R F~’
“~
~E V ED
CLERK’S OFFICE
MA~ ~2005
DES PLAINES RIVER WATERSHED
ALLIANCE, LIVABLE COMMUNITIES
ALLIANCE, PRAIIUE RIVERS
NETWORK, and SIERRA CLUB
Petitioners
ILLiNOIS ENVIRONMENTAL PROTECTION
AGENCY and VILLAGE OF NEW LENOX
PCB 04-88
(APPEAL FROM IEPA
(DECISION GRANTING
NPDES PERMIT)
NOTICE OF FILING
Ms. DorothyM.
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
B. 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
Sanjay Sofat
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 8,
2005,
we filed the attached
REPLY TO
PETITIONERS’ RESPONSE TO MOTION FOR STAY OF PETITIONERS’ MOTION
FOR SUMMARY JUDGMENT and MOTION TO FILE REPLY INSTANTER
with the
Clerk ofthe Pollution Control Board,
a copy of
which is herewith served upon you.
Respectfully Submitted,
Roy M. Harsch
Sheila H. Deely
GARDNER CARTON & DOUGLAS LLP
191 N. Wacker Drive
-
Suite 3700
Chicago, Illinois 60606
(312) 5691000
Sheila H. Deely
WLO
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD3TATE
OF ILLiNOIS
PoUut~onControl Board
)
)
)
)
)
)
V.
)
)
)
)
Respondents.
)
THIS FILING IS BEING SUBMITTED ON RECYCLED PAPER
F~E CE V ED
CLERK’S OFFICE
CERTIFICATE OF SERVICE
02005
TA~ OF ILLINOIS
The undersigned certifies that a copy ofthe
foregoing Notice of Film
Mt~B
9i~B~’
Board
REPLY TO PETITIONERS’ RESPONSE TO MOTION FOR STAY OF PETITIONERS’
MOTION FOR SUMMARY JUDGMENT and MOTION TO FILE REPLY INSTANTER
was
filedby hand delivery with the Clerk ofthe Illinois Pollution Control
Board and
served upon the
parties to whom said Notice is directed by electronic delivery and first class mail on March 8, 2005.
CHO2/ 22371573.1
RECLERK’SCE
OFFICE~V
~ D
MAR
02005
STATE OF ILLINOIS
BEFORE THE ILLINOIS POLLUTION CONTROL
Polluflon Control Board
DES PLA1KES 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 TO FILE REPLY INSTANTER
The Village ofNew Lenox (“the Village”) moves to file a reply on its Motion For Stay of
Petitioners’ Motion For Summary Judgment. In support thereof, the Village states as follows:
1.
The Village believes that Petitioners’ response to the Village’s Motion for Stay is
a continued abuse ofthe rules of procedure and inappropriately argues the merits ofthe case.
2.
In addition, the Village wants to respond to a derogatory and misleading
characterization with respect the permit proceedings in the case.
3.
The Village’s reply is brief and will be limited to response to Petitioners.
WHEREFORE, the Village moves theBoard to accept its Reply on the Motion for Stay.
Respectfully submitted,
THE VILLAGE OF NEW LENOX
By:
~
One ofIts Attorneys
Roy Harsch
Sheila H. Deely
GARDNER CARTON & DOUGLAS LLP
191 N. Wacker
-
Suite 3700
Chicago, IL 60606
CHO2/ 22371940.1
RE:CLERK’S
c;
E
OFFICE~V
ED
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD ~
02005
STATE OF ILLINOIS
Pollution Control Board
DES PLANES 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 TO PETITIONERS’ RESPONSE TO MOTION FOR STAY
OF PETITIONERS’ MOTION FOR SUMMARY JUDGMENT
The Village ofNew Lenox (“the Village”), by its attorneys Gardner Carton & Douglas
LLP, submits this reply to Petitioners’ Response to Motion for Stay of Petitioners’ Motion for
Summary Judgment.
1.
The Village believes that Petitioners’ reply in this case is a continued abuse of the
rules of procedure. It is premised entirely on the Board’s acceptance ofPetitioners’ View ofthe
scope ofdiscovery, which is currently pending before the Board, and Petitioners also
inappropriately use their response as an opportunity to argue the merits ofthis case. In fact,
Petitioners’ entire response underscores the need for discovery, not disproves it.
2.
Petitioners claim first that the Village thinks it has a “legal right to hide”
during the public comment process and then later depose members of the public who comment.
Petitioners evidence both a derogatory contempt for the Village’s rights in this proceeding and an
inappreciation that it is the Village’s permit at issue here. As for the public comment period, the
Village did everything it was required to do and provided Illinois EPA with ample information to
be able to hold a meaningful public comment period, as evidenced by Petitioners’ extensive
1
participation and voluminous submittals. What other participation Petitioners have in mind for
that proceeding is unclear, as the Village would not have been able to cross-examine any
members ofthe public that commented anyway. It is Petitioners that think theyhave a legal right
to avoid discovery, which is a standard part ofany permit challenge before the Board.
3.
Having slung the mud on what Petitioners do not even claim to be the “key point”
in theirresponse, Petitioners then state that the Village has not identified anything that could
“possibly
be disclosed by discovery” that would affect Petitioners’ demonstration ofthe basis for
their summaryjudgment motion, as if Petitioners’ unsworn word about its case should be enough
for the Board. For example, Petitioners claim that “the offensive conditions standard is currently
being violated,” and “the type ofpollution coming from the plant was exactly the kind of
phosphorus pollution likely to cause the offensive conditions reported by numerous
eyewitnesses.” See Pet. Mem. at 12. Petitioners also state that “There is no doubt that the kind of
algal growth.
. .
are generally a result ofhigh levels of nutrients,” and “it is clear in the record
that Hickory Creek has high levels ofphosphorus and that the New Lenox sewerage treatment
plant discharge is a major source ofphosphorus.” See Pet. Mem. at 4. These claims are simply
not the case, and the Village has the right to inquire into the basis for Petitioners statements. The
Village strongly disagrees with these conclusions, and the Illinois EPA disagreed as well.
4.
Petitioners’ arguments merely call attention to the intertwined nature ofthe
necessity for an understanding from the Board as to whether the status quo, in which discovery is
permissible and a hearing is held, will continue to be in place, or whether the rules concerning
third party permit appeals are going to be changed in this proceeding. As Petitioners concede,
the Village has identified three broad categories of discovery that are necessary in this case.
2
Board rules state that “All relevant information and information calculated to lead to discovery
of relevant information is discoverable.”
5.
Finally, Petitioners’ state that the affidavit filed by New Lenox “obviously” does
not comply with Supreme Court Rule 19 1(b). Notwithstanding its obviousness, the Village
disagrees. The areas the Village wants discovery on are plain enough and are explained in the
motion, and the fundamental discovery issue currently pending before the Board in the parties
position papers and highlighted by Petitioners’ Motion for Summary Judgment is plain enough
as well.
Respectfully submitted,
The Village of New Lenox
By:
~C
One ofIts Atto eys
Roy M. Harsch
Sheila H. Deely
Gardner Carton & Douglas LLP
191 N. Wacker Drive
—
Suite 3700
Chicago, IL 60606
(312) 569-1000
3
