BEFORE THE ILLINOIS POLLUTION CONTROL BOARD R E C E IV E D
CLERK'S OFFICE
KIBLER DEVELOPMENT CORPORATION and
)
APR 1 7 2006
MARION RIDGE LANDFILL, INC .,
)
STATE OF ILLINOIS
Petitioners,
)
Pollution Control Board
V .
)
Case No.2005-035
Permit Appeal
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
)
Respondent
.
)
PETITIONERS' RESPONSE TO MOTION TO INTERVENE
NOW COME Petitioners, KIBLER DEVELOPMENT CORPORATION and MARION
RIDGE LANDFILL, INC., through their undersigned attorney, and for their response to the
motion to intervene filed by CITY OF MARION, CITY OF HERRIN, and the WILLIAMSON
COUNTY AIRPORT AUTHORITY (hereinafter collectively "Proposed Intervenors"), state as
follows
:
1
.
This case is a permit appeal brought before this Board pursuant to Section
40(a)(1) of the Environmental Protection Act, 415 ILCS 5140(a)(1). In this case,
Petitibners, having been granted a development, permit by the Respondent
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY (hereinafter "IEPA")
to develop a sanitary landfill at Petitioners' site in Williamson County, have
appealed certain conditions imposed by the IEPA in that development permit
.
2 .
It well settled that third-party appeals do not lie.from the IEPA's grant or denial
of permits pursuant to Section 39 of the Environmental Protection Act, 415 ILCS
5/39 .
See Landfill, Inc . v. Illinois Pollution Control Board, 74111. 2d 541, 387
N.E.2d 258 (1978)
.
3
.
The Proposed Intervenors' motion for leave to intervene in this case constitutes no
more than an improper attempt for third parties to prosecute an appeal of an IEPA
landfill permit decision. The Proposed Intervenors profess an intent to support
the position of the IEPA, yet their pleading also suggests that they intend to seek
further and additional relief beyond the mere affirmance of the IEPA's permit
decision. In either event, the Proposed Intervenors would have no statutory
standing or right to participate in this permit appeal, and this Board does not have
the authority to grant the Proposed Intervenors the relief they seek
.
4.
The only exception to the prohibition on third party participation in appeals of
IEPA permit decisions is that the Attorney General, as a constitutional officer of
the State of Illinois empowered to protect the State's environment, has been
allowed to intervene in such cases by the Illinois Supreme Court . See Pioneer
Processing Inc. v. IEPA, 102 III . 2d 119, 464 N :E.2d 238 (1984). The Pioneer
Processing result was expanded to also include the State's Attorney of a county,
who also is a constitutional officer empowered, both constitutionally and under
the Environmental Protection Act, to protect the State's environment
.
See Land
and Lakes Co. v, Pollution Control Board, 245 III. App. 3d 631, 616 N .E.2d 349
(3 Dist. 1993)
.
5 .
The Proposed Intervenors attempt to analogize their status as municipalities and a
municipal corporation with the status of a county's State's Attorney . No such
analogy exists. There is no position of chief legal officer for municipalities and
municipal corporations. Municipalities and municipal corporations are purely
creations of statute, and not of the Illinois Constitution. Neither the municipalities
2
nor the municipal corporation is charged, either in the constitution or the
Environmental Protection Act, with the duty and obligation to protect the State's
environment. Virtually none of the factors previously looked to as authorizing
intervention by the Attorney General or State's Attorney apply to these Proposed
Intervenors
.
6 .
These Proposed Intervenors have only local and parochial interests in this permit
appeal proceeding, and do not have any generalized interests of the sort that
supported intervention of the Attorney General or a County's State's Attorney
.
There is neither constitutional nor statutory support for their motion. The motion
to intervene, in fact, has virtually no support
.
7 .
To the extent this Board is authorized, this Board should sanction the Proposed
Intervenors' counsel for bringing this frivolous motion . Represented by
experienced counsel, there is no excuse for the Proposed Intervenors to have
brought this motion other than as a means to harass and annoy Petitioners, and to
cause them the expense and inconvenience of submitting this response . To the
extent this Board is unable to sanction the Proposed Intervenors in any other way,
it should deny them even the right to participate in the extremely limited role of
amicus curaie .
WHEREFORE, Petitioners, KIBLER DEVELOPMENT CORPORATION and
MARION RIDGE LANDFILL, INC., request that this Board deny the Motion for
Leave to Intervene filed by the City of Marion, the City of Herrin and the
Williamson County Airport Authority, and grant to Petitioners all such other and
further relief as this Board is authorized to award
.
3
Hedinger Law Office
2601 South Fifth St
.
Springfield, IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
hedinger@ cityscape.net
Respectfully submitted,
Kibler Development Corporation & Marion Ridge
Landfill, Inc .,
Petitioners,
By their attorney,
HEDINGER LAW OFFICE
By
4
I~0
L.
- phe
4
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
RECEIVED
CLERK'S
OFFICE
KIBLER DEVELOPMENT CORPORATION and
>
APR 1 7 2006
MARION RIDGE LANDFILL, INC .,
)
STATE
OF ILLINOIS
Petitioners,
)
Pollution Control Board
v .
)
Case No.2005-035
Permit Appeal
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
)
Respondent .
)
NOTICE OF FILING AND PROOF OF SERVICE
The undersigned certifies that an original and nine copies of the foregoing Petitioners'
Response to Motion to Intervene 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
:
Dorothy Gunn, Clerk
Francis X. Lyons
Charles Helsten
Illinois Pollution Control Board
Bell, Boyd & Lloyd LLC
Edward R. Gower
James R. Thompson Center
70 West Madison Street
Hinshaw & Culbertson, LLP
100 W. Randolph St., Suite 11-500
Chicago, IL 60602
400 S . 9", Suite 200
Chicago, IL 60601
Springfield, IL 62701
Carol Webb
Melanie Jarvis
Hearing Officer
Division of Legal Counsel
Illinois Pollution Control Board
Illinois Environmental Protection Agency
1021 North Grand Avenue East, P.O. Box 19274
1021 N. Grand Ave . East
Springfield, IL 62796-9274
P.O. Box 19276
Springfield, IL 62794-9276
with postage fully prepaid, and by depositing said envelope in a U .S. Post Office Mail Box in
Springfield, Illinois before 5 :30 p.m. on the/
--day of April, 2006
.
Hedinger Law Office
2601 South Fifth Street
Springfield, IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
hedmer4citysutpe 'let
en F. He
5
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