CLERK’S OFFICE
BEFORE
THE
ILLINOIS POLLUTION CONTROL
BOARD
FEB
-92004
NOTICE
OF FILING
STATE OF ILLINOIS
Pollution Control Board
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL
60601
Deborah Williams
Assistant Counsel
Division ofLegal Counsel
Illinois Environmental Protection
Agency
1021
N. Grand Avenue East
Springfield, IL
62794-9276
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL
60601
PLEASE
TAKE
NOTICE
that on
Monday, February
9,2004, we filed the attached’
MOTION TO
FILE REPLY INSTANTER
with the Illinois Pollution Control Board, a copy
ofwhich is herewith served upon you.
Respectfully submitted,
NOVEON, iNC.
Richard J. Kissel
Mark Latham
Sheila H. Deely
GARDNER CARTON & DOUGLAS LLP
191
N. Wacker Drive
—
Suite 3700
Chicago, IL
60606
By:
One of Its Attorneys
IN THE MATTER OF:
)
)
?etition ofNoveon, Inc.
)
)
)
fDr
an Adjusted Standard from
)
35111. Adm. Code 304.122
)
AS 02-5
THIS FILING IS SUBMITTED ON RECYCLED PAPER
CLERK’S OFFIC1~
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
FEB -92004
STATE OF ILLINOIg
IN THE
MATTER OF:
)
Pollution Control Bc,ard
)
Petition ofNoveon, Inc.
)
)
AS 02-5
)
for an Adjusted Standard from
)
35
111. Adm.
Code 304.122
)
MOTION TO FILE REPLY
INSTANTER
Noveon, Inc. moves to file a reply on its motion to incorporate the transcript from
Noveon, Inc. v. Illinois Environmental Protection Agency, PCB 91-17 (NPDES Permit Appeal),
into the record forNoveon’s pending adjusted standard proceeding.
In support thereof, Noveon
states as follows:
1.
Noveon believes that Illinois EPA’s citation of35
Il. Adm.
Code 101.406 is
misleading and confusing, as this rule does not apply to or properly describe what Noveon seeks
in its motion to incorporatetestimony from PCB 91-17 into this proceeding.
Noveon would like
an opportunity to address the rule cited by Illinois and the rule Noveon believes is properly
applied to its motion.
2.
Noveon also wants an opportunity to address the other arguments and claimed
L
prejudice to Illinois EPA from incorporation ofthe transcript.
WHEREFORE, Noveon, Inc. moves the Board to accept its Reply on the motion to
incorporate the transcript from its NPDES Permit Appeal, PCB 91-17, into this proceeding as
part ofthe record.
Respectfully submitted,
NOVEON, INC.
‘By:
~
Richard J. Kissel
Mark Latham
Sheila H. Deely
GARDNER CARTON & DOUGLAS LLP
191
N. Wacker
-
Suite 3700
Chicago, IL 60606
CHO2/22292382.
1
RECE1V~!~
CLERKS OFFICE
BEFORE THE
ILLINOIS POLLUTION CONTROL
BOARI)~EB
-92004
N
THE MATTER OF:
)
STATE OF ILUNOIS
)
Pollution Control
Board
Petition ofNoveon, Inc.
)
)
AS 02-5
)
for an Adjusted Standard from
)
35111.
Adm.
Code 304.122
)
REPLY ON MOTION TO
INCORPORATE TRANSCRIPT
FROM PCB 91-17
Noveon, Inc., submits this reply on its motion to incorporate the transcript from Noveon,
Inc.
v. Illinois Environmental Protection Agency, PCB 91-17 (NPDES Permit Appeal), into the
record forNoveon’s pending adjusted standard proceeding.
1.
Noveon believes that the rule cited by Illinois EPA
(35
II. Adm.
Code
101.406)
concerning consolidation ofcases is inapplicable to this case, where Noveon does not seek a
consolidation but only incorporation ofauthenticated, credible and relevant testimony into the
adjusted standardproceeding.
There will still be a separate hearing on eachproceeding, and
likely separate briefs where the evidence can be evaluated under the relevant burden ofproof.
In
any case, Section
101.306(b) allows the Board to evaluate incorporated testimony with
consideration ofthe burden ofproof.
2.
As forthe burden ofproof, Noveon believes that the burden is
more-stringent in
an NPDES Permit Appeal than the adjusted standard proceeding in which Noveon wants
testimony incorporated, so no prejudice can be claimed by incorporation oftestimony from a
proceeding subject to a more rigorous burden ofproof into one with a less rigorous burden of
proof.
The rules ofevidence governing these proceedings are in any case the same, so a
differing ruling to an objection to evidence would be highly unlikely to result in this case and
rather questionable if it did.
3.
As forthe timeliness ofthe motion, Illinois EPA has had the transcript from the
permit appeal for over ten years in a proceeding clearly inextricably intertwined with the
adjusted standard proceeding.
Illinois EPA also had an opportunity to depose Ken Willings, the
only prior witness who was not employed by Illinois EPA, in discovery in this case, although
Illinois EPA did not do so.
In any case, as stated in the motion, Mr. Willings has agreed to be
present and available forcross-examination if necessary at the Adjusted Standard hearing.
As
for the other witnesses, they continue to be employed by Illinois EPA.
WHEREFORE, Noveon, Inc. moves the Board to incorporate the transcript from its
NPDES Permit Appeal, PCB 9 1-17, into this proceeding as part ofthe record.
Respectfully submitted,
NOVEON, INC.
By:
_________
One ofIts Attor~e~~s
Richard J. Kissel
Mark Latham
Shcila H. Deely
GARDNER CARTON & DOUGLAS LLP
191
N. Wacker
-
Suite 3700
Chicago, IL 60606
CH02122292376.1
CERTIFICATE OF SERVICE
The undersigned certifies that a copy ofthe foregoing Notice
of Filing
and
MOTION TO FILE
REPLY INSTANTER
was
filed by hand delivery with the Clerk ofthe Illinois Pollution
Control Board and served upon the parties to whom said Notice is directed by
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
James R.
Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL
60601
(personal delivery)
Deborah Williams
Assistant Counsel
Division ofLegal Counsel
Illinois Environmental Protection
Agency
1021 N. Grand Avenue East
Springfield, IL
62794-9276
(first class
mail and electronic
delivery)
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite 11-500
Chicago, IL
60601
(facsimile)
on Monday, February 9, 2004.
CHO2/22292364.1