ELECTRONIC
FILING,
RECEIVED, CLERKS
OFFICE,
DECEMBER
1,
2005
BEFORE
THE ILLINOIS POLLUTION
CONTROL
BOARD
OF TIlE STATE OF ILLINOIS
MIDWEST GENERATION,
LLC,
CRAWFORD GENERATING STATION,
)
)
Petitioner,
)
)
PCB
No. 2006-056
v.
)
(CAAPP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
To:
Dorothy Gunn, Clerk
Sheldon A. Zabel
Illinois
Pollution Control Board
Kathleen
C.
Bassi
100
West Randolph
Street
Stephen
1. Bonebrake
Suite
11-500
Joshua R.
More
Chicago,
Illinois 60601
Kavita M.
Patel
Schiff Hardin, LLP
BradleyP. Halloran
6600 Sears
Tower
Hearing
Officer
233 South Wacker Drive
Illinois Pollution Control Board
Chicago, Illinois 60606
James
R.
Thompson Center
Suite
11-500
100 West Randolph Street
Chicago, illinois 60601
PLEASE
TAKE
NOTICE that
1 have today filed with the Office of the Clerk of
the
Illinois Pollution Control Board the MOTION FOR EXTENSION OF TIME TO
FILE RECORD of the Respondent, Illinois Environmental Protection Agency, a copy of
which is herewith served upon the assigned Hearing Office
and the attorney for the
Petitioner.
Respectfully submitted by,
Sally
Cj&rter
Assistant Counsel
Dated: December
1,2005
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O.
Box
19276
Springfield) Illinois 62794-9276
ELECTRONIC
FILING,
RECEIVED, CLERK’S OFFICE,
DECEMBER
1,
2005
BEFORE THE
iLLiNOiS
POLLUTION
CONTROL BOARD
OF THE STATE OF ILLINOIS
MIDWEST GENERATION,
LLC,
)
CRAWFORD GENERATING STATION,
)
)
Petitioner,
)
)
PCB No.
2006-056
v.
)
(CAAPP Permit Appeal)
)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION FOR EXTENSION OF TIME TO FILE
RECORD
NOW
COMES the Respondent, ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY (cllllinois EPA”), by and through its attorneys, pursuant to 35
III. Adm.
Code
105.116
and
moves
the
ILLINOIS POLLUTION
CONTROL
BOARD
(“Board”)
for
an
extension
of the time to file the record of its
determination
in
the above-captioned
matter,
I.
Petitioners filed their Petition with the
Board
on November
2,
2005,
seeking
a
review of
certain permit
conditions
contained
within
the
Clean
Air Act
Permit
Program (“CAAPP”)
permit
issued to Midwest Generation, LLC (“Midwest Generation”
or “Crawford”)
by the
illinois EPA on September 29, 2005.
The permit authorized
the
operation
of
an
electrical
power generation
facility knowti
as
the
Crawford
Generating
Station.
The
facility is located at
3501
South Pulaski Road in Chicago, Jilinois.
Formal
notice
of
the appeal
was
served upon
the Illinois EPA on
November
4,
2005.
2.
On November
17,
2005,
the
Board
accepted Midwest Generation’s
Petition
for
hearing.
In
addition,
the
Board
ordered the
Respondent
to file the
entire
record
of
its determination within 30 days of
receipt of the
Petition.
If
an
extension of
1
ELECTRONIC
FILING,
RECEIVED, CLERK’S OFFICE,
DECEMBER
1,
2005
time
to file the
record
would be sought by the
Respondent,
the
Board’s order
instructed
that such request was also due within
30
days after the Illinois EPA received the Petition.
3.
The undersigned attorney and a staff paralegal became involved with the
compilation of the administrative record relating to Midwest Generation as early as mid-
August 2005
and since that time, most of this attorney’s and the staff paralegal’s
resources have been devoted to the compilation ofthis voluminous record and related
records pertaining to the twenty CAAPP permit appeals involving other electrical
power
generation
facilities in the
State.
At thisjuncturc, Crawford’s record consists generally of
five to six trial boxes of material.
Approximately two to three boxes are particular to
Crawford alone,
while three other boxes are more aptly characterized as
general reference
material and documents relevant to the decision underlying the issuance of all twenty-one
CAAPP permits to the
State’s electrical power generation
facilities.
The only remaining
documents to be assembled and reviewed for this record preparation generally consists of
several hundred
miscellaneous electronic mail mcssagcs of Illinois EPA personnel.
Some, but not
all, of these emails may contain information that were relied upon
by the
Illinois EPA in its permit decision.
4.
The other assigned attorney, Robb Layman, became
involvedwith the
compilation of the administrative record relating to this proceeding in November 2005.
Due to the press of other permit appeals before the United States Environmental
Protection Agency’s Environmental Appeals
Board (“EM”) and enforcement case
matters
unrelated to the present appeal, Mr. Layman was generally unable to assist in the
compilation of the record
until this past
month.
I
L
2
ELECTRONIC
FILING,
RECEIVED,
CLERK’S OFFICE,
DECEMBER
1,
2005
5.
Due to
the sheer
magnitude of the documcntation underlying the Illinois
EPA’s permitting decision
in
this matter and the additional twenty
CAAPP
permit
appeals, the Illinois EPA was not able to compile the entire
administrative record
on or
before December
5,
2005.
Counsel expects that the compilation of the record
will
require
at least
an additional seven days.
Beyond this point, the timing of the filing of the
administrative record
will
likely be determined by matters largely outside of counsel’s
control.
6.
First, while counsel
for the Illinois EPA
has obscrved that many permit
appeals are
of a type that could most aptly be described
as “protective appeals” that do
not necessarily require the filing of an administrativerecord, it is counsel’s estimation
that some of the collective twenty-one appealspossess
amuch
greater likelihood of
proceeding to hearing, thus necessitating thc filing of an administrative record.
While
this case is
admittedly at the earliest stage of litigation, the permitting of this facility was
based upon years of work by the Bureau of Air’s permitting engineers and countless
communications with this facility and industry representatives at large.
In addition, it
is
also the flhinois EPA’s perception
that the Board maynot wish to accept voluminous
administrative records in this and all ofthe other collective CAAPP appeals unless
it
appears that
a settlement resolution cannot be reached.
7.
Second, the Illinois EPA
does not possess
the support-staff to make the
necessary copies for filing before the Board, the assigned Hearing Officer and opposing
counsel.
For instance, ifthe Respondent were to seek leave from the Board for a waiver
of the applicable copying requirements, the Respondent would still be mailing
approximately twenty-five to thirty trial boxes to the Board for Crawford
alone.
This
3
ELECTRONIC
FILING,
RECEIVED, CLERK’S
OFFICE,
DECEMBER
1,
2005
does
not
include
the five
to
six
boxes
that would be required
for both the Hearing Officer
and opposing counsel.
Due to these constraints, counsel has been researching the
possibility of hiring
an outside contractor to perform the required copying and/or
screening.
However, the State
is limited
by further constraints;
for instance, the Illinois
EPA must first seek to employ a contractor that holds a State contract before turning to a
non-State contractor for copying services.
While counsel has located State contractors
that would be willing to make
10,000 copies often documents, counsel
has not found
a
State contractor willing to make seven copies of thousands of miscellaneous sized
documents.
8.
Based on the
foregoing, the Illinois EPA formallyrequ~stsan extension of
time to file its administrative record with the Board to a date determined by
the Board to
be appropriate and/or consistent with any decisional deadline in this matter.
9.
The grant of this extension of the filing date will ensure that this
voluminous record is not needlessly filed but
filed in the
event that the matter does not
settle.
This will
serve to limit the expenditure of constrained State resources on
a
potentially unnecessary copying job.
Moreover, this will flrther minimize
anypotential
administrative burdens associated with the maintenance and storage of hundreds of trial
boxes for this appeal, together with the other twenty CAAPP appeals for the Board and
the assigned Hearing Officer.
In addition, an extension of this time period
will
not result
in any hardship or prejudice to Petitioner.
EIIEbffibNIC
FILING,
RECEIVED, CLERK’S
OFFICE,
DECEMBER
1,
2005
WHEREFORE,
the Illinois EPA respectfully requests that the Board
grant
this
Motion for Extension of Time to File Record to a date determined by the Board to be
appropriate and/or consistent with any decisional
deadline in this matter.
Respectfully submitted by,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY.
~er
Assistant Counsel
Illinois Environmental Protection
Agency
1021 North Grand Avenue East
P.O. Box
19276
Springfield, Illinois 62794-9276
(217)782-5544
5
L~..
ELECTRONIC
FILING,
RECEIVED,
CLERKS b~FICE,DECEMBER~~~
2b05
CERTIFICATE
OF
SERVICE
hereby
certify that
on
the
l~
day of December
2005,1
did send,by electronic
mail
with
prior approval, the following instrument entitled MOTION FOR
EXTENSION OF TIME TO FILE RECORD to:
Dorothy
Gunn, Clerk
Illinois Pollution Control Board
100
West Randolph Street
Suite
11-500
Chicago, Illinois 60601
and a true and correct copy of the same foregoing instrument, by First Class Mail with
postage thereon frilly paid and deposited into
the possession of the United States Postal
Service,
to:
Bradley P. Halloran
Sheldon
A. Zabel
Hearing Officer
Kathleen C. Bassi
Illinois Pollution Control Board
Stephen J. Bonebrake
James R. Thompson Center
Joshua R. More
Suite
11-500
KavitaM. Patel
100
West Randolph
Street
SchiffHardin,
LLP
Chicago,
Tllinois 60601
6600 Sears Tower
233
South Wacker Drive
Chicago, Illinois
60606
Sally CØter
Assistant Counsel
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