Electronic Filing - Received, Clerk's Office, July 7, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF WILLIAMSON COUNTY
ex rel.
STATE'S ATTORNEY CHARLES GARNATI,
and THE WILLIAMSON COUNTY BOARD,
Petitioners,
v.
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
RESPECTIVE MOTIONS TO STAY AND EXTEND DISCOVERY
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 Stay and Kibler Development Corp./Marion
Ridge Landfill, Inc.'s (jointly referenced as "Landfill") Motion to Extend Discovery. In support
thereof, Petitioners state as follows:
1.
With complete knowledge that the Illinois Pollution Control Board (Board) would
not make its decision on the Respondents' respective motions to dismiss this Petition until July
10, the Respondents
agreed
to an expedited discovery schedule.
See
, Hearing Officer Order
dated 06/25/08. In fact, that agreed schedule was entered as a result of Petitioners' assertion of
prejudice in the proceeding, as a result of Landfill's failure to waiver the statutory deadline and
the extremely limited period of time to obtain discovery in this matter prior to the July 28
th
hearing that was likewise scheduled pursuant to the Hearing Officer's 06/25/08 Order.
2.
Having agreed to that discovery schedule, Respondents both now seek to retract their
agreement and obtain additional time to file the Administrative Record and response to
Electronic Filing - Received, Clerk's Office, July 7, 2008
discovery. By their actions, both Illinois EPA and Landfill have prejudiced Petitioners already
limited period to obtain evidence from them and prepare for the hearing and, in doing so, have
rendered this proceeding fundamentally unfair. By their actions and failures to abide by the
previously agreed schedule, Respondents have usurped the short statutorily allotted time,
reducing the time allotted to discovery to a mere 17 days (assuming
in arguendo
that
Respondents fully respond to discovery on July 11
th
, it is only 17 days until the July 28
th
hearing).
3.
Respondents waived, or alternatively should be estopped from seeking more time for
discovery, without otherwise extending the time for the statutory deadline, by their prior
agreement to the expedited discovery schedule.
4.
Additionally, the mainstay of Illinois EPA's argument that it cannot respond to
discovery or file the Administrative Record without waiving its "limited appearance" in this case
is incorrect and unsupported by the law. Since 2000, the rule requiring special appearances to be
filed no longer exists.
KSAC Corp. v. Recycle Free, Inc.
, 364 Ill. App. 3d 593, 594 (Ill. App. Ct.
2d Dist. 2006), citing former Rule 2-301(a) of the Code of Civil Procedure. Thus, for
approximately eight (8) years it has been well established that the special or limited appearance
that Illinois EPA asserts prevents it from answering discovery in this case, in fact, is a nullity.
5.
Additionally, Illinois EPA is simply wrong in its allegation that "Petitioner [sic] has
not set forth to date any argument related to the need to proceed in an expedited manner" when,
in fact, that was expressly and explicitly done by Petitioners at the initial Hearing Officer status
conference which led to the entry of the 06/25/08 Hearing Officer Order and agreed discovery
schedule. Moreover, at that time, Illinois EPA's counsel stated that it had "three feet" of
paperwork on her floor that she was "fairly certain" she would be able to review in time to meet
Electronic Filing - Received, Clerk's Office, July 7, 2008
the statutory 30-day deadline for Illinois EPA to file its Administrative Record. In fact, the
reason another status was scheduled for July 1
st
was to review the status of that filing, as
Petitioners asserted prejudice without having that record timely filed.
6.
Likewise, Landfill's claims of "surprise", "overlook[ing]" dates, and cursory and
conclusory statements of "no threat of prejudice" must fall flat. Courts have previously held that
injunctions, even if later overturned, stay a statutory tolling period.
See, Pioneer Processing Inc.
v. EPA,
102 Ill.2d 119, 464 N.E.2d 238 (S.Ct. 1984). Respondents failing and, in fact, refusing
to respond to timely to discovery (particularly where the schedule was agreed), is analogous to
an injunction imposed on the proceeding, where it effectively stays evidence gathering and
impedes Petitioners abilities to present their case.
7.
This is not simply about costs and fees that have been expended by Petitioners to date
to simultaneously and diligently pursue this matter while responding to motions to dismiss and
strike its Petition, this is also about Respondents impeding the time and limiting it well beyond
the statutory construction for Petitioners to collect evidence and present their case. This results
in a fundamentally unfair proceeding, particularly where Landfill, who is the sole party with the
asserted authority to waive the statutory deadline, maintains a position of non-responsiveness
while it lets the statutory clock tick away.
8.
The Respondents actions unfairly prejudice Petitioners by, among other things,
depriving Petitioners to access to the documentation and evidence necessary to pursue its claims;
limiting Petitioners timeframe for identifying and reviewing such evidence which is in all
likelihood several feet of documentation to 17 days, assuming
in arguendo
that full and complete
responses are provided by Respondents on July 11
th
; limiting the time even further that
Petitioners have to prepare with disclosed evidence for depositions in this case to 3 days
Electronic Filing - Received, Clerk's Office, July 7, 2008
4
(depositions were scheduled to begin per the 06/25/08 Order on July 14
th
); and, requiring
Petitioners to incur the fees and costs associated with these actions
WHEREFORE, Petitioners, People of Williamson County
ex rel.
Charles Garnarti and
the Williamson County Board respectfully request the Board enter an order denying Petitioners
Motions, requiring a waiver of the statutory deadline, and expediting discovery in this matter.
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
