RECERVED
CLERKS OFFICE
APR
12
2004
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
STATE OF ILLINOIS
Pollution
Control Board
IN THE MATTER OF:
PROPOSED SITE SPECIFIC REGULATION
)
APPLICABLE TO AMEREN ENERGY
)
R04-1
1
GENERATING COMPANY, ELGIN, ILLINOIS,
)
AMENDING
35
ILL. ADM. CODE 901
)
NOTICE OF FILING
TO:
See attached Service List
Please take notice that today I have filed with the Clerk ofthe Illinois Pollution Control
Board
on
behalf of the Petitioner in
this matter the attached Petitioner’s
Response
to Attorney
General’s Motions to Dismiss and
Strike, along with a Certificate ofService.
Respectfully submitted,
2~L
Marili McFawn
Dated:
April 9, 2004
SchiffHardin L.L.P.
6600 Sears Tower
Chicago, Illinois
60606
312-258-5519
CH2\ 1060935.1
SERVICE
LIST
Ms. Dorothy Gunn
Clerk ofthe Pollution Control Board
James R. Thompson Center
100 West Randolph
Suite 11-500
Chicago, Illinois 60601
Mr.
John
Knittle, Esq.
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Springfield, Illinois 62794
Office ofLegal
Services
Illinois Department of Natural Resources
One Natural Resources Way
Springfie~d,
Illinois 62702-1271
Mr.
Scott Phillips, Esq.
Illinois Environmental Protection Agency
Division of Legal Counsel
1021 North Grand Avenue East
P.O.
Box
19276
Springfield, Illinois 62794-9276
Realen Homes
Attn.:
Al Erickson
1628 Colonial Parkway
Inverness, Illinois 60047
Mr. Joel Sternstein
Assistant Attorney General
Environmental Bureau
188 West Randolph St.,
20th
Floor
Chicago, Illinois 60601
Village ofBartlett
Attn.:
Bryan Mraz, Attorney
228
South Main Street
Bartlett, Illinois 60103
CH2\
1060953.1
CLERK’S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
APR
12
2004
IN THE MATTER OF:
~
~
PROPOSED SITE SPECIFIC REGULATION
)
APPLICABLE TO AMEREN ENERGY
)
R04-1
1
GENERATING COMPANY, ELGIN, ILLINOIS,
)
AMENDING 35
ILL. ADM. CODE 901
)
PETITIONER’S RESPONSE
TO ATTORNEY GENERAL’S MOTIONS TO DENY AND STRIKE
Now comes Ameren Energy Generating Company (Petitioner), by and through
its
attorneys, and hereby files its response to the four motions filed as a single pleading on April
2,
2004 by the Office ofthe Attorney General (“AGO”).
Those motions seek to
exclude the
information provided with the two motions filed by Petitioner on March 19, 2004.
h~
support of
its Motions, the AGO offers two rationales:
(1) that Petitioner seeks to introduce new evidence;
and
(2) the AGO would be prejudiced if Petitioner’s Motions are
granted.
Petitioner’s Motions ofMarch 19, 2004 address the new information and issues raised by
the AGO in its
March 10, 2004 public comment.
Therefore, contrary to its
claim, the AGO will
not be prejudiced if Petitioner’s Motions to Supplement the Record and for Leave to File a
Response are granted.
The purpose of developing a record in this rulemaking is to provide a
complete, accurate and
clear record for the Board to
consider in making its
decision whether to
adopt the proposed site specific rule.
The public
comment filed by the AGO added new
information into the record, and demonstrated that it has misunderstood or misinterpreted much
ofthe record presented at hearing.
Petitioner seeks to supplement the record only to
address the
new information submitted with the AGO’s public comment,
and to file a response to the AGO’s
public comment to clarify and hopefully answer the questions raised by the AGO’s omissions of
critical facts and misinterpretations.
This is not an adjudicatory proceeding; it is quasi-legislative.
There is nothing in the Act
or the Board’s procedural rules
which would preclude the Board
from granting Petitioner’s
motions.
Granting Petitioner’s motions in this rulemaking will not cause the AGO to suffer any
material prejudice.
However, granting the AGO’s motions will result in a record which is not
complete and accurate, a result that would result materially prejudice Petitioner and others
relying upon that record for clarity and completeness.
Granting Petitioner’s motions means only
that the Board has available the most complete and accurate record for its decision-making in
this matter.
Therefore, neither party is prejudiced if the Board denies the AGO’s Motions to
Deny and to Strike Petitioner’s motions, and grants Petitioner’s motions.
In further response,
Petitioner will address both ofthe AGO’s claims initially in the
context ofeach ofour two motions.
1.
Petitioner’s Motion to Supplement the Record included two documents:
(1) the
Circuit court’s Agreed Order resolving the Complaint entered into this record by the AGO as
partofit~public
comment;
and (2) the “Noise Easement and Restrictive Covenant Agreement
between Petitioner and Realen Homes L.P.”
As explained in Petitioner’s
Motion to
Supplement,
the AGO had these documents before it filed its post hearing comment on March
10, 2004.
Both are matters ofpublic record and available to the Board and
the AGO independent
of Petitioner’s Motion to
Supplement.
The AGO introduced
only the Complaint into the record
with its Public Comment.
The documents provided by Petitioner are necessary for the Board to
be fully apprised ofthe facts surrounding the Complaint attached to the AGO’s public
comment.
Thus, the AGO cannot suffer any prejudice if Petitioner’s Motion to
Supplement is granted, but
the Petitioner would
suffer material prejudice if Petitioner’s
Motion is denied.
As for the AGO’s second claim that these documents are offered as new evidence, that is
incorrect.
As stated at paragraphs 3 and
4 ofPetitioner’s Motion to Supplement,
these
documents are not offered as evidence in
support ofthe site specific rule requested by Petitioner
in this rulemaking, but rather to remove any question the Board may now have due to Mr.
Chinn’s comment about the Circuit Court proceeding that
is independent ofthis rulemaking.
2.
InPetitioner’s
Motion for Leave to
File a Response to the AGO’s Public Comment
and the attached Response, Petitioner did not seek to introduce any new evidence.
While the
Motion for Leave to File provided that the only new information in the Response was that
omitted by the AGO concerning the Hillside facility, the facts about that facility were included in
Petitioner’s Public Comment
as a footnote.
See page 14, footnote
5
ofPetitioner’s Public
Comment.
The only thing new to the record is
Petitioner’s objection
to the AGO’s decision to
omit these material facts when it once again cited the Hillside facility in support ofits public
comment without any analysis ofthese critical facts.
The AGO will not be prejudiced if the Board grants
Petitioner’s Motion for Leave to File
a Response.
Concerning the Hillside facility, Mr. Chinn had an opportunity to include these
facts at hearing or in the Response to Questions Raised at Hearing, filed on February 9, 2004.
He never included these facts—not at hearing (although he testified that he had personally visited
the facility);
not in the AGO’s Response to
Questions even though Chinn had agreed
at hearing
to provide equipment information to the Board (Tr.
270); and not in the AGO’s public comment.
These facts are not new to the AGO.
Therefore, the discussion about the Hillside
facility in
Petitioner’s
Response cannot be a surprise or otherwise prejudicial
to the AGO.
Petitionerprays that the Board will deny the each ofthe fourmotions filed by the AGO,
and grant the two motions filed by Petitioner on March 19, 2004.
In so doing, the issues
that the
AGO raised in its public
comment ofMarch
10,
2004 will be complete and
fully addressed
for
the purposes ofthe public record and the Board’s decision-making in this rulemaking.
Respectfully submitted,
Marili McFawn
Schiff Hardin LLP
6600 Sears Tower
Chicago, Illinois
60606
Attorney for Petitioner
Dated:
April 9, 2004
CERTIFICATE OF SERVICE
I,
the undersigned,
certify
that
I
have
served
the
documents described
in
the
attached
Notice ofFiling upon the Clerk ofthe Pollution Control Board and Hearing Officer John Knittle
by
Federal
Express and
those
on
the Service List
by
depositing them
in
regular U.S.
mail
on
April 9, 2004.
Marili McFawn
CH2\
1060957.1