BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
WESLEY BRAZAS, JR.,
)
PCB No. 06-131
)
Petitioner,
)
)
Appeal from IEPA decision
vs.
)
granting modified NPDES Permit
)
JEFFREY R. MAGNUSSEN,
)
PRESIDENT, VILLAGE OF
)
HAMPSHIRE, AND THE
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondents.
)
MOTION TO STRIKE
APPELLANT’S BRIEF AND ARGUMENT ON APPEAL
NOW COMES the Respondents, Jeffrey R. Magnussen, Village President, and the
Village of Hampshire, by and through his and its attorneys, Mark Schuster, Schnell, Bazos,
Freeman, Kramer, Schuster & Vanek, and for their Motion to Strike Appellant’s Brief and
Argument on Appeal, state as follows:
1.
The present proceeding is an appeal from the decision of IEPA to issue a modified
NPDES permit to the Village of Hampshire for its wastewater treatment facility and its
expansion of capacity to 1.5 mgd.
2.
Appellant is the only party to have filed a timely appeal from said determination
of IEPA by filing first his Petition for Appeal on January 13, 2006, and then his Amended
Petition on February 12, 2006 (in accordance with the order of the Pollution Control Board).
3.
In his brief and Argument on Appeal, Appellant has made argument far beyond
the sole issue properly before the Board at this time.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 13, 2006
PCB No. 06-131
4.
The only issue raised by Appellant Wesley Brazas, Jr. is whether the public notice
for the Village of Hampshire Modified Permit was deficient due to errors relating to the
calculation of concentration and load limits for pollutants to be discharged into the receiving
stream. See Board Order dated May 4, 2006, and Par. 24 of the Amended Petition.
5.
Appellants are strictly limited to raising issues on appeal only when the same
issue has been raised by the party in written comment properly filed with the Agency prior to the
time of the determination to issue the permit. 415 ILCS 5/40(e)(1).
6.
In this case, by order of the Board, the issues to be raised in the Brazas appeal
were strictly limited by order of the Board entered on March 22, 2006 and on May 4, 2006.
7.
The rule limits the authority of the Board in making a decision.
8.
In this case, Appellant has consistently and repeatedly attempted to raise before
the Board issues that range well beyond the single issue perfected for appeal.
9.
Mr. Brazas summed up his argument to the Board at the time of the public hearing
on his appeal, when he concluded, “The [State of Illinois] process must change.” The arguments
now presented in Appellant’s written brief –re the Clean Water Act, the Ground Water
Protection Act, and the NPDES Program -- are in further pursuit of this goal, to change the entire
system for review and approval of discharge permits in the State. Such argument does not
address the sole issue before the Board in this appeal.
10.
The Board has no jurisdiction to entertain the brief improperly tendered by the
Appellant.
11.
In the alternative, the Board must disregard each and every portion of the Brief
which makes argument beyond the sole issue on this appeal, to wit: whether the public notice for
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 13, 2006
the Village of Hampshire Modified Permit was deficient, due to errors relating to the calculation
of concentration and load limits for pollutants to be discharged into the receiving stream. See
Board Order dated May 4, 2006.
WHEREFORE, Mr. Jeffrey Magnussen and the Village of Hampshire respectfully pray
that the Illinois Pollution Control Board enter its order striking the Brief and Argument filed in
this cause, and in the alternative, disregarding each and every portion of the Brief which makes
argument beyond the sole issue on this appeal,
JEFFREY R. MAGNUSSEN, Village President,
and VILLAGE OF HAMPSHIRE, Respondents,
By: _____________________________________
Mark Schuster
Schnell, Bazos, Freeman, Kramer, Schuster
& Vanek
Mark Schuster #2519089
Schnell, Bazos, Freeman, Kramer, Schuster & Vanek
1250 Larkin Avenue #100
Elgin, Illinois 60123
847-742-8800
mschuster@sbfklaw.com
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 13, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
WESLEY BRAZAS, JR.,
)
PCB No. 06-131
)
Petitioner,
)
)
Appeal from IEPA decision
vs.
)
granting modified NPDES Permit
)
JEFFREY R. MAGNUSSEN,
)
PRESIDENT, VILLAGE OF
)
HAMPSHIRE, AND THE
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondents.
)
RESPONSE
TO MOTION FOR LEAVE TO FILE BRIEF
AMICUS CURIAE
NOW COMES the Respondents, Jeffrey R. Magnussen, Village President, and the
Village of Hampshire, by and through his and its attorneys, Mark Schuster, Schnell, Bazos,
Freeman, Kramer, Schuster & Vanek, and for their Response to the Motion for Leave to File
Brief
Amicus Curiae
, state as follows:
1.
The present proceeding is an appeal from the decision of IEPA to issue a modified
NPDES permit to the Village of Hampshire for its wastewater treatment facility and its
expansion of capacity to 1.5 mgd.
2.
Mr. Wesley Brazas, Jr. is the only party to have filed a timely appeal from said
determination of IEPA by filing first his Petition for Appeal on January 13, 2006, and then his
Amended Petition on February 12, 2006.
3.
Ms. Collins, on behalf of her client, Charles St. George, filed written comment on
July 9, 2006.
4.
Ms. Collins, either for herself as
amicus curiae
or on behalf of her client, Charles
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 13, 2006
St. George, did not at any relevant time, or within the time allowed by Board rule (35 Ill. Admin.
Code 105.206), file any appeal from the decision of IEPA in this matter.
5.
Any appeal by Ms. Collins and/or her client, Charles St. George, is now time-
barred.
6.
In her so-called
Amicus Curiae b
rief (presented at this time with her motion for
leave to file), Ms. Collins has made argument reaching beyond the sole issue properly before the
Board at this time.
7.
The only issue raised by Appellant Wesley Brazas, Jr. in this matter is whether the
public notice for the Village of Hampshire Modified Permit was deficient, due to errors relating
to the calculation of concentration and load limits for pollutants to be discharged into the
receiving stream. See Board Order dated May 4, 2006.
8.
Appellants are strictly limited to raising issues on appeal only when the same
issue has been raised by the party in written comment properly filed with the Agency prior to the
time of the determination to issue the permit. 415 ILCS 5/40(e)(1).
9.
In this case, by order of the Board, the issues to be raised in the Brazas appeal
were strictly limited by order of the Board entered on March 22, 2006, and again on May 4, 2006
(in response to the Motion to Strike filed by the Agency, joined by the Village, and allowed by
the Board).
10.
The rule is jurisdictional. See People v. Michel Grain Company
, PCB No. 96-
143, 2003 WL 22334782 (October 2, 2003).
11.
Board rules allow the filing of a brief
amicus curiae
by an interested party, but
only by permission of the Board, setting forth argument only. No facts not already in evidence
in the matter before the Board are to be presented in any
amicus
brief. 35 Ill. Admin. Code
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PCB No. 06-131
101.110.
12.
Here, without having filed any timely appeal in this cause, Ms. Collins has
endeavored to file for herself and/or her client, Charles St. George, a brief for the first time
raising issues well beyond the single issue perfected for appeal.
13.
The statement of Ms. Collins in her Motion, “I submit this Declaration to provide
the Board with a copy of the attached brief I propose to file as
amicus curiae
on behalf of Mr. St.
George in support of Petitioner, Wes Brazas,” is misleading. The Brief is not in support of the
pending appeal, but rather by raising such new and different issues constitutes a separate and
new appeal altogether.
14.
Moreover, the Brief submitted by Ms. Collins with her Motion for Leave to File
suffers from exactly the same defect as did Mr. Brazas’ argument at the hearing on his appeal,
when he concluded no more than, “The [State of Illinois] process must change.” Ms. Collins
here seeks a platform for her so-called “plain speaking” client for the conclusion that “citizens
who have taken the time to inform themselves appear to be far more cognizant of what
constitutes environmental protection than State agencies charged with that duty.” Such argument
does not address the sole issue before the Board in this appeal.
15.
The Board has no jurisdiction to entertain the brief
amicus curiae
improperly
tendered by the Movant.
16.
The Motion for Leave to File must be denied.
17.
In the alternative, if the Motion be granted, then each and every portion of the
AmicusBrief
which addresses any issue beyond the sole issue on appeal (that “the issued permit
violates public notice requirements,” see Board Order dated May 4, 2006; and in particular, re
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 13, 2006
PCB No. 06-131
Par. 24 of the Amended Petition) must be stricken, including the arguments that the Modified
Permit in this case violates “adequate due process and public participation” requirements; “Board
backsliding prohibitions and anti-degradation requirements”; and “the Clean Water Act, the
Public Trust Doctrine, and Board rules.”
WHEREFORE, Mr. Jeffrey Magnussen and the Village of Hampshire respectfully pray
that the Illinois Pollution Control Board enter its order denying the Motion of Ms. Jane Collins
for herself as
Amicus Curiae
and/or her client, Charles St. George, to file an
Amicus Curiae
brief
in this matter; and in the alternative, to strike each and every portion of such
Amicus Curiae
brief
which addresses any issue beyond the sole issue perfected for the instant appeal.
JEFFREY R. MAGNUSSEN, Village President,
and VILLAGE OF HAMPSHIRE, Respondents,
By: _____________________________________
Mark Schuster
Schnell, Bazos, Freeman, Kramer, Schuster
& Vanek
Mark Schuster #2519089
Schnell, Bazos, Freeman, Kramer, Schuster & Vanek
1250 Larkin Avenue #100
Elgin, Illinois 60123
847-742-8800
mschuster@sbfklaw.com
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JUNE 13, 2006