Electronic Filing - Received, Clerk's Office, September 11, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
KIBLER DEVELOPMENT CORPORATION
and MARION RIDGE LANDFILL, INC."
Petitioners,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY"
Respondents.
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PCB No. PCB 05-35
NOTICE OF FILING
TO: SEE ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that on September 11,2008, we electronically filed with the
Clerk
of the lllinois Pollution Control Board, Williamson County State's Attorney, Chares
Gamati's Motion for Reconsideration, copies
of which are attached hereto and hereby served
upon you.
Dated:
September
11, 2008
Michael John Ruftley
Assistant State'sAttorney
200 West Jefferson
Marion, IL 62703
Respectfully submitted,
On behalf
of Williamson County State's
Attorney, Charles Gamati
/s/ Michael John Ruffley
One
of Its Attorneys
70572023v\ 858007610\1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
KIBLER DEVELOPMENT CORP. and MARION
RIDGE LANDFILL, INC.,
Petitioners,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB No. 05-035
WILLIAMSON COUNTY STATE'S ATTORNEY, CHARLES GARNATI'SMOTION
FOR RECONSIDERATION
NOW COMES WILLIAMSON COUNTY STATE'S ATTORNEY, CHARLES
GARNATI
ex rei.,
People of Williamson County, pursuant to 35 ll1.Adm.Code 101.520, and
moves this Honorable Board to reconsider its order ofAugust 7,2008, stating as follows:
1.
A motion for reconsideration may be used to call the Board's attention to newly
discovered evidence, changes in the law, or errors
in
application of the existing law. The
Citizens
Against Regional Landfill
v. County Board of Whiteside,
PCB 93-156 (Mar. 11, 1993) (citing
Korogluyan v. Chicago Title
&
Trust Co.,
213 Ill. App. 3d 622,627, 572 N.E.2d 1154, 1158 (Ist
Dist. 1992ยป. Here, the Board is urged to reconsider its order based on an error in application of
the existing law.
2.
In
its August 7,2008 order, the Board dismissed this case in response to a Motion
for Voluntary Dismissal by the Petitioner, and denied the Motion
to
Intervene filed by
Williamson County State's Attorney, Charles Garnati ("State's Attorney") based upon the
Board's conclusion that "there is no existing case or controversy between the original parties in
which to allow the movant to intervene."
3.
At issue in this litigation is a proposed landfill facility which received siting
approval
by default in 1995, but has yet to be developed.
70573721v1 61011
4.
In
2004, IEPA issued a development pennit, with conditions, in response to
Kibler's request for authorization to develop a MSWLF facility that was substantially different
from the facility for which Kibler obtained local siting approval in 1995. Kibler appealed the
pennit, challenging the conditions imposed by IEPA.
5.
Although 35 D1Adm.Code 105.116 and 35 ILCS 105.212 both require that the
Agency file a complete copy of the Record in a permit appeal, in the instant appeal, the Agency
never filed the Record.
6.
Although 35 IlI.Adm.Code 101.616 provides for discovery in a pennit appeal,
in
the instant appeal, no discovery has ever been conducted.
7.
Although 35 m.Adm.Code 105.214 and 35 TIl.Adm.Code 101.600 mandate that a
hearing
be held except under specifically enumerated circumstances, in the instant appeal, which
has been pending for four (4) years, none
of the enumerated circumstances apply, yet no hearing
has ever been conducted.
8.
Over the last four (4) years, without ever having filed the Record, conducted
discovery, or held a hearing
in
this matter, and without any public input or scrutiny whatsoever,
the pending appeal
has
been used as a smokescreen, allowing Kibler and IEPA to engage in back-
room negotiations to change the permit conditions appealed
by Kibler, and to change the size,
location, and nature ofthe proposed MSWLF facility.
9.
Upon hearing that the IEPA intended to accede to Kibler's demands, the State's
Attorney ofWilliamson County, Charles Gamati ("State'sAttorney") sought to intervene in order
to protect the public health, safety and welfare, shed light on the process by which IEPA was
improperly changing the development permit, and indeed, the overall plan for the proposed
Marion Ridge Landfill.
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70573721v1 61011
10.
Without the benefit of public scrutiny, and never having received public input,
IEPA did, in fact, accede
to
Kibler's demands. Having attained its desired objective, Kibler filed
a motion to voluntarily dismiss the action.
11.
On August 7, 2008, the Board grated Kibler's Motion to Voluntarily Dismiss, and
declared the State's Attorney's motion to intervene and represent the interests
of the people of
Williamson County to be moot.
12.
However,
by allowing Kibler to voluntarily dismiss this action in the wake of a re-
writing
of the permit appealed from, and a substantial revamping of the plans for the landfill,
behind closed doors, and
by concurrently denying the State'sAttorney's motion to intervene, the
Board effectively authorized IEPA to issue a
pennit for a municipal solid waste landfill facility
with no public input, in violation
of 415 ILCS 5/39{P).
13.
Perhaps more importantly, the Board's decision effectively authorized IEPA to
issue a development
pennit for a facility that is substantially different from the project for which
Kibler received siting approval in 1995, thereby authorizing development
of a pollution control
facility that never received local siting approval as required
by 415 ILCS 5/39.2 and 415 ILCS
5/39(c).
14.
Finally, the Board'sdecision allows IEPA
to, in the midst of an appeal challenging
a pennit, alter that pennit, thereby circumventing the Board's authority to review a challenged
decision in a pending case, in contravention to the Board'sholding in
Rochelle Waste Disposal
v.
City ofRochel/e,
PCB 07-113 at 7 (April 3, 2007) (holding that once an appeal is filed, attempts
by the decision-maker to make changes to the conditions imposed in the appealed decision are
irrelevant).
15.
For these reasons, and as more fully discussed in the accompanying memorandum
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70573721vl 6101\
of law filed herewith, the State's Attorney respectfully requests that the Board reconsider its
order entered August 7, 2008 dismissing this appeal and denying the Motion to Intervene.
WHEREFORE, WILLIAMSON COUNTY STATE'S ATTORNEY, CHARLES
GARNATI
ex reI,
People of Williamson County, for the reasons set forth herein and in the
accompanying
briefin support of this motion, respectfully requests, pursuant to 35 Ill.Adm.Code
101.520, that this Honorable Board reconsider its order
of August 7, 2008, and enter an order:
1.
Denying the motion for voluntary dismissal;
2.
Granting the State'sAttorney>s motion to intervene;
3.
Ordering that the IEPA file the complete record
in
this matter; and
4.
Directing the Hearing Officer to enter a discovery schedule and set the
matter for hearing.
Dated:
September
11,
2008
Michael John Ruffiey
Assistant State'sAttorney
Williamson County Courthouse
200 Jefferson
Marion,
IL 62959
(618) 997-5449
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Respectfully submitted>
/s/
Michael John Ruffley
70573721vl 61011
AFFlDAVIT OF SERVICE
The undersigned, pursuant to the provisions of Section 1-109 ofthe Illinois Code of Civil
Procedure, hereby under penalty
ofpeIjury under the laws ofthe United States ofAmerica,
certifies that
on September 11,2008, she caused to be served a copy ofthe foregoing upon:
Mr. John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
100 W. Randolph, Suite 11-500
Chicago,
IL 60601
therriaj@ipcb.state.i1.us
(via electronic flUng)
Melanie A. Jarvis, Assistant
COWlSel
Douglas Scott, Director
IEPA
1021 North Grand Avenue East
P.O.
Box 19276
Springfield,IL 62794-9276
Stephen F. Hedinger
Hedinger
Law Office
2601 South Fifth Street
Springfield,
IL 62703
Francis
X. Lyons
Bell, Boyd
&
Lloyd
Three First National
Plaza
70 West Madison St., Suite 3300
Chicago,
IL 60602-4207
A copy
of the same was enclosed in an envelope in the United States mail at Rockford, lllinois,
proper postage prepaid, before the
hour of 5:00 p.m., addressed
a'l:\Oye.
PCB No. 05-035
Michael John Ruffley
Assistant
State's Attorney
200 West Jefferson
Marion,
IL 62703
70572016vl 85800761011
