J
ELECTRONIC FILING,
RECEIVED, CLERK’S
OFFICE,
DECEMBER
1, 2005
BEFORE
TUE ILLINOIS POLLUTION CONTROL
BOARD
OF THE STATE OF ILLINOIS
DYNEGY MIDWEST GENERATION, INC.
)
(VERMILLION
POWER STATION),
)
)
Petitioner,
)
)
PCB 2006-73
)
(CAAPP Permit Appeal)
ILLINOJS 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
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 of the Respondent, Illinois Environmental Protection Agency, a copy of
which is herewith served upon the assigned Hearing Office and the attorney
for
the
Petitipner.
Respectfully submitted by,
Sally Cater
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
DYNEGY
MIDWEST GENERATION, INC.
(VERMJLLION POWER STATION),
)
)
Petitioner,
)
)
v.
)
PCB 2006-73
•
)
(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
and through
its attorneys,
pursuant to
35
Ill. 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
Dynegy
Midwest Generation, Inc.
(“Dynegy” or
“Vermillion”) by the Illinois EPA on
September
29, 2005.
The permit authorized the
operation of an electrical power generation facility
known
as
the Vermillion Power
Station,
The facility is located at 2150 North County Road in
Oalcwood,
Illinois,
Formal
notice of the appeal
was served
upon the Illinois EPA on November 7,2005.
2.
On November 17, 2005, the Board acceptedDynegy’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
1
ELECTRONIC
FILING,
RECEIVED,
CLERK’S OFFICE,
DECEMBER
1,
2005
record
would
be
sought
by the Respondent,
the
Board’s
order instructed that such request
was
also
due within
30 days afler the Illinois EPA received the Petition.
3.
The
undersigned attorney and
a staffparalegal became involved
with the
compilation of the administrative record relating to
Dynegyas
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 rccorth pertaining to
the
twenty CAAPP permit
appeals involving other electrical power generation facilities in
the State.
At
this
juncture,
Vermillion’s record
consists generally of five
to six trial
boxes
of material.
Approximately two to three boxes are particular to
Vermillion 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
permils to the State’s electrical
power generation facilities.
The only remaining
documents to be assembled and revicwed
for this record preparation
generallyconsists 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”)
arid enforcement casc
matters unrelated to the present appeal, Mr. Layman
was generally unable to assist in the
compilation of the record until this past month.
2
ELECTRONIb
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 CAA.PP. 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 permittingof 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 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 fora waiver
of the applicable copying requirements, the Respondent would still be mailing
approximately twenty-five to thirty trial boxes to the Board for Vermillion 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 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 ofmiscellaneous 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 further minimize 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 anydecisional
deadline in this matter.
Respectfully submitted by,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Sally AáCarter
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, CLERK’S
OFFICE,
DECEMBER
1,
2005
CERTIFICATE
OF SERVICE
I 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 fully paid and deposited into
the possession of the United States Postal
Service, to:
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
Suite
11-500
100 West Randolph Street
Chicago, Illinois 60601
Sheldon
A. Zabel
Kathleen C.
Bassi
Stephen J. Bonebrake
JoshuaR. More
Kavita M. Patel
SchiffHardin,
LLP
6600 Sears Tower
233
South Wacket- Drive
Chicago, Illinois 60606
Sally C~-ter
Assistant Counsel
