BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVEDCLERKS
OFFICE
KIBLER DEVELOPMENT CORPORATION and
)
MAY - 9 2006
MARION RIDGE LANDFILL, INC .,
)
Petitioners,
)
v.
)
Case No.2005-035
Permit Appeal
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
)
Respondent.
)
PETITIONERS' RESPONSE TO MOTION FOR LEAVE TO FILE RESPONSE IN
SUPPORT OF MOTION TO INTERVENE INSTANTER
NOW COME Petitioners, KIBLER DEVELOPMENT CORPORATION and MARION
RIDGE LANDFILL, INC
., through their undersigned attorney, and in response to the "Motion
for Leave to File Response in Support of Motion to Intervene Instanter," filed by proposed
Intervenors, the City of Marion, the City of Herrin, and the Williamson County Airport
Authority, state as follows :
1 .
The proposed Intervenors have filed a document entitled "Motion for Leave to
File Response in Support of Motion to Intervene Instanter."
Attached to that
motion is a proposed "Response of the Cities of Marion and Herrin and the
Williamson County Airport Authority in Support of Their Motion to Intervene
."
2.
The motion itself consists of a scant one paragraph argument, stating that the
parties to this permit appeal (Petitioners, and the Illinois Environmental
Protection Agency) "have filed memoranda opposing the motion to intervene,"
and stating that the proposed Intervenors "believe the attached response to the
opponent's legal arguments will enable the Board to make a more informed
decision ."
Pollution
STATE OF
Control
ILLINOISBoard
3.
The proposed Intervenors' motion cites virtually no authority in support of the
relief sought
. Despite the denomination of the proposed document as a
"response," it is clearly a reply within the meaning,of this Board's procedural
rules
. As such, the controlling procedural rule is 35 III
. Adm. Code Section
101 .501(e): "The moving person will not have the right to reply, except as
permitted by the Board or the hearing officer to prevent material prejudice
."
4.
The proposed Intervenors can cite to no material prejudice that will be addressed
by their proposed reply
. At most, the proposed reply will assist this Board in
making "a more informed decision ." That clearly fails to address the standard
provided by this Board's regulations, and for that reason alone the motion should
be denied.
5.
In addition, the proposed Intervenors' proposed reply fails to address the heart of
the issue before this Board, and that is the statutory restriction upon allowing third
parties to participate in permit appeal proceedings . Both Petitioners and the
Illinois Environmental Protection Agency reminded this Board of that statutory
restriction, which has only been circumvented by the constitutional officers
addressed in the cases Pioneer Processin , Inc. v. Environmental Protection
Agency, 102 III . 2d 119,465 N .E.2d 238 (1984), and Land and Lakes Co . v .
Pollution Control Board, 245 III . App. 3d 631, 616 N .E.2d 349 (3d Dist . 1993)
.
The proposed Intervenors' proposed response fails to address the statutory
restrictions, and instead argues vaguely that it would be a good idea for this Board
to allow the intervention, without thought to statutory restrictions . Clearly it is
the province of the General Assembly to determine conclusively what is and is
2
not a "good idea" in a statutory proceeding such, as this, and the proposed
Intervenors' opinion on the matter, displayed in their proposed reply, is simply
irrelevant to any issue before this Board
.
6.
In addition, the proposed reply for the first time requests yet more additional relief
--
an unprecedented order of the Board to limit the authority of the Illinois
Environmental Protection Agency's plenary right to make permit decisions,
including such decisions made with the consent of the permit applicant
. The
proposed Intervenors are not parties, and therefore have no standing to request
any relief whatsoever
. Moreover, the request, made in the proposed reply, is
clearly improper, and should be denied and stricken for that reason as well
.
Finally, the request is contrary to statute, and asks this Board to take an action it
has no power to take
. This final request, like the rest of the motion and proposed
reply, should be stricken and denied
.
7.
For the above reasons, Petitioners request that this Board deny the proposed
Inter enors' request to file the proposed reply, deny the proposed Intervenors the
right to intervene, and deny the proposed Intervenors the right to appear as
amicus
curiae.
WHEREFORE, Petitioners, KIBLER DEVELOPMENT CORPORATION and MARION
RIDGE LANDFILL, INC
., request that this Board deny the "Motion for Leave to File
Response in Support of Motion to Intervene Instanter," and strike the attached proposed
"Response of the Cities of Marion and Herrin and the Williamson County Airport
Authority in Support of Their Motion to Intervene," and grant to Petitioners all such other
and further relief as this Board is statutorily authorized to award
.
3
Hedinger Law Office
2601 South Fifth St .
Springfield, IL 62703
(217) 523-2753 phone
(217)523-4366 fax
hedinoer@citvscape .net,
Respectfully submitted,
Kibler Development Corporation & Marion Ridge
Landfill, Inc .,
Petitioners,
By their attorney,
HEDINGER LAW OFFICE
By
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4
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
RECEIVED
CLERK'S
OFFICE
KIBLER DEVELOPMENT CORPORATION and
)
MARION RIDGE LANDFILL, INC .,
/ )
Petitioners,
)
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
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St ., Suite 11-500
Chicago, IL 60601
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East, P.O
. Box 19274
Springfield, IL 62796-9274
with postage fully prepaid, and by depositing s id envelope in a U .S
. Post Office Mail Box in
Springfield, Illinois before 5 :30 p .m. on
theta/
Hedinger Law Office
2601 South Fifth Street
Springfield, IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
hedinger@ cityscape .net
Francis X. Lyons
Bell, Boyd & Lloyd LLC
70 West Madison Street
Chicago, IL 60602
n
iS
phen F . H
4
day of May, 2006 .
This document prepared on recycled paper
MAY - 9 2006
STATE OF ILLINOIS
Pollution Control Board
Charles Helsten
Edward R . Gower
Hinshaw & Culbertson, LLP
400 S . 9", Suite 200
Springfield, IL 62701
Melanie Jarvis
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 N . Grand Ave . East
P.O . Box 19276
Springfield, IL 62794-9276
