BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
PROPOSED EXTENSION OF ADmSTED STANDARD )
APPLICABLE
TO ILLINOIS-AMERICAN
)
WATER COMPANY'S ALTON PUBLIC WATER
)
SUPPLY FACILITY DISCHARGE
)
TO THE MISSISSIPPI
RNER
)
NOTICE OF FILING
AS 2007-2
(Adjusted Standard)
John Therriault, Assistant Clerk
Illinois Pollution Control Board
James
R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
William Richardson, Chief Legal Counsel
Illinois Department
of Natural Resources
One Natural Resource Way
Springfield, Illinois 62702
Matthew
J.
Dunn
Division Chief, Environmental Enforcement
lIlinois Attorney General
100 West Randolph Street,
12
th
Floor
Chicago, Illinois 60601
Sanjay Sofat
Division
of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, Illinois 62794-9274
PLEASE TAKE NOTICE that on September 28,2007, the PETITIONER ILLINOIS-
AMERICAN WATER COMPANY'S MOTION FOR LEAVE TO FILE A SUR-REPLY
INSTANTER
and PETITIONER ILLINOIS-AMERICAN WATER COMPANY'S SUR-REPLY
TO THE AGENCY'S POST-HEARING REPLY BRIEF were filed with the Clerk ofthe
Pollution Control Board. A copy is herewith served upon you.
Respectfully submitted,
An Attorney for Petitioner
Electronic Filing, Received, Clerk's Office, September 28, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
PROPOSED EXTENSION OF ADJUSTED STANDARD )
APPLICABLE TO ILLINOIS-AMERICAN
)
WATER COMPANY'S ALTON PUBLIC WATER
)
SUPPLY FACILITY DISCHARGE
)
TO THE MISSISSIPPI RIVER
)
AS 2007-2
(Adjusted Standard)
PETITIONER ILLINOIS-AMERICAN WATER COMPANY'S
MOTION FOR LEAVE TO FILE A SUR-REPLY
INSTANTER
Petitioner Illinois-American Water Company ("Illinois-American Water"), by its
attorneys Bradley
S. Hiles and Alison M. Nelson, respectfully moves for leave under 35 Ill.
Adm. Code 101.500(e) to file a sur-reply in opposition to the Agency'sPost-Hearing Reply Brief
(hereafter, the "Agency Response" or "Ag. Resp. Br."). In support
of this motion, Illinois-
American Water states as follows:
1. On August 28, 2007, a hearing in this matter was held at the Madison County
Administration Building in Edwardsville, Illinois.
2. The Hearing Report entered August 29,2007, provides that concurrent briefs were
due
by September 10, 2007, and that concurrent responses were due by September
18,2007.
3. On September 10, 2007, Illinois-American Water filed the PETITIONER
ILLINOIS-AMERICAN WATER COMPANY'S POST-HEARING BRIEF IN
SUPPORT OF ITS AMENDED PETITION FOR EXTENSION OF ADJUSTED
STANDARD, and the Illinois Environmental Protection Agency (the "Agency")
filed the AGENCY'S POST-HEARING BRIEF.
4.
On
September 18, 2007, the Agency responded to Illinois-American Water'spost-
hearing
briefby filing the Agency Response, and Illinois-American Water
responded to the Agency'spost-hearing briefby filing the PETITIONER
ILLINOIS-AMERICAN WATER COMPANY'S RESPONSE TO THE
AGENCY'S POST-HEARING BRIEF.
5. The Agency Response contains an argument that is both misleading, without merit,
and untimely.
It
is an argument that could have been presented at the hearing.
Specifically, the Agency Response states that "Illinois-American's 'trading
project' has been removed from USEPA'sRegion V Trading List because there
were no trading provisions and it is generally inconsistent with federal law." (Ag.
1
Electronic Filing, Received, Clerk's Office, September 28, 2007
Resp. Br. at 13.) The Agency submits an e-mail from George Azevedo and a
spreadsheet attached to that e-mail in support
of its argument.
6.
Under Section 101.500(e) of the Board'srules, a party filing a motion does not
have the right to reply to a response to that motion "except as permitted by the
Board or the hearing officer to prevent material prejudice." A motion for leave to
file a reply must be filed with the Board within 14 days after service
of the
response.
7.
Here, filing a reply to the Agency Response is necessary to prevent material
prejudice because:
•
The documents attached to the Agency'sResponse (a spreadsheet and e-mail)
were in the possession
of Toby Frevert, (the Agency'sonly testifying
witness), five days before the August
28,2007 hearing. Yet, the Agency did
not offer those documents into evidence or even hint
of their existence. The
Agency also failed to attach the documents to its Post-Hearing Brief. Instead,
the Agency waited until Petitioner had no further right to present testimony
or
written argument to spring these documents and arguments on Petitioner and
the Board;
•
Neither the spreadsheet nor the e-mail establish that Illinois-American
Water'spoint/non-point source offset was removed from the U.S.
Environmental Protection Agency's ("USEP
A's") Trading Permit Database
because Illinois-American Water'sNPDES permit does not contain trading
provISIOns;
•
The Agency's argument is wrong, because Illinois-American Water'sNPDES
permit does contain trading provisions;
•
Neither the spreadsheet nor the e-mail support the Agency's argument that
Illinois-American Water'spoint/non-point source offset was removed from
USEPA'sTrading Permit Database because the offset is "generally
inconsistent with federal law"; and
•
Illinois-American Water believes that the e-mail attached to the Agency
Response is not a true and accurate copy
ofthe e-mail Toby Frevert received
on August 23,2007.
8.
Whether Illinois-American Water'suse of an offset involving non-point source
savings is consistent with federal law is an important issue in this proceeding, and
the Board should consider the views ofboth parties on this newly-presented
information before rendering its decision.
9.
Granting this motion will not result in hardship or prejudice to the Agency. The
Agency received the e-mail from George Azevedo and the attached spreadsheet
on August 23, 2007 - before the hearing, and before the concurrent briefs were
2
Electronic Filing, Received, Clerk's Office, September 28, 2007
due. Further, granting this motion will ensure that this newly-presented evidence
is properly addressed for the Board'sconsideration.
In order to prevent the material prejudice that would result from the inability to confront
the Agency's argument, Illinois-American Water requests leave to file a sur-reply to the Agency
Response. In the interest
of allowing the Board to decide whether to grant Illinois-American
Water'sproposed extension
of AS 99-6 at its meeting on October 4,2007, or October 18,2007
without delay, the proposed sur-reply is attached to this Motion for Leave.
Respectfully submitted,
By:
Bradley S. 'les, #03128879
Blackwell Sanders LLP
720 Olive St., 24th Floor
St. Louis,
MO 63101
Telephone: (314) 345-6000
Facsimile: (314) 345-6060
An
Attorney for Petitioner
3
Electronic Filing, Received, Clerk's Office, September 28, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
PROPOSED EXTENSION OF ADJUSTED STANDARD )
APPLICABLE TO ILLINOIS-AMERICAN
)
WATER COMPANY'S ALTON PUBLIC WATER
)
SUPPLY FACILITY DISCHARGE
)
TO THE MISSISSIPPI
RNER
)
AS 2007-2
(Adjusted Standard)
PETITIONER ILLINOIS-AMERICAN WATER COMPANY'S
SUR-REPLY TO THE AGENCY'S POST-HEARING REPLY BRIEF
Petitioner Illinois-American Water Company ("Illinois-American Water"), by its
attorneys Bradley
S. Hiles and Alison M. Nelson, sur-replies in opposition to the Agency's Post-
Hearing Reply Brief (hereafter, the "Agency Response" or "Ag. Resp. Br.").
ARGUMENT
The Agency Response states that "Illinois-American's 'tradingproject' has been removed
from USEPA'sRegion V Trading List because there were no trading provisions and it is
generally inconsistent with federal law." (Ag. Resp. Br. at 13.) This argument is both
misleading, without merit, and untimely, should be rejected for
anyone of five reasons,
discussed below.
1.
Neither the Spreadsheet nor the E-mail Establish that Illinois-American
Water's Offset was Removed from USEP
A's
Trading Permit Database
Because the NPDES Permit Does Not Contain Trading Provisions
The Agency Response states that Illinois-American Water'soffset project was removed
from USEP
A's Trading Permit Database because "there were no trading provisions" in Illinois-
American Water'sNPDES permit. (Ag. Resp. Br. at 13.) Nothing in the spreadsheet or the e-
mail attached to the Agency'sReply supports this outrageous contention. Viewed in isolation,
the words in the Trading Permit Database spreadsheet - listing the "Trade Status"
of Illinois-
American Water'soffset as "[n]o longer considered a trade in R5. Permit never included trading
STLDOl-1356862-1
1
Electronic Filing, Received, Clerk's Office, September 28, 2007
provisions?" - might support the Agency's argument, but the punctuation cannot be
overlooked.
The statement that the permit never included trading provisions is followed by a
question mark. (Ag. Resp. Br. at Attachment 2.) This clearly shows that the author
of the
spreadsheet, an intern,
was (correctly) unsure of the truthfulness ofthis statement.
In addition, the intern's correspondence forwarding the spreadsheet to USEPA's Region
heads asks all recipients to "verify that the information is correct." (Ag. Resp. Br. at Attachment
1.)
Similarly, Mr. Azevedo's e-mail forwarding the spreadsheets to "Water Quality Trading
Colleagues" asks all recipients
to "review the information in the attached spreadsheet from your
state and inform
me of any errors."
Id.
Illinois-American Water's NPDES permit does contain
trading provisions
1 and, not surprisingly, the Agency failed to notify Mr. Azevedo of this
mistake. (Ag. Resp. Br. at Attachment 1.) The
Agency's claim that Illinois-American Water's
offset "captured the attention of USEPA" and was then removed from the Trading Permit
Database because "there were no trading provisions" is therefore misleading and erroneous
on its
face.
2.
Illinois-American Water's
NPDES
Permit Does Contain Trading Provisions
In any case, the Agency's argument is wrong because Illinois-American Water'sNPDES
Permit does contain trading provisions. The Permit provides that "[t]he 1995 'Piasa Creek
Macrosite: a Demonstration
ofNon-Point Source Pollution Remediation and Water Quality
Improvement
Plan' ('Piasa Creek Plan') shall be revised to achieve by October 2010 a sustained
2: 1 reduction
of sediment loading in the Mississippi River when comparing control ofthe
sediment to the Piasa Creek to the discharge of residuals from permittee'sAlton facility," and
that "[w]ithin 36 months
of the effective date of this permit, permittee through the GRLPA shall
1 This issue is discussed in Section 2, below.
STLDO1-1356862-1
2
Electronic Filing, Received, Clerk's Office, September 28, 2007
begin significant implementation of the Piasa Creek Plan."
See
NPDES Permit No. IL0000299,
Special Condition No. 13(b), (g) (attached to the Petition for Extension as part
of Attachment C).
Together, these conditions require Illinois-American Water to implement a plan to achieve a 2:1
reduction, or "offset," and the Scope of Services attached to the Piasa Creek Plan clearly outlines
the responsibilities
of Illinois-American Water and Great Rivers Land Trust ("GRLT") to
accomplish this.
Contrary to the Agency'sassertion, these "offset" permit conditions are "trading
provisions."
EPA's May 1996 Draft Framework for Watershed-Based Trading explains that
"[g]enerally, the term 'trading'describes any agreement between parties contributing to water
quality problems on the same waterbody that alters the allocation
ofpollutant reduction
responsibilities among the sources."
See
EPA's Draft Framework at xiii. The framework groups
"trades" into five categories, including "PointINonpoint Source Trading," in which "a point
source(s) arranges for control
ofpollutants from nonpoint source(s) to undertake greater-than-
required pollutant reductions in lieu of upgrading its own treatment beyond the minimum
technology-based discharge standards, to achieve water quality objectives more effectively."
See
id.
Here, Illinois-American Water (a point source) has, through its agreement with GRLT,
arranged for control
ofpollutants from nonpoint source(s) in the Piasa Creek Watershed to
achieve a 2 to 1 offset (a greater-than-required pollutant reduction).
Notably, the spreadsheet itself acknowledges that Illinois-American Water'soffset is a
trading program. One
of the columns of the table, titled "PS-PS or PS-NPS?", identifies whether
the listed projects are "point source/point source" projects or "point source/non-point source"
projects. The entry for Illinois American Water Company'sNPDES Permit categorizes the
STLDOI-1356862-1
3
Electronic Filing, Received, Clerk's Office, September 28, 2007
offset as "PS-NPS," which is consistent with the categories of trading projects identified in
EPA's Draft Framework.
The Agency'sargument that "there were no trading provisions" in Illinois-American
Water'sNPDES Permit,
see
Ag. Resp. Br. at 13, ignores the language of EPA's Draft
Framework, and ignores the sections of the Trading Permit Database spreadsheet that categorize
the offset as a trade. USEPA'smisunderstanding of the specific provisions in Illinois-American
Water'sNPDES permit is forgivable,2 but the Agency'sfailure to correct an obvious mistake
simply because it served their end goal - defeating the adjusted standard at any cost - is not.
3.
Neither the Spreadsheet nor the E-mail Support the Agency's Argument that
Illinois-American Water's Offset was Removed from USEPA's Trading Permit
Database Because the Offset is "Generally Inconsistent with Federal Law"
The Agency Response also states that Illinois-American Water'soffset project was
removed from USEPA'sTrading Permit Database because the offset is "generally inconsistent
with federal law." (Ag. Resp. Br. at 13.) Nothing in the spreadsheet or the e-mail supports this.
The spreadsheet does not even mention consistency with federal law, much less present this as a
reason that Region V would no longer consider the offset a "trade." (Ag. Resp. Br. at
Attachment
2.) Also, the correspondence from Mr. Azevedo simply forwards the spreadsheet
and asks all recipients to review the information and inform him of any errors. (Ag. Resp. Br. at
Attachment 1.) The Agency's claim that Illinois-American Water's offset "captured the
attention of USEPA" and was then removed from the Trading Permit Database because "it is
generally inconstant with federal law" is therefore misleading and entirely without support.
2 The Trading Permit Database spreadsheet was prepared by an aRISE Intern located in EPA'sWashington, D.C.
office.
STLD01-1356862-1
4
Electronic Filing, Received, Clerk's Office, September 28, 2007
4.
Illinois-American Water Believes that the E-mail Attached to the Agency's
Response is not a True and Accurate Copy
of the E-mail Toby Frevert
received on August 23, 2007
The Affidavit of Toby Frevert attached to the Agency Response states that "I received an
email from Mr. George Azevedo, the NPDES Nutrients and Water Quality Trading Coordinator
for USEPA Region
5, on August 23, 2007," and that "[t]he email attached to the Agency'sPost-
Hearing Reply Brief as Attachment I is a true and accurate copy
of that email... (Ag.Resp.Br.
at 17.) Illinois-American Water believes that these statements are untrue.
Notably, Toby Frevert is not listed as a recipient
of Mr. Azevedo'sAugust 23, 2007
e-mail, sent at 10:01:53 AM. (Ag. Resp. Br. at Attachment
1.)
(In
fact, no recipients are listed
all.) Rather, the e-mail itself shows that Mr. Azevedo's correspondence was forwarded to Mr.
Frevert
by Al Keller at 11:32 AM on August 23,2007. Illinois-American Water objects to the
Agency'suse ofthe e-mail because it does not appear that Mr. Frevert received the e-mail
directly from Mr. Azevedo and thus cannot attest to its authenticity.
Also, several sections
of the e-mail indicate that someone in the Agency redacted or
otherwise edited portions of the e-mail before submitting it to the Board as an attachment. No
recipients
of Mr. Azevedo's correspondence are listed; the e-mail is addressed, "Dear Water
Quality Trade Colleagues," but the address block that should precede the e-mail is missing.
Also, no recipients are listed for Mr. Keller's correspondence. His brief comment is included,
but the address block that should precede his comment is missing. Finally, there are several
inches
of space on the second page of the e-mail-a rather interesting gap-which suggests that
certain content was obscured. Illinois-American Water thus objects to the Agency's use ofthe e-
mail because it appears that e-mail submitted by the Agency is not the full and complete e-mail
received by Mr. Frevert.
STLDO 1-1356862-1
5
Electronic Filing, Received, Clerk's Office, September 28, 2007
5.
The Agency Should be Barred From Introducing the E-mail and Spreadsheet
in the Last Round of Briefing
With some regret, Illinois-American Water also presents a troubling issue of timing to the
Board. Toby Frevert, the Agency'sonly witness at the August 28, 2007 hearing, was in
possession
ofthe Azevedo e-mail and the USEPA Trading Permit Database Spreadsheet five full
days before he testified. He conveniently failed to mention either document at that time
or offer
either document into evidence. Had he done so, he would have been subject to cross-
examination, and the documents would have been objected to and perhaps excluded from
evidence on authenticity, hearsay and "best evidence" grounds. Similarly, the Agency could
have included the documents in its Post-Hearing Briefon September 10 - eighteen days after Mr.
Frevert came into possession
of the e-mail and Spreadsheet - but the Post-Hearing Briefwas
silent with respect to both documents. So, once again, Illinois-American Water had no chance to
review, object to, or even argue against the relevance, authenticity or believability
of the
documents. Only now, after Illinois-American Water'stime to cross-examine Mr. Frevert and
submit final written arguments has passed, does the Agency elect to produce this "new
evidence." Sandbagging
of this variety should not be permitted by the Board. The Azevedo e-
mail, the Database and all arguments and references thereto in the Agency'sReply Brief should
be stricken from the record.
CONCLUSION
Fundamental notions of good faith and fair dealing dictate that a portion of the Agency's
Reply Brief, and all of the attachments to that Brief, be stricken from the record. The "new
information" offered by the Agency was known to the Agency'sone and only witness five days
before the hearing. Waiting until after the hearing and after the filing
of Post-Hearing Briefs to
STLDO1-1356862-1
6
Electronic Filing, Received, Clerk's Office, September 28, 2007
By:
"spring" this information on the Petitioner and the Board is classic sandbagging and should not
be allowed.
But
ifthe Board elects to consider the Agency's arguments and the documents the
Agency submits in support, they should be seen for what they are - misleading arguments
supported only
by unreliable information generated by a USEPA intern, information that is
loaded with conclusions which are in some cases clearly wrong. The most blatant error is that
the intern concluded that Illinois-American Water'sNPDES Permit "never included trading
provisions." Exactly the opposite is true: Illinois-American Water'spermit does contain trading
provisions. Yet, the Agency, when specifically invited to inform USEPA
of any errors, chose
not to correct that blatant error. Why not? Because the Agency saw an opportunity to have the
last word in this case. In that regard, Al Keller's final message to Toby Frevert is telling. Rather
than informing USEPA that Illinois-American Water'sNPDES permit contains trading
provisions, Mr. Keller said "I am going to advise George the info is perfect for Illinois."
It
may
be perfect for the Agency'sagenda in this case, but it is an imperfect view
of the truth.
For the foregoing reasons, Illinois-American Water requests that the Board disregard the
Agency'sargument and grant the proposed adjusted standards based on the remaining arguments
presented by the parties.
Respectfully submitted,
ILLINOIS-AMERICAN WAT R COMPANY
~
Bradley S. Hil s, #03128879
Blackwell Sanders LLP
720 Olive St., 24th Floor
St. Louis, MO 63101
Telephone: (314) 345-6000
Facsimile: (314) 345-6060
An
Attorney for Petitioner
STLDOl-1356862-1
7
Electronic Filing, Received, Clerk's Office, September 28, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
PROPOSED EXTENSION OF ADJUSTED STANDARD
APPLICABLE TO ILLINOIS-AMERICAN
WATER COMPANY'SALTON PUBLIC WATER
SUPPLY FACILITY DISCHARGE
TO THE MISSISSIPPI RIVER
)
)
) AS 2007-2
) (Adjusted Standard)
)
)
)
CERTIFICATE OF SERVICE
I hereby certify that on September 28,2007, the attached PETITIONER ILLINOIS-
AMERICAN WATER COMPANY'SMOTION
FOR LEAVE TO FILE A SUR-REPLY
INSTANTER
and PETITIONER ILLINOIS-AMERICAN WATER COMPANY'S SUR-REPLY
TO THE AGENCY'S POST-HEARING REPLY BRIEF were filed
by electronic transmission
with the Office
of the Clerk of the Illinois Pollution Control Board, and were served by first class
mail, postage prepaid, upon the following persons:
John Therriault, Assistant Clerk
lllinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
William Richardson,
Chief Legal Counsel
lllinois Department ofNatural Resources
One Natural Resource Way
Springfield, lllinois 62702
Matthew
J. Dunn
Division Chief, Environmental Enforcement
lllinois Attorney General
100 West Randolph Street, 12
th
Floor
Chicago, lllinois 60601
STLDOI-1356862-1
Sanjay Sofat
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, lllinois 62794-9276
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box 19274
Springfield, lllinois 62794-9274
Respectfully submitted,
By:
Bradley
S. Hi s, #03128879
Blackwell San ers LLP
720 Olive St., 24th Floor
St. Louis, MO 63101
Telephone: (314) 345-6000
Facsimile: (314) 345-6060
An
Attorney for Petitioner
Electronic Filing, Received, Clerk's Office, September 28, 2007
