BEFORE THE ILLINOIS POLLUTION CONTROL ~
DES PLAINES RIVER WATERSHED ALLIANCE,
)
MAR -3 2005
LIVABLE COMMuNITIES ALLIANCE,
)
p~rIBoard
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 Des Plaines River Watershed Alliance, the Livable
Communities Alliance, Prairie Rivers Network, and the Sierra Club have filed the attached
PETITIONERS’ RESPONSE TO THE NEW LENOX MOTION FOR STAY OF
PETITIONERS’ MOTION FOR SUMMARY JUDGMENT
Albert F. Ettinger (Re
o.
31250~45)
Counsel for Des Flames River Watershed Alliance, Livable
Communities Alliance, Prairie Rivers Network and Sierra
Club
DATED: March 3, 2005
Environmental Law and Policy Center
35
E. WackerDr. Suite 1300
Chicago, Illinois 60601
312-795-3707
DES PLAINES RIVER WATERSHED ALLIANCE,
LIVABLE COMMUNITIES ALLIANCE,
PRAIRIE RIVERS NETWORK, and SIERRA CLUB,
)
)
Petitioners,
)
)
)
PCB 04-88
)
(NPDES Permit Appeal)
ILLNOIS ENVIRONMENTAL PROTECTION
)
AGENCY and VILLAGE OF NEW LENOX
)
)
Respondents.
)
PETITIONERS’ RESPONSE TO THE NEW LENOX MOTION FOR STAY OF
PETITIONERS’ MOTION FOR SUMMARY JUDGMENT
Respondent Village ofNew Lenox (“New Lenox”) has filed a motion designed to prevent
key issues in this case even from being briefed until the Board rules on certain discovery issues.
The discovery issues, however, are irrelevant to the issues raised by Petitioners’ Motion for
Summary Judgment. Petitioners’ motion should be granted, theNew Lenox motion denied and
the permit remanded to the Agency for reconsideration.
In its motion for a stay, New Lenox claims it will not reargue the issue ofthe proper
scope ofthis appeal. New Lenox then argues for a stay as though it has some sort oflegal right to
hide during the public comment process and then later depose members of the public who
comment. The key point here, though, is that New Lenox has not identified anything that could
possibly be disclosed by discovery that would have any bearing on the three bases for granting
summaryjudgment demonstrated by Petitioners’ Motion for Summary Judgment.
BEFORE THE ILLINOIS POLLUTION CONTROL BOARI~LERK’SOFFICE
MAR ~32OO5
)
STATE OF ILLINOIS
)
Pollution Control Board
v.
The affidavit filed by New Lenox obviously does not comply with Supreme Court Rule
191(b) as it provides no detail regarding what discovery New Lenox wants or what it thinks such
discovery would show. No specific witness is identified and no hint is given as to what New
Lenox hopes to prove with any witness.
New Lenox in its motion (~J4)does state generally what subjects it thinks might be the
object of discovery. These subjects for discovery can be broken down into two broad categories:
discovery regarding comments placed in the public record and discovery regarding the
conclusions Petitioners draw from the Agency record.’ However, even assuming, contrary to the
governing statute (415 ILCS
5/40(e)),
that New Lenox could use evidence from outside the
record before the Agency to oppose Petitioners’ motion, nothing could be developed through
discovery as to either ofthese categories ofpossible discovery that would be relevant to any of
the claims made in Petitioners’ Motion for Summary Judgment.
A. Discovery from Petitioners and other members ofthe public cannot help New Lenox
respond to Petitioners’ motion.
Looking first at the testimony, comments and treatises placed in the record about which
New Lenox seeks discovery, it is critical to see that Petitioners are not relying in their motion for
summary judgment on any claim that the evidence in the agency record proves that New Lenox is
causing or contributing to violations ofwater quality standards.2 Petitioners’ argument is rather
that the record show that Illinois EPA failed to assure to that all reasonable measures to minimize
the new pollution be incorporated into the permit, failed to assure that New Lenox discharge
would not cause or contribute to a violation ofthe “offensive condition” and failed to assure that
New Lenox refers to unsworn statements, verified claims, unsworn treatises and conclusions as
to pH. (New Lenox Motion p.2)
2
New Lenox would not violate the “copper” water quality standard. See Memorandum in Support
ofSummary Judgment p.3.
The arguments Petitioners made in their motion do not rely on the truth ofanything said
in the record by Petitioners or other members ofthe public. They rely on what the record shows
that Illinois EPA did not do. The important points about the public comments are that theywere
made in the record to the Agency but were practically ignored in the permit decision. A fire
department that takes no action in response to an alarm cannot be said to have “assured” the
safety ofthe building involved whether there was a fire or not.
Looking at Petitioners’ first claim in their motion, what could discovery possibly disclose
as to whether the Agency properly considered setting phosphorus limits in the permit? Certainly
no discovery from anyone who testified or commented will speak to that issue. The fact that
members ofthe public asked the Agency to consider more measures to minimize pollution, to the
extent that is relevant, is beyond rational denial.3 Unless New Lenox contends that Illinois EPA
secretly did the work necessary to assure compliance with 35 Ill. Adm. Code 302.105(c)(2)(B)(ii)
but failed to place information on this work into the Agency Record, there is nothing New Lenox
could find that will help it.4
2 It is in fact causing such a violation, but Petitioners’ motion for summary judgment does not
rely on that fact.
~ Presumably, New Lenox does not intend to claim that the court reporter at the hearing and
IEPA’s counsel in developing the record for the Board both fabricated evidence showing that
members ofthe public asked IEPA to consider additional measures to reduce the pollution to be
allowed by the permit.
~ And, ofcourse, if the Agency actually did such work but kept it secret, the permit would still
have to be remanded because permit issuance then violated the requirement of giving proper
public notice and allowing public participation. 35 Ill. Adm. Code 302.105(f).
3
Similarly, the truth ofwhat the public said about the potential ofthe discharge to cause or
contribute to violations ofthe offensive conditions standard
(35
Ill. Adm. Code 302.203) is
irrelevant. Even if New Lenox through discovery could somehow prove that all the eyewitness
reports, expert testimony and published treatises cited in the record were somehow in error, the
fact would remain that Illinois EPA issued the permit without assuring that the offensive
conditions standard would be protected. Illinois EPA accepted all ofthe testimony, comments
and science and did nothing with it. If Illinois EPA believed that that all those materials were
false, that is not what it said on the record. The reason Illinois EPA gave for not placing a limit to
prevent violation ofthe narrative standard is that the offensive conditions standard is “very
difficult to apply.” (Responsiveness Survey, Hearing Record at 357)
It is also clear that discovery would not help New Lenox respond to Petitioners’ argument
regarding Illinois EPA’ s failure to assure that discharges under the permit do not cause or
contribute to violation ofthe copper standard. The basic document involved in this claim is a
laboratory report submitted by a New Lenox contractor. The Agency looked at that laboratory
data and determined that under U.S. EPA guidance a permit limit was necessary yet decided not
to place any limit: in the permit. (see Hearing Record at 508) It may well be that New Lenox’
contractor did a poorjob and that cross examination by New Lenox ofits contractor would
disclose that fact. But proof that Illinois EPA relied on bad datawould certainly do nothing to
show that Illinois EPA had fulfilled its duty to assure that the permit would not allow discharges
that might cause or contribute to violations ofthe copper standard.
B. New Lenox clearly does not need discovery to respond to Petitioners’ conclusion
drawn from the record before the Agency.
4
Even more obviously, New Lenox does not need discovery to respond to Petitioners’
“conclusions derived from internal agency deliberations, alleged confusion by IEPA” and
statements from the hearing.5 Petitioners have not cited anything with regard to internal agency
deliberations that does not appear in the official record that was filed by IEPA’s counsel in this
proceeding. That record is fully available to New Lenox, which is represented by counsel. New
Lenox can read that record just as easily as Petitioners and can correct or contradict any
unsupported conclusions drawn from the record. If New Lenox does not like the record that
confronts it, it can put new evidence into the record in an agencyproceeding afier remand.
Conclusion
New Lenox’s Motion for a Stay should be denied. IfNew Lenox chooses not respond to
Petitioners’ Motion for Summary Judgment on the date currently set by the Hearing Officer, it
has that option. The Board, however, should rule on Petitioners’ Motion for Summary Judgment
on the basis ofwhatever briefs are before it at the close ofthe briefing period that has been set by
the Hearing Officer.
•
_____
Albert F. Ettinger ( g. No. 3125045)
Counsel for Des Plaines River Watershed Alliance, Livable
Communities Alliance, Prairie Rivers Networkand Sierra Club
DATED: March 3, 2005
~New Lenox mischaracterizes the hearing as an “informational hearing” as though the hearing is
there to provide a learning experience to the public. It is a formal hearing required by federal and
state law designed to develop evidence on which to base an agency decision. See 40 CFR 124.12
and 35111. Adm. Code 309.116-119.
5
CERTIFICATE OF SERVICE
I, Albert F. Ettinger, certify that on December 21, 2004, I filed the attached PETITIONERS’
RESPONSE TO THE NEW LENOX MOTION FOR STAY OF PETITIONERS’ MOTION
FOR SUMMARY JUDGMENT. An original and 9 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 to those individuals on the
included service list.
•
__
Albert F. Ettinger (Reg. No. 3125045)
Counsel for Des Flames River Watershed Alliance, Livable
Communities Alliance, Prairie Rivers Network and Sierra
•
Club
DATED: March 3, 2005
Environmental Law and Policy Center
35 E. Wacker Dr. Suite 1300
Chicago, Illinois 60601
312-795-3707
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
Sanjay K. Sofat
Illinois Environmental Protection Agency
1021 N. Grand Avenue East, Mail Code #21
Springfield, IL 62794-9276
