BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
LERWS OFFICE
SEp
2 4 2003
MICHAEL WATSON,
)
STATE OF
ILLINOIS
Petitioner,
)
PCB 03-134
~
COfltTOJ Board
)
v.
)
(Third-Party Pollution Control
)
Facility Siting Appeal)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAXEE, and WASTE
)
Consolidated with PCB
03-125,
MANAGEMENT OF ILLiNOIS, INC.,
)
03-133, 03-135
)
Respondents.
)
NOTICE OF FILING
TO:
See Attached Service List
PLEASE TAKE NOTICE that on September 24, 2003, we filed with the Illinois Pollution
Control Board, the attachedWASTE MANAGEMENT
OF ILLINOIS,
INC.’S RESPONSE
TO
PETITIONER WATSON’S
MOTION TO RECONSIDER
in the above entitled matter.
WASTE MANAGEMENT
OF ILLINOIS, INC.
By~W~k~
One ofIts Attorneys
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 September24,2003
CL~RK’~OPPICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDSEP
2 4 2003
MICHAEL WATSON,
)
STATE OF ILLINOIS
)
Pollution Control Board
Petitioner,
)
PCB 03-134
)
v.
)
(Third-Party Pollution Control
)
Facility Siting Appeal)
COUNTY OF KANKAKEE, COUNTY
)
BOARD OF KANKAKEE, and WASTE
)
Consolidated with PCB 03-125,
MANAGEMENT OF ILLINOIS, INC.,
)
03-133, 03-135
)
Respondents.
)
WASTE MANAGEMENT
OF ILLINOIS, INC.’S
RESPONSE
TO
PETITIONER WATSON’S MOTION
TO RECONSIDER
Respondent WASTE MANAGEMENT OF ILLINOIS, INC. (“WMII”), by its attorneys
Pedersen & Houpt and pursuant to Section 101.500(d) of the Illinois Pollution Control Board
(“Board”) Procedural Rules (“Rules”), submits this response to Petitioner Michael Watson’s
Motion to Reconsider Portions of the Illinois Pollution Control Board’s Ruling of August 7, 2003
(“Opinion”)’ (“Motion to Reconsider”)2. In support thereof, WMII states as follows:
1.
This submission is in response to the second argument raised in Petitioner
Watson’s Motion to Reconsider, namely, that the Board erred in ruling that WMII properly
notified Robert Keller under Section 39.2(b) of the illinois Environmental Protection Act
(“Act”). (Wat. Mot. at pp. 6-10).
2.
In his Motion to Reconsider, Petitioner Watson argues that the Board
misconstrued Section 39.2(b) to permit an applicant to effect service of notice on property
owners via certified mail with return receipt requested, and that service is proper upon mailing.
1 References to the Opinion will be cited as “(Slip op. at
_).“
2 References to Petitioner Watson’s Motion to Reconsider will be cited as “(Wat. Mot. at
p.
_).“
374460
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(Wat. Mot. at p. 6). Specifically, Petitioner Watson argues that the Board erred in relying on
People ex rel. Devine v. $30,700 U.S. Currency,
199 ill. 2d 142, 766 N.E.2d 1084 (2002) in
construing Section 39.2(b) because
$30,700 U.S. Currency
involves a statute that specifically
provides that notice via certified mail returned receipt requested is effective upon mailing,
whereas Section 39.2(b) does not contain any such provision. (Wat. Mot. at p. 7-9). Petitioner
Watson posits that the issue of whether WMII properly served Mr. Keller via certified mail is
governed by
Ogle County Board v. Pollution Control Board,
272 Ill. App. 3d 184, 649 N.E.2d
545
(2d Dist. 1995), which held that notice via certified mall was not effective without proof of
actual receipt. (Wat. Mot. at p. 6).
3.
While WIvifi does not agree with Petitioner Watson that the Board erred in ruling
that Mr. Keller was properly served orin ruling that Section 39.2(b) does not require actual
notice, WMII agrees that the Board ought to reconsider its construction of Section 39.2(b) in
light of the
$30, 700 US. Currency
case, which provides the appropriate analytical framework for
construing Section 39.2(b). In
$30,700 U.S. Currency,
the Illinois Supreme Court liberally
construed the notice provisions of the statute at issue in order to achieve the statute’s overall
purpose, and concluded that the statutory purpose did not require actual receipt ofnotice.
I.
THE
BOARD CORRECTLY RULED THAT
$30,700
U.S.
CURRENCY
OVERRULED
OGLE COUNTY
TO THE EXTENT
OGLE COUNTY
INCORRECTLY HELD THAT THE “RETURN RECEIPT REQUESTED”
LANGUAGE IN SECTION 39.2(b) OF THE ACT REQUIRED ACTUAL NOTICE
4.
Petitioner Watson contends that the Board erred in ruling that
$30, 700 US.
Currency
overruled
Ogle County
because
$30,700 US. Currency
involves the Drug Asset
Forfeiture Procedure Act (“Forfeiture Act”), which contains a specific provision that notice “is
effective upon personal service, the last date ofpublication, or the mailing of written notice,
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2
whichever is earlier.”
725
ILCS 150/4(B). Petitioner Watson argues that because Section
39.2(b) ofthe Act does not contain a similar section addressing when notice is effective, the
$30, 700 US. Currency
case is inapposite and cannot be relied upon by the Board to reach the
conclusion that Section 39.2(b) does not require actual notice.
5.
By making this argument, Petitioner Watson attempts to direct the Board’s
attention away from the relevant portion of the analysis in the
$30,700 US. Currency
case.
While true that the
$30,700 U.S. Currency
case discussed Section 4(B) of the Forfeiture Act,
which provides when notice was effective, the Illinois Supreme Court also gave a
separate
analysis of the “return receipt requested” language contained in Section 4(A) of that statute,
which describes how notice is to be given. Section 4(A) of the Forfeiture Act provides, in
pertinent part:
(A) Whenever notice of pending forfeiture or service of an
in rem
complaint is required under the provisions of this Act, such notice
or service shall be given as follows: (1) If the owner’s or interest
holder’s name and current address are known, then by either
personal service or mailing a copy of the notice by certified mail,
return receipt requested, to that address.
725 ILCS 150/4(A)(1).
6.
In rejecting the argument that the inclusion of the “return receipt requested”
language in Section 4(A) implies that the legislature intended that notice was not proper unless
and until the State received the return receipt, the Illinois Supreme Court stated:
Clearly, our legislature is able to expressly condition service upon
receipt of the signed return receipt. Other enactments expressly
demand a return receipt to complete service.
See e.g.,
citation
omitted (Veterinary Medicine and Surgery Practice Act of 1994)
(notice is given to the owner “by certified mail, return receipt
requested, and shall allow a period of 7 days to elapse after the
receipt is returned before disposing of such animal”); citation
omitted (Juvenile Court Act of 1987) (“the return receipt, when
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3
returned to the clerk, shall be attached to the original notice, and
shall constitute proof of service”); citation omitted (Expedited
Child Support Act of 1990) (“if service is made by certified mail,
the return receipt shall constitute proof of service”); citation
omitted (Museum Disposition of Property Act) (“notice is deemed
given if the museum receives, within 60 days of mailing the notice,
a return receipt”).
$30,700 US. Currency,
at 152, 766 N.E.2d at 1090. The Court held that the plain language of
the notice provision clearly shows that the legislature meant only to require a returned receipt
requested,
not a
returned
receipt.
Id.,
at 153, 766 N.E.2d at 1091.
7.
Therefore, the Board did not err in ruling that Section 39.2(b) does not require
proof of actual notice. The Board’s ruling was correct, not only because
the$30,700 US.
Currency
case clarified that the “return receipt requested” language does not demand the return
of a receipt to prove notice (thereby overruling
Ogle County),
but also because such a ruling is
consistent with the long line of Board decisions that has held that Section 39.2(b) does not
require actual notice, but can also be satisfied by evidence ofconstructive notice.
See ESG
Watts, Inc. v. Sangamon County Board,
PCB 98-2 (June 17, 1999);
DiMaggio v. Solid Waste
Agency ofNorthern Cook County,
PCB 89-138 (January 11, 1990);
Waste Management of
Illinois, Inc. v. Village ofBensenville,
PCB 89-28 (August 10, 1989);
City of Columbia v. County
ofSt. Clair,
PCB 85-177, 85-220, 85-223 (April 3, 1986).
II.
EVEN
THOUGH THE BOARD CORRECTLY HELD THAT SECTION 39.2(b)
OF THE ACT DOES NOT REQUIRE PROOF OF ACTUAL NOTICE, THE
BOARD NONETHELESS MISCONSTRUED THE ACT
8.
Although the Board properly ruled that Section 39.2(b) does not require proof of
actual notice, the Board still erred by strictly construing the Act’s notice requirements.
According to
$30,700 US. Currency,
the Board was required to analyze the issue of whether the
“return receipt requested” language in Section 39.2(b) requires actual service by first considering
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4
the Act’s purpose and then liberally construing it to achieve that purpose.
$30,700 US.
Currency,
at 154, 766 N.E.2d at 1091.
9.
In
$30,700 U.S. Currency,
the Court looked at the purpose of the Forfeiture Act
and found that forfeiture served as a remedial civil sanction designed to deter drug abuse and
trafficking.
Id.,
at 149, 766 N.E.2d at 1088-89. In analyzing the “return receipt requested”
language, the Court recognized that in forfeiture proceedings, individuals often provide false
address information when property is being seized.
Id.,
at 154, 766 N.E.2d at 1091-92. Given
this reality, the Court reasoned that strictly construing the Forfeiture Act to condition notice on
the State’s receipt of a “return receipt” would actually be an obstacle to the enforcement of the
Forfeiture Act.
Id.
Therefore, the Court held that the notice requirements of the Forfeiture Act
warranted a liberal construction so as not to contravene its overall purpose.
Id.
10.
The Court in
$30, 700 US. Currency
determined that the Forfeiture Act’s notice
requirements do not require actual notice, even though notice was necessary to apprise the
defendants of the
in rem
forfeiture proceeding that threatened the seizure of their property.
Unquestionably, the issue of whether the Kellers were properly notified of WIvifi’s intent to file a
request for site location approval does not rise to the level of property rights that were at stake in
the
$30,700 US. Currency
case.
See Village ofLake in the Hills v. Laidlaw Waste,
143 Ill. App.
3d 291, 492 N.E.2d 969 (2d Dist. 1986) (local siting decisions are essentially matters of public
policy, and the notice and hearing provisions of Section 39.2 do not confer specific benefits on
individuals). Therefore, it is illogical for the Board to adopt a stricter construction of Section
39.2(b) than the Illinois Supreme Court’s construction of the Forfeiture Act’s notice requirements
in
$30, 700 US. Currency.
11.
The Board’s overly-restrictive construction also overlooks the practical difficulties
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that applicants face in attempting to serve notice in local siting proceedings, which the Board has
recognized in past decisions.
See e.g., City of Columbia,
slip op. at 13 (the Board liberally
construed Section 39.2(b) as not requiring actual notice in recognition of the fact that property
owners often engage in tactics to frustrate attempts to serve notice). The Court in
$30, 700 U.S.
Currency
specifically considered the problems that the State faced in serving individuals entitled
to notice under the Forfeiture Act, and found that the realities in forfeiture proceedings required a
liberal interpretation of the notice requirements in order to achieve the overall statutory purpose.
$30, 700 US. Currency,
at 154, 766 N.E.2d at 1091-92.
12.
The purpose behind the Act is: “to establish a unified, state-wide program
supplemented by private remedies, to restore, protect and enhance the quality of the 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).
The Act explicitly provides that its terms and provisions
shall be liberally construed so as to effectuate its purposes. 415 ILCS
5/2(c).
Section 39.2 was
intended to further the overall purpose of the Act by establishing uniform local siting procedures
for determining whether siting approval is warranted after thoroughly considering the effects
upon the environment. The notice provisions in Section 39.2(b) provide adjoining property
owners the opportunity to participate in the public hearing or to comment on the siting request.
The purpose behind the provision in Section 39.2(b) that applicants “cause written notice of such
request to be served either in person or by registered mail, return receipt requested” is to ensure
that applicants undertake appropriately reliable and diligent efforts to cause notice to be served.
The legislature could not have reasonably intended that the language in Section 39.2(b)
specifying methods of causing service would be strictly construed to require only personal
service and service via registered mail.
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