BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DesPlaines River Watershed
)
Alliance, Livable Communities
)
Alliance, Prairie Rivers Network,
)
and Sierra Club
)
)
Petitioners
)
PCB 04-88
)
(Third Party NPDES Permit Appeal
v.
)
Water)
)
Illinois Environmental Protection
)
Agency and Village of New Lenox
)
)
Respondents
)
NOTICE OF FILING
TO: See Attached Service List
PLEASE TAKE NOTICE that the Environmental Law and Policy Center of the Midwest
(“ELPC”), DesPlaines River Watershed Alliance, Livable Communities Alliance, Prairie Rivers
Network, and Sierra Club today have electronically filed
Petitioners’ Response to the Motions
of the Illinois Environmental Protection Agency and the Village of New Lenox for
Reconsideration.
Respectfully submitted,
____________________________
Albert F. Ettinger (Reg. No. 3125045)
Counsel for Environmental Law & Policy
Center, Prairie Rivers Network and Sierra
Club
DATED: June 12, 2007
Electronic Filing, Received, Clerk's Office, June 12,2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DesPlaines River Watershed
)
Alliance, Livable Communities
)
Alliance, Prairie Rivers Network,
)
and Sierra Club
)
)
Petitioners
)
PCB 04-88
)
(Third Party NPDES Permit Appeal- Water)
v.
)
)
Illinois Environmental Protection
)
Agency and Village of New Lenox
)
)
Respondents
)
Petitioners’ Response to the Motions of the Illinois Environmental Protection Agency and
the Village of New Lenox for Reconsideration
As recently stated by the Board in denying a motion for reconsideration:
In ruling on 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. Adm. Code 101.902.
In Citizens Against Regional Landfill v. County Board of
Whiteside, PCB 93-156 (Mar. 11, 1993), we observed that the
intended purpose of a motion for reconsideration is to bring to the
court's attention newly discovered evidence which was not
available at the time of hearing, changes in the law or errors in the
court's previous application of the existing law." Korogluyan v.
Chicago Title & Trust Co., 213 Ill. App. 3d 622, 627, 572 N.E.2d
1154, 1158 (1st Dist. 1992). The motion to reconsider presents no
new evidence or a change in the law that would indicate that the
Board's September 16, 2004 decision was in error. Therefore, the
motion to reconsider is denied.
American Bottom Conservancy v.
Illinois EPA
, PCB No(s). 06-171,2007 Ill. ENV LEXIS 183 (May
3, 2007).
Here, the motions for reconsideration brought by the Illinois Environmental Protection Agency
(“IEPA”) and the Village of New Lenox (“New Lenox”) are notable chiefly in that neither
movement attempts even half-heartedly to raise factors necessary for a proper motion for
reconsideration. Certainly, IEPA and New Lenox do not cite any newly discovered evidence or
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Electronic Filing, Received, Clerk's Office, June 12,2007
newly decided cases. Further, IEPA and New Lenox do not attempt to explain how the Board in
its ruling in this case overlooked some critical fact or authority. Instead, IEPA and New Lenox
repeat arguments that were fully discussed and properly rejected in the
Opinion and Order of the
Board of April 19, 2007
, 2007 Ill. Env. LEXIS 149 (hereinafter “
April 19, 2007 Order
”).
Plainly, the IEPA and New Lenox motions for reconsideration should be denied.
In particular, IEPA and New Lenox repeat two arguments that have been exhaustively
briefed in the past. First, seemingly unable to believe that it is possible for a party to lose when
the opposing party has the burden of proof, IEPA and New Lenox repeat the uncontroversial
point that Petitioners had the burden of proof in this case and then discuss Board decisions in
which the party with the burden of proof failed to sustain its burden. IEPA and New Lenox
succeed only in proving that the Board reaches different results under different factual situations.
IEPA and New Lenox also attempt to argue that the Board’s ruling on Petitioners’ motion
for summary judgment is somehow inconsistent with its final ruling in this case. The Board
specifically dealt with this issue by pointing out the elementary principle that because of the
strict standards applied to motions for summary judgment, a party can fail to win summary
judgment on an issue yet later prevail on that issue when ordinary standards apply.
April 19,
2007 Order
at 17.
Finally, New Lenox makes a pseudo-constitutional argument that “due process rights”
were denied by the fact that it was not allowed to take discovery in this proceeding. (New Lenox
Motion at 2, New Lenox Memorandum at 15) This argument has been considered and rejected
twice by the Board in this case. (
Order of the Board
November 17, 2005 at 39-40 and
April 19,
2007 Order
at 19.) Moreover, in making this argument, New Lenox relies on cases decided
before the legislature enacted the statute regarding third-party appeals that governs this case.
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Electronic Filing, Received, Clerk's Office, June 12,2007
According to 415 ILCS 5/40(e), the case is to be decided “exclusively on the basis of the record
before the Agency.”
Extensive argument is not needed in this Response because all of the arguments made by
IEPA and New Lenox have been considered by the Board. Some response is made here,
however, to the use and misuse of Board decisions and other precedents contained in the IEPA
and New Lenox briefs.
I.
The Board properly found that Petitioners carried their burden to show that
issuance of the permit violated the Environmental Protection Act and Board
rules governing issuance of NPDES permits.
There are three now well-established principles governing third-party appeals of NPDES
permits that the Board carefully followed in its
April 19, 2007 Order
but that IEPA and New
Lenox ignore and distort. These principles are:
- The agency decision must be supported by substantial evidence. See the many cases
cited in Petitioners’ Post-Hearing Memorandum, April 21, 2006 at 19.
- A third party appeal must be decided “exclusively on the basis of the record before the
Agency.” 415 ILCS 5/40(e).
- The burden of proof is on Petitioners to show that the permit as issued violated the
Environmental Protection Act or the Board rules.
Prairie Rivers Network v. Illinois
Pollution Control Board
, 335 Ill. App. 3d 391, 400, 781 N.E. 2d 372, 379 (4
th
Dist.
2002).
Putting these fundamental principles together means that it was Petitioners’ burden here
to show from the agency record that in issuing the permit IEPA violated the Environmental
Protection Act or the Board rules. Petitioners met that burden in this case by showing that IEPA
in issuing the permit violated various Board rules including the basic rule that there must be
substantial evidence in the record to support the agency decision.
3
Electronic Filing, Received, Clerk's Office, June 12,2007
IEPA and New Lenox both cite and rely on the Board’s decisions in
Prairie Rivers
Network v. IEPA
PCB 01-112 (Aug. 9, 2001) and
Village of Lake Barrington v. IEPA
PCB 05-55
(Apr. 21, 2005) but they did not read those decisions with sufficient care. This is shown most
notably where New Lenox seeks to make much of the fact that the Board in its
April 19, 2007
Order
made various findings that the
record
did not support issuance of the permit New Lenox
Brief at 2, (emphasis in original), and then argues that the Board erred because it should have
instead focused on what Petitioners had proven rather than what was contained in the agency
record. New Lenox brief at 8-9. New Lenox either missed or deliberately ignored the language in
Prairie Rivers Network
that states: “IEPA’s decision to issue the permit must be supportable by
substantial evidence.”
Prairie Rivers Network
at 8.” Contrary to New Lenox’s argument,
Prairie
Rivers Network
supports the Board looking to see if there is substantial evidence in the record to
support IEPA’s decision.
Indeed, in
Prairie Rivers Network
and
Village of Lake Barrington,
the Board considered
each objection made by the petitioners in those cases and considered whether there were facts in
the record that adequately addressed the objection. For example, in
Village of Lake Barrington,
the Board noted that objections had been made IEPA’s failure to place phosphorus limits in the
draft permit. The Board found, however, that IEPA met these objections by placing phosphorus
limits in the final permit.
Village of Lake Barrington
at 9 and 11. Similarly, in
Prairie Rivers
Network
, the Board affirmed the permit only after finding from the agency record that there were
studies that had been performed by the agency or conditions placed in the permit that addressed
each of the alleged flaws in the permit.
Prairie Rivers Network
at 18, 21, 24, and 26-27. The
petitioners in
Prairie Rivers Network
and
Village of Lake Barrington
failed to meet their
respective burdens because the Board found that there was substantial evidence in the record to
4
Electronic Filing, Received, Clerk's Office, June 12,2007
support the agency position as to every point at issue. The Board certainly did not suggest in
either
Prairie Rivers Network
or
Village of Lake Barrington
that it would have affirmed the
agency decision if it had not found substantial evidence in the record that supported IEPA’s
issuance of the permit.
In stark contrast, the Petitioners in this case have raised objections to the draft permit and
showed that IEPA violated Board rules by issuing the permit without addressing those
objections. Petitioners also pointed to the unanswered evidence in the record showing that the
discharge allowed by the permit could adversely affect Hickory Creek and that the extent of the
pollution allowed by the permit had not been shown to be necessary, as required by 35 Ill. Adm.
Code 302.105(c). The Board found that there was not substantial evidence in the record to
support IEPA’s decision. Overturning a permit that is not supported by the agency record is
completely consistent with prior Board rulings and the basic principles of administrative law.
See
Petitioner’s Post Hearing Reply Memorandum July 21, 2006 at 7-9.
New Lenox also stresses that the April 19, 2007 Order states that IEPA “
failed to assure
”
or “
did not assure
” certain environmental protections and argues again that this means that the
Board shifted the burden. New Lenox Brief at 8, (emphasis in original). Use of this language,
however, does not show that the Board shifted the burden of proof, but only that the Board
properly read the Board rules applicable to permit issuance in finding that IEPA violated those
rules.
Whether New Lenox likes it or not, the words “assure” and “ensure” appear in the Board
rules 35 Ill. Adm. Code 302.105(c)(2)(B), 309.14. For example, one of the several ways in which
petitioners carried their burden in this case was by showing from the agency record that IEPA
failed to “assure” that increased loadings of phosphorus would not result in violations of water
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Electronic Filing, Received, Clerk's Office, June 12,2007
quality standards.
April 19, 2007 Order
at 36. In arguing that the Board was wrong to insist that
IEPA assure things that the Board rules require IEPA to “assure,” New Lenox either has not
reviewed the language of the applicable Board rules or it is arguing that a permit should be
affirmed even if it has been shown that IEPA issued the permit in violation of Board rules.
II.
There is no inconsistency between the Board’s denial of Petitioners’ motion
for summary judgment and the April 19, 2007 Order
The Board made quite clear in its order denying Petitioners’ motion for summary
judgment that it was doing so because summary judgment was “drastic” and could only be done
if Petitioners’ right to relief was “clear and free from doubt.”
Order of the Board
, November 17,
2005 at 7. Contrary to the argument implied by IEPA and New Lenox, the Board did not hint that
Petitioners somehow had to put on witnesses at the hearing to prevail.
1
In effect, the Board gave Petitioners an opportunity to put forward more evidence from
the record, which they used, and gave IEPA and New Lenox another opportunity to try to find
substantial evidence in the record to support issuance of the permit. However, because the
agency record lacks substantial evidence to support a number of Agency decisions and in fact
shows that IEPA violated numerous Board rules, IEPA and New Lenox were unable to make use
of their second chance.
In its brief, IEPA also offers a jumbled argument that suggests that the agency feels that it
should always prevail if there are issues of material fact and that “simple logic dictates” that
IEPA must prevail under 415 ILCS 5/40(e) if the Board finds that there was a material fact as to
any issue. IEPA Brief at 12. This confuses the standard on summary judgment with the standard
applied after the hearing. Moreover, the Board has made clear in many decisions that it will
1
For the Board to have done this would have been rather strange given that the Board also
reaffirmed in that order that the evidence was limited to the agency record.
(at 39-40)
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Electronic Filing, Received, Clerk's Office, June 12,2007
overturn an IEPA decision that is not supported by substantial evidence even if there is some
evidence that supports it. See cases cited in Petitioners’ Post Hearing Reply Memorandum, July
26, 2006 at 7-9.
III.
New Lenox was accorded all the process to which it is entitled under law
New Lenox’ complaint that it was wrongfully deprived of discovery is unmasked as a
canard by the fact that New Lenox has never offered a coherent explanation of what it
conceivably could have found through discovery that would make any difference in this case.
The one time that New Lenox attempted any such explanation, it completely failed to justify
discovery.
See Order of the Board
April 24, 2005 at 5-6.
New Lenox, of course, does not cite any authority showing that its constitutional rights
were violated. The caselaw it cites regarding its supposed right to discovery under Illinois law is
all completely inapposite because none of it applies to third party appeals. Whether the Board
proceeding in a permit appeal is “adjudicatory” or not is beside the point. The Board can only
adjudicate a case based on the evidence that is relevant to the proceeding which in this case was
limited to the record before the Agency. 415 ILCS 5/40(e).
2
One is never entitled to take discovery into matters that cannot lead to admissible
evidence.
Cohn v. Bd. of Educ.
, 118 Ill. App. 2d, 453, 457, 254 N.E. 2d 803, 804-05 (2d Dist.
1970). Given that the Agency record is the only evidence that is relevant to a third party NPDES
permit appeal, discovery would only be appropriate if the contents of the Agency record are in
dispute, and they are not disputed here.
See Order of the Board
, November 17, 2005, at 39.
2
New Lenox mentions
Prairie Rivers Network v IEPA and Black Beauty Coal Company
(PCB
01-112) as a case in which discovery was allowed. (New Lenox Brief p. 12) Actually, discovery
was allowed because the petitioner’s counsel failed to object. In the Board’s ruling in the case,
the Board refused to consider any evidence outside the agency record, (
Prairie River Network
August 9, 2001 pp. 9, 24) and it was apparent that the parties had wasted much time and effort in
collecting evidence through discovery that was irrelevant to the Board’s decision.
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Electronic Filing, Received, Clerk's Office, June 12,2007
New Lenox attempts to twist the remark in the
April 19, 2007 Order
stating that New
Lenox could have sought in the hearing to “clarify” the agency record (p.19) to support the
illogical conclusion that New Lenox was entitled to offer evidence that was the result of
discovery that went beyond the agency record. New Lenox Brief at 16. Of course, New Lenox
could have attempted to clarify the agency record by combing the record for evidence supporting
its position and presenting that evidence to the Board. As the Board noted, New Lenox could
have attempted to do this through testimony at the hearing. It could also have made this attempt
in its briefs. But unfortunately for New Lenox, there was nothing to clarify in the record that
could save the permit. No amount of discovery could put something into the agency record that
was not there.
Conclusion
The motions of IEPA and New Lenox for reconsideration should be denied.
Respectfully Submitted,
Albert Ettinger
Counsel for Petitioners
Environmental Law & Policy Center
35 E. Wacker Dr, Suite 1300
Chicago, IL 60601
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Electronic Filing, Received, Clerk's Office, June 12,2007
CERTIFICATE OF SERVICE
I, Albert F. Ettinger, certify that on June 12, 2007, I filed the attached
Petitioners’ Response to the Motions of the Illinois Environmental Protection
Agency and the Village of New Lenox for Reconsideration
upon the persons listed in
the attached service list via U.S. Mail.
Respectfully submitted,
Albert F. Ettinger (Reg. No.
3125045)
Counsel for Environmental Law &
Policy Center, Prairie Rivers
Network and Sierra Club
DATED: June 12, 2007
Electronic Filing, Received, Clerk's Office, June 12,2007
PCB 04-88-Service List
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, IL 60601
Sanjay K. Sofat, Assistant Counsel
Illinois Environmental Protection Agency
P.O. Box 19276
Springfield, IL 62794-9276
Roy M. Harsch
Sheila H. Deely
Drinker Biddle Gardner Carton
191 N. Wacker Drive, Suite 3700
Chicago, IL 60606-1698
Electronic Filing, Received, Clerk's Office, June 12,2007
