BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERKS OFFICE
PEOPLE OF WILLIAMSON COUNTY
ex
rel.
STATE'S ATTORNEY CHARLES GARNATI,
And THE WILLIAMSON COUNTY BOARD,
JUN 2 6 2008
STATE OF ILLINOIS
Pollution Control Board
Petitioners,
v.
?
?
Case No. PCB 2008-93
Permit Appeal-Land
KIBLER DEVELOPMENT CORPORATION,
MARION RIDGE LANDFILL, INC., and
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondents.
MOTION TO STRIKE AND DISMISS
NOW COME Respondents, KIBLER DEVELOPMENT CORPORATION and MARION
RIDGE LANDFILL, INC., and pursuant to 35 Ill. Adm. Code 105.108(d) and (e), hereby move to
strike and dismiss the Petition for Review of Permit & Permit Conditions filed by the Petitioners,
People of Williamson County
ex rel.
State's Attorney Charles Garnati, and the Williamson
County Board, on the basis that these two purported Petitoners lack standing to bring the instant
matter, and this Board lacks jurisdiction to hear a third-party appeal from the granting of a landfill
permit. In support of this motion, these Respondents state as follows:
1.
Section 40(a)(1) of the Environmental Protection Act, 415 ILCS 5140(a)(1),
provides by its express terms that only a permit applicant has standing to appeal permit decisions
made by the Illinois Environmental Protection Agency ("Agency"); appeals are permitted from
permit denials, and from the imposition of unwanted permit conditions, but there is no statutory
right for anyone to file a petition for review of the Agency's granting of a permit. The Illinois
Supreme Court has affirmed the plain language of the statute by ruling that third parties have no
right to appeal Agency permit decisions.
Landfill, Inc. v. Illinios Pollution Control Board,
74
III.
2d
541, 387 N.E.2d 258 (1978).
2.
In
Citizens Utility Company of Illinois v. Illinois Pollution Control Board,
265 111.
App. 3d 773, 782, 639 N.E.2d 1306, 1313 (3d Dist. 1994), the Illinois Appellate Court also ruled
that the Illinois Pollution Control Board lacked jurisdiction over third party appeals of Agency
decisions to issue certain permits. As that court ordered, "Itlhe wisdom of limiting the rights of
third parties in the permit issuing and review of agency process is an issue best directed to the
legislature."
3.
Moreover, "(title PCB is powerless to expand its authority beyond that which the
legislature has expressly granted to it." McHenry County Landfill, Inc. v. Environmental
Protection Agency, 154111. App. 3d 89, 95, 506 N.E.2d 372, 376 (2d Dist. 1987).
4.
Hence, no statutory authority exists for an appeal for the granting of a landfill
permit by the two third-parties to the permit decision, People of Williamson County
ex re!
State's
Attorney Charles Garnati, or Williamson County Board, and this appeal should be dismissed for
want of jurisdiction. See Cityof Waukegan
v. Illinois EPA, PCB 02-173, 2002 Ill. ENV. LEXIS
274 (May 2, 2002). "If the Board were to become involved as the overseer of the Agency's
decision-making process through evaluation of challenges to permits, it would become the permit-
granting authority, a function not delegated to the Board by the (Environmental Protection Act."
Landfill. Inc., 74 I11.2d at 557, 387 N.E.2d at 264.
5.
Moreover, neither identified Petitioner has standing to bring this action, even if the
Board has some type of authority to entertain appeals from the granting of landfill permits.
6.
For one thing, nothing in Petitioners' pleading states that either of these proposed
Petitioners took any role in the proceeding before the Agency, and as a matter of factual accuracy,
neither did participate even to the minimal extent of filing public comments. Even in those instances
where the General Assembly has seen fit to allow third-party appeals from the grant of a permit, a
mandatory prerequisite is meaningful participation in the permit proceedings by the proposed
Petitioner; here such participation has not, and cannot, be alleged. see Lake County Contractor's
Assoc. v. Pollution Control Board., 54 III. 2d 16, 294 N.E2d 259 (1973);
ee e...,
35 Ill. Admin.
Code 105.302(d) (CAAPP permits); 35 Ill. Admin. Code 705.212(a) (RCRA permits).
7.
The petition in this case cites a line of decisions granting a limited right of
2
intervention to certain constitutional officers under certain circumstances. As a preliminary matter,
Respondents would note that the Williamson County Board does not constitute any such
constitutional officer (the Williamson County Board is a creature of statute, not of the constitution),
and so the authorities
cited
by the petition simply do not apply, and the Williamson County Board
should be dismissed from this action without further consideration. See Kibler Development Corp.
v. Illinois EPA, PCB 05-35, 2006 III. ENV. LEXIS 274 (May 4, 2006).
8.
Moreover, in this instance, the "People of Williamson County ex
rel
State's
Attorney Charles Garnati" likewise lacks standing to bring this action. Each of Petitioners'
authorities concerned intervention in proceedings lawfully brought by another party or other parties,
or issues not relevant to this situation. Land and Lakes Co.
v.
Pollution Control Board, 245 III.
App. 3d 361, 616 N.E.2d 349 (3d Dist. 1993), concerned a county's intervention as respondent to
support a denial of local siting approval by a municipality. Pioneer Processing Inc. v.
Environmental Protection Agency, 102 III. 2d 119, 464 N.E.2d 238 (1984), concerned the rights of
third parties to appeal from decisions of the Board concerning the permitting of a hazardous waste
facility (from which third party participants are expressly allowed to appeal —see 415 ILCS 5140(b),
40(c)); conversely, Petitioners here seek the unprecedented right to appeal to the Board.
9.
The petition in this case appears to claim that if the landfill is built and operated
according to the issued permit, then the landfill will be in violation of various provisions of the
Environmental Protection Act, such as those relating to the effect of local siting approval. Under
normal practice, the burden is upon a permit appeal petitioner to prove that the requested permit
would not violate the Environmental Protection Act
or
Board regulations ate 415 ILCS 5/39(a)), so
perhaps the inverse would be the logical burden for Petitioners' fanciful proceeding.
10.
However, if Petitioners truly believe the assertions made in their petition, then the
obvious and logical relief, already available to them pursuant to the Environmental Protection Act, is
to bring an enforcement action regarding the alleged improprieties. See City of Waukegan, PCB
02-173, 2002 Ill. ENV. LEXIS 273 at 1 (May 2, 2002). (Obviously these Respondents reserve all
3
rights under any applicable court rule or statute with respect to any allegations made without factual
or legal justification).
11. For
the foregoing reasons, this Board has no power or authority to entertain
Petitioners' inventive but unprecedented proposed action, and Petitioners themselves lack any
standing to pursue the proposed permit appeal. The case must be stricken.
WHEREFORE Respondents KIBLER DEVELOPMENT CORP. and MARION RIDGE
LANDFILL, INC., request that this Board strike and dismiss the "Petition for Review of Permit &
Permit Conditions" filed by Petitioners PEOPLE OF WILLIAMSON COUNTY
ex rel
STATE'S
ATTORNEY CHARLES GARNATI and the WILLIAMSON COUNTY BOARD, and that this
Board award to the Respondents all such other and further relief as is allowed by law.
Respectfully submitted,
Kibler Development Corporation & Marion Ridge
Landfill, Inc., Respondents,
By their attorney,
HEDINGER LAW
ijorremor
AO(
rphen 'neclinger
Hedinger Law Office
2601 South Fifth Street
Springfield, IL 62703
Telephone: (217) 523-2753
Fax: (217) 523-4366
hedinger@hedingerlaw.com
By
4
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK'S OFFICE
JUN 2 6 2008
STATE OF ILLINOIS
Pollution Control Board
PEOPLE OF WILLIAMSON COUNTY ex rel
STATE'S ATTORNEY CHARLES GARNATI,
And THE WILLIAMSON COUNTY BOARD,
Petitioners,
with postage fully prepaid, and by depositing said envelopes in a U.S. Post Office Mail Box in
Springfield, Illinois before 5:30 p.m. on the 2.4tir-clay
of Ju , 2008.
Hedinger Law Office
2601 South Fifth Street
Springfield, IL 62703
Telephone: (217) 523-2753
Fax: (217) 523-4366
This document prepared on recycled paper
5
v.
?
Case No. PCB 2008-93
Permit Appeal-Land
KIBLER DEVELOPMENT CORPORATION,
MARION RIDGE LANDFILL, INC., and
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondents.
NOTICE OF FILING AND PROOF OF SERVICE
The undersigned certifies that an original and nine copies of the foregoing Motion to Strike
and Dismiss and of this Notice of Filing and Proof of Service, were served upon the Clerk of the
Illinois Pollution Control Board, and one copy to each of the following parties of record and
hearing officer in this cause by enclosing same in an envelope addressed to:
John Therriault, Acting Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Suite 11-500
Chicago, IL 60601
Melanie Jarvis
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 N. Grand Ave. East
P.O. Box 19276
Springfield, IL 62794-9276
Jennifer Sackett Pohlenz
Querrey & Harrow
75 West Jackson Boulevard
Suite 1600
Chicago, IL 60604-2827
Michael J. Ruffley
Assistant State's Attorney
200 Jefferson
Williamson County Courthouse
Marion, IL 62959
Carol Webb, Hearing Officer
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Stephen edinger
BEFORE THE
ILLINOIS POLLUTION CONTROL
BOARlitCLE
CRK
E
IVED
PEOPLE OF WILLIAMSON COUNTY
ex rel
CLE
RK'S
OFFICE
And
STATE'S
THE
ATTORNEY
WILLIAMSON
CHARLES
COUNTY
GARNATI,BOARD,
JUN
Control
2 6
2008
ILLINOIS
Pollution
Board
STATE
OF
Petitioners,
)
v.
) Case No. PCB 2008-93
) Permit Appeal-Land
KIBLER DEVELOPMENT CORPORATION,
)
MARION RIDGE LANDFILL, INC., and
)
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, )
Respondents.
)
ENTRY OF APPEARANCE
NOW COMES Stephen F. Hedinger, of the Hedinger Law Office, and hereby enters his
appearance on behalf of Respondents, KIBLER DEVELOPMENT CORPORATION, and
MARION RIDGE LANDFILL, INC., in the above-referenced case, and hereby requests that all
subsequent pleadings, orders and other documents served in this case be served upon the
undersigned on behalf of these two Respondents.
Respectfully submitted,
Kibler Development Corporation & Marion Ridge
Landfill, Inc., Respondents,
By their attorney,
HEDINGER LAW OFF CE
By
Hedinger Law Office
2601 South Fifth Street
Springfield, IL 62703
Telephone: (217) 523-2753
Fax: (217) 523-4366
hedinger@hedingerlaw.com
This document prepared on recycled paper
Hedinger Law Office
2601 South Fifth Street
Springfield, IL 62703
Telephone: (217) 523-2753
Fax: (217) 523-4366
Ste
F. Hedi
with postage fully prepaid, and by depositing said
Springfield, Illinois before 5:30 p.m. on the 2—
velopes in a U.S. Post Office Mail Box in
y of June, 200
BEFORE THE ILLINOIS POLLUTION CONTROL &MP
RK'S
EIVED
OFFICE
PEOPLE OF WILLIAMSON COUNTY ex rel
STATE'S ATTORNEY CHARLES GARNATI,
And THE WILLIAMSON COUNTY BOARD,
Petitioners,
JUN 2 6 2008
STATE OF
ILLINOIS
Pollution Control
Board
v.
?
?
Case No. PCB 2008-93
Permit Appeal-Land
KIBLER DEVELOPMENT CORPORATION,
MARION RIDGE LANDFILL, INC., and
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondents.
NOTICE OF FILING AND PROOF OF SERVICE
The undersigned certifies that an original and nine copies of the foregoing Entry of
Appearance and of this Notice of Filing and Proof of Service, were served upon the Clerk of the
Illinois Pollution Control Board, and one copy to each of the following parties of record and
hearing officer in this cause by enclosing same in an envelope addressed to:
John Therriault, Acting Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Suite 11-500
Chicago, IL 60601
Melanie Jarvis
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 N. Grand Ave. East
P.O. Box 19276
Springfield, IL 62794-9276
Jennifer Sackett Pohlenz
Querrey & Harrow
75 West Jackson Boulevard
Suite 1600
Chicago, IL 60604-2827
Michael J. Ruffley
Assistant State's Attorney
200 Jefferson
Williamson County Courthouse
Marion, IL 62959
Carol Webb, Hearing Officer
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276