RECEIVED
CLERK’S OFFICE
MAR 012005
DES PLAINES RIVER WATERSHED
ALLIANCE, LIVABLE COMMUNITIES
ALLIANCE, PRAIRIE RIVERS
NETWORK,
and
SIERRA CLUB
)
)
Petitioners
)
)
)
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY and VILLAGE OF NEW LENOX
Respondents.
)
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
SanjaySofat
Assistant Counsel/Division ofLegal Counsel
Illinois Environmental Protection Agency
1021 North Grand Ave. East
P.O. Box 19276
Springfield, IL 62794-9276
PLEASE
TAKE
NOTICE
that on March 1,
2005, 2005,
we filed the attached
MOTION FOR STAY OF PETITIONER’S MOTION FOR SUMMARY JUDGMENT
with the Clerk ofthe Pollution Control Board, a copy ofwhich is herewith served upon you.
Roy M. Harsch
Sheila H. Deely
GARDNER CARTON & DOUGLAS LLP
191 N. Wacker Drive
-
Suite 3700
Chicago, Illinois 60606
(312) 569-1000
Respectfully Submitted,
“Sheila
~/~i
H.Deely
LL
/
1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARI~TATE
Pollution
OF
Control
ILLINOIS
Board
)
)
)
V.
)
)
)
)
THIS
FILING IS BEING SUBMITTED ON RECYCLED PAPER
RECEIVEDCLERK’S
OFFICE
MAR 012005
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR~TATEOF ILLINOIS
Pollution Control Board
DES PLAJNES 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.
)
MOTION FOR STAY OF PETITIONER’S MOTION FOR SUMMARY JUDGMENT
The Village ofNew Lenox (“the Village”), by its attorneys Gardner
Carton &
Douglas
LLP,
moves the Illinois Pollution Control Board to stay Petitioner’s Motion for Summary
Judgment and briefing on that motion in order to allow the
Board to issue a decision on proposed
discovery in this case and, if so ordered by the Board, to allow the Village to take discovery.
The Village has also conferred with counsel for Illinois EPA, who represented to the Village that
Illinois EPA joins in this motion and authorized the Village to so represent to the Board.
1.
The parties in this matter are awaiting decision from the Board on the issue of
whether the Illinois Environmental Protection Act’s provisions governing third party NPDES
permit appeals allow discovery. The Village will not rehash the arguments in those documents,
but in sum, Petitioners have contended that the current and long-standing procedure allowing
discovery in permit appeals is not permissible under the Illinois Environmental Protection Act,
while the Illinois EPA and the Village both contend that discovery is not only proper but
1
required, and Petitioners’ interpretation ofthe Illinois Environmental Protection Act is
unsupported and to the exclusion ofthe rest ofthe Act.
2.
Though the Parties are still awaiting the Board’s ruling, Petitioners plunged
forward and filed a motion for summary judgment on February 7, 2005, claiming the case
presents no issue ofmaterial fact and they are entitled to judgment as a matter oflaw. Shortly
after, on February 7, 2005, the Hearing Officer issued an order setting a briefing schedule. The
Village informed the Hearing Officer and the other parties that it intended to file a motion
addressing the need for discovery prior to responding to Petitioners’ motion.
3.
Petitioners’ motion is flawed and its timing premature. A summary judgment
filing at this time is an improper use ofthe summaryjudgment procedure, and a waste ofthe
time and resources of the Board, illinois EPA, and Village.
4.
Petitioners’ motion underscores the need for discovery. The claimed “material
facts” are nothing more than Petitioners’ unverified and unsworn comments submitted at the
informational hearing before Illinois EPA. These claims have not been subject to discovery and
are unproven. In their “Statement ofRelevant Facts from the Agency Record,” Petitioners
include numerous unverified statements and conclusionarthat were made by parties submitting
comments at the hearing and cite to treatises as if they were already verified and admissible.
Petitioners variously cite to unsworn statements by Phillip Smith and Dr. David Bardack (who
did not submit written comments in this matter); unverified claims concerning algal blooms by
purported nearby residents; unverified and unsworn claims by various parties ofuncertain
credentials concerning the plant and its effect on Hickory Creek; unswom “published treatises”
placed in the record; conclusions as to pH; conclusions as to IEPA’s work; purported
2
conclusions derived from internal agencydeliberations; alleged confusion by IEPA; and
numerous other conclusory statements from the informational hearing.
5.
Petitioners claim that the statements ofparties at the hearing are testimony. These
are not testimony but instead were simply comments made at the informational hearing held by
Illinois EPA. The persons making comments were not sworn or cross examined. And the
various written exhibits put in the record by Petitioners mayor may not constitute reliable
evidence in the future, but they are not reliable now as they have no foundation. Petitioners’
unverified claims and their motion underline the need for discovery.
6.
It is premature to require the Village or Illinois EPA to respond substantively to
Petitioner’s motion without resolution ofthe pending discovery dispute between Petitioners on
the one hand and the Village and Illinois EPA on the other. Illinois caselaw is clear that
summary judgment is a drastic remedy, and all inferences must be made in favor ofthe non-
movant. Further, where discovery is necessary, Supreme Court Rule 191(b) allows a party to so
advise the court by affidavit. The proper procedure is then forrequested discovery to be allowed
so the non-movant can properly respond. In addition to evidence the Village or Illinois EPA
may submit to the Board, the Village and Illinois EPA have the right to explore Petitioners’
claims in discovery and to cross examine those witnessesput forth by Petitioner.
7.
This motion is not intended to nor does it address the administrative record or its
contents. It addresses only the extent to which Illinois EPA or a permittee may further inquire
into the claims ofa commenter at the public hearing that are as yet unsworn and not subject to
cross examination. To rule otherwise would encourage third parties to place voluminous
unverified and unsworn evidence in the record at the Informational Hearing and require Illinois
EPA and a permittee to exhaustively respond to any claims at that time as a precaution against a
3
challenge before the Board. The statute does not require such an approach. The Illinois
Environmental Protection Act and Illinois rules ofcivil procedurerequire the Board to allow
Village and Illinois EPA to conduct discovery into Petitioners’ claims. To the extent there are
material facts in dispute, a hearing must be held in accordance with Section 40(a) ofthe Act
governed by Sections 32 ofthe Act.
8.
As required by Supreme Court Rule 19 1(b), an affidavit concerning the need for
discovery is attachedto this motion. The Village urges the Board to stay Petitioners’ motion
pending completion ofthat discovery necessary to respond to it.
WHEREFORE, the Village, joined by Illinois EPA, movesthe Board to stay Petitioners’
Motion for Summary Judgment and the briefing schedule set by the Hearing Officer pending the
Board’s order on discovery and, if ordered by the Board, to allow the Village and Illinois EPA
the opportunity to take discovery in this case.
Respectfully submitted,
The Village ofNew Lenox
By:________
One ofIts Attorn~’
Roy M. Harsch
Sheila H. Deely
Gardner Carton & Douglas LLP
191 N. Wacker Drive
—
Suite 3700
Chicago, IL 60606
(312) 569-1000
4
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DES PLATNES 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.
)
AFFIDAVIT OF SHEILA DEELY IN SUPPORT OF MOTION
FOR STAY OF PETITIONERS’ MOTION FOR SUMMARY JUDGMENT
I, Sheila Deely, declare and state as follows:
1.
I am a partner in the law firm ofGardner Carton & Douglas LLP, counsel for
Respondent Village ofNew Lenox (“the Village”).
2.
This affidavit is submitted in support ofthe Village’s Motion for Stay of
Petitioners’ Motion for Summary Judgment.
3.
The Village’s requestfor discovery in this matter is currently pending before the
Board. The parties are in disagreement over whether the Illinois Environmental Protection Act’s
provisions governing third party NPDES permit appeals allow discovery and, accordingly,
whether the Illinois EPA and the Village are entitled to discovery in this matter.
4.
Petitioners have now moved the Board for entry ofsummary judgment in this
matter, claiming there is no issue ofmaterial fact and they are entitled to judgment as a matter of
law.
1
