ILLINOIS POLLUTION CONTROL BOARD
July 24, 2008
RECEIVED
CLERK'S
OFFICE
JUL 2 4 2008
STATE OF ILLINOIS
Pollution Control Board
UNITED CITY OF YORKVILLE, a municipal )
corporation,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTON AGENCY, and HAMMAN
FARMS,
Respondents.
PCB 08-95
(Permit Appeal – Land)
HEARING OFFICER ORDER
On July 22, 2008, all parties participated in a telephonic status conference with the
hearing officer. Discussions included discovery schedules. Respondent Illinois Environmental
Protection Agency (Agency), citing Des Plaines River Watershed Alliance v. Illinois
Environmental Protection Agency and Village of New Lenox, PCB 04-88 (November 17, 2005),
made an oral objection that discovery is not appropriate in permit appeal matters such as this. In
Des Plaines River Watershed Alliance, the Board, citing Section 40(e)(3) of the Environmental
Protection Act, found that it has consistently held that, in permit appeals, its review is limited to
the record that was before the Agency at the time the permitting decision was made.
On July 23, 2008, respondent Hamman Farms filed a Motion for Hearing Officer's
Ruling on Discovery. Agreeing with the Agency's position that discovery is inappropriate in
permit appeals, Hamman requests an order by the hearing officer that discovery is inappropriate
in this matter. Mot. at 2. The petitioner has not filed a response to the motion, however, because
of the expedited nature of this proceeding, the hearing officer makes the following finding.
Absent an additional waiver, time is of the essence in this particular matter. A hearing
has been scheduled for August 14 and 15, 2008. The present statutory decision deadline is
October 2, 2008. Prior to issuing an order regarding the parameters of discovery, the Agency's
entire record must be filed. Pursuant to Section 105.116 of the Board's procedural rules, the
record was due to be filed on or before July 7, 2008. As of today's date, the record as not been
filed, nor has the Agency filed a motion for an extension of time to file the record. The Agency
is directed to file the record on or before July 28, 2008.
The parties are directed to file a brief elaborating on what information they believe is
arguably relevant, discoverable, and admissible in this proceeding that was not before the Agency
at the time the permit was issued. The briefs are due to be filed on or before August 1, 2008. The
mailbox rule will not apply.
2
It is also noted that the respondents have filed their respective motions to dismiss and the
petitioner has filed its response. The motions to dismiss are therefore ripe to be ruled upon by
the Board. The earliest the Board could rule on the motions is August 7, 2008, at their next
scheduled Board meeting. Should the Board not rule on the respective motions by that date, and
absent an additional waiver of the statutory decision deadline, the hearing will proceed on the
scheduled dates.
Finally, the parties are advised that the hearing officer will be out of the office and
unavailable from July 29 through August 1, 2008.
The parties or their legal representatives are directed to participate in a telephonic status
conference with the hearing officer on August 5, 2008, at 11:00 a.m. The telephonic status
conference must be initiated by the petitioner, but each party is nonetheless responsible for its
own appearance. The conference number will be the one used for the July 22, 2008, telephonic
status conference. will be used At the status conference, the parties must be prepared to discuss
the status of the above-captioned matter.
IT IS SO ORDERED.
--arcia\
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, Illinois 60601
312.814.8917
3
CERTIFICATE OF SERVICE
It is hereby certified that true copies of the foregoing order was mailed, first class,
on July 24, 2008 to each of the persons on the attached service list.
It is hereby certified that a true copy of the foregoing order was hand delivered to
the following on July 24, 2008:
John T. Therriault
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Ste. 11-500
Chicago, Illinois 60601
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,--"'""wa'•••■••••
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
312.814.8917
4
PCB 2008-095
Charles F. Helsten
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
PCB 2008-095
Nicola A. Nelson
Hinshaw & Culbertson
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
PCB 2008-095
Michelle M. Ryan
IEPA
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
PCB 2008-095
Thomas G. Gardiner
Gardiner Koch
&
Weisberg
53 W. Jackson Blvd., Ste 950
Chicago, IL 60604
PCB 2008-095
Michelle M. LaGrotta
Gardiner Koch & Weisberg
53 W. Jackson Blvd., Ste 950
Chicago, IL 60604
PCB 2008-095
Attn: Mr. Donald J. Hamman
Hamman Farms
6275 Route 71
Oswego, IL 60543