ILLINOIS POLLUTION CONTROL BOARD
    July 27, 2000
    PEOPLE OF THE STATE OF ILLINOIS,
    Complainant,
    v.
    PANHANDLE EASTERN PIPELINE
    COMPANY, a Delaware corporation,
    Respondent.
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    PCB 99-191
    (Enforcement - Air)
    ORDER OF THE BOARD (by M. McFawn):
    On June 19, 2000, the People of the State of Illinois (complainant) filed two motions.
    The first is a “Motion for Leave to File a Motion to Strike Affirmative Defenses” (Motion for
    Leave to File), and the second an “Amended Motion to Incorporate” the record from a 1998
    permit appeal filed by the respondent, Panhandle Eastern Pipeline Company (Panhandle).
    Panhandle filed its responses on June 6, 2000. In the interim, on June 22, 2000, the Board issued
    an order resolving three motions then pending in this case. For the reasons below, the Board
    denies both motions.
    Because the pending motions relate to motions resolved on June 22, 2000, the history of
    the pleadings in this case require explanation. On July 27, 1999, Panhandle filed its Answer and
    Affirmative Defenses. On May 30, 2000, complainant filed a Motion to Strike Affirmative
    Defenses, a Motion to Incorporate the record in Panhandle v. IEPA, (January 21, 1999), PCB 98-
    102 (Panhandle permit appeal), and a Motion in Limine. On June 6, 2000, Panhandle filed its
    responses to these motions. It was on June 19, 2000, that complainant filed the now pending
    motions, which relate to two of the motions it had filed May 30, 2000. Three days later, on
    June 22, 2000, the Board issued the order that resolved all three of the May 30, 2000 motions.
    The Board denied complainant’s Motion to Strike and the Motion to Incorporate, but granted the
    Motion in Limine. The Board did not wait for responses from Panhandle to complainant’s
    motions of June 19, 2000, for two reasons: the motions filed May 30, 2000, were ripe and
    hearing was then scheduled for the week of June 26, 2000. (The hearing has since been
    rescheduled for the week of September 28, 2000.) On June 28, 2000, Panhandle filed its
    response to the complainant’s motions of June 19, 2000.
    There are two preliminary motions before the Board. First, Panhandle requests leave to
    file its June 28, 2000 responses. Panhandle calculated that those responses were due on June 27,
    2000, because complainant’s motions were received on June 20, 2000. Panhandle explained that
    it had waited to receive a copy of the Board’s June 22, 2000 order before filing its responses.
    Motion for Leave to File Responses at 2. The Board grants Panhandle’s motion for leave to file
    its responses of June 28, 2000.
    2
    Second, complainant requests leave to reply to Panhandle’s June 6, 2000 response to its
    Motion to Strike. That request is found at the conclusion of its June 19, 2000 Motion for Leave
    to File. Motion for Leave to File at 6. In its June 28, 2000 response, Panhandle characterized
    complainant’s Motion for Leave to File as a reply to Panhandle’s response, but otherwise it does
    not directly respond to complainant’s request. The Board agrees that complainant has included
    arguments in reply to Panhandle’s June 6, 2000 response in its Motion for Leave to File, and has
    also incorporated new legal arguments in support of its motion to strike. See Motion for Leave
    to File at 2-6. As explained below, complainant must first demonstrate material prejudice before
    it will be allowed to file its Motion to Strike. Since it fails to done so, the Board denies
    complainant leave to file a reply addressing the merits of its Motion to Strike. Leave to file a
    reply is discretionary to the Board. 35 Ill. Adm. Code 103.140(c).
    MOTION FOR LEAVE TO FILE A
    MOTION TO STRIKE AFFIRMATIVE DEFENSES
    Section 101.243(a) of the Board’s procedural rules requires that all motions to strike be
    filed within 21 days of service of the challenged document unless the Board determines that
    material prejudice would result. In our order of June 22, 2000, the Board denied the motion to
    strike the affirmative defenses because complainant had not identified any prejudice that would
    justify the Board entertaining that motion that was filed ten months late. 35 Ill. Adm. Code
    101.243(a).
    The affirmative defenses that complainant seeks to strike were included in Panhandle’s
    Answer to the complaint filed on July 27, 1999. Now, in its belated Motion for Leave to File,
    complainant claims that it inadvertently neglected to file such a motion in its attempt to get its
    motion to strike filed before the impending deadline for dispositive motions of May 30, 2000. In
    further support of its Motion for Leave to File, complainant argues that it will suffer an undue
    waste of time and resources if the motion for leave is not granted. Complainant then
    immediately uses that same argument to support its claim that the motion to strike must be
    granted. Motion for Leave to File at 2. In response, Panhandle argues that complainant did not
    identify any new reason or prejudice to justify filing the Motion For Leave To File ten months
    late. Response to Motion for Leave to File at 2.
    Originally complainant identified no reason for allowing the Motion to Strike. People v.
    Panhandle, (June 22, 2000), PCB 99-191, slip op at 1. Now, complainant simply alleges that it
    will suffer an undue waste of time and resources if the motion is not granted. Motion for Leave
    to File at 2. This is not sufficient to justify the Board granting leave to file nearly a year after
    such a motion was due and during which time substantial discovery occurred. Therefore, the
    Motion for Leave to File is denied. Panhandle will have the opportunity to present evidence in
    support of its affirmative defenses. However, we reiterate that the Board is not ruling on the
    merits of any of Panhandle’s affirmative defenses. Panhandle is still required to present its
    evidence and arguments in support of its affirmative defenses, and complainant may, of course,
    still argue that any given defense is invalid.
    3
    AMENDED MOTION TO INCORPORATE
    In our June 22, 2000 order, the Board denied complainant’s request that the entire record
    of Panhandle’s permit appeal be incorporated into the record of this enforcement action. The
    Board explained that complainant did not demonstrate the relevance of the entire record to this
    proceeding “at least in the face of Panhandle’s objection,” as required by the Board’s procedural
    rule governing motions to incorporate, 35 Ill. Adm. Code 101.106. People v. Panhandle,
    (June 22, 2000), PCB 99-191, slip op at 2.
    In its support of its original motion, complainant had argued that witnesses from
    Panhandle’s permit appeal as well as other witnesses would be testifying. Motion to Incorporate
    at 2. With its amended motion, complainant adds only that “at least two of the Complainant’s
    witnesses who testified for the Illinois EPA (sic) in Panhandle’s permit appeal are scheduled to
    provide limited testimony in this enforcement proceeding,” and that it anticipates relying upon
    certain underlying facts supported by these witnesses’ testimony in its case in chief. Amended
    Motion to Incorporate at 3. Even when taken together, these facts do not demonstrate the
    relevance of incorporating the entire record in Panhandle’s permit appeal as requested by
    complainant.
    Complainant also asks for alternative relief should the Board deny its motion to
    incorporate the entire record in Panhandle’s permit appeal. Complainant asks that the Board
    allow select portions of that record to be incorporated into this enforcement action. Specifically,
    complainant asks that the hearing transcripts, the Illinois Environmental Protection Agency’s
    (Agency) Administrative Record, the supplement to the Agency’s Administrative Record, and the
    exhibits admitted at hearing be incorporated into this record. We have examined these four
    groups of material and find them to be a substantial portion of the entire record in Panhandle’s
    permit appeal. Complainant’s arguments in support of incorporation still do not explain why
    these portions of Panhandle’s permit appeal are relevant to this proceeding. Accordingly,
    complainant’s Amended Motion to Incorporate is denied.
    The parties may, of course, work with the hearing officer to reach an agreement about
    which specific portions of Panhandle’s permit appeal should be incorporated. If that undertaking
    is not successful, pursuant to 35 Ill. Adm. Code 101.106(a), complainant may renew its request
    to incorporate provided it is supported by the requisite demonstration of why specific portions of
    the record are relevant to this proceeding.
    In summary, the Board the Board grants Panhandle’s Motion for Leave to File its
    responses to complainant’s June 19, 2000 motions. The Board denies complainant’s request for
    leave to reply to Panhandle’s June 6, 2000 response. Finally, the Board also denies
    complainant’s Motion for Leave to File its motion to strike Panhandle’s affirmative defenses and
    complainant’s Amended Motion to Incorporate.
    IT IS SO ORDERED.
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    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the
    above order was adopted on the 27th day of July 2000 by a vote of 6-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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