)

)

)

)

PCB No.

06-13

)

(Permit Appeal)

)

)

NOTICE

RECEIVED

CLERK’S OFFICE

SEP

072005

STATE OF ILLINOIS

Pollution Control Board

Dorothy M. Gunn, Clerk

Illinois

Pollution Control

Board

James R.

Thompson Center

100 West Randolph Street

Suite

11-500

Chicago,

IL 60601

Ann T. Dempsey

Oliver, Close, Worden,

Winkler & Greenwald LLC

124 North Water Street, Suite 300

P.O. Box 4749

Rockford,

IL

61110-4749

Bradley P. Halloran, Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite

11-500

Chicago,

IL 60601

PLEASE

TAKE

NOTICE that Ihave today filed with the office of the Clerk of the Pollution Control

Board a MOTION FOR ORDER OF PROTECTION, copies of which are herewith served upon

you.

Respectfully submitted,

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Respondent

JohtJ.

Kim

Assistant Counsel

Special Assistant Attorney General

Division of Legal

Counsel

1021

North Grand Avenue, East

P.O.

Box

19276

Springfield, Illinois 62794-9276

217/782-5544

217/782-9143 (TDD)

Dated: September 2, 2005

BEFORE

THE

POLLUTION CONTROL BOARD

OF THE

STATE OF ILLINOIS

ST. FRANCIS PET CREMATORY

&

KENNELS,

INC., an Illinois Corporation,

Petitioner,

V.

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

This

riling

submitted on recycled paper.

---

BEFORE THE

POLLUTION

CONTROL BOARD

RECEIVED

OF THE

STATE OF ILLINOIS

CLERK’S OFFICE

SEP

072005

ST. FRANCIS PET

CREMATORY &

)

KENNELS, INC.,

an

Illinois

Corporation,

)

STATE OF ILLINOIS

Petitioner,

)

Pollution Control Board

v.

)

PCBNo.

06-13

ILLINOIS ENVIRONMENTAL

)

(Permit Appeal)

PROTECTION AGENCY,

)

Respondent.

)

MOTION FOR ORDER OF PROTECTION AND PRIVILEGE LOG

NOW COMES

the

Respondent,

the Illinois

Environmental Protection

Agency

(“Illinois

EPA”), by

one

of its

attorneys, John

J.

Kim, Assistant

Counsel

and

Special

Assistant

Attorney

General,

and

hereby

presents

the

Hearing

Officer

with

the

following

motion

for

order

of

protection for documents

from

disclosure

and

accompanying

privilege

log.

In support of this

motion for order of protection, the Illinois EPA provides

as follows.

1.

Exhibits

1

and

2

in the privilege

log

are memoranda between an

in-house Illinois

EPA attorney and the manager of the

Illinois EPA’s Bureau ofLand Permit Section.

2.

As

such,

the

documents

are

attorney-client

communications

and

attorney

work

product prepared in anticipation of litigation.

Neither of the documents has been disseminated to

the general

public,

and both were generated

as

part ofthe internal

review process of the Illinnis

EPA.

The

documents

are protected

from

disclosure by

the

attorney-client

privilege

and

the

attorney work product privilege.

-

3.

Exhibits

3

through

6

are reviewer

notes,

in

both

redaeted

and

unredacted

form,

which

make

specific

reference

to

Exhibits

1

and

2

and

the

content

therein

as

well

as

other

comments

received

from

in-house

counsel.

The

redacted

information

cites

to

or

paraphrases

information contained

in Exhibits

I

and

2

and other

comments

from

in-house

counsel,

and

the

redacted pages are

included within the Administrative

Record.

1

---

4.

Group

Exhibit

4

consists of a

letter

sent

from

counsel

for

the Petitioner

to

the

Illinois

EPA on December 31,

2004,

a

letter sent from

the Illinois EPA to Petitioner’s

counsel on

July 30, 2005, and the documents which were the subject of those pieces ofcorrespondence.

The

documents

represent

a

request

by

the

Petitioner

that

the

Illinois

EPA

withhold

from

public

disclosure

certain

information

within

the

permit

application

that

the

Petitioner

argued

was

proprietary

and

confidential.

The Illinois

EPA agreed with the request, and

has since withheld

those

documents.

5.

For these reasons, and

the reasons more

specifically provided

below, the

Illinois

EPA

seeks

an

order

of protection

from

the

Hearing

Officer,

deeming

that

the

documents be

withheld

from disclosure.

6.

Privilege

Log

(Documents

below

are provided

only

to

Hearing

Officer

for

in-

camera review):

Exhibit #

Document description

Justification for protection from disclosure

1.

3/30/05 memo

Memorandum

from

Mark

Wight

of

the

Illinois

EPA’s

Division

of

Legal

Counsel

(“DLC”)

to

Joyce

Munie

of

Illinois

EPA’s

permit

section;

DLC’s

analysis

and

arguments

regarding

the

need

for

proof

of

local

siting

approval by the Petitioner.

2.

6/27/05

memo

Memorandum

from

Mark

Wight

of

the

Illinois

EPA’s

Division

of

Legal

Counsel

(“DLC”)

to

Joyce

Munie

of

Illinois

EPA’s

permit

section;

DLC’s

analysis

and

arguments

regarding

the

need

for

proof

of

local

~iting

approval by the Petitioner.

3.

Undated notes

Reviewer

notes

of

Beverly

Albarracin;

cites

to

and

references content of Mark Wight’s 3/30/05

memorandum.

4.

Undated notes

Redacted

version

of Exhibit

#3

as found

on

page

5

of the

Administrative Record.

5.

Undated notes

Reviewer

notes

of

Beverly

Albarracin;

cites

to

and

references

comments

from

William (Bill)

Ingersoll of DLC

2

---

6.

Undated notes

7.

Letters/exhibits

and

includes

analysis

that

also

references

Mr.

Ingersoll’s

comments.

Redacted

version

of Exhibit

#5

as

found

on

page

7 of the

Administrative Record.

Correspondence between counsel

for the Petitioner and

the

Illinois

EPA

regarding

exemption

from

public

disclosure

request.

7.

For the reasons

stated herein,

the

Illinois

EPA hereby respectfully

requests

that

the Hearing Officer enter an order ofprotection, preventing the above-described documents from

disclosure through inclusion in the Administrative Record and discovery in the present appeal.

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

JohhJ.Kim

Assistant Counsel

Special Assistant Attorney General

Division of Legal Counsel

1021 North Grand Avenue, East

P.O. Box

19276

Springfield, Illinois 62794-9276

217/782-5544

-

2 17/782-9143 (TDD)

Dated:

September 2, 2005

This filing

submitted on recycled paper.

3

---

CERTIFICATE OF SERVICE

I, the undersignedattorney at law, herebycertify that on September 2, 2005, I served true and

correct copies of a MOTION FOR ORDER OF PROTECTION, by placing true and correct copies

thereofin properly sealedand addressed envelopes and by depositing said sealedenvelopes in a U.S.

Mail drop box locatedwithin Springfield, Illinois, with sufficient First Class postage affixed thereto,

upon the following named persons:

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite 11-500

Chicago, IL 60601

Ann 1. Dempsey

Oliver, Close, Worden,

Winkler & Greenwald LLC

124 North Water Street, Suite 300

P.O. Box 4749

Rockford, IL

61110-4749

ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,

Jolt

J.

Kim’

Assistant Counsel

Special

Assistant Attorney General

Division of Legal Counsel

1021

North Grand Avenue, East

P.O.

Box

19276

Springfield, Illinois

62794-9276

217/782-5544

217/782-9143 (TDD)

Bradley P. Halloran, Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite

11-500

Chicago, IL 60601

R-

This filing submitted on recycled paper.