ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 17, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF
:
)
PROPOSED NEW 35 ILL .ADM .CODE PART 225
)
PCB R06-25
CONTROL OF EMISSIONS FROM
)
Rulemaking - Air
LARGE COMBUSTION SOURCES
)
NOTICE OF FILING
To :
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R . Thompson Center
Suite 11-500
100 West Randolph
Chicago, Illinois 60601
Gina Roccaforte, Assistant Counsel
Charles Matoesian, Assistant Counsel
John J
. Kim, Managing Attorney, Air
Regulatory Unit
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
Kathleen C
. Bassi
Dated : April 17, 2006
Marie Tipsord
Hearing Office
Illinois Pollution Control Board
James R. Thompson Center
100 W . Randolph
Suite 11-500
Chicago, Illinois 60601
Persons included on the
ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that we have today filed with the Office of the Clerk of the
Pollution Control Board PARTICIPANTS DYNEGY AND MIDWEST GENERATION'S
RESPONSE TO THE AGENCY'S MOTION CONCERNING GUIDELINES AND FORMAT
OF FIRST HEARING, copies of which are herewith served upon you .
/s/
Kathleen C . Bassi
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 17, 2006
SCHIFF HARDIN LLP
Attorneys for Dynegy Midwest Generation, Inc, Midwest Generation, LLC, and Southern
Illinois Power Cooperative
Sheldon A . Zabel
Kathleen C
. Bassi
Stephen J
. Bonebrake
Joshua R
. More
Glenna L
. Gilbert
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
312-258-5567
FAX
: 312-258-5600
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 17, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN TILE MATTER OF :
)
PROPOSED NEW 35 ILL .ADM.CODE PART 225
)
PCB R06-25
CONTROL OF EMISSIONS FROM
)
Rulemaking - Air
LARGE COMBUSTION SOURCES
)
PARTICIPANTS DYNEGY AND MIDWEST GENERATION'S RESPONSE
TO THE AGENCY'S MOTION CONCERNING
GUIDELINES AND FORMAT OF FIRST HEARING
NOW COME Participants DYNEGY MIDWEST GENERATION, INC ., and MIDWEST
GENERATION, LLC, (collectively "Participants"), by and through their attorneys, SCf TIFF
HARDIN LLP, pursuant to 35 Ill
.Adm .Code ยงยง 101 .500(d) and 101 .502, and respond to the
Illinois Environmental Protection Agency's ("Agency") Motion Concerning Guidelines and
Format of First Hearing on the Agency's Proposed New 35 I1l .Adm .Code 225 : Control of
Emissions from Large Combustion Sources (the "Mercury Proposal") . Participants have no
objection to the order in which the Agency calls its witnesses
; however, Participants do object to
the proposed schedule and constraint on the availability of the Agency's witnesses for cross-
examination_ More specifically, Participants state as follows :
I ,
On April 3, 2006, the Agency filed its Motion Concerning Guidelines and Format
of First Hearing with the Board, in which the Agency moved that the Board allow it to present its
witnesses in a certain order, that the witnesses be cross-examined immediately following the
presentation of their testimony, that questioning be restricted to the topics as listed, that the
testimony for the topics identified and the cross-examination of the corresponding witnesses
occur on specific days, that cross-examination of a particular witness not completed on its given
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, APRIL 17, 2006
day he carried over to first thing the next day, and that witnesses be allowed to respond to cross-
examination in writing if the witness is unable to be present for his or her cross-examination
.
2.
Participants have no objection to the Agency's order of calling its witnesses .
Indeed, the order of calling witnesses should be left to the discretion of the party calling the
witness, consistent with the Board's management of a hearing .
3 .
Participants do object, however, to the Agency's proposed schedule . Specifically,
the Agency requests that its witnesses he cross-examined only at the time that they present their
testimony and that,, thereby, any cross-examination of a specified topic be completed at that time
before proceeding to the next identified topic . The Agency's Motion represents that direct
testimony and cross-examination will be completed in four days .
4 .
This four-day schedule for the hearing is unrealistic. The issues that are to he
addressed in the testimony are complex and controversial . Participants and other interested
parties are entitled to a fill airing of those issues
. To the extent that the Agency does not present
all of the salient discussion in its direct testimony, the issues will need to be developed through
cross-examination . Further, Participants and other interested parties should be provided
adequate opportunity to cross-examine witnesses concerning their qualifications and the bases
for and meaning of their direct testimony
. To arbitrarily restrict Participants and other interested
parties to only portions t
of four days for examination of the Agency's support for its Mercury
Proposal denies Participants and other interested parties their right to a full hearing in this matter .
Imposing such an arbitrary schedule at this time, without having a full opportunity to consider
1 Participants do not know how much time the Agency will take on each of the four days
to conduct direct or redirect examinations of its witnesses
. Redirect examination could consume
a significant portion of some or all of those days
.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 17, 2006
the nature of the testimony presented, unnecessarily limits the ability of the Board, Participants,
and other interested parties to bring important facts and opinions to light
.
The Agency's proposal also improperly constrains the availability of its witnesses
for cross-examination by denying oral cross-examination when a witness who provides direct
testimony is not available for cross-examination or, implicitly, once a witness' topic is addressed
even ifa later witness raises issues relevant to that topic . Witnesses should be asked to remain
available until all of the Board's, Participants', and other interested parties' questions have been
addressed
. subject to the Hearing Officer's right to limit redundant and irrelevant questions .
Allowing witnesses to respond to questions in writing is not acceptable, and Participants object
to this form of cross-examination . Participants and other interested parties should be able to
follow up not only their own questions but the questions of other cross-examiners
. This can he
accomplished only in an iterative session where the questions and answers are heard
instantaneously
. A witness on the stand may give incomplete, non-responsive, or even evasive
answers that can only be clarified if the cross-examiner has the opportunity to follow up on the
original question
. Live hearings allow interested parties the opportunity to hear the testimony
and test the witness' knowledge, expertise, and opinions through cross-examination.
6.
Participants recognize and understand the demands on expert witnesses and will
make every effort to complete cross-examination of Dr
. Barbara Rice, the Agency's expert on
health effects, on the first day of hearing as the Agency has requested . Participants, however,
have not yet seen Dr
. Rice's direct testimony, and they do not know at this point how much time
would be available for cross-examination of Dr
. Rice on the first day of hearing after the Agency
conducts its direct examination on the various topics it has proposed to address on the first day
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 17, 2006
and any cross-examination of other witnesses called on that day is completed .'- The Board must
recognize that the complexity of the issues involved in this rulemaking and the fact that many of
the topics proposed by the Agency overlap may require the availability of an Agency witness for
a longer period than anticipated by the Agency or the recall of a witness to fully examine that
witness and to compile an adequate record.
WHEREFORE, for the reasons set forth above, Participants DYNFGY MIDWEST
GENERATION, INC
., and MIDWEST GENERATION, LLC, do not object to the Agency's
Motion Concerning Guidelines and Format of First Hearing with respect to the order in which it
presents its witnesses and that cross-examination of those witnesses should occur as they give
their testimony but do object and request that the Board deny
the Agency's Motion with respect
to the time available for cross-examination and the presence of witnesses to answer, in person,
questions posed .
Respectfully submitted,
DYNEGY MIDWEST GENERATION, INC ., and
MIDWEST GENERATION, LLC
by :
One of Their Attorneys
2
Participants are willing to work with the Agency to address any scheduling issues that
might arise with respect to testimony by the Agency's witnesses and are hopeful that the parties
can resolve any such issues
. Participants expect that the Agency would accord similar
consideration to Participants' witnesses
.
-4-
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 17, 2006
Dated : April 17, 2006
Sheldon A. label
Kathleen C
. I3assi
Stephen J . Bonebrake
Joshua R. More
Glenna I .
. Gilbert
SCI IIFF IIARDIN, LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
312-258-5500
Fax
: 312-258-5600
CH2'\. 1409661 .2
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 17, 2006
CERTIFICATE OF SERVICE
1, the undersigned, certify that on this 17' x'
day of April, 2006, 1 have served
electronically the attached PARTICIPANTS DYNEGY AND MIDWEST GENERATION'S
RESPONSE TO THE AGENCY'S MOTION CONCERNING GUIDELINES AND FORMAT
OF FIRST HEARING, upon the following persons
:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
Suite 11-500
100 West Randolph
Chicago, Illinois 60601
and by first-class mail with postage thereon fully prepaid and affixed to the following persons
:
Marie Tipsord
Hearing Office
Illinois Pollution Control Board
James R. Thompson Center
100 W . Randolph
Suite 11-500
Chicago, Illinois 60601
to the participants listed on the
ATTACHED SERVICE LIST
/s/ Kathleen C
. Bassi
Kathleen C. Bassi
SCHIFF HARDIN LLP
Attorneys for Dynegy Midwest Generation, Inc, Midwest Generation, LLC, and
Southern Illinois Power Cooperative
Sheldon A
. Zabel
Kathleen C
. Bassi
Stephen J
. Bonebrake
Joshua R
. More
Glenna L . Gilbert
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
312-258-5567
FAX : 312-258-5600
Gina Roccaforte, Assistant Counsel
Charles Matoesian, Assistant Counsel
John J
. Kim, Managing Attorney
Air Regulatory Unit
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue, East
P
.O
. Box 19276
Springfield, Illinois 62794-9276
c112v 1401949,4
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, APRIL 17, 2006
William A . Murray
Special Assistant Corporation Counsel
Office of Public Utilities
800 East Monroe
Springfield, Illinois 62757
Christopher W
. Newcomb
Karaganis, White & Mage
., Ltd .
414 North Orleans Street, Suite 810
Chicago, Illinois 60610
Faith E. Bagel
Howard A . Learner
Meleah Geertsma
Environmental Law and Policy Center
35 East Wacker Drive, Suite 1300
Chicago, Illinois 60601
David Rieser
James T. Harrington
McGuireWoods LLP
77 West Wacker, Suite 4100
Chicago, Illinois 60601
SERVICE LIST
N
. LaDonna Driver
Katherine D. Hodge
Hodge Dwyer Zeman
3150 Roland Avenue, P.O
. Box 5776
Springfield, Illinois 62705-5776
Bill S . Forcade
Jenner & Block
One IBM Plaza, 40"i Floor
Chicago, Illinois 60611
Keith I
. Harley
Chicago Legal Clinic
205 West Monroe Street, 4'
h
Floor
Chicago, Illinois 60606
S . David Farris
Manager, Environmental, Health and Safety
Office of Public Utilities, City of Springfield
201 East Lake Shore Drive
Springfield, Illinois 62757
