BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
1
1
PROPOSED NEW 35 1LL.ADM.CODE PART 225
)
PCB R06-25
CONTROL OF EMISSIONS FROM
)
Rulemaking
-
Air
LARGE COMBUSTION SOURCES
f
NOTICE OF FILING
To:
Dorothy
Gum, Clerk
Marie Tipsord
Illinois Pollution Control Board
Hearing Office
James R. Thompson Center
Illinois Pollution Control Board
Suite 11
-500
James R. Thompson Center
100 West Randolph
100
W. Randolph
Chicago, Illinois 60601
Suite 11
-500
Chicago, Illinois 60601
Gina Roccaforte, Assistant Counsel
Persons included on the
Charles Matoesian, Assistant Counsel
ATTACHED SERVICE LIST
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
PLEASE TAKE NOTICE that we have today filed with the Office of the Clerk of the
Pollution Control Board PARTICIPANTS AMEREN ENERGY GENERATING COMPANY,
AMERENENERGY RESOURCES GENERATING COMPANY, DYNEGY MIDWEST
GENERATION, INC., ELECTRIC ENERGY INCORPORATED, KINCAID GENERATION.
L.L. C., and MIDWEST GENERATION,
LLC's
EMERGENCY MOTION TO SUSPEND
THE FILING DATE FOR PREFILED QUESTIONS AND REQUEST FOR PRE
-
HEARING CONFERENCE CALL,
copies of which are herewith served upon you.
JSJ
ht&
C:
Bagsi
Kathleen C. Bassi
Dated: May 18,2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 18, 2006
James T. Harrington
David
R. Rieser
McGuireWoods LLP
77 West Wacker, Suite 4100
Chicago, Illinois 60601
Telephone:
3 121849-8100
Sheldon A. Zabel
Kathleen C. Bassi
Stephen J. Bonebrake
Joshua
R. More
Glenna Gilbert
Schiff
Hardin, LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
3 12
-258-5500
Bill S. Forcade
Katherine Rahill
Jenner
&
Block LLP
One IBM Plaza
Chicago, IL 6061 1
-7603
Te1 (3 12) 840-8618
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 18, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
1
PROPOSED NEW 35 1LL.ADM.CODE PART 225
)
PCB R06-25
CONTROL OF EMISSIONS FROM
LARGE COMBUSTION SOURCES
1
PARTICIPANTS' EMERGENCY MOTION TO SUSPEND THE FILING DATE
FOR PREFILED QUESTIONS AND
REQUEST FOR PRE
-HEARING CONFERENCE CALL
NOW COME Petitioners Ameren Energy Generating Company,
AmerenEnergy
Resources Generating Company, Dynegy Midwest Generation, Inc., Electric Energy
Incorporated, Kincaid Generation, L.L. C., and Midwest Generation, LLC (collectively
"Petitioners"), participants in this proceeding, and move the Hearing Officer to suspend the filing
date for prefiled questions and request that the Hearing Officer hold a conference call to establish
a new schedule for filing prefiled questions. In support of its motion, Petitioners state as follows:
1.
On May 18,2006, John Kim, Managing Air Regulatory Attorney for the Illinois
Environmental Protection Agency (
"Agency"), emailed attorneys for the Petitioners, stating that
one of the Agency's witnesses, Dr. James Staudt, had informed the Agency that he needed to
revise his prefiled testimony in this matter. Mr. Kim's
email is attached hereto as Exhibit 1.
Petitioners understand from the testimony filed in April that Dr. Staudt's testimony addresses the
technological feasibility, technology availability. and costs of that technology.
2.
In a subsequent email from the Agency on the issue of Dr. Staudt's prefiled
testimony, Charles Matoesian, attorney for the Agency, states that the Agency will file Dr.
Staudt's testimony on May 19,2006, and stated that this re
-filing of Dr. Staudt's testimony is
within the scope of the Hearing Officer's order establishing the schedule for filing testimony for
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 18, 2006
the first hearing and the prefiled questions. Mr. Matoesian's email is attached hereto as Exhibit
2.
However, the Hearing Officer stated as follows in her May 4th Order:
The Illinois Environmental Protection Agency (Agency)
on April 27 and
28 prefiled testimony for the first bearing in this
proceeding. The Agency need not file that testimony again for
the June 12, 2006 hearing. However, as there are still over five
weeks until the beginning of the June 12,2006 hearing,
I am
directing that participants prefile questions for the Agency by
May 19,2006. Furthermore, under Section 27, the first hearing is
not limited to the testimony of the proponent. Therefore, any
person wishing to testify at the June 12,2006 hearing should
prefile their testimony by May
19, 2006.
Hearing Officer Order,
p. 2 (May 4,2006). Beside the clear language of the Hearing Officer's
Order, the Agency's interpretation expressed in Mr. Matoesian's
email would allow the Agency
to revise all its testimony on the same day that the prefiled questions on the Agency's testimony
are due, an obvious absurdity.
3.
In this same email from Mr. Matoesian, he states that the Agency does not object
to a week's extension to the filing of questions for Dr. Staudt.
4.
The current schedule for prefiling questions based upon the Agency's prefiled
testimony requires the questions to be filed by May 19,2006
5.
Revisions to Dr. Staudt's testimony could require amendments to the Agency's
Technical Support Document and revisions to other Agency witnesses' testimony. The viability
of the Agency's proposal largely rests on Dr. Staudt's testimony.
6.
Petitioners require time to review Dr. Staudt's revised testimony in order to
determine how to revise the prefiled questions directed to Dr. Staudt. Given the importance of
Dr. Staudt's testimony to the Agency's position and the extent to which other Agency witnesses
rely upon Dr. Staudt's testimony. The Agency represented to Petitioners the belief that at least
some of the revisions to Dr. Staudt's testimony will address economic issues.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 18, 2006
7.
Petitioners require time to evaluate the degree to which revisions to Dr. Staudt's
testimony will reverberate in questions posed to other witnesses, as other witnesses have relied
upon Dr. Staudt's information or testimony in preparing their own testimony. The Agency's
apparent view that Dr. Staudt's statements in his testimony do not affect questions posed to other
witnesses miscomprehends the extent to which other Agency witnesses rely upon Dr. Staudt's
testimony and the breadth of the prefiled questions that petitioners will be submitting.
8.
Petitioners will be irreparably harmed and disadvantaged if they are not afforded
the opportunity to review Dr. Staudt's revised testimony prior to submitting all of their prefiled
questions in this matter.
9.
Petitioners request that the Hearing Officer schedule a pre-hearing conference call
on Wednesday, May 24, 2006. to reset the schedule for filing prefiled questions for the Agency.
WHEREFORE, for the reasons set forth above, Petitioners Ameren Energy Generating
Company,
AmerenEnergy Resources Generating Company, Dynegy Midwest Generation, Inc.,
Electric Energy Incorporated, Kincaid Generation,
L.L. C., and Midwest Generation, LLC, and
move the Hearing Officer to suspend the date for the prefiling of questions to be posed to the
Agency for the first hearing in this matter to a date in a new filing schedule to be established,
allowing Petitioners the opportunity to adequately evaluate Dr. Staudt's revised testimony and its
implications to other Agency witnesses' testimony, and request that the Hearing Officer schedule
a pre
-hearing conference call for that purpose for Wednesday, May 24,2006.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 18, 2006
Respectfully submitted,
Ameren Energy Generating Company,
AmerenEnergy Resources Generating
Company, and Electric Energy Incorporated
by:
Is1
James
T
N-
One of Their Attorneys
Dynegy Midwest Generation, Inc., and
Midwest Generation, LLC
by:
IS/
&Z%&BZ~
6
One of Their Attorneys
Kincaid Generation, L.L.C.
by:
Is1
Bia
S
FonCadu
One of Their Attorneys
Dated: May 18,2006
James T. Harrington
David R.
Rieser
McGuireWoods LLP
77 West Wacker, Suite 4100
Chicago, Illinois 60601
Telephone:
3 121849-8100
Sheldon
A. Zabel
Kathleen C. Bassi
Stephen J. Bonebrake
Joshua R. More
Glenna Gilbert
Schiff
Hardin, LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
3 12-258-5500
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 18, 2006
Bill S. Forcade
Katherine Rahill
Jenner
&
Block LLP
One
IBM Plaza
Chicago,
IL 6061 1-7603
Tel(312) 840-861 8
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 18, 2006
From:
John Kim [John.Kim@epa.state.il.us]
Sent:
Thursday. May 18,2006 9:23 AM
To:
bforcade@jenner.com; jharrington@mcguirewoods.com; Bassi, Kathleen C.
Cc
:
Charles Matoesian: Gina Roccaforte
Subject:
Mercury rulemaking
- Updated testimony
Greetings,
Let me begin by stating
I apologize for the timing of this e-mail. I am writing to inform you
that one of our witnesses, Dr. James Staudt, has recently informed us that he feels very
strongly that he needs to submit revised testimony in place of his original pre
-filed
testimony.
Our intention is to file that revised testimony by no later than tomorrow, the deadline for
any additional pre
-filed testimony as set forth in the Hearing Officer's latest order.
Of course, that order also schedules tomorrow (May 19th) as the deadline for pre-filed
questions as well. Thus, to be fair, we would have no objection to your holding off on filing
any pre
-filed questions that would otherwise address Dr. Staudt's testimony for an
additional week. We have informed the Hearing Officer of this situation, and she has asked
simply to keep her apprised as needed. We would assume that all other pre
-filed questions
would be filed consistent with the May 19th deadline.
Please contact me (or Gina Roccaforte or Charles Matoesian) at
21 7.782.5 544 if you have any questions.
------.-.-----------..---------.-----------------------------
This e-mail, and any documents attached or included hereto, is a confidential attorney-
client, attorney work product and/or pre-decisional FOIA-exempt document intended solely
for the use of the individual to whom it is addressed, and should be handled accordingly.
If you are not the intended recipient, be advised that you have received this e-mail in error
and that any use, dissemination, forwarding, printing or copying of this e
-mail is strictly
prohibited.
If you have received this e-mad in error, please notify:
John J. Kim
Managing Attorney, Air Regulatory Unit
Special Assistant Attorney General
Illinois EPA
1021
N. Grand Avenue, East
P.O. Box 19276
Springfield,
IL 62794-9276
217.782.5544
217.782.9807
(Fax)
E-mail address: john.kim@epa.state.il.us
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 18, 2006
-----Original Message-----
From: Charles Matoesian [mailto:Charles.Matoesian@epa.state.il.us]
Sent: Thursday, May 18, 2006 1:52 PM
To: bforcade@jenner.com; jharrington@mcguirewoods.com; Zabel, Sheldon
Cc: John Kim
Subject: RE:
MERCURY
Mr. Zabel,
The Agency
will be filing the amended testimony of Dr. Staudt tomorrow, which is within
the May 19 deadline set forth in the Hearing Officer's order. It is our position that pre
-filed
questions for the Agency also be filed by the May 19 deadline. However, we do not object to
a one
-week extension to the filing of revised questions based upon Dr.
Staudt's amended testimony.
Charles
Charles
E. Matoesian
Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794
-92 76
21 i'/782-5544
21 7/782-9807 FAX
This e-mail, and any documents attached or included hereto, is a confidential attorney-
client, attorney work product and/or pre-decisional FOIA-exempt document intended solely
for the use of the individual to whom it is addressed, and should be handled accordingly.
If you are not the intended recipient, be advised that you have received this e-mail in error
and that any use, dissemination, forwarding, printing or copying of this e
-mail is strictly
prohibited.
If you have received this e-mail in error, please notify:
>>>
"Zabel, Sheldon" <SZabel@schiffhardin.com> 5/18/2006 11:01 AM
>>>
Gentlemen:
We spoke with Marie and she cannot entertain a call with us this afternoon because it would
require the attendance, or at least notice, to all of the parties on the service list. She wants a
motion which we can draft but we would like to know the Agency's position as it would be
more expeditious if the Agency is in agreement with postponing the
filing of questions at
least until after we and our clients and experts have had an opportunity to review the
revised Sraudt testimony and we have had a conference
call with the hearing officer. We
1
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 18, 2006
asked Marie in the call, and would reiterate it in the motion, to schedule a prehearing
conference call on Wed.
JOHN,
WE WILL AWAIT FILING THE MOTION UNTIL WE HAVE HEARD FROM YOU AS TO THE
AGENCY'S POSITION.
Sheldon
Tax Matters: To the extent this message or any attachment concerns tax matters, it is not
intended or written to be used, and cannot be used by a taxpayer, for the purpose of
avoiding penalties that may be imposed on the taxpayer under law.
This message and any attachments may contain confidential information protected by the
attorney
-client or other privilege.
If you believe that it has been sent to you in error, please reply to the sender that you
received the message
in error. Then delete it. Thank you.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 18, 2006
CERTIFICATE OF SERVICE
I, the undersigned,
certifL that on this 18" day of May, 2006, I have served electronically
the attached PARTICIPANTS AMEREN ENERGY GENERATING COMPANY,
AMERENENERGY RESOURCES GENERATING COMPANY, DYNEGY MIDWEST
GENERATION,
TNC., ELECTRIC ENERGY INCORPORATED, KTNCAID GENERATION,
L.L. C., and MIDWEST GENERATION,
LLC's
EMERGENCY MOTION TO SUSPEND
THE FILING DATE FOR PREFILED QUESTIONS AND REQUEST FOR
PRE-
HEARING CONFERENCE CALL,
upon the following persons:
Dorothy
Gum, Clerk
Illinois Pollution Control Board
James R. Thompson Center
Suite 11
-500
100 West Randolph
Chicago, Illinois 60601
and electronically 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
tiasorm@ipcb.state.il.us
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
Svringfield, Illinois 62794
-9276
the participants listed on the
ATTACHED SERVICE LIST
1st
htUw
6
Bagsi
Kathleen C. Bassi
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 18, 2006
James T. Harrington
David R.
Rieser
McGuireWoods LLP
77 West Wacker, Suite 4 100
Chicago, Illinois 60601
Telephone:
3121849-81 00
Sheldon
A. Zabel
Kathleen C. Bassi
Stephen
J. Bonebrake
Joshua R. More
Glenna Gilbert
Schiff
Hardin, LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
3 12
-258-5500
Bill S. Forcade
Katherine Rahill
Jenner
&
Block LLP
One
IBM Plaza
Chicago, IL 6061 1
-7603
Tel(3 12) 840-861 8
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 18, 2006
SERVICE LIST
William A. Murray
Special Assistant Corporation Counsel
Office of Public Utilities
800 East Monroe
Springfield, Illinois 62757
bmurrav(ii,cwl~.com
Christopher W. Newcomb
Karaganis, White
&
Mage., Ltd.
41 4 North Orleans Street, Suite 8 10
Chicago, Illinois 60610
cnewcomb@k-w.com
Faith E. Bugel
Howard A. Learner
Meleah Geertsma
Environmental Law and Policy Center
35 East Wacker Drive, Suite 1300
Chicago, Illinois 60601
fbugel@elpc.org
David
Rieser
James T. Harrington
McGuireWoods LLP
77 West Wacker, Suite 4100
Chicago, Illinois 60601
N.
LaDonna Driver
Katherine D. Hodge
Hodge
Dwyer Zeman
3150 Roland Avenue, P.O. Box 5776
Springfield, Illinois 62705
-5776
nldriver@hdzlaw.com
Bill S. Forcade
Katherine M. Rahill
Jenner
&
Block
One
1BM Plaza, 4oth Floor
Chicago, Illinois 6061
1
bforcade@,ienner.com
krahill@jenner.com
Keith I. Harley
Chicago Legal Clinic
205 West Monroe Street,
4th Floor
Chicago, Illinois 60606
kharley@kentlaw.edu
S. David
Fanis
Manager, Environmental, Health and Safety
Office of Public Utilities, City of Springfield
201 East Lake Shore Drive
Springfield, Illinois 62757
dfarris@cwlp.com
Bruce
Nilles
Sierra Club
214 North Henry Street, Suite 203
Madison, Wisconsin 53703
bruce.nilles@sierraclub.org
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 18, 2006
