RECEIVED
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOAR~LERR’SOFFICE
IN THE MATTER OF:
)
PROPOSED AMENDMENTS TO:
PUBLIC PARTICIPATION RULES IN 35
ILL. ADM. CODE PART 309 NPDES
PERMITS AND PERMITTING
PROCEDURES
)
)
)
)
)
I4PR 292003
STATE OF ILLINOIS
RO3-19
Pollution Control Board
(NPDES Rulemaking)
NOTICE OF FILING
TO:
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
(VIA AIRBORNE
EXPRESS)
Marie E. Tipsord
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
(VIA AIRBORNE EXPRESS)
(PERSONS ON ATTACHED SERVICE LIST)
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk of the
Illinois Pollution Control Board an original and nine copies of a
MOTION FOR
LEAVE
TO FILE REPLY TO PETITIONERS’ RESPONSE TO
IERG’S
MOTION
FOR A THIRD HEARING,
copies ofwhich are herewith served upon you.
Robert A. Messina
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP
3150 Roland Avenue
Springfield, Illinois 62703
(217) 523-4942
Respectftilly submitted,
ILLINOIS ENVIRONMENTAL
TORY GROUP,
Dated: April 28, 2003
THIS
FILING
SUBMITTED ON RECYCLED PAPER
CERTIFICATE OF SERVICE
I, Robert A. Messina, hereby certify that I have served copies ofthe foregoing MOTION
FOR LEAVE TO FILE REPLY TO PETITIONERS’ RESPONSE TO IERG’S MOTION FOR
A THIRD HEARING upon:
W.C. Blanton, Esq.
Blackwell Sanders Pepper Martin LLP
2300 Main Street
Suite 1000
Kansas City, Missouri 64108
Mbert Ettinger, Esq.
Environmental Law & Policy Center
35
East Wacker Drive, Suite 1300
Thicago, Illinois 60601-2110
~vIr.Ron Hill
~vIetropolitan
Water Reclamation District
100 East Erie
Thicago, Illinois 60611
\‘ls, Vicky McKinley
~vanstonEnvironmentBoard
~23Grey Avenue
~vanston,Illinois 60202
Vir. Sanjay Sofat
Vis. Connie Tonsor
:ninois EPA
021 North Grand Avenue East
yost Office Box 19276
;pringfield, Illinois 62794-9276
Vir. Larry Cox
)owners Grove Sanitary District
~710Curtiss Street
)owners Grove, Illinois 60515
Ms. Susan M. Franzetti
Sonnenschein Nath & Rosenthal
8000 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
James T. Hanington, Esq.
Ross & Hardies
150 North Michigan
Suite 2500
Chicago, Illinois 60601
Joel Stemstein, Esq.
Assistant Attorney General
Environmental Bureau North
188 West Randolph Street
20th Floor
Chicago, Illinois 60601
Mr. John Donahue
City ofGeneva
1800 South Street
Geneva, Illinois 60134
Ms. Lisa M. Frede
Chemical Industry Council of Illinois
9801 West Higgins Road, Suite 515
Rosemont, Illinois 60018
Fred L. Hubbard, Esq.
Attorney atLaw
415 North Gilbert Street
Post Office Box 12
Danville, Illinois 61834-0012
Mr. Irwin Polls
Metropolitan Water Reclamation District
6001 West
Cicero, Illinois 60804
~yplacing said documents in the United States Mail in Springfield, Illinois, postage prepaid, on April 28, 2003; and upon:
~s. Dorothy M. Gunn
Clerk, Pollution Control Board
100 West Randolph Street
suite 11-500
Chicago, Illinois 60601
\4arie Tipsord, Esq.
ilinois Pollutien Control Board
100 West Randolph Street
uite 11-500
Chicago, Illinois 60601
iia Airborne Express on April 28, 2003, in Springfield, Illinois.
Robert A. Messina
ERG:OO1IR Dockets/FiI/R-O1 3/COS
—
Motion for Leave
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
PROPOSED AMENDMENTS
TO:
)
R03-19
PUBLIC PARTICIPATION RULES IN 35
)
(NPDES Rulemaking)
ILL. ADM. CODE PART
309 NPDES
)
PERMITS AND PERMITTING PROCEDURES
)
)
MOTION FOR LEAVE TO FILE REPLY TO
PETITIONERS’ RESPONSE TO IERG’S MOTION FOR A THIRD HEARING
NOW COMES
the ILLINOIS ENVIRONMENTAL REGULATORY GROUP
(“IERG”)
by and through one ofits attorneys, Robert A. Messina, pursuant to 35 Ill.
Admin. Code
§
102.402, and for its Motion for Leave to File Reply, states as follows:
1.
On March 26, 2003, IERG filed with the Illinois Pollution Control Board
(“Board”) a Motion to request a Third Hearing in the above-captioned matter.
2;
On April 14, 2003, Petitioners filed their Response to that Motion.
3.
In their objection, Petitioners argue that IERG has not sufficiently
explained its reasons for requesting a Third Hearing. Further, in their Response,
Petitioners make arguments that are contradicted by Petitioners’ own testimony before
the Board in this matter.
4.
IERG has not addressed the issues raised by the Petitioners in its Motion
to request a Third Hearing, and feels that if it is given the opportunity to address these
issues, the Board will be better able to rule on that Motion.
5.
For the reasons cited above, IERG respectfully moves the Board for leave
to file a Reply to Petitioners’ Response to IERG’s Motion for a Third Hearing.
6.
A copy of IERG’s Reply is attached hereto as Exhibit A.
7.
IERG hereby moves the Board to grant this Motion and deem its Reply
filed as ofthe datethat the Board grants this Motion.
8.
Granting this Motion will not delay the Board’s consideration ofIERG’s
Motion to Request a Third Hearing.
9.
IERG does not make this Motion for purposes of delay or for any other
improper purpose, but rather forthe reason stated above.
WHEREFORE, the ILLINOIS ENVIRONMENTAL REGULATORY GROUP
respectfully prays that the Illinois Pollution Control Board grant its Motion for Leave to
File Reply and for such other relief as is just an4 proper.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
By:___________
‘~
Robert A. ~4’essina
Dated: April 28, 2003
Robert A. .Messina, Esq.
ILLINOIS ENVIRONMENTAL REGULATORY GROUP
3150 Roland Avenue
Springfield, Illinois 62703
(217) 523-4942
IERG:OOl/Fil/Motion for Leave to File R
2
BEFORE
TIlE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER
OF:
)
)
PROPOSED AMENDMENTS TO:
)
R03- 19
PUBLIC PARTICIPATION RULES IN 35
)
(NPDES Rulemaking)
ILL. ADM. CODE PART 309 NPDES
)
PERMITS AND PERMITTING
)
PROCEDURES
)
REPLY TO PETITIONERS’ RESPONSE TO
IERG’ S MOTION FOR A THIRD HEARING
NOW COMES
the ILLINOIS ENVIRONMENTAL
REGULATORY GROUP
(“IERG”), by and through one ofits attorneys, Robert A. Messina, pursuant to 35 Ill.
Admin. Code
§
102.402, and hereby respectfully replies to the. response filed by the
Environmental Law and Policy Center ofthe Midwest, Illinois Chapter of the Sierra
Club, and Prairie Rivers Network (“Petitioners”) opposing IERG’s request for a Third
Hearing. Without a trace of shame or even irony, IERG states as follows:
1.
On March 26, 2003, IERG filed with the Illinois Pollution Control Board
(“Board”) a Motion to Request a Third Hearing in the above-captioned matter. IERG
filed that motion for a number of reasons, but primarily for the purpose ofproviding
sufficient time to review the hearing transcript, prepare detailed, meaningful testimony
for submittal to the Board, and to meet with the Illinois Environmental Protection Agency
(“Illinois EPA”) to discuss its intention to modify the proposed language and to analyze
the impact ofthe language on IERG’s member companies.
2.
On April 14, 2003, the Petitioners filed a response to that motion. Counsel
for the Petitioners makes much ado in his response about the amount oftime IERG had
to
review the Petitioners’ proposal. That IERGhad several months to review the initial
proposal is a correct assertion. What the Petitioner fails to mention is the amount oftime
EXHIBIT A
IERG and the other stakeholders had to review the
first draft ofthe Illinois EPA’s
proposal before the second hearing. For
IERG,
this time consisted ofa few days; for
other stakeholders, this consisted ofhours.
3.
Ofprimary concern to IERG and itsMembers, however, is the possible
inclusion ofnew language drafted by the Illinois EPA in the Board’s proposal issued at
first notice. Ifincluded by the Board, this language would introduce a mechanism and
concepts that have never been the subject oftestimony by the Illinois EPA or cross-
examination by interested stakeholders, such as counsel for the Petitioners. To the
Illinois EPA’s credit, it has spent considerable time and effort meeting with the various
stakeholders to explain its position on all ofthe issues raised by the Petitioners’ proposal
and, particularly, the re-notice mechanism that they have crafted. IERG believes, without
detailing the entire rulemaking process and the policy behind its various steps and
accompanying safeguards, that the Board has sought’ to create a pre-First Notice process
whereby it can accept a proposal, take testimony, and allow for interested parties to cross-
examine those who testify, in an effort to develop a well thought out regulatory proposal
that, to the extent possible, was crafted in light ofthe concerns ofall ofthe stakeholders.
IERG wholeheartedly agrees with the policies behind this approach and believes that the
Board should use this same approach in this rulemaking.
4.
Evidently, Petitioners also agree that this pre-First Notice process is a
sound one. Counsel for IERG has searched for the Petitioners’ objection to the Board’s
scheduling oftwo hearings before issuing its First Notice Opinion Order. Shockingly,
despite continuing Illinois EPA “decisions on numerous NPDES permits every month,” I
have found no such objection. Perhaps, this silence is because counsel for the Petitioners
2
recognizes the importance and value to the Board and the various stakeholders ofsuch
hearings before the Board accepts the proposal and makes it its own. Perhaps he simply
forgot to object to those hearings as well.
5.
Counsel for the Petitioners also urges the Board to deny IERG’s motion on
the grounds that untold numbers of permits will continue to be issued by the Illinois EPA
under its current, allegedly deficient, program. While recognizing that no such action
could be taken by the Board, counsel chides IERG for not requesting a moratorium on the
issuance ofsuch permits during this rulemaking. Of course, the Petitioners too were
silent on such a moratorium, raising the question ofwhy it was even included in the
response. But more importantly, this concern is contradicted by Petitioners’ own
testimony before the Board in this matter. On numerous occasions, counsel suggested
that these changes would not have much affect on the day-to-day operations ofthe
Agency, as it is only the rare case when this proposal would come in to play
(See,
i.e.,
page 8, line 8 or page 38, line 15, Transcript ofMarch 17, 2003, hearing). Ifwhat
counsel for the Petitioners says is true, then the chance that the issues in this rulemaking
will arise in the near future is small, and no harm will come from allowing the Board to
hold a third hearing to consider testimony and examination on new language that the
Board has not previously seen.
6.
Finally, there is not currently a deadline by which the Board is required to
adopt the regulations proposed in this rulemaking. There is no pending notice of
deficiency from the United States Environmental Protection Agency threatening
withdrawal ofits delegation, because that Agency has not identified any shortcomings
with the State ofIllinois’ National Pollutant Discharge Elimination program. As such, no
3
material prejudice would result ifthe Board were to grant IIERG’s Motion, and hold a
Third Hearing in this matter.
WHEREFORE, for the above and foregoing reasons, ILLINOIS
ENVIRONMENTAL REGULATORY GROUP respectfully requests the Illinois
Pollution Control Board hold a Third Hearing in the above-referenced matter.
Respectfully,
ILLINOIS ENVIRONMENTAL
REGULATORY GROUP,
By:
4177 ~
Ro ert A. Me~ina
Dated: April 28, 2003
Robert A. Messina, Esq.
Illinois Environmental Regulatory Group
3150 Roland Avenue
Springfield, Illinois 62703
(217) 523-4942
IERG:OO1/Fil/Third
Hearing Reply
4