ILLINOIS POLLUTION CONTROL BOARD
June 21, 2001
PRAIRIE RIVERS NETWORK,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY and BLACK
BEAUTY COAL COMPANY,
Respondents.
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PCB 01-112
(Permit Appeal – NPDES, Third-Party)
ORDER OF THE BOARD (by E.Z. Kezelis):
On June 11, 2001, Black Beauty Coal Company (Black Beauty) filed a motion renewing
a request for oral argument that it originally filed with the Board on May 14, 2001. In its latest
motion, Black Beauty seeks to have the Board reconsider its order of May 17, 2001, denying the
request for oral argument. See Prairie Rivers Network v. IEPA (May 17, 2001), PCB 01-112.
Black Beauty notes that the decision deadline in this case has been extended to August 10, 2001,
thereby allowing, according to Black Beauty, enough time for the Board to entertain oral
argument and timely resolve the case.
Neither Prairie Rivers Network (Prairie Rivers) nor the Illinois Environmental Protection
Agency (Agency) has responded to this motion. The Board notes, however, that the hearing
officer has inquired of attorneys for both Prairie Rivers and the Agency and has confirmed that
neither intends to file a response. The Board also notes that Prairie Rivers initially sought oral
argument, which the Board denied in the above-referenced May 17, 2001 order. Additionally,
the Agency indicated on the record at hearing that it would not oppose oral argument in this case.
Pursuant to Section 101.500(d) of the Board’s procedural rules, unless undue delay or material
prejudice would result, the Board will not grant any motion prior to the expiration of the 14-day
response period. 35 Ill. Adm. Code 101.500(d). However, because the Board is faced with an
approaching decision deadline and because neither Prairie Rivers nor the Agency intends to
respond to this motion, the Board is acting on Black Beauty’s motion prior to expiration of the
14-day response period.
Our May 17, 2001 order had denied the requests for oral argument because no
posthearing briefs had yet been filed, and because we were unable at that time to conclude that
the issues presented would require additional argument beyond that which the parties might
present in their briefs. The Board was also cognizant of the approaching decision deadline,
which at that time was July 2, 2001.
Having now had an opportunity to review the briefs and arguments of the parties, we
conclude that oral argument would be beneficial in this matter. We further note the recent
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extension of the decision deadline to August 10, 2001, should provide sufficient time for the
Board to hold oral argument and render a timely decision at its August 9, 2001 Board meeting.
Accordingly, pursuant to Section 101.700 of the Board’s procedural rules, and in accordance
with the following guidelines, Black Beauty’s request for oral argument is hereby granted.
GUIDELINES FOR ORAL ARGUMENT
The Board hereby schedules an oral argument in this matter for Thursday, July 12, 2001,
at 10:00 a.m. The oral argument will take place before the Board in the Board’s Chicago office,
100 West Randolph Street, Room 9-040, Chicago, Illinois 60601, with Board Member Elena
Kezelis presiding for purposes of the argument. The oral argument will be transcribed by a court
reporter to be provided by the Board and will become part of the record in this case. See 35 Ill.
Adm. Code 101.700(a).
During oral argument, the Board will hear argument only from each of the three named
parties: Prairie Rivers, Black Beauty, and the Agency. The Board notes that
amicus
curiae
standing has been granted to Vermilion Coal and has been sought by the Illinois Environmental
Regulatory Group (IERG).
Amicus
standing is hereby granted to IERG. For purposes of this
oral argument, however, only the three named parties will be permitted to address the Board. In
addition to hearing the arguments of the parties, the Board Members may also ask questions to
further clarify the issues in this case. While this oral argument is, of course, open to the public
and while members of the public are invited to attend, participation in the oral argument and
questioning will be strictly limited to the three named parties and the Board Members.
The schedule of presentation will be as follows:
Petitioner Prairie Rivers – 25 minutes total
Respondents Black Beauty and Agency– 25 minutes total
Prairie Rivers shall announce at the beginning of oral argument how much of the 25
minutes allocated to it shall be reserved for reply. Respondents Black Beauty and the Agency
shall announce at the beginning of their oral argument how they have apportioned the 25 minutes
allocated to respondents.
Furthermore, the Board requests that the parties address the following specific topics in
oral argument: (1) the burden of proof and standard of review in third-party National Pollutant
Discharge Elimination System (NPDES) permit appeals; (2) the extent to which the public
should have been allowed to participate, if at all, in the permitting process after the conclusion of
the public hearing; (3) the applicability of the general water quality standards of 35 Ill. Adm.
Code 302.202 and 302.203 to Black Beauty; and (4) discussion of whether, as the Agency states
in its final brief, that whole effluent toxicity (WET) testing is typically applied in discharges that
occur during wet weather conditions, or whether, as it testified at hearing, that WET testing is
less reliable than other types of monitoring during short term wet weather discharges.
Pursuant to Section 101.700 of the Board’s procedural rules, “oral argument is to address
legal questions . . . [it] is not intended to address new facts.” 35 Ill. Adm. Code 101.700(a).
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Therefore, any analysis or argument based on data collected after the issuance of the NPDES
permit will not be considered by the Board during oral argument and is not properly within the
scope of the Board’s review of this case.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the
above order was adopted on the21st day of June 2001 by a vote of 7-0 .
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
