ELECTRONIC
FILING,
RECEIVED, CLERKS
OFFICE,
DECEMBER
1,
2005
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE
OF ILLINOIS
KINCAID GENERATION, L.L.C.,
)
)
Petitioner,
)
)
v.
)
PCB 2006-62
)
(CAAPP
Permit
Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
)
Respondent.
)
NOTICE
To:
Dorothy Gunn, Clerk
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. Pate!
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
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 C~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, CLERKS OFFICE, bE~M~ER
1,
2005
BEFORE
THE
ILLINOIS POLLUTION CONTROL
BOARD
OF THE STATE
OF ILLINOIS
KINCAID GENERATION, L.L.C.,
)
)
Petitioner,
)
v.
)
PCB 2 006-62
)
(CAAPP 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 andthrougJ~its attorneys, pursuant to 35
111.
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.
1.
Petitioners filed their Petition with the Board on November 3,
2005,
seeking a review of certain permit conditions contained within the Clean Air Act Permit
Program (“CAAPP”) permit issued to Kincaid Generation, L.L.C. (“Kincaid”) by the
Illinois EPA on September 29, 2005.
The permit authorized the operation of an electrical
power generation facility known as the Kincaid Generating Station.
The facility is
located 4 miles west of Kincaid, Illinois
on Route
104.
Formal notice of the appeal
was
served upon the Illinois EPAon November 7, 2005.
2.
On November 17, 2005, the Board accepted Kincaid’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 time to file the
ELECTRONIC
FILING,
RECEIVED, CLERK’S
OFFICE,
DECEMBER
1,
2005
record
would be sought by
the Respondent, the Board’s
order instrticted 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 Kincaid 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 thisjuncture, Kincaid’s record consists generally of five to six trial boxes of
material.
Approximately two to three boxes are particular to Kincaid 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 ofother 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
thispast month.
2
-
ELECTRONIC FILING,
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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 7, 2005.
Counsel expects that the compilation of the record
will require
at least an additional
seven
days.
Beyond this point, the timingof 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
proceeding to
hearing, thus necessitating the filing of an administrative record.
WhiLe
this case is admittedly at the earliest stage of litigation,
the permithng 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
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 Illinois EPA does not possess the support-staff to makethe
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 Kincaid alone.
This does
3
ELECTRONIC
FILING,
RECEIVED, CLERK’S
OFFICE,
DECEMBER
1,
2005
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 andlor
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 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 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 furtherminimize any potential
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.
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.
Respectfully submitted by,
ILLfl’401S
ENVIRONMENTAL
PROTECTION AGENCY,
•
Air
Sally A/Carter
Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box
19276
Springfield,
Illinois 62794-9276
(217)782-5544
5
ELECTRONIC
FILING,
RECEIVED, CLERKS
OFFICE,
DECEMBER
1, 2005
CERTIFICATE
OF SERVICE
I hereby certify that on
the
1~’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 fullypaid 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
Kavita M.
Patel
100
West Randolph
Street
SchiffHardin, LLP
Chicago, Illinois 60601
6600 Sears Tower
233 South
Wacker Drive
Chicago, Illinois 60606
~‘a11y
C4er
Assistant Counsel
