BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
PROPOSED NEW 35 ILL.ADM.CODE PART 225
CONTROL OF EMISSIONS FROM
LARGE COMBUSTION SOURCES
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PCB R06-25
Rulemaking - Air
NOTICE OF FILING
To:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
Suite 11-500
100 West Randolph
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 DYNEGY AND MIDWEST GENERATION’S MOTION TO STRIKE
THE TESTIMONY OF DR. GERALD KEELER AND MOTION FOR EXPEDITED REVIEW,
copies of which are herewith served upon you.
/s/
Kathleen C. Bassi
Kathleen C. Bassi
Dated: July 12, 2006
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
312-258-5500
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 12, 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
LARGE COMBUSTION SOURCES
1
DYNEGY AND MIDWEST GENERATION'S
MOTION TO STRIKE THE TESTIMONY OF DR. GERALD KEELER AND
MOTION FOR EXPEDITED REVIEW
NOW COME Petitioners DYNEGY MIDWEST GENERATION, INC., and MIDWEST
GENERATION, LLC, by and through their attorneys, SCHIFF
HARDIN LLP, pursuant to 35
I11.Adm.Code
5
101.500(a), and move the Board to strike and to not consider the written and oral
testimony of Dr. Gerald Keeler, the Illinois Environmental Protection Agency's ("Agency")
witness testifying on matters involving deposition of mercury emissions in the above-captioned
matter. Further, Petitioners move the Board for expedited review of this Motion to Strike
because of the date by which Petitioners' testimony must be filed. In support of the Motion to
Strike, Petitioners state as follows:
1.
In support of its proposal to require a 90% reduction of mercury emissions from
coal-fired power plants in the State of Illinois, the Agency has argued
that mercury emitted in
Illinois by the affected sources is deposited in Illinois and that, therefore, such a level of
reductions of those emissions would result in a corresponding reduction in mercury deposited in
Illinois and ultimately in mercury levels found in tissue of Illinois fish. In support of its
proposition that mercury emitted by power plants in Illinois is deposited in Illinois, the Agency
has relied upon the written and oral testimony of Dr. Gerald Keeler. Dr. Keeler's testimony
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 12, 2006
relied heavily upon a study of wet deposition that he performed at a site near Steubenville, Ohio.
Although Dr. Keeler has made numerous presentations of the results of the Steubenville study,
sponsors of the final report had not yet released it for publication as of the dates of Dr. Keeler's
testimony before the Board. Petitioners, other participants, and the Board requested the final
study in order to understand the full scope of Dr. Keeler's work at Steubenville and its
implications, if any, for the Agency's proposed mercury rule. In addition, Dr. Keeler referred to
lengthy written comments on the Steubenville study by the U.S. Environmental Protection
Agency ("USEPA"), which petitioners also requested at the hearing in Springfield. The
comments could be significant to understanding the meaning and import of the study, and Dr.
Keeler was requested to provide them, as well.
2.
The Agency informed the Board in a document called "Post-Hearing Comments
of the Illinois Environmental Protection Agency" ("Post-Hearing Comments"), electronically
filed on July
7,2006, of the following with respect to the final Steubenville study report:
As confirmed through discussions with United States
Environmental Protection Agency
(USEPA) and Dr. Gerald
Keeler, the publication release date for the study will not be
until
sometime in late July or early August at the earliest. The pre-
publication release of the study will not be approved by
USEPA
or Dr. Keeler's employer, the University of Michigan. Such pre-
publication release is contrary to the code of scientific
peer-
review.
Post-Hearing Comments, p.
2. (Emphasis added.) The Agency failed to explain when and
whether
USEPA's comments on the study would be made available
3.
Without the actual peer-reviewed Steubenville study report and related USEPA
comments, Petitioners are not able to fully examine the scope of the study and to cross-examine
the Agency's witness on this study. The Agency has presented no other deposition evidence;
therefore, this study serves as the basis for a very basic pillar in the Agency's proposal
-
that
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 12, 2006
mercury emitted by Illinois power plants is deposited in Illinois and so there will be a reduction
in deposition in Illinois corresponding to reductions in emissions by Illinois power plants.
Petitioners require the study and related
USEPA comments in order to address and understand
the study and to rebut it,
as appropriate.
4.
Petitioners' testimony is due July 28, 2006, at the latest. The Agency has stated
that the Steubenville study will not be available even before Petitioners' testimony is due, let
alone far enough in advance for Petitioners to adequately evaluate the report, cross-examine Dr.
Keeler on the study, including the applicability of the study's findings to Illinois, and to prepare
a proper rebuttal of the study. The Agency cannot even state that the study will be available by
the time of the start of the second hearing in this matter. Nor has the Agency indicated that
USEPA's comments will be available prior to the second hearing.
5.
The lack of availability of the study and USEPA's related comments seriously
impinges upon the adequacy and fairness of this proceeding. The Agency is requesting the
Board to rely upon a key study that the Agency has failed to provide to the Board and the
Petitioners. Indeed, it appears that not even the Agency has a copy of the study, and thus the
Agency is really asking the Board, the Petitioners, and the public to rely on one witness's
description of a study that cannot be adequately addressed, even though it is critical to the
Agency's claims of benefit from
the proposed rule. Because the study is not available and
because, as a result, both proponents and opponents of the proposed rule do not have the
opportunity to evaluate it and cross-examine its author and the Agency regarding its meaning
and applicability to Illinois' circumstances, opponents and
the public are unfairly prejudiced in
this matter and will be irreparably harmed. The Agency should not have presented the testimony
of Dr. Keeler in support of its theory of local deposition without providing the scientific basis of
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 12, 2006
that testimony, which is contained only in the report of the Steubenville study. Nevertheless, the
Agency having presented such testimony and being unable or unwilling to provide its scientific
underpinnings, the Board should strike Dr. Keeler's testimony and not consider what he has said
as it evaluates the Agency's proposal.
6.
Alternatively, the Board should reschedule the second hearing and the deadline
for Petitioners' prefiled testimony until 30 days after the Agency does provide the report of the
Steubenville study and all comments received and considered during the peer review of that
report. The Board should require that Dr. Keeler appear at any reconvened second hearing to be
cross-examined on the content of the report of the Steubenville study and the comments received
during the peer review process.
7.
Finally, Petitioners request that the Board rule on this Motion to Strike
expeditiously, prior to the date by which Petitioners' testimony must be filed. The Board's
decision regarding this Motion to Strike could seriously affect Petitioners' testimony.
WHEREFORE, for the reasons set forth above and because to allow Dr. Keeler's
testimony to remain in the record would be grossly unfair and would irreparably harm
Petitioners, Petitioners DYNEGY MIDWEST GENERATION,
INC., and MIDWEST
GENERATION, LLC, move the Board to strike the written and oral testimony of Dr. Gerald
Keeler from the record in this matter at its next Board meeting and to not consider any of his
testimony in its evaluation of this proposed
rule. In the alternative, Petitioners DYNEGY
MIDWEST GENERATION,
INC., and MIDWEST GENERATION, LLC, move the Board to
reschedule the deadline for prefiled testimony and the second hearing 30 days after the Agency
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 12, 2006
delivers the report of the Steubenville study and the peer review comments to the Board and all
parties in this proceeding. Additionally, Petitioners move the Board for expedited review.
Respectfully submitted,
DYNEGY MIDWEST GENERATION, INC. and
MIDWEST GENERATION, LLC,
by:
Dated: July 12,2006
Sheldon A. Zabel
Kathleen C. Bassi
Stephen
J. Bonebrake
Joshua
R. More
Glenna L. Gilbert
SCHIFF
HARDIN, LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
3 12-258-5500
Fax: 312-258-5600
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 12, 2006
CERTIFICATE OF SERVICE
I, the undersigned, certify that on this 12
th
day of July, 2006, I have served electronically
the attached DYNEGY AND MIDWEST GENERATION’S MOTION TO STRIKE THE
TESTIMONY OF DR. GERALD KEELER AND MOTION FOR EXPEDITED REVIEW, 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 electronically and by first-class mail with postage thereon fully prepaid and affixed to the
persons listed on the
ATTACHED SERVICE LIST
.
/s/
Kathleen C. Bassi
Kathleen C. Bassi
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
312-258-5500
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 12, 2006
SERVICE LIST
(R06-25)
Marie Tipsord
Hearing Office
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph
Suite 11-500
Chicago, Illinois 60601
tipsorm@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
Springfield, Illinois 62794-9276
john.kim@epa.state.il.us
charles.matoesian@epa.state.il.us
gina.roccaforte@epa.state.il.us
William A. Murray
Special Assistant Corporation Counsel
Office of Public Utilities
800 East Monroe
Springfield, Illinois 62757
bmurray@cwlp.com
N. LaDonna Driver
Katherine D. Hodge
Hodge Dwyer Zeman
3150 Roland Avenue, P.O. Box 5776
Springfield, Illinois 62705-5776
nldriver@hdzlaw.com
Christopher W. Newcomb
Karaganis, White & Mage., Ltd.
414 North Orleans Street, Suite 810
Chicago, Illinois 60610
cnewcomb@k-w.com
Bill S. Forcade
Katherine M. Rahill
Jenner & Block
One IBM Plaza, 40
th
Floor
Chicago, Illinois 60611
bforcade@jenner.com
krahill@jenner.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
Keith I. Harley
Chicago Legal Clinic
205 West Monroe Street, 4
th
Floor
Chicago, Illinois 60606
kharley@kentlaw.edu
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 12, 2006
SERVICE LIST
(R06-25)
David Rieser
James T. Harrington
Jeremy R. Hojnicki
McGuireWoods LLP
77 West Wacker, Suite 4100
Chicago, Illinois 60601
drieser@mcguirewoods.com
jharrington@mcguirewoods.com
S. David Farris
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
122 West Washington Avenue, Suite 830
Madison, Wisconsin 53703
bruce.nilles@sierraclub.org
James W. Ingram
Senior Corporate Counsel
Dynegy Midwest Generation, Inc.
1000 Louisiana, Suite 5800
Houston, Texas 77002
Jim.Ingram@dynegy.com
Dianna Tickner
Prairie State Generating Company, LLC
701 Market Street, Suite 781
St. Louis, Missouri 63101
CH2\ 1401949.9
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 12, 2006