BEFORE THE POLLUTION CONTROL BOARD
RECEIVED
OF
THE
STATE OF ILLINOIS
CLERK’S
Q~P1~’P
JUL 2 8 2003
STATE OF ILLINOIS
Pollution Control Board
Carol Sudman, Hearing Officer
Illinois Pollution Control Board
600 South Second Street
Suite 402
Springfield, IL 62704
PLEASE TAKE NOTICE that I have today filed with the office of the Clerk of the Pollution
Control Board a MOTION TO STRIKE PORTION OF THE ADMINISTRATIVE RECORD, copies of
which are herewith served upon you.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North GrandAvenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: July 23, 2003
MAIN STATION,
Petitioner,
V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL 60601
)
)
)
PCB No. 03-87
)
(UST Appeal)
)
)
NOTICE
Curtis Martin
Shaw & Martin, P.C.
123 South Tenth Street
Suite 302
P.O. Box 1789
Mt. Vernon, IL 62864
MAiN STATION,
Petitioner,
BEFORE THE POLLUTION CONTROL BOARD
RECEIVEJ~
OF THE STATE OF ILLINOIS
CLERK’S OFFrCi~
)
JUL. 282003
STATE OF ILLINOIS
v.
)
PCBNo.03-87
~‘Ollut1onControlBoard
ILLINOIS ENVIRONMENTAL
)
(UST Appeal)
PROTECTION AGENCY,
)
Respondent.
)
MOTION TO
STRIKE
PORTION OF THE
ADMINISTRATIVE RECORD
NOW COMES the Respondent, the Illinois. Environmental Protection Agency (“Illinois
EPA”), by one of its attorneys, John J. Kim, Assistant Counsel and Special Assistant Attorney
General, and, pursuant to 35 Ill. Adm. Code 101.500 and 101.502, hereby requests that the
assigned Hearing Officer or the Illinois Pollution Control Board (“Board”) strike a portion ofthe
Administrative Record (“record”) filed in this matter by the Petitioner. In support ofthis motion,
the Illinois EPA states as follows:
1.
The Petitioner, Main Station, filed its appeal on or about March 17, 2003. Since
that time, the parties have engaged in a number ofdiscussions regarding the subject matter ofthe
appeal and whether a hearing on the merits would be necessary.
2.
On June 10, 2003, the Hearing Officer issued a notice ofhearing for this appeal in
case the parties eventually determined such a hearing would be necessary.
3.
Based on discussions between the parties during the latter part ofthe week ofJuly
14, 2003, it was determined that a hearing would be needed. On July 21, 2003, the Illinois EPA
filed, via overnight mail delivery, the record in this case.
4.
However, in the course of the Illinois EPA’s expedited preparation of the record,
a letter was errantly included in the record. The letter is found on pages 7 through 10 of the
record and is dated November 20, 2002.
1
5.
The decision under appeal in this matter is dated November 12, 2002, and is
found at pages 1 through 3 ofthe record. It is well-established that evidence or documents that
were not before the Illinois EPA at the time ofthe decision under appeal should not be admitted
at hearing or considered by the Board. Community Landfill Company and City of Moths v.
Illinois EPA, PCB 01-48, 01-49 (consolidated), April
5,
2001. The hearing will be based
exclusively on the record that was before the Illinois EPA at the time the decision was issued.
Id. In this case, the letter dated November 20, 2002, was issued eight days after issuance of the
decision under appeal, and therefore could not possibly have been before the Illinois EPA at the
time of the decision under review. Further, there has been no appeal filed of that decision dated
November 20, 2002, and therefore any discussion or arguments thereto would be inappropriate.
6.
The Illinois EPA regrets the erroneous inclusion ofthis document in the record,
but that mistake aside, the document nonetheless should not be considered as part of the record
and should accordingly not be the subject of testimony elicited at the hearing and the Board’s
consideration ofthis. appeal. Accordingly, the Illinois EPA respectfully requests that the Hearing
Officer or the Board strike pages 7 through 10 ofthe record.
WHEREFORE, for the reasons stated above, the Illinois EPA hereby respectfully
requests that the Hearing Officer or the Board strike pages 7 through 10 of the record as the
document found on those pages post-dates the decision under appeal and was not before the
Illinois EPA at the time of its decision and no appeal has been taken of the document found on
those pages.
2
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY.
Assistant Counsel
Special Assistant Attorney General
Division of Legal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)
Dated: July 23, 2003
This filing submitted on recycled paper.
3
CERTIFICATE OF SERVICE
I, the undersigned attorney at law, hereby certify that on July 23, 2003, I served true and
correct copies of an ADMINISTRATIVE. RECORD, by placing true and correct copies in
properly sealed and addressed envelopes and by depositing said sealed envelopes in a U.S. mail
drop box located within Springfield, Illinois, with sufficient First Class postage affixed thereto,
upon the following named persons:
DorothyM. Gunn, Clerk
Curtis Martin
Illinois Pollution Control Board
.
Shaw & Martin, P.C.
James R. Thompson Center
.
123 South Tenth Street
100 West Randolph Street
Suite 302
Suite 11-500
P.O.Box 1789
Chicago, IL 60601
Mt. Vernon, IL 62864
Carol Sudman, Hearing Officer
Illinois Pollution Control Board
600 South Second Street
Suite 402
Springfield, IL 62704
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respo dent
Jo~
Assistant Counsel
Special Assistant Attorney General
Division ofLegal Counsel
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
217/782-9143 (TDD)