1. CERTIFICATE OF SERVICE
REc~EtJVED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD CLERK’SOFFICE
IN THE MATTER OF:
)
APR27
20134
STATE OF ILLINOIS
PROPOSED SITE SPECIFIC REGULATION
)
R04-l1
P~IIutj~~
Control Board
APPLICABLE TO AIVIEREN ENERGY
GENERATING COMPANY, ELGIN,
AMENDING 35
ILL. ADM.
CODE PART
901)
NOTICE OF FILING
PLEASE TAKE NOTICE that the Plaintiff,
PEOPLE OF THE STATE
OF ILLINOIS,
filed with the Illinois Pollution Control Board,
its
MOTION FOR LEAVE TO FILE A REPLY and its REPLY TO PETITIONER’S
RESPONSE TO ATTORNEY GENERAL’S MOTIONS TO DENY AND STRIKE true
and correct copies of which are attached hereto and are hereby
served upon you.
PEOPLE OF THE STATE OF ILLINOIS
Ex rel.
LISA MADIGAN, Attorney
General of the State of
llinois
BY:
____________
JOEL
J.
STERNSTEIN
Assistant Attorney General
Environmental Bureau
188 West Randolph,
20th
Floor
Dated:
April
27, 2004
Chicago,
IL 60601
(312)
814-6986
THIS FILING ISSUBMITTED
ON RECYCLED PAPER
SERVICE LIST
Ms. Dorothy Gunn
Clerk of the Illinois Pollution Control Board
James
R. Thompson Center
100 W. Randolph,
Suite 11-500
Chicago,
IL 60601
(312)
814-3620
Mr. John Knittle, Esq.
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Springfield,
Illinois
62794
(217)
278-3111
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
(217)
782-5544
Office of Legal Services
Illinois Department
of Natural Resources
One Natural Resources Way
Springfield,
IL 62702-1271
(217)
782-6302
Mr. Sheldon Zabel,
Esq.
Ms. Marili McFawn,
Esq.
Schiff, Hardin & Waite
6600 Sears Tower
Chicago,
Illinois 60606
(312)
258-5519
Realen Homes
Attn: Al Erickson
1628 Colonial Parkway
Inverness,
Illinois 60047
Village of Bartlett
Attn: Bryan Mraz, Attorney
228
S. Main St.
Bartlett,
Illinois 60103
~C!E~K~YED
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARD
CE
APR 2?
2004
IN THE MATTER OF:
STATE OF ILLINOIS
PROPOSED SITE SPECIFIC REGULATION
)
R04-ll
POII~ti~~
Control Board
APPLICABLE TO
AMEREN
ENERGY
GENERATING COMPANY,
ELGIN,
AMENDING 35
ILL.
ADM.
CODE
PART
901)
ATTORNEY GENERAL’S OFFICE MOTION FOR LEAVE TO FILE A REPLY
The PEOPLE OF THE STATE OF ILLINOIS,
ex
rel.
LISA MADIGAN,
Attorney General of the State of Illinois, pursuant to Section
101.500(e)
of the Illinois Pollution Control Board’s Regulations,
35
Ill. Adm.
Code 101.500(e), requests that the Board grant
it
leave to file a Reply to Petitioner’s Response to Attorney
General’s Motions to Deny and Strike which Petitioner filed on
April
13,
2004.
The Attorney General’s Office
(“AGO”)
contends
that
it is filing its Motion for Leave to File a Reply in a
timely manner and that it will suffer material prejudice
if the
Board does not grant it leave to file a Reply.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
ex rel.
LISA MADIGAN, Attorney
General
of the State of Illinois
MATTHEW J.
DUNN,
Chief
Environmental Enforcement/Asbestos
Litigation Division
ROSEMARIE CAZEAU,
Chief
Environmental Bureau
BY:
JOEL STERNSTEIN
Assistant Attorney General
Environmental BureauS
188 West Randolph, 20t~~
Floor
Chicago,
IL 60601
(~l2) 814-6986
BEFORE
THE
ILLINOIS
POLLUTION
CQNTROL
IN THE MATTER OF:
)
APR
272004
PROPOSED SITE SPECIFIC REGULATION
)
R04-11
STATEOFILLINOIS
APPLICABLE
TO
AMEREN
ENERGY
)
Pollution Control
Board
GENERATING COMPANY,
ELGIN,
AMENDING 35
ILL.
ADM.
CODE PART 901)
ATTORNEY GENERAL’S
OFFICE REPLY TO PETITIONER’S
RESPONSE TO
ATTORNEY GENERAL’S
MOTIONS
TO DENY AND STRIKE
1.
On page 1 of Petitioner’s Response to Attorney
General’s Motions to Deny and Strike
(“Response”), Petitioner
contends that the AGO added new information to the record in its
Post-Hearing Comments submitted on March 10,
2004
(“AGO’s Post-
Hearing Comments”).
However,
Petitioner also included new
information its Post-Hearing Comments submitted on March 10,
2004
(“Petitioner’s Post-Hearing Comments”).
See,
e.g.,
Petitioner’s
Post-Hearing Comments at p.9
(“Finally,
this cost estimate does
not include the cost of retaining and making available the expert
consultants to conduct the study when the various necessary
testing conditions are all aligned.”)
Petitioner has no right to
criticize
any new information in the AGO’s Post-Hearing Comments
when the Petitioner included new information in its own Post
Hearing Comments.
The AGO did not respond to Petitioner’s new
information out of respect for the Hearing Officer’s March 10,
2004 deadline for all post hearing comments.
2.
Petitioner states that nothing in the Act precludes the
Board from granting its March 19,
2004 Pleadings
(“March 19
1
Pleadings”)
.
Response at pp.
1,
2.
However,
Petitioner ignores
the fact that the March
19 Pleadings clearly violated the Hearing
Officer’s March 10, 2004 deadline for the submission of post-
hearing
comments.
3.
In its March 19 Pleadings,
Petitioner seeks to
respond
to the AGO’s Post-Hearing Comments and answer questions raised by
what the Petitioner incorrectly calls the
AGO’s
“omission of
critical facts and misinterpretations”.
Response at
1.
Petitioner gets an additional opportunity to add
to the record.
This opportunity was denied to the AGO because the AGO adhered to
the Hearing Officer’s instructions.
The AGO submitted no further
comments after the March
10,
2004
post-hearing comment deadline.
If the Board allows the March 19 Pleadings into the record,
the
AGO
will
be
prejudiced.
4.
The
only
ways
to
remedy
the
potential
prejudice
to
the
AGO and to ensure that the Board treats both parties fairly are
to strike Petitioner’s March 19 Pleadings or allow the AGO the
right
to respond to the Petitioner’s Post-Hearing Comments.
5.
Petitioner
al~oclaims that granting the AGO’S Motions
to
Deny
and
Strike will result in a record that
is “not complete
and
accurate”.
Response
at
2.
Any
blame
for
a
supposedly
inaccurate
and
incomplete
record
clearly
lies
with
the
Petitioner
for
neglecting
to
include
information
from its March 19
Pleadings
in
its
Post-Hearing
Comments.
The
AGO
could
also
claim
that
the
2
record is not complete and accurate since it has not responded to
Petitioner’s Post-Hearing Comments.
Both Petitioner and the AGO
had a deadline to follow.
The AGO met the deadline, and
Petitioner is trying to add additional information to the record
after the deadline.
The AGO is prejudiced as a result.
6.
Petitioner also complains that the AGO only attached a
copy of the amended
complaint in the Ameren
et
al
v. Village of
Bartlett
et al
case1
to its Post-Hearing Comments but attached no
other documents related to that case.
The AGO referred to the
complaint and included it in the AGO’s Post-Hearing Comments in
order to alert the Board to the existence of the Bartlett case.
In its Post-Hearing Comments,
the AGO also mentioned that it had
become aware that the parties had reached a settlement in the
Bartlett Case.
The AGO would have simply wasted paper if it
attached all of the other publicly-available documents in the
Bartlett case to its Post-Hearing Comments.
The Complaint,
the
Settlement,
and many other documents from the Bartlett case were
available to Petitioner long before the Hearing Officer’s March
10 deadline in this matter.
Petitioner cannot purposefully
ignore
the
Hearing
Officer’s
deadline just because it neglected
to
include
documents
during
its
presentation
at hearing or in its
Post-Hearing
Comments.
Cook
County
Case No
03
CH
11307,
included
as
Exhibit
A
to
the
AGO5
Post-Hearing
Comments.
3
7.
Petitioner also claims that the AGO “misunderstood or
niisinterpreted”
much
of
the
record
at hearing.
Response at
1.
This
statement
is
not
accurate.
The
AGO
understood exactly what
was
happening
at
the
hearing and has not misrepresented anything
in
the
record.
8.
Petitioner also makes the claim that the documents it
attached to the March 19 Pleadings are not offered as new
evidence.
Response at 2-3.
This
is not true.
These documents
were proffered to the Board after the close of the post-hearing
comment
period
and
are
certainly
new.
9.
Petitioner also claims that the AGO cited the Hillside
facility “without any analysis of
.
.
.
critical facts”.
Response at
3.
Again,
this
is not true and is another example of
Petitioner commenting on the AGO’s Post-Hearing Comments past the
deadline without the AGO commenting on Petitioner’s Post-Hearing
Comments.
10.
Therefore,
the AGO requests that the Pollution Control
Board do the following:
a.
Deny Petitioner’s Motion for Leave to File
Response;
b~
Strike Petitioner’s Response to the AGO’s
Public
Comment from the record;
c.
Deny Petitioner’s Motion to Supplement Record; and
d.
Strike the documents attached to the Motion to
4
.~
.
Supplement
from
the
record.
PEOPLE OF THE STATE OF ILLINOIS
Ex rel.
LISA
MADIGAN,
Attorney
General
of
the
State
of
Illinois
MATTHEW J. DUNN,
Chief
Environmental
Enforcement/Asbestos
Litigation
Division
ROSEMARIE CAZEAU,
Chief
Environmental Bureau
BY:
Jo~
JOEL STEPNSTEIN
Assistant Attorney General
Environmental Bureau
188 West Randolph, 2O~~
Floor
Chicago,
IL 60601
(312)
814-6986
5
CERTIFICATE OF SERVICE
I,
JOEL
J.
STEP.NSTEIN,
an Assistant
Attorney
General,
do
certify that
I caused
to be mailed this
27th
day of April
2004,
the foregoing ATTORNEY GENERAL’S OFFICE MOTION FOR LEAVE TO FILE
A REPLY and ATTORNEY GENERAL’S OFFICE REPLY
TO, PETITIONER’S
RESPONSE TO ATTORNEY GENERAL’S MOTIONS TO DENY AND STRIKE by
first-class mail in a postage prepaid envelope and depositing
same with the United States Postal Service located at 100 West
Randolph Street,
Chicago, Illinois,
60601.
JOEL
J.
STERNSTEIN

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