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 07-43
NOTICE OF FILING
TO: SEE ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that on September 11, 2008, we electronically filed
with the
Clerk
of the Illinois Pollution Control Board, Williamson County State's Attorney, Charles
Garnati's Brief in Support
of His Motion for Reconsideration, copies of which are attached
hereto and hereby served upon you.
Dated:
September
11, 2008
Michael John Ruffley
Assistant State'sAttorney
200 West Jefferson
Marion, IL 62703
Respectfully submitted,
On behalf
of Williamson County State's
Attorney, Charles Garnati
lsi
Michael Jolm Ruffley
One
of Its Attorneys
70572021 vI 85800761011
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
KIBLER DEVELOPMENT CORP. and MARION
RIDGE LANDFILL, INC.,
Petitioners,
v.
ll.LINOIS ENVIRONMENTAL PROTECTION
AGENCY,
Respondent.
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PCB No. 07-043
WILLIAMSON COUNTY STATE'SATTORNEY, CHARLES GARNATI'S BRIEF IN
SUPPORT OF HIS MOTION FOR RECONSIDERATION
NOW COMES WILLIAMSON COUNTY STATE'S ATTORNEY, CHARLES
GARNATI
ex rel.,
People of Williamson County, pursuant to 35 TIl.Adm.Code 101.520, and for
his
Briefin Support ofhis Motion for Reconsideration, states as follows:
BACKGROUND
This action was initiated by the State's Attorney
of Williamson County ("State's
Attorney") to protect the health, safety and welfare
of the people of Williamson County.
In 1995, the Petitioners, Kibler Development Corp. ("Kibler") and Marion Ridge
Landfill,
Inc" obtained local siting approval by default when the Williamson County Board
failed to issue a decision on the Petitioner's application for landfill siting within 180 days
of the
filing
of the application. Litigation followed, as citizens challenged the siting and sought to
prevent development
of the facility.
Ultimately, the citizen-initiated litigation ended, and Kibler sought a development pennit.
However, the development pennit proposed construction
of a facility in Williamson County that
was different from the facility proposed
in 1995, for which Kibler obtained siting approval and
for which a Host Agreement had been executed.
In
2004, IEPA issued a development permit to
70573946vl 61011
Kibler, but imposed conditions designed to protect public safety. Kibler objected to the
conditions and appealed to the Board, in PCB 05-035. During the pendency
ofthat appeal, Kibler
applied, on May 2, 2006, for a pennit to modify the facility which had been approved in 1995.
The proposed modifications included,
inter alia,
changing the type of waste to be accepted at the
facility.
On October 18, 2006, IEPA denied the 2006 pennit application. Kibler appealed to the
Board, giving rise
to the instant appeal. No discovery was conducted in this appeal, and no
hearings were ever held. Instead, Kibler and IEPA engaged in back-room negotiations
concerning the permitting
of the proposed facility, without the benefit of public involvement or
scrutiny.
When the State's Attorney learned that IEPA intended to strike a deal and accede to
Kibler's demands, thereby compromising the safety and welfare of Williamson County's
citizens, and that the Agency intended to authorize development
of a facility that would violate
State and Federal law, the State'sAttorney sought to intervene.
IEPA formally agreed to Kibler's demands, and Kibler filed a voluntary motion to
dismiss this action. On August
7,2008, the Board entered an order dismissing this appeal based
on Kibler'smotion, and denied the State'sAttorney'smotion to intervene as moot.
SUMMARY OF
THE
ARGUMENT
By allowing Kibler to voluntarily dismiss this action, the Board has tacitly authorized
IEPA
to issue a development permit for a facility that never received siting approval, inasmuch
as the permit issued
by !EPA, pursuant to its closed-door negotiations with Kibler, authorizes
development
of a facility that is different from the proposed facility that was approved in 1995;
because this authorization would allow development
of a facility that never received local siting
2
70573946vl 61011
approval, the "deal" upon which voluntary dismissal is based would violate 415 ILCS 5/39(c).
The Board's Order allowing voluntary dismissal also effectively authorizes IEPA to
circumvent 415 ILCS 5/39(P), which requires notice, and public input and scrutiny, regarding the
issuance
of a pennit to develop a landfill. In addition, the Order circumvents 35 Ill.Adm.Code
105.214 and 101.600 (which mandate a public hearing except under expressly enumerated
situations, none
of which apply here).
Moreover, Supreme Court Rule 219(e) makes clear that the mechanism
of voluntary
dismissal is not available
to "avoid compliance with discovery deadlines, orders or applicable
rules."
Id.
Here, voluntary dismissal
has
been used to avoid the Board's Rules, and to evade
public input and scrutiny
in
the permit process, thereby evading the transparency in permitting
required
by Illinois law.
Finally, this Board has held that even where, in the course
of an appeal, a decisionmaker
re-thinks its prior decision, that subsequent change
of position in no way supersedes the earlier
decision, and the Board, in deciding the appeal, must review the decision that was appealed.
Rochelle Waste Disposal
v.
City ofRochelle,
PCB 07-113 at 7 (April 3, 2008).1
ARGUMENT
The purpose of a motion for reconsideration is to,
inter alia,
bring to the court's attention
«errors in the court's previous application of the existing law."
Citizens Against Regional
Landfill
v. County Board of Whiteside,
PCB 93-156 (Mar. 11, 1993) (citing
Korogluyan
v.
Chicago Title
&
Trust Co.,
213 TIl. App. 3d 622, 627, 572 N.E.2d 1154, 1158 (lst Dist. 1992»).
1 Although Rochelle Waste Disposal was an appeal of a siting decision, not a pennit appeal, the Board's
fundamental principle - that a decision.maker cannot change
its decision in the midst of a pending appeal -
presumably applies whether decision
is based upon a siting application, or upon a requested permit
modification.
3
70573946v] 61011
Here, the State's Attorney brings this Motion for Reconsideration based upon errors
In
application of existing law.
1.
The Board's Order Authorizes Issuance of a Development Permit in
Violation of 415 ILC 5/39(c).
The Illinois Environmental Protection Act vests in local governmental entities the
authority to determine the question
of siting for a proposed pollution control facility. 415 ILCS
5/39.2. That provision
of the Act requires that an applicant "submit sufficient details describing
the proposed facility to demonstrate compliance," and further provides that local siting approval
shall be granted only
if the site meets all of the criteria listed at Section 39.2.
Id.
The Act further
provides that
IEPA may not issue
a
permit for the development or construction of a new
poIIution control facility unless the applicant submits
proof to the Agency that the applicant has
obtained siting approval from the local siting authority in accordance with Section 39.2. 415
ILCS 5/39(c).
Here, the Applicant/Petitioner, Kibler, originally obtained siting approval in 1995 and
entered into a Host Agreement with the Williamson County Board, the local siting authority.
Thereafter, objectors challenged the siting approvaL Over the years, conditions surrounding the
proposed facility changed, as residential and commercial development occurred in the immediate
vicinity
of the siting area. Eventually, Kibler sought a permit to develop the proposed facility,
and IEPA issued the requested development permit, but imposed conditions designed to protect
public safety. Kibler appealed the conditions, thereby initiating PCB 05-035.
As noted above in
the introductory section, during the pendency
of the appeal in PCB 05-035, Kibler requested a
permit modifying the proposed facility. Among the modifications was a request to change the
type
of waste to be accepted at the site. IEPA denied the requested modification, and Kibler
appealed, initiating this action.
4
70S73946vl 61011
Electronic Filing - Received, Clerk's Office, September 11, 2008
During the years of negotiations between IEPA and Kibler, during the pendency of the
appeals in PCB 05-035 and 07-043, which ultimately led to Kibler's decision to voluntarily
dismiss, IEPA and Kibler decided between themselves to substantially alter the facility for which
siting approval was obtained in 1995. The parties further agreed
to change the pemtit conditions
imposed
by IEPA in 2004 (the subject of appeal in PCB 05-035). However, Williamson County,
as well as the rest
of the public, was completely shut out of the process by which those changes
were made, and the County, as well as the public, was thereby prevented from providing any
input into
the permitting process.
2
Ultimately, IEPA agreed to the changes Kibler demanded,
and Kibler filed a motion to voluntarily dismiss.
lbis ''behind-closed-doors''approach to permitting, utilizing the instant appeal as a
curtain
to shield negotiations from view, not only shut the public out of the process, it also
resulted in
a deal that incorporated the issuance of a development permit for a MSWLF facility
that is different from the facility for which siting approval was obtained. As a result, the permit
issued as part of the "deal" struck in this appeal would violate 415 ILCS
5/39(c),
inasmuch as it
purports to authorize development of a facility that never received local siting approval under
415 ILCS 5/39.2.
The Board's order dismissing this appeal, and denying the State's Attorney's motion to
intervene, thereby facilitates a violation
ofthe law. Accordingly, the Board should reconsider its
August
7, 2008 order.
2 Notably, as discussed depth below, although construction of the proposed landfill would be
in
conflict with federal
aviation law, the Federal Aviation Administration was not consulted during the negotiations either.
5
70573946v] 61011
Electronic Filing - Received, Clerk's Office, September 11, 2008
2.
The Board's Order Authorizes Issuance of a Permit in Violation of 415 ILCS
5/39(P).
The Environmental Protection Act expressly provides for public input with respect to the
issuance
of a permit for development of a MSWLF unit. 415 ILCS 5/39(P). The Act requires
that the Applicant publish notice of its application, stating,
inter alia,
the location, nature and
size of the proposed unit, the nature of the proposed activity
to
be conducted at the unit> and the
probable life
of the unit.
Id.
The Agency must thereafter accept public comment regarding the
proposed unit.
Id.
These statutory provisions clearly illustrate the legislature's intent that the
pennitting process be transparent, and that the public be allowed to participate.
Here, however, the public was prevented from participating,
or even observing, the
process as Kibler and the Agency negotiated changes to the proposed MSWLF unit, including its
size, location, and the type
of waste to be deposited at the facility. Moreover, the IEPA and
Kibler agreed that Kibler's proposed facility could be developed across an existing township
road, requiring that the road be vacated, despite the fact that the township
has
not given approval
to vacate the road.
As noted above, the Board's order allows IEPA to utilize the smokescreen of an appeal
before the PCB to shield from public view its negotiations with Kibler, which resulted
in
the
decision to re-configure the original facility through are-writing ofthe development permit and a
revamping of the plans for the facility. The Board should, therefore, reconsider its August 7,
2008 Order which rewards Kibler's misuse of the appeal process by allowing Kibler to
voluntarily dismiss the appeal after having extracted what it wanted from
rEPA.
3.
The Board's Order Allows the Parties to Ignore the Board's Procedural
Rules.
The Board's Rules mandate a hearing in an appeal, unless: the Petition is found to be
6
70573946vl 61011
duplicative or frivolous, the Petitioner would be unaffected by the facility, or the case is decided
on summary judgment. 35 1ll.Adm.Code 105.214;
see also
35 Ill.Adm.Code 101.600. None of
the conditions that would preclude a hearing is present in this case. Nevertheless, the Petitioner
has been allowed,
by the Board'sOrder of August 7, 2008, to completely avoid a hearing on the
challenged Agency decision
by filing a motion to voluntarily dismiss. The use of voluntary
dismissal to avoid compliance
with the Board'sRules is improper.
As noted above, the parties have simply ignored the Board's procedural rules, and have
misused the appeal process
by using it to surreptitiously draw a curtain across their back-room
dealings. The Board should reject this tactic, and refuse to allow the parties to evade a hearing
on the challenged decision.
4.
Review of a Permit Appeal Should Consider the Decision Appealed From,
Unaffected by the Decision-Maker'sSubsequent "Change of Heart."
The Board has previously held that where an appeal is taken, the Board must review the
decision appealed from, notwithstanding any "second thoughts" the decision-maker might later
have about its decision.
See Rochelle Waste Disposal
v.
City ofRochelle,
PCB 07-113 at 7 (April
3, 2008). As the Board reasoned in
Rochelle Waste Disposal,
it is the final decision appealed
from which is the subject of review, and once an appeal
has
been filed with the Board, a
de.cisionmaker's subsequent change
ofposition becomes irrelevant.
Id.
Here, Kibler appealed the Agency's October 18, 2006 decision denying the requested
modification, and it would be improper to allow the Agency to refonnulate its decision during
the pendency of this action. The Board should, accordingly. reconsider its order and refuse to
grant the Motion for Voluntary Dismissal.
5.
Public Policy Demands that the State'sAttorney be Permitted to Intervene in
This Action, Wherein an Applicant and the IEPA Seek to Reformulate and
7
70573946v1 61011
Reconfigure a Proposed MSWLF Unit.
The Illinois Supreme Court observed in
Pioneer Processing, Inc.
v.
E.P.A.,
102 Ill.2d
119, 464 N.E.2d 238,
79 m.Dec. 640 (1984), under the State constitution, that the Attorney
General acts as ..the law officer
of the people," observing that:
as chief legal officer
of this State, [the Attorney General] has the
duty and authority to represent the interests
of the People of the
State
to insure a healthful environment.
In
recognition of the
Attorney General's role to insure a healthful environment, he has
been given the power and authority 'to prevent air, land or water
pollution within this State by commencing an action or proceeding
in the circuit court
of any county in which pollution has been, or is
about to be, caused or has occurred, in order to have such pollution
stopped or prevented either
by mandamus or injunction. ' (citation
omitted).
If,
in fact, the Agency failed to afford the citizens of this
State the proper procedures relating
to the issuance of Pioneer's
pennit, then we believe it is only proper for the Attorney General
to be the People'srepresentative...
102
Il1.2d at 138, 464 N.E.2d at 247 (emphasis added).
The Court further observed that "there is a strong public interest in a healthful
environment," and
an Attorney General's responsibilities "embrac[e] serving or representing
broader interests
of the State."
ld.
(emphasis added).
Thereafter, in
Land and Lakes
v.
P.C.B.,
245 Ill.App.3d 631, 640, 616 N.E.2d 349, 355
(3
rd
Dist. 1993), the Illinois Appellate Court held that because a State's Attorney, like an
Attorney General, is a constitutional office-holder, he has "the duty and authority
to represent the
interests
of the People of the State to insure a healthful environment."
ld.
(quoting
Pioneer
Processing)
(emphasis added). More recently,
in
Saline Co. Landfill
v.
IEPA,
PCB 02-108
(April 18, 2002), this Board acknowledged the Appellate Court'sholding
inLand and Lakes
that
the rights
of State's Attorneys and Attorneys General are analogous.
ld.
at 3. The Board
8
70573946vl 61011
therefore held that the County should participate in the appeal because the facts suggested its
citizens "may
be materially prejudiced absent the County'sintervention."
Id.
The State's Attorney here seeks to intervene here to protect the interests of the public
with respect to a strategic decision
by the Agency to strike a deal with a landfill operator
concerning a proposed MSWLF unit to
be built in Willliamson County.
In
the course of its deal-
making, the Agency changed the pennit without affording any opportunity whatsoever for public
input. The public deserves representation and input in such decision-making, and the State's
Attorney is prepared to provide that representation.
a. The Deal Between IEPA and Kibler Violates Federal Law
The deal struck between IEPA and Kibler, on which the voluntary dismissal ofthis action
is predicated, would authorize construction
of a MSWLF within two miles of a public airport, in
violation ofFA..A-mandated setbacks and contrary
to the limitations of 49 U.S.C. § 44718(d), as
amended by section 503 of the Wendell H. Ford Aviation Investment and Refonn Act, which
prohibits siting a MSWLF within six miles
of a public airport
3
because of the serious dangers
associated with the wildlife that is almost invariably attracted
to MSWLF's. Notably, the Federal
Aviation Administration (FAA) was never consulted or provided with the opportunity to give
input into the negotiations that resulted in a pennit authorizing development
of a landfill facility
that would violate federal aviation law.
Pursuant to 49 U.S.C. §44718(d), it
is unlawful to construct or establish a MSWLF within
six miles
of certain smaller public airports (a category that includes the Williamson County
Regional Airport). This prohibition was enacted because
of the high incidence of collisions
3 (without obtaining an exemption waiver)
9
70573946vl 61011
between aircraft and birds, including gulls, waterfowl) and raptors, which are attracted to
MSWLF facilities. Here, the bird-strike situation is even more critical because of the site's close
proximity
to a wildlife sanctuary. As noted above, the
FAA
was not consulted or allowed to
provide input in the negotiations that resulted in the decision to authorize development of the
landfill in conflict with 49 U.S.C. §44718(d).
In
light of these circumstances, the interests of the public require representation by the
State'sAttorney.
b.
The Deal Between IEPA and Kibler Violates State Law.
The deal struck between IEPA
and Kibler, on which the voluntary dismissal ofthis action
is predicated, also authorizes construction of a MSWLF facility across a public township road
(Crenshaw Road), despite the fact that
a petition to vacate Crenshaw Road has been rejected by
the County Superintendent
of Highways. Even if Williamson County wished to vacate Crenshaw
Road, it is not lawfully able to decide to close a township road, because such closure is subject to
State law procedures.
See
605 ILCS 5/6-303, 6-305, and 6-306.
In
addition, there is no evidence
that IEPA ever analyzed the public health, safety, welfare, or other impacts that would result
from the closure
of Crenshaw Road, or, the changes that would have to be made to the landfill if
Crenshaw Road could not be closed and the proposed landfill was to be constructed without
closure. Again, the interests
of the people must be represented where such action is
contemplated.
c. This Case Raises Issues Similar to Those Raised in
Pioneer Processing.
In
Pioneer Processing,
the Supreme Court criticized the Agency's decision to issue a
permit predicated, at least in part, on evidence not adduced during public hearings. 102
I11.2d at
140-41, 464 N.E.2d at 248. The Court explained that where Agency decision-making occurs
10
70573946vl 61011
without the benefit ofpublic scrutiny, it seemingly moots the purpose behind public hearings.
ld.
The Court further observed that the legislature did not impose the public hearing requirement in
order to create only the
illusion
that public scrutiny is vital to the decision-making process.
ld.
Here, in order to dispose of troublesome litigation, the Agency made a tactical decision to
unilaterally alter the permit for development of Marion Ridge Landfill. In so doing, the Agency
made changes that violate State and Federal law. As noted above, the resulting permit
authorized the pennittee to begin construction
of a MSWLF within two miles of the Williamson
County Regional Airport, notwithstanding the fact that FAA setbacks and the Ford Act expressly
prohibit such construction. The permit also changed the type of waste to be disposed of at the
site, in contrast with the type of waste approved by the local siting authority, thereby effectively
depriving the local siting authority
of its statutory right under 415 ILCS 5/39.2 to approve or
deny siting based on the statutory criteria.
Finally, the altered permit is predicated on the vacation
of Crenshaw Road, despite the
fact that the County Superintendent
of Highways previously determined that Crenshaw Road
could not be vacated, despite the fact that IEPA has conducted no inquiry into the health or
safety impacts
of closing the road, and in disregard of the statutory procedures that govern the
closure oftownship roads.
The decision to effectuate these unilateral pennit alterations without allowing any input
whatsoever from the public, in violation
of State and Federal law, and in derogation of the local
siting approval under Section 39.2, not only violates the law, it places the safety and welfare
of
the people of Williamson County at risk.
For these reasons, the State's Attorney has a duty to represent the interests
of the people,
and has sought to exercise that duty
by intervei1.ing to represent those interest in what has
11
70573946vl 610ii
purported to be an appeal requesting Board review of the Agency's decision. The Board should
review the challenged permit decision, notwithstanding the Agency's subsequent "change of
heart," in confonnance with the reasoning articulated just this year in
Rochelle Waste Disposal.
Because the Board's order granting voluntary dismissal without a review of the challenged
decision is at odds with the law as articulated by the Board in
Rochelle Waste Disposal,
the
Board should reconsider its Order entered August 7,2008.
Conclusion
For the foregoing reasons, the Petitioner respectfully suggests that the Board's Order
granting Kibler's Motion for Voluntary Dismissal and denying the State's Attorney's Motion to
Intervene as moot reflect an error in the application of existing law, and the Board is accordingly
urged to reconsider its August 7, 2008 Order, and to enter an Order denying the Motion for
Voluntary Dismissal, granting the State's Attorney's Motion to Intervene, and ordering that
discovery be conducted, and that the matter be set for hearing.
WHEREFORE, WILLIAMSON COUNTY STATE'S ATTORNEY. CHARLES
GARNATI
ex rei,
People of Williamson County, respectfully requests, pursuant to 3S
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'smotion to intervene; and
3.
Directing the Hearing Officer to enter a discovery schedule and set the
matter for hearing.
12
70573946vl 61011
Dated:
September 11, 2008
Michael John Ruffley
Assistant State'sAttorney
Williamson
Cm.mty Courthouse
200 Jefferson
Marion,
IL
62959
(618) 997-5449
13
Respectfully submitted,
/s/
Michael John Ruffley
70573946v1 61011
AFFIDAVIT 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 filing)
Melanie
A.
Jarvis, Assistant Counsel
Douglas Scott, Director
!EPA
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
A copy ofthe same was enclosed in an envelope in the United States mail at Rockford, Illinois,
proper postage prepaid, before the hour
of 5:00 p.m.,
addreSSed~aS~bove.
i...
7,-<-..
"~.V\!
~
L-'/:Dt.<._.9....e:-.
~
........
_
PCB No.
07~043
Michael John Ruffley
Assistant State'sAttorney
200 West Jefferson
Marion, IL 62703
70572017vl 85800761011
