RECE~vED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
APR
31)2004
STATE OF ILLINOIS
PoIIut~onControl 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
)
)
Respondents.
)
NOTICE OF FILING
PLEASE TAKE NOTICE that the Illinois Chapterof the Sierra Club, and Prairie Rivers
Network have filed PETITIONERS’ REPLY TO THE SUBMISSIONS OF IEPA AND NEW
LENOX MADE IN RESPONSE TO THE HEARING OFFICER ORDER OF APRIL 1, 2004.
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 30, 2004
R~C~JVED
CLERK’S OFFICE
APR 3g 2004
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
POIIUt!OflSTATE
OFControlILLINOISBoard
DES PLAINES RIVER WATERSHED
ALLIANCE,
)
LIVABLE COMMUNiTIES ALLIANCE,
)
PRAIRIE RIVERS NETWORK, and SIERRA
CLUB,
)
)
Petitioners,
)
)
v.
)
PCBO4-88
)
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and VILLAGE OF NEW LENOX
)
)
PETITIONERS’ REPLY TO THE SUBMISSIONS OF IEPA AND NEW LENOX MADE IN
RESPONSE TO THE HEARING OFFICER ORDER OF APRIL 1,2004
Neitherthe Agency nor New Lenox seriously attempt to grapple with the import of the
General Assembly’s provision that the Board is to hear this appeal “exclusively on the basis of
the record before the Agency” 415 ILCS
5/40(e).
They both cite general law that discovery
extends to all relevant matters but simply beg the question of how discovery as to anything other
than the contents ofthe record before the Agency could be relevant in this proceeding.
The respondents’ submissions do serve to make clear that the issue ofthe scope of the
proceedings should be resolved before the parties spend substantial time or money taking
discovery and preparing for the hearing.
A0
Consideration
of the merits of the appeal
is
limited to the record as defined by 35111.
Adm Code 105.212.
The respondents have not offered any interpretation of “exclusively on the basis of the
record” other than the straightforward discussion presented by petitioners. No one has claimed
that there was something that should have been included in the Agency record under
35
111. Adm.
Code 105.212 that was not filed by the Agency. Thus, in consideringthe merits of this appeal,
1
the Board is limited to the approximately 700 pages of materials that have been filed by the
Agency as the Agency record.
The general language on discovery in civil cases or in other types of administrative
proceedings cited by both respondents is clearly beside the point given the clear language of415
ILCS
5/40(e).
Also irrelevant are Board cases on permit appeals by applicants that indicate that
in such appeals applicants may question the Agency’s reasons for denying the permit. New
Lenox agrees with the Agency in this proceeding. If the permit was issued properly, the record
should support the Agency decision. Ifthe preponderance of the evidence in the record does not
support the Agency decision, the permit should be set aside. New Lenox could then reapply for a
permit and include additional evidence in proceedings on the new application.
It is true that straightforward application ofthe language of40(e) precludes the parties in
this proceeding of any opportunity to cross-examine in this proceeding. It is not, however,
unusual for parties to be precluded from cross-examination in proceedings that are in the nature
of a review of an administrative decision. Moreover, petitioners are not aware of any general
right to cross-examination in NPDES permit proceedings.’
The only case mentioned by respondents that was decided under 415 ILCS 5/40(e) is
Prairie Rivers Network v IEPA and BlackBeauty Coal Company (PCB 01-112). In that case it
was decided that 40(e) meant what it says and the Board considered the appeal exclusively on the
basis ofthe agency record. It is true that considerable discovery was taken in Black Beauty, but
that happened because the counsel forpetitioner in Black Beauty is rather slow-witted and failed
to object effectively to discovery or admission of irrelevant material until the hearing, As a
‘If there is such a right, New Lenox should have attempted to exercise it in the hearing before the Agency. New
Lenox could have appeared at the Agency hearing and attempted to cross-examine. It may well have been prevented
from doing so by the Agency Hearing Officer, but its objection would have been preservedfor this proceeding.
2
result, days ofdepositions and other discovery was developed, at substantial cost; none of which
discovery figured in the Board’s decision of the case.
It is also suggested by New Lenox that discovery is needed to allow it to depose potential
witnesses. Assuming, however, that the appeal is to be heard exclusively on the basis of the
Agency record, petitioners do not anticipate that any witnesses can be offered in the hearing.
B.
A clear demarcation ofthe scope ofthis proceeding in advance
ofthe hearing would
be highly beneficial.
Petitioners believe that the statute makes the scope of these proceeding clear, but it is
critical that uncertainty be resolved before the hearing to the extent possible. This is important
both in terms of setting the limits of discovery and in terms ofdetermining the scope ofthe•
hearing. Petitioners do not wish to spend thousands ofdollars from very limited not-for-profit
organization budgets on discovery or hearing preparation that proves to have been irrelevant,
Conversely, if there is to be broad discovery in this case and, contrary to the plain language of
40(e), the Board may consider matters outside the record, petitioners will wish to utilize the
opportunities presented by those procedures.
Accordingly, if the Hearing Officer were in doubt as to the proper scope of these
proceedings, petitioners would support use of any opportunities for interlocutory review
available under the Board rules.
Respectfully submitted,
Albert Ettinger (Reg. No. 3125045)
Counsel for Petitioners
3
CERTIFICATE OF SERVICE
I, Albert F. Ettinger, certify that on April 29, 2004, I filed the attached PETITIONERS’ REPLY
TO THE SUBMISSIONS OF IEPA AND NEW LENOX MADE 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 md
ed 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 30, 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
SanjayK. Sofat
Illinois Environmental Protection Agency
1021 N. Grand Avenue East, Mail Code #21
Springfield, IL 62794-9276