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2177829807

217782980?

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CLEi~i’~OFF~(~~:

IN THE MATTER OF:

)

)

Petition ofNoveon, Inc. for an

Adjusted Standard from

35

111. Adin.

Code 304.122

TO:

Dorothy Gunn, Clerk

Illinois Pollution

Control Board

James R. Thompson Center

100

W. Randolph,

Suite 11-500

Chicago, Illrnois 60601

Bradley P. Halloran,Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100

W. Randolph, Suite 11-500

Chicago, Illinois

60601

NOTICE

OF FILING

Mark

Latharn

Richard Kissel

Gardner,

Carton, &

Douglas

191

North Wacker Drive, Suite 3700

Chicago, Illinois

60606

PLEASE TAKE NOTICE that I have today filed

with

the Office ofthe Clerk ofthe

Pollution Control Board the attached ~~ponse

of the Illinois Environmental Prqtection Agency

to Petitioner’s Motion to Incorporate Transcript from PCB 91-17 ofthe Illinois Environmental

Protection Agency, a copy ofwhich

is

herewith served upon you.

ENVIRONMENTAL PROTECTION AGENCY OF THE

STATE

OF ILLII’~IOIS

~fIII

4t

BY

k~9-~-~!I

L’U LU’t’~

Deborah J.

\~ffams

Assistant Counsel

DivisionofLegal

Counsel

DATED:

February

9,2004

Il1ino~s

Environmental Protection Agency

1021

N. Grand Aye; East

P.O. Box

19276

Springfield, Illinois 62794-9276

TifiS

FILING IS SUBMiTTED

ON RECYCLE)

PAPER

BEFORE THE ILLINOIS POLLUTION CONTROL

BOAR~STATE

OF ~LLlNU;.~:

;~cth~t~on

Co~’1i~i~

)

)

AS 02-5

)

(Adjusted Standard

—

Water)

)

---

FEB~2~9~2O~4

09:

217782980?

2177829807

P.

r~

~

~

~

CLERK’S

OFF~?

BEFORE THE ILLINO~iS

POLLUTiON CONTROL

BOAREL.

~ ~JF~Lu~::;

•~c~u0on

IN

THE MATTER OF:

)

)

Petition ofNoveon, Inc.for an

)

Adjusted Standard from

)

AS

02-5

35

111. Adm.

Code 304.122

)

(Adjusted Standard

—

Water)

)

RESPONSE OF THE

ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY TO PETiTIONER’S MOTION

TO

INCORPORATE

TRANSCRIPT FROM

PCB 91-17

NOW COMES the ILLINOIS ENVIRONMENTAL PROTECTION AGENCY

(“Illinois

EPA” or “Agency”), by one ofits attorneys, Deborah J. Williams, arid pursuant

to

35

111. Adm.

Code

101.306, hereby submits its Response to Petitioner’s Motion to

Incorporate Transcript from PCB 91-17 into the Record of the above captioned matter

and states as follows:

1.

On May 22,

2002, Noveon. filed a Petition for an Adjusted Standard with

the Pollution Control Board (“Board”).

The Petition requests relief from

35 III. Adm. Code 3 04.122 as these regulations apply to the discharge of

arrimonia nitrogen from Noveon’s Henry, Marshall County,

Illinois

facility.

On June 20, 2002, the Board accepted the Petition for hearing.

2.

Hearings

in this matter and Noveon’s appeal ofits National Pollutant

Discharge Elimination System Permit (docketed PCB 91-17) were

scheduled for February

17

-

20, 2004.

Hearings were previously held in

PCB 91-17 on November 19,

1991

and December 16,

1991.

3.

A Pre-Hearing Status Conference was held before Hearing Officer

Halloran on February

5,

2004.

On February 6,2004, Petitioner filed by

fax a Motion to incorporate the transcript ofthe November 19,

1991

permit appeal hearing into the Record ofthe instant Adjusted Standard

proceeding.

4.

The Petitioner is providing the illinois EPA with just four business days to

reviewthe November

19,

1991

transcript for its relevance and any other

possible objections to its introduction into evidence while simultaneously

conducting preparations for the upcoming hearings in these two matters.

5.

During the

1991

hearing, Hearing Officer Sikes made at least one ruling

that excluded

an exhibit and testimony offered by the Agency from being

---

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entered into the Record.

This might make the transcript misleading to the

Board when reviewed in

the context ofan Adjusted Standard proceeding.

Incorporation of the transcript will

also make it necessary for the Agency

to call

Petitioner’s witness from the Pen-nit Appeal, Ken Willings, for

further cross~examination

of the current accuracy and relevance of his

twelve-year old testimony if it is to also be used as evidence in the

Adjusted Standard proceeding.

6.

The Board’s procedural rules clearly indicate that proceedings must not be

consolidated where the burdens ofproofvary.

See,

35

III. Adm.

Code

101.406.

Allowing the incorporation ofthe prior hearing testimony begins

to approach a consolidation ofproceedings that would

otherwise be

prohibited by the Board’s rules.

7.

At this late date, the Agency can only conclude that its case is will

prejudiced by Petitioner’s request and respectfully requests that the

Hearing Officer deny the instant Motion to Incorporate the Transcript of

PCB 91-17 into the Record of AS 02-05.

Respectfully submitted,

By(T)LQ~th~

~

Deborah J.

illiams

Assistant Counsel

Division of Legal Counsel

DATED:

February 9,2004

Illinois Environmental Protection Agency

1021 N. Grand Ave. East

P.O. Box 19276

Springfield, Illinois 62794-9276

217/782-5544

---

FEB—~~~4 99: 54

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STFATE

OF

ILLJ~O1S

COITNTY OF

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~3TATE

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PROOF OF SERWCE

I, the undersi~ied,

on oath state that I have served the attached, Response of the Illinois

Environmental Protection A~e~ncy

to Petitioner’s Motion to Incorporate Transcrint from PCB 91-

~ii,

upon the person to

whom it is directed, by FACSIMILE and by placing

a copy in an envelope

addressed to:

Dorothy M. Gunn, Clerk

Illinois

Pollution Control Board

James

R.

Thompson Center

100

West Randolph Street, Suite 11-500

Chicago,

Illinois 60601

Bradley P.

Halloran, Hearing Officer

Illinois

Pollution Control Board

James R.

Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, Illinois

60601

Mark Latham

Richard Kissel

Gardner, Carton

and

Douglas

191

North Wacker Drive, Suite 3700

Chicago, Illinois

60606

and mailing it by First Class Mail from Springfield, Illinois

on February

9,

2004 with sufficient postage

affixed.

SUB~~BED

AM)

SWORN TO BEFORE ME

this

j_

day of February 2004

otary

Pu

lic

~oP~

OFFICIAL

SEAL

t

BRENDA BOEHNER

.~.

NOTARY

PUBLIC.

STATE

OF

ILLINOIS ~

~MY

COMIV1ISSION

EXPIRES

fl-14-2Q05~

THIS FILING ~SSUBMITTED ON RECYCLED PAPER

Cr-

TOTRL

P.05

---

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FEB—~2004

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ILINOIS E~’v1RONMENTAL

PROT LOTION AGENC~t

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OWISION

OF LEGAL COUNSEL

1021 NORTH GRi~ND

.AVENQE EAST, POST OFFICE

BOX

19276

SPRINGFIELD, ILLINOIS

62794-9276

TELEPHONE (217)782~5544-FACStM~E

(217)782-9807

FACSIMILE TRANSMITTAL SELEET

PLEASE DELIVER THE FOLLOWII~G

PAGE(SJ TO:

PAR~’SNAMB:

(~

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FACSIMILE NO.:

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TOTAL NUMBER

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PAGES

(INCLUDING THIS

PAGE):

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IF YOU DO NOT RECEIVE ALL OF

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PAGES, PLEASE CALL 217-782-554-4.

COMMENTS:

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MESSAGE Is INTENDED ONLY P0?. THE USE OF THE INDIVIDUAL OP. ENT1T~

TO WifiCH IT

IS

ADDRESSED;

AND

MAY

CONTAIN

INFORMATION

ThAT

IS PRIVIL~GBD.CONFIDENTIAL.

AND

EXEMPT

FROM

DISCLOSURE UNDER

AI’PLICAPLE

LAW.

U~

THE

READER

OF TIlE

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OR THE EMPLOYEE OR AGENT RESPONSIBLE TO DELIVER IT TO TI-lB INTENDED RECtPJENT,

YOU

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TI-tAT

READING,

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DISTRIBUTING,

OR

COPYING

THIS

COMMUNICATION

IS

STRICTLY

PROH1BTED.

WYOU

HAVE ?~E~EIVED

TI-ItS

COMMUNICATION

IN

ERROR,

?~EASEIMMEDIATELY

NOTIFY

US

BY TFLEPHONE,

AND

RETURN THE

ORIGINAL

MESSAGE

TO US AT

THE

A~OV~ADIJRESS

VIATII:E US~OSTAL

SER~CETHAN&YOTJ.

R~.532

2624

ADM 214 Feb-99