I
BEFORE
THE
ILLINOIS
POLLUTION CONTROL BOAR)
OFFICE
,.
r~
r~
9.
~
t~
I
OI~IL1$~OIS
STP~EControt Board
r,,dIiitIOfl
MICHAEL WATSON,
V.
Petitioner,
COUNTY BOARD
OF KANKAKEE COUNTY,
ILLINOIS, and WASTE MANAGEMENT OF
ILLINOIS, INC.,
Respondent.
No.
PCBO3-134
(Pollution Control Facility Siting Appeal)
Consolidated With PCB 03-125, 03-133,
03-135)
TO:
See
Attached Service List
NOTICE
OF FILING
PLEASE TAKE NOTICE that on September 26,
2003,
we filed with the Illinois
Pollution Control Board,
the attached Petitioner Michael Watson’s
Response
in Opposition
to Waste Management of
Illinois,
Inc.’s Motion to Reconsider,
a copy of which
is attached
hereto and
served upon you.
Dated: September 26, 2003
Jennifer J. Sackett Pohlenz
QUERREY
& HARROW, LTD.
175
W.
Jackson, Suite
1600
Chicago, Illinois
60604
(312) 540-7000
Attorneys for Michael Watson
Illinois
Attorney
No.
6225990
By:
Respectfully Submitted,
PETITIONER MICHAEL WATSON
65448-POH
Printed on
Recycled Paper
PROOF
OF SERVICE
I,
Ronnie
Faith,
a non-attorney,
on oath
state that
I
served
the
foregoing
Notice
of
Filing,
along with
copies
of document(s) set
forth
in this Notice,
on
the followingparties
and
persons
at their respective addresses
arid/or fax numbers, as stated below,
this
26th
day of September 2003,
by
or before the hour
of 4:30 p.m.
in the
manners stated below:
Via U.S.
Mail
Donald Moran
Pedersen & Houpt
161 North Clark Street
Suite 3100
Chicago, IL
60601-3242
Fax: (312) 261-1149
Attorney for Waste Management
of Illinois, Inc.
Via
U.S.
Mail
George Mueller
George Mueller,
P.C.
501
State Street
Ottawa,
IL 61350
Fax: (815) 433-4913
Representing Petitioner
in
PCB 03-133
Via
U.
S. Mail
Leland Milk
6903
S. Route
45-52
Chebanse,
IL
60922-5153
Interested Party
Via U.S. Mail
Charles Helston
Richard Porter
Hinshaw & Culbertson
100
Park Avenue
P.O. Box 1389
Rockford,
Illinois
61105-1389
Fax:
(815) 490-4901
Representing Kankakee County Board
Via Hand Delivery
(Original and
9
copies (10
total))
Illinois
Pollution Control Board
Clerk’s Office
James
R.
Thompson Center,
Ste.
11-500
100 W. Randolph Street
Chicago,
IL 60601
Docun~ent
#:
858579
Via U.S. Mail
L. Patrick Power
956
North Fifth Avenue
Kankakee,
IL 60901
Fax: (815) 937-0056
RepresentingPetitioner in
PCB
03-125
Via U.S.
Mail
Elizabeth S.
Harvey, Esq.
Swanson, Martin & Bell
One IBM Plaza,
Suite 2900
330 North Wabash
Chicago, IL 60611
Fax: (312) 321-0990
Representing Kankakee County Board
Via U.S. Mail
Bradley P.
Halloran
Illinois Pollution Control Board
James
R.
Thompson Center,
Ste.
11-500
100 W. Randolph Street
Chicago,
IL 60601
Hearing
Officer
Ronnie Faith
Via U.S. Mail
Kenneth A. Leshen
One Dearborn Square
Suite
550
Kankakee, IL 60901
Fax: (815) 933-3397
RepresentingPetitioner in PCB 03-125
Via
U. S.
Mail
Patricia O’Dell
1242 Arrowhead Drive
Bourbonnais, IL
60914
Interested Party
Via U.S. Mail
Keith Runyon
1165 Plum Creek Drive
Bourbonnaise, IL 60914
Fax: (815) 937-9164
Petitioner in
PCB
03-135
Printed
on RecycledPaper
~.
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kV 16
D
CLERK’S
OFFICE
65448-POH
s~
2
G
?003
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARJI~1ATE
OF
ILLINOIS
________________________________________________
Pollution
Control Boarc~
MICHAEL WATSON,
Petitioner,
No.
PCB 03-134
V.
(Pollution Control Facility Siting
COUNTY BOARD OF
KANKAKEE
COUNTY,
Appeal)
ILLINOIS, and WASTE MANAGEMENT OF
ILLINOIS, INC.,
Consolidated With PCB 03-125, 03-
Respondent.
133, 03-135)
PETITIONER MICHAEL WATSON’S RESPONSE IN OPPOSITION
TO WASTE MANAGEMENT OF ILLINOIS, INC’S MOTION TO RECONSIDER
This
Response in
Opposition
to
Waste Management of Illinois,
Inc.’s
(WMII)
Motion
to
Reconsider,
is
submitted
by
Petitioner
Michael
Watson
(Watson)
by
and
through
his
attorneys
at Querrey
& Harrow,
Ltd.
WMII argues
that
the Illinois
Pollution
Control Board’s
(IPCB) Opinion
and Order of August 7,
2003,
is
erroneous,
to the extent
it found that Brenda
Keller
was
not
served
with
prefiling
notice
pursuant
to
Section
39.2(b)
of
the
Illinois
Environmental
Protection
Act
(Act),
as the
IPCB allegedly erroneously
construed that Section
of the Act by:
(1)
interpreting Section 39.2(b) in
a manner which WMII alleges
is
“contrary to
legislative
intent”;
(2)
fmding
that
constructive
notice
is
not
applicable
to
the
facts
presented
concerning Mrs.
Brenda Keller;
and,
(3) applying
de novo
rather than manifest-weight standard
of review.
The IPCB’s decision concerning notice not having been served pursuant to
Section
39.2(b)
of the Act
on Mrs.
Brenda Keller
should stand
and
WMII’s
Motion be denied,
as the
IPCB’s
decision
in
this
regard
was
correct
and
WMII’s
claims
of
error
are
simply
not
supported
by
the facts
or
law
in
this
case.
Specifically,
as
set forth below,
WMII’s
Motion
fails
to
meet the
elements
required to
maintain a
motion
for reconsideration as:
(1) the
IPCB
Printed on
Recycled Paper
correctly
held
that
“posting”
and
“U.S.
Mail”
do
ont
satisfy
the plain
language
of Section
39.2(b)
of the Act;
(2)
the IPCB correctly held that the
facts of this
case do
not
fit within the
constructive
receipt
notice
doctrine
enunciated
in
dicta
in
ESG
Watts
and,
(3),
the
IPCB
correctly applied
the
de novo
standard of review in deciding the jurisdictional
issue of whether
prefihing notice was proper under Section 39.2(b) of the Act.
Legal
Standard
One ofthe three following elements
are
necessary in to
maintain a motion to reconsider:
(1)
newly discovered
evidence;
(2)
changes
in
the
law;
and
(3)
errors
in
the
Court’s
prior
application
of existing
law.
Universal
Scrap
Metals,
Inc.
v.
J.
Sandman
and
Sons.
Inc.,
786
N.E.2d 574 (1~~
Dist.
2003).
Like this
standard,
the IPCB Rule
101.902
provides
that the
IPCB
will
“consider
factors
including
new
evidence,
or
a change
in
the
law,
to
conclude that
the
Board’s
decision
was
in
error.”
Although
the
aforementioned
rule
does not
set
forth the third
element considered by Illinois
Courts, namely,
errors in the
Court’s
prior
application of existing
law,
by
its
plain
language
and use of the term “including,” this
Rule does not
exclusively limit
consideration to exclude
review of errors in
the Court’s prior application of existing law.
Thus,
although
WMII’s
arguments
present
no
new evidence
and
no
new
law,
if the
IPCB
finds that
Rule
101.902
is
not
an
exclusive
limit
to
those
two
elements,
then
WMII’s
Motion
should
be
considered.
However, even
if
considered, WMII does nothing more than restate legal arguments
it previously
raised
and asserts
misstatements
of fact,
which is clearly insufficient
to
show any
error on
the part ofthe IPCB with respect to
its August 7, 2003, finding
that
Mrs. Brenda Keller
was not
served with
notice pursuant to Section 3 9.2(b)
ofthe Act.
2
Printed on RecycledPaper
Argument
(1)
The
IPCB correctly held that “posting”
and
“U.S.
Mail”
do not satisfy the plain
language of Section 39.2(b) of the Act
Although
it
argues
failure
to
consider
legislative
intent
is
the
source
of the
IPCB
‘S
error,
WMII’s restatement of previously made legal
argument and
misstatement of facts in this
case
are not
sufficient
to
show
such error.
WMII
argues
that
the IPCB erred
in finding
that
Mrs.
Keller
was
not
served
with
prefihing
notice
pursuant
to
Section
39.2(b)
of
the
Act,
asserting that
the plain language of that
Section of the Act
allows for “posting”
and U.S.
Mail
notice.
In making
its
legislative
intent argument,
WMII does
nothing more than recite cases
and misstate facts considered by the IPCB in
making
its
August
7th
decision concerning Brenda
Keller.
WMII’s
legal
argument
that
“posting”
and
“U.S.
Mail”
were
intended
by
the
legislature to be allowed by
Section 39.2(b) of the Act,
is unsupported by
the plain language of
the statute,
as
well as the case
law.
In addition
to
the legal
inadequacy of any
“posting”
or
U.S.
Mail attempts at service, WMII’s
assertion that Ms.
Keller received “posting”
and “U.S.
Mail”
notice
is
not
accurate,
as
the only
evidence concerning
Brenda Keller was that
she did
not
receive any
notice
of the
filing
of the
application
prior
to
the
14-day
prefiling
deadline
provided in Section 39.2(b) of the Act.
(Slip
Op. at
5-6).
The
IPCB
correctly
held
that
“posting”
and
“U.S.
Mail”
do
not
satisfy
the
plain
language
of
Section
39.2(b)
of
the
Act.
WMII’s
contention that
the
IPCB’s
ruling
in
this
regard
is
too
strict
and
contravenes
the
intent of the statute
is
not
supported by
any
case law
cited
by
WMII
and
is
inopposite
to
the
IPCB’s
previous
holdings
concerning
Section
39.2(b)
3
Printed on RecycledPaper
notice
and its
interpretation of the Legislature’s intent.
The “true
intention’
of the Legislature
in enacting the notice
provision of Section
39.2(b) was
to
implement
a
system
whereby
there
would
be
some
record
of the
notice
to
owners
and
legislators
having
been
both
sent
and
received.” Ash
v.
Iroquois County
Board,
PCB 97-29 at
12
(July 16,
1987)(IPCB holding that
that
this
is
the “most logical
analysis of the legislative
intent behind this
notice
requirement”,
in
finding
that
certified
mail
is
equally
as
sufficient
as
registered
mail)(emphasis
added).
Regardless
of
whether
the
IPCB
continues
to
find
the
“received”
portion
of
its
former
interpretation to
have been overruled by
People ex
rel. Devine
v.
$30,700
U.S.
Currency,
199
Ill.2d
142, 776 N.E.2d 1084 (2002), neither the case law cited
by WMII or the logic proposed by
WMII supports an
interpretation of Section
3 9.2(b) that opens
the door to essentially any
type of
attempt at notification as being sufficient.
The following cases, cited by
WMII, fail to
support
WMII’s contention that the IPCB and
Illinois Courts have liberally construed Section 39.2(b) to allow for forms of notice outside those
prescribed
by the plain language of the
Act.
City of Columbia,
et
al.
v.
County of St.
Clair,
et
aL,
PCB 85-177, 85-220, 85-223
(consolidated)(April 3,
1986),
is distinguishable, because
IPCB
found no jurisdiction, as the applicant was unreasonable
in its
attempt
at service by sending out
notice the
fifteenth day prior to
filing the application.
Similarly,
DiMaggio, PCB
89-138
(Jan.
11,
1990), is distinguishable, as neither of the Keller’s
moved
from their address, and
thus,
the
holding of
this
case, is also inapplicable to the instant facts.
Likewise, Waste Management of Illinois
v.
Bensenville,
PCB 89-28
(Aug.
10,
1989),
is
not
applicable to
the precedent for
which WMII
suggests,
even if the
IPCB’s
finding that
~
County
Board
v.
Pollution
Control
Board,
272
I1l.App.3d
184,
649
N.E.2d
545
(2nd
Dist.
4
Printed on RecycledPaper
1995) has
been overruled
is upheld,
as
the notice
recipient at
issue
in that
case
was
sent
and
received notice by certified mail (although,
it received notice eleven,
rather than fourteen days,
prior to
the filing
of the application),
whereas
WMII admits
it made no
attempt
to
serve
Mrs.
Keller by
certified mail
in this case.
Further,
in Bensenville,
the
IPCB took special
note of the
unique
facts
of
the
case
in
making
its
holding,
which
facts
are
not
analogous
to
the
circumstances in
this
case,
specifically,
the
anomaly of having the
local
government
raise the
jurisdictional
issue,
after having denied
the siting application
on
dispositive
grounds,
and
the
fact that there were
no
“third party”
opposition in
that particular
case.
Finally,
since there
is
no
evidence of recalcitrance
in this case, and the
IPCB ‘s holding with respect to Mrs.
Keller is
not based
on whether or not recalcitrance
existed, the concept of constructive receipt of notice
discussed
in
ESG
Watts,
Inc.
v.
Sangamon County
Board,
PCB
98-2 (June
17,
1999), is
not
applicable
here,
even though
although
the
IPCB
did
not
find
constructive receipt
in
the
ESG
Watts
case.1
Further,
even if the IPCB were to
consider forms of service outside those
provided for
by
Section 39.2(b),
there
is
no
evidence
in
the
record
supporting
the
conclusion asserted
by
WMII that WMII
“actually”
served Brenda Keller through
the U.S.
Mail and
“posting.”
The
testimony of Mrs.
Keller that
she did
not receive notice of the
siting hearings is
uncontradicted
in
the record.
(See,
summary
of evidence
on
Slip
Op.
at
5-6;
Watson
Opening
and
Reply
Briefs).
Further,
WMII
‘
s assertion that Mrs.
Keller had
“actual notice”
is nothing more than a
1
Additionally,
although
WMII
argues
that
ESG
Watts.
Inc.
v.
Sangamon
County
Board,
PCB
98-2
(June
17,
1999),
stands
for
Section
39.2(b)
allowing constructive
“notice,”
in
fact,
the
language
of
ESG
Watts
discusses
“constructive receipt”
of notice,
and
the
precedential
value
of that
holding
is
arguably
at issue
given the
IPCB’s
5
Printed on Recycled Paper
conclusory
statement,
unsupported
by
the
evidence
in
the
record.
Moreover,
WMII’s
accusation that the denial of Mrs.
Keller of “actual notice”
is
insufficient based on Montalbano
Builders, Inc.
v.
Rauschenberger,
et a!.,
794
N.E. 2d
401
(3rd
Dist.
2003), is wrong.
Montalbano
Builders,
Inc.
is
inapplicable
due
to
the
fact
it
involves
a
dispute
over
mailed
service
of
requests
to
admit
(a
discovery
issue
in
a
pending
lawsuit),
rather
than
statutory
and jurisdictionally
required
as
is
at
issue
in
this case,
and
it,
likewise,
involves a
different
standard
of
review.
Additionally,
Montalbano
Builders,
Inc.
is
distinguishable,
because
the
Court
did
pp~hold,
as
WMII
infers,
that
U.S.
Mail
service
was
sufficiently
reliable
to
overturn
the
denial
of the
attorney
who
stated
he
did
not
receive
the
requests
to
admit.
In fact, the Court stated:
It
is
conceivable
that
the
plaintiff did
not
receive the
request to
admit.
Rauschenberger may have accidentally neglected to include
the
request
itself
in
the
envelope.
The
document
may
have
inadvertently
been
lost
among
other
papers
at
Mr.
McGrun’s
office.
Attorneys are human, and can make mistakes, and the court
should
be
mindful
of
this
when
granting
or
denying
relief.
Montalbano Builders, Inc., 794 N.E. 2d at 407-8.
The Court’s holding in
Montalbano Builders, Inc.
is, instead, based on the fact that it was
undisputed that
after the
attorney
for the plaintiff
admittedly
found
out
about
the requests
to
admit
having been prepared and,
at least,
attempted
to
be
served,
the
attorney
did
nothing
to
rectify the problem of having
~
received those
requests
for
a period of four months,
without
providing any
reason
for that
four
month
delay:
“In
light of the
length of the
delay and
the
holding
in the August
7th
decision that
Ogle
County
Board v.
Pollution
Control
Board,
272
Ill.App.3d
184,
649
N.E.2d
545
(2nd Dist.
1995)
has
been overruled.
6
Printed on RecycledPaper
failure to give an
adequate explanation, we find no abuse ofdiscretion in the trial court’s denial
ofthe motion.” Montalbano Builders, Inc., 794 N.E. 2d at 409.
Finally, WMII’s policy argument for a broad
interpretation of “notice” to avoid
“tactics”
by property owners
to
“frustrate” the
local
siting process,
is
equally applicable
to
an
applicant
and the rational for construing the statute for what it states
and requiring notice by registered (or
certified) mail or personal service.
If the Legislature had intended that any
sort ofnotice would
do,
why not just
leave
the notice requirement at publication
and
why pay
special
attention
to
property
owners
within
very
close
proximity
to
the
site,
the
applicable
General
Assembly
persons,
and the Illinois Environmental Protection Agency?
Thus,
WMII’s arguments
are not
sufficient to
maintain a motion for reconsideration, and its Motion should be denied.
(2)
The IPCB correctly held that the facts of this
case do not fit within the constructive
notice doctrine enunciated
in dicta in
ESG Watts
In
arguing
that
he
IPCB
erred,
WMII
contends
that
the
IPCB
failed
to
analyze
the
attempts WMII made
to
serve Mrs.
Keller personally.
As
an
initial
matter, WMII‘s argument
does
not fit within one of the three
elements for a motion
for reconsideration,
as WMII
is
not
arguing new facts, a change
in
law, or an error
in the application of the existing
law.
WMH’s
allegation
is that the
IPCB did not sufficiently consider the issue of constructive notice.
On the
contrary,
the IPCB’s
August
7th
opinion considered WMII’s
arguments that constructive notice
was
applicable
to
Mrs.
Keller
through
WMII
‘
s
personal
service,
the
decision
specifically
summarized
facts
related
to
attempts
at
personal
service
(Slip
Op.
at
5-6),
and
the
IPCB’s
finding on this issue,
distinguishing the facts of this case from the dicta of ESG Watts, was not
exclusive
to
some
of the
facts related
in
the
IPCB
opinion in disregard
to
other
facts
in
that
7
Printed on RecycledPaper
opinion
and
record,
as
WMII
contends.
Specifically,
the
IPCB
found
that
“tJhere
is
no
evidence
in
the record
that
Mrs.
Keller
had
constructive
notice
of the
pending application.”
WMII
fails to raise
any
applicable
element
for maintaining
a motion
for reconsideration with
respect
to this issue.
Further,
as
discussed
in
the
first
section
of
this
brief,
above,
ESG
Watts
is
not
applicable
to
the facts of this
case, as there
is
no
evidence of recalcitrance.
Further,
the ESG
Watts
dicta
concerning
constructive
“receipt”
of notice,
is
arguably
no
longer
valid,
if the
IPCB ‘s finding in
this
case that the
Ogle
County requirement for receipt of notice
is upheld, as
the
entire
discussion
in
ESG Watts
concerning
constructive
receipt
of notice
focused
on
the
timeliness
of
receipt,
as
opposed
to
the
initiation
of
the
notice,
except
to
the
extent
reasonableness
of
initiation
was
considered
in
conjunction
with
timeliness
of
receipt.
Specifically, the IPCB stated:
The Board
finds
that
the
Ogle
County
Board
court
left open
the
question
of
whether
a
property
owner
can
be
found
in
constructive
receipt
of
a
notice.
The
Board
believes
that
the
requirements of Section
39.2(b) can
be
met
through
constructive
receipt.
If a
property
owner does
not
receive the notice
on time,
he or she nonetheless may be deemed to be
in constructive receipt
of
a
notice
if
the
property
owner
refuses
service
before
the
deadline.
Otherwise,
a
recalcitrant property owner could
forever
frustrate
attempts
to
obtain
a
hearing
on
a
request
for
siting
approval.
.
In
this
case,
however,
the
Board
cannot
find
these
property
owners in
constructive
receipt of the
notice
before
the deadline.
ESG
Watts
sent
the
notice
by
registered
mail,
return
receipt
requested, to
Oldani, Weigland, Paoni,
and
the Shures
four days
before
the
deadline.
ESG
Watts
then sought
to
personally
serve
these
property
owners,
but
these
attempts
took
place
after
the
deadline,
with
the
exception
of
ESG
Watts’
attempt
to
serve
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Oldani.
ESG Watts first
attempted
to
personally
serve
Oldani
on
the deadline day--November
18,
1996.
The Board fmds that there
is
no
evidence
that
these
property
owners
refused
service.
Therefore,
these property owners
were not
in
constructive receipt
of the
siting request notice
before the deadline.
ESG Watts,
at
20-21.
Thus,
the
only
factor of any
constructive notice
argument
left to
be
reviewed,
if
the
IPCB
is to
adopt
the concept of constructive notice,
is
whether there
is
recalcitrance,
and
the
facts of this
case
do not
support that fmding.
Therefore,
the IPCB correctly held that the facts
of this
case
do
not fit within the constructive
notice or constructive receipt of notice
doctrine,
and WMII’s Motion should be denied.
(3)
The
IPCB
correctly
applied
the
de
novo
standard
of
review
in
deciding
the
jurisdictional issue of whether prefihing
notice was
proper
under Section
39.2(b) of
the Act
WMII
argues
that
the
IPCB applied
the wrong
legal
standard when
it utilized
the
de
novo
standard of review and,
instead,
should have utilized
the manifest weight of the evidence
standard
of review
in
determining
whether
WMII was
timely
and
diligent
in
its
attempts
to
serve
Mrs.
Keller.
As
with WMII’s
argument concerning
constructive notice,
WMII does
not
argue
any
of the
elements
necessary
to
maintain
a
motion
for
reconsideration and,
thus,
its
motion should be denied.
In
addition,
the
case
law
WMII
cites
as
the
basis
for
its
argument,
Laidlaw
Waste
Systems,
Inc.
v.
Pollution
Control Board,
230
Ill.Ap.3d
132,
595
N.E.2d 600
(6th
Dist.
1992)
is distinguishable from this
case, as the key finding in the Laidlaw case was the finding that the
IPCB
“concluded, as a matter of law,
that two
applications which seek expansion of the same
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regional
pollution
control
facility
are
substantially
the
same
within
the
meaning
of
section
39.2(m)
regardless
of any
other differences
between them.”
Thus,
the basis
of the Laidlaw
holding
was
not
even
within
the
scope
of
the
manifest
weight
standard
discussed
in
that
opinion, rather that
the IPCB incorrectly interpreted
Section 39.2(m).
The findings
in Laidlaw
that
the IPCB
incorrectly interpreted
Section
39.2(m)
and
did
not
review
the
applications
to
determine whether any
differences
existed, are simply not applicable to this case.2
Additionally,
the proper
standard of review
is
de
novo
when the consideration before
the
administrative
body
is
a
determination as to
the
scope
of its jurisdiction.
Geneva
Cmty.
Unit
Sch.
Dist.
No.
304
v.
Prop.
Tax
Appeal
Bd.,
695
N.E.2d
561,
564
(2nd
Dist.
1998).
Jurisdictional considerations
are distinguishable from other questions of law, fact or mixed law
and
fact,
as the administrative entity
making the decision on jurisdiction (whether explicitly or
implicitly)
is,
at the first
level
of consideration,
the actual
entity
making
the decision.
Thus,
“where
the authority of an administrative
body
is
in question the determination of the
scope of
its
power and
authority
is
a judicial
function,
not
a
question to
be
finally
determined by
the
administrative agency itself.
However, it does not follow that an administrative
body can never
determine the
scope of its jurisdiction in a situation.
By acting or refusing
to
act,
it necessarily
determines
that
the
subject matter
and
its
activity
are
or are
not
within
the
purview
of the
statute creating the
agency.
The correctness of that
determination
is
a
question of law.”
~.,
citing,
People ex rel. Thompson v.
Property Tax Appeal Board, 22 Ill.
App. 3d 316,
321,
317
N.E.2d
121
(1974).
2
Richard’s
Tire
Co.
v.
Zehnder,
295
Ill.
App.
3d
48,
56,
692
N.E.2d
360,
366,
229
Ill.
Dec.
587
(1998)
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Finally,
the
facts that WMII
failed to
send certified mail
to
Brenda Keller and
failed to
complete service on Brenda Keller are not disputed.
WMII clutters these facts with arguments
about
its
diligence
and timeliness
and
alleged
credibility of its
process server,
which
are
not
factors
considered
in
the
straight
forward
analysis of whether or
not
Section
39.2(b)
service
was
met,
and
only,
arguably, considered
if the
IPCB were to
engage in
a constructive receipt
of notice
argument,
which
would
require
evidence of recalcitrance
which
is
not presented in
this
case
and
with
respect
to
which
Kankakee
County
made
no
finding.3
Thus,
the
IPCB
finding
applying
the
de
novo
standard of review
was
correct,
even
if it
fmds
that
there
are
circumstances
in
which
it
would
apply
a
manifest
weight
of
the
evidence
argument
in
determining jurisdiction, as the facts forming the basis
for its decision were not disputed.
WHEREFORE,
Michael
Watson,
by
and
through
its
attorneys,
respectfully
requests
that
the
Illinois
Pollution
Control
Board
enter
an
order
denying
WMII’s
Motion
for
Reconsideration and for any additional relief that the Board deems appropriate.
(interpretation of a statute
is
a question
of law).
‘
The
credibility
arguments
of
the witnesses
are
addressed
in
Watson’s
opening
and
reply
briefs,
and
if those
arguments
are being
reconsidered
by
the
IPCB,
although
outside
the
elements
of a
motion
for
reconsideration,
Watson,
without
waiving
its
objection
to
reconsideration
of
those
facts
in
response
to
WMH’s
motion,
incorporates those portions of its
briefs
related to
the evidence of WMII’s attempts at service and credibility ofthe
witnesses regarding same
as and for its response to that
portion of WMII’s motion
addressing those arguments.
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Dated: September 26, 2003
Respectfully Submitted,
PETITIONER MICHAEL WATSON
By:C~~~OM~
Jennifer J.
Sackett Pohlenz
QUERREY &
HARROW,
LTD.
175 W. Jackson, Suite 1600
Chicago, Illinois
60604
(312) 540-7000
Attorneys for Michael Watson
Illinois Attorney No.
6225990
Document
II:
859666
12
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