BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CITY
OF
KANKAKEE,
)
RE
C
E ~V E ~
)
CT ~
Petitioner,
)
PCB 03-03-125
~••~
~ ~
v.
)
(Third-Party Pollution
~
ILUNOIS
)
Facility Siting APP~J?UtIO~I
Control
Board
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, NC.,
)
)
Respondents.
)
MERLIN KARLOCK,
)
)
Petitioner,
)
PCB 03-133
v.
)
)
(Third-Party Pollution Control
COUNTY OF KANKAKEE, COUNTY
)
Facility Siting Appeal)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLiNOIS, INC.,
)
)
Respondents.
)
MICHAEL WATSON,
)
)
Petitioner,
)
PCB 03-134
)
v.
)
(Third-Party Pollution Control
)
Facility Siting Appeal)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.,
)
)
Respondents.
)
KEITH RUNYON,
)
)
Petitioner,
)
PCB 03-135
)
v.
)
(Third-Party Pollution Control
)
Facility Siting Appeal)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLiNOIS, iNC.,
)
)
Respondents.
)
DJM 374153 vi September
15,
2003
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on September 15, 2003, we filed with the Illinois
Pollution Control Board, the attached WASTE
MANAGEMENT OF ILLINOIS, INC.’S
MOTION TO SUBMIT
CORRECTED
PAGES
INSTANTER
in the above entitled matter.
W~~M7Off~~
One ofIts Attojheys
Donald J. Moran
Lauren Blair
PEDERSEN & HOUPT
Attorneys for Petitioner
161 N. Clark Street
Suite 3100
Chicago, IL 60601
Telephone: (312) 641-6888
DJM 374153 vi September
15,
2003
PROOF OF SERVICE
Victoria L. Kennedy, a non-attorney, on oath states that she served the foregoing WASTE
MANAGEMENT
OF ILLINOIS, INC.’S MOTION TO SUBMIT
CORRECTED PAGES
INSTANTER
on the following parties via hand delivery on September
15,
2003:
Ms. Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
Bradley Halloran, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11th Floor
Chicago, Illinois 60601
and on the following parties via first class mail, postage prepaid in an envelope correctly addressed and
placed in the mail depository at 161 North Clark Street, Chicago, Illinois on or before 5:00 p.m. on
September 15, 2003
Jennifer J. Sackett Pohlenz, Esq.
Querrey & Harrow
175 W. Jackson Boulevard, Suite 1600
Chicago, IL 60604
Kenneth A. Leshen, Esq.
One Dearborn Square, Suite
550
Kankakee, IL 60901
(815) 933-3397 (fax)
George Mueller, Esq.
501 State Street
Ottawa, IL 61350
(815)
433-4913 (fax)
Keith Runyon
1165 Plum Creek Drive, Unit D
Bourbonnais, IL 60914
(815)
937-9164 (fax)
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, IL 60901
(815)
937-0056 (fax)
Charles F. Helsten, Esq.
Richard S. Porter, Esq.
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
(815) 963-9989 (fax)
Victoria L. Kenne~ky)
/
DJM 374153 vi September
15,
2003
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
MANAGEMENT OF ILLINOIS, INC.,
CITY OF KANKAKEE,
V.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
R
~C
~ p ~
C~r?~
SEp
j ~
Petitioner,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
PCB03-125
Po/i~~Si~j~0~
OF
Control~
~
(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)
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.
LBLAIR 374274 vi September 15, 2003
This Document was Printed on Re~ycIedPaper
KEITH RUNYON,
)
COUNTY OF KANKAKEE, COUNTY
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.,
)
)
Respondents.
)
MOTION TO
SUBMIT
CORRECTED PAGES
INSTANTER
Respondent WASTE MANAGEMENT OF iLLINOIS, INC. (“WIvifi”), by its attorneys,
Pedersen & Houpt, files this motion to submit corrected pages ofits Motion to Reconsider filed
on September 12, 2003. In support thereof, WMII states as follows:
1.
On September 12, 2003, WMII filed a Motion to Reconsider requesting that the
Illinois Pollution Control Board (“Board’) reconsider and reverse the ruling it issued in its
Opinion and Order entered on August 7, 2003.
2.
WMILs Motion to Reconsider contained the inadvertent typographical and/or
syntactical errors on pages 6, 7, 14 and
15.
3.
WMJT has corrected said pages as follows:
A.
Page 6, paragraph 9, second sentence
-
Section 39.2(b) provides that applicants
shall cause written notice to be serve served “in person.”;
B.
Page 7, paragraph 12, fourth sentence
-
The fact that Because WMII actually
caused notice to be served on Mrs. Keller by mail and by “in person” posting to
her residence, WMII satisfied the notice requirements of Section 39.2(b), and the
Board’s ruling to the contrary was erroneous and should be reversed.;
C.
Page 7, paragraph 13, last citation
-
See
~g
~
D.
Page 14, paragraph 28, last citation
-
;
(defendunt’s r,tlf-c,ei vjn~deieials
thatit
received
1eutlCe~
~vu~ ieje~t~d).
In
Montalbano Builders,
at *3 (despite the
plaintiff’s claims that he did not receive the request to admit, court presumed that,
since the request was mailed, it was received four days after the date the notice of
LBLAIR 374274 vi September 15, 2003
This Document was Printed on Re~ycIedPaper
2
V.
Petitioner,
)
)
PCBO3-135
)
--
~
)
(Third-Party Pollution Control
S~p ~
)
Facility Siting Appeal)
)
OF ru
pO//~10n Ofltr
~&.L1R/o1s
0f
service was filed). Montalbano Builders, at *3
E.
Page 14, paragraph 29, last sentence
-
There was sufficient evidence presented
before the County Board to support its finding, and conflicts in the evidence i-~~
not enough to render that finding against the manifest weight of the evidence.;
F.
Page 15, paragraph 30, last sentence
-
The issue of whether WIvifi’s attempts to
notify Mrs. Keller were sufficient to constitute constructive notice for purposes of
satisfying the notice requirements of Section 39.2(b) presents a mixed question of
law and fact in that a factual determination must be made as to whether WIvifi’s
efforts at serving notice on Mrs. Keller were timely and diligent, and a legal
determination must be made as to whether such efforts were sufficient to
constitute constructive notice under the law. and
G.
Page 15, paragraph 32, first sentence
-
As stated above in paragraphs 14-16, the
Board did not determine whether W?vffl’s efforts at serving notice on Mrs. Keller
were timely and diligent, or make a legal determination as to whether such efforts
were sufficient to constitute constructive notice under the law.
4.
WMII has attached the corrected pages hereto and requests that the Board review
the corrected pages 6, 7, 14 and 15 in lieu of the originally filed pages 6, 7, 14 and
15.
5.
As the changes to pages 6, 7, 14 and 15 are limited to correcting typographical
and/or syntactical errors, no prejudice will result in the granting of this Motion.
WHEREFORE, WASTE MANAGEMENT OF ILLINOIS, INC. respectfully requests
that the Board grant WIIVifi’s Motion to Submit Corrected Pages
Instanter,
and for such other and
further relief as it deems appropriate.
Donald J. Moran
Lauren Blair
PEDERSEN & HOUPT
161 North Clark Street, Suite 3100
Chicago, Illinois 60601
(312) 641-6888
LBLAIR 374274 vi September 15, 2003
This Document was Printed on Re~yc1edPaper
Respectfully submitted,
WASTE
of Its Attorneys
3
seeking to site a pollution control facility to undertake appropriately reliable and diligent efforts
to cause notice of the request to be served on surrounding property owners.
City of Columbia,
slip op. at 13;
Village ofBensenville,
slip op. at 6;
DiMaggio,
slip op. at 10;
ESG Watts, Inc.,
slip
op. at 9. Therefore, under the proper construction, providing notice through posting notice and
regularmail complies with Section 39.2(b).
9.
Indeed, the plain language of Section 39.2(b) establishes that posting is an
acceptable method ofservice. Section 39.2(b) provides that applicants shall cause written notice
to be served “in person.” This is not synonymous with the term “personal service.” The term
“personal service” refers to the person being served, whereas the phrase “cause written notice to
be served in person” refers to the person doing the serving.
See Reynolds v. City of Tuscola,
48
Ill. 2d 339, 270 N.E.2d 415 (1971) (“personally serve” refers to the person doing the serving, and
“personal service” refers to the person being served). Causing notice to be served “in person” is
not limited to attempts at personal service. It includes any other reliable method of delivering the
notice in person, including sending a process server to post notice to a property owner’s residence
“in person.”
Greene v. Lindsey,
456 U.S. 444 (1982) (posted notice is reliable means of
providing notice).
10.
Moreover, Section 39.2(b) permits service by regular mail, in addition to
registered mail and certified mail. The Board has already expanded the type of mailed service
permitted to include service of notice via certified mail return receipt requested.
Ash,
slip op. at
7. Given that regular mail is a reliable method of providing notice,
Montalbano Builders, Inc. v.
Rauschenberger,
2003 Ill App. LEXIS 949 at *3 (3d Dist. July 23, 2003), evidence of actual
service via regular mail should be held to satisfy Section 39.2(b).
11.
The Board’s overly restrictive interpretation would enable objectors to use Section
373763.5
6
39.2(b) as a mechanism to upset the local siting process by engaging in tactics to frustrate
attempts at those two types of service. Such a result would be manifestly unjust to applicants and
is not consistent with Section 39.2(b).
ESG Watts, Inc.,
slip op. at 9. Nor could the legislature
have intended that a property owner with actual notice but not through personal or certified mail
service would be able to defeat jurisdiction, whereas an applicant who merely presented returned
certified mailing receipts that were stamped “unclaimed” would obtain jurisdiction. Clearly,
Section 39.2(b) should not be construed to bring about such an absurd result.
12.
In this case, WMIJT actually served notice on Mrs. Keller in accordance with
Section 39.2(b) through posted service and mailed service. The notices that WMTI sent to Mrs.
Keller via mail were never returned. While Mrs. Keller contended that she never actually saw
the posted notice, such flat denials are insufficient.
See Montalbano Builders, Inc.,
2003 III
App. LEXIS 949 at *3~Because WIvifi actually caused notice to be served on Mrs. Keller by
mail and by “in person” posting to her residence, WIIVifi satisfied the notice requirements of
Section 39.2(b), and the Board’s ruling to the contrary was erroneous and should be reversed.
II.
THE BOARD ERRED
IN
ITS APPLICATION OF THE
DOCTRINE
OF
CONSTRUCTIVE NOTICE
13.
In addition to actual service, Mrs. Keller was also constructively served.
However, the Board misapplied the doctrine ofconstructive notice. First, the Board incorrectly
stated that the concept of constructive notice was enunciated in
ESG Watts, Inc.,
and was nothing
more than dicta. (Slip op. at 16). In fact, the doctrine of constructive notice was announced in
City of Columbia
and has been recognized as binding precedent in subsequent Board and Illinois
court decisions.
See e.g.,Ogle County,
272 Ill. App. 3d at 195, 649 N.E.2d at 553;
DiMaggio,
slip op. at 9-10.
14.
Second, in determining whether Section 39.2(b) has been satisfied through
373763.5
7
notice of constructive termination, despite evidence that the notice was faxed, was against the
manifest weight of the evidence);
Montalbano Builders,
at *3 (despite the plaintiff’s claims that
he did not receive the request to admit, court presumed that, since the request was mailed, it was
received four days after the date the notice of service was filed).
29.
In any event, the record before the Board contained conflicting evidence that Mrs.
Kellers knew that WIVifi was attempting to serve notice on her and conveniently made herself
unavailable to be notified, in person or by mail. The hearing before the County Board provided
the only opportunity to hear the conflicting testimony and to assess witness credibility. The
County Board was also in the best position to analyze Mr. Keller’s testimony in the context of the
other evidence presented concerning the Kellers’ relationship with Petitioner Watson, Petitioner
Watson’s influence on the Kellers to claim they did not receive notice, and the contradictions in
the Kellers’ own testimonies. The County Board ultimately determined that Mrs. Keller’s denials
were not credible and found that the notice requirements of Section 39.2(b) were satisfied. There
was sufficient evidence presented before the County Board to support its finding, and conflicts in
the evidence are not enough to render that finding against the manifest weight of the evidence.
McLean County Disposal, Inc.,
207 III. App. 3d at 482, 566 N.E.2d at 29.
B.
The
Issue
Of Whether
WMII Accomplished Constructive Notice Presents A
Mixed Question Of Law And Fact And, Therefore, Should Have Been
Reviewed By The Board Under The Clearly Erroneous Standard
30.
The Board also erred in failing to apply the clearly erroneous standard of review
to the question of whetherMrs. Keller should be deemed to have received constructive notice.
The issue of whether WMII’s attempts to notify Mrs. Keller were sufficient to constitute
constructive notice for purposes of satisfying the notice requirements of Section 39.2(b) presents
a mixed question of law and fact in that a factual determination must be made as to whether
373763.5
14
WMIT’s efforts at serving notice on Mrs. Keller were timely and diligent, and a legal
determination must be made as to whether such efforts were sufficient to constitute constructive
notice.
31.
Where an adjudicatory body’s “determination presents a mixed question oflaw
and fact, its decision will be set aside only if it is clearly erroneous.”
Land and Lakes Co.,
319
ill. App. 3d at 53, 743 N.E.2d at 197. Under a clearly erroneous standard of review, reversal is
appropriate only if, after review of the entire record, the reviewing court is left with the definite
and firm conviction that a mistake has been committed.
Carpetland U.S.A., Inc. v. illinois
Department ofEmployment Security,
201 Ill. 2d 351, 369, 776 N.E.2d 166, 177 (2002).
32.
As stated above in paragraphs 14-16, the Board did not determine whether WMII’s
efforts at serving notice on Mrs. Keller were timely and diligent, or make a legal determination as
to whether such efforts were sufficient to constitute constructive notice. However, the evidence
in the record clearly demonstrates that WMII made sufficiently diligent and timely attempts to
serve the Kellers through a variety of reliable means.
33.
There was no dispute at the hearing before the County Board that Wltvffl employed
extensive efforts to notify the Kellers ofits intent to file an application for site location approval.
The process server made five separate attempts over four days to serve the Kellers. In addition to
attempts at personal service, WIVifi sent notices to Mr. Keller via certified mail, and to Mr. and
Mrs. Keller via regular mail. The process server also sent separate notices to Mr. and Mrs.
Kellers via regular mail. Thus, five separate mailings were sent to the Kellers. Finally, WMII
posted notice to the Kellers’ residence. In total, 11 notices were sent ordelivered to the Kellers.
34.
There was also no dispute that WMIE’s efforts were timely. In order to be timely,
attempts to serve notice must also be initiated sufficiently in advance to reasonably expect receipt
373763.5
15