ILLINOIS POLLUTION CONTROL BOARD
    April 1, 2004
    DES PLAINES RIVER WATERSHED
    ALLIANCE, LIVABLE COMMUNITIES
    ALLIANCE, PRAIRIE RIVERS NETWORK,
    and SIERRA CLUB,
    Petitioners,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY and VILLAGE OF
    NEW LENOX,
    Respondents.
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    PCB 04-88
    (Third-Party NPDES Permit Appeal)
    HEARING OFFICER ORDER
    On March 25, 2004, all parties participated in a telephonic status conference with the
    hearing officer. The parties’ respective proposed discovery schedules were discussed. The
    petitioners argue that there should be little if any discovery allowed and that the matter should be
    set for hearing. The respondents, however, request a protracted discovery schedule.
    It was agreed by the parties that before a final and complete discovery schedule is set,
    that the parties should submit briefs on the issue of what the Board is to base its decision on and
    what constitutes the “record before the Agency” in this case. The parties were directed to file
    simultaneous opening briefs on or before April 21, 2004. Replies, if any, must be filed on or
    before April 30, 2004.
    Additional Briefing Instructions
    To more tightly focus their submissions, the hearing officer directs the parties attention to
    the following areas of concern. Each party’s brief should provide justification for the length of
    the discovery schedule proposed by that party. All parties, but particularly those arguing for a
    protracted discovery schedule, are directed to elaborate on what information they believe is
    arguably relevant, discoverable, and admissible in this proceeding that was not before the
    Agency at the time the permit was issued.
    In addressing these issues, the parties are reminded to focus both on the purposes of
    discovery and the nature of this action. 35 Ill. Adm. Code 101/616(a) provides that “[a]ll
    relevant information and information calculated to lead to relevant information is discoverable.”
    Section 39(a) provides that “it is the duty of the Agency to issue . . . a permit upon proof by the
    applicant that the facility . . . will not cause a violation of [the] Act or regulations.” In a third
    party appeal under Section 40(a)(3) such as this of a permit issued under Section 39, the third
    party petitioner has the burden of proving that the permit, as issued, would violate the Act or the
    2
    Board’s regulations. Prairie Rivers Network v. PCB
    et al
    ., 335 Ill. App.3d 391, 781 N.E.2d 372,
    379 (4th Dist. 2002),
    aff’g.
    Prairie Rivers Network v. IEPA,
    et al
    ., PCB 01-112 (Aug. 9, 2001)
    (correctness of Agency permit issuance
    aff’d
    ).
    But, case law is also clear that the relevant evidence in a Section 40(a)(3) action is not
    unlimited in scope. Section 40(a)(3)(ii) provides that the Board shall hear the petition for review
    “exclusively on the basis of the record before the Agency.” (
    See
    Prairie Rivers Network v.
    IEPA,
    et al
    ., PCB 01-112, slip op. at 10 (Aug. 9, 2001).)
    Next Status Conference
    The parties or their legal representatives are directed to participate in a telephonic status
    conference with the hearing officer on May 6, 2004, at 11:15 a.m. The telephonic status
    conference must be initiated by the petitioner, but each party is nonetheless responsible for its
    own appearance. At the status conference, the parties must be prepared to discuss the status of
    the above-captioned matter and their readiness for hearing.
    IT IS SO ORDERED.
    Bradley P. Halloran
    Hearing Officer
    Illinois Pollution Control Board
    James R. Thompson Center, Suite 11-500
    100 W. Randolph Street
    Chicago, Illinois 60601
    312.814.8917

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