BEFORE THE ILLINOIS POLLUTIONCONTROL BOAR)
DES PLAINES RIVER WATERSHED ALLIANCE,
LIVABLE COMMUNITIES ‘ALLIANCE,
PRAIRIE
RIVERS NETWORK,
and
SIEERA CLUB,
Petitioners,
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY and VILLAGE OF NEW LENOX,
Respondents.
PCB 04-88
(NPDES Permit Appeal)
NOTICE OF FILING
Dorothy Gunn, Clerk
Illinois Pollution Control Board
‘James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, IL 60601
BradleyP. Halloran
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, IL 60601
Albert F. Ettinger
Senior StaffAttorney
Environmental Law & Policy Center
35
East Wacker Drive, Suite 1300
Chicago, IL 60601
Roy M. Harsch
Sheila H. Deely
Gardner Carton & Douglas LLP
191 N. Wacker Drive- Suite 3700
Chicago, illinois 60606-1698
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe Pollution,
Control Board, a BRIEF ofthe Illinois Environmental Protection Agency, a copyofwhich is herewith
served upon you.
ILLINOIS E~~~~QTECTION
AGENCY
SanjayK. Sofat
Assistant Counsel
Division ofLegal Counsel
Dated: April 26, 2004
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
(217)
782-5544
THIS FILING PRINTED ON RECYCLED PAPER
V.
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1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DES PLANES RIVER WATERSHED ALLIANCE,
)
LIVABLE COMMUNITIES ALLIANCE,
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PRAIRIE RiVERS NETWORK, and SIEERA CLUB,
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Petitioners,
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v.
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PCB04-88
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(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTALPROTECTION
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AGENCY and VILLAGE OF NEW LENOX,
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Respondents.
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BRIEF IN SUPPORT OF AGENCY’S POSITION
NOW COMES the Respondent, Illinois Environmental Protection Agency (“illinois EPA” or
“Agency”) by and through its 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 the Illinois Pollution
Control Board (“Illinois PCB” or “Board”) in support ofits position that Section 40(e) ofthe Illinois
Environmental Protection Act (“Act”) does not address discovery in a third party permit appeal.
The illinois EPA respectfully requests that the Board GRANT the Agency’s request forprehearing
discovery. In support ofits position, the Illinois EPA states as follows:
I. BACKGROUND
On December 2, 2003, Petitioners, Des Plaines River Watershed Alliance, Livable
Communities Alliance, Prairie Rivers Network, and Sierra Club, filed a third party permit appeal
2
with the Board pursuant to 415 ILCS 5/40(e)(l) and 35 Ill. Adm. Code 105.204(b). Petitioners
appeal the issuance ofan National Pollutant Discharge Elimination System (“NPDES”) permit to
the Village ofNew Lenox on October 31, 2003, for its STP #1 in New Lenox, Illinois. The Board
accepted the petition on the grounds that it meets the requirements of Section 105.2 10. The Agency
was instructed to file its record with the Board pursuant to 35 Ill. Adm. Code 105.116. The Board
assigned a hearing officer to conduct the Board hearing in accordance with the rules set forth in 35
Ill. Adm. Code 101.Subpart F. On December 31, 2003, the Agency filed its original record of
approximately
659
pages in December 2003. The Agency’s original record contained two Volumes.
The Volume 1 contained documents from the NPDES permit hearing, whereas, the Volume 2
contained permit file documents. As more documents were discovered later, the Agency amended
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 ofconcern that the parties are asked to address. Specifically, the HO instructs
the Agency to 1) provide justification for the length ofthe discovery schedule proposedby the
Agency, and 2) elaborate on the information the Agency believes 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 101.616(a) ofthe Board
regulations, Sections 39(a) and 40(e)(3) ofthe Act, and the Board’s opinion in
PrairieRivers
Network v. IEPA, et aL,
PCB 01-112, and the Fourth District court’s opinion in
Prairie Rivers
Networkv. PCB et a!.,
335 Ill.App.3d 391, 781 N.E.2d 372, 379
(4th
Dist. 2002),
aff’g. Prairie
Rivers Network v. IEPA,
et ad., PCB 01-112 (Aug. 9, 2001). The Agency responds to the HO as
follows:
3
II.
ARGUMENTS
Fundamentally at issue is whether discovery is allowed under Section 40(e)(3) ofthe Act.
A. Section 40(e)(3) of The Act Does Not Prohibit Discoveiy In A ThirdParty Permit Appeal
Section 40(e)(3) ofthe Act governs a third party NPDES permit appeal. 415 ILCS
5/40(e)(3)
(2002). Under this section, a third party hasthe right to appeal the Agency’s decision to
grant or deny a permit under Section 39 ofthe Act.
Id.
Pursuant to this section, third party has the
burden ofproof. This 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 whetherdiscovery
is allowed in a third party permit appeal.
Though Section 105.214(a) ofthe Board’s procedural 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 Ill. Adm. 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 information calculated to leadto relevant infonnation is discoverable, excluding
those materials that would be protected from disclosure in the courts ofthis State pursuant to.
Statute, Supreme Court Rules or common law, and materials protected from disclosure under 35 ill.
Adm. Code 130.” 35 Ill. 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 the Board’s procedural rules apply to appeals offinal decision ofthe Agency.
35
111. Adm. Code 105.100.
Section 105.110, Hearing Process, provides that, “ujnless this Part provides otherwise, proceedings held pursuant to
4
11,
2004, p.1. The Agency disagrees. Petitioners’ argument is in contradiction with Section
101.616(a) ofthe Board’s procedural rules and the fundamental right ofa party to obtain a fair
hearing.
It is clear from Section 101.616(a) ofthe Board’sprocedural rules that information is
discoverable as long as it is relevant information oris information that will leadto relevant
information. Contrary to Petitioners’ position, this rule does not mandate that discovery is
permissible only in those circumstances where it yields admissible evidence. Pretrial discovery
presupposes a range ofrelevancy and materiality much broader than that ofadmissibility of
evidence at trial.
Maxwell v. Hubart Coip.,
216 Ill.App.3d 108,
576
N.E.2d 268,
159
Ill.Dec.
599
(ist Dist. 1991). Therefore, the Board should apply the relevancy test provided in Section
101.616(a) in granting 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 hearing.
Generally, discovery “is intended to be a mechanism forthe ascertainment oftruth, for the
purpose ofpromoting either a fair settlement or a fair trial. It is not a tactical game to be used to
obstruct orharass the opposing litigant.”
Ostendorfv. International Harvester Co.,
89 il1.2d 273,
433 N.E.2d 253, 257, 60 Ill.Dec. 456 (1982). The objectives ofpretrial discovery are to enhance the
truth-seeking process, to enable attorneys to better prepare and evaluate causes, to eliminate
surprises, and to ensure that judgments rest on the merits and not on the skillful maneuvering of
counsel.
Mistier v. Mancini,
111 Il1.App.3d 228,443 N.E.2d 1125, 1128,67 Ill.Dec. 1 (2nd Dist.
1982);Hilgenbergv. Kazan,
305 fll.App.3d 197, 711 N.E.2d.1160, 238 Ill.Dec. 499 (lstDist. 1999).
Illinois Supreme Court Justice Underwood stated that, “djiscovery 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
35
Ill. Adm. Code 101.Subpart F.
35
Ill. Adm. Code 105.110.
Subpart F of Part 101 contains the Board’s procedural rules applicable to hearings, evidence, and discovery.
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positions. Should such case still proceed to trial, the additional knowledge afforded by pretrial
discovery should expedite the trial.” Illinois Supreme Court Justice Underwood, 112 Chi.D.L.Bull.,
209 (Oct. 26, 1966). Another purpose behind allowing discovery is “to permit exploration and to
avoid surprise.”
Payne v. Coates-Miller, Inc.,
68 Ill.App.3d 601, 386 N.E.2d 398, 402, 25 Ill.Dec.
127 (lstDist. 1979).
Tn Illinois, the scope ofdiscovery is broad and the permissible discovery methods include
depositions upon oral examination or written questions, written interrogatories to parties, discovery
ofdocuments, objects or tangible things, inspection ofreal estate, request to admit, and physical and
mental examination ofpersons.
Hayes v. Burlington Northern & Santa Fe Ry.,
323 Ill.App.3d 474,
752 N.E.2d 470,
256
ill.Dec. 590 (1st Dist. 2001);
Winfry v. Chicago Park District,
274 Ill.App.3d
939,
654
N.E.2d 508, 211. J1l.Dec. 46 (1st Dist.
1995).
Accordingly, the method of discovery,
whether written or oral, should be immaterial, provided that the scope ofdiscovery is limited to “all
relevant information and information’ calculated to lead to relevant information.”
In this case, discovery is essential forthe Agency to assess the basis ofthe Petitioners’
conclusion that unnatural conditions exist in the stream. Discovery ofthe basis ofthe Petitioners’
expert’s opinion on economics and other basis is also needed to assess Petitioners’ conclusions and
arguments. Also, fundamental fairness mandates that the Agency be allowed to do prehearing
discovery to better prepare and evaluatebasis 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 ofPetitioners’ case. The informational hearing that was held in this case pursuant to
Subpart A oPart 166 ofthe Agency rules was only an informational 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
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adjudicatory hearings. Commentors are neither required to testif~runder oath nor are subject to a
cross-examination.
The sole purpose ofthese hearings is to inform public ofa proposed Agency
action or to gather information orcomments from the public prior to making a final decision on a
matter. 35 111. Adm. Code 166.120.
Reading Section 40(e)(3) ofthe Act and Section 101.616(a) ofthe Board’s procedural rules
together, the Agency argues that discovery ofrelevant information is permissible in a third party
appeal. The data and information contained in the Agency record determine the scope Of relevant
information in this permit appeal. Under Section 101.616(a) ofthe Board procedural rules, new
information is not discoverable. Any fact or issue not contained in the Agency record constitutes
new information, and thus, is not relevant information, and thus, not discoverable pursuant to
Section 101.616(a).
B. Relevant Information Is Admissible IfIt Is DemonstrativeAnd Cumulative To Other
Information In The Record
The Board’s opinion in
Community Landfill Company v. IEPA
(April
5,
2001), PCB 01-48,
01-49 governs the admissibility ofrelevant information.
It is well settled that in permit appeals the Board’s review is limitedto the record that was
before IEPA at the time the permitting decision was made.
PrairieRivers Network v. IEPA, et aL,
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. IEPA
(April 2,
2001), PCB 01-48, PCB 01-49 (consolidated);
Panhandle Eastern PipeLine Company v. IEPA
(January 21, 1999), PCB 98-102; and
West Suburban Recycling and Energy Center, L.P. v. IEPA
(October 17, 1996), PCB
95-199,
PCB 95-125 (consolidated);
Alton Packing Corp. v. PCB,
162
IIl.App.3d 731, 516 N.E.2d 275
(5th
Dist. 1987). However, it is the hearing before the Board that
7
provides a mechanism for the petitioner to prove that operating under the permit as granted would
not violate the Act or regulations. Further, the hearing affords the petitioner opportunity “to
challenge the reasons given by the Agency for denying such permit by means ofcross-examination
and the Board the opportunity to receive testimony which would ‘test the validityofthe information
(relied upon bythe Agency)’.”
Alton Packing Corp. v. PCB,
162 Il1.App.3d 731,
516
N.E.2d 275,
280. In similar reasoning, the Agency should be allowed an opportunity to fully engage in discovery
to ensure no unfair surprises at the hearing and effectively defend the Agency decision. As
Petitioners have a full access to the Agency record, there would be no surprises for them at the
hearing even without the benefit ofdiscovery. On the other hand, if the Agency were not permitted
to engage in prehearing discovery, it would be greatly disadvantaged at the hearing. It wouldn’t
have an opportunity to find out the basis ofopinions that Petitioners relied upon to conclude that the
permit as issued is in violation ofthe Act and regulations.
The Board’s opinion in
Community Landfill Company v. IEPA
(April
5,
2001), PCB 0 1-48,
01-49 regarding the admissibility ofrelevant information is applicable. Tn
Community Landfill
Company,
petitioners appealed five ofthe hearing officer rulings that denied admission ofcertain
documents as evidence. The petitioners in that case argued that the documents at the hearing should
have been admitted to rebut the Agency’s rationale in imposing certain conditions in the permit.
Id.
In reversing one ofthe hearing officer’s rulings, the Board concluded that the exhibit should have
been admitted as it is “demonstrative only, and cumulative to other information in the record.”
Id.
at
p.19. The Board further concluded that “the purpose ofexcluding evidence at hearing that was not
before the Agency will not be violatedwith the admission ofExhibit D2.”
Id.
at p.20.
In the same case, the Board affirmed the hearing officer’s ruling that excluded the admission
ofanother exhibit. In support ofits conclusion, the Board stated that, “unlike Exhibit D2, Exhibit
DD contains information that the Agency did not have in the record.”
Id.
at p.20.
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In light ofthe above, the Agency contends that the relevant information is admissible in
permit appeals if it is demonstrative and cumulative to other informationin the record.
C. Agency’s Response To Spec~flcIssues Raised By The Hearing Officer
The following are the Agency responses to the specific issues raised in the HO:
1. What Constitutes the Record Before the Agency
Section 105.212 ofthe Board’s procedural 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 ofSection 40(e)(3) ofthe 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 completerecord, both original and amended record,
filed with the Board, and 2) the Board hearing record that contains a statement ofcredibility of
witnesses arid the basis ofopinions that Petitioners’ allege.
3. Just~flcationFor The Length Of The Agency’s ProposedDiscovery Schedule
The discovery schedule proposedby the Agency is within the usual and customarypractice
in the legal profession and is not unduly burdensome to either party. The Agency provides that the
proposed schedule is the Agency’s estimation oftime to complete the discovery process in this case.
This estimation takes into consideration the complexity ofissues presented in this case, number of
deponents that maybe deposed, availability ofthe deponents during the coming months, and the
time needed to schedule desired depositions. Further, some ofthe time line is dictated by the
Board’s procedural rules.
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Respectfully Submitted,
ILLINOIS ENVIIRONMENTALPROTECTIONAGENCY
By:
SanjayK. Sofat
Assistant Counsel
Division ofLegal Counsel
DATED: April 26, 2004
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
THIS
FILING
PRINTED ON RECYCLED PAPER
10
)
STATE OF ILLINOIS
COUNTY OF SANGAMON
)
)
SS
)
)
PROOF OF SERVICE
I, the undersigned, on oath state that I have served the attached BRIEF upon the person to
whom it is directed, by placing a copy in an envelope addressed to:
Dorothy Gunn, Clerk
Pollution 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, IL 60601
(FIRST CLASS MAIL)
BradleyP. Halloran
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
(FIRST CLASS MAIL)
Roy M. Harsch
Sheila Deely
Gardner Carton & Douglas LLP
191 N. Wacker Drive, Suite 3700
Chicago, Illinois 60606-1698
(FIRST
CLASS
MAIL)
and mailing it from Springfield, illinois on April 26, 2004, with sufficient postage affixed as
indicated above.
SUBSCRIBED AND SWORN TO BEFORE ME
OF~:jÔjAL
SEA
CYNTHIA L WOLFE
i:
~:
NOTARY
PUBLIC, STATE
OF ILLINOIS
~:
:~
MY COMMISSION EXPIRES 3.2O~2OO7?
this day ofApril 26, 2004.
i~a~
Notary Public
~vfri~
/
FILING PRINTED
ON RECYCLED PAPER
11