cE
BEFORE THE ILLINOIS POLLUTION CONTROL
B?E~1I~I~
APR3Q2004
J
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.
)
NOTICE OF FILING
Ms. Dorothy M. Gunn
Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
James R. Thompson Center
James R. Thompson Center
100 West Randolph Street
-
Suite 11-500
100 West Randolph Street
-
Suite 11-500
Chicago, IL 60601
Chicago, IL 60601
Albert F. Ettinger, Senior Attorney
Environmental Law and Policy
Center ofMidwest
35
E. Wacker Drive
-
Suite 1300
Chicago, IL 60601
PLEASE TAKE NOTICE that on Friday, April 30, 2004, we filed the attached Reply
of The Village of
New
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
,‘LzL’~,/
Sheila H. Deely
GARDNER CARTON & DOUGLAS LLP
191 N. Wacker Drive
-
Suite 3700
Chicago, Illinois 60606
(312) 569-1000
THIS FILING IS BEING SUBMITTED ON RECYCLED PAPER
1
~ECE~VE~
LEi~KSOFFICE
APR 30 2004
STATE OF ILLIN
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARBOIIution
Control
Boa~d
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.
)
-
REPLY OF THE VILLAGE OF NEW LENOX
ON PROPOSED DISCOVERY SCHEDULE
The Village ofNew Lenox (“the Village”), by its attorneys Gardner Carton & Douglas
LLP, submits this reply concerning a proposed discovery schedule.
1.
In NPDES permit appeals, the Illinois Environmental Protection Act requires the
Illinois Pollution Control Board to hold a hearing and to hear the appeal “exclusively on the basis
ofthe record before the Agency.” See
415
ILCS
5/40(e)(3).
Petitioners claim without citation
that “the statute contemplates that everyone with something to say about the permit will do so
during the public comment period,” and conclude that “it is apparent that no party to this
proceeding can use any document, testimony or data that is not part ofthe Agency record.”
2.
It is apparent that Petitioners do not like the Board’s procedure for third party
permit appeals, for this is Petitioners’ third bite at the apple with this argument, and like the
others before it, the Board should decline to alter its procedures so flmdamentally. Petitioners
1
made the same argument 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
‘9,
where the Board declined to so change its procedures, and in
the recent rulemaking
In the Matter of? ProposedAmendments to: Public Particzpation Rules in
35 Iii. Adm. Code Part 309 NPDES Permits and Permitting Procedures,
R03-19. lii that
rulemaking, Petitioners originally proposed the following language:
Section 309.120
Obligation of Applicant and Conimenters to Place
Arguments in Record
All persons, including applicants, who believe any condition ofa
Draft permit is inappropriate or that the Agency’s tentative decision to
deny an application, terminate a permit, or prepare a draft permit is
inappropriate, must raise all reasonably ascertainable issues and
submit all reasonably available arguments supporting their position by the
close ofthe public comment period (including any public hearing and
post-hearing comment period). Any supporting materials that are
submitted shall be included in full and may not be incorporated by
reference, unless they are already part ofthe administrative record
in the same proceeding, or consist ofState or Federal statutes and
regulations, EPA documents of general applicability, or other
generally available reference materials. Commenters shall make supporting
materials not already included in the administrative record available
to EPA as directed by the agency (A comment period longer than 30 days
may be necessary to give conimenters a reasonable opportunity to comply
with the requirements of this section. Additional time shall be granted to
the extent that a commenter who requests additional time demonstrates
the need for such time).
The Illinois EPA declined to include this limitation in its proposal submitted to the Board as a
result ofthe outcry from stakeholders in that rulemaking. Petitioners in this case, certain of
whom were proponents in the rulemaking, did not push this language before the Board.
3.
Petitioners misinterpret the purpose of this Section 40(e)(3), as well as the
informational hearing held by the Illinois EPA and the public comment period. The applicant is
2
not in the same position as the public, which is whythe public and the applicant are treated
differently by the Illinois Environmental Protection Act and in Board regulations. See Section
40(a), applicable to NPDES permit appeals by a permit applicant, which is not limited to the
record. The purpose ofthe informational hearing and public comment period is not to allow the
applicant an opportunity to comment or to require the applicant (or the Agency, forthat matter)
to justify a draft permit for the public. The informational hearing is for the public. It is to allow
the Illinois EPA to provide the information required by Board regulations to the public in a
public notice or a fact sheet, as required by regulations at Section 309.109 through 309.113, so as
to enable them to have information upon which to assess the application and to provide
comments for the Illinois EPA’s consideration in an informational hearingbefore the Agency as
described in Sections 309.116 through 309.119.
4.
Petitioners’ unsupported interpretation ofone clause in the Illinois Environmental
Protection Act is directed at benefiting its challenge and limiting the permit applicant and the
Board in this case. But the statute is not intended to provide grist for a challenge or a limitation
on the applicant. Section 40(e)(3) is intended to ensure that the public follows the proper
procedures and allows submission ofpublic comments in the proper forum. This forum for
comments is in the first instance before the Illinois EPA in an informational, non-adversarial
hearing, and this procedure must be followed to allow those comments and objections to be
brought for the Board’s consideration in a contested, adversarial case.
5.
Now that Petitioners have raised issues on the record in a shotgun challenge
before the Board, the Village has the right to explore those issues in a hearing before the Board,
and in discovery. The statute requires a hearing to be held in accordance with Section 40(a) of
the Act, which in turn provides that Sections 32 of the Act governs the hearing. An NPDES
3
permit appeal is a contested matter, and accordingly Section 32 provides that “any party to a
hearing.
. .
may make oral orwritten statements, offer testimony, cross-examine witnesses, or
take any. combination of such actions.” If “no party” to the proceeding can use any document,
testimony, or data that is not part ofthe Agency record, there would simply be neither a need for
nor a permissible way ofeven having a hearing. The statute must be read as a whole to give
each provision proper meaning, and to allow the Board to conduct a meaningful hearing on
objections by the public. This means that discovery ofthe evidence and testimony cited by
Petitioners in support ofthe appeal and claimed to be contrary to the Illinois EPA’ s decisionis
what is intended to take place.
Respectfully submitted,
The Village of New Lenox
By:
~
OneofIts~jii~i~
Roy M. Harsch
Sheila H. Deely
Gardner Carton & Douglas LLP
191 N. Wacker Drive
—
Suite 3700
Chicago, IL 60606
(312) 569-1000
CHO2/ 22308194.1
4
CERTIFICATE OF SERVICE
The undersigned certifies that a copy ofthe foregoing
Notice of Filing and the
attached
Reply of The Village ofNew 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 Friday,
April 30, 2004.
2