RECE~V~D
ILLiNOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
CITY OFKANKAKEE,
)
SEP
232003
Petitioner,
)
PCB 03-125
STATE OF ILLINOIS
) (Third-Party Pollution Col~’~
tro!
Board
vs.
) Siting Appeal)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKBE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
)
MERLIN KARLOCK,
)
)
Petitioner,
) PCB 03-133
)
(Third-Party Pollution Control Facility
vs.
)
Siting Appeal)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
)
MICHAEL WATSON,
)
)
Petitioner,
) PCB 03-134
) (Third-Party Pollution Control Facility
vs.
) Siting Appeal)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
)
KEITH RUNYON,
)
)
Petitioner,
) PCB
03-135
) (Third-Party Pollution Control Facility
vs.
) Siting Appeal)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
NOTICE OF FILING
To:
(See attached Service List.)
PLEASE TAKE NOTICE that on this
23rd
day of September 2003, the following was
filed with the Illinois Pollution Control Board, attached and herewith served upon you:
County ofKankakee’s Response to
Motion to Reconsider Filed by Petitioner Watson
COUNTY OF
KANKAKEB
By:
\~~E1iz~ethS. Harvey
One ofIts Attorneys
Elizabeth S. Harvey
SWANSON, MARTIN & BELL
One IBM Plaza, Suite 3300
330 North Wabash Avenue
Chicago, Illinois 60611
Telephone: (312) 321-9100
Firm I.D. No.
29558
I, the undersigned, state that I served a copy ofthe described document on September 23, 2003, in
the above-captioned matter via U.S. Mail to all parties on attached service list.
x
Underpenalties as provided by law
pursuant to
735
ILCS 5/1-109, I certify
that the statements set forth herein
are true and correct.
CERTIFICATE OF SERVICE
SERVICE LIST
KANKAKEE COUNTY/WMII LANDFILL
SITING
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
Charles F. Heisten
Richard Porter
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105
Kenneth A. Leshen
One Dearborn Square
Suite
550
Kankakee, IL 60901
Donald Moran
Pedersen & Houpt
161 North Clark Street
Suite 3100
Chicago, IL 60601-3242
George Mueller
George Mueller, P.C.
501 State Street
Ottawa, IL 61350
L. PatrickPower
956
North Fifth Avenue
Kankakee, IL 60901
Jennifer J. Sackett Pohlenz
Querry & Harrow, Ltd.
175
West Jackson Boulevard
Suite 1600
Chicago, IL 60604
Keith Runyon
1165 Plum Creek Drive
Unit D
Bourbonnais, IL 60914
Kenneth A. Bleyer
Attorney at Law
923 West Gordon Terrace, #3
Chicago, IL 60613-2013
Leland Milk
6903 S. Route
45-52
Chebanse, IL 60922-5153
Patricia O’Dell
1242 Arrowhead Drive
Bourbonnais, IL 60914
RE(~EJVED
ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
CITY OF KANKAKEE,
SEP 232003
Petitioner,
)
PCB 03-125
STATE OF ILLINOIS
) (Third-Party Pollutioi~f~j~)~
k~
B~rd
vs.
) Siting Appeal)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
)
MERLIN KARLOCK,
)
)
Petitioner,
)
PCB 03-133
) (Third-Party Pollution Control Facility
vs.
)
Siting Appeal)
)
COUNTY OF KAINKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
)
MICHAEL WATSON,
)
)
Petitioner,
) PCB 03-134
) (Third-Party Pollution Control Facility
vs.
) Siting Appeal)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
)
KEITH RUNYON,
)
)
Petitioner,
) PCB 03-135
) (Third-Party Pollution Control Facility
vs.
)
Siting Appeal)
)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAXEE, and WASTE
)
MANAGEMENT OF ILLINOIS, INC.
)
)
Respondents.
)
RESPONSE TO MOTION TO RECONSIDER FILED BY PETITIONER WATSON
NOW COMES, Respondent, COUNTY
OF
KANKAKEE, by and through its attorneys,
HINSHAW & CULBERTSON and SWANSON, MARTIN & BELL, and in response to the
Motion to Reconsider Filed by Petitioner Watson, states as follows:
I.
THE
IPCB DECISION
REQUIRING MR. WATSON
TO PAY HIS
SHARE
OF THE
COST IN PREPARING
AND
CERTIFYING THE
RECORD
WAS CORRECT
In
its August 7, 2003 order, the
Board
granted the County’s motion to compel Watson to
pay his share of the County’s costs
of
preparing and certifying the record. The motion to compel
was based on Section 39.2(n) of the Environmental Protection Act (Act) (415 ILCS
5/39.2(n))
and on Section 107.306 ofthe Board’s procedural rules (35 I1l.Adm.Code 107.306), as well as on
the Board’s March 6, 2003 order directing Watson (and other petitioners) to pay the County’s
costs. The Board found that “the statue is clear and Watson is responsible for paying a share of
the costs of preparing and certifying the record in this matter.”
City ofKankakee v. County of
Kankakee,
PCB 03-125 (cons.) (August 7, 2003, slip op. at 4).
Watson now asserts that this finding was in error, and asks that the Board reverse its
determination.
However, Watson has failed to identify the basis for his request for
reconsideration. Section 101.904(b) ofthe Board’s procedural rules clearly spells out the bases
for reconsideration: 1) newly discovered evidence which existed, but could not have been
discovered by due diligence; 2) fraud, misrepresentation or misconduct; and 3) void order, such
as an order based upon jurisdictional defects. 35 Ill.Adm.Code 101.904(b). Watson does not
allege that any of these three circumstances are present. Thus, the motion for reconsideration
should be denied.
See Shaw v. Board of Trustees of the Village of Dolton,
PCB 97-68 (April 3,
1997), 1997 Iii. ENV LEXIS 171,
*3*5
(ruling, under a now-repealed version of the rule on
2
reconsideration, that reconsideration was denied for failure to present the Board with specific
bases for reconsideration).
Watson complains that he was not “given the opportunity” to make arguments regarding
his alleged status as a “citizen.” This claim rings false, based upon the record of this appeal.
Watson knew, as early as the Board’s March 6, 2003 order, that the Board had directed him (and
other petitioners) to pay their share of the County’s costs. The County, after unsuccessfully
seeking payment by Watson, filed its motion to compel on July 30, 2003. On August 4, 2003,
Watson filed a “Notice of Intent to File Response,” stating that he would file a response within
the 14 day response period. That “Notice” recognized that the Board was scheduled to rule on
the case on August 7, but gave no reason why Watson had not responded substantively to the
motion. The Board noted Watson’s filing, but found that undue delay would result if the Board
failed to rule on the motion on August 7.
City ofKankakee v. County ofKankakee,
PCB 03-125
(cons.) (August 7, 2003, slip op. at 4)
(citing
35 Ill.Adm.Code 101.500(d)).
In any event, it is clear that Watson does not qualify for the “citizen” exemption to the
requirement that petitioners pay a county’s costs ofpreparing and certifying the record in a siting
appeal. While Watson raises a number ofclaims about his status, all Of those claims are intended
to shift the focus from the fact that Mr. Watson is the president ofUnited Disposal, and thus is
not entitled to the “citizen” exemption ofthe statute and rule. For example, Watson asserts that
the County has not carried a burden ofproving that Watson is not a “citizen.” However, Watson
cites no authority for his claim that the County has such a burden. In fact, the Board had already
directed Watson (and others) to pay costs, and thus had by implication made a finding that
Watson was not entitled to the exemption. Additionally, where a party believes itself to be
entitled to an exemption of some type, that party should prove that he qualifies for the
3
exemption.
Likewise, Watson asserts that no participant in this proceeding questioned Watson’s
“standing” as a beneficial property owner. Quite simply, the question ofWatson’s “standing” to
participate in the siting hearing process and in the subsequent appeal is a separate consideration
than whether Watson must pay his share ofthe County’s costs. The County has not questioned
Watson’s standing to participate. Instead, the County merely seeks its statutory right to
reimbursement ofcosts by a petitioner.
Watson argues, at some length, that he is participating in this proceeding as a citizen, not
as the owner ofa competing disposal facility. However, the legislative history ofSection 3 9.2(n)
is clear that a person owning or operating a nearby competing facility is not exempt as a “citizens
group.”1 Watson is not just a shareholder in United Disposal---he is the president of the
corporation. (See Exhibit A.2) This is not a case where a county seeks to recovery ofcosts from
a person who simply holds stock in a solid waste management company. Instead, Watson is the
president (and, based on Mrs. Keller’s testimony (C1271, Tr. pp. 64-67), a hands-on participant
in the daily operations) ofthe company. To find that Watson, the president ofthe company, is a
“citizen” would contravene the purpose of the exemption, and of the clarifying language
provided by Senator Karpiel. If Watson can qualify, as a “citizen” because he asserts that he
owns property near the proposed facility, any other competing disposal facility could qualify for
the “citizen” exemption simply by purchasing ‘a small piece of property in the vicinity of a
See pages 2-3 of the County’s July 30, 2003 motion to compel. In the interests of brevity, the County
incorporates the arguments regarding the legislative histoiy made in its motion to compel, as if those
arguments were fully set forth. This includes the argument that the legislative history of the statute is
relevant because there is no definition of “citizen” or “citizens group” in the statute or the Board’s
regulations.
2
Mr. Watson’s status as president of United Disposal is a matter of public record, and thus the Board can
take official notice of that status. 35 Ill.Adm.Code 10 1.630.
4
proposed facility. Such a result would be at odds with the language of the statute and the
legislative purpose ofthe exemption.
In short, despite his red herring claims, Watson cannot escape the fact that he falls
directly within the category of those who are not eligible for the “citizens” exemption. The
Board has found that “Watson as a non-citizen petitioner must pay for the preparation of the
County record.”
City ofKankakee v. County ofKankakee,
PCB 03-125 (cons.) (August 7, 2003,
slip op. at 4). Watson has failed to demonstrate why the Board should reconsider that finding,
and has failed to show that the Board’s decisionwas in error. Therefore, the Board should affirm
its August 7, 2003 decision directing Watson to pay his share’ ofthe County’s record costs.
II. THE IPCB RULING THAT THE SECTION
39.2(b)
NOTICE IS EFFECTIVE UPON
MAILING, CERTIFIED RETURN
RECEIPT
REQUESTED,
WAS CORRECT
Respondent Watson has filed a Motion to Reconsider the IPCB decision that under
39.2(b) of the Act an Applicant can effect service by mailing the pre-fihing notice to property
owners’ certified mail return receipt requested.
City ofKankakee v. County of Kankakee,
PCB
03-125 (cons.) (August. 7 2003, pg 16).
“Motions of reconsideration are designed to bring to the Court’s attention newly
discovered evidence that was unavailable at the time of the original hearing, change an existing
law, or errors in the Court’s application of the law.”
Continental Casualty Co. v. Security
Insurance Company of Hartford,
279 I1l.App.3d 815, 216 Ill.Dec. 314, 317 (1st Dist. 1996). In
this case, Respondent Watson has not cited any cases which were not discussed and analyzed by
the PCB in its original decision, nor has it presented any evidence or a change in law that would
warrant a reconsideration ofthe decision. Instead, the Respondent merely argues that the County
ofKankakee, Waste Management ofIllinois, Inc. and the Illinois Pollution. Control Board, were
wrong in their analyses of the applicable case law.
5
It is improper‘to simply recast and reiterate the same arguments that were made on the
underlying motion as a motion for reconsideration.
Keller v. Roberts,
276 Ill.App.3d 164, 658
N.E.2d 496 (2nd Dist.
1995).
The effect ofthe Illinois Supreme Court decision in
People ex rel..
Devine v. $30, 700 United States Currency,
199 Ill.2d 142, 766 N.E.2d 1084 (2002) was
completely briefed and argued by the parties before the IPCB rendered its decision. (See Brief
and Argument of Respondents County of Kankakee and County Board of Kankakee, p
4-5;
Petitioner Michael Watson’s Reply Brief, p
3-5.)
All of the arguments that are raised in the
Motion to Reconsider filed by Petitioner Watson were already raised in his Reply Brief.
Specifically, Petitioner Watson attempted to distinguish the
People ex rel. Devine v. $30, 700
US. Currency
case on the grounds that it involved the Drug Asset Forfeiture Procedure Act
rather than the Illinois Environmental Protection Act, just as Watson argues in its Motion to
Reconsider. Therefore, Petitioner Watson is merely wasting the resources of the IPCB and the
parties by seeking reconsideration of an issue that has already been completely and adequately
considered by the Illinois Pollution Control Board.
Adding insult
to
injury, Petitioner Watson
misquotes
the
Avdich
decision (upon which
the
Ogle County
decision was based) as interpreting the inclusion of “return receipt requested”
language. (See Watson Motion to Reconsider, pg 9). The statute at issue in
Avdich
actually
required a “returned receipt from the addressee.” Moreover,
Avdich
at no time addressed or even
considered a notice statute which merely required notice by mail with a “return receipt
requested.” As such, it appears that Watson’s entire argument is based upon this misreading of
the
Avdich
decision. Watson also either intentionally, or conveniently, failed to recognize that
the
People ex rel. Devine
decision contrasted the “return receipt requested” language of the
statute at issue in
Devine
with the “retum~receipt from addressee” requirement at issue in
6
Avdich. People ex rel. Devine v. $30,700 United States Currency,
199 Ill.2d at
15 1-53,
766
N.E.2d 1090-91. The Supreme Court explicitly held the’ Forcible Entry and Detainer Statute at
issue in
Avdich
actually supports the finding that notice was effective upon mailing, and the
statute merely provides “return receipt requested” because in
Avdich
the legislature
expressly
conditioned service upon the return of the signed, certified or registered mail receipt by utilizing
the language “with a returned receipt from the addressee.” The Second District therefore
misapplied
Avdich
in the
Ogle County
decision, which addressed the “return receipt requested”
language of Section 39.2(b). As such, the
People ex rel. Devine
case corrected and effectively
overruled
Ogle County
by addressing the exact language in this case.
Devine
dealt with a forfeiture statute which provided: “The notice for service shall be
given by either personal service or mailing a copy ofthe notice by certified mail, return receipt
requested to that address.” See
People ex rel. Devine,
199 Ill.2d 142, 766 N.E.2d 1091.
Likewise, the statute at issue in this case (415 ILCS 39.2(b)) also provides that notice of such
request is to be served “return receipt requested”. The Supreme Court in
People ex rel. Devine
explicitly held that “the
Avdich
case is not authority forthe proposition that all enactments which
contain the return receipt requirement demand return of the receipt to perfect service. In fact,
Avdich,
like the enactments previously referred to, illustrates our legislature’s ability to
expressly
condition service upon receipt of the signed receipt.”
Id.
(Emphasis added). The Supreme
Court held that merely requiring notice to be sent with a request for a return receipt rather than
requiring that the receipt actually be returned, must be considered intentional by Congress
because the legislature has made the requirement ofa returned receipt from the addressee explicit
in numerous other statutes.
Id.
at 1090-91 (citing 225 ILCS 115/18,
Veterinary Medicine and
Surgery Practice
Act; 705 ILCS
25/10(a)(1), Expedited Child Support
Act;
765
ILCS
7
1033/15(b), Museum Disposition of Property
Act; 735 ILCS 5/9-211
the Forcible Entry and
Detainer
Statute). Therefore, the Illinois
Supreme
Court has established that the legislature will
expressly require that the receipt be returned by the addressee before service is effective, if it so
intended.
In, summary it is clear from the statute at issue in this case that service is effective upon
mailing while requesting a return receipt. There is no requirement in Section 3 9.2(b) that the
receipt be returned by the addressee as was at issue in
Avdich,
and, accordingly, the IPCB
decision that
People ex rel. Devine
effectively overruled
Ogle County,
was both well-reasoned
and correct. Accordingly, the decision that the Section 39.2(b) notices are effective upon
mailing was correct and should be affirmed.
‘
Respectfully Submitted,
COUNTY OF KANKAKEE
By:
(~L4AhA
j ~
(~
One of Its Attorneys
~
Charles F. Helsten
Richard S. Porter
HINSHAW AND
CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
Elizabeth S. Harvey
SWANSON, MARTIN & BELL
One IBM Plaza, Suite 3300
330 North Wabash Avenue
Chicago, Illinois 60611
Telephone: (312) 321-9100
Firm I.D. No. 29558
8
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