1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
MIDWEST GENERATION, LLC, )
JOLIET GENERATING STATION, )
)
Petitioner,
)
)
v. ) PCB 2006-58
) (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 J. Bonebrake
Suite 11-500 Joshua R. More
Chicago, Illinois 60601 Kavita M. Patel
Schiff Hardin, 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 LEAVE TO FILE THE
ADMINISTRATIVE RECORD ON A SET OF COMPACT DISCS
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,
______/s/___________________
Sally Carter
Assistant Counsel
Dated: January 30, 2006
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 30, 2006
2
CERTIFICATE OF SERVICE
I hereby certify that on the 30
th
day of January 2006, I did send, by electronic mail
with prior approval, the following instrument entitled
MOTION FOR LEAVE TO
FILE THE ADMINISTRATIVE RECORD ON A SET OF COMPACT DISCS
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 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 Schiff Hardin, LLP
Chicago, Illinois 60601 6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
___/s/_______________________
Sally Carter
Assistant Counsel
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 30, 2006
3
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
MIDWEST GENERATION, LLC, )
JOLIET GENERATING STATION, )
)
Petitioner,
)
) PCB No. 2006-058
v. ) (CAAPP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL )
PROTECTION AGENCY, )
)
Respondent. )
MOTION FOR LEAVE TO FILE THE ADMINISTRATIVE RECORD
ON A SET OF COMPACT DISCS
NOW COMES the Respondent, ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY (“Illinois EPA”), by and through its attorneys, pursuant to 35 Ill. Adm. Code
101.500 and moves the ILLINOIS POLLUTION CONTROL BOARD (“Board”) to grant
the Illinois EPA leave to file scanned versions of the Administrative Record in this cause
on a set of compact discs.
1. 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 “Joliet”) by the Illinois EPA on September 29, 2005. The permit authorized the
operation of an electrical power generation facility known as the Joliet Generating
Station. The facility is located at 1800 Channahon Road in Joliet, 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
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 30, 2006
4
record of its determination within 30 days of receipt of the Petition. If an extension of
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. On December 1, 2005, Illinois EPA counsel filed a Motion for Extension
of Time to File Record (“Extension Motion”) with the Board, observing that many permit
appeals are of a type that could most aptly be described as “protective appeals” that
frequently do not require the filing of an administrative record. However, counsel
recognized that some of the collective twenty-one appeals possessed a much greater
likelihood of proceeding to hearing, thus necessitating the filing of an administrative
record in those cases. Counsel also observed that the Extension Motion was due, in small
part, to the review time required for the remaining several hundred miscellaneous
electronic mail messages of Illinois EPA personnel that had not yet been reviewed for
information relied upon by the Illinois EPA in its permit decision.
4 The more pressing matter underlying the Extension Motion involved the
logistics of providing the necessary copying and/or scanning of the Administrative
Record. As previously conveyed to the Board, this Administrative Record and the related
records pertaining to the twenty CAAPP permit appeals involving other electrical power
generation facilities in the State are quite voluminous. Joliet’s record consists generally
of six trial boxes of material. Approximately three boxes are particular to Joliet alone,
while three other boxes are more aptly characterized as general reference material and
documents relevant to the decisions underlying the issuance of all twenty-one CAAPP
permits to the State’s electrical power generation facilities. The thrust of the Extension
Motion suggested that the Illinois EPA does not possess the support-staff to make the
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 30, 2006
5
necessary copies for filing before the Board, the assigned Hearing Officer and opposing
counsel. If the Respondent were to seek leave from the Board to file four copies of the
record, plus the original, the Respondent would still be mailing approximately thirty trial
boxes to the Board for Joliet alone. This scenario does not include the six boxes that
would still be required for opposing counsel and, depending on the outcome of the
settlement discussions, possibly the Hearing Officer as well.
5. On December 15, 2005, Petitioners filed a Response to Agency’s Motion
for Extension of Time to File Record. The Response agreed that some of the contested
issues may be addressed through settlement but that “it is premature to determine whether
that is true for any, much less all, of the issues raised in the appeal.”
Petitioner’s
Response at page 3.
Accordingly, the Petitioner concluded it was appropriate for the
Illinois EPA to file the Administrative Record at this time.
Id. at pages 3-4.
The Board
has not yet ruled on the Illinois EPA Extension Motion.
6. Due to support staff constraints, counsel has researched the possibility of
hiring an outside contractor to perform the required copying and/or scanning. Counsel
has located a State-approved contractor that is willing to “scan” the record onto a set of
compact discs for each of the twenty-one CAAPP permit appeals involving the electrical
power generating facilities. However, the Board’s procedural rules are not entirely clear
on whether the Board will accept a scanned version of the administrative record on
compact disc. While Sections 105.116 and 105.212 of the Board’s procedural rules
require the Illinois EPA to file the entire record of its decision with the Board, these
sections do not specify the manner of such filing. The more applicable provision of
Section 101.302(d) provides that filing by electronic transmission is only allowed with
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 30, 2006
6
prior Board approval. While counsel for the Illinois EPA has received prior Board and/or
Hearing Officer approval for the electronic filing of briefs and/or pleadings, the Board’s
procedural rules do not define what constitutes an “electronic filing.” As it is not entirely
clear whether a scanned version of the administrative record on compact disc comports
with the Board’s filing requirements, the Illinois EPA is seeking leave in the instant
motion.
7. Additionally, the Board has previously expressed an interest for the
electronic filing of documents that are amenable to a search command with the Board.
Unfortunately, the Illinois EPA has recently learned that a searchable version of the
scanned compact discs would be cost prohibitive to the State of Illinois.
1
However, the
Illinois EPA will be providing a type of search mechanism through the bate stamping of
the documents that will take place prior to shipment of the documents to the scanning
service. In addition, future electronic filings, including any final briefing documents, will
be filed by the Illinois EPA in Word format, thereby providing the Board its desired
search function. Finally, it is worth noting that if the Illinois EPA were to file a more
traditional paper record with the Board, no quick search mechanism would exist for such
filing.
1
Under the State contract, it costs the Illinois EPA a little over three cents a page to have a
document scanned by the contractor. To provide a searchable scanned document via optical
character recognition, it would cost the Illinois EPA approximately a dollar a page for a typical
written document. While the contractor does not provide a guarantee on the accuracy of this
function, it typically operates with 70 % degree of accuracy. If the Illinois EPA requested the
same search function on all handwritten documents in the Administrative Record as well, it
would cost approximately $1.65 per page. Counsel for the Illinois EPA estimates that there are
approximately 150,000 pages including countless handwritten documents in the Administrative
Record and the related records pertaining to the twenty CAAPP permit appeals involving the
other electrical power generating facilities in the State. The cost differential between the varying
degrees of searchable records and a non-searchable record is anywhere from $150,000 to
$247,500 versus $5,000.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 30, 2006
7
8. Counsel for Petitioner has conveyed to the Illinois EPA that they have no
objection to a scanned version of the Administrative Record.
9. Based on the foregoing, the Illinois EPA formally seeks leave to file its
Administrative Record with the Board on a set of compact discs. Specifically, the Illinois
requests leave to file five sets of compact discs with the Board containing the three trial
boxes of the Administrative Record that are particular to Joliet alone. In addition, for the
additional three trial boxes more aptly characterized as general reference material and
documents relevant to the decisions underlying the issuance of all twenty-one CAAPP
permits to the State’s electrical power generation facilities, the Illinois EPA requests
leave to file five sets of compact discs for all twenty-one CAAPP permit appeals. This
will avoid the needless duplication of the same general reference discs for all twenty-one
CAAPP appeals before the Board.
10. The granting of this Motion for Leave to File the Record on a Set of
Compact Discs will ensure that this voluminous record is not only filed but 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 before the Board and the assigned Hearing Officer.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 30, 2006
8
WHEREFORE, the Illinois EPA respectfully requests that the Board grant this
Motion for Leave to File the Administrative Record on a Set of Compact Discs.
Respectfully submitted by,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
_________/s/__________________
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
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, JANUARY 30, 2006