1. NOTICE
 
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
IN THE MATTER OF:
)
)
FAST-TRACK RULES UNDER NITROGEN
)
R07-18
OXIDE (NOX) SIP CALL PHASE II
)
(Rulemaking – Air)
AMENDMENTS TO 35 ILL. ADM. CODE
)
SECTION 201.146 AND PARTS 211 AND 217
)
__________________________________________)
)
IN THE MATTER OF:
)
)
SECTION 27 PROPOSED RULES FOR
)
R07-19
NITROGEN OXIDE (NOX) EMISSIONS
)
(Rulemaking – Air)
FROM STATIONARY RECIPROCATING
)
INTERNAL COMBUSTION ENGINES AND
)
TURBINES: AMENDMENTS TO 35 ILL.
)
ADM. CODE PARTS 211 AND 217
)
NOTICE
To:
John Therriault, Acting Clerk
Timothy Fox, Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
100 West Randolph Street
James R. Thompson Center
Suite 11-500
100 West Randolph Street
Chicago, Illinois 60601
Chicago, Illinois 60601
See also, Attached Service List
PLEASE TAKE NOTICE that I have today electronically filed with the Office of
the Clerk of the Illinois Pollution Control Board the
MOTION FOR LEAVE TO FILE
REPLY BY DATE CERTAIN
of the Respondent, Illinois Environmental Protection
Agency, a copy of which is herewith served upon you.
Respectfully submitted by,
_____/s/______________________
Robb H. Layman
Assistant Counsel
Dated: July 11, 2007
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 524-9137
Electronic Filing, Received, Clerk's Office, July 11, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
IN THE MATTER OF:
)
)
FAST-TRACK RULES UNDER NITROGEN
)
R07-18
OXIDE (NOX) SIP CALL PHASE II
)
(Rulemaking – Air)
AMENDMENTS TO 35 ILL. ADM. CODE
)
SECTION 201.146 AND PARTS 211 AND 217
)
__________________________________________)
)
IN THE MATTER OF:
)
)
SECTION 27 PROPOSED RULES FOR
)
R07-19
NITROGEN OXIDE (NOX) EMISSIONS
)
(Rulemaking – Air)
FROM STATIONARY RECIPROCATING
)
INTERNAL COMBUSTION ENGINES AND
)
TURBINES: AMENDMENTS TO 35 ILL.
)
ADM. CODE PARTS 211 AND 217
)
MOTION FOR LEAVE TO FILE REPLY
BY DATE CERTAIN
NOW COMES the Respondent, ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY (“Illinois EPA”), by and through its attorneys, and respectfully requests leave
to file a Reply to separate Responses recently filed with the Board in the above-captioned
matter. In support thereof, the Respondent states the following:
1.
On June 25, 2007, the Illinois EPA electronically filed a Motion for
Reconsideration (hereinafter “Motion”) with the Board pertaining to an earlier May 17,
2007, order.
2.
On July 6, 2007, the Pipeline Consortium filed a Response to the Motion
with the Board. An electronic mail version of the Response was received at 3:57 p.m. on
that same day by the undersigned attorney. Formal service of the motion has not been
made on the undersigned attorney, however, it is possible that service has been made to
one of the other attorneys of record for the Illinois EPA.
Electronic Filing, Received, Clerk's Office, July 11, 2007
3.
On July 9, 2007, the Illinois Environmental Regulatory Group (“Illinois
IERG”) filed a separate Response to the Motion with the Board. An electronic mail
version of the Response was received at 1.18 p.m. on that same day by one the
undersigned attorney’s colleagues. Formal service of the motion has not been made on
the undersigned attorney, however, it is possible that service has been made to one of the
other attorneys of record for the Illinois EPA.
4.
The Board’s regulations do not specifically provide a right to a reply to a
moving party in the context of a Motion for Reconsideration. The Board’s regulations
governing general motion practice do not provide a right to reply to a moving party,
however, they do allow for a reply where permitted by the Board or hearing officer to
prevent material prejudice.
See, 35 Ill. Adm. Code 101.500(e).
The latter provision
requires that a reply must be filed within 14 days following service of the response.
Id.
5.
A review of the Responses filed by the Pipeline Consortium and the
Illinois IERG was conducted for the first time by the undersigned attorney yesterday due
to his vacation scheduling of last week. This review has revealed that the Responses
contain arguments that are both misleading and without merit. For one thing, certain
arguments raised by the industry objectors concerning the fast-track provisions of Section
28.5 of the Illinois Environmental Protection Act, 415 ILCS 5/28.5 (2006), distort the
plain meaning of the statute and downplay the existence of two possible interpretations of
the statute’s text, even though such arguments are clearly at variance with the statutory
construction previously urged by industry group lawyers in the earlier mercury
rulemaking.
See generally, In the Matter of Proposed New 35 Ill. Adm. Code Part 225
Control of Emissions from Large Combustion Sources,
PCB R06-25. Moreover, certain
arguments raised in the Responses appear to attack the accuracy and the relevancy of a
Electronic Filing, Received, Clerk's Office, July 11, 2007
document that the Illinois EPA believes is a useful, extrinsic aid to the statute’s
construction, even though the document itself was first introduced and relied upon in
legal arguments presented by one of the industry objectors in this case, as well as cited by
other industry lawyers in the earlier mercury rulemaking.
6.
In order to prevent material prejudice that would result from the inability
to confront these arguments, the Illinois EPA seeks a right of Reply to the afore-
mentioned Responses. Given the possible interest of the Board in minimizing delays in
this matter, the undersigned attorney will commit to filing a comprehensive Reply to both
Responses with the Board by no later than Wednesday, July 18, 2007, at least two days
shy of the Board’s 14 day period allotted in its procedural rules.
7.
No hardship or prejudice will occur to the Pipeline Consortium or the
Illinois IERG as a result of the granting of this Motion and, further, it will ensure that all
of the statutory construction arguments concerning the applicability of Section 28.5 are
properly addressed for the Board’s re-consideration.
WHEREFORE,
the Illinois EPA respectfully requests that the Board grant leave
for the Illinois EPA to file a Reply to the Responses with the Board by no later than
Wednesday, July 18, 2007, or, in the alterative, provide such relief as may be just and
appropriate.
Respectfully submitted by,
_____/s/____________________
Robb H. Layman
Assistant Counsel
Dated: July 11, 2007
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 524-9137
Electronic Filing, Received, Clerk's Office, July 11, 2007
CERTIFICATE OF SERVICE
I hereby certify that on the 11th day of July 2007, I did send, by electronic mail,
the following instrument entitled
MOTION FOR LEAVE TO FILE REPLY BY
DATE CERTAIN
to:
John Therriault, Acting Clerk
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
and a true and correct copy of the same foregoing instrument, by First Class Mail with
postage thereon fully paid and deposited into the possession of the United States Postal
Service, to:
Timothy Fox, Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Chicago, Illinois 60601
See also, Attached Service List
_____/s/______________________
Robb H. Layman
Assistant Counsel
Electronic Filing, Received, Clerk's Office, July 11, 2007
Additional Service List
Katherine D. Hodge
N. LaDonna Driver
Gale W. Newton
Hodge Dwyer Zeman
3150 Roland Ave.
PO Box 5776
Springfield, IL 62705-5776
N. LaDonna Driver
Illinois Environmental Regulatory Group
3150 Roland Ave.
PO Box 5776
Springfield, IL 62705-5776
Renee Cipriano
Kathleen C. Bassi
Joshua R. More
Stephen J. Bonebrake
Schiff Hardin, LLP
6600 Sears Tower
233 S. Wacker Drive
Chicago, IL 60606-6473
Electronic Filing, Received, Clerk's Office, July 11, 2007

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