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 STAY

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 101.500 and 101.514, hereby respectfully moves the Illinois

Pollution Control Board ("Board") or in the alternative the Hearing Officer, to stay the above captioned

proceedings or in the alternative to stay the Illinois EPA’s response to discovery and the filing of the

Administrative Record and in support of said motion, the Illinois EPA states as follows:

1.

On June 23, 2008, the Illinois EPA filed a limited appearance, challenging both

Petitioners’ standing to appeal the issuance of an Illinois EPA permit granted to co-respondent, as well

as noting that Petitioner failed to provide any justification or reasoning as to how the Board was to gain

jurisdiction over the matter.

2.

After the filing of a limited appearance, a person is confined to contesting only issues

relating to jurisdiction or procedural matters such as standing. That persons’ participation in other

aspects of the trial would destroy the limitation of his appearance and may waive the jurisdictional

objection. See, e.g., J.C. Penney Co. Inc. v. West (1983), 114 Ill.App.3d 644, 70 Ill. Dec. 314, 449

Electronic Filing - Received, Clerk's Office, June 26, 2008

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N.E.2d 188. Falstad v. Falstad (1987) 152 Ill. App. 3d 648. A finding that jurisdiction exists is a

necessity for a matter to be docketed and heard and such a challenge is appropriate at any time during

the proceeding. Further, dealing with issues of jurisdiction directly following the filing of a matter

fosters judicial and economic economy.

3.

On June 26, 2008, the Petitioners filed requests for discovery.

4.

The filing of answers to said discovery requests or the filing of the Administrative Record

may waive the Illinois EPA’s limited and special appearance for the purpose of challenging jurisdiction

and standing.

5.

Also, as noted above, the Illinois EPA will incur significant cost associated with

engaging in litigation without the benefit of a ruling on its motion and will thus be prejudiced by

proceeding with discovery and the filing of the Administrative Record at this time. The Petitioner

has not offered any reasoning as to why discovery must be proceeded with prior to a ruling on the

juridisdictional issues.

6.

As stated above, Petitioner has not set forth to date any argument relating to the need

to proceed in an expedited manner in the proceeding, and at very least should be required to provide

the Illinois EPA, the Board and co-respondent with answers to both the pending jurisdictional and

standing issues that were pending prior to the filing of Petitioners’ discovery request.

See

Des

Plaines River Watershed, et. al. v. IEPA and the Village of New Lenox, (PCB 04-88). Moreover, it

has not been plead, nor demonstrated how Petitioner will be injured by a stay in this matter pending

resolution and final decisions on the currently pending motion. Finally, co-respondent may have

issues relating to both the jurisdictional, standing and other procedural matters that should be raised

and heard prior to proceeding on the matter.

Electronic Filing - Received, Clerk's Office, June 26, 2008

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CONCLUSION

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

Illinois EPA’s Motion to Stay Discovery and the Filing of the Administrative Record until such time as

the Board rules on the Illinois EPA’s Motion to Dismiss based on the Board’s lack of jurisdiction and

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 26, 2008

This filing submitted on recycled paper.

Electronic Filing - Received, Clerk's Office, June 26, 2008