ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
RECEfl~ED
CLERK’S OFFICE
NOV
03
2004
)
STATE OF
ILUNOIS
)
Pollution Control Board
)
)
)
)
PCB 91-17
)
(NPDES Permit Appeal)
)
)
)
)
)
NOTICE
OF FILING
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board.
James R. Thompson Center
100
West
Randolph
Street,
Suite.
11-500
Chicago, Illinois 60601
Sheila
H. Deely
GARDNER
CARTON
&
DOUGLAS LLP
191
N.
Wacker
Drive
—
Suite
3700
Chicago, IL 60606
Bradley P.
Halloran
Hearing Officer
James R.
Thompson Center
100
West
Randolph
Street,
Suite.
11-500
Chicago, Illinois
60601
PLEASE TAKE NOTICE that
I have today filed with the Office of the Clerk of the,
Pollution Control Board
the
Response to Motion
for Reconsideration and Oral Argument of
the illinois Environmental Protection Agency, a copy of which is herewith
served
upon you.
ENVIRONMENTAL PROTECTION AGENCY
OF THE STATE OF ILLINOIS
Deborah Williams
Assistant Counsel
Division of Legal Counsel
DATED:
November
1, 2004
Illinois Environmental Protection Agency
1021
North Grand Avenue East
Post Office Box
19276
Springfield, Illinois 62794-9276
(217) 782-5544
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
NOVEON,
INC. f/k/a BF GOODRICH
CORPORATION, (Henry Facility),
Petitioner,
vs.
Respondent.
THIS FILING IS
SUBMITTED ON RECYCLED PAPER
CLERK’S OFFICE
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARD
NOV 03
2004
NOVEON, INC. f/k/a BF GOODRICH
)
STATE OF
ILLINOIS
CORPORATION, (Henry Facility),
).
PCB 91-17
Pollution
Control Board
)
(NPDES
Permit Appeal)
Petitioner,
)
)
vs.
)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
RESPONSE TO MOTION FOR RECONSIDERATION
AND
ORAL ARGUMENT
Now comes the Respondent, the Illinois Environmental Protection Agency
(“Illinois EPA”), by one ofits attorneys, Deborah J. Williams,
Assistant Counsel,
pursuant to
35
Ill. Adm.
Code
101.520,
101.902 and
101.700 and in response to Noveon,.
Inc.’s (“Noveon” or“Petitioner”) Motion for Reconsideration and Oral Argument states
as follows:
On September 16,
2004 the Board ruled on Noveon’s National Pollutant
Discharge Elimination System (“NPDES”) Permit Appeal in the~
above-captioned docket..
In a seventeen (17) page Opinion and Order, the Board sustained Noveon’s NPDES
permit (IL0001392) as issued by the Illinois EPA on December 28,
1990.1
On October
20, 2004, Noveon filed the instant Motion asking the Board to reconsider its Opinion in
this matter and additionally requesting the Board to
grant oral argument.
The purpose ofa motion forreconsideration is to bring to the Board’s attention
newly-discovered evidence which was not available at the time ofthe hearing, changes in
the law or errors in the Board’s previous application of the existing law.
Vogue Tyre &
Rubber
Company v.
Office ofthe State Fire Marshal, PCB
95-78
(January
23,
2003),
‘Noveon filed this appeal of its NPDES
on
January 24,
1991.
citing to Korogluyan v. Chicago Title & Trust Co., 213
Ill. App. 3d 622,
572 N.E.2d
1154
(1St Dist.
1992) and Citizens Against Regional
Landfill v. County Board of
Whiteside County, PCB 93-156 (March
11, 1993).
See also,
Turlek v. Pollution Control
Board, 274 Ill. App.
3d 244,
653
N.E. 2d 1288
(1St Dist.
1995).
On its face, Noveon’s
Motion does not raise new evidence or changes in the law.
It simply attempts to
readdress arguments already considered and rejected by the Board.
Fortunately Noveon has not attempted to present new facts for the Board’s
consideration in this
matter.
It is difficult to conceive ofany new facts that could not
havebeen discovered in the intervening decade since this Permit Appeal was initially
filed with the Board or during the course ofthe extensive hearings held over a total of
four days in
1991
and 2004.
Additionally, Noveon raises no new or existing caselaw or
statutory provisions That the Board overlooked or improperly interpreted in its Opinion
and Order.
Noveon’s Motion for Reconsideration has no basis
in law or fact beyond the
Petitioner’s desire to delay even further the effectiveness ofa permit lawftully issued by
the Agency in
1990.
Noveon has also moved the Board to grant oral argument in this matterpursuant
to 35 Ill. Adm. Code
101.700.
That provision provides that “the
purpose oforal
argument is to address legal questions.
Oral argument is not intended to address new
facts.”
35 Iii. Adm. Code
101.700(a).
In determining whether to grant oral argument, the
Board considers the uniqueness ofthe issue or conflicts oflaw.
35 Ill. Adm.
Code
101.700(b).
Oral
Argument is rarely granted by the Board and has neverbeen granted
AFTER the Board has issued a final Opinion and Order in a permit
appeal.
In fact, the
Board has only once previously granted a request for oral argument in a permit appeal
2
proceeding.
See,
Prairie Rivers Network v.
JEPA and Black Beauty Coal Company, PCB
01-1 12 (August 9, 2001).
It’s not entirely clear why Noveon has requested oral argument
in this matter, but it is certainly not to address a complex area oflaw or conflicting prior
Board decisions.
IfNoveon had felt oral argument was necessary to address an issue of
law
in this matter, it-would have requested such a proceeding at some point during the
multiple days ofhearings in
1991
and 2004 and in pre-hearing and post-hearing briefs.
The fact that Noveon has waited until afterthe Board’s final Order is
evidence that
Noveon’s request is motivated by the goal ofdelay or in a last ditch effort to reargue its
case before the Board.
All the arguments raised in Noveon’s Motion were thoroughly addressed by the
permit appeal record, hearing testimony, pre-hearing briefs and post-hearing briefs
submitted by the parties.
The fact that Noveon disagrees with conclusions reached by the
Board in this matter is not a basis for a Motion to Reconsider.
In reaching its Opinion in
this matter it was necessary forthe Board to review thousands ofpages ofdocuments
spanning a period ofover thirty years.
The Board did
so successftilly in reaching the
correct result under the Environmental Protection Act and Noveon should not be allowed
to further delay the effectiveness ofthe Board’s Order.
3
WHEREFORE, for the reasons stated above, the Respondent, Illinois EPA,
respectfully requests that Petitioners Motion
for Reconsideration and Oral Argument be
Deborah J.
illiams
Assistant Counsel
Division ofLegal Counsel
DATED:
November 3, 2004
Illinois Environmental Protection
Agency
1021
N. Grand Ave. East
P.O. Box 19276
Springfield, Illinois
62794-9276
THIS FILING IS SUBMITTED
217/782-5544
ON RECYCLED PAPER
4
)
-
STATE OF ILLINOIS
COUNTY OF SANGAMON
I, the undersigned, on
oath state that I have served
the attached
Response to Motion
for
Reconsideration
and Oral Argument
upon the person to whom it is
directed, by placing a copy in an
envelope addressed
to:
Dorothy
M.
Gunn, Clerk
Illinois Pollution
Control
Board
James R.
Thompson Center
-
100
West
Randolph
Street,
Suite.
11-500
Chicago, Illinois 60601
(First Class Mail)
Sheila H. Deely
GARDNER
CARTON
DOUGLAS LLP
191
N.
Wacker
Drive
—
Suite
3700
Chicago,
IL 60606
(First Class Mail)
Bradley P. Halloran
&
Hearing Officer
James R.
Thompson Center
100
West
Randolph
Street,
Suite.
11-500
Chicago, Illinois 60601
(First Class Mail)
and mailing it from Springfield,
flhinois on
November
1,
2004
with sufficient postage affixed as indicated
above.
SUBSCRIBED AND
SWORN TO BEFORE ME
This
1st d
of November,
~L
Notary Public
•
OFFICIAL
SEAL
:~:
BRENDA BOEHNER
~,:
NOTARY
PUBLIC,
STATE
OF
ILLINOIS ~
~:MYCOMMISSION
EXPIRES
1 1-14-2005:i:
SS
)
)
)
)
PROOF OF SERVICE
THIS FILING
IS SUBMITTED
ON RECYCLED
PAPER
