RECEIVED
CLERK’S OFFICE
MAR 112004
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD STATE OF
ILLINOIS
Pollution Control Board
DES PLAINES RIVER WATERSHED ALLIANCE,
LIVABLE COMMUNITIES ALLIANCE,
PRAIRIE RIVERS NETWORK, and SIERRA CLUB,
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY and VILLAGE OF NEW LENOX
Respondents.
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)
)
)
)
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PCBO4-88
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(NPDES Permit Appeal)
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NOTICE OF FILING
PLEASE TAKE NOTICE that the Illinois Chapter ofthe Sierra Club, and Prairie Rivers
Network have filed Petitioners’ Submission
Environmental Law & Policy Center
35
East Wacker Drive, Suite 1300
Chicago, IL 60601
312-795-3707
Petitioners,
v.
Albert F. Ettinger (Reg. No. 3125045)
Counselfor Petitioners
March 11, 2004
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDMAR
112004
STATE OF ILLINOIS
DES PLAINES RWER WATERSHED
ALLIANCE,
)
Pollution Control Board
LIVABLE COMMUNiTIES ALLIANCE,
)
PRAIRIE
RIVERS NETWORK, and SIERRA CLUB,
)
)
Petitioners,
)
)
v.
)
PCB04-88
)
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and VILLAGE OF NEW LENOX
)
)
Respondents.
)
PETiTIONERS’ SUBMISSION REGARDING
DISCOVERY
Petitioners submit that there should be no discovery in this case because discovery cannot
yield admissible evidence in this proceeding. If, however, it is decided that there should be
discovery, petitioners request any time for discovery be limited to six weeks afterthe decision
permitting discovery.
This case is a third party appeal of decision by IEPA regarding an NPDES permit. The
case is governed by 415 ICCS
5/40(e)
that states that the Board shall hear the petition
“exclusively on the basis of the record before the Agency.” 415 ICCS
5/40(e)
This language
limits the evidence in this appeal to the record that was before IEPA during its permit review
process. Prairie Rivers Network v IEPA and Black Beauty Coal Company (PCB 0 1-112)
Opinion and Order ofthe Board of August 9, 2001 p.10. Apparently, the purpose of the hearing
to be held in third party appeals is generally limited to presentation and highlighting ofthe
evidence in the agency record.
While conceivably there could be discovery in some third party appeal regarding what
was in the agency record or alleged tampering with the agency record, petitioners are unaware of
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any allegations in this case that make discovery as to the agency record relevant in this case.
Petitioners now have no reason to question the integrity of the record that the Agency has
presented to the Board.
Accordingly, petitioners see no purpose to discovery in this case. If, however, it is
decided that petitioners are in error on this point, petitioners seek limited discovery designed to
respond to discovery sought by respondents. Certainly, six weeks should be adequate for any
discovery allowed in this matter.
Respectfully submitted,
Albert Ettinger (Reg. No. 3125045)
Counsel for Petitioners
March 11, 2004
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CERTIFICATE OF SERVICE
I, Albert F. Ettinger, certify that on March 11, 2004, I filed the attached Petitioners’ Submission
Regarding Discovery. An original and.4 copies was filed, on recycled paper, with the illinois
Pollution Control Board, James R. Thompson Center, 100 West Randolph, Suite 11-500,
Chicago, IL 60601, and copies were served via United States Mail to those individuals on the
attached service list.
Albert F. Ettinger (Reg. No. 3125045)
Counselfor Petitioners
Environmental Law & Policy Center
35 East Wacker Drive, Suite 1300
Chicago, IL 60601
312-795-3707
March 11, 2004
SERVICE
LIST
Bradley P. Halloran
Illinois Pollution Control Board
James R. Thompson Center, Suite .11-500
100 West Randolph Street
Chicago, IL 60601
Roy M. Harsch
Sheila H. Deely
Gardner Carton & Douglas
LLP
191 N. Wacker Drive, Suite 3700
Chicago, IL 60606-1698
Sanjay K. Sofat
Illinois Environmental Protection Agency
1021 N. Grand Avenue East, Mail Code #21
Springfield, IL 62794-9276