ILLINOIS POLLUTION CONTROL BOARD
July 10, 2008
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.
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PCB 08-93
(Permit Appeal-Land)
OPINION AND ORDER OF THE BOARD (by N.J. Melas):
This matter comes before the Board on a May 29, 2008 petition for review (Pet.) filed by
the People of Williamson County
ex rel.
State's Attorney Charles Garnati and the Williamson
County Board (collectively, Williamson County or petitioners). Williamson County seeks to
appeal the May 15, 2008 modification of a permit for an existing municipal waste and non-
hazardous special waste landfill for the Marion Ridge Landfill. The permit modification was
issued by the Illinois Environmental Protection Agency (Agency) to the landfill’s owner, Kibler
Development Corporation (Kibler), and operator, Marion Ridge Landfill, Inc. (Landfill). Under
the permit modification, the Landfill is authorized to dispose of municipal solid waste (MSW)
and non-hazardous special waste
Today’s opinion and order first considers the motions to dismiss filed by the Agency on
June 23, 2008 and Kibler and the Landfill jointly on June 26, 2008. Having considered the
petition, the motions to dismiss, and the petitioners’ July 7, 2008 joint response in opposition, the
Board grants the motions to dismiss. The Board finds that petitioners lack standing to bring this
action, and that the Board therefore has no jurisdiction under Section 40 of the Environmental
Protection Act (Act), 415 ILCS 5/40 (2006), to hear this purported third-party appeal of the grant
of a permit to a non-hazardous special waste landfill or a municipal solid waste landfill
(MSWLF). The Board denies as moot the Agency’s June 26, 2008 motion to stay this
proceeding and Kibler’s and the Landfill’s July 7, 2008 motion to extend the time for response to
discovery requests, noting that petitioners opposed both motions. The hearing scheduled by the
Board for July 28, 2008 is cancelled.
2
BACKGROUND
Permit Being Challenged
The original permit issued to Kibler and the Landfill
1
, known by the Agency as Permit
No. 2000-199-LF, approved:
B. The development of a new MSWLF unit consisting of an approximately
358 acre facility with 189 acres for disposal with an "in-place" disposal
capacity of approximately 37,152,000 cubic yards, including daily and
intermediate cover, but excluding final cover. The maximum final
elevation shall be approximately 640 feet above mean sea level [and the l
owner and waste boundaries, waste footprint, and final contours are as
shown on specified drawings, and]
D. Acceptance of special waste streams without individual special waste stream
authorizations, upon individual waste stream authorizations, upon obtaining a
permit allowing waste disposal, in accordance with the special conditions listed
in Part III of this permit. Pet. Exh. A, Permit at 1-2.
The April 25, 2008 permit modification that is the subject of this appeal recites that it
approves revisions to the permit’s special conditions to “settle two permit appeals” pending
before the Board.
2
Id
. at 2. The modification also states that the Agency made modifications in
1
Williamson County’s grant of site location suitability approval for this Landfill under Section
39.2 of the Act, 415 ILCS 5/39.2 (2006), was the subject of three third-party appeals to this
Board:
See
Concerned Citizens of Williamson County and Rev. Paul Crain and Rose Rowell, as
members of Concerned Citizens of Williamson County,
et al
. v. Bill Kibler Development Corp.
a/k/a Kibler Development Corp. and the Williamson County Board of Commissioners, PCB 96-
60 (Feb. 15, 2006) (siting affirmed); Concerned Citizens of Williamson County, Rev. Paul Crain
and Rose Rowell v. Bill Kibler Development Corp. a/k/a Kibler Development Corp. and
Williamson County Board of Commissioners, PCB 94-262 (Jan. 19, 1995 and Mar. 16, 1995)
(reversed and remanded for cure of procedural fundamental unfairness); and Concerned Citizens
of Williamson County and R. S. Blakely and Max Strucker, as members of the Concerned
Citizens of Williamson County v. Bill Kibler Development Corp. a/k/a Kibler Development
Corp. and the Williamson County Board of Commissioners, PCB 92-204 (May 20, 1993) (siting
vacated due to County lack of jurisdiction caused by defective newspaper notice ).
2
Kibler and the Landfill filed the two pending appeals to challenge various conditions contained
in permit modifications they had requested.
See
Kibler Development Corp. and Marion Ridge
Landfill, Inc. v. IEPA, PCB 97-043 (filed Nov. 20, 2006) and Kibler Development Corp. and
Marion Ridge Landfill, Inc. v. IEPA, PCB 05-35 (filed Aug. 25, 2004). By filing of June 4, 2008
in each of these cases, Kibler and the Landfill noted the pendency of the third-party appeal by
Williamson County in PCB 08-93, and stated that they could not dismiss their permit appeals
during the pendency of PCB 08-93.
3
response to the Board’s adoption of revisions in its landfill rules.
3
The modification includes a
table listing the ten approved revisions from the original permit. The approved modifications
include revised standards for geomembrane testing, and new conditions requiring the approval of
the Federal Aviation Administration (FAA) before acceptance of MSW
4
.
Contents of Petition for Review
In the petition, Williamson County cites as the jurisdictional basis for this appeal Section
5/3-9005(a)(1) of the Illinois Counties Code, 55 ILCS 5/3-9005(a)(1) and Section 105.204(f) of
the Board’s rules codified at 35 Ill. Adm. Code 105.204(f). Pet. at 1. The County also asserts
that it has standing to appeal under precedent including City of Waukegan,
et al
. v. IEPA
et al.
,
PCB 02-173 (May 2, 2002), citing Landfill, Inc. v. PCB, 74 Ill.2d 541, 387 N.E.2d 258 (1978).
Id
. at 2.
Williamson County alleges that the permit modification, among other things, changes the
type of waste allowed to be accepted at the landfill to non-putrescible waste, unless the FAA
approves otherwise, with the result that:
Illinois EPA has modified the permit to allow a landfill that was not sited by
Williamson County. Thus, it is in the public interest of Williamson County to
seek the review of the subject permit approval with conditions, to, among other
things, ensure that the siting decision of the County is honored by Illinois EPA
and that a facility which was not the subject of the public site location hearing is
permitted by Illinois EPA in derogation of the County Board's decision making
authority and due process, and of the public's interest to participate in such a
proceeding. Pet. at 3.
Among other things, the petition additionally alleges that:
•
Williamson County never received a proper notification of the application to modify the
permit;
•
the permit improperly allows development of the facility over a public roadway,
changing traffic patterns;
•
the permit’s conditions unlawfully extend and change landfill boundaries;
•
the Agency should have determined siting approval was needed for the modification; and
•
the Agency has no authority to issue a development permit for a facility “other than what
received site location approval.” Pet. at 4-5.
3
See
Amendments to Solid Waste Landfill Rules, 35 Ill. Adm. Code 810 and 811, R07-8 (Nov.
15, 2007).
4
See
49 U.S.C. § 44718(d)(1) prohibiting construction of MSWLF to receive putrescible waste
within six miles of a public airport without FAA exemption. The permit recites that the Landfill
boundaries and the runways of the Williamson County Regional Airport appear to be separated
by 2.2 miles at their closest points. Pet. Exh. A, Permit at 2-3.
4
In their relief request, petitioners request the Board to enter:
an order allowing this 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 Paragraph 4, above, 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 or County Board. Pet. at 5.
Procedural History
Under the Board’s procedural rules, motions to strike or dismiss pleadings must be filed
within 30 days after service of the document. 35 Ill. Adm. Code 101.506. The Board
accordingly took no action on the May 29, 2008 petition at its meetings of June 5 and 19. The
Board did, however, assign a hearing officer for the purpose of handling any case management
issues.
On June 23, 2008, the Agency’s attorney filed a limited appearance
5
, and a motion
challenging the Board’s jurisdiction of this matter, asserting that the Board’s authority to hear
third-party permit appeals is limited to circumstances where such appeals are specifically
authorized by the legislature. Landfill, Inc. v. PCB, 387 N.E.2d 258 (1978). On June 25, 2008,
Kibler and the Landfill filed a joint motion to strike and dismiss the petition, similarly alleging
that petitioners lack standing to bring the matter and that the Board lacks jurisdiction to hear a
challenge to the grant of this permit.
After consultation with the parties, the hearing officer issued an order June 25, 2008.
People of Williamson County
ex rel.
State's Attorney Charles Garnati and the Williamson
County Board v. Kibler Development Corporation, Marion Ridge Landfill, Inc., and IEPA, PCB
08-93 (hearing officer order June 25, 2008). As to the pending motions to dismiss, the hearing
officer’s order of June 25, 2008, required petitioners to file any responses
6
in opposition to the
5
Section 101.400(a)(5) of the Board’s procedural rules provides that:
Any person appearing before the Board may appear in a special limited capacity
to contest jurisdiction. 35 Ill. Adm. Code 101.400 (a)(5).
6
The Board’s procedural rules provide that responses are typically due within 14 days after
service of a motion, and that:
Unless undue delay or material prejudice would result, neither the Board nor the
hearing officer will grant any motion before expiration of the 14 day response
period except in deadline driven proceedings where no waiver has been filed. 35
Ill. Adm. Code 101.500(d).
5
motions to dismiss on July 7, 2008, to allow the Board to consider the issue at its July 10, 2008
meeting.
Id
. at 1.
But, assuming
arguendo
that the Board would accept the case for hearing and assuming
that a 120-day decision deadline applied
7
, the hearing officer set a hearing date of June 28,
noting that no decision-deadline waiver was expected from Kibler and the Landfill. Discovery
requests were to be served by June 25, 2008, and responses by July 9, 2008. Depositions were to
be conducted during the week of July 14, 2008. Due dates for simultaneous post-hearing briefs
were set as August 11, 2008 for opening briefs and August 18, 2008 for responses.
Id.
The
order also set a status conference for July 1, 2008.
On June 26, 2008, the Agency filed a motion to stay (Ag. Stay Mot.) the case in its
entirety, or in the alternative to stay the Agency’s response to discovery (due June 26, 2008) and
the filing of the Agency’s administrative record (due June 28, 2008 under 35 Ill. Adm. Code
105.116). The Agency stated as the basis for its motion that:
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 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. Ag. Stay Mot. at 2.
The Agency also argued that it would incur significant costs litigating this action and would thus
be prejudiced by proceeding with discovery and the filing of the administrative record prior to
Board ruling on the motions to dismiss and acceptance of the case for hearing.
Id
. The motion
was directed to both the hearing officer and the Board.
No responses to the Agency’s stay motion had been filed prior to the scheduled July 1,
2008 telephone status conference between the parties and the hearing officer. The hearing
7
Third-party permit appeals are managed as required by Section 40 of the Act, 415 ILCS 5/40
(2006), and the Board’s procedural rules at 35 Ill. Adm. Code 105. The Board may dismiss
petitions for various reasons, including that the petitioner lacks standing.
See
35 Ill. Adm. Code
105.108(d). Based on the May 29, 2008 petition filing date, a decision deadline of September
26, 2008 applies, requiring Board decision at its September 18, 2008 meeting. The Board has
consistently held that the ability to waive or extend the deadline under 35 Ill. Adm. Code
101.308(c) rests with the permitee rather than the third-party petitioner.
See, e.g
., Tom Edwards
v. IEPA and Peoria Disposal Co., PCB 08-42, slip op. at 5 (Mar. 6, 2008) (accepting for hearing
third-party petition for review of renewal permit for hazardous waste landfill).
6
officer reminded the parties that she had no authority to stay a deadline-driven proceeding,
absent a decision-deadline waiver.
On July 7, 2008, Kibler and the Landfill filed a response to the motion for stay (Kibler
Stay Resp.). These respondents took no position on the motion, but “restated their intention not
to agree to any waiver of the decision deadline”. Kibler Stay Resp. at 1. However, these
respondents filed a motion for extension (Kibler Ext. Mot.) of time for the filing of discovery
responses from July 9 to July 11, 2008, after any July 10, 2008 Board ruling on the motions to
dismiss. The motion asserts that the slight delay will cause no prejudice. Kibler Ext. Mot. at 1-
2.
On July 7, 2008, Williamson County electronically filed a joint response in opposition to
the motions to dismiss (County Joint Resp. Mot. Dis.). In summary, the petitioners contend that
they participated in the permit process and have standing to bring this appeal.
Williamson County also filed a joint response in opposition to the motions to stay and
extend the discovery response deadline (County Joint Resp. Mot. Stay and Ext.). Williamson
County contends that even a short stay or delay in discovery responses will prejudice them, given
the scheduled July 28 hearing date and scheduled July 14 date for the beginning of depositions.
County Joint Resp. Mot. Stay and Ext. at 1-2. The County asserts that the Agency’s assertion
that its “limited appearance” precludes the filing of the record or discovery responses is incorrect
and unsupported by law, citing. KSAC Corp. v. Recycle Free, Inc., 364 Ill. App. 3d 593, 594
(2nd Dist. 2006), citing former Rule 2-301(a) of the Code of Civil Procedure. County Joint
Resp. Mot. Stay and Ext. at 2-3. Williamson County requests an order “denying Petitioners’
Motions (
sic
), requiring a waiver of the statutory deadline
8
, and expediting discovery in this
matter.”
Id
. at 4.
On July 8, 2008, the Agency filed replies to Williamson County’s two July 7, 2008
responses. The Board’s procedural rule at 35 Ill. Adm. Code 101.500(e) provides that a motion’s
movant has no right to file a reply to a response except as permitted by the Board or hearing
officer to prevent material prejudice. The Agency has neither sought nor received leave to file
replies. On its own motion, the Board strikes both filings, which it has not considered in its
resolution of the contested issues.
MOTIONS TO DISMISS
The Board first turns to analysis and discussion of the motions to dismiss the petition: a
Board finding of a lack of jurisdiction to proceed to hear the case eliminates the need to consider
the other motions. The Board first lays out the respondents’ motions and Williamson County’s
response, and then analyzes the arguments and makes a ruling.
8
Such relief is beyond the ability to grant consistent with Section 40(a) of the Act.
See, supra
at
5, n.7.
7
The Agency’s Arguments
In its June 23, 2008 motion to dismiss (Ag. Mot. Dis.), the Agency argued first that the
Board lacks statutory authority to hear a third-party appeal of this type of permit. Under Section
40(a)(1) of the Act, the Agency contends, only the permit applicant may file an appeal. 415
ILCS 5/40(a)(1) (2006). The Agency believes that:
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. Ag. Mot. Dis. at 2.
The Agency then contends that petitioners have not presented any valid jurisdictional
argument:
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 no statutory rights to appeal
landfill permits, other than those for hazardous waste disposal sites under Section
40(b).” Ag. Mot. Dis. at 2-3.
Kibler’s and the Landfill’s Arguments
In their June 26, 2008 motion to strike and dismiss the petition (Kibler Mot. Dis.), Kibler
and the Landfill also argue that there is no authority for petitioners’ appeal under Section
40(a)(1) of the Act, citing Landfill, Inc.
, and Citizens Utility Company of Illinois v. PCB, 265 Ill.
App. 3d 773, 782, 639 N.E.2d 1306, 1313 (3rd Dist. 1994);
see,
City of Waukegan
et al
. v. IEPA
et al.
, PCB 02-173 (May 2, 2002). Kibler Mot. Dis. at 1-2.
Kibler and the Landfill additionally argue that, even if the Board did have “some type of
authority to entertain” this appeal, these petitioners have not demonstrated any standing to bring
this action. These respondents argue that:
nothing in Petitioners' pleading states that either of these proposed Petitioners
took any role in the proceeding before the Agency, and as a matter of factual
accuracy, neither did participate even to the minimal extent of filing public
comments. Even in those instances where the General Assembly has seen fit to
allow third-party appeals from the grant of a permit, a mandatory prerequisite is
meaningful participation in the permit proceedings by the proposed Petitioner;
here such participation has not, and cannot, be alleged. See Lake County
8
Contractor's Assoc. v. Pollution Control Board, 54 Ill. 2d 16, 294 N.E.2d 259
(1973); see e.g., 35 Ill. Admin. Code 105.302(d) (CAAPP [Clean Air Act Permit
Program] permits); 35 Ill. Admin. Code 705.212(a) (RCRA [Resource
Conservation and Recovery Act] permits). Kibler Mot. Dis. at 2.
Kibler and the Landfill next relate that the petition cites a “line of decisions” in which the
courts granted “a limited right of intervention to certain constitutional officers under certain
circumstances.” Kibler Mot. Dis. at 2-3 (emphasis in original);
see
Pet. at 2, citing City of
Waukegan
et al
. v. IEPA
et al.
, PCB 02-173 (May 2, 2002), citing Landfill Inc. v. PCB, 74 Ill.
2d 541, 387 N.E.2d 258 (1978). Kibler and the Landfill first argue that, as a preliminary matter,
the Williamson County Board should be dismissed from the action because it is not a
constitutional officer and is a creature of statute not covered by these cases.
Id
. at 2-3;
see
Kibler
Development Corp. v. IEPA, PCB 05-35 (May 4, 2006).
Kibler and the Landfill next argue that no standing exists as to the other petitioner:
"People of Williamson County
ex rel
. State's Attorney Charles Garnati". Kibler and the Landfill
argue that the authorities cited in the petition concerned intervention in proceedings lawfully
brought by another party or other parties, or issues not relevant to this situation.
See
Kibler Mot.
Dis. at 2-3, distinguishing Land and Lakes Co. v. PCB, 245 Ill. App. 3d 361, 616 N.E.2d 349
(3rd Dist. 1993) (county's intervention as respondent to support a denial of local siting approval
by a municipality); and Pioneer Processing Inc. v. IEPA, 102 Ill. 2d 119, 464 N.E.2d 238 (1984)
(Attorney General’s right to appeal from decisions of the Board concerning the permitting of a
hazardous waste facility;
see
415 ILCS 5/40(b), (c)).
The motion argues that petitioners here seek the “unprecedented” right to appeal
to
the
Board. The motion relates that:
The petition in this case appears to claim that if the landfill is built and operated
according to the issued permit, then the landfill will be in violation of various
provisions of the Environmental Protection Act, such as those relating to the
effect of local siting approval. ***
However, if Petitioners truly believe the assertions made in their petition, then the
obvious and logical relief, already available to them pursuant to the
Environmental Protection Act, is to bring an enforcement action regarding the
alleged improprieties.
See
City of Waukegan
, PCB 02-173, 2002 Ill. ENV.
LEXIS 273 at 1 (May 2, 2002). (Obviously these Respondents reserve all
rights under any applicable court rule or statute with respect to any allegations
made without factual or legal justification). Kibler Mot. Dis. at 3-4.
Kibler and the Landfill accordingly request that the Board strike and dismiss the petition
on the grounds that the Board lacks jurisdiction to hear the appeal and the petitioners lack
standing to pursue the appeal.
9
WILLIAMSON COUNTY’S JOINT RESPONSE
In response to the respondents’ motions to dismiss, Williamson County asserts in
summary first that petitioners’ participation in the permitting process was not mandatory, and
then that petitioners have standing to proceed with this action.
Petitioners’ Lack of Participation in Permit Proceeding
As to participation in the permitting process, petitioners state “on information and belief”,
that they “did not receive the required prerequisite notice of the [Landfill’s] permit application”,
so that they “could hardly participate in a process of which they were unaware.” County Joint
Resp. Mot. Dis. at 2. Petitioners also contend that, “as a constitutional officer, the participation
in the permitting process is not required for a State’s Attorney.”
Id.
Petitioners assert that the Board should not give “a narrow interpretation to a single
statutory provision, such as 415 ILCS 5/40(a)(1)” without full consideration of the special
powers, duties, and obligations of State's Attorneys, citing Pioneer Processing Inc. v. IEPA, 102
Ill. 2d 119, 464 N.E.2d 238 (1984) (Attorney General allowed to appeal Board ruling in
hazardous waste landfill appeal filed by permittee); AFSCME v. Ryan,
et al.
, 347 Ill. App. 3d
732, 807 N.E.2d 1235 (5th Dist. 2004); Land and Lakes Co. v. PCB, 245 Ill. App. 3d 361, 616
N.E.2d 349, 354-355 (3rd Dist. 1993) (State’s Attorney allowed to intervene in siting appeal);
Saline County Landfill, Inc. v. IEPA, PCB 02-108 (Apr. 18, 2002) (State’s Attorney allowed to
intervene in permit appeal). County Joint Resp. Mot. Dis. at 2.
Petitioners argue that:
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
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 [that] 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
precedential 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
10
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
, 54 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. County
Joint Resp. Mot. Dis. at 2-3.
Petitioners’ Standing
Petitioners argue that, neither the Agency’s motion, nor that of Kibler and the Landfill,
successfully refutes petitioners’ assertion that Pioneer Processing
and its progeny confer standing
here. Petitioners first distinguish in turn the cases cited by the Agency: City of Waukegan
et al
.
v. IEPA
et al.
, PCB 02-174 (May 2, 2002) (City’s appeal dismissed); Kibler Development Corp.
v. IEPA, PCB 05-35 (intervention denied to City of Marion, City of Herrin, and the Williamson
County Airport Authority); and Landfill, Inc. v.PCB, 74 Ill. 2d 541, 387 N.E.2d 258 (1978) (in
declaratory judgment action, appellate invalidation of Board procedural rule purporting to allow
third-party appeals in cases not authorized by Act). County Joint Resp. Mot. Dis. at 4-5.
Petitioners contend that each of the cases cited above were attempted appeals by private
parties, who are subject to statutory standing restrictions not applicable to State’s Attorneys.
According to petitioners, Landfill, Inc. is also distinguishable as having been decided before
Pioneer Processing, and as involving 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”. County Joint Resp. Mot.
Dis. at 5.
Petitioners further contend that Kibler and the Landfill have failed to distinguish cases
allowing appeals to be initiated before other State boards, AFSCME v. Ryan
, 347 Ill. App. 3d
732, 807 N.E.2d 1235 (5th Dist. 2004) (State’s Attorney enforcement action to enjoin facility
closure by the Department of Human Services) and People
ex rel
. Scott v. Illinois Racing Board
,
54 Ill. 2d 569, 301 N.E.2d 285 (1973) (Attorney General’s appeal of licenses issued by Racing
Board). Joint Resp. Mot. Dis. at 5.
Petitioners next suggest that cases in which the Board allowed intervention by State’s
Attorneys in permit appeals brought by others are precedent for allowing them to initiate permit
appeals, since intervenors have the same rights to appeal Board decisions as do the original
parties. Joint Resp. Mot. Dis. at 5-6. Petitioners urge that they have standing because:
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
11
authority supporting a State's Attorney's rights as an original party in such
proceedings. Joint Resp. Mot. Dis. at 5.
In conclusion, petitioners take respondents to task for delaying the filing of their motions
to dismiss for nearly the full 30-days allotted them under the Board’s procedural rules at 35 Ill.
Adm. Code 101.506. Petitioners argue that this has been prejudicial to them, particularly
considering that the petition cited the basis for their standing and cases to the contrary, and
respondents’ agreement to the projected discovery schedule prior to their jurisdictional
assertions. As a result, “Petitioners [have been forced] to proceed with this matter as if it[,] the
Petition[,] was accepted, preparing and filing discovery requests and preparing for an already
scheduled July 28th hearing.” Joint Resp. Mot. Dis. at 6.
Petitioners therefore renewed their request that 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. Joint Resp. Mot. Dis. at 6.
BOARD ANALYSIS AND RULING
There is no disagreement that petitioners have no explicit statutory authority under the
Act to bring this appeal. There currently are no third-party rights to appeal this non-hazardous
waste permit under Section 40 of the Act; Section 40(a)(1) grants appeal rights solely to the
permit applicant. 415 ILCS 5/40(a)(1) (2006). Third-party appeal rights for hazardous waste
permits are granted only for RCRA permits, and permits granted by the Agency under Section
39.3 of the Act for hazardous waste sites. 415 ILCS 5/40(b), (c), and (e) (2006). Petitioners
have failed to assert any basis upon which Williamson County may initiate this appeal, and the
Board accordingly finds that Williamson County itself lacks standing to bring this suit.
As to the State’s Attorney himself, the parties have correctly identified the major
precedents the Board must consider and, if possible, reconcile. The first precedent is the Illinois
Supreme Court’s determination in the 1978 Landfill, Inc. decision that the Board may hear
appeals of landfill permits under Section 40 of the Act only as explicitly authorized by the
legislature. The next is the Illinois Supreme Court’s 1984 decision in Pioneer Processing
that the
Attorney General had standing to appeal the Board’s decision in the applicant’s permit appeal.
Having found standing, the Court decided it must address issues the Attorney General raised,
including that
12
the Agency and the Board in their administrative proceedings failed to implement
the legislative policy of according greater rights to the opponents of hazardous-
waste landfills . . . [and where]
* * *
Petitioners trace a series of legislative changes in the area of environmental
protection and maintain that there is an intent on the part of the legislature to
afford greater public rights to those persons who oppose the issuance of a
hazardous-waste-disposal permit. Pioneer Processing, 464 N.E.2d at 247-248.
Under these circumstances, the Court found that the Agency had
ex parte
communications with
permit applicant Pioneer, in violation of the contested-case provisions of Illinois’ Administrative
Procedure Act (citing Ill. Rev. Stat. ch. 127, par. 1014 (1979);
see
5 ILCS 5/100/1-30, 5/100/10-
25, and 5/100/10-60 (2006)). The Court found the permit invalid. Pioneer Processing, 464
N.E.2d at 249-250.
The final set of precedents is that under which, consistent with Pioneer Processing, the
courts and Board have allowed State’s Attorneys to intervene in permit appeals before the Board.
See
Land and Lakes Co. v.PCB, 245 Ill. App. 3d 361, 616 N.E.2d 349 (3rd Dist. 1993) (county's
intervention as respondent in siting appeal to support siting denial); Saline County Landfill, Inc.
v. IEPA, PCB 02-108 (April 18, 2002) (State’s Attorney allowed to intervene in permit appeal).
As the parties here have reminded, the Board has already once addressed these precedents
and standing issues in the context of the permitting of the Marion Ridge Landfill site following
the County’s grant of siting. As the Board stated in its ruling denying intervention in Kibler’s
challenge to conditions in a prior, still-pending permit appeal:
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., 387 N.E.2d 258 . . . . Intervenors receive the same
rights as the original parties to an action, including rights to appeal. Since the
decisions in Pioneer Processing
[1984] and Land and Lakes [1993], the legislature
has granted some additional third party permit appeal rights. See 415 ILCS
5/40(e),
as added by
P.A. 92-574,
eff.
June 26, 2002 (granting third parties the
right to appeal NPDES permits). Were the Board to grant Marion, Herrin, and the
Airport Authority intervenor status in this appeal of a permit to develop a new
municipal solid waste landfill brought under Section 40(a)(1) of the Act, the
Board would be unlawfully extending appeal rights. Kibler Development Corp.
and Marion Ridge Landfill, Inc. v. IEPA, PCB 05-35, slip op. at 5 (May 4, 2006).
Section 40(a)(1) of the Act, which governs appeals of non-hazardous waste landfill
permits, provides in pertinent part:
If the Agency refuses to grant or grants with conditions a permit under Section 39
of this Act, the
applicant
may, within 35 days after the date on which the Agency
served its decision on the
applicant
, petition for a hearing before the Board to
13
contest the decision of the Agency. 415 ILCS 5/40(a)(1) (2006) (emphasis
added).
The Board finds that the State’s Attorney has cited no persuasive authority to support his
initiation of this petition for review of a non-hazardous waste landfill permit. For the Board to
allow this action to proceed as a permit appeal would amount to an unlawful extension of appeal
rights by the Board.
This holding is consistent with both the Landfill, Inc.
and Pioneer Processing precedents.
The Supreme Court’s holding in Landfill, Inc.
constrains the Board to hear appeals of the
Agency’s grant of non-hazardous waste landfill permits consistent with expressed legislative
intent; the Supreme Court’s holding in Pioneer Processing allowing appeal by the Attorney
General of a Board ruling in a hazardous waste landfill appeal is consistent with the noted
legislative intent favoring “greater public rights” to opponents of hazardous waste landfill
permits.
See
Pioneer Processing, 464 N.E.2d at 248. The cases in which the Board has allowed
State’s Attorneys to intervene in siting appeals and permit appeals do not serve as a legitimate
basis for the right to initiate an appeal of a non-hazardous waste landfill permit. Finding that the
State’s Attorney and the County each lacks standing to bring this appeal, the Board grants
respondents’ motions to dismiss.
Again, in summary, the Board dismisses this action on the grounds that the petitioners
lack standing to pursue the action under Section 40 of the Act, resulting in the Board’s lack of
jurisdiction to hear the appeal. The hearing scheduled by the Board for July 28, 2008 is
cancelled. The Board’s grant of the motions to dismiss this action leads the Board to deny as
moot the respondents’ motions for stay and extension of the discovery schedule.
Finally, in response to the State’s Attorney’s request, the Board remarks that dismissal of
this action in no way precludes or otherwise impacts the State’s Attorney’s ability to proceed
with any other action authorized by the Act.
This opinion constitutes the Board’s findings of fact and conclusions of law.
IT IS SO ORDERED.
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/41(a) (2006);
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board’s procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
14
I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
the Board adopted the above opinion and order on July 10, 2008, by a vote of 4-0.
___________________________________
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
