Melanie A
. Jarvis
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O
. Box 19276
Springfield, Illinois 62794-9276
217/782-5544, 217/782-9143 (TDD)
Dated: April 6, 2006
This filing submitted on recycled paper .
PLEASE TAKE NOTICE that I have today filed with the office of the Clerk of the
Pollution Control Board a RESPONSE TO MOTION TO INTERVENE, copies of which are
herewith served upon you .
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
-V
VA
Qo"
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
RECEIVED
CLERK'S OFFICE
APR 1 0 2006
KIBLER DEVELOPMENT CORPORATION
and MARION RIDGE LANDFILL,
Petitioners,
INC.,
Pollution
STATE OF
Control
ILLINOIS
Board
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
PCB No. 05-35
(Permit Appeal - Land)
)
)
Respondent.
)
NOTICE
Dorothy M
. Gunn, Clerk
Carol Sudman, Hearing Officer
Charles Helsten
Illinois Pollution Control Board
Illinois Pollution Control Board
Edward R . Gower
James R
. Thompson Center
1021 North Grand Avenue, East
Hinshaw & Culbertson, LLP
100 West Randolph Street
P.O. Box 19274
400 S
. 9`h, Suite 200
Suite 11-500
Springfield, IL 62794-9274
Springfield, IL 62701
Chicago, IL 60601
Stephen F
. Hedinger
Francis X . Lyons
Hedinger Law Office
Bell, Boyd & Lloyd LLC
2601 South Fifth Street
70 West Madison Street, #3 100
Springfield, IL 62703
Chicago, IL 60602
BEFORE THE POLLUTION CONTROL BOARD
RECEIVED
CLERK'S OFFICE
OF THE STATE OF ILLINOIS
APR
10
7006
KIBLER DEVELOPMENT CORPORATION
)
STATE
OF
and MARION RIDGE LANDFILL, INC
.,
ILLINOIS
OIS
)
PS
Board
Petitioners,
)
v.
)
PCB No . 05-35
(Permit Appeal -
Land)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
RESPONSE TO MOTION OF CITIES OF MARION AND HERRIN AND THE
WILLIAMSON COUNTY AIRPORT AUTHORITY TO INTERVENE
NOW COMES the Respondent, the Illinois Environmental Protection Agency ("Illinois
EPA"), by one of its attorneys, Melanie A
. Jarvis, Assistant Counsel and Special Assistant
Attorney General, and, pursuant to 35 Ill
. Adm . Code 101
.500 and 101 .504, hereby respectfully
responds to the Motion to Intervene ("Motion") filed by the Cities of Marion and Herrin and the
Williamson County Airport Authority ("Movant")
. Movant filed the Motion on March 27, 2006,
and the Motion was served on Respondent no sooner than March 27, 2006
. In response to the
Motion, the Illinois EPA states as follows
:
I.
Third-Party Intervention in Agency Permit Appeals
I .
The Illinois Environmental Protection Act, 415 ILCS 5/1 et seq
. (2004)
("Act"),
does not expressly grant authority to the Illinois Pollution Control Board ("Board") to accept
third-party permit appeals
. Section 40(a)(1) of the Act states, "If the Agency refuses to grant or
grants with conditions a permit under Section 39 of this Act, the
applicant may. . .
petition for a
hearing before the Board to contest the decision of the Agency
." (Emphasis Added.)
Furthermore, it has been well established by Board order and court opinion that the Board is not
authorized to hear an appeal for this type of permit from a person other than the permit applicant
.
See e.g. City of Waukegan et al
. v
. Illinois EPA and North Shore Sanitary District,
PCB 02-173
(May 2, 2002)(citing
Landfill, Inc . v. PCB, 74 Ill
. 2d 541, 387 N .E. 2d 258 (1978))
.
1
2.
Motions to intervene are governed by Board procedural rule 101 .402 (35 III.
Admin. Code 101 .402.) Pursuant to Section 101 .402(e), a successful intervenor may be granted
all of the rights of an original party to the adjudicatory proceeding . If the Board grants a third-
party's petition to intervene, that third-party will essentially be given the right to challenge an
Illinois EPA permit decision, which is a right that the Act only affords to an applicant
. In Sutter
Sanitation, Inc . et al
., v
. Illinois EPA, PCB 04-187 (September 16, 2004), the Board made it clear
that in adopting procedural rule 101 .402, it never intended to overturn existing case law
interpreting intervention under the Act . In that case, the Board reasoned that it could not expand
the right to intervene "beyond that which the Act can bear ." Here, as in Sutter,
regardless of the
claimed interests they seek to protect, the Movant cannot seek party status through intervention
because they are legislatively precluded from becoming parties in this type of proceeding .
II.
Party Intervention in Permit Appeals
3 .
While no express authority exists to allow third-party interventions in permit
appeals, the Board, in its discretion has allowed intervention in certain limited circumstances .
Movant cites the Third District Appellate Court's decision in Land of Lakes Co
. v. Pollution
Control Board, 245 Ill. App. 3d 631, 616 N .E. 2d 349 (3d Dist
. 1993), as precedent for allowing
officials who represent the public interest to intervene in appeal proceedings before for the
Board. (Motion p. 2). Movant fails to note that in the cited case the official allowed to intervene
in the permit decision was the County state's attorney, who had standing to intervene based on
his status as
a State official representing the public interest. (Emphasis added). In Land of Lakes
the court allowed intervention based on
Pioneer Processing Inc
. v
. Illinois EPA, 102 III. 2d 119,
464 N.E. 2d 238 (1984), an Illinois Supreme Court Case holding that the Attorney General, as
representative of the interest of the people of the State, had the authority to seek review of a
decision of the Board even as a non-party, and upon a determination that a State's Attorney has
2
rights and duties analogous to those of the Illinois Attorney General
. Accordingly, the Board has
allowed only the State's Attorney or the Attorney General's Office to intervene in a permit
appeals "in light of its unique constitutional role as a representative of the citizenry
." See Sutter
Sanitation ; see also
Saline County Landfill, Inc . v
. Illinois EPA, PCB 02-108 (April 18, 2002)
and
Lowe Transfer, Inc . et al . v
. Mc Henry County Board,
PCB 03-221 (July 10, 2003) .
Neither the Cities of Marion or Herrin nor the Williamson County Airport Authority
possess the authority to represent the citizenry of the State
. As such, Movant should not be
permitted to intervene in this matter
.
III .
Conclusion
4.
Finally, by asking for a seat at the bargaining table (Motion p
. 8), Movant seems
to suggest that a vigorous defense of the terms, conditions, and language of the permit could only
occur if Movant were allowed to intervene
. In response the Illinois EPA, who carefully crafted
and issued the permit pursuant to their authority under the Act, contends that it will defend its
own decisions in the pending appeal with competence and zeal
.
WHEREFORE, for the reasons stated above, the Illinois EPA hereby respectfully
requests that the Board deny the Movant's motion to intervene
.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
Melanie A
. Jarvis, Special Assi
Division of Legal Counsel
1021 North Grand Avenue, East
P.O
. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
Dated: April 6, 2004
'I,
3
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on April 6, 2006, I served true
and correct copies of a RESPONSE TO MOTION TO INTERVENE, by placing true and correct
copies in properly sealed and addressed envelopes and by depositing said sealed envelopes in a
U .S . mail drop box located within Springfield, Illinois, with sufficient First Class Mail postage
affixed thereto, upon the following named persons
:
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
Melanie A . Jarvis
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dorothy M . Gunn, Clerk
Carol Sudman, Hearing Officer Charles Helsten
Illinois Pollution Control Board Illinois Pollution control Board Edward R . Gower
James R . Thompson Center
1021 North Grand Avenue, East Hinshaw & Culbertson, LLP
100 West Randolph Street
P.O . Box 19274
400S.
9th,
Suite 200
Suite 11-500
Springfield, IL 62794-9274
Springfield, IL 62701
Chicago, IL 60601
Francis X . Lyons
Stephen F . Hedinger
Bell, Boyd & Lloyd LLC
Hedinger Law Office
70 West Madison Street, #3100
2601 South Fifth Street
Chicago, IL 60602
Springfield, IL 62703
