BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

NOTICE OF FILING
1. PETITIONERS' JOINT RESPONSE IN OPPOSITION TO
2. IEPA AND LANDFILL'S MOTIONS TO DISMISS

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF WILLIAMSON COUNTY

ex rel.

STATE'S ATTORNEY CHARLES GARNATI, and

THE WILLIAMSON COUNTY BOARD,

Petitioners,

KIBLER DEVELOPMENT CORPORATION,

MARION RIDGE LANDFILL, INC., and ILLINOIS

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

No.

(Permit Appeal - Land)

NOTICE OF FILING

TO:

Melanie Jarvis

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

E-mail: Melanie.Jarvis@illinois.gov

Stephen Hedinger

Hedinger Law Office

2601 South Fifth Street

Springfield, Illinois 62703

E-mail: Hedinger@hedingerlaw.com

Carol Webb, Hearing Officer

E-mail: webbc@ipcb.state.il.us

PLEASE TAKE NOTICE

that on July 7, 2008, I filed, electronically, with the Illinois Pollution Control

Board, the following: Petitioners' Joint Response in Opposition to IEPA and Landfill's Motions to

Dismiss, a copy of which are attached hereto and served upon you.

Jennifer J. Sackett Pohlenz

Querrey & Harrow, Ltd.

175 W. Jackson Blvd., Suite 1600

Chicago, IL 60604

PEOPLE OF WILLIAMSON COUNTY

ex rel.

STATE'S

ATTORNEY CHARLES GARNATI, and THE

WILLIAMSON COUNTY BOARD,

By:

/s/ Jennifer J. Sackett Pohlenz

CERTIFICATE OF SERVICE

Jennifer J. Sackett Pohlenz,

certify that served the foregoing Notice of Filing, along with

copies of document(s) set forth in this Notice, on the above listed persons at the above listed e-mail

addresses this 7

day of July 2008,

via

e- mail, and further will serve them

via

facsimile on July 8, 2008.

___

/s/ Jennifer J. Sackett Pohlenz

______________

Electronic Filing - Received, Clerk's Office, July 7, 2008

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF WILLIAMSON COUNTY

ex rel.

STATE'S ATTORNEY CHARLES GARNATI,

and THE WILLIAMSON COUNTY BOARD,

Petitioners,

KIBLER DEVELOPMENT CORPORATION,

MARION RIDGE LANDFILL, INC., and

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY,

Respondents.

No. 08-93

(Permit Appeal - Land)

PETITIONERS' JOINT RESPONSE IN OPPOSITION TO

IEPA AND LANDFILL'S MOTIONS TO DISMISS

NOW COME Petitioners PEOPLE OF WILLIAMSON COUNTY

ex rel.

STATE'S

ATTORNEY CHARLES GARNATI and the WILLIAMSON COUNTY BOARD, by and

through their attorneys, and file this Joint Response in Opposition to the Illinois Environmental

Protection Agency's (“Illinois EPA”) Motion to Dismiss and Kibler Development Corp./Marion

Ridge Landfill, Inc.'s (jointly referenced as "Landfill") Motion to Strike and Dismiss. In support

thereof, Petitioners state as follows:

Without any attempt to explain the near month-delay, both Illinois EPA, in a June

filing, and Landfill, in a June 26

filing, contend that the Petition filed on May 29

in this

matter should be dismissed. Their Motions are premised on two, faulty assertions: (A)

Petitioners did not participate in the permitting process and (B) Petitioners otherwise lack

standing.

Petitioners' Participation in the Permitting Process Is Not Mandatory, as like

the Attorney General, the State's Attorney has Additional Obligations and Duties

Outside Section 40(a)(1), that Require that He Is Allowed to Represent the People

Respondents' argument that the Petition should be dismissed since Petitioners did not

participate in the permitting process is nothing more than a farce. First, the Petition asserts, on

Electronic Filing - Received, Clerk's Office, July 7, 2008

* * * * * PCB 2008-93 * * * * *

information and belief, that Petitioners did

not

receive the required prerequisite notice of the

permit application that was filed by Landfill. As such, Petitioners could hardly participate in a

process of which they were not aware until after Illinois EPA's decision to issue the subject

permit and mere days prior to the deadline for filing this Petition. Second, and more importantly,

as a constitutional officer, the participation in the permitting process is not required for a State's

Attorney.

On numerous occasions, Illinois Courts have made clear that due to the special

powers and duties of State's Attorneys, they should not be restricted to a narrow interpretation of

a single statutory provision, such as 415 ILCS 5/40(a)(1), without full consideration of their

obligations outside such statutory provisions.

Pioneer Processing Inc. v. EPA,

102 Ill.2d 119,

464 N.E.2d 238 (S.Ct. 1984);

AFSCME v. Ryan, et al.

, 347 Ill.App.3d 732, 807 N.E.2d 1235 (5

Dist. 2004);

Land and Lakes Co. v. PCB,

245 Ill.App.3d 361, 616 N.E.2d 349, 354-355 (3

Dist.

1993);

Saline County v. IEPA,

PCB 02-108 (April 18, 2002).

Indeed, in

Pioneer Processing Inc.,

the Illinois Supreme Court explained that the

Attorney General should not have been dismissed for lack of standing by an appellate court for

its appeal of the Board's decision related to an Illinois EPA permit, as the Attorney General has

"the duty and au-thority to represent the interests of the People of the State to insure a healthful

environment".

Pioneer Processing Inc.

, 102 Ill.2d at 138-139, 464 N.E.2d at 247. The Supreme

Court further stated that "[i]f, in fact, the Agency failed to afford the citizens of this State the

proper procedures relating to the issuance of Pio-neer's permit, then we believe it is only proper

for the Attorney General to be the People's representative in the courts on this matter."

Id.

Like the Attorney General, the State's Attorney is a constitutional officer and the

State's Attorney has duties and powers that largely parallel those of the Attorney General.

People

Electronic Filing - Received, Clerk's Office, July 7, 2008

* * * * * PCB 2008-93 * * * * *

ex rel. Kunstman v. Nagano

, 389 Ill. 231, 249, 59 N.E.2d 96, 104 (1945). One important duty of

the State's Attorney is to "commence and prosecute all actions, suits, indictments and

prosecutions, civil and criminal, in the circuit court for his county, in which the people of the

State or county may be concerned." 55 ILCS 5/3-9005(a)(1). Clearly, if the Attorney General

has the authority, contrary to a specific statute identifying who has standing, to commence an

action to determine whether the Illinois EPA failed to follow the proper procedures in issuing a

permit, then the State's Attorney of Williamson County has the same authority on behalf of the

people and the County Board. In particular, contrary to Illinois EPA's contention Petitioners'

lack a "nexus" to this matter, Petitioners' direct interest in this matter is clear when, among other

things, Petitioners assert Landfill's failure to notify them of the permit application and Illinois

EPA's failure to consider the substance and scope of the County's site location approval. (Illinois

EPA Motion ¶3; Petition ¶¶6, 8).

Further, the Supreme Court in

Pioneer Processing Inc.

expressly disavowed any

precendential value of

Lake County Contractors Assoc. v. Pollution Control Board

, 54 Ill.2d 16,

294 N.E.2d 259 (1973), which has been incorrectly cited by and relied on by Landfill for the

proposition that participation in the permitting process is mandatory in this circumstance.

Pioneer Processing Inc.

102 Ill.2d at 136, 464 N.E.2d at 246. In doing so, the Supreme Court

analogized its decision to a similar decision in

People ex rel. Scott v. Illinois Racing Board,

Ill. 2d 569 (1973), warned that standing should not be read narrowly for a constitutional officer,

and distinguished as non-precedent

Lake County Contractors Assoc.

as it concerned the appeal of

contractors associations rather than the Attorney General.

Pioneer Processing Inc.

102 Ill.2d at

136-138, 464 N.E.2d at 246-247.

Electronic Filing - Received, Clerk's Office, July 7, 2008

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Thus, Respondents not only have Respondents failed to address the authority of

Petitioners outside Section 40(a)(1) of the Act (which was specifically plead by Petitioners in

their Petition), Respondents assertion that to have standing, Petitioners must have participated in

the permitting process is incorrect and must fail.

Petitioners have Standing to File this Petition

As previously referenced, despite being explicitly plead in the Petition, both Illinois

EPA and Landfill fail to distinguish the Petitioners' authority as a constitutional officer to bring

actions such as the subject Petition. Instead, Illinois EPA argues, citing inapplicable and

distinguishable authority, that the Board is not authorized to hear such a Petition unless brought

by a permit applicant, such as Landfill. (Illinois EPA Motion ¶4).

Waukegan et al. v. Illinois

EPA, et al.

, PCB 02-174 (May 2, 2002),

Kibler Development Corp. et al. v. Illinois EPA,

PCB

05-35, and

Landfill, Inc. v. Illinois Pollution Control Board,

74 Ill. 2d 541, 387 N.E.2d 258

(S.Ct. 1978), relied on by Illinois EPA for its argument, are all distinguishable.

Waukegan et al.

, the City of Waukegan, not the State's Attorney, filed a petition for

the review of land and air permits issued by Illinois EPA. In the cover letter that accompanied

that petition, Waukegan stated that although it did not believe that the Board had jurisdiction to

hear its petition, it needed to file it as a result of one of the Respondent's allegation that it was a

prerequisite to the Circuit Court action already filed by Waukegan.

the Board dismissed the petition for lack of standing.

Waukegan

however, is not precedent for determining standing in this case, as it does

not

involve a State's

Attorney with specific obligations and duties that override a narrow, Section 40-limited reading

of standing. For the same reasons that

Lake County Contractors Assoc.

was disavowed by the

Illinois Supreme Court as precedent for determining the Attorney General's standing in

Pioneer

Electronic Filing - Received, Clerk's Office, July 7, 2008

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Processing,

the Board should not accept

Waukegan

as authority for the State's Attorney's

standing in this matter.

10.

Likewise,

Kibler Development Corp. et al. v. Illinois EPA,

PCB 05-35 and

Landfill,

Inc.

involved private parties, subject to statutory standing restrictions for petitions to the Board

for review of permits. Additionally,

Landfill, Inc.

was decided by the Illinois Supreme Court

prior to its decision in

Pioneer Processing Inc.

and concerned the issue of whether a private

enforcement action against the Illinois EPA could be maintained by the Board, when its sole

claim was that the Illinois EPA violated the Illinois Environmental Protection Act by issuing a

permit. Unlike in

Landfill, Inc.

, in this case, the question is whether a constitutional officer, such

as the State's Attorney, has standing to bring a petition asserting both Landfill and Illinois EPA

failed in their permitting process obligations such as to, among other things, supersede the

County's authority over site location criteria.

See

, 415 ILCS 5/39.2. Thus, neither

Kibler

nor

Landfill, Inc.

is precedent for dismissal in this case.

11.

Further, Landfill's attempt to distinguish the legal authority for Petitioners' standing

cited in the Petition must fail as it is, at best, incomplete and inaccurate. Landfill argues that the

cases cited by Petitioners in support of standing are limited to the circumstance where a State's

Attorney

intervenes

in an existing permit petition, rather than initiates that petition. However, in

doing so, Landfill fails to address

AFSCME v. Ryan, et al.

, 347 Ill.App.3d 732, 807 N.E.2d 1235

Dist. 2004) and

People ex rel. Scott v. Illinois Racing Board,

54 Ill. 2d 569, which involved a

State's Attorney and Attorney General, respectively.

12.

Further, inapposite to Landfill's assertion, the line of authority granting intervention

to State's Attorneys is, in fact, precedent for a State's Attorney initiating a petition for review.

See, e.g., Land and Lakes Co. v. PCB,

245 Ill.App.3d 361, 616 N.E.2d 349, 354-355 (3

Dist.

Electronic Filing - Received, Clerk's Office, July 7, 2008

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1993)(State's Attorney allowed to intervene in permit appeal);

Saline County v. IEPA,

PCB 02-

108 (April 18, 2002)(State's Attorney intervened in permit appeal).

13.

Per both Code of Civil Procedure Rule 403 and the Board's procedural rules 101.402,

an intervener has all the rights of an original party to the proceeding. While the Board's

procedural rules limit an intervener's rights, such that it cannot contest decisions made in the case

prior to the intervener becoming a party, that limitation is not relevant (nor has either Respondent

asserted it to be relevant) to this proceeding. Further, there is no limitation, for example, on

basic party rights, such as appeal of a decision. In other words, even if the original party to the

proceeding did not want to appeal a decision by the Board, if that decision was adverse to the

intervener, the intervener could appeal that decision as if it were the original party.

See, e.g.,

Chicago Area Recycling Group v. Illinois Commerce Commission,

58 Ill. App. 3d 769, 374

N.E.2d 1008 (1

Dist. 1978)(citation omitted)("to allow an intervenor the status of party and to

accord it all the panoplies of the adversary process but to deny it the statutory right of appeal

requires a great leap of the imagination to satisfy the fundamentals of simple fairness.").

14.

Thus, Respondents assertions that Petitioners have no standing must fail, as Section

40(a)(1) of the Act does not exclude the authority of a constitutional officer, such as a State's

Attorney, to initiate the review of a permit issued by Illinois EPA and the already established

intervener precedent allowing State's Attorneys to intervene in an applicant's petition for review

of a permit is likewise authority supporting a State's Attorney's rights as an original party in such

proceedings.

15.

Finally, it must be noted that the Petition in this case expressly identified the line of

cases restricting the Board to permit reviews brought solely by the applicant. Yet, Respondents

waited nearly the full 30-day allotment under Board Rule 101.506, prejudicially wasting nearly

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one-quarter of the statutory review time and even agreeing to a discovery schedule prior to

asserting the Board has no jurisdiction. Respondents actions have prejudiced Petitioners, as it

has forced Petitioners to proceed with this matter as if it the Petition was accepted, preparing and

filing discovery requests and preparing for an already scheduled July 28

hearing.

WHEREFORE, Petitioners, People of Williamson County

ex rel.

Charles Garnarti and

the Williamson County Board respectful request the Board enter an order allowing its Petition

and reversing Illinois EPA's approval with conditions of the subject permit modification and

denying that permit modification. If this Board finds that the Petitioners herein do not have

standing based on the precedent referenced in this Response, the Petitioners respectfully request

that the Board clearly and specifically acknowledge the jurisdictional ground of standing being

the sole reason for the denial, as was done, for example, in

City of Waukegan, et al. v. IEPA, et

al.

, PCB 02-173 (May 2, 2002), and allowing for the future enforcement or other action by the

State's Attorney on behalf of the people and the County Board.

Dated: July 7, 2008

Respectfully submitted,

PEOPLE OF WILLIAMSON COUNTY

ex rel.

STATE'S ATTORNEY CHARLES GARNATI, and

THE WILLIAMSON COUNTY BOARD,

Jennifer J. Sackett Pohlenz

By:

/s/ Jennifer J. Sackett Pohlenz

Special Assistant State's Attorney

Querrey & Harrow, Ltd.

175 W. Jackson Blvd., Suite 1600

Chicago, IL 60604

Direct Dial: (312) 540-7540

Fax: (312) 540-0578

E-mail: jpohlenz@querrey.com

Electronic Filing - Received, Clerk's Office, July 7, 2008

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