Pollution Control Facility
Corporate; KANKAKEE COUNTY BOARD;
)
Siting Appeal)
And WASTE MANAGEMENT OF ILLINOIS,
)
INC.,
)
(Consolidated)
Respondent
)
1
CLERK’S OFFICE
JUL
12003
CITY OF
KANKAKEE’S REPLY BRIEF
TO RESPONSE p~J~(~~NOIS
WASTE MANAGEMENT OF ILLINOIS. INC.
AND
COUNTY OF KA±4
~oard
NOW comes the Petitioner, CITY OF KAINKAKEE, by and through its attorneys,
Christopher Bohien, Corporation Counsel, Kenneth A. Leshen and L. Patrick Power, Assistant
City Attorneys and in reply to the response brief filed by Waste Management ofIllinois, Inc. and
the County of Kankakee, states as follows:
I.
Re: Waste Management of Illinois’s failure to comply with Section 39.2.
Waste Management
ofIllinois, Inc. in
paragraph
II A. ofresponse
briefs
in A
& B make
the unsupported statement the
“. . .
WMII
accomplished actual notice on Petitioner Karlock, Mr.
Mehrer and the Kellers, as well as constructive notice
on Mr.
Mehrer and the Kellers in
compliance with the Section 39.2(b.)”
Apart from this raw conclusion, WivilI failed to present any proof that Brenda
Keller, a landowner clearly entitled to service under the requirements of Section 39.2(b) of the
Act, was never served in any fashion requested by 39.2(b). That issue was discussed in detail in
the brief ofobjector, Michael Watson. (Also see Siting hearing transcript
—
Volume 28, page 44).
It is also argued by WMII, that Mr. and Mrs. Keller attempted to evade service ofprocess
and therefore they were not entitled to service. The record is clear that the Kellers did not evade
service. Mr. and Mrs. Kellers’ testimony is uncontradicted as set forth in volume 28, pages
58,
59
and 101-135 of the siting hearing transcript. Furthermore, it is pointed out in the brief of
objector, Karlock, that the Kellers accepted certified mail service by Waste Management in
March 2002 relating to preliminary matters.
Ogle County Board v. Pollution Control Board,
272
Ill. App. 3d 184, calls for strict construction of the service requirements contained in Section
2
39.2, unless the property owners have clearly attempted to evade service. Since there was no
such evasion shown of record in this case, strict compliance should be required and clearly,
WMII has not complied with regard to the Kellers.
Waste Management attempts to establish that the Kellers saw the posted notice on their
door and further state that the evidence supports that conclusion. In fact, the evidence supports
only a contrary conclusion. The Kellers testified under oath that they did not see any such
posting and were never severed or notified as required by Section 39.2. There is no evidence
contradicting that testimony, only the unsupported assertion of Waste Management in its
response brief.
Waste Management further attempts to argue that posting satisfies the requirement of
Section 39.2(b) by citing
Green v. Lindsey.
It is clear that 39.2(b) calls for much more stringent
service requirements than were discussed in
Green v. Lindsey.
The petitioner in this case is
required to comply with the strict requirements of 39.2 under the
Ogle County
case, supra.
Waste Management’s argument under paragraph II. A. (1) (iii.), state that the Kellers
received notice ofWaste Management’s intent to file the application. That in no way speaks to
the issue of whether or not the Kellers were properly served in accordance with the statute.
Further, contrary to the assertion of Waste Management, the testimony of the Kellers is
creditable and has not been impeached by any evidence on the record. Their testimony therefore,
should stand as the truthful, creditable, and unimpeached.
Waste Management’s entire argument with regards to the Kellers, seems to be a series of
excuses as to why they could not get the required service on the them, particularly Brenda Keller.
That may speak to the incompetence of the process server but does not in any way vest the
Kankakee County Board with jurisdiction to hear this petition.
3
WMII admits in its brief that it never made any attempt to serve Brenda Keller by
certified mail. On page 22 ofits brief it states, “WMII sent notices via certified mail to Robert,
and via regular mail to Robert and Brenda. The process server also sent notices to both Kellers
via regular mail.” This is a clear admission that Brenda Keller was never served by certified
mail as required by Section 39.2.
At page 17 of its response brief, WMII tries to distinguish their facts from those that
appertain in the
Ogle County
case. The
Ogle County
case is the law in this area and it states,
“Because compliance with the notice requirements goes to the power ofthe County Board to act
(See
Kane County v.
139 Ill. App. 3d
593).
The failure to notify any party entitled to statutory
notice will divest the County Board ofjurisdiction over the landfill application.”
Ogle County v.
Pollution Control Board,
272 Ill. App. 3d 184, 193.
Waste Management’s response totally fails to address the argument of objector Karlock
set forth in paragraph III, 6. ofhis brief, which argument the City ofKankakee hereby adopts.
Further, Waste Management’s reliance as in
ESG Watts
case is inapposite. It quotes the
case, “If the property owner does not receive the notice on time, he or she nonetheless may be
deemed to be in constructive receipt of notice if the property owner refuses service before
deadline.”
Here, as pointed out above, Waste Management admits making no attempt to serve
Brenda Keller by certified mail. Further, there is no evidence that she refused service.
The County of Kankakee made similar arguments in its brief in paragraph I, A & B,
which are faulty for the same reasons.
II.
Fundamental Fairness.
4
Waste Management’s argument that the fundamental fairness ofthe proceedings was not
affected by its failure to make its current operating record available prior to the hearing seem to
ignore the purpose ofthe requirement of prior disclosure. Waste Management’s brief concedes
that this operating record was not readily available for inspection. The brief of Merlin Karlock
went into great detail on pages 9, 10 and 11 demonstrating the difficulties that his attorney had in
trying to secure these records. The fact that these records were available elsewhere in no way
mitigates the damage that members of the general public would have suffered in attempting to
gain access these records that should have been readily available, but were not.
American
Bottom Conservancy v. Village of Fairmont and Waste Management of Illinois, Inc.,
IPCB 00-
200, stands for the proposition the unavailability of public materials required to be filed as part
of the siting applications is fundamentally unfair. Waste Management’s argument does not
overcome this proposition oflaw.
Waste Management argues that the objectors in this case are required to show “actual,
resulting prejudice” in order to prevail as to their argument of fundamental unfairness. The
purpose of this statute in requiring the availability of such information is clearly to protect the
entire public, and particularly those who were unsophisticated in dealing with the exigency of a
landfill siting proceedings. Clearly, the general public is harmed by these failures to disclose.
Waste Management further argues that its witness, Beaver-McGarr’s false testimony
indicating that she had received a degree from Daley College was neither perjury nor fraud
because, (1) it not relate to a material issue and (2) she genuinely believed that she had received
such a degree. These propositions are preposterous. Waste Management cites the fact that Ms.
Beaver-McGarr continued to insist that she had received a degree somehow supports the
proposition that she genuinely believed that fact. She agreed to produce the documents but never
5
did. Her attorney agreed to bring her back for examination, but never did. These actions are
hardly consistent with the genuine belief that she had indeed received a degree. In contrast, the
Administrators from that college testified that no degree was ever issued to Ms. Beaver-McGarr.
Waste Management’s argument that this does not constitute a misrepresentation as to “a material
fact”, is also preposterous. What’s more important than the credentials that an expert relies upon
to support his or hers’ expertise. Whether or not she had received a degree from Daley College
was certainly important enough to Ms. Beaver-McGarr that she listed it prominently or
curriculum vitae. Furthermore, if her belief that she actually received that degree was so
steadfast why was she unwilling to return to explain this discrepancy? It is clear that this is
perjured testimony because it was false and material. None ofWaste Management’s arguments
overcome this conclusion and it so permeated the proceedings as to raise doubt about the
truthfulness and accuracy on the issues raised by Criterion 3. In accordance with the provisions
of law cited in
Harrington vs. Smith,
138 Ill. App. 3d 28 in City of Kankakee’s brief, Ms.
Beaver-McGarr’s testimony should have been stricken and cannot serve as a basis for the County
Board’s finding on Criterion 3. The City also adopts the argument of objector Watson on this
issue.
WMII’s brief as it addresses the City of Kankakee’s argument on Criterion 3 as to
WIVIII’s witness Jay Christopher Lannert, totally mischaracterize the City’s argument. Criterion
3 calls for evidence that the expansion is so located has to minimize incompatibility with the
character ofthe surrounding area. This was argued at page 18 of City’s brief. WMII’s response
fails totally to speak to the fact that Lannert’ s testimony stated that the plan was compatible, but
completely failed to testify as to the minimization of incompatibility which is called for by the
statute.
6
The County of Kankakee made similar arguments in its Brief in paragraph II, C & D,
which are faulty for the same reasons.
As to the other arguments raised by WMII and Kankakee County in their response briefs,
the City of Kankakee relies upon its arguments and the argument of objectors Karlock and
Watson presented in their original briefs in support of their opposition to the decision of the
Kankakee County Board siting the landfill in question.
Wherefore, the city of Kankakee prays that the findings and decision of the Kankakee
County Board siting the Landfill in question be reversed.
Respectfully submitted,
CityofKa a e
By:
_________________________________
L. atrick ower
Prepared by:
L. Patrick Power
Attorney at Law
956
N. Fifth Ave.
Kankakee, IL 60901
(815)
937-6937
7
~ge~
THE CITY OFBEFORE
KANKAKEE,
THE ILLINOISan Illinois POLLUTION
)
CONTROL BOARDJUL
STATECLERKSOF
1
OFlLLu1~~d
2003
Municipal Corporation
)
pollutiOn
Con
)
Petitioner
)
v.
)
No. PCB 03-125
)
COUNTY OF
KANKAKEE,
a body politic and
)
(Third-Party Pollution Control Facility
Corporate;
KANKAKEE
COUNTY BOARD;
)
Siting Appeal)
And WASTE MANAGEMENT OF ILLINOIS,
)
INC.,
)
Respondent
)
)
MERLIN KARLOCK,
)
Petitioner
)
)
V.
)
No. PCB 03-133
COUNTY OF
KANKAKEE,
a body politic and
)
(Third-Party Pollution Control Facility
Corporate;
KANKAKEE
COUNTY BOARD;
)
Siting Appeal)
And WASTE MANAGEMENT OF ILLINOIS,
)
INC.,
)
Respondent
)
)
MICHAEL WATSON,
)
Petitioner
)
)
V.
)
No. PCB 03-134
COUNTY OF
KANKAKEE, a
body politic and
)
(Third-Party Pollution Control Facility
Corporate;
KANKAKEE
COUNTY BOARD;
)
Siting Appeal)
And WASTE MANAGEMENT OF ILLINOIS,
)
INC.,
)
Respondent
)
KEITH RUNYON,
)
Petitioner
)
)
V.
)
No. PCB 03-135
COUNTY OF
KANKAKEE, a
body politic and
)
(Third-Party Pollution Control Facility
Corporate;
KANKAKEE
COUNTY BOARD;
)
Siting Appeal)
And WASTE MANAGEMENT OF ILLINOIS,
)
INC.,
)
Respondent
)
NOTICE OF FILING
To:
See Attached Service List
PLEASE TAKE NOTICE that on June 30, 2003 there caused to be filed via Federal
Express-Overnight Delivery with the Illinois Pollution Control Board an original and 9 copies of
the following document, a copy ofwhich is attached hereto:
City ofKankakee’s Reply Brief to Response Brief ofWaste Management of Illinois,
Inc. and County of Kankakee
Respectfully submitted,
The City ofK
kee
By
____________
Attorney
or
City
of Ka
akee
Preparedby:
L. Patrick Power #2244357
Corporate Counsel
956
North Fifth Ave.
Kankakee, IL 60901
(815)
937-6937
2
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 of the Illinois Code
of Civil Procedure, hereby under penalty of
perjury
under the laws of the United States of
America, certifies
that on June 30, 2003,
a
copy
ofthe foregoing
City ofKankakee’s
Reply Briefto Response BriefofWaste Management of Illinois, Inc. and County of
Kankakee
was served upon:
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James Thompson Center
100 W. Randolph St., Suite 11-500
Chicago, IL 6060 1-3218
Charles F. Heisten
Attorney at Law
P.O. Box 1389
Rockford, IL 61105-1389
Fax:
(815)
963-9989
Kenneth Leshen
One Dearborn Square, Suite
550
Kankakee,IL 60901
(815)
933-3385
(815)
933-3397
Fax
George Mueller
Attorney at Law
501 State Street
Ottawa, IL 61350
(815)
261-2149
(815)433-4913
Fax
Keith Runyon
1165 Plum Creek Dr. ??D
Bourbonnais, IL 60914
(815)
937-9838
(815) 937-9164 Fax
Donald J. Moran
Attorney at Law
161 N. Clark, Suite 3100
Chicago, IL 60601
(312) 261-2149
(312) 261-1149 Fax
Elizabeth Harvey, Esq.
One
IBM
Plaza, Suite 2900
330 N. Wabash
Chicago, IL 60611
(312) 321-9100
(312) 321-0990 Fax
Jennifer J. Sackett Pohlenz,
Attorney at Law
175 W. Jackson Blvd., Suite 1600
Chicago, IL 60604
(312) 540-7540
(312) 540-0578 Fax
Leland Milk
6903 S. Route 45-52
Chebanse, IL 60922
Patricia
O’Dell
1242 Arrowhead Dr.
Bourbonnais, IL 60914
Brad Halloran, Hearing Officer
Illinois Pollution Control Board
100 W. Randolph St., Suite 11-500
Chicago, IL 60601-3218
Fax: (312) 814-3669
By depositing a copy thereof, enclosed in an envelope in the Unj~dStates
Illinois, proper postage prepaid, before the hour of
30th
addressed as above.
2003.
-
A.
Leshen
Assistant City Attorney
One Dearborn Square, Suite
550
Kankakee, IL 60901
(815) 933-3385
Kankakee, IL 60901
(815) 937-6937