BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
R06-25
PROPOSED NEW 35 ILL. ADM. CODE 225
)
(Rulemaking – Air)
CONTROL OF EMISSIONS FROM
)
LARGE COMBUSTION SOURCES (MERCURY) )
NOTICE
TO:
Dorothy Gunn
Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph St., Suite 11-500
Chicago, IL 60601-3218
SEE ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the
Illinois Pollution Control Board the RESPONSE TO PARTICIPANTS’ EMERGENCY
MOTION, a copy of which is herewith served upon you.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By: ______________________
John J. Kim
Managing Attorney
Air Regulatory Unit
Special Assistant Attorney General
Division of Legal Counsel
DATED: May 19, 2006
1021 North Grand Avenue East
P. O. Box 19276
Springfield, IL 62794-9276
THIS FILING IS SUBMITTED
217.782.5544
ON RECYCLED PAPER
217.782.9807 (fax)
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 19, 2006
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
R06-25
PROPOSED NEW 35 ILL. ADM. CODE 225
)
(Rulemaking – Air)
CONTROL OF EMISSIONS FROM
)
LARGE COMBUSTION SOURCES (MERCURY) )
RESPONSE TO PARTICIPANTS’ EMERGENCY MOTION TO
SUSPEND FILING DATE FOR PREFILED QUESTIONS AND
REQUEST FOR PRE-HEARING CONFERENCE CALL
NOW COMES the ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
(“Illinois EPA”), by one of its attorneys, and, pursuant to the Illinois Pollution Control
Board (“Board”) Rules at 35 Ill. Adm. Code 101.500 and 101.504, and the Hearing
Officer’s Order dated May 19, 2006, hereby responds to 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) Emergency Motion to Suspend the Filing Date for Prefiled Questions
and Request for Pre-Hearing Conference Call (“emergency motion”). The Illinois EPA
requests that the Board enter an order denying the motion. In support of this request, the
Illinois EPA states as follows:
1.
As the Participants’ note in the emergency motion, the undersigned
counsel for the Illinois EPA contacted counsel for the Participants on May 18, 2006, in a
good faith effort to inform them that one revision to pre-filed testimony would be filed by
the Illinois EPA. As noted in the Hearing Officer’s order dated May 4, 2006, the Illinois
EPA has not and will not be re-filing all previously submitted pre-filed testimony.
However, in one particular instance involving one witness, Dr. James Staudt, it has been
determined that some revisions to his submitted testimony are warranted.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 19, 2006
2
2.
To allow the Participants all reasonable opportunity to respond to those
revisions, undersigned counsel for the Illinois EPA also indicated that there would be no
objection to questions solely related to Dr. Staudt’s testimony being filed by the
Participants one week later than the original date.
3.
Following receipt of the undersigned counsel’s e-mail, counsel for the
Participants and the undersigned counsel spoke by conference call. At that time counsel
for the Participants stated their position that no questions should be filed and additional
time be allowed for submission of all pre-filed questions. At that time, undersigned
counsel for the Illinois EPA stated that no commitment to any arrangement could be
made until further internal discussion was held.
4.
Subsequent to that conference call, and after internal discussion, counsel
for the Illinois EPA informed counsel for the Participants of the Illinois EPA’s position;
namely, that all pre-filed questions should be submitted by the Participants as otherwise
required by the Hearing Officer’s May 4
th
order, with the understanding that the Illinois
EPA would not object to revisions to any such pre-filed questions that Participants felt
were necessary following review of Dr. Staudt’s revised testimony if those revisions were
filed within one week of the original filing date. This commitment was expressed in an
e-mail from Charles Matoesian, counsel for Illinois EPA, to counsel for the Participants.
5.
At some time after the receipt of Mr. Matoesian’s e-mail, counsel for the
Participants filed the emergency motion with the Board.
6.
In the emergency motion, the Participants cite to the Hearing Officer’s
May 4
th
order, arguing that the Illinois EPA’s interpretation would allow for the revision
of all its testimony on the same day that pre-filed questions were due. The Illinois EPA’s
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 19, 2006
3
interpretation of the Hearing Officer’s order, however, is not at odds with the language
and intent of the order.
7.
The May 4
th
order clearly states that the Illinois EPA need not file
testimony that was previously submitted, and that any person wishing to testify at the
June 12, 2006 hearing should pre-file testimony by May 19, 2006. The May 19
th
deadline for pre-filed testimony did not exclude any witnesses that may be appearing on
behalf of the Illinois EPA, and therefore the Illinois EPA is not prohibited from
submitting revised testimony of one of its witnesses. The revised testimony is not
identical to that already filed, so there is no conflict with the dictates of the May 4
th
order.
8.
Further, the Participants’ argument that all the Illinois EPA’s testimony
could be revised on the same day pre-filed questions are due, and that such a
circumstance is absurd, is an abstract argument at best. Here, the reality is that only one
piece of testimony is being revised, not all testimony. So moving past the hypothetical
aspects of the Participants’ objection, there is no irreparable harm or prejudice that will
befall the Participants should they be required to file their pre-filed questions by the May
19
th
deadline, especially since the Illinois EPA has indicated it would not object to any
revisions to those questions related solely to the revised testimony being filed after the
original deadline (within a short time period, preferably one week’s time).
9.
The Participants also argue that revisions to Dr. Staudt’s testimony may
affect other portions of the Illinois EPA’s witness testimony. To the extent that such
revisions may be necessary, again the Illinois EPA notes it would not object to such
limited revisions to the pre-filed questions being submitted within a short time after
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 19, 2006
4
receipt of Dr. Staudt’s revised testimony. Thus, the Participants are not being penalized
or placed in any disadvantaged position.
10.
However, if they are allowed to withhold all their questions until some
date uncertain, it is the Illinois EPA that would be harmed given the shortened period of
time between receipt of pre-filed questions and the hearing. This is further highlighted
by the fact that even the Participants must acknowledge not all (and perhaps not most) of
their pre-filed questions relate to Dr. Staudt’s testimony. Many if not most of the
questions would effectively be held in abeyance over concern for some questions. That
situation should not be allowed, especially since there is a remedy to be had.
11.
The Board should not allow the Participants to use any minor excuse or
allegation as the justification for derailing the proceedings and causing further delays to
the rulemaking. There is a means by which all parties can have their interests protected,
and that is to require the submission of pre-filed questions by May 19
th
with the further
allowance of limited (i.e., related solely to revised testimony submitted on May 19
th
)
revisions to such pre-filed questions within a short time after the original deadline.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 19, 2006
5
WHEREFORE, for the reasons set forth above, the Illinois EPA requests that the
Board enter an order denying the emergency motion.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By:
/s/__________________
John J. Kim
Managing Attorney
Air Regulatory Unit
Special Assistant Attorney General
Division of Legal Counsel
DATED: May 19, 2006
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217.782.5544
217.782.9807 (fax)
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 19, 2006
STATE OF ILLINOIS
)
)
SS
COUNTY OF SANGAMON
)
)
CERTIFICATE OF SERVICE
I, the undersigned, an attorney, state that I have served electronically the attached
RESPONSE TO PARTICIPANTS’ EMERGENCY MOTION
, upon the following
persons:
Dorothy Gunn
Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph St., Suite 11-500
Chicago, IL 60601-3218
and mailing it by first-class mail from Springfield, Illinois, with sufficient postage affixed
to the following persons:
SEE ATTACHED SERVICE LIST
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
__________________________
John J. Kim
Managing Attorney
Air Regulatory Unit
Special Assistant Attorney General
Division of Legal Counsel
Dated: May 19, 2006
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217.782.5544
217.782.9807 (fax)
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 19, 2006
SERVICE LIST 06-25
Marie Tipsord
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph St., Suite 11-500
Chicago, IL 60601-3218
James T. Harrington
David L. Rieser
McGuire Woods LLP
77 West Wacker, Suite 4100
Chicago, IL 60601
Bill S. Forcade
Katherine M. Rahill
Jenner & Block LLP
One IBM Plaza
Chicago, IL 60611
William A. Murray
Special Assistant Corporation Counsel
Office of Public Utilities
800 East Monroe
Springfield, IL 62757
S. David Farris
Environmental, Health and Safety
Manager
Office of Public Utilities
City of Springfield
201 East Lake Shore Drive
Springfield, IL 62757
Faith E. Bugel
Howard A. Lerner
Meleah Geertsma
Environmental Law and Policy Center
35 East Wacker Drive
Suite 1300
Chicago, IL 60601
Keith I. Harley
Chicago Legal Clinic
205 West Monroe Street, 4th Floor
Chicago, IL 60606
Christopher W. Newcomb
Karaganis, White & Magel, Ltd.
414 North Orleans Street
Suite 810
Chicago, IL 60610
Katherine D. Hodge
N. LaDonna Driver
Hodge Dwyer Zeman
3150 Roland Avenue
Post Office Box 5776
Springfield, IL 62705-5776
Kathleen C. Bassi
Sheldon A. Zabel
Stephen J. Bonebrake
Joshua R. More
Glenna L. Gilbert
Schiff Hardin LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, IL 60606
Bruce Nilles
Attorney
Sierra Club
214 N. Henry Street, Suite 203
Madison, WI 53703
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 19, 2006