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2177829807

F.

Ci

CLERK’S

OFFfCF

APR

26 2BC4

LLLfl~tOIS

~

PROTECTION AGENCY

STATE

OF

ILUNO~S

DIVISION OF LEGAL COUNSEL

Po1iu~on

Cori~ro~Boa~rd

1021 NORTH

GRAND AVENUE

EAST, POST OFFICE BOX 19276

SPRTh~GF~LD,

ILLThOIS 62794-9276

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2624

A.DM

214 Feb-99

---

Th3-FDRE FEUE

IL’UN 013 POLL CTFJON

CONTROL ~iD;JLD

CLERKS

OFF~Tri

APR 2 6

2C04

LE.3 ?LALNES IRWER WATER3HTD- ALtIL~NCE.

)

STATE CF ~L’~-~3

LIVABLE COMMLTNTLES ALLIANCE,

)

PoUut~onCor~ 3~rc~

PRAIRIE RIVERS NETWORK, and SJIEERA CLUB,

)

)

Peiitioners,

)

)

)

PCE 04-33

)

(NPDES Permit Appeal)

LLLINOIS ENYIRONMENTAL

PROTECTION

)

AGENCY

and

VILLAGE OF NEW LENOX.

)

)

Respondents.

-

NOTICE OF FILING

Dorothy Gunri, Clerk

Albert

F.

Ettinger

illinois Pollution Control

Board

Senior Staff

Attom~y

James R. Thompson Center, Suite 11-500

Environmental Law

& Policy Center

100 West Randolph Street

35

East

Wacker Drive, Suite 1300

Chicago, IL 60601

Chicago, IL 60601

Bradley P.

Halloran

Roy M. Harsch

illinois Pollution Control Board

Sheila H. Deefy

James

R. Thompson Center, Suite 11-500 Gardner

Carton

& Douglas LLP

100 West Randolph Street

191 N. Wacker

Drive-

Suite 3700

Chicago, IL 60601

Chicago, illinois 60606-1698

PLEASE

TAKE

NOTICE that I have today filed

with

the Office of the Clerk ofthe Pollution

Control Board, a B1~IE~ofthe

illinois

Environmental Protection Agency, a copy of

which

is herewith

ILLINOIS ~

AGENCY

Sanjay

K. Sofat

Assistant Counsel

Division of

Legal

Counsel

Dated: April

26, 2004

Illinois Environmental

Protection Agency

1021

North Grand Avenue

East

Springfield, Illinois

62794-9276

(217)782-5544

rms

TIL.JNG

PRiNTED

ON RECYCLED

PAPER

1

---

E~EIEC’ RE TILE ILL

01013

•

DES

?LAINES RIVER WATERSHED ALLIANCE,

LIVABLE COMMUNiTIES ALLIANCE,

PRAiRIE RIVERS NETWORK, and SIEERA CLUB.

P etttioners,

-V.

ll~LBTOISENVTRONMENTAL PROTECTION

AGENCY and VILLAGE OF NEW

Respondents.

?OLtLTLiN CO.cTI&OL OOAJth

-

-

11

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Po!;~tj~~

APR25

Cor~i-o~

2014

B-

nrd

)

)

)

PCB 04-83

)

(NPDES Permit Apocal)

)

)

)

)

BRIEF

IN SUPPORT

OF AGENCY’S

POSITION

NOW COMES the Respondent, illinois Environmental Protection Agency

(“Illinois

EPA” or

‘Agency”) by

and through

jts

attorney,

Sanjay K. Sofat, Assistant Counsel

and

Special Assistant

Attorney

General,

pursuant

to the Hearing Officer’s order, dated April 1, 2004, the

Illinois

Environmental

Protection Agency (“Illinois EPA”) hereby submits

this

brief to theIllinois Pollution

ControlBoard

(“Illinois

PCB” or

“Board”)

in support ofits position that Section 40(e) of

the

Illinois

Environmental Protection Act (“Act”)

does not address

discovery

in a

third party permit

appeal.

The illinois EPA respectfully requests that

the Board ~RANT the Agency’s request for prehearing

discovery. In

support ofits position, the

illinois EPA states as follows:

I.

BACKGROUND

On December 2, 2003,

Petitioners,

Des

Flames River Watershed Alliance,

Livable

Communities Alliance, Prairie Rivers Network, arid Sierra

Club, Eled a

third party permit appeal

2

---

E;c~ard.

~:‘

nc~nt -~

I C_.CS

5/~1O(e)(i

ari

:35

~Jt Aim

Code Ii 5iO.;(

F-L;oer~

0 laF:-e

cT ~cn

‘i~ionaiPcI ::ao~DLirr~eILLni

:~~~‘c~P

Dn~):)errm: :a

the Village ofNew Lenox on

October

31, 2003,

fbr its STP ~ in New Lenox. illinois. The Boaid

accented the petition on the nounds that it meets the requirements ofSection 105.210. The Agency

was instructed to file its record with the Board pursuant to 35 111. Adm. Code 105, 116. The Board

assigned a hearing officer to conduct the Board hearing in accordance with the rules

set

forth in

35

Iii. Adro. Code l0i..Subpartf.

OnDerember

31,

2003, the Agency filed its original record of

aporoximately

659

pages

in December 2003. The Ageticy’s orimiaal record contained two volumes.

The VoLume

1 contained documents from the

NPDES permit hearing, wheceas, the Volume

2

contained permit

file documents.

As more documents

were

discovered later,

the Agency 2mended

its record in

January and February

2004.

-

On April 1, 2004, the Hearing Officer issued an order

directing

the parties to file a brief

addressing

the following issues: 1) What the

Board

is to base its decision on,

and

2)

What

constitutes the “record before the Agency” in

this case. Hearing

Officer Order (“HO”) at p.1. The

HO outlines the

areas

of concern that the parties

are

asked to address. Specifically, the HO

instructs

the Agency to 1) provide

justification

for the

length

ofthe discovery schedule proposed by the

Agency,

and

2) elaborate on the information the Agencybelieves is relevant, discoverable,

and

admissible in

this

proceeding that was not before the Agency at the

time

the permit was issued. To

respond to the issues above, the HO directs the Agency to focus on Section 101.6 16(a) of the Board

*

regulations, Sections 3 9(a)

and

40(e)(3) ofthe Act,

and

the Board’s opinion in

Prairie Rivers

Network v. JEPA, et al.,

?CB 01-112,

and

the Fourth District court’s opinion in

Prairie Rivers

Iv~tworkv

P~BeraL,

335 fll.App.3d391, 781 N.E.2d 372, 379 (4thDist. 2002),

aff~g.Prairie

Rivers Networkv. IEPA,

follows:

---

Fundamentally at issue ~swhether

discovery is

allowed under Section 40(e)(3) ofthe Act.

A. Section 40(c)(3) of

The

Act Does

Not Prohibit Discovery In A Third Parry Permit Apoeci

Section 40(e)(3) of the Act governs a third party NPD

ES

nermia ap~ea1.415 fLCS

5/40(e)(3) (2002). Under this

secriori,.a

third party has the right to ap~ea1the Agency’s decision to

~an~ or deny a permit under Section 39 ofthe Act.

Id.

Pursuant

~o

this section. third p:arty has the

burden

ofproof. Tnis

section provides that, “the Board shall hear

the petition

...

exclusively on the

basis ofthe record before the Agency.”

Id.

However, this section is silent as to whether discovery

is

allowed

in a

third party

permit appeal.

Though

Section 105.214(a) of

the

Board’sprocedural rules provides that the hearing before

the

Board

“will be based exclusively on the record before the Agency at the

time the permit

or

decision was issued,” 35 111. Adrn. Code 105.214(a), discovery is allowed

under

Section 101.616(a)

ofthe

Board

procedural

rules

1. Specifically, Section 101.616(a) provides that, “laill relevant

information

and

infonnation calculated to lead to relevant information is disc6ver~i~,excluding

those materials that would be protected from disclosure in the courts of

this

State pursuant to

Statute, Supreme Court Rules or common law,

and

materials protected from disclosure

under

35 Iii.

Adm. Code 130.” 35 Iii. Adm. Code 101.616(a)

(emphasis added).

Petitioners

argue that “there

should be no discovery in

this

case because discovery

cannot

yield admissible evidence in

this

proceeding.” Petitioner’s Submission

Regarding Discovery,

March

1

Part

105 of th~Board’s

procedural rules

apply

to

appeals offinal

decision ofthe Agency.

35

Dl. Adrn.

Codr 105.200.

Section 105.110,

Heanng

Proc~s~,provides

that~

“un1es~

this Part provides otherwise, proceedings

held

pursuant

to

4

---

12:

i. 2~C•~pL. fl-..

:\r~

~iareer. Pe*i1c,r~e:s

oor.::aflrt~onwidi i~~ti~i

:t~ieroni

~

~

~ ::i~~E j:~aoarty :c

ai:. a

hearing.

Itis clear from Section 101.616(a) ofthe

Board’s procedural rules that information is

discoverable as long as it

is

relevant information or is information that will lead to relevant

information. Contrary to Petitioners’

position,

this rule does not mandate that discovery is

perrriissible only in those circumstances where

it

yields admissible

evidence. Pretrial

discovery

nresupposeS a

range of relevancy and materiality

much broader

than

that of

ad.missibilitv of

evidenreattrial.

Maxwellv. Huhart Coro.,

216 IJ1.App.3d 108, 576NE.2d26S, 159111Der. 599

(ir Dist. 1991). Therefore,

the

Board should apply the relevancy test provided in Section

101 .616(a) in

~antirig

the prehearing discovery in

this

case. At

this

juncture, it is wholly irrelevant

as to what information, if any, obtained

through

discovery would be admissible at the

bearing.

Generally, discovery “is intended to be a mechanism for the ascertainment of truth, for the

purpose ofpromoting

either

a

fair settlement

or a

fair

trial. It is not a tactical game to be used to

obstruct or

harass

the opposing litigant.”

Ostendorfv. International Harvester Co.,

89 lll.2d 273,

433

N.E.2d 253, 257, 60 flLDec.

456

(1982). The objectives of

prefrial

discovery

are

to enhance the

truth-seeking

process, to enable

attorneys

to better prepare

and evaluate

causes, to

eliminate

surorises,

and

to ensure that judgments rest on

the

merits

and

not on the

skillful

maneuvering of

counsel.

Mistier v. Mancini,

lii ill.App3d 228,

443

N.E.2d 1125, 1128, 67 il1.Dec. 1 (2~Dist.

1982);Hilgenbergv. Kazan, 305

flhApp.3d 197, 711 N.E.2d 1160, 238 fll.Dec. 499 (l~Dist.1999).

illinois

Supreme

Court

Justice Underwood stated that, “discovery procedures

...

facilitate

settlements by enabling the parties to more accurately estimate the

strengths and

weaknesses oftheir

this Part will be in accordance with the rules set forth in 3~JIlL

Mm.

Code

l01.Subpart

~.

35 Dl. Adrn. Code 105.110.

Subpart F of Part 101 contains the Board’s procedural rules applicable to hearings, evidence, and discovery.

5

---

—F-

~ -ic:.::r.;.

ccid ruc ~e ~tj1Lprocee:i ID •c~~ :~..I:~~dll

02. ~

~-tiIo:d~:1

i:~: ~nial

j~~c’

:,~:‘:ll:~~o

~iall~ 01 i~ci~

~

0 c:::.~r:icet~nd~~

LL

2 OdI.D.

209 (Oct. 25, 1956).

Another purpose behind allowing discovery

is “to permit exploration

and to

avoid

sururise.”

Payne

v.

Coates-Miller, L’zc.,

5~

IU.App.Bd

601,

386 N.E.2d

398, 402, 25

flJ.Dec.

127 (1~Dist.1979).

In illinois, the scope of discovery is

broad and

the aermissible discovery methods

include

deposltions u~onoral exammation or written quesuon~,wnttCn

interrogatories

to parties, discovery

of documents, objects or

tan~ble things, inspection of real estate,

request to

admit, and physical and

mental

examination of persons.

Hayes v. Buriingi’on Norr1et~n~ Santa Fe

Ry..

323 fll.App.3d

474,

752 N.E.2d 470, 256 fl1.Dec. 590 (15t Dist. 2001);

Winfly

v. Chicago

ParkDisrr~cr,

274 flLA~p.3d

939, 654 N.E.2d 508, 211 fll.Dec. 4~(le Dist. 1995). Accordingly, the method of discovery,

whether written or oral, shou.ld be

immaterial,

provided that

the

scope ofdiscovery is limited to “all

relevant infonnation

and

information calculated to lead to relevant information.”

In

this

case, discovery is essential for

the

Agency to assess the basis of the Petitioners’

conclusion that unnatural

conditions

exist in the stream. Discovery of the basis of the Petitioners’

expert’s opinion on economics

and

other basis is also needed to assess Petitioners’ conclusIons

and

arguments. Also,

fundamental

fairness

mandates

that the Agencybe alIo~edto do prehearing

discovery to better

prepare arid

evaluate basis ofthis appeal,

and

to eliminate

any surprises.

Though

Section 40(e)(3) places burden on Petitioner to prove

that

the permit, as issued, would violate

the

Act or Board regulations, the Agency

had

no prior opportunity to determine the

strength

of

weaknesses

of Petitioners’ case. The

infonriational hearing

that

was

held in

this

case

pursuant

to

Subpart A of

Part

166 of the Agency rules was only an

iuforrn~tional

hearing, and. therefore, the

Agency had no opportunity under these regulations to determine the basis ofPetitioners’ expert’s

opinion.

This

is supported by the fact that informational

NPDES

permit hearings are not

6

---

~:L:~D~,

~2.r.rc:;.

Corr:joe~,:c:sar: f:Ia~:

rc~ar~d:o

:~t~

cc Jer cafo cD:

cLajen :o a

2 ::.c

.~.

a:sL.cO:)rL.

5)~

a

::cDcc~.~ SD I:~D2r:L0 .DDLLC 0 2 2~DD

D5~1

.*cycc~

action or to gather information or comments from the public prior

to

making a final

decision on a

matter.

35

111. Adm. Code 166.120.

Reading Section 40(e’)(3) of

the

Act and Section 101.61 6(a) of the Board’s procedural rules

ro~ether,the Agency argues that discovery of relevant i:cifommation is ~errnissible in a third party

ap?~a1. The data and information contained in the Agency record detenrurie the scope

of

relevant

information in this permit appeal. Under

Section 101.616(a) of the

Board procedural rules, new

information is not discoverable. .?~yfact or issue not contained in the Agsncy record constitutes

new information, and thus,

is nor relevant

in±omlatiDn,and thus, not discoverable pursuant

to

Section

10L616(a).

B. Relevant Information Is Admissible IfIt Is Demonstrative And Cumulative To Other

Information In The Record

The Board’s

opinion in

Community Lana~iillCompany v. IRPA

(April

5, 2001), PCB 01.48,

01-49 governs the admissibility of

relevant information.

It is well settled

that in permit appeals the Board’s review is

limited:to the record that was

before IEPA at the

time

the

permitting

decision

was

made.

Prairie Rivers

Network

v. LEPA, et a?.,

PCB 01-112. Typically, evidence that

was

not before the Agency at

the time

ofits decision is not

admitted

at

hearing

or considered by the

Board.

Community Landfill Company v. JEPA

(~pril2,

2001)

PCB 01-48, PCB 01-49 (consolidated);

Panhandle

te?-fi PipeLine Company v. JEPA

(January21,

1999), P.CB 98-102;

and

West Suburban

Recycling

and Energy Center, L.P. v.

.EPA

(October 17, 1996), PCB 95-199, PCB 95-125 (consolidated);

Alton Packing C’orp. v.

PC’B,

162

fll.App.3d 731, 516 N.E.2d 275

(5th

Dist. 1987). However, it is

the hearing before the Board that

7.

---

:ceah~aisrr~cx t.ce o.~vScDr.arsa cro~.ethu c3erat~r~.c:icr the oa:ni: as c:crted u;o~:1I

hearing

..fl3:r~

~ ::c~ mar: o?o2::cc.:

“~)

ohai~engethe reasons ~ven by the Agency for denyina

such

pemtit by meano of cross-examination

arid the Board the

opportunity

to receive testimony

which would ‘test the validity

of the

information

(c~lieJupon by the Agency)’.”

Alton

Packing Corp. v. PCS,

162

I1l.Aoo,3d

731,

515 N.E.2d 275,

?inO. in similar reasoning,

the

Agency

should

be allowed an ooportimityto

.ftdly

engage in discovery

:c’

eDS

ore no unfair surprises at the hearing and effectively defend the Agency d.~cisiors.As

:mitioners

have a full

access to

the Agency

record, there

would be no surprises

for

them at the

even without the benefit

of

discovery.

On the other hand, if

the Agency were .~otnermaitted

to engage in prehearing discovery, it would be greatly disadvantaged at the hearing. It wouldn’t

have an opportunity

to

find

out

the basis of opinions

that Petitioners relied upon to~concludethat the

permit as

issued is

in violation of the Act and regulations.

The

Board’s opinion in

Community Landfill Company v. ZEPA

(April

5,

2001), PCB 0 1-48,

01-49 regarding

the

admis~bility

of

relevant information

is applicable. In

Community Landfill

Company,

petitioners appealed five of

the hearing

officer

rulings

that

denied

admission of

certain

documents

as

evidence.

The

petitioners in that

case

argued that

the

documents at the hearing

should

have

been admitted to rebul the Agency’s rationale in imposing certain conditions in

the permit.

Id.

In reversing

one of the

hearing officer’s rulings,

the

Board

concluded that the

exhibit

should have

been admitted

as it is “demonstrative only, and.

cu.mulative

to

other information

in the record.”

fd.

at

p.19. The Board

fUrther

concluded that “the purpose ofexcluding evidence at

hearing that was not

before

the

Agency will not be violated

with the

admission of

Exhibit

D2.”

Id.

at p.20.

In

the same case, the Board affirmed

the

hearing officer’s ruling

that excluded the admission

of

another

exhibit. Icr support of it~conclusion, the Board stated that,

“unlike

Exhibit1)2, Exhibit

Dl) contains information

that

the Agency

did

not have in the recordi”

Id.

at p.20.

8

---

fn ~inhtof the acar’e,

Aconar c i:artit ~ha~the :innuar hmfhnnamixi :s srm!c

OJOarit

it fez

:tmzzmeia:i

ar ::thoHJ::zuare•~ the

C.

Agency h~Response

To Specific Issues

Raised By The Hearing Officer

The following are the Agency rcsponses

to the s~ecidcissues raised in the HO:

1.

PVhat Cc’nstitutes th~Record Before the Agmrzcy

Section 105.212 of

the Board’s orocedural rules

specifies the

minimum

level

ofinformation

that

must

be provided in the Agency’s record. In

this

case, the record

filed pursuant

to

Section

105.212 in December 2003

and

later

amended

in

January and February

2004 constitutes the

completerecord before

the

Agency for the purposes of Section

40(e)(3)

of the Act.

2. What

The Board Is To Base Its Decision On

Based on the discussion above, the Agency contends that, in this

case,

the Board’s review of

the petition should be based on:

1)

the Agency’s complete record, both original and amended

record,

fled with

the Board, and 2) the Board hearing record that contains

a statement of

credibility

of

witnesses and the basis of opinions that

Petitioners’ allege.

3. Justification Foi~The Length C~TheAgency’s Proposed Discoveiy Schedule

The discovery schedule proposed by the

Agency is

within

the

usual and

customarypractice

in the

legal

profession and is not unduly burdensome to either

party. The

Agencyprovides that the

proposed schedule is the Agency’s estimation of

time

to complete the discovery process in

this

case.

This estimation takes

into consideration the complexity ofissues presented in

this case, number

of

deponents that may be deposed,

availability

of the deponents

during

the coming months,

and

the

time

needed to schedule desired depositions.

Further,

some of the

time line

is dictated by the

Board’s procedural rules.

9

---

.Respecrftilly Subrnined,

ILlINOIS FNV1RON~fENTAL?ROTECTION

AGENCY

By:

_____

____

Sanjay K.

Sofat

Assistant Counsel

Division of

Legal Couiu;ei

DATEID: April

26, 2004

illinois

Environmental

Protection Agency

1021

Noith Grand

Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217)

782-5544

TB~IS

FU..JNG PRINTED ON RECYCLED PAPER

10

---

7

;~~i ‘~‘~r:~

C

D1~IYOF S~GA~EON

)

)

PROOF OF

SIERVECT~

I,

the

undersin ed, on oath state that I have served the attached

~F

upon the person

to

~vhornit is directed, by placing a copy in an envelope addressed to:

Dorothy Gunri, C1er~t

Pollutton Control Board

100 West Randolph Street

Suite 11-500

Chicago. illinois 60601

(FIRST

CLASS MAIL)

Albert F.

Ettinger

Senior Staff Attorney

Environmental Law & Policy Center

35

East

Wacker Drive, Suite 1300

Chicago, IEL 60601

(FIRST CLASS MAIL)

E~rad1eyP.Haiior.an

Illinois Pollution Control Board

James R.

Thompson Center

00 Wes

ndobhSixeet. Suite 11-500

Cnicago, iJimo~soG’oOl

(FIRST

RoyM. Harsch

Sheila Deely

Gardner Carton &

Douglas LLP

191 N.

Wacker Drive, Suite

3700

Chicago. illinois 60606-1698

(FIRST CLASS

rVLAJL)

and mailing

it from Springfield, Illinois on April 26, 2004,

with sufficient

postage affixed as

indicated

above.

_~~\

~

STJBSCRIBED AND SWOPJ~TO BEFORE lYlE

F

OFFICIAL SEAL

~

~

CYNTHIA L. WOLFE

g

this

day of

April

26, 2004.

.~. ~w

UCSTAIEOFIWNOrS

~,.

/2

/

~~ CQM ~KN~

~

—

Notary Public

(

~fflS

FILING

PRINTED O1’~RECYCLED PAPER

11

TOT~LP.12