ILLINOIS POLLUTION CONTROL BOARD

October 6, 2005

BOARD OF TRUSTEES OF SOUTHERN

ILLINOIS UNIVERSITY GOVERNING

SOUTHERN ILLINOIS UNIVERSITY,

EDWARDSVILLE,

Petitioner,

v.

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

)

)

)

)

)

)

)

)

)

)

)

)

PCB 02-105

(NPDES Permit Appeal)

ORDER OF THE BOARD (by N.J. Melas):

In today’s order, the Board denies the respondent’s September 15, 2005 motion for

reconsideration (Mot.) and reaffirms the Board’s August 4, 2005 final opinion and order in this

matter.

On January 1, 2002, the Environmental Protection Agency (Agency) issued a final

National Pollutant Discharge Elimination System (NPDES) permit for discharges from Southern

Illinois University, Edwardsville’s (SIUE) heating and cooling facility to Tower Lake at the

SIUE campus, Highway 157, Edwardsville, Madison County. On May 6, 2002, SIUE requested

review of the NPDES permit on four primary grounds: (1) the discharge of its non-contact

cooling water should not have to meet the temperature requirements of 35 Ill. Adm. Code

302.211(d) because Tower Lake is man-made and has no natural temperature; (2) the permit

requirements concerning 35 Ill. Adm. Code 302.211(e) are not applicable because they apply to

rivers, not lakes; (3) the proposed permit provides no monitoring points in Tower Lake; and (4)

the monitoring requirements for the permit are inconsistent.

On August 4, 2005, the Board granted SIUE’s motion for summary judgment in part and

denied it in part. Similarly, the Board granted the Agency’s cross motion for summary judgment

in part and denied it in part. Specifically, the Board ordered the Agency to strike Special

Condition 2.B, containing the language of Section 302.211(e), from SIUE’s January 2, 2002

NPDES permit no. IL 0075311, and affirmed the remaining contested conditions of that permit,

specifically Special Conditions 2.A and 3. Section 302.211(e) sets temperature limits for the

different months of the year, known as “monthly maxima.” 35 Ill. Adm. Code 302.211(e).

A party may move the Board to reconsider and modify a decision within 35 days after

receiving a final Board order. 35 Ill. Adm. Code 101.520(a). The Agency received the Board's

final order on August 10, 2005. The motion for reconsideration, filed September 15, 2005, is

---

2

therefore timely. Accompanying the motion for reconsideration, the Agency also filed a

memorandum in support of the motion (Memo). SIUE responded on October 3, 2005 (Resp.).

In its motion, the Agency moves the Board for reconsideration of its final opinion and

order arguing that the Board should “apply the monthly maxima temperature limits portion of

Section 302.211(e) to all waters of the State.” Mot. at 4. The Agency “admits that the Section

302.211(e) language is poorly drafted.” Memo at 8. Accordingly, the Agency urges the Board

to avoid a literal reading of Section 302.211(e) in favor of a liberal one.

Id

. at 9. A literal

interpretation that applies the monthly maxima limits to all waters of the state, argues the

Agency, would protect waters at temperatures necessary for propagation of fish in waters of the

State other than rivers. Memo at 10.

In response, SIUE states the Agency offers no new law, previously unavailable evidence,

overlooked facts, or errors in the Board’s previous application of the existing law to warrant the

Board’s reconsideration of the final opinion and order. Resp. at 1-2. SIUE states the Agency’s

motion must fail for two reasons. First, SIUE states that by asking the Board to apply a “liberal”

interpretation rather than a “literal reading” of Section 302.211(e), the Agency is essentially

asking the Board to disregard al rules governing statutory construction. Resp. at 5. SIUE

contends the basic rules of statutory construction require the Board to consider the plain meaning

of Section 302.211(e). Resp. at 5; citing

In re

Marriage of Hawking, 240 Ill. App. 3d 419, 427

(1st Dist. 1992);

Henrich v. Libertyville H.S., 186 Ill. 2d 381, 391 (1998).

Second, SIUE states the Board must also reject the Agency’s public policy argument that

if Section 302.211(e) is construed as applying only to rivers, then lakes will not receive the same

two-tiered protection afforded rivers. Resp. at 6. SIUE emphasizes that the Agency admits that

Section 302.211(e) is poorly written. SIUE contends that poorly drafted language, however,

does not afford a court the liberty to “‛rewrite statutes to make them consistent with the court’s

idea of orderliness and public policy.’” Resp. at 7; citing

Henrich, 186 Ill. 2d 381, 394-95. For

these reasons, SIUE states the Board must deny the Agency’s motion for reconsideration.

A motion to reconsider may be brought “to bring to the [Board’s] attention newly

discovered evidence which was not available at the time of the hearing, changes in the law or

errors in the [Board’s] previous application of existing law.”

Citizens Against Regional Landfill

v. County Board of Whiteside County, PCB 92-156, slip op. at 2 (Mar. 11, 1993), citing

Korogluyan v. Chicago Title & Trust Co., 213 Ill. App. 3d 622, 627, 572 N.E.2d 1154, 1158 (1st

Dist. 1991);

see also

35 Ill. Adm. Code 101.902. A motion to reconsider may specify “facts in

the record which were overlooked.”

Wei Enterprises v. IEPA, PCB 04-23, slip op. at 5 (Feb. 19,

2004). “Reconsideration is not warranted unless the newly discovered evidence is of such

conclusive or decisive character so as to make it probable that a different judgment would be

reached.”

Patrick Media Group, Inc. v. City of Chicago, 255 Ill. App. 3d 1, 8, 626 N.E.2d 1066,

1071 (1st Dist. 1993).

The Board denies the Agency’s motion for reconsideration, finding the Agency has

presented no newly discovered evidence, changes in the law, or errors in the Board’s application

of the existing law. The Agency asks the Board to change its interpretation of Section

302.211(e).

---