RE C
~ r~v
E
CLERK’S OFRCE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
APR 262004
STATE OF
ILUNOIS
DES PLAINES RIVER 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.
)
NOTICE OF FILING
PLEASE TAKE NOTICE that the Illinois Chapter ofthe Sierra Club, and Prairie Rivers
Network have filed PETITIONERS’ SUBMISSION IN RESPONSE TO THE HEARING
OFFICER ORDER OF APRIL 1, 2004.
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~,
Albert F. Ettinger (Reg. No. 3125045)
Counselfor Petitioners
Environmental Law & Policy Center
35 East Wacker Drive, Suite 1300
Chicago, IL 60601
312-795-3707
April 26, 2004
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDAPR
262004
STATE
OF ILLINOIS
Pollution Control Board
DES PLAINES RIVER WATERSHED ALLIANCE,
)
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
)
)
PETITIONERS’ SUBMISSION IN RESPONSE TO THE HEARING OFFICER ORDER OF
APRIL 1, 2004
In compliance with the Hearing Officer Order of April 1, 2004, Petitioners hereby submit
further justification for the discovery schedule that was proposed by Petitioners on March 11,
2004 in this matter. We continue to see no reason for discovery in this case. Given the clear
language ofthe governing statute, it appears that any discovery would be wasteful.
A. The petition must be heard “exclusively on the basis ofthe record before the Agency.”
In interpreting a statute one must, ofcourse, begin by looking at the language of the
statute. Michigan Avenue Nat’l Bank. v. County of Cook, 191 Ill. 2d 493, 503, 732 N.E. 2d 528,
535 (2000). This case is a third party appeal ofdecision by IEPA regarding an NPDES permit.
The case is governed by 415 ILCS 5/40(e) that states that the Board shall hear the petition
“exclusively on the basis of the record before the Agency.” It is apparent that no party to this
proceeding can use any document, testimony or data that is not part of the Agency record.
415 ILCS 5/40(e) has been applied by the Board to hold that only matters that were
actually before the Agency at the time it made its decision may be considered by the Board in a
1
Third Party permit appeal. The Board, in the Prairie Rivers Network v. IEPA and Black Beauty
Coal Company (PCB 01-112) Opinion and Order of the Board of August 9, 2001 pp.10,
25,
noted that it was “bound by the clear directives ofSection 40(e)(3)” and affirmed the hearing
officer’s decision to limit evidence “to the record that was before IEPA at the time the permitting
decision was made.”
Although not decided under Section 40(e), Community Landfill Company v. City of
Morris, 2001 111. Env. Lexis 553 (December 6, 2001) is also instructive. In that case numerous
decisions by the hearing officer to exclude evidence that was not before the Agency at the time it
made its decision were affirmed. The only exception recognized by the Board in Community
Landfill was related to a rare circumstance in which the party offering the testimony had no
practical opportunity to offer testimony on the issue before the permitting decision had been
made. No party claims anything of the sort happened in this case. Obviously, both of the
respondents in this case had a full opportunity to put anything into the record in support of the
permit that they wished to offer. The applicant had this right at least up to the close of the public
comment period and, under Agency practice, the Agency could add materials to the record even
after the close of the public comment period that ended petitioners’ ability to comment.
It might be suggested that the Board is free to hear testimony outside of the hearing
record in appeals heard under Section 40(e) as long as the issue was raised during the permit
proceedings. This ignores the clear language of the statute that limits appeals to issues raised
“during the public notice period”
~
states that the Board should hear the appeal “exclusively
on the basis of the record” before the Agency. 40(e)(2)(A), 40(e)(3)(iii) This proceeding is not
only limited to the issues raised in the record, it is limited to the evidence in the record.
2
The statute contemplates that everyone with something to say about the permit will do so
during the public comment period. In this case, the applicant did not testify at the hearing, ask
any questions at the hearing or apparently even bother to attend the hearing. Further, the
applicant did not attempt to respond to the questions, raised by petitioners at the hearing, or
supplement the record after the hearing during the comment period orthereafter. That the
applicant may now regret its use ofthis stratagem does not change the clear language of the law.
Under the governing statute everything that may be raised in the appeal proceeding must
be part of the Agency record. Apparently, the purpose of the hearing to be held before the Board
in third party appeals is to present arguments based on the Agency record as the record is defined
at 35 Ill. Adm. Code 105.212.
In short, at the hearing and in any subsequent briefing allowed by the hearing officer, all
the parties will be free to argue what they wish from the permit record as it has been presented
by the Agency. There is no need or possibility for discovery given that everything that is relevant
is already in plain view in the Agency record.
B. It is petitioners’ burden to show that the issue was issued improperly.
With regard to standard for decision, the governing statutes are againfairly clear. 415
ILCS 5/40(e)(3) states that the “burden of proofshall be on the petitioners.” This means the
petitioners have the obligation to show that the permit was issued improperly either because
proper procedures were not followed in issuing the permit orbecause the permit as issued
violates the Environmental Protection Act or the regulations issued under that Act. Prairie Rivers
Network v. Black Beauty Coal Company, 335 111. App. 3d 391, 781 N.E. 2d 372, 379-80
(4th
Dist. 2002)
3
It is, perhaps, unusual for a statute to speak ofa “burden of proof” with regard to a
proceeding that will only involved presentation oftestimony and documents contained in an
Agency record. But whetherit is usual or not, it seems clear in this case that the Board is
supposed to look at the record that was before the Agency and decide the issues as the Agency
should have done. Of course, given that the burden is on the petitioners, petitioners must show
that it is more likely than not that the permit should not have been issued on the basis of the
Agency record.
Under 415 ILCS
5/39(a),
the Agency shall issue a permit “upon proofby the applicant
that the facility
...
will not cause a violation of the Act or regulations.” This statutory language
bears on one of the ways in which petitioners may show that the permit was improperly issued. If
the record does not show that the applicant proved that the facility would not cause a violation of
the Act or regulations, the permit must be overturned. Of course, the applicants are then free to
reapply and perhaps offer more evidence showing that the permit will not cause a violation of the
Act or regulations in renewed Agency proceedings.
CONCLUSION
Wide ranging discovery in this case might allow petitioners to cross-examine the
applicant’s officials responsible for the application and the consultants who wrote the applicant’s
reports, none of whom appeared at the public hearing. It would allow petitioners to probe
thoroughly the logic of Agency and its internal memos and responses to public comments. If it is
decided that discovery is appropriate in this case, petitioners will wish to participate. But the
4
statutes governing this proceeding leaves all sides with the record before the Agency at the time
it made its decision without supplementation with additional factual matter.
Respectfully submitted,
Albert Ettinger (Reg. No. 3125045)
Counsel for Petitioners
April 26, 2004
Environmental Law and Policy Center
35 E. Wacker Suite 1300
Chicago, Illinois
5
CERTIFICATE OF SERVICE
I, Albert F. Ettinger, certify that on April 26, 2004, I filed the attached PETITIONERS’
SUBMISSION IN RESPONSE TO THE HEARING OFFICER ORDER OF APRIL 1, 2004.
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 and via facsimile to those individuals on the included 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
April 26, 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
