ELECTRONIC
FILING,
RECEIVED, CLERK’S OFFICE,
DECEMBER
1,
2005
BEFORE
THE
ILLINOIS
POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
MIDWEST GENERATION, LLC,
)
FISK GENERATING STATION,
)
)
Petitioner,
)
)
v.
)
PCB
2006-57
)
(CAAPP
Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
To:
Dorothy Gtmn, Clerk
Sheldon A.
Zabel
Illinois Pollution Control Board
Kathleen C.
Bassi
100 West Randolph Street
St~phen
J. Bonebrake
Suite
11-500
Joshua R. Mote
Chicago, illinois 60601
Kavita M. Patel
SchiffHardin, LLP
Bradley P. Halloran
6600 Sears Tower
Hearing Officer
233 South
Wacker Drive
Illinois Pollution Control Board
Chicago, Illinois 60606
lames R.
Thompson Center
Suite
11-500
100 West Randolph Street
Chicago: Illinois 60601
PLEASE TAKE NOTICE that I have today
filed with the Office of the Clerk of
the Illinois Pollution Control Board the MOTiON FOR EXTENSION OF TiME TO
FILE RECORD ofthe Respondent, Illinois Environmental Protection Agency, a copy of
which is herewith served upon the assignedHearing Office and the attorney for the
Petitioner.
Respectfully submitted by,
Sally ~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,
CLERICS OFFICE,
DECEMBER
1,
2005
BEFORE
THE HJLINOIS
POLLUTION
CONTROL BOARD
OF THE
STATE OF
ILLINOIS
MIDWEST GENERATION, LLC,
)
FISK GENERATING STATION,
)
)
Petitioner,
)
)
v.
)
PCB 2006-57
)
(CAMP
Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION
FOR EXTENSION OF TIME TO FILE RECORD
NOW COMES the Respondent, ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY (“Illinois EPA”), by and through its attorneys, pursuant to 35 ill. Adm. Code
105,116 and moves the ILLINOIS POLLUTION CONTROL BOARD (“Board”) foran
extension of the time to file the record of its determination
in the above-captioned matter.
1.
Petitioners
filed their Petition with the Board on November 2,2005,
seeking
a review of certainpermit conditions contained within the Clean Air Act Permit
Program (“CAAPP”) permit issued to Midwest Generation, LLC (“Midwest Generation”
or “Fisk”) by the Illinois EPA on September 29, 2005.
The permit authorized the
operation of an electrical power generation facility known as
the Fisk Generating Station.
The facility is located at 1111
West Cermak Road in Chicago, Illinois. 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 of this voluminous record and related
records pertaining to the
twenty CAAPP permit appeals involving other electrical power
generation
facilities in
the State.
At this juncture, Fisk’s record consists generally of five
to six trial
boxes of material.
Approximately two to
three boxes are
particular
to Fisk
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 messages 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 involved with 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 (“EAB”) 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.
ELECTRONIC
FILING,
RECEIVED,
CLERK’S
OFFICE,
DECEMBER
1,
2005
5.
Due to
the sheer magnitude of the documentation 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 ofthe 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 observed 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 administrative record, it is counsel’s estimation
that some of the collective twenty-one appeals possess a much greater likelihood of
proceedingto hearing, thus necessitating the 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 ofwork 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 Illinois EPA’s perception that the Board may
not wish to accept voluminous
administrative records
in this and all of the other collective CAAPP
appeals unless
it
appears that a settlement resolution cannot be reached.
7.
Second, the Illinoi~
EPA does
not possess the support-staff to make the
necessary copies for filingbefore the Board, the assigned Hearing Officer and opposing
counsel.
For instance, if the 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 Fisk alone.
This does not
3
ELECTRONIC
FILING,
RECEIVED,
CLERKS OFFICE,
DECEMBER
1,
2005
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
furtherconstraints;
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 formally requests an 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 filingdate 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 further minimize any potential
administrative burdens associated
with the maintenance and storage of hundreds of trial
boxes for this appeal, together with the other twentyCAAPP
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.
4
ELECTRONIC FILING,
RECEIVED, CLERKS
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.
Respcctfully submitted by,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
4~frdaa~
Sally A.jtartcr
Assistant Counsel
Illniois Environmental Protection Agency
1021
North
Grand Avenue East
P.O.
Box
19276
~
Springfield, Illinois 62794-9276
(217)782-5544
5
ELECTRONIC
FILING,
RECEIVED,
CLERK’S OFFICE,
DECEMBER
1,
2005
CERTIFICATE OF SERVICE
I hereby certify that on the
1st
day of December 2005, I 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 fully paid and deposited into the possession of the United States Postal
Service, to:
Bradley?.
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
Kavita M. Patel
100 West Randolph Street
Schiffhardin, LLP
Chicago, Illinois 60601
6600 Sears Tower
233 South
Waeker Drive
Chicago, Illinois
60606
Sally Clter
Assistant Counsel
