ILLINOIS POLLUTION CONTROL BOARD
May 6, 2004
IN THE MATTER OF:
)
)
PROPOSED SITE SPECIFIC REGULATION ) R04-11
APPLICABLE TO AMEREN ENERGY ) (Site-Specific Rulemaking – Noise)
GENERATING COMPANY, ELGIN, )
AMENDING 35 Ill. ADM. CODE PART 901 )
ORDER OF THE BOARD (by T.E. Johnson):
On October 28, 2003, Ameren Energy Generating Company (Ameren) filed a rulemaking
proposal under Section 28 of the Environmental Protection Act (Act) (415 ILCS 5/28 (2002)), to
change regulations governing noise emission limitations found in the Board’s rules at 35 Ill.
Adm. Code 901. In the petition, Ameren seeks site-specific noise emission limitations with
respect to the operation of Ameren’s electric generating facility in Elgin, Cook County. A
hearing was held on January 22, 2004, at 100 West Randolph Street, Chicago, Cook County.
The hearing was held, in part, on the economic impact of the proposal.
Today, the Board addresses a number of post-hearing motions that have been filed by
Ameren and the Illinois Attorney General’s Office (AGO). On March 22, 2004, Ameren filed a
motion for leave to file a response, accompanied by a response, to the AGO’s public comment,
as well as a motion to supplement the record. On April 2, 2004, the AGO filed a motion to deny
the motion for leave to file, a motion to deny the motion to supplement the record, and motions
to strike the response and the documents intended to supplement the record. On April 12, 2004,
Ameren filed a response to the AGO’s motions to dismiss. On April 27, 2004, the AGO filed a
motion for leave to file a reply, accompanied by a reply to Ameren’s response.
For the reasons espoused below, the Board grants Ameren’s motion for leave to file a
response and its motion to supplement the record. The Board grants the AGO’s motion for leave
to file a reply, and accepts its reply. The AGO’s other motions are denied, but the AGO is given
leave to file a response or otherwise provide additional information.
AMEREN’S MARCH 22, 2004 MOTIONS
Ameren filed two motions on March 22, 2004: a motion for leave to file a response to
the public comments of the AGO; and a motion to supplement the record.
Motion for Leave to File
In its motion for leave to file, Ameren asserts that the public comment filed by the AGO
raises issues and questions the answers provided by Ameren at the January 22, 2004 public
hearing, and that the comments often take Ameren’s answers and information out of context
resulting in misleading conclusions. Mot. for Leave at 1. Ameren asserts that it seeks to clarify
the record to ensure the Board is presented a full and complete discussion of the issues raised,
2
and that no party will be prejudiced if the motion is granted. because the only new information
provided is that omitted by the AGO in its comment concerning the facility cited by its witness
for the purpose of recommending noise abatement measures.
Id
.
Ameren argues that it bears the burden of proof in this matter and should be afforded the
opportunity to respond to the AGO’s objections, and that no law governing the rulemaking
would preclude the Board from granting this relief. Mot. for Leave at 1.
Motion to Supplement the Record
Ameren asserts that two documents are necessary to fully apprise the Board about the
complaint attached to and the easement referenced in paragraph 27 of the AGO’s public
comment. Mot. to Supp. at 1. The documents are (1) the agreed order entered by the circuit
court in Ameren Energy Development Company,
et al
. v. Village of Bartlett, 03 CH 11307; and
(2) the “Noise Easement and Restrictive Covenant Agreement” between Ameren Energy
Development Company and Realen Holmes L.P.
Id
.
Ameren contends that it provided the AGO a copy of the easement and an explanation
that the complaint had been settled and the easement filed with the recorder of deeds, when it
learned that the AGO was reviewing a copy of the complaint subsequently attached to the
AGO’s public comment. Mot. to Supp. at 1. Ameren asserts that it did not raise the issue of the
lawsuit or the settlement in the rulemaking and is only doing so now to remove any questions
raised by the AGO comment. Mot. to Supp. at 2.
Ameren requests that the motion be granted in order to fully apprise the Board of the
information shared with the AGO and the subject matter of paragraph 27 of the AGO comment.
Mot. to Supp. at 2. Ameren argues that no prejudice will result as the AGO had both documents
before it filed its public comment, the comment raised the issue and both documents are a matter
of public record.
Id
.
AGO MOTIONS
In its motions, the AGO argues that Ameren is seeking to introduce new evidence into the
record that it did not include with its petition, pre-filed testimony, hearing testimony or post-
hearing public comments. AGO mot. at 1. The AGO asserts that the Board did not give
permission to Ameren to file its motion. AGO mot. at 2. The AGO argues that Ameren’s
pleadings are an attempt to put its case in a more favorable light by misrepresenting the facts and
discrediting the public comments submitted by the AGO through Howard Chinn.
Id
.
The AGO asserts that allowing Ameren’s March 22 pleadings into the record would
prejudice the AGO, because Ameren would have nine more days than the AGO to submit post-
hearing public comments and testimony; and would also have the chance to respond to the
AGO’s post-hearing comments without the AGO having the in-kind opportunity to respond to
Ameren’s post-hearing comments. AGO mot. at 2.
3
The AGO asks that Ameren’s motions for leave to file and to supplement the record be
denied. The AGO also asks the Board to strike Ameren’s response and the documents attached
to the motion to supplement the record.
AMEREN RESPONSE
Ameren asserts that the AGO will not be prejudiced if the motions to supplement the
record and for leave to file a response are granted. Resp. at 1. Ameren argues that the purpose
of developing a record in this rulemaking is to provide a complete, accurate and clear record for
the Board to consider. Ameren contends the AGO comment added new information into the
record and demonstrated that the AGO has misunderstood or misinterpreted much of the record
presented at hearing.
Id
. Ameren argues that it only seeks to address the new information
submitted with the comment and to file a response to clarify questions raised by the AGO’s
omission of critical facts.
Id
.
Ameren contends that the granting of the AGO’s motions would result in a record that is
not complete and accurate, and would materially prejudice Ameren and others relying upon that
record for clarity and completeness. Resp. at 2. Ameren asserts that the documents it has
offered are not offered in support of the rule, but rather to remove any question the Board may
now have due to the AGO comment about the circuit court proceeding raised by the AGO.
Id
.
AGO REPLY
In its motion for leave to file a reply, the AGO contends that it will suffer material
prejudice if the Board does not grant it leave to file a reply. In its reply, the AGO asserts that
Ameren has no right to criticize any new information in the AGO’s post-hearing comments when
Ameren included new information in its own comments. Reply at 1.
The AGO argues that Ameren’s March 22, 2004 pleadings clearly violated the hearing
officer’s March 10, 2004 deadline for submission of post-hearing comments. Reply at 2. The
AGO reiterates that Ameren is getting an additional opportunity to add to the record that was
denied the AGO because the AGO adhered to the deadline, and that if the Board allows
Ameren’s pleadings into the record the AGO will be prejudiced.
Id
.
The AGO asserts that the only ways to remedy the potential prejudice to the AGO and to
ensure that the Board treats both parties fairly is to strike the March 22, 2004 pleadings or to
allow the AGO the right to respond to Ameren’s post-hearing comments. Reply at 2.
DISCUSSION
Initially, the Board grants the AGO’s motion for leave to file a reply, and accepts the
AGO’s reply. Although the AGO merely states that it would be materially prejudiced, and does
not offer any specific ways in which prejudice would result if its motion were not granted, the
Board is generally more liberal in adding to the record in a regulatory context than in an
adjudicatory context. A Board regulatory proceeding is a quasi-legislative proceeding. In
considering admission of materials into the record of its regulatory proceedings, the Board has
4
historically taken a liberal stance parallel to the stance employed by full legislative bodies.
See
Proposed Amendments to 35 Ill. Adm. Code 215.204, 215.211, AND 215.212: Heavy Off-
Highway Vehicle Products, R86-36 (June 25, 1987).
Utilizing that long standing rationale, the Board grants Ameren’s motion to file a
response to the AGO public comment and the motion to supplement the record. The response is
accepted and the two attached documents will be incorporated into the record in this proceeding.
The AGO’s motions to deny leave to file and to supplement the record are denied. Also denied
are the AGO’s motions to strike Ameren’s response and the documents attached to the motion to
supplement the record.
However, in order to avoid any possible prejudice to the AGO, the Board will grant the
AGO leave to submit any additional information regarding these issues or a response to
Ameren’s post-hearing comments. In light of a previously granted motion to expedite
consideration in this rulemaking, the AGO must file any such information or response on or
before May 14, 2004. The mailbox rule will not apply.
IT IS SO ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
adopted the above order on May 6, 2004, by a vote of 5-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
