BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
LERK’S OFFICE
SAlINE COUNTY LANDFILL, INC.,
)
MAY
252004
PETITIONER,
)
STATE
o Iutton
OF
Control
ILLINOIS
Board
v.
)
No.
PCB
04-117
)
(PERMIT APPEAL)
ILLINOIS ENVIRONMENTAL
)
FItOTECTION AGENCY,
)
)
RESPONDENT.
)
RESPONSE TO MOTION FOR STAY PENDING APPEAL
Comes now petitioner, Saline County Landfill, Inc., and responds to the motion filed by
Inlervenor State’s Attorney for a stay ofthis Board’s May 6, 2004 Order.
1. This response is timely, per
35
Illinois Administrative Code 101 .500 (d), and 35 Illinois
Administrative Code 101.904 (e). The County ofSaline filed May 12 its motion to stay.
2. Though not cited by Jntervenor State’s Attorney,
35
Illinois Administrative Code 101.904
(b) is instructive concerning its motion for stay. Sec. 101.904(b) is relevant because the motion to
stay is a motion seeking relief from and review ofa final Order entered in a contested proceeding.
On written motion, the Board may relieve a party from a final order
entered in a contested proceeding, for the following:
1)
Newlydiscovered evidence that existedat the time ofhearing
and that by due diligence could not have been timely
discovered;
2)
Fraud (whether intrinsic or extrinsic), misrepresentation, or
other misconduct ofan adverse party; or
3)
Void order, such as an order based upon jurisdiction defects.
35
Illinois Administrative Code 101.904 (b).
3. None ofthe grounds for relief listed in
35
Illinois Administrative Code 101.904 (b), are
alleged in the motion for stay pending appeal. Therefore, the motion for stay lacks merit.
4. The motion for stay presents essentially the same arguments against issuance ofa permit
asalready presented in the case in chief. Where the motion for stay presents no arguments except
those alreadyrejected in the final Board Order, the motion forstay should be denied. See, e.g., Alton
Packaging Corporation v. Illinois EPA, PCB 83-49 (August 18, 1988).
5.
Intervenor State’s Attorney argues in paragraph seven ofits motion for stay that “reversal
by the Appellate Court for the Fifth District is a possibility”. Saline County Landfill respectfully
disagrees with any inference about the likelihood ofreversal. Furthermore, such a possibility is
irrelevant under the criteria in
35
Illinois Administrative Code 101.904 (b).
6. Paragraphs eight through ten ofthe motion for stay argue the people ofSaline County
would be “severely prejudiced” by the possibility ofallowing Saline County Landfill to construct
a facility,because ofpossible reversal by the Appellate Court. On the contrary, the record reflects
the December
5,
2003 permit denial letter was not based on any environmental, safety, or public
health concerns.
The construction ofa facility which is later denied an operationalpermit by an appellate
court, would not damage anyone except Saline County Landfill, Inc. Intervenor’s argument is the
permit should be stayedbecause Saline County Landfill risks revocation ofits permit to developand
operate the site, after constructing the facility. No explanationis offered as to how this hypothetical
risk to Saline County Landfill, Inc., prejudices Saline County’s environment or its citizens.
7. Admittedly, motions for stay are referenced in this Board’sregulations, including 35
Illinois Administrative Code 101.906. This regulation may be read in the context of this Board’s
past practices. This Board has held its customary practice is to deny motions for stay pending
appeal. See, for example, Centralia Environmental Services, Inc.. v. Illinois EPA, PCB 89-170
(April 11, 1991). Calvary Temple Church v. Illinois EPA, PCB 90-3 (August 30, 1990).
8. The Board’s practice ofcustomarily denying motions for stay pending appeal avoids the
risk ofreversal on jurisdictional grounds. This Board has held it lacks jurisdiction after an appeal
to the appellate court is filed. Concerned Citizens v. Kibler, PCB 94-262 (May4,
1995).
People v.
Watts, PCB 94-127 (August 24,
1995).
This Board should simply deny the motion for stay.
CONCLUSION
Saline County Landfill, Inc., requests the Board be consistent with its findings offact and
Order entered May 6, 2004, which directed the EPA to issue the permit sought by Saline County
Landfill, Inc. Saline County Landfill, Inc., requests the Board deny the motion for stay pending
appeal.
By:
Brian
//~
Konzen, Esq.
4~
Lueders, Robertson, & Konzen
1939 Delmar
P.O. Box 735
Granite City, Illinois 62040
Phone: (618) 876-8500
ARDCNo.: 06187626
46088
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
SALINE COUNTY LANDFILL, INC.,
)
PETITIONER,
))
STATE
MAY
OF
252004
ILLINOIS
v.
)
No.
PCB 04-117
Pollution Control Board
)
(PERMIT APPEAL)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
RESPONDENT.
)
CERTIFICATE OF SERVICE
I, the undersigned, certify that Ihave served the att3ched responseof Saline County Landfill,
Inc., to the motion for stay pending appeal, on this 2~( date of May, 2004, by first class mailing
to the following addressees:
John Kim, Esq.
Division ofLegal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, flhinois 62794-9276
Carol Sudman, Esq.
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Ave. East
P0 Box 19274
Springfield, Illinois 62794-9274
Rod Wolf
Saline County State’s Attorney
10 E. Poplar
Harrisburg, Illinois 62946
Steve Hedinger
• 2601 S. Fifth Street
Springfield, Illinois 62703
Brian Konzen
46092
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
SkLINE COUNTY LANDFILL, INC.,
)
•
CLERK’S OFFICE
•
)•
PETITIONER,
)
)
STATE OF ILLINOIS
v.
)
No.
PCB
04-117
Pollution Control Board
•
)
(PERMIT APPEAL)
ILLINOIS ENVIRONMENTAL
)
PIWTECTION AGENCY,
)
)
RESPONDENT.
)
NOTICE OF FILING
John Kim, Esq.
Rod Wolf
Division ofLegal Counsel
Saline County State’s Attorney
Illinois Environmental Protection Agency
10 E. Poplar
1021 North Grand Avenue East
Harrisburg, Illinois 62946
P.O. Box 19276
Springfield, Illinois 62794-9276
Carol Sudman
Hearing Officer
Steve Hedinger
Illinois Pollution Control Board
2601 5. Fifth Street
1021 North Grand Avenue East
Springfield, Illinois 62703
P. 0. Box 19274
Springfield, Illinois 62794
Please take notice that I have today filed with the Clerk ofthe Pollution Control Board, the
response of Saline County Landfill, Inc., to motion to stay, and the certificate ofservice.
Brian E. Konzen, Esq(
~
Lueders, Robertson, Konzen LLC
1939 Delmar, P.O. Box 735
Granite City, Illinois 62040
Phone: (618) 876-8500
ARDCNo.: 06187626
This filing on recycled paper.
