BEFORE THE POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

PEOPLE OF WILLIAMSON COUNTY

ex rel.

)

STATE’S ATTORNEY CHARLES GARNATI,

)

And THE WILLIAMSON COUNTY BOARD,

)

Petitioners,

)

v.

)

PCB No. 08-93

KIBLER DEVELOPMENT CORPORATION,

)

(Permit Appeal - Land)

MARION RIDGE LANDFILL, INC., and

)

ILLINOIS ENVIRONMENTAL PROTECTION

)

AGENCY,

)

Respondents.

)

MOTION TO DISMISS

NOW COMES Respondent, the Illinois Environmental Protection Agency (“Illinois EPA”), by

one of its attorneys, Melanie A. Jarvis, Assistant Counsel and Special Assistant Attorney General, who

is appearing limitedly for the purpose of attacking the sufficiency of the Petition filed in this case, and

who, pursuant to 35 Ill. Adm. Code 101.506, hereby respectfully moves the Illinois Pollution Control

Board ("Board") to dismiss the above action and in support of said motion, the Illinois EPA states as

follows:

1.

Kibler Developmental Corporation was granted a developmental permit for a municipal

solid waste and non-hazardous special waste landfill by the Illinois EPA on July 23, 2004. That permit

was appealed by Kibler on August 25, 2004. (PCB 05-35) Thereafter, Kibler filed an application for

permit modification on May 2, 2006. On October 16, 2006, the Illinois EPA denied this request. Kibler

appealed this decision on November 20, 2006. (PCB 07-43) On March 10, 2008, Kibler filed a new

permit application which was approvable and the Illinois EPA issued the modified permit on April 25,

2008. Petitioners did not participate in the permitting process.

2.

The Petitioners filed their third party appeal of the April, 2008 permit on May 29, 2008.

Electronic Filing - Received, Clerk's Office, June 23, 2008

---

3.

The Illinois Environmental Protection Act, 415 ILCS 5/1 et seq. (2006) (“Act”) does not

allow for the third party appeal of the type of permit issued in this case by the Illinois EPA. 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.) Petitioners are not the applicant, nor do they claim to be

such within their petition for review. Thus, the Illinois EPA offers that Petitioners lack standing to

appeal the Illinois EPA decision in this matter. The rationale for requiring a nexus to the matter is

simplistic. The applicant not only has a direct interest in the matter, but also has provided the

information within the application for review by the Illinois EPA. The Illinois EPA must review the

application, applicable law and regulations, and render a final determination on the permit. Basically the

Petitioner is trying to use this forum to enjoin the applicant’s development of a facility that has been

issued a permit. A third party permit appeal is not the correct mechanism for that type of relief.

4.

Furthermore, the Illinois EPA notes that Petitioners have not presented the Board

with any valid argument by which the Board can assess whether it has jurisdiction to hear this

matter. Regarding jurisdiction, the Board has long recognized that it 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)). Further, as the Board

previously noted in Kibler Development Corporation and Marion Ridge Landfill v. Illinois EPA

,

PCB 05-35, “the Supreme Court in Landfill, Inc.

made clear in 1978 that the Board has no authority

to, by rule, extend appeal rights beyond those granted in the Act under Section 40.” Landfill, Inc. v.

Illinois Pollution Control Board, 387 N.E.2d 258. The Board went on to note that “there simply are

Electronic Filing - Received, Clerk's Office, June 23, 2008

---

no statutory rights to appeal landfill permits, other than those for hazardous waste disposal sites

under Section 40(b).”

CONCLUSION

For the reasons stated herein, the Illinois EPA respectfully requests that the Board grant the

Illinois EPA’s Motion to Dismiss based on the Board’s lack of jurisdiction or in the alternative finding

that Petitioners lack standing to bring this matter before the Board.

Respectfully submitted,

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)

Dated: June 23, 2008

This filing submitted on recycled paper.

Electronic Filing - Received, Clerk's Office, June 23, 2008