BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DES PLAINES RIVER WATERSHED ALLIANCE,
)
LIVABLE COMMUNITIES ALLIANCE,
)
PRAIRIE RIVERS NETWORK, and SIERRA CLUB,
)
)
Petitioners,
)
)
v.
)
PCB 04-88
)
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and VILLAGE OF NEW LENOX,
)
)
Respondents.
)
NOTICE OF FILING
John Therriault, Assistant Clerk
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, IL 60601
Bradley P. Halloran
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, IL 60601
Albert F. Ettinger
Senior Staff Attorney
Environmental Law & Policy Center
35 East Wacker Drive, Suite 1300
Chicago, IL 60601
Roy M. Harsch
DrinkerBiddleGardnerCarton
191 N. Wacker Drive- Suite 3700
Chicago, Illinois 60606-1698
PLEASE TAKE NOTICE that I have today electronically filed with the Office of the
Clerk of the Pollution Control Board the
MOTION FOR AND MEMORANDUM OF LAW IN
SUPPORT OF RECONSIDERATION
of the Respondent, Illinois Environmental Protection
Agency, a copy of which is herewith served upon the Hearing Officer, the Petitioners and
Respondent.
Respectfully submitted by
_______/ s /_____________
Sanjay K. Sofat
Assistant Counsel
Dated: May 30, 2007
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
(217) 782-5544
THIS FILING PRINTED ON RECYCLED PAPER
Electronic Filing, Received, Clerk's Office, May 30, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DES PLAINES RIVER WATERSHED ALLIANCE,
)
LIVABLE COMMUNITIES ALLIANCE,
)
PRAIRIE RIVERS NETWORK, and SIERRA CLUB,
)
)
Petitioners,
)
)
v.
)
PCB 04-88
)
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and VILLAGE OF NEW LENOX,
)
)
Respondents.
)
AGENCY’S MOTION FOR RECONSIDERATION
NOW COMES the Respondent, Illinois Environmental Protection Agency
(“Illinois EPA” or "Agency") by and through its attorney, Sanjay K. Sofat, Assistant
Counsel and Special Assistant Attorney General, pursuant to 35 Ill. Adm. Code 101.520,
hereby submits this Agency’s Motion for Reconsideration to the Illinois Pollution
Control Board ("Illinois PCB" or "Board"). The Agency is requesting the Board to
RECONSIDER its decision as it erred in applying existing law.
See Citizens Against
Regional Landfill v. County Board of Whiteside County
, PCB 92-156, slip op. at 2
(March 11, 1993), citing
Korogluyan v. Chicago Title & Trust Co
., 213 Ill.App.3d 622,
627, 575 N.E.2d 1154, 1158 (1st Dist. 1991). The Agency respectfully requests the
Board to apply the well settled standard of review. Under Section 40(e) of the Illinois
Environmental Protection Act (“Act”), the standard of review is whether, based on the
record, Petitioners have met their statutory burden. In support of its Motion, the Agency
states as follows:
1
Electronic Filing, Received, Clerk's Office, May 30, 2007
1.
On June 10, 2002, the Village of New Lenox (“New Lenox” or “Village”) filed a
National Pollutant Discharge Elimination System (“NPDES”) permit application
for expansion of its existing wastewater treatment plant.
2.
The Agency issued the NPDES permit to New Lenox on October 31, 2003.
3.
On December 2, 2003 the Des Plaines River Watershed Alliance, Livable
Communities Alliance, Prairie Rivers Network, and the Sierra Club (collectively,
“Petitioners”) filed a petition seeking the Board’s review of the Agency’s issuance
of the NPDES permit. Petitioners argued that the Agency’s failure to adequately
consider the impact of the increased discharge on Hickory Creek violated the
antidegradation and water quality standards of the Board regulations.
4.
On February 4, 2005, Petitioners filed a motion for summary judgment, alleging
that the permit failed to meet Illinois requirements. Specifically, Petitioners
argued that: 1) the Agency did not assure that all technically and economically
reasonable measures were incorporated into the proposed discharge to prevent
nutrient loadings to Hickory Creek; 2) the Agency did not assure that the
applicable narrative ‘offensive conditions’ water quality standards would not be
violated as a result of the proposed discharge to Hickory Creek; and 3) the Agency
did not assure that the applicable numeric copper water quality standards would
not be violated as a result of the proposed discharge to Hickory Creek.
5.
On November 17, 2005, the Board
denied Petitioners' motion for summary
judgment as to each of the three grounds stated above.
6.
A Board hearing was held on March 30, 2006. Petitioners did not present any
exhibits or presented testimony of its witnesses.
2
Electronic Filing, Received, Clerk's Office, May 30, 2007
7.
On April 19, 2007, the Board ruled on the permit issues raised by Petitioners in its
original petition.
8.
On April 25, 2007, the Agency received the Board’s order dated April 19, 2007.
(Hereinafter “
Board’s Order
”).
9.
In its Order, the Board correctly stated that the question before the Board in permit
appeal proceedings is, “[w]hether the third party proves that the permit as issued
will violate the Act or Board regulations.”
Board’s Order
at 11 (
emphasis added
).
10.
However, the Board did not apply this burden of proof in this case. Instead, the
Board reviewed the entire record to determine, “whether the facts support IEPA’s
decision,” to issue the permit.
Board’s Order
at 17.
11.
In support of its new standard of review, the Board cites to Section 33(a) of the
Act. The Board believes that, under Section 33(a), it has a separate and
independent authority to review the entire record to determine whether the facts
support the Agency’s decision to issue the permit.
12.
Pursuant to Section 40(e) of the Act, the burden of proof is on Petitioners. This
burden cannot be shifted away from the petitioner, who alone bears the burden of
proof.
See Prairie Rivers Network v. IEPA and Black Beauty Co.
, PCB 01-112,
slip op. at 14 (Aug. 9, 2001). Section 40(e) thus requires the Board to review the
entire record to determine whether the petitioner has met its burden. This reading
of the Act is consistent with the Board’s prior decision in third-party NPDES
permit appeals and with the Board’s quasi-judicial role. Therefore, the Board’s
reliance on Section 33(a) is an error.
3
Electronic Filing, Received, Clerk's Office, May 30, 2007
13.
In
Prairie Rivers Network v. Illinois Pollution Control Board
, 335 Ill.App.2d 391,
781 N.E.2d 372 (4th Dist. 2002), the court upheld the Board’s reading of Section
40(e) of the Act. The court held that to prevail under Section 40(e), “a third-party
petitioner must show that the permit, as issued, would violate the Act or the
Board’s regulations.”
Id
.
See also Damron v. Illinois E.P.A.
, PCB 93-215 (April
21, 1994).
14.
In its prior third-party permit appeal decisions, the Board applied the same
standard of review and burden of proof as the court did in
Prairie Rivers Network
v. Illinois Pollution Control Board
, 335 Ill.App.2d 391, 781 N.E.2d 372 (4th Dist.
2002). In
Village of Lake Barrington, Cuba Township, Prairie Rivers Network,
Sierra Club, Beth Wentzel and Cynthia Skrukrud v. Illinois EPA and Village of
Wauconda
and
Slocum Drainage Dist. of Lake Co., Illinois v. Illinois EPA and
Village of Wauconda
, PCB 05-55, PCB 05-58 (consolidated) slip op. at 20 (April
21, 2005) (Hereinafter “
Village of Lake Barrington
”), the Board held that, “[t]he
petitioners have failed to establish that the permit as issued would violate the Act
and Board regulations.”
Id.
15.
Also, under Section 40(e), the petitioner, not the Board, is required to show that
the permit as issued would cause a violation of the Act or Board regulations. Thus,
pursuant to Section 40(e)(3) of the Act, Petitioners must come forward with
substantial evidence or lack of substantial evidence in the record to show that the
permit as issued would cause a violation of the Act or Board regulations.
Discretionary issues, disputes of fact or issues that could support the permit in
4
Electronic Filing, Received, Clerk's Office, May 30, 2007
absence must be decided in support of the permit decision. Unsworn comment
cannot create a lack of substantial evidence.
16.
Petitioners cannot meet this burden of proof because there remain genuine issues
of various material facts in the record. The Board specifically determined that,
“substantial issues [remain] unresolved” with regard to various matters in the
record.
Board’s Order
dated November 17, 2005, slip op. at 22.
17.
To prevail under Section 40(e), Petitioners were required to cure genuine issues of
material fact identified by the Board in its November 17, 2005 order. However,
Petitioners made no attempt at the Board hearing to cure these genuine issues of
material facts.
18.
In sum, the Board failed to apply the standard of review established by the express
language of Section 40(e) of the Act. The well settled standard of review in a
third-party permit appeal proceeding is whether Petitioners, based on the facts in
the record, have met their burden under Section 40(e) of the Act.
WHEREFORE, the Agency respectfully requests that the Board
RECONSIDER its decision regarding the standard of review applied to this third-party
permit appeal. Specifically, the Agency requests that the Board’s review must be
whether Petitioners, based on the facts in the record, have established that the permit as
issued would cause a violation of the Act or Board regulations.
Respectfully submitted by,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
_________/ s /________________
Sanjay K. Sofat
5
Electronic Filing, Received, Clerk's Office, May 30, 2007
Assistant Counsel
DATED: May 30, 2007
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
6
Electronic Filing, Received, Clerk's Office, May 30, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DES PLAINES RIVER WATERSHED ALLIANCE,
)
LIVABLE COMMUNITIES ALLIANCE,
)
PRAIRIE RIVERS NETWORK, and SIERRA CLUB,
)
)
Petitioners,
)
)
v.
)
PCB 04-88
)
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL PROTECTION
)
AGENCY and VILLAGE OF NEW LENOX,
)
)
Respondents.
)
AGENCY’S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR
RECONSIDERATION
NOW COMES the Respondent, Illinois Environmental Protection Agency
(“Illinois EPA” or "Agency") by and through its attorney, Sanjay K. Sofat, Assistant
Counsel and Special Assistant Attorney General, pursuant to 35 Ill. Adm. Code 101.520,
hereby submits this Agency’s Memorandum of Law in Support of Motion for
Reconsideration to the Illinois Pollution Control Board ("Illinois PCB" or "Board"). The
Agency respectfully requests the Board to RECONSIDER its decision regarding the
standard of review in a third-party permit appeal proceeding. The Agency contends that
the well settled standard of review in a third party permit appeal is whether Petitioners
have met their burden of proof as required by Section of the Illinois Environmental
Protection Act (“Act”). In support, the Agency states as follows:
7
Electronic Filing, Received, Clerk's Office, May 30, 2007
ARGUMENTS
A party can file a motion to reconsider “to bring to the [Board’s] attention …
changes in law or errors in the [Board’s] previous application of existing law.” (
emphasis
added
)
See Citizens Against Regional Landfill v. County Board of Whiteside County
,
PCB 92-156, slip op. at 2 (March 11, 1993), citing
Korogluyan v. Chicago Title & Trust
Co
., 213 Ill.App.3d 622, 627, 575 N.E.2d 1154, 1158 (1st Dist. 1991). By applying the
standard of review as whether the facts supported the Agency’s decision, the Board has
erred in applying the existing law.
I. Under Section 40(e) of the Act, the Well Settled Standard of Review is Whether
Petitioners have Established that the Permit as Issued Would Violate the Act or
Board Regulations, Not Whether the Agency’s Decision is Supported by the Record.
Pursuant to Section 40(e) of the Act, the Board’s review must be based
exclusively on the record before the Agency and the burden of proof is on the petitioner.
415 ILCS 5/40(e)(3) (2004). The Board correctly stated that the issue before the Board in
permit appeal proceedings is, “[w]hether the third party proves that the permit as issued
will violate the Act or Board regulations.”
Board’s Order
at 11 (
emphasis added
).
However, in its opinion, the Board abandoned this standard of review. Instead, the Board
reviewed the entire record to determine, “whether the facts support IEPA’s decision,” to
issue the permit.
Board’s Order
at 17.
In support of its new standard of review, the Board cites to Section 33(a) of the
Act. According to the Board, Section 33(a) “requires it to enter a final opinion stating the
facts and reason leading to the decision of the Board.”
Board’s Order
at 16. The Board
also reads this section as granting it the authority to “make determinations the Board
8
Electronic Filing, Received, Clerk's Office, May 30, 2007
deems appropriate under the circumstances of the case.”
Id.
The Board, thus, concludes
that it is “required by the Act to review the facts and arguments and make a finding on
those facts.”
Id.
Therefore, the Board believes that, in a third-party appeal, it has a
separate and independent authority under Section 33(a) of the Act to determine whether
the facts support the Agency’s decision to issue the permit.
The Board’s reading of Section 33(a) to conclude that the review in a third-party
permit appeal is whether the facts support the Agency’s decision to issue the permit is an
error. Section 33 of the Act is under Title VIII: Enforcement. However, this is not an
enforcement case; rather, it is a third-party permit appeal. Challenges to the Agency’s
decision regarding permits are governed by Title X of the Act. Section 40(e) under Title
X clearly states that, “the burden of proof shall be on the petitioner.” 415 ILCS 5/40(e)
(2004). The Board’s review thus must be whether the petitioner has met its burden. The
Board’s reliance on Section 33(a) to coin a new standard of review in a third-party permit
appeal is thus inconsistent with the clear mandate of Section 40(e). Further, the only
application of Section 33(a) in reference permit decisions under Title X of the Act is that
the hearing rules of Sections 32 and 33(a) apply at the Board’s hearings.
See Town &
Country Utilities, Inc. v. Illinois PCB
, 2007 WL 851608 (Ill. March 22, 2007).
A.
Under Section 40(e) of the Act, the Board Neither has the
Authority to Conduct a
de novo
Review of the Record, Nor has the
Authority to Shift the Burden of Proof Away from Petitioners to
the Agency.
Pursuant to Section 40(e) of the Act, the Board’s review must be whether
Petitioners have met their burden of proof. In
Prairie Rivers Network
, the Board has
noted that, “IEPA’s [Agency’s] decision to issue the permit in this instance must be
9
Electronic Filing, Received, Clerk's Office, May 30, 2007
supportable by substantial evidence. This does not, however, shift the burden away from
the petitioner, who alone bears the burden of proof in this matter.”
Prairie Rivers
Network v. IEPA and Black Beauty Co.
, PCB 01-112, slip op. at 9 (August 9, 2001),
citing
Waste Management v. IEPA
, PCB 84-45, PCB 84-61, PCB 84-68 (consolidated),
slip op. at 3-10 (November 26, 1984) (
emphasis added
). This reading of the Act is
consistent with the Board’s prior decision in third-party NPDES permit appeals and with
the Board’s quasi-judicial role.
In
Prairie Rivers Network v. Illinois Pollution Control Board
, 335 Ill.App.2d 391,
781 N.E.2d 372 (4th Dist. 2002), the court upheld the Board’s reading of Section 40(e) of
the Act. In
Prairie Rivers Network
, the petitioner, Prairie Rivers Network, appealed the
Agency’s decision to issue a NPDES permit to Black Beauty Coal Company. The
appellate court held that, “Section 40(e)(3) clearly provides that in a third-party appeal,
the burden of proof lies with the petitioner.”
Id.
at 379. Further, the court held that to
prevail under Section 40(e), “a third-party petitioner must show that the permit, as issued,
would violate the Act or the Board’s regulations.”
Id
.
See also Damron v. Illinois
Environmental Protection Agency
, PCB 93-215 (April 21, 1994).
In its prior third-party permit appeal decisions, the Board’s review has been
whether the petitioner, based on the facts in the record, has demonstrated that the permit
as issued would violate the Act or Board regulations. In
Village of Lake Barrington,
Cuba Township, Prairie Rivers Network, Sierra Club, Beth Wentzel and Cynthia
Skrukrud v. Illinois EPA and Village of Wauconda
and
Slocum Drainage Dist. of Lake
Co., Illinois v. Illinois EPA and Village of Wauconda
, PCB 05-55, PCB 05-58
(consolidated) slip op. at 20 (April 21, 2005) (Hereinafter “
Village of Lake Barrington
”),
10
Electronic Filing, Received, Clerk's Office, May 30, 2007
the Board applied the same standard of review and burden of proof as the court did in
Prairie Rivers Network
.
See Prairie Rivers Network v. Illinois Pollution Control Board
,
335 Ill.App.2d 391, 781 N.E.2d 372 (4th Dist. 2002). In
Village of Lake Barrington
, the
Board held that, “[t]he petitioners have failed to establish that the permit as issued would
violate the Act and Board regulations.”
Id.
Thus, in third-party permit appeals the burden
never shifts away from petitioners.
See Prairie Rivers Network v. IEPA and Black
Beauty Co
., PCB 01-112, slip op. at 9 (Aug. 9, 2001).
B.
Petitioners have not and could not demonstrate that the permit as
issued would violate the Act or Board regulations.
Under Section 40(e), the petitioner, not the Board, is required to show that the
permit as issued would cause a violation of the Act or Board regulations. 415 ILCS
5/40(e) (2004). Therefore, Petitioners must come forward with substantial evidence or
lack of substantial evidence in the record to show that the permit as issued by the Agency
would cause a violation of the Act or Board regulations. Petitioners may not meet this
burden by simply asserting that the permit may or might cause a violation of the Act or
Board regulations.
See Prairie Rivers Network v. Illinois Pollution Control Board
, 335
Ill.App.2d 391, 781 N.E.2d 372 (4th Dist. 2002). Thus, the Board’s review must focus
on whether Petitioners have met this statutory burden, before the Board can find that the
permit as issued would violate the Act or Board regulations.
In reviewing the record to determine whether the facts support Petitioners’ motion
for summary judgment, the Board repeatedly stated that it, “cannot conclude that there is
no genuine issue of material fact.”
Board’s Order
, slip op. at 22 (November 17, 2005).
The Board agreed with the Agency that, “[the disputes identified by respondents]
11
Electronic Filing, Received, Clerk's Office, May 30, 2007
nonetheless indicate that significant factual issues remain unresolved.”
Id.
Though the
Board determined that the record presented genuine issues of material fact, in its Order,
the Board concluded that the Agency’s decision to issue the permit is not supported by
the record. In this opinion, the Board did not discuss on whether Petitioners have met
their statutory burden. The Board thus erred in determining that the record that presented
genuine issues of material fact for the Petitioners’ motion for summary judgment was
somehow now sufficient to determine that the permit as issued would violate the Act or
Board regulations.
Also, Petitioners did not present any testimony at the Board’s hearing to cure
genuine issues of material fact identified by the Board in its November 17, 2005 order.
Therefore, Petitioners could not have met their burden under Section 40(e) of the Act
based on the record that had genuine issues of material fact. Simple logic dictates that a
record with genuine issues of material fact cannot show that the permit as issued would
violate the Act or Board regulations, unless the Board concludes that a lesser level of
facts are somehow sufficient to meet the statutory burden under Section 40(e) of the Act.
In sum, the Board failed to apply the well settled standard of review. The
standard of review established by the express language of Section 40(e) of the Act is
whether Petitioners have met their statutory burden of proof.
12
Electronic Filing, Received, Clerk's Office, May 30, 2007
CONCLUSION
For the reasons and arguments provided herein, the Agency respectfully requests that the
Board RECONSIDER its decision regarding the standard of review applied to third-party
permit appeals. Specifically, the Agency requests the Board to apply, whether the
Petitioners have met their statutory burden of proof, as the standard of review in third-
party permit appeals.
Respectfully submitted by,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
_________/ s /_______________
Sanjay K. Sofat
Assistant Counsel
Dated: May 30, 2007
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
13
Electronic Filing, Received, Clerk's Office, May 30, 2007
CERTIFICATE OF SERVICE
I hereby certify that on the 30
th
day of May, 2007, I did send, by electronic mail
following instruments entitled
MOTION FOR AND MEMORANDUM OF LAW IN
SUPPORT OF RECONSIDERATION
:
John Therriault, Assistant Clerk
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, IL 60601
And a true and correct copy of the same foregoing instrument, by First Class Mail with
postage upon thereon fully paid and deposited into the possession of the United States
Postal Service to:
Albert F. Ettinger
Bradley P. Halloran
Senior Staff Attorney
Illinois Pollution Control Board
Environmental Law & Policy Center
James R. Thompson Center, Suite 11-500
35 East Wacker Drive, Suite 1300
100 West Randolph Street
Chicago, IL 60601
Chicago, IL 60601
Roy M. Harsch
DrinkerBiddleGardnerCarton
191 N. Wacker Drive, Suite 3700
Chicago, IL 60606-1698
____________/ s /______________
Sanjay K. Sofat
Assistant Counsel
THIS FILING PRINTED ON RECYCLED PAPER
14
Electronic Filing, Received, Clerk's Office, May 30, 2007