CERTIFICATE OF SERVICE

BEFORE THE LLINOIS POLLUTION CONTROL BOARDCLERK’S

APR 1 4

OFFICE

2003

STATE OF ILUNOIS

IN THE MATTER OF:

)

Pollution Control Board

PROPOSED AMENDMENTS TO:

)

PART 309 SUBPARTA-

)

Iii. Adm Code 309.105, 309.7, 309.8,

)

309.9, 309.10, 309.12, 309.13, 309.14,

)

R03-19

309.117, 309.119, 309.143, 309.147; and

)

PROPOSED

Ill.Adm, Code 309.120

)

through 122- NPDES PERMITS AND

)

PERMITTING PROCEDURES

)

NOTICE OF FILING

PLEASE TAKE NOTICE that the Environmental Law and P~licyCenter ofthe Midwest,

Illinois Chapter ofthe Sierra Club, and Prairie Rivers Networkhave filedtheir Response to

IERG’s motion for a Third Hearing.

Albert F. Ettinger (ARDC 3125045)

Counselfor Petitioners Environmental Law & Policy

Center, Prairie Rivers Network and Sierra Club

Environmental Law & Policy Center

35 E. Wacker Dr. Suite 1300

Chicago, Illinois 60601-2110

312 795 3707

April 14, 2003

REC~tVED

CLERIc5 OFFICE

/~PR1 4 2003

BEFORE THE ILLINOIS POLLUTION ~

Pollution Control Board

IN THE MATTER OF:

)

PROPOSED AMENDMENTS TO:

)

R03-19

PART 309 SUBPART A

)

Iii. Adm. Code

309.105,

309.7, 309.8

)

309.117, 309.119, 309.143, 309.147; and

)

PROPOSED 35 Iii. Adm. Code 309.120 through

)

122

NPDES PERMITS AND PERMITTiNG

)

PROCEDURES

RESPONSE

TO IERG MOTION FOR A THIRD HEARING

Without a trace or shame or even irony, the Illinois Environmental Regulatory

Group (“IERG”) has asked for a

third

hearing in this proceeding although IERG has

argued repeatedly that persons seeking to prevent improper discharges ofpollutants into

Illinois waters should never be allowed even a

second

hearing.

This rulemaking proceeding is important and the Board should certainly allow all

interested parties a full opportunity to comment. The potential evil that IERG and other

members ofthe regulated community seek to avoid through their participation in this

proceeding is not trivial. Ifthis Board were to adopt rules that lead to unnecessary

safeguards for public participation in the issuance ofNational Pollutant Discharge

Elimination System (“NPDES”) permits, there could be some unnecessary delay in the

issuance ofpermits. Such delay could cost permit applicants some money.

On the other hand, hasty or under-informed issuance ofan improper NPDES

permit can result in exposure ofhumans or wildlife to pathogens, toxins or other

potentially lethal pollutants. Granting IERG’s request for a third hearing would further

delay the enactment ofrules necessary to ensure that citizens seeking to prevent issuance

ofimproper permits have a full opportunity to work to protect public health and Illinois

rivers, lakes and streams.

While these proceedings are prolonged, the Illinois Environmental Protection)

Agency continues to make decisions on numerous NDPES permits every month.

Petitioners were informed at the April 2, 2003 hearing that granting a third hearing would

mean that the current unsatisfactory situation regarding public participation would be

extended at least three months. IERG has not proposed a moratorium on permit issuance

for the period during which these proceedings would be delayed to accommodate IERG’s

third hearing request and, ofcourse, no such moratorium can be granted.

In addition to the need expeditiously to establish rules that assure an opportunity

forpublic participation in the permitting process, a number ofother factors weigh against

IERG’s motion.

IERG had well over two months after the January 13, 2003 filing ofthe

Petition to formulate its position. In fact, IERG had over five months to contemplate its

position. Last fall, petitioners presented a draft ofthe petition to IERG and other

interested parties that was little different from what petitioners later filed. Petitioners also

answered questions regarding the draft petition at an October 2, 2002 meeting held by

IEPA and attended by an IERG representative.

It is not as though no one with IERG’s concerns has been able to testify.

Five witnesses concerned about potential delays in permit issuance testified at the April

2, 2003 hearing.

IERG itself may still comment on the petition through a written

submission. The closing date for written comment has not been set. Petitioners suggest,

however, that no more than thirty days be granted for written comment afterthe date of

the Board’s decision on IERG’s motion.

IERG’s alleged concern that a transcript ofthe first hearing was not

available prior to the second hearing is inflated. IERG counsel was present at the first

hearing (and the meeting last October) and had plenty ofopportunity to learn about the

details of the petition. The Board has never required that witnesses give transcript

citations as part oftheir testimony. Transcripts from both hearing will be available foruse

by IERG and others in submitting written comments.

As the Board heard at the April 2 hearing, the parties interested in this

proceeding are attempting to reach agreements as to some elements ofthe petition and

hope also to find ways to narrow the issues that remain for the Board’s consideration.

This is not a reason for a third hearing. Any agreements reached through discussions can

be most easily presented to the Board in written form. Counsel for the parties, if they are

even moderately diligent, can confer and present any agreements or reformulated

positions to the Board by June 1, 2003.

Still further, under Board procedures, IERG will have an opportunity to

comment on whatever First Notice Order is issued by the Board. In stark contrast to the

situation ofmembers ofthe public attempting to protect their waters by commenting on

draft NPDES permits, IERG can count on receiving this additional opportunity for

comment and a hearing no matter how much or little the Board’s final language varies

from the language on which IERG was first given an opportunity to comment.

Wherefore, petitioners ask that IERG’s motion for a third hearing be denied and

that a date be set for submitting written comments no later than June 1.

Respectfully submitted,

Albert F. Ettinge

Counselfor Petitioners Environmental

Law & Policy Center, Prairie Rivers

Network and Sierra Club

Dated:

____________

R03-19 Service List

Amendments to Part 309 Subpart A

April 14, 2003

Tipsord

Marie

Wesseihoft

Charles

Blackwell Sanders Peper Martin, LLP

Downers Grove Sanitaiy District

Assistant Attorney General

Environmental Bureau North

Attorney, Pollution Control Board

Ross & Hardies

address

2300 Main, Suite 1000

2710 Curtiss Street

Lname

fname

company

citystate

Zip

Blanton

Cox

Daugherty

Donahue

Ettinger

Franzetti

Frede

Gunn

Harrington

Harsch

Hill

Hodge

Hubbard

Keady

McKinley

Messina

Polls

Powers

Rosenberg

Schulz

Sullivan

Sofat

Tonsor

Sternstein

w.C.

Larry

James

John

Albert

Susan M.

Lisa M.

Dorothy

James T.

Roy M.

Ron

Katherine

FredL.

Frederick D.

Vicky

Robert A.

Irwin

Erika K.

Michael 0.

Sue A.

MaryG.

Sanjay

Connie

Joel

Thom Creek Sanitary

District

City of Geneva

Environmental

Law

& Policy Center

Sonnenschein Nath & Rosenthal

Chemical Industry Council

Clerk, Pollution Control Board

Ross & Hardies

Gardner, Carton & Douglas

Metropolitan Water Reclamation District

Hodge Dwyer Zeman

Attorney At Law

Vermilion Coal Company

Evanston Environment Board

Illinois Environmental Regulatory Group

Metropolitan Water Reclamation, Dist. Of Chicago

Barnes & Thornburg

Metropolitan Water Reclamation District

General & Associate Corporate Counsel

Illinois-American Water Company

Illinois Environmental Protection Agency

Kansas City,

MO

Downers Grove,

Illinois

ChicagoHeights,

IL

Geneva, Illinois

Chicago, Illinois

Chicago, Illinois

Des Plaines, Illinois

Chicago, Illinois

Chicago, Illinois

Chicago, Illinois

Chicago, Illinois

Springfield, Illinois

Danville, Illinois

Glenview, Illinois

Evanston, Illinois

Springfield, Illinois

Cicero, Illinois

Chicago, Illinois

Chicago, Illinois

Belleville, Illinois

64108

60515

60411

60 134

60601-2110

60606

60018

60601

60601

60606

60611

62705-5776

61834-0012

60025-0688

60202

62701

60804

60201

60611

62223-9040

700 West End Ave.

1800 South Street

35 E. Wacker Drive, Suite 1300

8000 Sears Tower

250 East Devon Ave., 

Suite 239

100 West Randolph, 

Suite 11-500

150 North Michigan, 

Suite 2500

Suite 3700, 191 North Wacker Drive

100 East Erie

3150 Roland Avenue, P0 Box 5776

415 North Gilbert Street, P0 Box 12

1979 Johns Drive, P0 Box 688

223 Grey Avenue

215 East Adams Street

6001 West

10 South LaSalle, Suite 2600

100 East Erie Street

300 North Water Works Drive

P0 Box 24040

1021 North Grand Ave. 

East

188 West Randolph 

Street,

20th

Floor

100 West Randolph, 

Suite 11-500

150 North Michigan

Springfield, Illinois

62794-9276

Chicago, Illinois

60601

Chicago, Illinois

60601

60601

CERTIFICATE OF SERVICE

I, Albert F. Ettinger, certify that on April 14, 2003, I filed the attached Response to IERG

Motion for a Third Hearing. An original and 9 copies ofthe response was filed with the Illinois

Pollution Control Board, James R. Thompson Center, 100 West Randolph, Suite

11-500,

Chicago, IL 60601, and copies were also served via United States Mail to those individuals on

the attached service list.

Albert F. Ettinger

Environmental Law and Policy Center

35 East Wacker Drive, Suite 1300

Chicago, IL 60601

(312) 795 3707