O
R
-ILLINOIS POLLUTION CONTROL BOARD
t
131
N I
,1cember 20, 2006
IN THE MATTER OF :
)
PROPOSED NEW CLEAN AIR
) R06-26
INTERSTATE RULES (CAIR) SO2, NO x
)
(Rulemaking
- Air)
ANNUAL AND NO x
OZONE SEASON
)
TRADING PROGRAMS, 35 ILL
. ADM .
)
CODE 225 . SUBPARTS A,C, D and E
)
HEARING OFFICER ORDER
RE
CLE'S
CEIVEDOFFICE
DEC 2 6 2006
STATE OF ILLINOIS
Pollution Control Board
On May 30, 2006, the Board received a rulemaking proposal submitted by the Illinois
Environmental Protection Agency (Agency) that proposes a new Part 225 to reduce intrastate
and interstate transport of sulfur dioxide (SO2) and nitrogen oxides (NOx)
emissions from fossil
fuel-fired electric generating units (affected units), on an annual basis and on an ozone
season
basis of each calendar year
. The Agency proposes the adoption of the Clean Air Interstate Rule
(CAIR) SO2 trading program, the CAIR NO
x Annual trading program and the CAIR NO
x Ozone
Season trading program to accomplish this objective .
Hearings in this matter were held from October 10 through October 12, 2006, at the
Illinois Environmental Protection Agency Office Building Training Room,
1214 West, 1021
North Grand Avenue East, North Entrance, in Springfield
; and from November 28 through
November 29, 2006, at the James R
. Thompson Center, Room 2-025, 100 West Randolph Street
in Chicago
. On November 30, 2006, Dynegy Midwest Generation, Inc ., Midwest Generation,
LLC, and Southern Illinois Power Cooperative filed a motion to dismiss the rulemaking
.
On December 18, 2006, the Agency filed motions for extension of time to file a response
to the motion to dismiss (Mot
.1), a reply to a response to the Agency's motion to amend the
rulemaking (Mot
.2), and to file written comments (Mot .3). To date, responses to the motions
have not been received.
For the reasons explained more fully below, the Agency's motions for extension are
granted.
November 28, 2006 Hearing
At this hearing, Rachel Doctors and John Kim appeared and participated on behalf of the
Agency
. Kathleen Bassi, Stephen Bonebrake, and Sheldon Zabel appeared and participated on
behalf of Dynegy Midwest Generation, Inc
.
; Midwest Generation, LLC ; and Southern Illinois
Power Cooperative
. David Rieser appeared and participated on behalf of Ameren Energy
Generating Company, Ameren Energy Resources Generating Company, and Electric Energy,
Inc. Steven J
. Murawski appeared and participated on
behalf of Zion Energy, LLP
. Faith E.
Bugel appeared and participated on behalf of the Environmental Law and Policy Center
. James
Russell appeared and participated on behalf of the Christian County Generation, LLC
. Bill
2
Forcade appeared and participated on behalf of Kincaid Generation, LLC. Keith Harley
appeared and participated on behalf of Environment Illinois .
At hearing, the Board received the testimony of Jason M . Goodwin, Gregory Kunkel, C .J.
Saladino, Robert B . Asplund, Steven C . Whitworth, and Charles Kubert . The complete
transcript of the hearing was received at the Board on December 4, 2006 . Seven exhibits were
offered at the hearings .
At the close of the hearing, the public comment period was set to expire on December 22,
2006
. In addition, the Agency was given leave to file a reply to any response to the motion to
amend the rulemaking within seven days after the motion was filed .
Motions For Extension
In the motion for extension of time to file a response, the Agency asserts that pursuant to
Section 101
.500 of the Board's procedural rules, a response to the motion to dismiss is due on or
before December 18, 2006. Mot
. I at 1 . The Agency asserts that due to the nature of the
arguments raised in the motion, as well as the large amount of time spent recently by attorneys
for the Agency on other matters directly related to this rulemaking, the Agency is seeking a short
extension of time up to December 22, 2006, by which it must file a response . Id. The Agency
contends that this short period of time will not result in prejudice nor impede the progress of the
underlying rulemaking. Id.
In the motion for extension of time to file a reply, the Agency asserts that on
December 11, 2006, the Agency received service of the participant's response to the Agency's
motion to amend the rulemaking . Mot.2
at 1 . The Agency asserts that it had previously
conveyed to the hearing officer that it would file its reply to the response by no later than
December 18, 2006, based upon the hearing officer's prior approval of the filing of such reply .
Id. The Agency argues that due to the nature of the arguments raised in the response,
as well as
continuing discussions concerning the content of the response with counsel for the participants,
the Agency is seeking an extension of time up to December 22, 2006, by which it must file a
reply . Id. The Agency asserts that the extension will not adversely prejudice the petitioners nor
impede the progress of the underlying rulemaking
. Id.
In the motion for extension of time to file written comments, the Agency asserts that on
November 29, 2006, at the conclusion of the hearing held in Chicago, the hearing officer ordered
that the written comments were due by December 22, 2006
. Mot.3 at 1 . The Agency notes that
this date was reached after off the record discussions between the hearing officer and the parties,
and that counsel for several of the utility companies participating in this proceeding advocated
for a later due date for the written comments . Id. The Agency asserts that since that time, the
Agency has received information from the United States Environmental Protection Agency
related to this pending rulemaking that should be taken into consideration in the written
comments, and that the Agency has recently completed successful discussions with one utility
that may require additional review of the existing proposed rule language and more extensive
comments than previously anticipated
. Id. The Agency asks that the Board extend the time by
which the written comments are due until January 5, 2007 . Id.
3
The Agency contends that although it has not reached out to all participants in this
rulemaking, presumably this request would apply to any party seeking to file a written or public
comment with the Board. Mot.3 at 2 . The Agency asserts that it has discussed this request with
counsel for Dynegy Midwest Generation, Inc ., Midwest Generation LLC, and Southern Illinois
Power Cooperative, and that counsel has indicated they have no objection to the request . Id.
The Agency concludes that given the overall benefit that should hopefully accrue from additional
time to better prepare written comments for the Board's consideration, this relatively short period
of time will not adversely prejudice any participants to the proceeding, nor unduly impede the
progress of the underlying rulemaking . Id.
Discussion
Generally, the Board will not grant any motion before expiration of the 14-day response
period unless undue delay or material prejudice will result. 35 Ill . Adm. Code 101 .500(d) . In
this instance, the deadlines from which the Agency is seeking an extension, would lapse prior to
the expiration of the response period
. Thus, undue delay would result if the motions were not
heard before the period expires
.
Motions for extension of time may be granted on good cause shown . 35 Ill. Adm. Code
101 .520. The Agency has shown good cause for each of its motions, and all three motions for
extension are granted . The Agency will be given until December 22, 2006, to file its response
to
the motion to dismiss and its reply to the response to the motion to amend the rulemaking
.
Further, the deadline for written comments will be extended for all participants until January
5,
2007
. The mailbox rule will not apply.
Once the public comment period expires, the Board will review the record and consider
the proposal . Questions concerning the status of the rulemaking should be addressed to the
hearing officer or Nancy Miller at (217) 278-3109 .
IT IS SO ORDERED .
ohn 1 e
Hearing Officer
Illinois Pollution Control Board
2125 South First Street
Champaign, Illinois 61820
(217) 278-3109
John J
. Kim, Assistant Counsel
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O . Box 19276
Springfield, Illinois 62794-9276
Rachel L . Doctors
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O . Box 19276
Springfield, Illinois 62794-9276
Dorothy M. Gunn
Anand Rao
Illinois Pollution Control Board
James R
. Thompson Center
100 W
. Randolph St ., Suite. 11-500
Chicago, Illinois 60601
William A
. Murray
Office of Public Utilities
800 East Monroe, 4th Floor
Municipal Building East
Springfield, IL 62757-0001
S. David Farris, Manager
Environmental, Health and Safety
Office of Public Utilities
201 East Lake Shore Drive
Springfield, IL 62757
David Rieser
McGuire Woods LLP
77 W
. Wacker, Suite 4100
Chicago, IL 60601
James T. Harrington
McGuire Woods LLP
77 W
. Wacker, Suite 4100
Chicago, IL 60601
SERVICE LIST
(R06-26)
Sasha M. Reyes
Baker & McKenzie
One Prudential Plaza, Suite 3500
Chicago, IL 60601
Steven J . Murawski
Baker & McKenzie
One Prudential Plaza, Suite 3500
Chicago, IL 60601
Matthew J . Dunn, Division Chief
Environmental Enforcement
Office of the Attorney General
100 West Randolph Street, 12th Floor
Chicago, Illinois 60601
Virginia Yang
Deputy Legal Counsel
Illinois Department of Natural Resources
One Natural Resources Way
Springfield, IL 62702-1271
Steven C . Whitworth
Supervising Enviromental Scientist
Ameren
1901 Chouteau Avenue
St
. Louis MO 63166
Brian Urbaszewski, Director
Environmental Health Programs
American Lung Assn. Metropolitan Chicago
1440 W . Washington
Chicago, IL 60641
Jason Goodwin
Calpine
4100 Underwood
Pasadena, TX 77507
Daniel J
. Goodwin
Civil & Environmental Consultants, Inc .
500 Chesterfield Center, Suite 200
Chesterfield, MO 63017
Julie Johnson
Huff & Huff, Inc .
512 West Burlington Avenue, Suite 100
LaGrange, IL 60525
Deirdre K
. Himer, Executive Director
IL Environmental Regulatory Group
3150 Roland Avenue
Springfield, IL 62703
Brenda Carter, Project Manager
Illinois Environmental Regulatory Group
3150 Roland Avenue
Springfield, IL 62703
Vicky VonLanken
Illinois Environmental Protection Agency
1021 North Grand Avenue E .
Springfield, IL 62794
Karen Moss
McGuire Woods, LLP
77 West Wacker Drive, Suite 4100
Chicago, IL 60601
Faith Bugel
Environmental Law & Policy Center
35 East Wacker Drive
Suite 1300
Chicago, IL 60601
Steven Bonebrake
Schiff Hardin LLP
6600 Sears Tower
233 S
. Wacker Drive
Chicago, IL 60606-6473
Christopher P
. Perzan
20 N. Clark Street
Suite 2550
Chicago, IL 60602
Becki Clayborn
Regional Representative
Sierra Club
200 N. Michigan Avenue
Suite 505
Chicago, IL 60601
Cynthia Faur
Sonnenschein, Nath & Rosenthal
7800 Sears Tower
233 South Wacker Drive
Chicago, IL 60606-6404
Rima Idzelis
Stateside Associates
2300 Clarendon Blvd . 4th Floor
Arlington, VA 22201
Robert McCarron
Economic Policy Analyst
Minnesota Pollution Control Agency
520 Lafayette Road . No.
St. Paul, MN 55155
Daniel McDevitt
Midwest Generation
440 S . LaSalle Street
Suite 3500
Chicago, IL 60605
Rebecca Stanfield
Environment Illinois Research and
Education Center
407 S
. Dearborn, Suite 701
Chicago, IL 60605
Patrick
3435 Parliament Lane
Naperville, IL 60564
Kathleen Bassi
Schiff Hardin LLP
6600 Sears Tower
233 S
. Wacker Drive
Chicago, IL 60606-6473
Robert P
. Asplund
5000 Dominion Boulevard
Glen Allen, VA 23060
Louis Nichols
Environmental Engineer
United States Environmental
Protection Agency
1200 Pennsylvania Avenue
Washington, DC 20001
Angela Tin
American Lung Association
3000 Kelly Road
Springfield, IL 62711
Keith Harley
Chicago Legal Clinic
205 W . Monroe Street
Chicago, IL 60606
Jeremy R. Hojnicki
McGuire Woods LLP
77 W. Wacker, Suite 4100
Chicago, IL 60601
Sheldon A. Zabel
Schiff Hardin LLP
6600 Sears Tower
233 S . Wacker Drive
Chicago, IL 60606-6473
Bruce Nilles, Attorney
Sierra Club
122 W. Washington Avenue
Suite 830
Madison, WI 53703
Mark, Engineer
Hastings Engineering, Inc .
7604 Big Bend Blvd .
Suite C
St. Louis, MO 63119
Bill S. Forcade
Jenner & Block
One IBM Plaza
40th Floor
Chicago, IL 60611
Katherine M . Rahill
Jenner & Block
One IBM Plaza
40th Floor
Chicago, IL 60611
