BEFORE
    THE
    ILLINOIS
    POLLUTION
    CONTROL
    BOARD
    LERK’S
    OFFICE
    KIBLER
    DEVELOPMENT
    CORPORATION
    and
    )
    SCP
    25
    2008
    MARION
    RIDGE
    LANDFILL,
    INC.,
    )
    STATE
    OF
    ILLINOIS
    P0!
    luofl
    Control
    So
    Petitioners,
    )
    )
    v.
    )
    Case
    No.
    07-043
    )
    Permit
    Appeal
    ILLINOIS
    ENVIRONMENTAL
    PROTECTION
    AGENCY,
    )
    )
    Respondent.
    )
    PETITIONERS’
    RESPONSE
    TO
    MOTION
    FOR
    RECONSIDERATION
    NOW
    COME
    Petitioners,
    KIBLER
    DEVELOPMENT
    CORPORATION
    and
    MARION
    RIDGE
    LANDFILL,
    INC.,
    through
    their
    undersigned
    attorney,
    and
    for
    their
    response
    to
    the
    “Williamson
    County
    State’s
    Attorney,
    Charles
    Garnati’s
    Motion
    For
    Reconsideration,
    “and
    the
    memorandum
    accompanying
    that
    motion,
    state
    as
    follows:
    1.
    Petitioners’
    permit
    appeal
    in
    this
    case
    was
    filed
    on
    November20,
    2006.
    On
    July
    21,
    2008,
    Petitioners
    filed
    a
    motion
    for
    voluntary
    dismissal,
    noting
    that
    the
    permit
    appeal
    issues
    had
    been
    resolved
    between
    them
    and
    Respondent
    Illinois
    Environmental
    Protection
    Agency
    (“IEPA”),
    and
    therefore
    no
    basis
    existed
    for
    the
    continuance
    or
    further
    prosecution
    of
    the
    permit
    appeal.
    2.
    On
    that
    same
    day,
    July
    21,
    2008,
    a
    motion
    for
    leave
    to
    intervene
    was
    filed
    by
    Williamson
    County
    and
    the
    Williamson
    County
    State’s
    Attorney.
    That
    motion
    consisted
    of
    a
    two
    page,
    five
    paragraph
    document
    arguing
    that
    the
    State’s
    Attorney
    has
    standing
    to
    intervene
    in
    matters
    such
    as
    this,
    and
    that
    the
    intervention
    sought
    would
    not
    delay
    or
    prejudice
    the
    proceeding
    or
    interfere
    with
    its
    progress.
    The
    motion,
    however,
    failed
    to
    identify
    why
    the
    State’s
    Attorney
    felt
    there
    was
    a
    basis
    for
    the
    intervention,
    or
    even
    to
    provide
    such
    basic
    information
    as
    whose
    side
    the
    intervention
    was
    sought
    to
    support.
    3.
    In
    any
    event,
    this
    Board
    ruled
    by
    order
    dated
    August
    7.
    2008,
    that
    no
    basis
    existed

    for
    the
    proposed
    intervention,
    since
    by
    the
    time
    it
    was
    filed
    no
    case
    or
    controversy
    existed
    to
    support
    the
    intervention.
    Accordingly,
    this
    Board
    dismissed
    the
    permit
    appeal
    per
    the
    parties’
    request,
    and
    denied
    as
    moot
    the
    motion
    for
    intervention.’
    4.
    The
    proposed
    intervenor’s
    instant
    pleading
    now
    raises
    arguments
    not
    previously
    set
    forth
    in
    the
    motion
    to
    intervene,
    asserting
    various
    grounds
    now
    claimed
    to
    exist
    for
    the
    proposed
    intervention.
    5.
    As
    the
    motion
    for
    reconsideration
    itself
    acknowledges,
    such
    a
    motion
    is
    supposed
    to
    identify
    newly
    discovered
    evidence,
    changes
    in
    the
    law,
    or
    errors
    of
    application
    of
    existing
    law;
    oddly,
    although
    the
    motion
    for
    reconsideration
    claims
    that
    it
    is
    premised
    uon
    errors
    by
    this
    Board
    in
    denying
    the
    original
    motion
    for
    intervention,
    the
    motion
    fails
    to
    identify
    any
    argument
    or
    legal
    principle
    or
    factual
    issue
    raised
    in
    the
    motion
    for
    intervention
    which
    this
    Board
    erroneously
    applied.
    6.
    The
    fact
    is,
    this
    motion
    for
    reconsideration
    attempts
    to
    raise
    a
    host
    of
    new
    arguments
    and
    new
    reasons
    why
    the
    Board
    should
    allow
    intervention.
    It
    is
    not
    a
    motion
    for
    reconsideration
    at
    all,
    but
    instead
    might
    be
    a
    good
    first
    draft
    of
    an
    original
    petition
    for
    intervention.
    However,
    now
    it
    is
    too
    little
    and
    too
    late.
    7.
    Petitioners
    request
    finality.
    It
    is
    clear
    that
    this
    proposed
    intervenor
    is
    intent
    upon
    harassing
    Petitioners
    and
    the
    IEPA,
    and
    has
    used
    the
    motion
    for
    reconsideration
    as
    a
    vehicle
    to
    make
    unfounded
    accusations
    and
    ridiculous
    slurs
    and
    slanders
    against
    Petitioners
    and
    the
    State
    ‘This
    Board’s
    order
    indicated
    that
    Petitioners
    had
    not
    filed
    a
    response
    to
    the
    motion
    for
    intervention,
    but
    the
    Board’s
    docket
    records
    show
    that
    Petitioners’
    response
    was
    received
    by
    the
    Board
    on
    the
    very
    day
    of
    the
    Board’s
    order
    denying
    the
    intervention.
    Petitioners
    would
    note
    that
    their
    response
    was
    timely.
    First,
    it
    is
    questionable
    as
    to
    whether
    the
    motion
    for
    intervention
    was
    ever
    actually
    filed
    with
    this
    Board;
    the
    only
    indication
    of
    filing
    indicates
    that
    it
    was
    transmitted
    electronically,
    but
    nothing
    in
    the
    record
    reveals
    that
    leave
    had
    ever
    been
    granted
    to
    the
    proposed
    intervenor
    to
    file
    any
    documents
    electronically.
    35
    Ill.
    Admin.
    Code
    10
    1.302(d).
    Moreover,
    as
    the
    motion
    for
    intervention
    itself
    notes,
    it
    was
    served
    via
    mail
    on
    Petitioners
    and
    Petitioners’
    records
    reveal
    that
    the
    document
    was
    received
    on
    July
    24.
    Service
    was
    therefore
    effectuated
    on
    the
    date
    of
    its
    delivery—See
    35
    Iii.
    Admin.
    Code
    101.300(c).
    Pursuant
    to
    Procedural
    Rule
    101.500(d),
    Petitioners
    were
    entitled
    to
    file
    a
    response
    within
    14
    days
    following
    service
    (35
    Ill.
    Admin.
    Code
    101.500(d)),
    and
    Petitioners
    filed
    their
    response
    on
    August
    5,
    2008,
    less
    than
    14
    days
    after
    receipt
    of
    the
    motion.
    (S.
    35
    Ill.
    Admin.
    Code
    101.300(d)(2)
    (the
    “mail
    box
    rule”),
    indicating
    that
    the
    response
    was
    filed
    the
    date
    it
    was
    placed
    in
    the
    mail).
    In
    any
    event,
    in
    light
    of
    this
    Board’s
    ruling
    no
    reason
    existed
    for
    the
    Board
    to
    consider
    Petitioners’
    arguments
    opposed
    to
    the
    motion
    to
    the
    intervention.
    2

    agency
    given
    direct
    authority
    over
    this
    matter.
    This
    Board
    should
    deny
    outright
    this
    proposed
    reconsideration,
    and
    not
    even
    consider
    any
    of
    the
    arguments
    raised.
    8.
    To
    any
    extent
    this
    Board
    deems
    the
    matters
    included
    in
    the
    motion
    for
    reconsideration
    worthy
    of
    consideration,
    Petitioners
    would
    point
    out
    the
    following:
    A.
    Contrary
    to
    the
    proposed
    intervenor’s
    claim,
    35
    III.
    Admin.
    Code
    105.214
    and
    35
    Ill.
    Admin.
    Code
    10
    1.600
    do
    not
    mandate
    any
    hearing
    in
    this
    case.
    The
    former
    procedural
    rule
    notes
    that
    hearings
    only
    need
    to
    be
    held
    upon
    properly
    filed
    petitions
    for
    review
    that
    are
    not
    frivolous,
    and
    that
    are
    raised
    by
    a
    Petitioner
    with
    standing;
    obviously
    where
    the
    Petitioners
    have
    withdrawn
    the
    request
    for
    a
    petition,
    there
    no
    longer
    is
    “an
    appropriately
    filed
    petition
    for
    review,”
    and
    any
    hearing
    on
    it
    would
    be
    frivolous.
    The
    latter
    procedural
    rule
    simply
    addresses
    the
    conduct
    of
    the
    hearing,
    and
    does
    not
    purport
    to
    identify
    when
    hearings
    will
    be
    held
    under
    particular
    Board
    rules.
    B.
    The
    proposed
    intervenor
    complains
    of
    a
    need
    for
    some
    reason
    for
    public
    input
    and
    scrutiny,
    even
    though
    the
    parties
    are
    in
    agreement
    that
    the
    instant
    permit
    appeal
    no
    longer
    serves
    any
    purpose.
    It
    is
    clear
    that
    the
    proposed
    intervenor
    wishes
    to
    turn
    this
    permit
    appeal
    proceeding
    into
    a
    proceeding
    concerned
    with
    numerous
    other
    matters,
    none
    of
    which
    are
    relevant
    to
    the
    issues
    raised
    by
    the
    permit
    appeal.
    C.
    The
    instant
    case,
    PCB
    07-43,
    concerned
    the
    specific
    proposed
    permit
    language
    which
    was
    addressed
    in
    and
    attached
    to
    the
    petition
    for
    review.
    The
    matters
    raised
    by
    the
    proposed
    intervenor
    concern
    other
    matters
    not
    raised
    in
    or
    addressed
    by
    the
    petition
    for
    review
    in
    PCB
    07-43.
    As
    this
    Board
    states
    in
    almost
    every
    permit
    appeal
    it
    considers,
    the
    permit
    language
    at
    issue
    (whether
    denial,
    or
    challenged
    conditions)
    frames
    the
    issues
    on
    appeal.
    S
    Partylite
    Worldwide,
    Inc.
    v.
    Illinois
    EPA,
    PCB
    08-32,
    2008

    Ill.
    ENV.
    LEXIS
    70,
    at
    *9
    (March
    20,
    2008).
    Accordingly,
    the
    new
    permit
    which
    a
    proposed
    intervenor
    apparently
    wishes
    to
    review
    has
    virtually
    no
    bearing
    upon
    the
    permit
    at
    issue
    in
    PCB
    07-43.
    Moreover,
    Petitioners
    would
    point
    out
    that
    the
    proposed
    intervenor
    cites
    virtually
    no
    statutory
    authority
    for
    the
    review
    which
    it
    requests
    this
    Board
    to
    conduct.
    The
    proposed
    intervenor
    apparently
    wishes
    for
    this
    Board
    to
    act
    outside
    its
    statutory
    authority,
    which
    of
    course
    this
    Board
    is
    not
    at
    liberty
    to
    do.
    D.
    Finally,
    the
    proposed
    intervenor
    also
    appears
    to
    desire
    the
    instant
    proceeding
    as
    a
    means
    of
    obtaining
    yet
    another
    review
    of
    the
    siting
    proceedings
    engaged
    in
    for
    this
    facility
    more
    than
    a
    decade
    ago.
    Obviously
    there
    is
    neither
    statutory
    nor
    regulatory
    authority
    for
    the
    review
    sought.
    9.
    The
    original
    motion
    for
    intervention
    failed
    to
    identify
    any
    basis
    for
    intervention,
    and
    was
    not
    filed
    until
    fir
    all
    issues
    in
    the
    permit
    appeal
    were
    resolved,
    and
    after
    the
    parties
    had
    agreed
    that
    no
    purpose
    would
    be
    served
    by
    this
    Board’s
    consideration
    of
    the
    issues
    raised
    in
    the
    petition
    for
    review.
    Now
    the
    motion
    for
    reconsideration
    fails
    to
    identify
    in
    what
    way
    this
    Board
    misconstrued
    the
    earlier
    pleadings
    or
    the
    facts
    or
    law
    pertaining
    to
    those
    pleadings;
    moreover,
    on
    the
    face
    of
    the
    motion
    for
    reconsideration,
    it
    is
    clear
    that
    the
    proposed
    intervenor
    is
    attempting
    to
    obtain
    review
    over
    matters
    that
    are
    not
    reviewable
    in
    this
    situation
    by
    this
    Board.
    This
    Board
    should
    deny
    the
    request
    for
    reconsideration,
    and
    even
    if
    reconsideration
    is
    granted,
    this
    Board
    should
    reach
    the
    same
    conclusion
    as
    it
    did
    previously,
    and
    should
    dismiss
    the
    appeal
    and
    deny
    the
    motion
    for
    intervention.
    WHEREFORE
    Petitioners,
    KIBLER
    DEVELOPMENT
    CORPORATION
    and
    MARION
    RIDGE
    LANDFILL,
    INC.,
    request
    that
    this
    Board
    deny
    the
    Motion
    for
    Reconsideration,
    and
    grant
    to
    Petitioners
    all
    such
    other
    and
    further
    relief
    as
    this
    Board
    deems
    just
    and
    appropriate
    and
    available.
    4

    Respectfully
    submitted,
    Kibler
    Development
    Corporation
    &
    Marion
    Ridge
    Landfill,
    Inc.,
    Petitioners,
    By
    their
    attorney,
    HEDINGER
    LAW
    OFFICE
    By____
    Hedinger
    Law
    Office
    2601
    South
    Fifth
    Street
    Springfield,
    IL
    62703
    Telephone:
    (217)
    523-2753
    Fax:
    (217)
    523-4366
    hedinger@hedingerlaw.com

    BEFORE
    THE
    POLLUTION
    CONTROL
    BOARD
    OF
    THE
    STATE
    OF
    ILLINOIS
    CL.ERKIS
    OFFICE
    KIBLER
    DEVELOPMENT
    CORPORATION
    and
    MARION
    RIDGE
    LANDFILL,
    INC.,
    ILLINOIS
    ENVIRONMENTAL
    PROTECTION
    AGENCY,
    )
    )
    )
    Respondent.
    NOTICE
    OF
    FILING
    AND
    PROOF
    OF
    SERVICE
    The
    undersigned
    certifies
    that
    an
    original
    and
    nine
    copies
    of
    the
    foregoing
    Petitioners’
    Response
    to
    Motion
    for
    Reconsideration
    and
    of
    this
    Notice
    of
    Filing
    and
    Proof
    of
    Service,
    were
    served
    upon
    the
    Clerk
    of
    the
    Illinois
    Pollution
    Control
    Board,
    and
    one
    copy
    to
    each
    of
    the
    following
    parties
    of
    record
    and
    hearing
    officer
    in
    this
    cause
    by
    enclosing
    same
    in
    an
    envelope
    addressed
    to:
    Dorothy
    Gunn,
    Clerk
    Illinois
    Pollution
    Control
    Board
    James
    R.
    Thompson
    Center
    100W.
    Randolph
    St.,
    Suite
    11-500
    Chicago,
    IL
    60601
    Carol
    Webb
    Hearing
    Officer
    Illinois
    Pollution
    Control
    Board
    1021
    North
    Grand
    Avenue
    East,
    P.O.
    Box
    19274
    Springfield,
    IL
    62796-9274
    Michael
    Ruffley
    Assistant
    State’s
    Attorney
    200
    Jefferson
    Williamson
    County
    Courthouse
    Marion,
    IL
    62959
    Melanie
    Jarvis
    Division
    of
    Legal
    Counsel
    Illinois
    Environmental
    Protection
    Agency
    1021
    N.
    Grand
    Ave.
    East
    P.O.
    Box
    19276
    Springfield,
    IL
    62794-9276
    Hedinger
    Law
    Office
    2601
    South
    Fifth
    Street
    Springfield,
    IL
    62703
    Telephone:
    (217)
    523-2753
    Fax:
    (217)
    523-4366
    hedinger@hedingerlaw.com
    Petitioners,
    v.
    )
    )
    )
    )
    )
    )
    )
    SEP
    2
    52008
    STATE
    OF
    ILLINOIS
    POI/utron.p
    8
    ro1
    BOard
    Case
    No.
    Permit
    Appeal
    with
    postage
    fully
    prepaid,
    and
    by
    depositino
    said
    nveIopes
    in
    a
    U.S.
    Post
    Office
    Mail
    Box
    in
    Springfield,
    Illinois
    before
    5:30
    p.m.
    on
    the
    r’I
    d
    of
    September.
    2008.
    tphen
    F.
    Hedrfger
    This
    document
    prepared
    on
    recycled
    paper
    6

    Back to top