REC~VED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CLERK’S
OFFICE
BOARD
OF TRUSTEES
OF SOUTHERN
)
MAY
182005
ILLINOIS UNIVERSITY GOVERNING
)
STATE
OF ILlINOIS
SOUTHERN ILLINOIS UNIVERSITY
)
Pollution
Control Board
EDWARDSVILLE,
)
)
Petitioner,
)
)
v.
)
PCB No.
02-105
)
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE OF FILINGAND PROOF OF SERVICE
TO:
Dorothy Gunn, Clerk, Illinois Pollution Control Board,
100
West Randolph Street,
James
R.
Thompson Center, Suite 11-500, Chicago, IL 60601-3218;
Carol Web, Hearing Officer, Illinois Pollution Control Board,
1021 North Grand Avenue
East, P.O.
Box 19274,
Springfield, IL 62794-9274
Sanjay K.
Sofat, Illinois
Environmental Protection Agency,
1021
North Grand Avenue
East, P.O. Box
19276, Springfield,
IL 62794-9276
PLEASE TAKE NOTICE that on May 16, 2005,
I filed with the Office of the Clerk of
the Pollution Control
Board an original and nine copies ofPetitioner SIUE’s Reply to IEPA’s
Motion for and Memorandum of Law in Support of Summary Judgment by U.S. Mail.
The undersigned hereby certifies that a true and correct copy of this Notice ofFiling,
together with a copy ofthe document described above, were today served upon the hearing
officer and counsel ofrecord of all parties to this
cause by enclosing same in envelopes
addressed to such attorneys at their business addresses as disclosed by the pleadings of record
herein, with postage fully prepaid, and by depositing same in the U.S. Mail in Springfield,
Illinois
on the
16th
day ofMay, 2005.
Joel A. Benoit
MOHAN, ALEWELT, PRILLAMAN &
ADAMI
1
North Old Capitol
Plaza, Suite
325
Springfield, IL 6270 1-1323
Telephone:
(217) 528-2517
Facsimile:
(217) 528-2553
THIS FILING SUBMITTED ON RECYCLED PAPER
C:\Mapa\SIUE\Notice of Filing 051605 .wpd/crk
5/13/05 2:15
pm
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
R E C E ~V E D
CLERK’S
OFFICE
BOARD OF
TRUSTEES OF SOUTHERN
)
MAY
j
ILLINOIS UNIVERSITY GOVERNING
)
SOUTHERN ILLINOIS UNIVERSITY,
)
STATE OF ILLINOIS
EDWARDSVILLE,
)
PoHut~onControl Board
)
Petitioner,
)
)
v.
)
PCB No. 02-105
)
(NPDES
Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY,
)
)
Respondent.
)
PETITIONER SIUE’S REPLY TO IEPA’S MOTION FOR
AND
MEMORANDUM OF LAW IN SUPPORT OF SUMMARY JUDGMENT
NOW COMES Petitioner, Board of Trustees of Southern Illinois
University Governing
Southern Illinois University, by and through its attorneys, Mohan, Alewelt, Prillaman & Adami,
and respectfully submits this Reply to IEPA’s
Motion for and Memorandum ofLaw in Support
of Summary Judgment.
I.
AN NPDES PERMIT
IS
REQUIRED
FOR SIUE’S DISCHARGE OF
NON-
CONTACT COOLING WATER INTO TOWER LAKE
In support ofits Motion for Summary Judgment, the IEPA argues that an NPDES permit
is
required for SIUE’s discharge ofnon-contact cooling water into Tower Lake.
SIUE concedes
this point.
The point of contention is: Which provisions ofSection 302.211
are applicable to
SIUE’s discharge?
For the reasons set forth in SIUE’s Motion for Summary Judgment, the
applicable provisions are Section 302.211(a),
(b), (c),
(d), (f), (g), (h), and (i).
IJ.
THE NPDES
PERMIT ALLOWS A MIXING ZONE FOR SECTION 302.211(e)
The IEPA argues that the NPDES permit allows no mixing zone.
However, the
introductory paragraph of Special Condition (2) of the NPDES permit provides:
Discharge ofwastewater from this facility must not alone or in combination with
other sources cause the receiving stream to violate the following thermal
limitations
at the edge of the mixing zone which is defined by
Section 302.2 11,
Illinois
Administration Code, Title
35,
Chapter 1,
Subtitle C, as amended:
*
*
*
(Record,
p.
50).
Section
302.211(e)’s language stating that “water temperature at representative locations
in the main river shall not exceed the maximum limits”, 35 Ill. Admin. .Code 302.2 11(e), allows
a mixing zone in rivers; this is what the introductory paragraph of Special Condition (2) is
referring to.
As discussed in
SIUE’s Motion for SummaryJudgment, Section 302.211(e)
allows
admixture ofthe warmed water in the river before monitoring must occurand compliance
determined at representative locations
in the main river.
The IEPA’ s direction to monitor at the
discharge point to determine compliance with Section 302.211(e), then, runs counter to Section
302.211(e) and the introductory paragraph of Special Condition (2).
Accordingly, if the Board rejects SIUE’s position that Section 302.211(e) is inapplicable
to
its discharge into Tower Lake, the Board should recognize that both Section
302.2 11(e) and
the NPDES permit
drafted by the IEPA recognize that temperature monitoring for compliance
with Section 302.211(e) is to
occur after the warm water has mixed with the “receiving stream”
or “river” accepting the discharge.
2
III.
BOARD MAY NOT CONSIDER “FACTS” NOT IN THE
RECORD
The IEPA is required to
file the entire record of its decision with the Board’s Clerk.
35
Ill.
Admin. Code
105.2 12.
The Board’s rules specify the information which is to
be included in
the record.
~
The Board has consistently held that
in permit
appeals, its review is limited
to
the record that was before IEPA at the time the permitting decision was made.”
Prairie Rivers
Network v.
IEPA and Black Beauty Coal
Co., PCB
No. 01-112 (Permit Appeal—NPDES, Third-
Party), 2001
Ill. ENV LEXIS 366 at *22..23
(August 9, 2001).
A review of the statement of facts in the parties’ briefs shows that there are no genuine
issue ofmaterial fact that prevent the Board from granting summaryjudgment in SIUE’s favor.
The IEPA’s motion
and memorandum, however, contain several statements of“fact” that are not
included in the record.
As to the IEPA’ s Motion, the following statements of“fact”
are not in the record:
(a)
Page 2,
¶
2,
second sentence;
(b)
Page6,~J21;
(c)
Pages 9, all sentences after “On May 16, 2002, the Board accepted the
SIUE’s petition”; and
(d)
Page
10, all sentences.
As to
the IEPA’ s Memorandum, the following statements of “fact” are not in the record:
(a)
Page
17, second sentence;
(b)
Pages
18, all sentences after the sentence “The Board regulations clearly
provide that mixing zones are to be granted only in cases where the
discharger has made every effort to provide the best degree oftreatment
possible”;
(c)
Page
19, all sentences except the following sentence: “To clarify the
meaning of Special Condition
2.. .into Tower Lake.”
3
Accordingly, SIUE requests that the Board not consider these unsupported statements of
“fact” and that the Board strike them from the IEPA’s motion and memorandum.
IV.
CONCLUSION
Wherefore, Petitioner Board ofTrustees of Southern Illinois University Governing
Southern Illinois University prays that the Board strike
all statements of“fact” offered by the
IEPA which are not supported by the record, deny the IEPA’s Motion for Summary Judgment,
and grant SIUE’s Motion
for Summary Judgment.
BOARD OF TRUSTEES OF SOUTHERN
ILLINOIS UNIVERSITY GOVERNING
SOUTHERN ILLINOIS UNIVERSITY,
EDWARDSVILLE, Petitioner,
BY:
MOHAN, ALEWELT, PRILLAMAN & ADAMI
Its attorneys,
BY:
~
2e~
Joel A. Benoit
MOHAN, ALEWELT, PRILLAMAN & ADAMI
1
N. Old Capitol Plaza, Suite 325
Springfield, IL 62701
Telephone: (217) 528-2517
Facsimile: (217) 528-2553
\‘Joel\joel\mapa\Siue\REPLY TO SANJAYS MOTION FOR SJ.wpd/crk 5/13/05 2:12pm
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