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ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
CLERK'S OFFICE
JUN 0 6 2006
The Matter of:
)
In
Pollution
STATEOF
Control
ILLINOIS
Board
Proposed New 35 111
. Adm. Code 225
)
No. RO6-25
Control of Emissions from
)
(Rulemaking -
Air)
Large Combustion Sources
)
NOTICE OF FILING
TO : See attached Service List
PLEASE TAKE NOTICE that on June
6, 2006, 1
filed with the Office of the Clerk of the
Pollution Control Board, Participant KINCAID GENERATION, L
.L.C.'s
RESPONSE TO
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY'S MOTION TO AMEND
RULEMAKING PROPOSAL, copies of which are here ith served upon you
.
Bill S
. Forcade
Katherine M . Rahill
JENNER & BLOCK LLP
Attorneys for Kincaid Generation, LLC
One IBM Plaza
Chicago, IL 60611
(312) 222-9350
THIS FILING IS SUBMITED ON RECYCLED PAPER
 
CERTIFICATE OF SERVICE
I, Katherine M . Rahill, an attorney, hereby certify that I served a copy of the foregoing
KINCAID GENERATION, L .L.C.'s RESPONSE TO ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY'S MOTION TO AMEND RULEMAKING PROPOSAL, via first-
class mail, postage fully prepaid, upon the parties on the attached Service List this 6th day of
June, 2006 :
B
 
Gina Roccaforte, Assistant Counsel
Charles Matoesian, Assistant Counsel
John J
. Kim, Managing Attorney
Air Regulatory Unit
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P
.O. Box 19276
Springfield, IL 62794-9276
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 W . Randolph St
., Suite 11-500
Chicago, IL 60601-3218
Bruce Nilles
Sierra Club
122 W . Washington Ave
., Suite 830
Madison, WI 53703
Matthew Dunn, Chief
Division of Environmental Enforcement
Office of the Attorney General
188 West Randolph St ., 20th Floor
Chicago, IL 60601
William A . Murray
Special Assistant Corporation Counsel
Office of Public Utilities
800 East Monroe
Springfield, Illinois 62757
Christopher W
. Newcomb
Karaganis, White & Mage ., Ltd.
414 North Orleans Street, Suite 810
Chicago, Illinois 60610
David Rieser
James T. Harrington
McGuire Woods LLP
77 West Wacker, Suite 4100
Chicago, Illinois 60601
SERVICE LIST
Faith E. Bugel
Howard A . Learner
Meleah Geertsma
Environmental Law and Policy Center
35 East Wacker Drive, Suite 1300
Chicago, Illinois 60601
James W . Ingram
Dynegy Midwest Generation, Inc
.
1000 Louisiana, Suite 5800
Houston, TX 77002
N. LaDonna Driver
Katherine D . Hodge
Hodge Dwyer Zeman
3150 Roland Avenue, P.O. Box 5776
Springfield, Illinois 62705-5776
Keith I . Harley
Chicago Legal Clinic
205 West Monroe Street, 4th Floor
Chicago, Illinois 60606
S. David Farris
Manager, Environmental, Health and Safety
Office of Public Utilities, City of Springfield
201 East Lake Shore Drive
Springfield, Illinois 62757
Marie Tipsord
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 W
. Randolph, Suite 11-500
Chicago, Illinois 60601
Kathleen C . Bassi
Sheldon A. Zabel
Stephen J . Bonebrake
Joshua R . More
Glenna L. Gilbert
SCHIFF HARDIN LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
 
RECEIVED
CLERK'S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
JUN 0 6 2006
STATE OF ILLINOIS
In The Matter of:
)
Pollution Control
Board
Proposed New 35 111. Adm. Code 225
)
No. R06-25
Control of Emissions from
)
(Rulemaking -Air)
Large Combustion Sources
)
KINCAID GENERATION, L .L.C.'S
RESPONSE TO ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY'S MOTION TO AMEND RULEMAKING PROPOSAL
NOW COMES Participant KINCAID GENERATION, L .L.C. ("Kincaid"), by and
through its attorneys, JENNER & BLOCK LLP, and hereby responds to the Illinois
Environmental Protection Agency's ("IEPA" or the "Agency") motion to amend its rulemaking
proposal, "Proposed New 35 Ill . Adm. Code Part 225 -
Control of Emissions from Large
Combustion Sources ." Kincaid does not object to the Agency's amendment of the rulemaking
proposal but asks that the Board consider the effect of the amendment and provide for additional
time in this rulemaking
. In support of its response, Kincaid states as follows :
1 .
The original rulemaking proposal was filed with the Board on March 14, 2006,
and accepted for hearing by the Board on March 16, 2006
.
2.
On May 4, 2006, the Hearing Officer set the hearing dates for the rulemaking as
follows : first hearing (proponents' case) - June 12-23, 2006
; and second hearing (opponents'
case) - August 14-25, 2006 . Also, according to the May 4, 2006 order, participants must prefile
testimony for the second hearing on or before July 17, 2006 .
3.
The current schedule allowed participants over seventeen weeks to consider,
analyze, and prepare testimony in response to the Agency's original rulemaking proposal
.
4. Even the original Hearing Officer's order under the Section 28
.5 expedited
schedule required those opposing the proposed regulations to submit prefiled testimony on
May 26, 2006, more than ten weeks after the original proposal was filed with the Board .
THIS FILING IS SUBMITED ON RECYCLED PAPER
 
5 .
The Agency filed its motion to amend its rulemaking proposal on May 23, 2006 .
Given the Board's meeting schedule and the briefing schedule set forth under the Board's rules,
it is likely that the Board will decide whether to grant or deny the motion on June 15, 2006, but
no earlier .
6.
If participants are required to prefile testimony on or before July 17, 2006,
participants will have, at most, only a little over four weeks from the date of the Board's decision
to analyze the amended proposal and revise any testimony accordingly
. During 1 1/2 weeks of
that four week time, participants and their counsel will be occupied at the hearings in this matter
and unable to prepare or review such testimony
.
7.
Moreover, because it is highly unlikely the Board will make a decision on the
Agency's motion prior to June 15, three days into the first hearing, it is doubtful that the Agency
will present its full testimony and the participants will conclude cross-examination of the
Agency's witnesses by the June 23, 2006 conclusion of the first hearings . Therefore, the
proponent's testimony will likely continue into the second hearing, further impinging on
participants' ability to respond to the Agency's case
.
8.
The proposed amendment appears to change the fundamental underpinning of the
rule by conceding that some facilities may not be able to meet the general rule requirements in a
technologically feasible or economically reasonable manner . The proposed amendment adds an
additional level of complexity because it may change the amount and timing of mercury
reductions contemplated in the original rule, thereby placing in question any prior testimony or
support for the claimed reductions in environmental or health impacts . As a result, participants
need sufficient time to consider the applicability of this amendment as well as its potential
 
effects on the full spectrum of Agency's supporting documents and testimony, to consult with
participants experts, and to prepare testimony in response
.
9 .
Furthermore, the Agency has not submitted any testimony regarding the proposed
amendment other than a few sentences in Dr . Staudt's testimony
. Because the amendment has
the potential to touch a range of topics, it is likely that the testimony of a number of witnesses
may be affected by the proposed amendment, not just the testimony of Dr . Staudt
. The only
means with which participants can gain a greater understanding of the amendment is through
cross-examination of the Agency's witnesses on the meaning and effect of the amendment .
Therefore, participants need a full opportunity to cross-examine the Agency's and any other
proponents' witnesses regarding the amendment and sufficient time to reflect on those responses
in preparing responsive testimony .
10.
The current schedule contemplates that testimony on technical feasibility and
economic reasonableness (the portion of the testimony most affected by the amendments to the
proposal) will occur at the end of the June hearings. It is not unreasonable to assume that the
Agency witnesses on these topics will not be able to complete their cross examination by
June 23, 2006, and would have to complete their cross examination during the August hearings
.
11 .
The current scheduling order requires the regulated community to submit any
rebuttal testimony on technical feasibility and economic reasonableness on July 17, 2006
. If the
cross examination of Agency witnesses on these topics is not completed by June 23, and must
continue to the August hearings, this requires opponents to pre-file rebuttal testimony
approximately 30 days prior to the conclusion of the cross-examination of proponents witnesses
for these topics
. Members of the regulated community cannot reasonably prepare rebuttal
testimony by July 17 to testimony they will not hear until August 14 or later
.
-3-
 
WHEREFORE, for the reasons set forth above, Participant Kincaid Generation, L
.L.C.,
respectfully requests that if the Board grants the Agency's motion to amend the rulemaking
proposal, the Board direct the Hearing Officer to ensure that the prefiling date for rebuttal
testimony will not occur until 30 days or later after the conclusion of the cross-examination of all
proponents' witnesses, that the prefiling date for questions related to the rebuttal testimony will
not occur until 14 days after the prefiling date for rebuttal testimony, and that the second hearing
not be set to begin until 30 days or later after the prefiling date for rebuttal testimony
.
Respectfully submitted,
Dated: June 6, 2006
Bill S. Forcade
Katherine M . Rahill
Jenner & Block LLP
One IBM Plaza
Chicago, IL 60611-7603
(312) 840-8618
CHICAGO 14104605
by:
-4-
Kincaid Generation, L .L.C

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