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Respondents.
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RECEIVED
CLERK’S OFFICE
APR 26 200k
PCB
04-88
(APPEAL FROM IEPA
(DECISION GRANTING
NPDES PERMIT)
NOTICE OF FILING
Ms. Dorothy M. Gunn
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
-
Suite 11-500
Chicago, IL 60601
Albert F. Ettinger, Senior Attorney
Environmental Law and Policy
Center ofMidwest
35
E. Wacker Drive
-
Suite 1300
Chicago, IL 60601
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
-
Suite 11-500
Chicago, IL 60601
PLEASE
TAKE NOTICE
that on Monday, April 26, 2004, we filed the attached
Memorandum of The Village ofNew Lenox on Proposed
Discovery Schedule with the Clerk
ofthe Pollution Control Board, a copy ofwhich is herewith served upon you.
Respectfully Submitted,
~~
Roy M. Harsch
Sheila H. Deely
GARDNER CARTON & DOUGLAS LLP
191 N. Wacker Drive
-
Suite 3700
Chicago, Illinois 60606
(312) 569-1000
Sheila H. Deely
7
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
Petitioners
v.
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY and VILLAGE OF NEW LENOX
THIS FILING IS BEING SUBMITTED ON RECYCLED PAPER
RECEIVED
CLERK’S OFFICE
APR 26 2004
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
Pollution
STATE OF
Control
ILLINOIS
Board
DES PLAINES RIVER WATERSHED
)
ALLIANCE, LIVABLE COMMUNITIES
)
ALLIANCE, PRAIRIE RIVERS
)
NETWORK, and SIERRA CLUB
)
)
Petitioners
)
)
PCB 04-88
v.
)
(APPEAL FROM IEPA
)
(DECISION GRANTING
ILLINOIS ENVIRONMENTAL PROTECTION
)
NPDES PERMIT)
AGENCY
and
VILLAGE OF
NEW
LENOX
)
)
Respondents.
)
MEMORANDUM OF THE VILLAGE OF NEW LENOX
ON PROPOSED DISCOVERY SCHEDULE
The Village ofNew Lenox (“the Village”), by its attorneys Gardner Carton & Douglas
LLP and in response to the Hearing Officer’s order concerning proposed discovery schedule.
1.
Petitioners have raised questions about whether discovery is permissible in this
appeal in light of the Board’s decision in
Prairie Rivers Network v. illinois Environmental
Protection Agency and Black Beauty Coal Company,
PCB 01-112 (August 9, 2001), which was
upheld by the appellate court in
Prairie Rivers Network v. illinois Pollution Control Board,
335
Ill. App.3d 391 (4th Dist. 2002)
(“BlackBeauty”).
Petitioners have argued that discovery is not
permissible because it would not be admissible at the hearing in light ofthe Board’s limitation to
a hearing “exclusively on the basis of the record before the Agency.” See
415
ILCS
5/40(e)(3).
2.
The Village believes that discovery is permissible in third party NPDES permit
appeals and is warranted in this case. The Village initially notes that discovery was taken in the
Black Beauty
case, on which Petitioners rely. That the Board’s review is limited to the
administrative record before the Agency has not precluded discovery on the substance and
content ofmatters in the record in
Black Beauty
or other NPDES permit appeals.
3.
Board rules allowdiscovery on all “relevant information and information
calculated to lead to relevant information.” See 35 Il. Adm. Code 101.616. Petitioners have the
burden ofproofin this appeal. Petitioners have claimed several grounds for appeal in the
Petition, certain ofwhich are somewhat unclear to the Village, but which include alleged impacts
to Hickory Creek, its water quality, offensive conditions, and economically reasonable
alternatives to the discharge. The Petitioners presented many witnesses and exhibits before
Illinois EPA, on these issues.
4.
Many ofthe claimed bases for Petitioners’ challenge are conclusory, and these
witnesses have not been subject to cross-examination or had theirclaims tested. There was no
contested hearing held on these claims, because Illinois EPA conducts an informational hearing
during the proceedings, not a contested hearing.
4.
It is at the hearing that Petitioners claims will be tested. See
Community Landfill
Company v. illinois EPA,
PCB 01-48, 01-48 (Apr.
5,
2001). The Village is entitled to discovery
on the reliability and substance ofthe allegations made by those witnesses in the administrative
record, as well as the reliability ofthe documentary evidence in the record. The purpose ofthe
discovery the Village is requesting is to ensure full development ofthe issues relevant to the
hearing. This is entirely in keeping with the purpose of discovery, for the adversarial process is
“best served when each party knows as much about the controversy as is reasonably practicable.”
People v. Willjford,
271 Ill. App. 3d 922, 926, 649 N.E.2d 941, 944 (5th Dist. 1995). In Illinois,
broad discovery is favored in both the judicial and administrative settings. “The objectives of
pretrial discovery are to
enhance the truth-seekingprocess,
to enable attorneys to better prepare
fortrial, to eliminate surprise and to
promote an expeditious andj.natdetermination- of
controversies
in accordance with the substantive rights ofthe parties.”
D.C. v. S.A.,
178 Ill. 2d
551, 561,
687 N.E.2d 1032, 1038 (1997) (emphasis added). “Parties in administrative
proceedings should use prehearing discovery as parties in trials use pretrial discovery, that is, to
aid in preparing a case and eliminating surprise so that the outcome can rest on truth rather than
on the maneuvers ofcounsel.”
Kankakeeland Cmty. Action Program v. ill. Dept. ofCommerce
&
Cmty. Affairs,
197 Ill. App. 3d 1067, 1076,
557
N.E.2d 277, 283 (1st Dist. 1990);
see also
Smith v. Dept. ofRegistration & Educ.,
170 Ill. App. 3d 40,
45,
523 N.E.2d 1273-74 (1st Dist.
1988) (same). Precluding discovery in a contested case would be fundamentally unfair and
potentially prejudicial to the Village’s ability to evaluate and challenge Petitioners’ witnesses
and arguments at the hearing.
5.
Discovery on information in the record before the Agency can only be helpful to
the Board, as it will sharpen the issues on appeal and provide the substance necessary for the
Board to make its own decision as well. The appropriate consideration is whether the requested
discovery is relevant to the issues that the Board will consider at the hearing.
IBP, Inc. v. Ill.
Pollution Control Bd,
204 Ill. App. 3d 797, 800,
563
N.E.2d 72, 74-75 (3d Dist. 1990). The
Village is not requesting discovery outside ofthe matters that are in the record and, accordingly,
should be permitted to engage in the requested discovery.
6.
The discovery schedule proposed is also reasonable and is standard in contested
cases. It is not a protracted schedule. First, the allegations that appear to be the basis of
Petitioner’s challenge to the permit are complicated from both a technical andlegal standpoint..
Petitioners have raised legal arguments that will be newto the Board and may have a precedent
for other municipal wastewater treatment agencies. This is not a one-issue case. Second, the
discovery rules themselves require sufficient time to respond to discovery. The rules require that
a party responding to written discovery have twenty eight days, so the sequence ofdiscovery
provides very little room for shortening the schedule for written discovery. Section 35 Il. Adm.
Code
§§
101.616-618. It is also reasonable to allow sixty days to review discovery responses,
evaluate the need for depositions and issue either notices ofdeposition or subpoenas. The
Village believes that given the number of potential witnesses that submitted testimony or
evidence on behalf ofthe Petitioners during the permit proceedings before Illinois EPA and who
may therefore be testifying at the hearing, the schedule fortaking depositions is very reasonable
and there is no flexibility to reduce it. Finally, with respect to admissions, this must be
completed afterwritten discovery is taken and depositions are completed to make this a useful
exercise, and each party must have sufficient time to prepare these requests. The rules require 28
days for responses to request for admissions.
Respectfully submitted,
The Village of New Lenox
By:__________
One ofIts Attorneys/
Roy M. Harsch
Sheila H. Deely
Gardner Carton & Douglas LLP
191 N. Wacker Drive
—
Suite 3700
Chicago, IL 60606
(312) 569-1000
CHO2/ 22306499.2
CERTIFICATE OF SERVICE
The undersigned certifies that a copy ofthe foregoing Notice
of Filing
and the
attached
Memorandum ofThe Village of New Lenox on Proposed Discovery Schedule
was filed by hand delivery with the Clerk ofthe Illinois Pollution Control Board and served
upon the parties to whom said Notice is directed by facsimile on Monday, April 26, 2004.
CHO2/ 22307812.1
