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 DYNEGY AND MIDWEST
GENERATION’S MOTION TO STRIKE THE TESTIMONY OF DR. GERALD KEELER
AND MOTION FOR EXPEDITED REVIEW, a copy of which is herewith served upon you.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By: ______________________
John J. Kim
Managing Attorney
Air Regulatory Unit
Division of Legal Counsel
DATED: July 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
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 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 DYNEGY AND MIDWEST GENERATION’S MOTION TO
STRIKE THE TESTIMONY OF DR. GERALD KEELER AND MOTION FOR
EXPEDITED REVIEW
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, hereby responds to
Dynegy and Midwest Generation’s Motion to Strike the Testimony of Dr. Gerald Keeler
and Motion for Expedited Review. The Illinois EPA requests that the Board enter an
order denying the Motion to Strike the Testimony of Dr. Gerald Keeler (“Motion to
Strike”). The Illinois EPA has no objection to the Motion for Expedited Review, if the
Board has sufficient time to review all of the arguments in the Motion to Strike. In
support of this request, the Illinois EPA states as follows:
Petitioners’ Dynegy Midwest Generation, Inc., and Midwest Generation, LLC
(“Petitioners”), first argument is that they are not able to fully examine the scope of Dr.
Gerald Keeler’s study with data collected at Steubenville, Ohio (“Steubenville study”),
and to cross-examine him on the Steubenville study. Petitioners state that they require
the Steubenville study and related United States Environmental Protection Agency
(“USEPA”) comments in order to address and understand such study and to rebut it, as
appropriate.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 19, 2006
2
Contrary to the assertions of the Petitioners, there was ample opportunity afforded
to the Petitioners and other participants at the hearing held on this proposed rulemaking
that began on June 12, 2006, to examine and probe Dr. Keeler’s involvement and work
related to the Steubenville study. The testimony provided at hearing, along with the pre-
filed testimony of Dr. Keeler, were more than sufficient to allow for a complete
development of Dr. Keeler’s experience and opinions.
Dr. Keeler has recently informed the Illinois EPA that the study is currently in
press and he believes that the published study would be available prior to the start of the
second hearing. As to the related USEPA comments, Dr. Keeler notified the Illinois EPA
that counsel for the USEPA are reviewing the release of such comments. However, the
short-term unavailability of the document notwithstanding, the results of the Steubenville
study are known and Dr. Keeler has made numerous presentations on those results. In
fact, the Petitioners, along with other parties, prefiled questions for Dr. Keeler resulting at
hearing in nearly two days of testimony and over 300 pages of transcript. In addition, at
the first hearing, the Illinois EPA submitted the Power Point Slide Presentation entitled
“Mercury Deposition in the Great Lakes Region” by Dr. Keeler.
See
, Exhibit 32.
Further, even though the study is not available for filing with the Board, Dr.
Keeler’s testimony (either in part or in its entirety) should not be stricken as a result. An
expert may give opinion testimony based upon information that has not been admitted
into evidence, as long as the facts relied upon are sufficiently reliable.
R.J. Management
Co. v. SRLB Development Corp.
, 346 Ill.App.3d 957, 969 (2
nd
Dist. 2004); 806 N.E.2d
1074, 1084.
Also, in a manner not inconsistent with Dr. Keeler’s discussion of the
Steubenville study, the study was discussed by the USEPA in its June 9, 2006 “Revision
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 19, 2006
3
of December 200 Clean Air Act Section 112(n) Finding Regarding Electric Utility Steam
Generating Units; and Standards of Performance for New and Existing Electric Utility
Steam Generating Units: Reconsideration.”
See
, 71 Fed. Reg. 33388. Dr. Keeler
participated in the current rulemaking, including providing both pre-filed and hearing
testimony that the Petitioners were able to base questions upon. Finally, Dr. Keeler is an
internationally renowned authority on mercury deposition and has published dozens of
peer-reviewed papers and studies. His knowledge of the subject matter in question and
his opinions related thereto are credible and should be accepted (as was done by the
Board and the Hearing Officer at hearing) for consideration of the proposed rulemaking.
The Petitioners’ second argument is that the lack of availability of the
Steubenville study and USEPA’s related comments seriously impinges upon the
adequacy and fairness of this proceeding. The Petitioners claim that the Illinois EPA is
requesting the Board to rely upon a key study that the Illinois EPA has failed to provide
to the Board and the Petitioners. The Petitioners further claim that opponents and the
public are unfairly prejudiced in this matter and will be irreparably harmed.
This argument also is without merit. The Illinois EPA presented its case at the
first hearing and a complete record of the proceedings was made. No statement was
made by the Hearing Officer that the record was lacking. Also, both at the conclusion of
Dr. Keeler’s testimony and the hearing itself, the Illinois EPA made clear that it could not
guarantee that the Steubenville study would be able to be provided to the Board and
Petitioners. The only commitment made, which has been followed through on, was that a
good faith effort would be made to obtain the document for filing. Indeed, the Illinois
EPA’s interest in filing the document is clear, as it is supportive and consistent with the
Illinois EPA’s position as well as the testimony of Dr. Keeler.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 19, 2006
4
However, as explained to the Board at hearing, the Steubenville study is not under
the Illinois EPA’s control. Considering the Petitioners’, and other parties’, extensive
questioning of Dr. Keeler and the fore-mentioned lack of control over the Steubenville
study, it is unreasonable for the Board to strike Dr. Keeler’s testimony solely on the basis
that the study has not been produced. Nor is there any reason to require Dr. Keeler to
attend the second hearing for further questioning given the fact that he was available for
questioning at the first hearing. Lastly, it would be most injurious, and totally out of
proportion to any potential harm, to reschedule the second hearing until after the
Steubenville study is published. As noted by the Hearing Officer, to allow the unknown
future publication date of the Steubenville study to dictate the pace and outcome of this
pending matter would not only disrupt the Board’s handling of the rulemaking, but would
also create a situation of uncertainty as to the timing of the Board’s final decision.
The Petitioners’ third argument is that the Illinois EPA should not have presented
the testimony of Dr. Keeler in support of its theory of local deposition without providing
the scientific basis of that testimony, which the Petitioners claim is contained only in the
report of the Steubenville study. The Petitioners also state that the Board should strike
Dr. Keeler’s testimony, reasoning that the Illinois EPA presented such testimony and was
unable or unwilling to provide its scientific underpinnings. This untimely argument was
not raised prior to the first hearing when Dr. Keeler’s testimony was pre-filed, nor was it
raised during the first hearing itself. This belated attempt to assert an objection which
should have been raised at the hearing should not be allowed. And, even if the Board
does entertain the Motion to Strike, the relief requested should be denied.
Dr. Keeler’s hearing testimony stands on its own, and was well-supported with
exhibits and the substance of his pre-filed testimony. An expert may rely on his own
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 19, 2006
5
experience and “first-hand observation.”
Hilgenberg v. Kazan
, 305 Ill.App.3d 197, 209
(1
st
Dist. 1999); 711 N.E.2d 1160, 1169. In addition, no rule prevents witnesses from
making estimates based on their observations.
Id
. Dr. Keeler’s testimony was based not
on one single study, but rather the sum total of his experience in this field. The Illinois
EPA presented Dr. Keeler and his opinions in support of the proposed rulemaking, not
the Steubenville study alone.
Furthermore, it must be emphasized that the Petitioners are incorrect in their
claim that the Illinois EPA was unwilling to provide the scientific underpinnings of the
Steubenville study. It is not that the Illinois EPA is unwilling; to the contrary, the Illinois
EPA, if able, would immediately provide the published study if it could do so.
The Petitioners also state, in the alternative, that the Board should reschedule the
second hearing and the deadline for Petitioners' pre-filed testimony until 30 days after the
Illinois EPA does provide the report of the Steubenville study and all comments received
and considered during the peer review of that report. The Petitioners also state that 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. It is unnecessary to compel Dr. Keeler to appear
for further questions at the second hearing, as the participants were given their respective
chances to conduct cross-examination of him at the first hearing.
Under the federal Clean Air Mercury Rule (“CAMR”), states are required to
submit plans to the USEPA to address the requirements of the CAMR by no later than
November 17, 2006.
See
, 70
Fed. Reg.
28649; 40 CFR § 60.24(h)(2). Should the
November 17 deadline be missed by even one day, the State will be forced to accept a
federal rule wholly lacking in the protections needed by the State. Although the
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 19, 2006
6
Steubenville study should be published prior to the second hearing, it is not in the Illinois
EPA’s power nor Dr. Keeler’s authority to affect the schedule of publication. And, as
stated
supra
, Dr. Keeler’s testimony provided to date stands on its own such that no delay
is warranted. Thus, delay in the August hearing, or the holding of a third hearing, would
be most injurious to the State's interest and provide little likely benefit to the Petitioners.
Accordingly, the Petitioners’ Motion to Strike should be denied.
WHEREFORE, for the reasons set forth above, the Illinois EPA requests that the
Board enter an order denying the Motion to Strike.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By:
/s/__________________
John J. Kim
Managing Attorney
Air Regulatory Unit
Division of Legal Counsel
DATED: July 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, JULY 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 DYNEGY AND MIDWEST GENERATION’S MOTION TO STRIKE
THE TESTIMONY OF DR. GERALD KEELER AND MOTION FOR EXPEDITED
REVIEW upon the following person:
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
Division of Legal Counsel
Dated: July 19, 2006
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
(217) 782-5544
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 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
Jeremy R. Hojnicki
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
122 W. Washington Ave., Suite 830
Madison, WI 53703
James W. Ingram
Senior Corporate Counsel
Dynegy Midwest Generation, Inc.
1000 Louisiana, Suite 5800
Houston, TX 77002
Dianna Tickner
Prairie State Generating Company, LLC
701 Market Street
Suite 781
St. Louis, MO 63101
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JULY 19, 2006