1. NOTICE OF FILING
      2. SITE LOCATION APPLICATION APPROVED
      3. AFFIDAVIT OF SERVICE
      4. Via UPS Overnight Delivery.
~~3CE~VED
CLERK’S
OFFICE
ILLINOIS POLLUTION CONTROL BOARD
SEP
18
2003
LOWE TRANSFER, INC.
and MARSHALL
)
STATE OF ILLINOIS
LOWE,
)
Pollution
Control Board
)
Petitioners,
)
)
vs.
)
Case No.
PCB 03-221
)
COUNTY BOARD OF
MCHENRY COUNTY,)
ILLiNOIS
)
)
Respondent.
)
NOTICE OF FILING
TO:
See Affidavit
of
Service
PLEASE
TAKE
NOTICE
that
on
September
17,
2003,
we
sent
via
UPS
Overnight
Delivery,
for filing
with the Illinois Pollution
Control Board,
the attached
Respondent County
Board
of McHenry
County,
Illinois’
Response
to Co-Petitioners’
Motion
to
Deem
Lowe’s
Site Location Application Approved, a
copy ofwhich is attached hereto.
Dated: September
17, 2003
Respectfully Submitted,
On behalfofthe County Board ofMcHenry
County, Illinois
By: Hinshaw &
Culbertson
(~i~
~
(~L)
One of its Attorneys
HINSHAW & CULBERTSON
100 ParkAvenue
P.O. Box
1389
Rockford, Illinois
61105-1389
815/490-4900
70377295v1
830017
flE CE ~VED
CLERK’S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
SEP
:1.
8
2003
LOWE TRANSFER, INC. and MARSHALL
)
STATE
OF ILLINOIS
LOWE,
)
Pollution
Control Board
Petitioners,
)
)
vs.
)
Case No.
PCB 03-221
)
Pollution Control Facility Siting Appeal
COUNTY BOARD
OF
MCHENRY
COUNTY,)
ILLINOIS
)
Respondent.
)
RESPONDENT COUNTY BOARD
OF MCHENRY COUNTY, ILLINOIS’
RESPONSE TO CO-PETITIONERS’ MOTION TO DEEM LOWE’S
SITE
LOCATION APPLICATION APPROVED
NOW COMES, Respondent, COUNTY BOARD OF MCHENRY COUNTY, ILLINOIS,
by
and
through
its
attorneys,
HINSHAW
&
CULBERTSON,
responding
to
Co-Petitioners’
Motion
and
Memorandum
in
Support
of Motion
to
Deem
Lowe’s
Site
Location
Application
Approved.
Respondent
respectfully
requests
that
this
Board
deny
Co-Petitioners’
Motion
to
Deem Lowe’s Site Location Application Approved.
Co-Petitioners’ Motion should be dismissed
because (1) the Board
clearly complied with
the notice provision set forth
in section 40.1(a)
of
the
Act;
(2) the notice
provision
set
forth
in
section 40.1(a)
is
not jurisdictional,
and the relief
requested would,
in
fact, run contrary
to
both
the
spirit and
intent of the Act,
thereby causing
harm
to
the very
members of the public
who
are intended to
be
the beneficiaries of the notice
requirements;
and
(3)
Co-Petitioners’
should
not
be
allowed
to
raise
inadequate notice
at
this
time
because
they
failed
to
raise
it
at
the
Board
Hearing.
For
these
reasons,
Respondent
respectfully requests that this Board deny Co-Petitioners’ Motion.
70376955v1
830017
1.
THIS BOARD COMPLIED
WITH THE NOTICE PROVISION SET
FORTH iN
SECTION 40.1(A) OF THE ACT.
Section 40.1(a) ofthe Illinois Environmental Protection Act (Act)
provides that prior to
a
hearing before the Pollution
Control Board
(Board) to
contest the decision of the county board,
“the
Board
shall
publish
21
day
notice of the hearing on
appeal
in
a
newspaper
of general
circulation
published in that county.”
415
ILCS
5/40.1(a).
As noted by
Co-Petitioners,
of the
thirteen newspapers that encompass the Northwest Zone of the Pioneer Press, five are distributed
and circulated within McHenry County.
(Co-Petitioners’ Memo, p.
5;
Exhibit C).
Of those five
newspapers,
three newspapers,
namely
Cary-Grove
Countryside,
Algonquin
Countryside
and
Lake-in-the-Hills
Countryside
are
all
first
delivered
and
issued
to
post
offices
located
in
McHemy
County.
Id.
Copies
of those
three
newspapers
are
delivered to
newsstands
within
McHenry County.
Id.
These facts, presented by Co-Petitioners themselves, demonstrate that the
notice provided by the Board clearly comported with the notice provisions of section 40.1(a) of
the Act.
Co-Petitioners contend that this provision was not met because Pioneer
Press’ Northwest
Zone
newspapers
were
neither
published
in
McHenry
County
nor
generally
circulated
in
McHenry County.
However,
Co-Petitioners’
arguments
must
squarely
fail,
as the newspapers
containing notice
of the section
40.1
hearing were
both
published
and
generally
circulated
in
McHenry County.
a.
Notice was provided in newspapers published in McHenry County.
While no
courts have specifically examined the notice provisions of the Act to determine
the meaning of the word “published,” this Board has defined the term “published” as contained in
the Act.
In
Clutts v.
Beasley,
PCB 87-49 (Aug.
6,
1987), this Board was called upon to
construe
the notice provision ofsection 39.2 ofthe Act, which provides that notice is to be published “in a
2
70376955v1
830017
newspaper ofgeneral circulation published in the county in which the site is located.”
(Emphasis
added).
415
ILCS
5/39.2(b).
This Board concluded that
the term “published”
did not mean that
the newspaper had to be printed and issued in the County, but simply required that the newspaper
be regularly and generally distributed in the
county.
PCB
87-49, slip op
at *4~ Therefore,
even
though the newspaper at issue in
Clutts
was printed in a Missouri city contiguous with the county
where the proposed facility was to be located, the notice provided in that newspaper satisfied the
notice provisions ofthe Act because the newspaper was regularly sold, distributed and circulated
in the county.
Id.
Like the newspaper
at
issue in
Clutts,
the newspapers
at
issue
here
are admittedly not
printed in McHenry County;
however,
five newspapers in which the Board’s notice appeared
are
regularly
sold,
distributed
and
circulated within McHenry County.
(Co-Petitioner’s
Memo,
pp.
5-6).
As
a result, those
newspapers clearly fit the definition of newspapers “published in that
county.”
In
reaching
its
conclusion in
Clutts,
this
Board
relied
on
the
Illinois
Supreme
Court’s
decision of
People
ex
rel.
City
of Chicago Heights
v.
Richton,
43
Ill.2d
267,
253
N.E.2d 403
(1969).
In that
case, the Court
specifically refused to
find
that
“published within such city”
as
used in the Election Code meant
“to print
and issue
within the
city.”
Richton,
43
Ill.2d at 270,
253 N.E.2d at 405.
The Court explained that “the
primary meaning of the word ‘publish’
is to
make known.”
43
Ill.2d at 271, 253 N.E.2d at 405.
The Court further found that the legislature
clearly did not mean to
require publication in
a newspaper that was printed in a certain location
because
“ifthe legislature intended notice
to be
given in a newspaper that was both printed and
published
in
the
community,
it
would
have
done
so
with
the
appropriate
language.”
Id.
Consequently,
the Court concluded that the word
“published”
“is not synonymous with the word
3
70376955v1
830017
‘printed’
but
means
to
make
public
or
to
make
known
to
people
by
newspapers of general
circulation.”
Id.
The fact that
40.1(a)
merely
requires
a
newspaper
to
be
“published”
in
the
particular
county
and
not
“printed”
in
the
county
recognizes
that
there
are
likely
counties
were
no
newspaper is
printed.
In such counties, it would be
impossible
to provide notice in accordance
with section 40.1(a)
of the Act
if,
as contended
by
Co-Petitioners, section 40.1(a)
contained a
“printed”
requirement.
Clearly
the
legislature
would
not
draft
a
statute
that
could
not
be
complied with in
all circumstances.
Consequently,
Co-Petitioners’
assertion that the newspaper
containing notice must be printed in McHenry County must fail.
Co-Petitioners’
contention
that
notice
was
not
provided
in
a
newspaper
published
in
McHenry County
because the newspapers
in which
the notices
were
published are printed in
Cook
County,
not
McHenry
County
is
directly
contrary
to
Richton
and
other
controlling
authority.
In fact, this Board,
as well as the Illinois Supreme Court, have specifically concluded
that the term “published”
is not the same as “printed.”
See
Clutts
v.
Beasley,
PCB 87-49 (Aug.
6,
1987);
People
ex rel.
City of Chicago Heights v. Richton,
43
Ill.2d 267, 253
N.E.2d 403
(1969);
see also Second Federal Savings and Loan Assoc. ofChicago v.
Home Savings and Loan Assoc.,
60
I1LApp.3d
248,
376
N.E.2d
349
(1st
Dist.
1978).
If the
legislature
wished
to
require
newspapers to
be both published
and
printed in
a county, the legislature clearly would have
so
provided,
as
it has
specifically
done
in
other
statutes.
See
e.g.
65
ILCS
5/11-4-8
(requiring
public
notice
to
be provided
“in
some
newspaper printed and published with the county”);
755
ILCS 20/3
(requiring publication in “some newspaper printed and published in the county”).
Even relying on Co-Petitioners’ definition of “published”
as “first issued or printed, to be
sent
out
by
mail
or
otherwise,”
this
Board
nonetheless
still
clearly
complied with
the
notice
4
70376955v1
830017
provisions by publishing notice in the Northwest Zone ofthe Pioneer Press,
since Co-Petitioners
concede
that
three of those
newspapers (Cary-Grove
Countryside,
Algonquin
Countryside and
Lake-in-the-Hills Countryside)
are all
first issued to post offices located in McHenry County.
In
fact, the Illinois Attorney General Opinions cited by
Co-Petitioners establish that the post offices
from which the newspapers are delivered in McHenry County are the place ofissuance for those
newspapers.
The
1981
Attorney
General
opinion provided
that
the
newspaper
at
issue,
the
Aurthur Graphic Clarion,
was printed in Villa Park and then distributed to Douglas and Moultrie
Counties.
Because
the newspapers
“are
first
taken to
the Post
Office in
Moultrie
County for
mailing
to
subscribers
and
then
are delivered
to
newsstands in
Moultrie
County
and Douglas
County with the first newsstand deliveries being made in Moultrie County.
.
.
it is
clear that
the
Arthur Graphic Clarion
is
published in
Moultrie
County.”
(Emphasis added.)
1981
Ill.
Atty.
Gen.
Op.
91,
slip
op.
at
*2.
Additionally,
the
1992
Attorney
General
Opinion
specifically
provides
that
“the newspaper
in
question
is
published
.
.
.
only
in
the township
in
which
it
is
delivered for
labeling and
distributing to post offices.”
1992
WL 469746
(Ill.A.G.), slip
op. at
*2
In
this
case,
there
is
no
disagreement
that
the
Cary-Grove
Countryside,
Algonquin
Countryside and
Lake-in-the-Hills
Countryside newspapers
are
first
issued
to
post
offices
in
McHenry County.
Therefore,
those newspapers are
clearly published in that county,
according
to
any definition of“published.”
Because Co-Petitioners cannot legitimately assert that the Cary-
Grove
Countryside, Algonquin
Countryside and
Lake-in-the-Hills
Countryside newspapers
are
not
issued
in
McHenry
County,
Co-Petitioners
instead
conveniently
focus
solely
on
Pioneer
Press
and
state
that
Pioneer Press
newspapers are
all
“published”
in
Cook
County,
where
the
papers
are printed.
Such
an
argument
is without merit because clearly the
separate newspapers
5
70376955v1
830017
~
printedby Pioneer Press have separate circulations and are issued at different locations.
As such,
based on
even the most narrow definition of “published”,
it is
clear that
the notice provided by
the Board was proper under section 40.1(a) ofthe Act.
b.
Notice
was
provided
in
newspapers
of general
circulation
in
Mdllenry
County.
While
no
Courts
have
specifically
construed the
meaning of the phrase
“newspaper of
general circulation” in the context of section 40.1(a) of the Act,
the Illinois
Supreme
Court has
construed that
term in the
context of other
statutes,
and
has repeatedly
and
consistently
found
that
the only
requirement for a “newspaper of general
circulation”
is
that it
is
available
to
all
classes of people.
See People ex. rel
Toman
v.
110 South Dearborn Street Bldg.
Corp.,
372 Ill.
459,
462,
24
N.E.2d
373,
375
(1939)
(finding
that
the phrase
“general circulation” refers
to
a
general newspaper, not one ofa special or limited character, that
circulates among all classes and
is not
confined to
a particular class or calling in
the community);
Eisenberg
v.
Wabash,
355
Ill.
495,
497-98,
189 N.E. 301, 302 (1934) (“All that is required is that it be
secular in nature;
that
is
circulate
among different classes ofreaders; and that it dispense information which is ofinterest
to
the general
public.);
Polzin
v.
Rand,
McNally
&
Co.,
250
Ill.
561,
575,
95
N.E.
623,
627
(1911) (“A newspaper is
of general
circulation
when it circulates
among
all
classes,
and
is
not
confined to a particular class or calling in the community.”).
Contrary to Co-Petitioners’ assertion that “general circulation” implies that the newspaper
must
be
received by
inhabitants throughout
the
county, courts,
including
the
Supreme Court,
have
refused
to
read
such
an
unreasonably
narrow
requirement
into
the
phrase
“general
circulation.”
See Toman,
372 Ill.
459,
24 N.E.2d 373;
see also Loy
v.
Knaak,
309
Ill.App.
574,
33
N.E.2d
509
(1st
Dist.
1941)
(finding
that
a
newspaper
was
of
“general
circulation”
notwithstanding
a
large
percentage of
its
circulation
was
on
the
south
side
of Chicago).
In
6
70376955v1
830017
Toinan,
the
Court
specifically
found
that
the newspaper
at issue
was
a
newspaper
of general
circulation in Cook
County,
even though it was published
and circulated in the southeast part of
Chicago, mainly
in three or four wards,
with a
daily paid circulation of 6,000
copies.
Toman,
372 Ill, at 461, 24 N.E.2d at 374.
In finding that
such a newspaper was a newspaper of general
circulation, the Court explained: “No Illinois
authorities have been called to our attention holding
that the circulation of a
newspaper designated by law
for publication purposes must be
general
throughout the municipal area.”
Id.
The
Court
found that “to
require proof that a newspaper
for publication purposes has a general circulation throughout the area ofthe
city, county, State or
forest preserve district,
is to require something that
is
not in the statute.”
Toman,
372 Ill. at 462,
24 N.E.2d at 375.
This
Board
should
also
disregard
Co-Petitioners
contention
that
the
number
of
subscribers ofthe newspapers was somehow determinative ofwhether the newspapers at issue in
this
case were
“newspapers
of general
circulation”
for two
reasons.
First
and
foremost, this
Board
must
disregard
Co-Petitioners’
alleged
evidence of the
number of subscriptions
of the
Pioneer Press newspapers in McHenry County because these alleged facts were
not presented in
the
hearing below
and
are not
supported
by
oath,
affidavit or certification,
as required by
the
Illinois Pollution Control Board Rules.
See 35 Ill.
Adm. Code
§
101.504 (“Facts asserted that are
not of record in the proceeding must be
supported by oath, affidavit or certification.”).
Rather,
those alleged facts are supported only by an
e-mail and infonnation contained on a web-site, with
none
of
the
alleged
information
made
under
oath,
certified
or
verified
in
an
affidavit.
Consequently, any alleged information about subscriptions to McHenry County
citizens must be
disregarded.
7
70376955v1
830017
Second,
even
if
Co-Petitioners
correctly
indicated
the
number
of
subscriptions
to
McHenry County
residents, Co-Petitioners
have
still
failed
to
establish
that
the newspapers at
issue
are
not
of general
circulation.
According
to
the Illinois
Supreme
Court:
“The
general
circulation ofa newspaper is not determined by the number ofsubscribers but by the diversity of
its
subscribers.”
(Emphasis
added.)
Eisenberg,
255
Ill.
at
498,
189
N.E.
at
302.
Because Co-
Petitioners
have failed
to present any evidence that the Pioneer Press newspapers circulated
and
issued
in
McHenry
County
are
limited
to
a
particular
class
of
subscribers,
Co-Petitioners’
argument
that
the
newspapers
at
issue
were
not
of
“general
circulation”
must
fail.
See
Organization
of
the
Greater
Algonquin
Park
District ‘v.
Village
of Lake
in
the
Hills,
103
Ill.App.3d
1056,
1061,
432 N.E.2d 306,
310
(2d Dist.
1982) (finding that the unrebutted proof
was sufficient to
establish that the newspaper at issue was ofgeneral circulation).
Co-Petitioners
appear to
contend that the only newspaper that
is of “general circulation”
in McHenry County is the Northwest Herald, a newspaper published in Crystal Lake.
However,
there
is no
rule that
establishes that only one
newspaper can be of “general circulation” in
any
given county.
Furthermore, this
Board must
disregard
the maps
provided by
Co-Petitioners
allegedly
depicting
the
circulation of the
Northwest Herald,
as
those
exhibits
are
offered
in
express violation
of the
Illinois
Pollution
Control
Board
Rules,
set
forth
at
35
Ill.Adm.Code
§
101.504,
as
those
exhibits
were
not
made
under
oath,
certified
or
properly
referenced
or
included in the form of an affidavit.
Because it is clear that the PioneerPress’ newspapers issued
and
distributed
to
McHenry
County
are
newspapers
of “general
circulation,”
Co-Petitioners
contention that the Board was required to publish notice in the Northwest Herald must fail.
Finally,
this Board
should disregard Co-Petitioners’
assertions that proper
notice was not
provided to
McHenry
County residents.
In fact, the Board
hearing was
well-attended by
161
8
70376955v1
830017
individuals, establishing that adequate notice was clearly provided.
Additionally, Co-Petitioners’
assertion that
only
certain residents
received
notice
must
also be
disregarded,
as
no
evidence
was ever offered to
support such an assertion.
The fact of the 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, and it was not surprising
that many of the objectors that attended the
hearing were from those areas, as those are the individuals that would clearly be most affected by
the facility.
For the reasons set forth above, the notice provided by this Board was in accordance with
section 40.1(a)
of the
Act.
However, even if this
Board
determines that
the notice was not
in
accordance
with
the
Act,
nonetheless,
the
Board
should
still
not
deem
Lowe’s
site
location
application
approved for the reasons set forth below.
2.
THE
NOTICE
PROVISION
OF
SECTION
40.1
OF
THE
ACT
IS
NOT
JURISDICTIONAL.
Co-Petitioners repeatedly assert that the notice provision of section 40.1(a)
is mandatory
and jurisdictional and, therefore, by failing
to provide a Board hearing with adequate notice,
this
Board must simply deem Lowe’s site location application approved.
This
Board must reject such
assertions,
as the
only
appellate
court
to
examine the
notice
provision of section
40.1(a)
has
clearly held that
the notice
to
be provided by the Board
is
neither mandatory
or jurisdictional.
See McHenry
County Landfill,
Inc.
v. Illinois Environmental Protection Agency,
154 Ill.App.3d
89,
506
N.E.2d 372
(2d
Dist.
1987).
In
McHenry
County,
the
Petitioner
argued that
that
the
Board was required to
deem its
site approved because the Board provided only 20 days notice of
the Board hearing, rather than the prescribed 21
days set forth in section 40.1.
154
Ill.App.3d at
95,
506
N.E.2d
at
376-77.
The Petitioner
argued that
by
giving
only
20
days notice
of the
9
70376955v1
830017
bearing,
“the PCB
violated a mandatory
and jurisdictional provision of the
Act,
and
therefore
failed
to
conduct
a
valid
hearing
within
the
required
120
days.”
Id.
Therefore,
Petitioner
contended
that it was
entitled to have its
landfill site approved.
Id.
The Court disagreed.
154
Ill.App.3d at 97,
506
N.E.2d at 378.
In
determining
that
the
notice
provision
of
40.1
was
not
mandatory,
the
Court
in
McHenry
County
carefully
examined
the
statutory
language
of
the
provision.
The
court
explained that
“while
the word
“shall”
ordinarily
indicates a mandatory intent,
the rule
is
not
inflexible
and
the
context
and
purpose of the statute
should
control.”
McHen?y
County,
154
Ill.App.3d at 96,
506 N.E.2d at 377,
citing In re Application ofRosewell,
97 Ill.2d 434,
440-441,
454 N.E.2d 416
(1983);
People v.
Youngbey,
82
Ill.2d
556,
562,
45
Ill.Dec. 938
(1980).
After
considering the express purpose of the Act, which is to
“restore, protect and enhance the quality
ofthe environment,
and to assure that adverse effects upon the environment are fully considered
and borne by those who cause them (415 ILCS
5/2(b)),
and the legislature’s intent, which was “to
place
decisions regarding the sites
for landfills
with
local
authorities”
(E
& E Hauling,
Inc.
v.
Pollution Control Board,
107
Ill.2d
33,
42,
481
N.E.2d 664
(1985)), the
Court concluded
that
“the legislature could not
have intended the
PCB’s inadvertent and
apparently harmless
error
to
result in
a deemed site approval.
Such a rule would both eliminate any consideration ofthe site’s
suitability
for
a landfill
and
deprive local
authorities of the power given them by
the
statute.”
McHenry County,
154 Ill.App.3d at 96-97, 506 N.E.2d at 377.
Co-Petitioners cite
Illinois Power Co.
and
Marquette Cement Manufacturing
Co.
for their
assertion that
the notice
provisions of section 40.1
are jurisdictional.
However,
both of those
cases are clearly distinguishable because the courts in those cases were construing section 40, not
section 40.1, ofthe
Act.
It
is
section 40.1
(and
not section 40) of the Act
that is in issue
in the
10
70376955v1
830017
present case.
Furthermore, the Court in
McHenry County
specifically considered
Illinois Power,
aiid found that it was not controlling,
in large part because the Board in
Illinois Power
purposely
avoided the
notice
provisions
set
forth
in
section .40
in
order
to
render a
decision within
the
statutorily-prescribed
90
days.
McHenry
County,
154
Ill.App.3d
at
96,
506
N.E.2d
at
377.
However, in
McHenry
County,
the Board’s failure
to
follow the
statutory notice
provision was
inadvertent.
Id.
The Court found that fact to
be significant because had the Board in
McHenry
County
recognized its error, there would have been ample time to provide 21-day notice and
still
hold
the hearing
within the
120-day
period.
154
Ill.App.3d
at
97,
506
N.E.2d
at
378.
After
contrasting
the
facts
at
issue
with
those
of Illinois
Power,
the
Court
in
McHenry
County
concluded:
“While we agree that the PCB may not disregard the 21-day notice requirement at
will, we conclude that where,
as here, the PCB’s failure to
strictly comply with it
was inadvertent, resulted in no
prejudice to
the applicant, and did not permit
the
PCB
to avoid another, clearly mandatory provision of the Act, the deficiency will
not give the appellant the option ofdeeming the site approved.”
Id.
Like the mistake made by the Board in
McHenry County,
any mistake made by the Board
in this case would clearly be inadvertent, as the Board clearly (and properly) believed that it was
appropriate to provide notice
in the Pioneer Press newspapers.
Just as in
McHenry
County,
had
the inadequate notice been raised in a timely manner, the Board would have been able to remedy
to
the situation and still had plenty oftime to meet the 120-day
deadline.
Therefore, the Board in
this case was clearly not attempting to disregard the notice provision ofthe statute.
Furthermore,
like
the
applicant in
McHenry
County,
Co-Petitioners
have failed
to
show
any prejudice
as
a
result of the
alleged inadequate
notice.
In
contrast,
the prejudice
to
McHenry
County
and
its
citizens
would be
great
if approval were
granted
to
Lowe’s site
application.
The
citizens
of
McHenry County,
who
are intended to
be
the express beneficiaries of the notice requirements,
will clearly be harmed by a transfer station located in their community in an unsuitable location,
11
70376955v1 830017
as found by the McHenry County Board,
and
by having their participation in these proceedings
disregarded.
Consequently,
like
the Court in
McHenry County,
this Board
should
find that
any
deficiency
in
the
notice provided by
the Board
does not
give Co-Petitioners
the right
to
have
their site deemed
defacto
approved.
In
addition,
this
Board
has
agreed
with
the
Court’s
holding in
McHenry
County
and
repeatedly cited McHenry County for the proposition that the notice requirements
contained in
section 40.1
are not jurisdictional.
See
Wabash and Lawrence
Counties
Taxpayers and
Water
Drinkers Assoc.
v.
County of Wabash and K/C Reclamation,
Inc.,
PCB 88-110 (May 25,
1989);
Laidlaw
Waste
Systems, Inc.
v.
McHenry
County Board,
PCB 88-27
(June
16,
1988);
Wabash
and Lawrence
Counties Taxpayers and
Water Drinkers Assoc.
v.
County
of Wabash,
PCB
87-
122 (Dec. 3,
1987).
Based on
McHenry County
and the authorities cited above, it is
clear that the
notice
provisions
of section
40.1(a)
are
not
mandatory
or
jurisdictional,
as
Co-Petitioners
contend.
In fact, and directly to the contrary, construing those provisions as mandatory would be
detrimental
to
local governing bodies,
as specifically
found by the Second District in
McHenry
County,
because a harmless error by the Board could result in approval ofa site that
is harmful to
the health and
safety of citizens, which
in turn
would
clearly be
contrary to
the purpose of the
Act
“to restore, protect
and
enhance
the quality of the environment.”
415
ILCS
5/2(b).
Such
harm would
occur despite the fact that it is the citizens ofMcHenry County who are intended to
be
beneficiaries
of the
notice
provision,
and
those
citizens
were
present
at
the
hearing
and
participated
in
the
hearing.
If
this
matter were
decided
by
default
rather
than
on
the
facts
contained in the record, the very active and significant public participation had in this proceeding.
would be disregarded entirely.
12
70376955v1
830017
Therefore, if this Board finds that the notice provision ofsection 40.1(a)
was not met, this
Board
still
should
find that any deficiency in notice
was merely harmless
error,
as the
Court
in
McHenry
County
held.
To
hold
otherwise
would
punish
innocent
citizens
for
an
innocent
mistake made by the Board, which
did not cause harm or prejudice
to
anyone.
For the reasons
set forth above, Respondent respectfully requests that this Board deny Co-Petitioners’ Motion.
3.
CO-PETITIONERS
MAY NOT
RAISE
THE
BOARD’S
NONCOMPLIANCE
WITH SECTION 40.1
BECAUSE THEY FAILED TO DO
SO AT THE BOARD
HEARING.
This Board should find that Co-Petitioners are not allowed to raise their inadequate notice
argument
at this point because by
failing to raise this
issue at the Board hearing,
Co-Petitioners
are nowprecluded from doing so based on waiver, estoppel and/or laches.
As
set
forth
in
the facts presented by
Co-Petitioners, the Board
provided
notice of the
Board
hearing, pursuant
to
40.1(a) of the
Act,
on
July
24,
2003.
The exhibits
filed with
Co-
Petitioners’ Motion indicates that they investigated the sufficiency ofthe notice provided at least
as early as August
13, 2003, the day before the Board hearing.
(See Exhibit B to
Co-Petitioners’
Memo, an August 13, 2003 fax
from Don Brown of the Board to Diane Tumball, a consultant for
Co-Petitioners).
Had the
issue
been raised
in
a
timely
fashion
at the
hearing,
any
desirable
correction could have been made, such as additional notice
and a continued hearing.
Instead,
on
September 15,
2003, over one month after the hearing, and with
18 days remaining for the Board
to reach a final decision in this
case, Co-Petitioners asserted for the first time that the newspaper
notice provided by the Board over seven weeks earlier was insufficient.
Because Co-Petitioners
failed to raise this issue either at or before the Board hearing, Co-Petitioners’
argument should be
deemed waived.
See Haffle & Associates v. Department ofEmployment Security,
308
Ill.App.3d
983,
987,
721
N.E.2d
782,
786
(3d
Dist.
1999)
(holding
that
arguments
not
raised
at
13
70376955v1 830017
administrative hearing are waived);
Lebajo
v.
Dept.
ofPublic Aid,
210 Ill.App.3d 263,
268,
569
N.E.2d 70, 74 (1st Dist.
1991) (same).
This Board has specifically held that issues not raised at a Board hearing are waived.
See
Gere Properties, Inc.
v.
Jackson County Board,
PCB 02-201 (Sept.
5,
2002).
In
Gere,
Petitioner
asserted for the first time
in its post-hearing brief that the facility at issue failed to
meet criterion
(viii)
of section
39.2(a)
of the
Act.
PCB
02-201,
slip
op.
at
*4..5~
Gere
failed
to
raise
that
argument
at the hearing
itself or in its petition to
review,
and
as a result, this
Board refused to
allow Gere’s untimely argument.
Id.
at
5.
The Board found that it was inappropriate for such
an
argument to
be made at such a late date because Gere
could have raised the issue earlier,
either
before or during the hearing itself, but Gere
never attempted to
do
so.
Id.
The Board found that
Gere’s
failure
to
raise
the
issue
until
its
post-hearing
brief
resulted
in
prejudice
to
the
respondents.
Id.
Consequently, this Board granted the respondent’s motion to
strike that portion
of Gere’s brief.
Id.
Like Gere,
Co-Petitioners
had
the
ability
to
raise
the issue of inadequate notice
either
before or during the Board
hearing, but
they deliberately elected not to
do
so.
Co-Petitioners’
failure to raise this issue will not only prejudice Respondent, but will prejudice McHenry County
as a whole because despite the County Board’s finding that the Lowe facility did not meet several
ofthe criteria set forth in section 39.2,
the facility will be allowed to be developed in the County
based on a simple mistake alleged to have been made by the Pollution Control Board.
Additionally,
Co-Petitioners
should
be
estopped
from
raising
this
notice
argument
because it
is
clear that
Co-Petitioners purposely waited to
object to
the notice
until it would be
impossible
for the Board
to
provide
adequate
notice
for a new hearing
prior
to
the
120-day
limitation in which the
Board has to come to
a final decision.
Even though Co-Petitioners were
14
70376955v1 830017
likely aware ofthe alleged deficient notice as of July 24, 2003
(the date the notice was provided),
and at
least as early
as
August
13,
2003
(when their
consultant
checked
on
publication), Co-
Petitioners appear to
have purposely refused to raise the issue until over seven weeks later, when
the
situation could no
longer be
remedied.
If Co-Petitioners
had raised this
issue
on
July
24,
2003
or even August
14, 2003, at the hearing, and the Board decided that the issue somehow had
merit, the Board would
have been able to provide notice for a new hearing to be held within 21
days and would have
still
been able
to
meet
the 120-day
requirement.
However, because Co-
Petitioners
waited until
it
would
be
physically
impossible
for
the Board
to
fulfill
the
21
day
notice
requirement
of the
hearing
and
the
120-day
requirement
for
a
final
decision,
Co-
Petitioners
should be
estopped
from making
such an
argument
now.
Otherwise,
Co-Petitioners
will be allowed to benefit from their own wrongdoing.
It is well-settled that “no one shall be permitted to
.
.
.
take advantage ofhis own wrong.”
Loeb
v.
Gendel,
23 Ill.2d
502,
505,
179
N.E.2d 7,
9(1961).
By allowing Co-PetitIoners to
sit idly
by
and wait until it was
too
late for the Board to hold a new hearing before arguing that the
first
hearing was held without adequate notice,
Co-Petitioners would be allowed to take advantage of
their
own
wrong.
Therefore,
the
doctrine
of
estoppel
should
be
applied,
precluding
Co-
Petitioners
from
raising
such
an
argument
and
preventing
an
unjust
result.
See
Tegeler
v.
Industrial
Commission,
173
Ill.2d
498,
505,
672
N.E.2d
1126,
1129
(1996)
(explaining that
estoppel
is
an
equitable
doctrine
invoked
to
effectuate
justice
by
precluding
a
party
from
benefiting from its
own wrongdoing).
This situation is similar to one
presented in the time-worn
old proverb
where
a
young
man on
trial
for killing
his
parents, pleaded
to
the court:
“Have
mercy
on
me.
I
am
an
orphan!”
Although
admitted
time-worn,
the
proverb
has
direct
applicability
in
this
case.
Like
the
man
in
that proverb,
Co-PetitiOners
have,
by
their
own
15
70376955v1 830017
actions,
created
a
situation
from
which
they now blithely
seek
relief.
Based
on
the doctrine
estoppel, Co-Petitioners should not be allowed to do so.
Finally,
Co-Petitioners
should
not be
allowed to
raise the notice
argument
now
for the
first
time
based
on
the
doctrine of laches.
Laches
is
applied
when
a party’s
failure
to
timely
assert
a right has caused
prejudice to
the adverse
party.
Van
Milligan
v.
Board of Fire and
Police Commissioners of the Village of Glenview,
158 Ill.2d
85,
89, 630 N.E.2d 830,
833
(1994).
The two
fundamental elements oflaches are lack ofdue
diligence by the party asserting the right
and prejudice to the opposing party.
Id.
Clearly, both ofthese elements are present in this
case
because by
failing
to
investigate and
raise the
issue of improper notice
until seven weeks
after
notice was provided, Co-Petitioners failed to use due diligence.
Furthermore, prejudice
is clearly
established
not
only
with
respect to
the
McHenry County Board,
whose decision will become
null
and
void,
but
also
to
the
citizens
of McHenry
County
as
a
whole,
who
will
have
an
unapproved transfer facility in their community and
whose statutory right
to public participation
will have been abrogated
by a decision made by default rather than on the record.
Because Co-Petitioners waited to
allege improper notice until a time when a new hearing
could not
be
provided
in
accordance
with
the 40.1(a),
it
is
clear
that
Co-Petitioners
were
not
actually concerned
about receiving
a
fair hearing, but
rather,
were
simply
employing
a
sharp
tactical move in an
attempt
to
have their siting application
approved without having to
actually
show
that
their
facility
meets
the
requirements
of section
39.2
of the
Act.
As
such, Co-
Petitioners’
Motion
should
be
dismissed
so that
Co-Petitioners will not be
able to
benefit
from
unacceptable
and unfair tactics.
In conclusion, this Board
should deny Co-Petitioners Motion because the notice provided
by this Board was clearly in
compliance with
section 40.1(a)
of the Act,
as notice
appeared
in
16
70376955v1 830017
several newspapers of general
circulation
published in
McHenry County.
Even if this
Board
finds that notice was
not
appropriately given, Co-Petitioners Motion
should be
denied because
the notice provision of section
40.1(a)
is
not jurisdictional
and,
therefore,
this
Board
does
not
have
to
strictly
comply
with that provision in
order to
reach a
final decision on
Co-Petitioner’s
Petition.
Finally,
it would be inequitable for this Board to grant Co-Petitioners’
Motion because
of Co-Petitioners’
delay
in
objecting
to
the
notice;
therefore,
waiver,
estoppel
and/or laches
should be employed to disallow Co-Petitioners from benefiting
from their own delay.
WHEREFORE,
Respondent, COUNTY
BOARD
OF
MCHENRY
COUNTY,
ILLINOIS,
respectfully requests
that
this
Board
deny
Co-Petitioners
Motion
to
Deem
Lowe’s
Site Location Application Approved.
Dated:
September
‘7,
2003
Respectfully Submitted,
RESPONDENT COUNTY BOARD
OF
MCHENRY COUNTY, ILLINOIS
By:
CAiu1o,~
F
~kt~)
~
Charles F. Heisten
Charles F. Helsten
Heather K. Lloyd
HINSHAW &
CULBERTSON
100 ParkAvenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
17
70376955v1
830017
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section’ 1-109 ofthe Illinois Code of Civil
Procedure, hereby
under
penalty
of perjury under
the laws of the
United
States
of America,
certifies
that
on
September
17,
2003,
the
Respondent County
Board
of McHenry
County,
Illinois’
Response
to
Co-Petitioners’
Motion
to
Deem
Lowe’s
Site
Location
Application
Approved,
was
sent to:
David McArdle
Zukowski, Rogers, Flood
& McArdle
50 Virginia Street
Crystal Lake, IL
60014
Dorothy M. Gunn
Illinois Pollution Control Board
James R. Thompson Center
100
W. Randolph St., Ste.
11-500
Chicago, IL 60601
Bradley Halloran
Illinois PollutionControl Board
James R. Thompson Center
100W. Randolph St., Ste.
11-500
Chicago,IL 60601
Via UPS Overnight Delivery.
HINSHAW& CULBERTSON
100 ParkAvenue
P.O. Box 1369
Rockford, IL 61101
(815) 490-4900
70377294v1 830017

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