I’
ECEUVE
,,
- ,
CLERK’S
OFFICE
DEC
2
2
2008
OFFICE
OF THE
ATTORNEY
GENERAL
STATE
OF ILLINOIS
STATE
OF
ILLINOIS
ollutton
Control
Board
Lisa
Madigan
VIlORNEY GENERAL
December
17, 2008
John
T.
Therriault,
Assistant
Clerk
Assistant
Clerk of the
Board
Illinois
Pollution
Control
Board
James
R. Thompson
Center, Ste.
11-500
100
West Randolph
Chicago,
Illinois
60601
Re:
City
of Quincy
v. IEPA
PCB
No. 08-86
Dear
Clerk:
Enclosed
for
filing please
find
the
original
and
one
copy
of
a
Notice
of
Filing,
Respondent’s
Motion
for Leave
to
File Instanter
and
Respondent’s
Response
to Motion
for
Summary
Judgment
in
regard
to
the
above-captioned
matter.
Please
file
the
originals
and return
file-stamped
copies
to me in the
enclosed
envelope.
Thank you
for
your cooperation
and consideration.
Very
truly yours,
Thomas Davis,
Bureau Chief
Environmental
Bureau
500 South
Second
Street
Springfield,
Illinois
62706
(217)
782-9031
TD/pjk
Enclosures
500 South
Second Street,
Springfield,
Illinois
62706
• (217) 782-1090
o
TTY:
(877)
844-5461
• Fax:
(217)
782-7046
100
West Randolph
Street,
Chicago,
Illinois 60601
• (312)
814-3000
• TTY: (800)
964-3013 •
Fax: (312) 814-3806
1001 East
Main,
Carbondale,
Illinois
62901
•
(618)
529-6400
• TTY:
(877)
675-9339 • Fax:
(618)
529-6416
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
r’
CITY
OF QUINCY,
)
an Illinois municipal
corporation,
)
ST1L
•.ut:cn
Cor’
Petitioner,
)
v.
)
PCB No. 08-86
)
(NPDES Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
NOTICE OF
FILING
To:
Fred C. Prillaman
Mohan, Allewelt, Prillaman
&
Adami
One North Old State Capital Plaza,
Ste.
325
Springfield, IL 62701
PLEASE TAKE NOTICE
that on
this
date I
mailed
for
filing with
the Clerk of the Pollution
Control
Board of the
State
of Illinois, Respondent’s
Motion for Leave to
File Instanter
and
Respondent’s
Response
to
Motion for Summary Judgment, copies
of
which are attached
hereto
and
herewith served upon you.
Respectfully submitted,
PEOPLE OF THE STATE OF
ILLINOIS
LISA MADIGAN,
Attorney General of the
State of Illinois
MATTHEWJ.
DUNN, Chief
Environmental Enforcement/Asbestos
Litigation
Division
BY:_________________________
THOMAS DAVIS, Bureau Chief
Assistant Attorney General
Environmental Bureau
500 South
Second
Street
Springfield, Illinois
62706
217/782-9031
Dated:
December 17, 2008
CERTIFICATE
OF
SERVICE
I hereby
certify that
I
did
on December
17, 2008,
send
by First Class
Mail,
with
postage
thereon
fully prepaid,
by depositing
in
a
United
States
Post Office
Box
a
true
and
correct
copy
of
the following
instruments
entitled
NOTICE
OF
FILING,
RESPONDENT’S
MOTION
FOR
LEAVE
TO FILE
INSTANTER
and
RESPONSE
TO MOTION
FOR
SUMMARY
JUDGMENT
To:
Fred C.
Prillaman
Mohan,
Alewelt,
Prillaman
&
Adami
First
of
America
Center
1 North
Old State
Capitol
Plaza,
Ste.
325
Springfield,
IL 62701-1
323
and the
original
and
ten
copies
by First
Class
Mail with
postage
thereon fully
prepaid
of the
same
foregoing
instrument(s):
To:
Dorothy
Gunn,
Clerk
Illinois
Pollution Control
Board
James
R.
Thompson
Center
Suite 11-500
100 West
Randolph
Chicago,
Illinois 60601
A copy was
also sent
by
First Class
Mail with
postage thereon
fully
prepaid
to:
Carol Webb
Hearing Officer
Illinois
Pollution Control
Board
1021
North Grand
Avenue
East
Springfield,
IL
62794
THOMAS
DAVIS, Bureau
Chief
Assistant
Attorney
General
This filing
is
submitted
on
recycled paper.
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
CITY
OF
QUINCY,
)
an Illinois
municipal
corporation,
)
J
,..,
Petitioner,
)
— +
,
)
v.
)
PCB
No.
08-86
)
(NPDES
Permit Appeal)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
)
Respondent.
)
RESPONDENT’S
MOTION
FOR
LEAVE
TO FILE
INSTANTER
Respondent,
ILLNOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
by its
attorney.
LISA
MADIGAN,
Attorney
General
of the State
of Illinois,
hereby
moves
for
leave
to file
instanter
a
Response
to the
Motion
for Summary
Judgment
by the City
of Quincy,
and states
as
follows:
1.
By
agreement
of
the parties,
the
Hearing
Officer
issued
an
order on
December
1,
2008,
directing
the
Respondent
to file
its response
to the City’s
Motion
for Summary
Judgment
by
December
15, 2008.
2.
Due to
the
press
of other business,
the
undersigned
counsel
for
the
Respondent
did
not
obtain
the necessary
affidavit
to accompany
the
responsive
pleadings
until
December
17,
2008.
3.
The
above-referenced
order also
directed
the
Petitioner
to
file any
reply
by
December
29, 2008.
4.
The
Respondent
respectfully
requests
leave
to file
the
attached
Response
instanter
and
suggests
that the
Petitioner
be
granted additional
time
to
file
any reply.
WHEREFORE,
the
ILLINOIS
ENVIRONMENTA
PROTECTION
AGENCY,
requests
leave
to file
instanter
the Response to
the Motion for
Summary Judgment.
Respectfully submitted,
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
ex rel. LISA MADIGAN,
Attorney
General
of the State
of
Illinois
MATTHEW
J.
DUNN,
Chief
Environmental
Enforcement/Asbestos
Litigation Division
BY:_________________
THOMAS
DAVIS, Chief
Environmental
Bureau
Assistant
Attorney General
Attorney Reg. No. 3124200
500
South Second Street
Springfield, Illinois 62706
21 7/782-903 1.
Dated:
/2/t
7/ø
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
-
CITY
OF
QUINCY,
)
an Illinois
municipal
corporation,
)
Petitioner,
)
:‘-
4;),s
v.
)
PCB
No. 08-86
)
(NPDES
Permit
Appeal)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
)
Respondent.
RESPONSE
TO MOTION
FOR
SUMMARY
JUDGMENT
Respondent,
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
by its
attorney.
LISA
MADIGAN,
Attorney General
of the State
of Illinois,
hereby
responds
and
objects
to
the
Motion
for Summary
Judgment
by
the City of
Quincy,
and states
as follows:
1.
Summary
judgment is
only
appropriate
when the
pleadings,
depositions,
admissions
on
file, and
affidavits
disclose
that
there
is no genuine
issue as
to any material
fact
and the moving
party
is entitled
to judgment
as
a matter
of law.
Dowd
&
Dowd, Ltd.
v. Gleason,
181
Ill.
2d
460, 483
(1998). In
ruling on
a
motion for
summary
judgment,
the
Board
“must
consider
the
pleadings,
depositions,
and
affidavits
strictly against
the
movant
and
in favor
of
the
opposing
party.” Id.
Summary
judgment
“is
a
drastic
means
of disposing
of litigation,”
and
therefore
it should
be granted
only
when the
movant’s
right
to the relief
“is clear
and free
from
doubt.”
Id, citing
Purtill
v.
Hess, 111111.
2d
299,
240
(1986). When
ruling
on motion
for
summary
judgment,
it
is
not the
Boards
function to
resolve disputed
factual
question,
but
to
determine
whether
one
exists.
2.
A
genuine
issue
of material
fact
exists
not
only
when
facts
are in
dispute,
but also
where reasonable
persons
could
draw different
inferences
from
undisputed
facts.
See, e.g.,
Larsen v. Viv
Tanney Int’l,
130 Ill. App.
3d
574
(5th
Dist. 1984);
In
re
Estate
of
Ciesiolkiewicz,
243 Ill. App.
3d
506 (Pt
Dist.
1993).
Moreover,
the different
inferences drawn
from the
facts
may
depend
upon
the interests
of the parties.
3.
The
Illinois
EPA had
a
meeting
with
the
City
and
its
consultants
on July 12,
2007,
at their request,
to discuss
the
terms
and conditions
of the draft
NPDES permit
and the
issues
relating to combined
sewer overflows
(CSOs)
and sensitive
areas.
4.
The City’s
Motion
for Summary
Judgment
alleges: “During
the [July 12,
2007]
meeting, it was agreed
that none of
the City of
Quincy’s
CSOs discharged
to sensitive
areas. .
.
(Motion, page
8).
The letter
dated
August 8, 2007, from
the City
of
Quincy, which
was
addressed
to
Richard Pinneo
of the Illinois EPA,
stated in pertinent
part: “The
consensus
of
meeting
attendees was
that none of the combined
sewer overflows
(CSOs)
impacted receiving
waters
in Quincy’s
system were identified
as sensitive
areas.” (JEPA
Exhibit 22; Record,
page
268).
Neither
factual statement is accurate.
In the
attached affidavit
of Ralph Hahn,
he
states
with direct
and personal knowledge
that the Illinois
EPA did not agree
at the meeting
with
the
City
and its consultants on
July 12, 2007, that none
of the City
of
Quincy’s
CSOs discharged
to
sensitive
areas.
5.
The NPDES
permit
issued
to the City of Quincy
represents
the best
professional
judgment
of the Illinois
EPA regarding
the
application
of
federal
policy
and State regulations.
The
Motion for Summary
Judgment
is premised
upon
the allegation
that the Illinois EPA
had
agreed,
prior to
the issuance of the NPDES
permit,
that none
of
the City
of Quincy’s
CSOs
discharged
to
sensitive areas.
No
affidavit supports
this factual allegation
by the
City.
The
Illinois
EPA’s counter-affidavit
specifically denies
this allegation.
Therefore,
there exists
a
genuine
issue of
material fact
precluding the
Board
from
granting judgment
on the pleadings.
WHEREFORE,
the
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
requests
that the Motion
for
Summary
Judgment
be DENIED.
Respectfully
submitted,
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
ex rel.
LISA MADIGAN,
Attorney
General
of the
State
of
Illinois
MATTHEW
J.
DUNN,
Chief
Environmental
Enforcement/Asbestos
Litigation
Division
BY:__________________
THOMAS
DAVIS,
Chief
Environmental
Bureau
Assistant
Attorney
General
Attorney
Reg. No.
3124200
500
South Second
Street
Springfield,
Illinois
62706
217/782-9031
Dated:
BEFORE
THE ILLINOIS
POLLUTION
CONTROL
BOARD
CITY
OF QUINCY,
)
an Illinois
municipal
corporation,
)
)
Petitioner,
)
)
v.
)
PCB No.
08-86
)
(NPDES
Permit
Appeal)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
)
Respondent.
)
AFFIDAVIT
Upon
penalties
as
provided
by
law
pursuant
to
§
1-109
of
the Code of
Civil Procedure,
I,
RALPH HAHN,
certify that
the factual
statements
set forth
in this
instrument
are true
and
correct, except
as
to
matters
therein
stated to
be
on
information
and belief
and as to
such
matters
that I verily
believe
the
same to be
true:
1.
I am
employed
by
the Illinois
Environmental
Protection
Agency,
1021
North
Grand
Avenue
East,
Springfield,
Illinois
62794-9276,
in the
Permit
Section of
the
Bureau
of
Water.
2.
In the
performance
of
my
duties, I have
participated
in the
review
of and
discussions
regarding
the
National
Pollutant
Discharge
Elimination
System
(NPDES)
Permit
Number
1L003
0503
issued to
the
City of
Quincy.
In particular,
I
attended
a meeting
with
the
City and
its
consultants
on July 12,
2007,
to
discuss
the terms
and
conditions
of the
draft NPDES
permit
and
the
issues
relating
to
combined
sewer
overflows
(CSOs) and
sensitive
areas.
Subsequent
to the
meeting,
I received
a letter
dated August
8,
2007,
from
the
City of Quincy.
3.
The
City of
Quincy has
sought
review
of the
final
NPDES permit
issued
by the
Illinois
Environmental
Protection
Agency.
I
have
been
asked
by the Attorney
General’s
Office
to review
the letter
dated
August
8,
2007, from
the City
of Quincy
(IEPA
Exhibit
22; Record,
page 268-69), and the
Motion
for
Summary Judgment in
this matter.
4.
The City’s Motion
for Summary
Judgment alleges:
“During the
[July
12, 2007]
meeting,
it was
agreed
that
none of the City of
Quincy’s
CSOs
discharged
to sensitive areas. ..
(Motion,
page
8).
The letter
dated August
8,
2007, from
the City
of Quincy, stated in
pertinent
part: “The consensus
of
meeting
attendees was that
none
of the combined
sewer
overflows
(CSOs)
impacted
receiving
waters in Quincy’s
system were
identified
as sensitive areas.”
(IEPA
Exhibit 22; Record, page
268).
Neither
factual statement
is
accurate.
I state
with
direct and
personal knowledge that
I
did not
agree at the meeting with
the City
and its
consultants
on July
12, 2007, that
none of the
City
of
Quincy’s CSOs
discharged
to sensitive areas.
5.
The NPDES
permit issued
to
the
City
of Quincy
represents
the best professional
judgment
of the Illinois Environmental
Protection Agency regarding
the application
of federal
policy and State regulations.
Dated:
/7iC/
/L
RALPH
HAHN
