BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

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

100 West Randolph Street

James R. Thompson Center

Suite 11-500

100 West Randolph Street

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

RESPONSE TO IERG’S

MOTION TO STRIKE

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 23, 2007

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

Electronic Filing, Received, Clerk's Office, July 23, 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

)

RESPONSE TO IERG’S

MOTION TO STRIKE

NOW COMES the Respondent, ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY (“Illinois EPA”), by and through its attorneys, and files this Response to the

Illinois Environmental Regulatory Group’s (“IERG”) Motion to Strike recently filed with

the Board in the above-captioned matter. In support thereof, the Respondent states the

following:

On June 25, 2007, the Illinois EPA electronically filed a Motion for

Reconsideration (hereinafter “Motion for Reconsideration”) with the Board pertaining to

an earlier May 17, 2007, Order.

On July 9, 2007, the Illinois Environmental Regulatory Group (“IERG”)

filed a Response to the Motion for Reconsideration (“IERG’s Response”) with the Board.

IERG incorporated a Motion to Strike with its Response (“Motion”). An electronic mail

version of the filing was received at 1:18 p.m. on that same day by one of the

Electronic Filing, Received, Clerk's Office, July 23, 2007

undersigned attorney’s colleagues. The undersigned attorney was not served with a copy

of the filing and, to this date, a copy of the actual document served upon the Illinois EPA

has not been located by the other attorneys of record for the Illinois EPA.

On July 11, 2007, the Illinois EPA sought leave to file a Reply to the

separate Responses filed by the industry objectors. Specifically, the Illinois EPA sought

leave to file a Reply with the Board by no later than Wednesday, July 18, 2007. The

Illinois EPA’s request for leave to file a Reply did not address the Motion.

The Board granted the Illinois EPA’s request to file a Reply at the July 12,

2007, Board meeting. The Board’s formal order, dated that same day, also did not

address the Motion.

The Board’s procedural rules provide that a party may file a response to a

motion with the Board within fourteen (14) days after service.

See,

35 Ill. Adm. Code

101.500(d).

The Motion alleges that the Illinois EPA did not support the arguments

presented in its prior Motion for Reconsideration with the necessary “oath or affidavit”

pursuant to 35 Ill. Adm. Code 101.904. Specifically, IERG argues that those arguments,

which primarily focused on the rules of statutory construction, must be either (1) a

“rehashing” of arguments that are not permitted by the Board’s reconsideration

procedures or, alternatively, (2) “new arguments” which, by implication, are not a matter

of record and therefore requires the formality of an “oath or affidavit or other appropriate

showing.”

See,

35 Ill. Adm. Code 101.904. Both arguments presented by IERG are

erroneous.

Electronic Filing, Received, Clerk's Office, July 23, 2007

The first part of IERG’s analysis reflects a misunderstanding of the

Board’s requirements governing its standards for granting motions for reconsiderations.

Section 101.902 provides that the Board “will consider factors including new evidence,

or a change in the law, to conclude that the Board’s decision was in error.”

See,

35 Ill.

Adm. Code 101.902. As the Illinois EPA stated in both its Motion for Reconsideration

and the later Reply, the arguments concerning statutory construction are the principal

basis for its present efforts to show that the Board’s earlier interpretation of Section 28.5

was erroneous. While such arguments are admittedly not “new evidence” or a “change in

the law,” the Board’s procedural rule does not limit the scope of consideration to those

two considerations alone. Such a construction of the rule, seemingly advocated by IERG

here, would deny the language its plain meaning by construing the word “including” as

meaning “exclusively.”

IERG’s second part of their analysis, upon which its Motion to Strike

relies, is equally flawed. Section 101.904 of the Board’s procedural rules is not

implicated in the matter at hand. The oath/affidavit requirements found in Section

101.904(c) is part of the procedural framework that governs a request for relief from

“final opinions and orders.” Those requirements are not to be confused with the separate

procedures governing a request for a motion for reconsideration, which are found at 35

Ill. Adm. Code 101.520. It is true that the standards for reconsideration are addressed in

Subpart I, as are the Board’s procedures for obtaining relief from final judgment.

However, the procedures for relief from a final order are wholly separate from the

reconsideration requested in the Illinois EPA’s filing. The Board’s May 17

Order is not

Electronic Filing, Received, Clerk's Office, July 23, 2007

yet final because the Illinois EPA filed a timely request for reconsideration. For this

reason, the procedures cited by IERG are inapplicable.

It should also be noted that IERG’s basic objection appears to stem from

the Illinois EPA’s reference to, and arguments about the relevancy of, the 1992 report

created by the Attorney General’s Task Force on Environmental Legal Resources. The

document is an official government document that is currently maintained by the Illinois

EPA in a library open to the public (i.e., Headquarters office in Springfield, Illinois) and,

further, it has been relied upon by one of the participants to this rulemaking and at least

one other participant in a prior Board rulemaking. More fundamentally, the Illinois

EPA’s citation and supporting statements concerning the document must be viewed in the

proper context. A legal argument concerning the proper interpretation of a statute is not

akin to the types of the factual representations that would ordinarily require an oath or

affidavit from a non-lawyer.

Wherefore,

the Respondent respectfully requests that the Board deny IERG’s

Motion to Strike or, in the alternative, provide such relief as may be just and appropriate.

Respectfully submitted by,

_____/s/_____________________

Robb H. Layman

Assistant Counsel

Dated: July 23, 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 23, 2007

CERTIFICATE OF SERVICE

I hereby certify that on the 23

day of July 2007, I did send, by electronic mail,

the following instrument entitled

RESPONSE TO IERG’S MOTION TO STRIKE

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