Illinois Env. Prot. Agency v. Ill. Pollut.

Citation896 N.E.2d 479
Decision Date07 October 2008
Docket NumberNo. 3-07-0819.,No. 3-07-0565.,3-07-0565.,3-07-0819.
PartiesILLINOIS ENVIRONMENTAL PROTECTION AGENCY and The Village of New Lenox, Petitioners-Appellants, v. ILLINOIS POLLUTION CONTROL BOARD, Des Plaines River Watershed Alliance, Prairie Rivers Network, and Sierra Club, Respondents-Appellees.
CourtUnited States Appellate Court of Illinois

Albert F. Ettinger, Jessica Dexter, Brad Klein, Environmental Law & Policy Center, Marie E. Tipsord, Illinois Pollution Control Board, Chicago, IL, for Appellee.

Justice WRIGHT delivered the opinion of the court:

The Illinois Environmental Protection Agency (IEPA) issued a National Pollution Discharge Elimination System (NPDES) permit to the Village of New Lenox (New Lenox) to facilitate the expansion of one of New Lenox's three sewage treatment plants. Four organizations-Des Plaines River Watershed Alliance, Livable Communities Alliance, Prairie Rivers Network, and Sierra Club (collectively Environmental Groups) — petitioned the Illinois Pollution Control Board (Board) to appeal IEPA's decision to grant the permit. Following the hearing on the permit appeal, the Board overturned IEPA's decision to grant the permit and remanded the permit to IEPA for additional review as mandated by the Illinois Environmental Protection Act (Act) (415 ILCS 5/1 et seq. (West 2002)) and the Illinois Administrative Code (Code) (35 Ill. Adm.Code §§ 101.100 et seq. IEPA and New Lenox (collectively appellants) filed a direct appeal to this court challenging the findings and order of the Board.

We affirm the order of the Board.

I. BACKGROUND

The Village of New Lenox operates two publicly owned sewage treatment plants, desires to expand one existing plant that was built in 1973, and is building a third plant. The current NPDES permit for the plant scheduled for expansion allows discharge flows of effluent into Hickory Creek at an average rate of 1.54 million gallons per day (MGD) with a maximum discharge flow at 2.82 MGD. Hickory Creek ultimately joins the Des Plaines River.

In 2002, New Lenox submitted an application for a NPDES permit to expand that plant and increase the average discharge flow from the current average 1.54 MGD limit to a new average discharge rate of 2.55 MGD not to exceed a maximum discharge rate of 5.103 MGD. New Lenox had already expanded this same plant once after IEPA conducted its most recent facility-related stream survey in 1991. Therefore, IEPA required New Lenox to conduct a new analysis of the current water quality and survey of existing aquatic life currently present in Hickory Creek at the time of the permit application.

New Lenox hired Earth Tech, Inc. (Earth Tech), to conduct this survey. Earth Tech collected five water samples on August, 20, 2002, and performed a macroinvertebrate (insect) analysis. In support of its application for the NPDES permit, New Lenox submitted the Earth Tech study to IEPA along with a 2002 report from Suburban Laboratories, Inc. (Suburban Lab), analyzing two water samples collected from Hickory Creek on January 9, 2001, and June 15, 2001, as evidence of the current levels of contaminants and metals in Hickory Creek. The Earth Tech study and the Suburban Lab report were submitted to assist IEPA in assessing the impact of the plant's current and expanded discharge on the future water quality of Hickory Creek.

On January 5, 2003, IEPA tentatively decided to grant New Lenox the NPDES permit to increase the level of discharge from its sewage treatment plant into Hickory Creek. Accordingly, pursuant to section 309.109 of Title 35 of the Code (35 Ill. Adm.Code § 309.109 (amended at 2 Ill. Reg. 16, eff. April 20, 1978)), IEPA issued a public notice of this decision along with a proposed draft of the permit. IEPA then conducted a public hearing regarding this permit on April 24, 2003, with an IEPA hearing officer and other IEPA representatives present. Mike Turley, the wastewater treatment plant operator for New Lenox, was also present and introduced himself but chose not to comment or question others who spoke publicly during the hearing on the proposed permit. No one spoke on behalf of the Village of New Lenox at this hearing.

However, representatives from the various Environmental Groups attended, voiced their concerns, and presented scientific studies supporting their positions during the public hearing, and requested that the permit, if issued, include or reduce the proposed limits for various contaminants in the effluent discharges. They also requested that IEPA properly analyze whether the increased discharge would further deteriorate the stream's water quality and negatively impact the existing uses of the stream; examine potential alternatives and the costs of eliminating harmful chemicals from the effluent, specifically phosphorus and nitrogen; and require a new and valid survey of the current stream conditions be conducted in accordance with the published IEPA methodology.

Witnesses commented at the public hearing that they already had observed green algal blooms in Hickory Creek. The Environmental Groups also stressed, during this hearing, that the additional phosphorus and nitrogen discharges in the increased discharges would affect dissolved oxygen concentrations and would cause excessive algal blooms and other unnatural plant growth, which is already affecting the quality of the stream. The IEPA record contains scientific authority and interdepartmental IEPA memoranda invalidating New Lenox's Earth Tech study report challenging the methods and lack of data used to form its conclusions.

After the public hearing, the hearing officer set a 30-day period for further written comments concerning this permit. 35 Ill. Adm.Code § 309.117 (filed with Secretary of State January 1, 1978; codified 6 Ill. Reg. 8357). New Lenox did not provide any supplemental written comments to IEPA. The Environmental Groups did tender additional written statements and scientific studies to the IEPA hearing officer during the comment period after the hearing. At the close of the comment period, IEPA granted the NPDES permit to New Lenox on October 31, 2003. The permit as issued, modified only the dissolved oxygen limit based on the public hearing information, but did not address any of the other concerns of the Environmental Groups. Pursuant to section 166.192 of Title 35 of the Code, IEPA issued a 20-page "responsiveness summary," which detailed the basis for IEPA to issue the permit and included the following: records, data, witnesses' comments, criticisms, and suggestions; and IEPA's responses to significant comments. 35 Ill. Adm.Code § 166.192 (filed with Secretary of State January 1, 1978; codified 6 Ill. Reg. 8357).

On December 2, 2003, the Environmental Groups filed a petition, pursuant to section 40(e) of the Act (415 ILCS 5/40(e) (West 2002)), requesting the Board to review IEPA's decision to grant the NPDES permit and also to review the terms and conditions of the permit. The Environmental Groups alleged in their petition that the permit, as issued, violated the Act and several Board regulations, including sections 302.203, 302.205, 304.105, and 309.141(d) of Title 35 of the Illinois Administrative Code. 35 Ill. Adm.Code §§ 302.203 (amended at 14 Ill. Reg. 2899, eff. February 13, 1990), 302.205 (amended at 3 Ill. Reg. 20, eff. May 17, 1979), 304.105 (filed with Secretary of State January 1, 1978; codified 6 Ill. Reg. 8357), and 309.141(d) (amended at 27 Ill. Reg. 202, eff. December 20, 2002).

Both IEPA and New Lenox requested additional discovery to be completed prior to the permit appeal hearing. Based upon a telephonic status conference between the Board's hearing officer and the parties, the hearing officer entered orders on March 2, 2004, and April 1, 2004, directing the parties to submit proposed, prehearing, discovery briefing schedules and to address the scope and relevance of any additional requested discovery.

The Environmental Groups objected to the discovery request and argued that the Board should not allow additional discovery because the Act and applicable regulations limited the Board's review to the record IEPA relied upon when making the decision to issue the permit. After several continuances in the proceedings, on February 4, 2005, the Environmental Groups filed a motion for summary judgment on their petition to appeal the issuance of the permit pending before the Board. All parties submitted briefs and arguments supporting their respective positions regarding the Environmental Groups' motion for summary judgment.

The Board denied the Environmental Groups' motion for summary judgment in a 40-page, written order entered on November 17, 2005, which also included the written ruling on the discovery requests. In that order, the Board stated, "Specifically, Section 101.516(b) of the Board's procedural rules provides that, `[i]f the record, including pleadings, depositions, and admissions on file, together with any affidavits, shows that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law, the Board will enter summary judgment.' 35 Ill. Adm.Code [§ ] 101.516(b)." The hearing officer further stated in that order, "Considering the pleadings strictly against the petitioners [Environmental Groups], the Board cannot conclude that there is no genuine issue of material fact with regard to the issue of nutrient loadings[,] * * * the issue of the narrative offensive conditions standard[, and] * * * the issue of the copper water quality standard." The Board also denied New Lenox's and IEPA's request for additional discovery, noting that the Act provides that "the hearing will be based exclusively on the record before...

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