BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

RECEiVED

CLERK’S

OFFICE

OCT

2

2

2U03

PEOPLE OF THE STATE OF ILLINOIS

vs

-

Complainant,

QC FINISHERS,

INC.,

an Illinois

corporation,

Respondent.

PCB No.

01-7

(Enforcement

-

Air)

STATE OF ILLINOiS

Pollution

Control

Board

TO:

Heidi

E. Hanson

H.E.

Hanson,

Esq.

P.C.

4721 Franklin Avenue

Suite

1500

Western Springs,

IL 60558-

1720

Mr.

Bradley Halloran

Hearing Officer

Illinois Pollution Control Board

JRTC,

Suite 11-500

100 W.

Randolph Street

Chicago,

IL.

60601

NOTICE OF FILING

PLEASE TAKE NOTICE that we have

today, October

22,

2003 filed

with the Office of the Clerk of

the Illinois Pollution Control Board

an original and nine copies of the Complainant’s Response to

Respondent’s Request

for Board Ruling on Motion to Strike and Motion

for Leave to File

a Reply and Request that the Board Reopen its

September

18,

2003 Decision to Address all Timely Filed Pleadings,

copies of which are attached herewith and served upon

you.

Respectfully submitted,

PEOPLE OF THE STATE OF ILLINOIS

LISA

MADIGAN

Attorney General of the

State of Illinois

BY:

;4~

~

~

PAULA BECKER WHEELER

Assistant Attorney General

Environmental Bureau

188 W. Randolph St.,

~

Flr.

Chicago,

IL 60601

(312)

814-1511

THIS FILING IS SUBMITTED ON RECYCLED PAPER

---

BEFORE THE ILLINOIS POLLUTION CONTROL

BOARD

CLERK’S OF~’FlCE

OCT 22

2003

PEOPLE OF THE STATE OF ILLINOIS

STATE OFIWNOIS

Complainant,

)

Pollution Control Board

vs-

)

PCB

No.

01-7

(Enforcement

-

Air)

QC

FINISHERS,

INC.,

an

Illinois

corporation,

Respondent.

RESPONSE TO REQUEST FOR BOARD RULING ON MOTION TO STRIKE AND

MOTION FOR LEAVE TO FILE A REPLY and

REQUEST THAT THE BOARD REOPEN ITS SEPTEMBER

18,

2003 DECISION TO

ADDRESS ALL TIMELY FILED PLEADINGS

Now comes Complainant,

PEOPLE OF THE STATE OF ILLINOIS,

by LISA

MADIGAN, Attorney General of the State of Illinois,

and in response to

Respondent’s Request for Board Ruling on Motion to Strike and Motion

for Leave

to File

a Reply and Request that

the Board Reopen its

September

18,

2003 Decision to Address

all Timely Filed Pleadings,

pursuant to Sections 101.202,

101.520 and 101.902 of the Board’s

procedural Regulations,

35

Ill. Adm.

Code 101.202,

101.520 and

101.902,

states that Respondent’s Requests should be denied for the

following reasons.

INTRODUCTION

1. The Board’s June

19,

2003,

Order(”June

Order”)

addressed

Complainant’s Motion to Dismiss some of Respondent’s Affirmative

Defenses,

granting

it in part and denying it in part.

On September 18,

2003,

the Board entered an Order

(“September Order”)

denying

Respondent’s Motion to Reconsider

that June Order.

The Respondent’s

current Request

to the Board to reopen its September

18, 2003

decision

---

is

me±’elya second motion to reconsider couched in slightly different

language. The request to issue another ruling is unnecessary and

re~dundantin view of the September Order.

2. Neither the June Order nor the September Order terminated the

proceedings in this case,

but rather allowed the proceedings to

continue with discovery and litigation.

THE BOARD’S

JUNE

and

SEPTEMBER ORDERS ARE NOT FINAL ORDERS

AND

THEREFORE ARE NOT RIPE FOR RECONSIDERATION

3.

Section

101.202 Definitions

for Board’s Procedural Rules,

35

Ill. Adm.

Code 101.202,

defines

“Final Order” as follows:

“Final Order” means an order of the Board that terminates

the

proceeding

leaving

nothing

further

to

litigate

or

decide

and

that

is

appealable

to

an

appellate

court

pursuant

to

Section

41

of

the

Act.

4.

Neither

the

June

nor

September

Orders

are

final

orders.

5.

The

June

Order

allowed

several

of

Respondent’s

Affirmative

Defenses

to

stand

and

granted

Complainant’s

Motion

to

Strike

several

other

affirmative

defenses.

6.

The

June

Order

addresses

the

motion

brought

up

by

the

parties

during

litigation

of

this

case

related

to

the

ongoing

litigation.

The

motion did not seek to end

“.

.

.the proceeding leaving nothing further

to litigate..

.“,

and

the

June

Order

was

not

meant

to,

and

does

not,

end

the

proceedings.

The

September

Order

denied

a

motion

to

reconsider~

and

did

not

end

the

proceedings.

7.

Section

101.520

(a)

of

the

Board’s

Procedural

Rules

and

RegulatiOns,

35

Ill.

Adm.

Code

101.520(a),

states

as

follows:

a)

Any

motion

for

reconsideration

or

modification

a

final

Board

order

must

be

filed

within

35

days

after

the

2

---

receipt

of

the

order(emphasis

added).

8.

Since the June and September Orders are not a final orders,

they are not ripe for reconsideration.

Wherefore,

Complainant

requests,

pursuant

to

Sections

101.202

and

101.520

of

the

Board’s

Procedural

Regulations,

35

Ill.

Adm.

Code

101.202

and

101.520,

that

the

Board

deny

the

Respondent’s

Requests.

COMPLAINANT

ADOPTS

AJID

INCORPORATES

EARLIER

ARGUMENTS

9.

Should

the

June

and

September

Orders

be

construed

as

final

orders,

or

if

a

different

interpretation

is

given

to

the

Board’s

Procedural

Regulations,

then

Complainant

objects

to

and

contests

Respondent’s

Requests

for

a

Ruling

and

to

Reopen

the

September

Order.

10.

Complainant

adopts

and

incorporates

the

following

pleadings,

motions,

and

responses

previously

filed

with

the

Board:

Complainant’s

Complaint,

Complainant’s

Motion

to

Dismiss

Affirmative

Defenses,

and

Complainant’s

Response

to

Respondent’s

Motion

to

Reconsider

the

Board’s

Order

of

June

19,

2003.

11.

Section

101.902

under

Subpart

I:

Review

of

Final

Board

Opinions

and

Orders,

35

Ill.

Adm.

Code

101.902

states

as

follows:

Motions

for

Reconsideration

In

ruling

upon

a

motion

for

reconsideration,

the

Board

will

consider

factors

including

new

evidence,

or

a

change

in

the

law,

to

conclude

that

the

Board’s

decision

was

in

error.

12.

Respondent,

in

its

prior

Motion

for

Reconsideration,

and

in

its

new

Requests,

does

not

provide

any

new

evidence,

or

assert

a

change

in

the

law.

Wherefore,

Complainant

requests,

pursuant

to

Sections

101.902

and

101.520

of

the

Board’s

Procedural

Regulations,

35

Ill.

Adm.

Code

3

---

101.902

and

101.520,

that

the

Board

deny

the

Respondent’s

Requests

for

Ruling and to Reopen the September Order.

CONCLUSION

For the foregoing reasons, the Complainant respectfully requests

that Respondent’s Request for Board Ruling and Request to Reopen Its

September

18,

2003

Decision

be

denied,

with

prejudice.

PEOPLE

OF

THE

STATE

OF

ILLINOIS,

LISA

MADIGAN,

Attorney

General

of

the

State

of

Illinois

By:

~

PAULA

BECKER

WHEELER

Assistant

Attorney

General

Attorney

for

Complainant

Environmental Bureau

188

W.

Randolph

St.,

20th

Fl

Chicago,

Illinois

60601

(312)

814-1511

4

---

CERTIFICATE OF SERVICE

I,

Paula

Becker

Wheeler,

an

Assistant

Attorney

General

in

this

case,

do

certify

that

on

this

22nd

day

of

October,

I

caused

to

be

served

the

foregoing

Notice

of

Filing

and Complainant’s Response to

Respondent’s Request for Board Ruling on Motion to Strike and Motion

for Leave to File

a Reply and Request that the Board Reopen its

September 18,

2003 Decision to Address all Timely Filed Pleadings,

to

those named within by personal service to Mr. Halloran and by U.S.

Mail to Ms. Hanson by depositing same in the U.S.

Mail depository

located

at

188

West

Randolph

Street,

Chicago,

Illinois,

in

an

envelope

with

sufficient

postage

prepaid

~&_

PAULA

BECKER

WHEELER

---