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.

)

REPLY TO PETITIONERS’ JOINT RESPONSE IN OPPOSITION TO IEPA AND

LANDFILL’S RESPECTIVE MOTIONS TO STAY AND EXTEND DISCOVERY

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 replies to the Petitioners’

Joint Response In Opposition To IEPA And Landfill’s Respective Motions To Stay And Extend

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

The Petitioners have painted their alleged prejudice with such a broad brush, that the Illinois

EPA feels that it is forced to reply to this parade of horribles. In its motion, Illinois EPA argued that the

stay should be granted or denied based upon the procedural arguments presented, however, if the Board

entertains the Petitioners’ argument on whether or not they will be prejudiced by a short delay in

discovery, the Illinois EPA points out that this area of the law is well decided by the Board. In Des

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

in a NPDES third party appeal, an appeal I might add that is statutorily permitted under the Act, “[t]he

Electronic Filing - Received, Clerk's Office, July 8, 2008

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Board has consistently held that, in permit appeals, its review is limited to the record that was before

IEPA at the time the permitting decision was made.” Prairie Rivers Network v. IEPA and Black Beauty

Coal Company, PCB 01-112, slip op. at 10 (Aug. 9, 2001), citing Alton Packaging Corp. v. IPCB, 516

N.E.2d 275, 280 (5th Dist. 1987) (disallowing introduction of new evidence not presented to the Agency

in the permit proceeding); Community Landfill Co. v. IEPA, PCB 01-48, 01-49 (Apr. 5, 2001);

Panhandle Eastern Pipeline Co. v. IEPA, PCB 98-102 (Jan. 21, 1999); West Suburban Recycling and

Energy Center, L.P. v. IEPA, PCB 95-125, 95-199 (Oct. 17, 1996). Furthermore, the Board’s decision

“is not based on information developed by the permit applicant, or the Agency, after the Agency’s

decision.” Community Landfill Co. and City of Morris v. IEPA, PCB 01-48. Consequently, “evidence

that was not before the Agency at the time of its decision is not admitted at hearing or considered by the

Board.” Community Landfill Co. and City of Morris v. IEPA, PCB 01-48, 01-49, slip op. at 3 (Apr. 5,

2001), citing Alton Packaging, 516 N.E.2d at 280; Panhandle Eastern Pipeline Co. v. IEPA, PCB 98-102

(Jan. 21, 1999); West Suburban Recycling and Energy Center, L.P. v. IEPA, PCB 95-125, 95-199 (Oct.

17, 1996).”

The Board went on to say that “[i]n a permit appeal such as this, respondents do not have the

same opportunity to engage in discovery as they would in an enforcement case. Consequently, the Board

directs the hearing officer to proceed to hearing on terms consistent with this order.”

Based on the foregoing, it is apparent that the Petitioners will not be prejudiced by a stay in

discovery because it is clear from this ruling that the Petitioners are not even entitled to discovery in this

case.

Electronic Filing - Received, Clerk's Office, July 8, 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 or in the alternative rule that the

Petitioners have no right to discovery in a third party permit appeal.

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: July 8, 2008

This filing submitted on recycled paper.

Electronic Filing - Received, Clerk's Office, July 8, 2008