BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CITY OF JOLIET,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
Respondent.
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PCB No. 09-25
(Permit
Appeal-Water)
NOTICE OF FILING
TO:
Roy M. Harsch
Yesenia Villasenor-Rodreguez
Drinker Biddle
&
Reath, LLP
191 North Wacker Drive
Suite 3700
Chicago, Illinois 60606
Bradley P. Halloran
Hearing
Officer
Illinois Pollution Control Board
James
R. Thompson Center, Suite 11-500
100
West Randolph Street
Chicago, Illinois
60601
PLEASE
TAKE NOTICE that on March 23, 2009 I filed with the Clerk of the Illinois
Pollution Control Board, the Respondent's Response to Petitioner's Motion to Strike and Certificate
of Service, a copy of which is attached and served upon you.
DATED: March
23,2009
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By:
Gerald
T. Karr
Senior Assistant Attorney General
Environmental Bureau
69 West Washington Street
Suite 1800
Chicago, Illinois 60602
(312) 814-3369
THIS FILING IS SUBMITTED ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
CITY OF JOLIET,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY
Respondent.
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PCB No. 09-25
(Pennit Appeal-Water)
RESPONDENT
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY'S
RESPONSE
TO
PETITONER'S
MOTION TO
STRIKE
NOW COMES Respondent, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, by
and through its Attorney and pursuant to Section
101.500(d) ofthe Illinois Pollution Control Board
Procedural Regulations,
35.111. Adm. Code 101.500(d), for its response to Petitioner's, CITY OF
JOLIET,
Motion to Strike Certain Statements in Respondent's Reply Brief, states as follows:
Introduction
On January 13, 2009, a hearing was held on Petitioner's appeal of a denial of pennit
modification application
by the Illinois EPA because Petitioner did not show that its activities would
not result in a violation
of the Illinois Environmental Protection Act, (the "Act"). 415 ILCS 5/1
et
seq.
After the Hearing and in consultation with the parties a post hearing briefing schedule was
agreed to. This included simultaneously filed opening briefs and simultaneous replies. Petitioner,
after agreeing to the briefing schedule has now decided to waive the Board's decision deadline and
has filed the instant motion as a thinly veiled attempt to get in the last word.
It
is obvious Petitioner
has realized that it has failed in meeting its burden and again is raising issues which are tangential to
the true scope
of this appeal. Respondent respectfully requests that the Board deny this Motion
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Electronic Filing - Received, Clerk's Office, March 23, 2009
without considering it. However, if the Board decides to consider Petitioner's Motion to Strike
Certain Statements from Respondent's Reply Brief, Respondent would argue as follows:
Argument
1.
Building Codes
The language Petitioner seeks to strike is as follows:
Additionally, Petitioner never shows where the removed topsoil will end up. The soils
could be consolidated thus increasing the concentrations to even greater levels.
The foregoing language is meant to stress the fact that Petitioner misses the point and burden
of a
permit appeal. The lengthy discussion
of building codes, compliance with such codes and whether
Joliet requires the removal oftopsoil from residential building sites is not before the Board.
If there
is a red herring in this argument it is raised
by Joliet in that compliance with building codes can some
how reduce exposures to radium. That is not the issue before the Board. What is before the Board is
Joliet's request to increase the concentration
of radium it is
spre~ding
around the community.
Illinois EPA rightly denied this request. This language should not be stricken.
2.
Application of the MOA
Petitioner seeks to have this entire section stricken. Petitioner is incorrect when it argues
Respondent does not cite to facts in the record to support its assertions in this section. Petitioner was
intimately involved in the rulemaking cited to
by Respondent. See Generally the docket for R04-21.
Clearly, Petitioner knew it had to deal with the radium in its water and if removed in its sludge. The
burden is on the Petitioner to show that when it removes radium from its citizens drinking water that
it can be adequately managed in a safe and responsible way. Petitioner failed in this burden. The
Illinois EPA gave a well reasoned basis and argument for why the limitation was imposed for the
first time in
2006.
3.
lEMA Determination
The statement Petitioner seeks to have stricken is as follows:
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lEMA's department of nuclear safety has made determinations on the health
effects and bioaccumulative properties
of radium.
Contrary to this argument lEMA has weighed in on Joliet's proposed permit modification and the
record is quite clear on this point. See
R. 33-34 and 328-335. This statement should remain.
Conclusion
As set out at the beginning of this reply, Petitioner sought to modify a permit to allow it to
increase the radium concentration in its waste water treatment sludge which it would then land apply
in the community. This permit was denied and that denial letter framed the issues on appeal and
placed the burden during the appeal on the permit applicant. Petitioner's motion is just a third
attempt to convince the Board it has met that burden. Respondent respectfully requests that the
Board deny Petitioner's motion in its entirety.
WHEREFORE, Respondent, Illinois Environmental Protection Agency, respectfully request
the Illinois Pollution Control Board enter an order denying Petitioner's Motion to Strike Certain
Statement s in Respondent's Brief.
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Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
BY:~~.~
Gerald T. Karr
Senior Assistant Attorney General
Environmental Bureau
69 West Washington Street
Suite
1800
Chicago, Illinois 60602
(312) 814-3369
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Electronic Filing - Received, Clerk's Office, March 23, 2009
CERTIFICATE OF SERVICE
I, GERALD T. KARR, an Assistant Attorney General in this case, do certify that on this 23
rd
day of March, 2009, I caused to be served by First Class Mail the foregoing Notice of Filing and
Respondent's Response to Petitioner's Motion to Strike upon the individuals listed on the attached
notice, by depositing the same in the
U.S. Mail depository located at 100 West Randolph Street,
Chicago, Illinois in an envelope with sufficient postage prepaid.
GERALD
~0e2c£
T. KARR
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