ILLINOIS POLLUTION CONTROL BOARD
    July 12, 2007
    DES PLAINES RIVER WATERSHED
    ALLIANCE, LIVABLE COMMUNITIES
    ALLIANCE, PRAIRIE RIVERS NETWORK,
    and SIERRA CLUB,
    Petitioners,
    v.
    ILLINOIS ENVIRONMENTAL
    PROTECTION AGENCY and VILLAGE
    OF NEW LENOX,
    Respondents.
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    PCB 04-88
    (Third-Party NPDES Permit Appeal –
    Water)
    ORDER OF THE BOARD (by G.T. Girard):
    On May 30, 2007, the Illinois Environmental Protection Agency (IEPA) filed a motion,
    and a memorandum of law in support (Memo1), asking the Board to reconsider an April 19,
    2007 opinion and order. On June 1, 2007, the Village of New Lenox (New Lenox) filed a
    motion, and a memorandum of law in support (Memo2), also asking the Board to reconsider the
    April 19, 2007 opinion and order. On June 12, 2007, petitioners filed a response in opposition to
    both motions.
    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).
    Among other arguments, the motions to reconsider raise an argument that the Board
    applied the wrong standard of review and shifted the burden of proof.
    See
    Memo1 at 8-9;
    Memo2 at 2. The Board will address only these arguments for clarity purposes. As to the
    remaining arguments, the IEPA and New Lenox have provided no new evidence or a change in
    the law that would indicate that the Board’s April 19, 2007 decision was in error. Therefore, the
    Board will not address those arguments.
    Both the IEPA and New Lenox argue that the Board shifted the burden of proof from the
    petitioners to the IEPA. This is not the case. The Board correctly stated both the standard of
    review and who bears the burden of proof in the opinion and order.
    See
    Des Plaines Rivers
    Watershed Alliance, Livable Communities Alliance, Prairie Rivers Network, and Sierra Club v.
    IEPA and New Lenox, PCB 04-88, slip op. 11 (Apr. 19, 2007). The Board’s standard of review
    is whether the record establishes that the issuance of the permit will not violate the
    Environmental Protection Act (Act) (415 ILCS 5 (2006)) or Board rules.
    Id
    ., citing
    Prairie
    Rivers Network v. PCB
    et al
    ., 335 Ill. App. 3d 391, 401; 781 N.E.2d 372, 380 (4th Dist. 2002)
    and Joliet Sand & Gravel Co. v. PCB, 163 Ill. App. 3d 830, 833, 516 N.E.2d 955, 958 (3rd Dist.
    1987). The petitioner bears the burden of proving the record does not support the issuance of the
    permit.
    Id
    .
    In this case, petitioners pointed the Board to inadequacies in the record that demonstrate
    that the IEPA did not meet the requirements of the Board’s regulations and the Act. For
    example, the Board’s rules require the IEPA to “assure” that the waters of the State will not be
    degraded unnecessarily in issuing an National Pollutant Discharge Elimination System (NPDES)
    permit.
    See
    New Lenox, slip op. 20, citing 34 Ill. Adm. Code 302.105(c)(2)(B). As pointed out
    by petitioners, the record does not support the issuance of the permit, because the record
    establishes that IEPA did not make these assurances.
    See
    New Lenox, PCB 04-88 slip op. 34-36.
    Thus, the Board did not shift the burden of proof in this case, but rather found inadequacies in
    the record as pointed out by the petitioner.
    Also, in the IEPA’s motion the IEPA “respectfully requests the Board to apply the well
    settled standard of review”. Memo1 at 3. The Board did in fact apply the well-settled standard
    of review. As stated above, the Board’s standard of review is whether the record establishes that
    the issuance of the permit will not violate the Act or Board rules. The IEPA asserts that Board
    did not apply this standard and the burden of proof shifted because the Board “reviewed the
    entire record” in rendering the Board’s decision. Memo1 at 3. To support this position, the
    IEPA relies on the Board’s citation to Section 33(a) of the Act (415 ILCS 5/33(a) (2006)).
    Memo1 at 3. However, the Board made that ruling in response to an argument from respondents
    that because the Board declined to grant summary judgment, the respondents were entitled to
    judgment on the merits.
    See
    , New Lenox, PCB 04-88, slip op. 16-17. The Board merely stated
    the statutory requirement as support for the Board’s finding that a denial of a motion for
    summary judgment does not automatically entitle the individual who prevailed on the motion for
    summary judgment to judgment on the merits. The Board reliance on Section 33(a) was merely
    support for the Board finding that the Board must make findings of fact (
    see
    415 ILCS 5/33(a)
    (2006)).
    In conclusion, the Board has reviewed the arguments by the parties regarding the
    standard of review and burden of proof. The Board has also reviewed the Board’s decision of
    April 19, 2007. The Board finds the arguments unpersuasive and inaccurate. Therefore, the
    Board denies the motions to reconsider and affirms the April 19, 2007 decision.
    IT IS SO ORDERED.
    Section 41(a) of the Environmental Protection Act provides that final Board orders may
    be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
    order. 415 ILCS 5/31(a) (2006));
    see also
    35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
    Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
    Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
    Board’s procedural rules provide that motions for the Board to reconsider or modify its final
    orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
    101.520;
    see also
    35 Ill. Adm. Code 101.902, 102.700, 102.702.
    I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
    the Board adopted the above order on July 12, 2007, by a vote of 4-0.
    ___________________________
    John T. Therriault, Assistant Clerk
    Illinois Pollution Control Board

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