RECEIVED
CLERKS OFFICE
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
OCT
032005
BOARD OF
TRUSTEES OF
SOUTHERN
)
STATE OF ILLINOIS
ILLINOIS UNIVERSITY GOVERNING
)
Pollution Control Board
SOUTHERN ILLINOIS UNIVERSITY
)
EDWARDSVILLE,
)
)
Petitioner,
)
)
V.
)
PCB
No.
02-105
)
(NPDES
Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE OF FILING AND 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 September
3M
,2005, I filed with the Office of the
Clerk ofthe Pollution
Control Board an
original and nine copies ofPetitioner SIUE’s
Memorandum in
Opposition to Agency’s Motion for Reconsideration by U.S. Mail.
The undersigned hereby certifies that
a
true
and correct copy ofthis Notice of Filing,
together with a copy of the document described above, were today served upon the hearing
officer and counsel of record of all parties to
this cause by enclosing same in
envelopes
addressed to such attorneys at their business addresses as disclosed by the pleadings ofrecord
herein, with postage fully prepaid, and by depositing
same in the U.S. Mail
in Springfield,
Illinois on the
3Ot~~
day of September, 2005.
Joel A. Benoit
MOHAN, ALEWELT, PR.ILLAMAN & 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
\‘Joel\joel\mapa\Siue\Memo
in Opposition to Motion for Reconsiderationwpd/crk
9/30105
9:54
am
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OCT
032005
BOARD OF TRUSTEES
OF SOUTHERN
)
STATE
OF ILLINOIS
ILLINOIS UNIVERSITY GOVERNING
)
Pollution Control Board
SOUTHERN ILLINOIS UNIVERSITY
EDWARDSVILLE,
)
)
Petitioner,
)
)
v.
)
PCB No. 02-105
)
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
PETITIONER SIUE’S MEMORANDUM
IN OPPOSITION TO
AGENCY’S MOTION FOR RECONSIDERATION
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
Memorandum in
Opposition to Agency’s Motion for
Reconsideration.
I.
The Agency’s Motion presents no valid grounds for reconsideration.
“In ruling upon a motion for reconsideration, the Board will consider factors including
new evidence, or a change in the law, to conclude
that the Board’s decision was in
error.”
35
Ill.
Admin.
Code
101.902.
The Board may also consider facts in the record which may have been
overlooked and errors in its
previous application of existing
law.
Carmichael v. Browing-Ferris
Industries, PCB No. 93-114,
1993
Ill. ENV LEXIS 1510 at *2.3
(Dec.
16,
1993).
Through its Motion,
the Agency requests that the Board reverse that portion of its
August
4,2005, Order holding that Section 302.211(e) is not applicable to Tower Lake.
The Agency
offers no new law, previously unavailable
evidence, overlooked facts,
or errors in
the Board’s
previous application of existing law to warrant the Board reconsidering its Order.
Instead, the
Agency argues
that the Board has the power to give
Section 302.211(e)
a more “liberal”
construction
and that the Board
should now do so, reverse
itself,
and hold that
Section
302.211(e)
applies to
all waters ofthe state.
The Agency argues that by doing so, the Board
will
afford
all waters ofthe state the same protection against thermal inputs rivers receive.
This is
simply
a rehash ofthe Agency’s earlier arguments, and rearguing points
already rejected is not
a
valid basis
for seeking reconsideration of an earlier decision.
Wherefore, because the Agency has presented nothing which would warrant
reconsideration by the Board, the Board has no cause to
consider the Agency’s Motion.
II.
The Board properly applied rules of statutory construction
to determine that
Section 302.211(e) does not apply to Tower Lake.
In part, Section 302.211(e)
provides:
e)
In addition, the
water temperature at representative locations
in the main river
shall not exceed the maximum limits in the following table during more than one
percent of the hours in the
12-month period ending with any month.
Moreover,
at
no time
shall the water temperature at such locations exceed the maximum limits
in
the following table by more than 1.7
C (3 F).
C
F
C
F
JAN
16
60
JUL
32
90
FEB
16
60
AUG
32
90
MAR
16
60
SEPT
32
90
APR
32
90
OCT
32
90
MAY
32
90
NOV
32
90
JUNE
32
90
DEC
16
60
35111. Adm.
Code 302.211(e).
In its
August 4, 2005, Order, the Board found:
(a) the
intent of the drafters of Section
302.211(e), as shown by the plain meaning ofthe unambiguous language used, was that
Section
3
302.211(e) applied only to
rivers;
(b) the phrase “in addition” at the beginning of Section
302.211(e)
indicates that the standards
contained in
Section 302.211(e), applicable only
to rivers,
are in
addition to those standards
applicable to all waters ofthe state;
(c) the Board wou1d~not
have defined “main river temperatures” and used the phrase “main river” in Section 302.211(e)
had the Board
intended Section 302.211(e) to
apply to all waters ofthe state;
and
(d) a literal
reading of Section 302.211(e)
does not
defeat the intent of the thermal regulations and is
consistent with
the history of the Board’s thermal regulations.
Based on this
statutory analysis,
the Board correctly determined that Section 302.211(e) was not applicable to
Tower Lake.
In its present Motion,
the Agency has abandoned its
argument that “main river” as used
in Section 302.211(e) means all waters ofthe state.
(Motion, p. 3;
Memorandum, p.
9)).
Apparently conceding that the Board’s literal interpretation of Section 302.211(e) was correct,
the Agency argues that
a
“literal reading” of Section
302.21 1(e)
should be avoided.
(Memorandum, p.
9).
Instead, the Agency suggests that the Board give Section 302.211(e)
a
more “liberal” construction and
“read into” the actual
language employed, (Motion, p.
3), a
meaning unsupported by that
language so that the Board can arrive at the following construction:
The narrative portion of Section 302.211(e) discusses the statistical
variation that
is allowed at the point ofmeasurement in
the case of
a main river.
The monthly maxima water temperature portion of
the regulation would apply
to all waters of the State.
(Motion,
p.
2).
The Agency contends that with
such an interpretation, aquatic life in
lakes and rivers
will
be afforded the same protection.
(Motion, p. 4).’
The Agency argues that
it was not
the original
‘The Agency’s suggested construction would actually provide greater protectionto all
waters of the state than that provided rivers, as only rivers would be
allowed to exceedthe
4
drafter’s intent to lessen the protection of aquatic life in lakes, (Memorandum, p.
10), but admits
that it can “only speculate regarding the original intent.”
(Memorandum, p.
8).
The Agency, then, is asking the Board to disregard all
rules governing statutory
construction and to instead construe Section 302.211(e)
in a manner that bears no relationship to
the plain meaning ofthe language used in
Section 302.211(e) orthe intention of its
drafters.
The
Board must reject this
improper request.
The plain language of Section 302.211(e) cannot be ignored.
In re Marriage of Hawking,
240 Ill. App. 3d 419,427
(1St Dist.
1992)C’ Cannons of statutory construction prevent this court
from ignoring words which plainly appear in a statute.”)
“There is no rule of construction which
authorizes
a court to declare that the legislature did not mean what the plain language of the
statute says.”
Henrich v. Libertvville H.S.,
186 Ill. 2d
381,
391
(1998).
There is
a direct
relationship between the “narrative portion” ofSection 302.211(e) and the monthly maxima
table.
The “narrative portion” refers directly to the “following table”,
i.e., the monthly maxima
table.
“Alt
such locations” in the second sentence ofthe narrative portion of Section 302.211(e)
is a direct reference to
the phrase “representative location in the main river” in the first
sentence.
The “nanative portion” states
that the “water temperature at representative locations in the main
river shall not exceed the maximum limits in the following table
The Agency is
asking the Board to
interpret the monthly maxima table
as applying
tcr aH
waters ofthe state by simply looking at the table in isolation.
In construing a statute, all
ofits
terms must be considered.
It is impermissible
to
focus on a phrase
in
a statute
or regulation (or,
as here,
a table),
and base the construction
solely on that portion.
In the present case, doing
so
monthly maxima for brief time periods.
5
would not necessarily lead to the result sought by the Agency, because the maxima table alone
contains absolutely no
language suggesting what it
might apply
to.
It is the language
immediately preceding the table that informs the reader that the table is applicable to
rivers.
“Under the well-established rules of statutory construction, the words used in a statute must be
given their ordinary and popularly understood meaning, and the relevant language must be
read
within the context ofthe entire provision ofwhich it forms an
integral part.”
Gardner v. City of
Chicago, 319 Ill.
App. 3d 255,
263
(Pt
Dist. 200 1)(quoting Illinois Wood Energy Partners. L.P.
v.
County of Cook,
281
Ill.
App.
3d 841,
850 (1st Dist.
1995)).
Further,
SIUE disagrees with the Agency’s assertion that the original intent ofthe
drafters is unlmown.
As
set forth in
SfUE’s Motion for Summary Judgment and memoranda
filed in support thereof; the drafters
did intend for Section 302.211(e) to
apply to
rivers.
~
re
Mississippi Thermal Standards, PCB No.
R70-16 at *17,
1971 Il1.ENV. LEXIS 37
(Nov.
23,
1971) (“The monthly maxima apply to the main river....”).
For these reasons, the Board should reject the Agency’s suggestion that the Board ignore
the rules of statutory construction.
IV.
The Agency’s argument that it would be better public policy to hold that
Section
302.211(e) applies to lakes is irrelevant to the statutory construction issue.
The Agency complains that
Section 302.211(e) is poorly written.
The Agency argues
that if Section 302.2 11(e) is construed as written, i.e.,
as only applying to
rivers, then lakes will
not receive the same two-tiered protection afforded rivers.
The Agency argues that Wisconsin
and Indiana provide two-tiered protection to
lakes, and the Board should
construe Section
302.211(e)
so that
Illinois also
does so.
6
The Agency is making a policy argument.
Even if the Board agreed with the Agency’s
policy argument,
it is not a valid ground for holding that Section 302.211(e) applies to
lakes
when its unambiguous language makes it clear that it applies only to rivers.
It is the
actual
language used in
Section 302.211(e) that must be examined, not language the Agency wishes
had been used.
“A court must interpret and
apply statutes
in the manner in which
they are
written.
A court must not rewrite statutes to
make them consistent with the court’s idea of
orderliness and public
policy.”
Henrich v. Libertyville H.S.,
186 Ill.
2d 381,
394-395 (1998).
Apparently, the Agency offers the Wisconsin and Indiana regulations as examples of how
Section 302.2 11(e) might have been drafted, but,
as it was not so
drafted, these regulations are
irrelevant to
the issue presented.
It is interesting to note, however, that the Wisconsin regulation
differentiates between streams and lakes, and Wisconsin
even has different regulations
dependent upon the type of fish that may live
in the water.
The Indiana regulations
also
differentiate between streams
and lakes and reservoirs, and,
like Illinois,
has different monthly
maxima requirements dependent upon the type of stream at issue (i.e., Ohio River or other
streams).
Even if a consideration of these regulations were relevant, both sets
of regulations
show that it is proper to differentiate between different types of waters, and the Indiana
regulation tends to
show that it is not necessarily unusual to
apply monthly maxima exclusively
to rivers or streams and
not to lakes, as Indiana has done.
Wherefore, whether it would have been better policy to apply the monthly maxima to
lakes may not be considered by the Board when construing Section 302.21 1(e)as written.
7
V.
Conclusion.
For the reasons discussed herein, Petitioner, Board ofTrustees of Southern Illinois
University Governing
Southem Illinois University requests
that the Board deny the Agency’s
Motion for Reconsideration.
BOARD OF TRUSTEES
OF SOUTHERN
ILLINOIS UNIVERSITY GOVERNING
SOUTHERN ILLINOIS UNIVERSITY,
EDWARDSVILLE, Petitioner,
BY:
MOHAN, ALEWELT,
PRTLLAMAN & ADAMI
Its attorneys,
BY:
MOHAN,
ALEWELT, PPJLLAMAN & ADAMI
1
N.
Old Capitol Plaza, Suite 325
Springfield,
IL 62701
Telephone: (217)
528-2517
Facsimile:
(217) 528-2553
\UoeI\joeI\mapa\siue\Memo in Opposition to Motion for keconsiderationwpdlcrk 9/30/05 9:55 am
8
