ELECTRONIC
FILING,
RECEIVED, CLERK’S OFFICE,
DECEMBER
1,
2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE
OF
ILLINOIS
MIDWEST GENERATION, LLC,
)
WILL
COUNTY
GENERATING STATION,
)
)
Petitioner,
)
)
v.
)
PCB 2006-60
)
(CAAPP Permit Appeal)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
To:
Dorothy Gunn,
Cierk
Sheldon A. Zabel
Illinois Pollution Control Board
Kathleen
C. Bassi
100 West Randolph Street
Stephen J. Bonebrake
Suite 11-500
Joshua R. More
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
James
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 of the Respondcrit,
Illinois Environmental Protection Agency, a copy of
which is herewith served upon the assigned Hearing Office and the attorney for the
Petitioner.
Respeetfiuly submitted by,
Sally Ca#er
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,
)
WILL COUNTY GENERATING STATION,
)
Petitioner,
)
)
v.
)
PCB 2006-60
)
(CAAPP Permit Appeal)
ILLINOIS ENVJRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent
)
MOTION FOR EXTENSION OF TIME TO FILE RECORD
NOW COMES the Respondent, mLINOIS ENVIRONMENTAL PROTECTION
AGENCY (“Illinois EPA”), by and through its attorneys,
pursuant to 35
HI. 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
Boardon
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 “Will
County”) by the Illinois EPA on September 29, 2005.
The permit authorized
the
operation of an
electrical power generation facility known as the Will County Generating
Station.
The facility
is located at
529
East
135th
Road in Romeoville, Will County,
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 instntcted
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, Will County’s record consists
generally of five
to six trial boxes of material.
Approximately two to three boxes are
particular to Will County 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 ease
matters unrelated to the present
appeal, Mr. Layman
was generally unable to assist in the
compilation of the record
until this past month.
2
ELECTRONIC FILING,
RECEIVED,
CLERKS
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 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 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 administrativerecord,
it is counsel’s estimation
that some of the
collective twenty-one appeals possess a much greater likelihood of
proceeding to heaxing, thus necessitating the filing of an
administrative record.
While
thiscase 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 Illinois EPA’s perception that the Board may not wish
to accept voluminous
administrativerecords in this and all of the other collective CAAPP
appeals unless
it
appears that a settlement resolution caimot be reached.
7.
Second, the Illinois EPA does
not possess the support-staffto make the
necessary copies for filing before 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 Will County alone.
This
3
ELECTRONIC
FILING,
RECEIVED, CLERKS
OFFICE,
DECEMBER
1,
2005
does not include the five
to six boxcs that would
be
rcquired for both the Hcaring 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
ofthousands of miscellaneous sized
documents.
8.
Based on the foregoing, the Illinois EPA fonnally 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 filing date will ensure that this
voluminous record is not needlessly filed
but
flIed in
the event that the matter does not
settle.
This will serve to limit the expenditureof 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 thai
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.
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.
Respectfully submitted by,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY.
Sally Aitarter
Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box
19276
Springfield, Illinois 62794-9276
(217)782-5544
S
ELECTRONIC
FILING,
RECEIVED, CLERK’S OFFICE
DECEMBER
1,
2005
CERTIFICATE OF SERVICE
I hereby certify that on
the
IM 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 GunI1, 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 P. Halloran
Sheldon
A.
Zabel
Hearing
Officer
Kathleen C.
Bassi
illinois Pollution Coritrol Board
Stcphen
J. Bonebrakc
James R. Thompson Center
Joshua R. More
Suite 11-500
KavitaM. Patel
100 West Randolph
Street
SchiffHardin, LLP
Chicago,
Illinois 60601
6600
Sears Tower
233
South Wacker Drive
Chicago, illinois 60606
duA
S~11yCler
Assistant Counsel