ILLINOIS POLLUTION CONTROL BOARD
    June 15, 2006
    IN THE MATTER OF:
    PROPOSED NEW 35 ILL. ADM. CODE 225
    CONTROL OF EMISSIONS FROM LARGE
    COMBUSTION SOURCES (MERCURY)
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    R06-25
    (Rulemaking - Air)
    ORDER OF THE BOARD (by G.T. Girard, A.S. Moore):
    On May 23, 2006, the Illinois Environmental Protection Agency (Agency) filed a
    “Motion to Amend Rulemaking Proposal” (Motion) along with amended testimony of Dr. James
    Staudt
    1
    . On June 6, 2006, Dynegy and Midwest Generation (Dynegy), Ameren Energy
    Generation Company, Amerenenergy Resources Generating Company, and Electric Energy, Inc.
    (Ameren), and Kincaid Generation, L.L.C. (Kincaid) all filed responses to the motion.
    On June 7, 2006, the Agency filed motions for leave to file replies to each of the responses.
    In general the responses state that they do not object to the motion; however, the
    responses ask that the Board direct the hearing officer to alter prefiling deadlines and redesignate
    the hearing scheduled to begin August 14, 2006. For the reasons discussed below the Board will
    grant the motion to amend, but declines to make any decision regarding prefiling deadlines and
    the hearing conduct. The Board denies the Agency’s motions for leave to file replies as the
    Board finds that the Agency will not be materially prejudiced by the inability to reply to a
    response that does not object to the underlying motion.
    See
    35 Ill. Adm. Code 101.500(e).
    The Board has not made any decision concerning the substance of the proposal. On
    March 16, 2006, the Board accepted the Agency’s March 14, 2006 proposal for hearing. The
    Board did not comment on the merits of the proposal in accepting the proposal for hearing. On
    May 4, 2006, the Board decided to proceed with the proposal under Section 27 of the
    Environmental Protection Act (415 ILCS 5/27 (2004)). The Board again did not comment on the
    merits of the proposal.
    The Agency has the burden to “provide information supporting the requested change” in
    its proposal to adopt regulations pursuant to the Environmental Protection Act (Act) (
    see
    415
    ILCS 5/27(a) (2004)). Therefore, if the Agency fails to provide support for the proposal or
    amended proposal, the Agency will have failed to meet the statutory burden. The Board notes,
    without commenting on the sufficiency of that testimony, that the Agency submitted revised
    testimony from Dr. James Staudt, more than three weeks before the date of this order.
    Furthermore, Dr. Staudt will be present at hearing and subject to cross-examination, as will all of
    the Agency’s witnesses.
    1
    On May 24, 2006, the hearing officer granted a motion to file
    instanter
    the amended testimony
    of Dr. Staudt.
    2
    The Agency states that the inclusion of a Temporary Technology Based Standard, which
    is the subject of the proposed amendment, was considered during several stakeholder meetings
    prior to the filing of the Agency’s proposal. Mot. at 2. However, a limited number of comments
    were received and no stakeholders stated that they would utilize such a standard.
    Id
    . Based on
    all of this, the Board finds that the participants will not be prejudiced by the acceptance of the
    amended proposal.
    The participants have made various requests to the Board concerning hearing conduct and
    deadlines. Specifically, Dynegy asks the Board to “redesignate the scheduled August hearing for
    completion of the Agency’s and supporters’ cases.” Dynegy also asks the Board to direct the
    hearing officer to schedule a third hearing at least 30 days after the conclusion of the second
    hearing to be dedicated exclusively to the opponent’s cases. Ameren asks that the Board extend
    the deadline for pre-filing testimony for the second hearing to a date no earlier than July 28,
    2006. Ameren also asks that the Board recognize its “right to seek additional extension of
    relevant dates” at the end of the first hearing based on the testimony presented there or if the
    Agency presents additional testimony during the second hearing. Kincaid asks that the Board
    direct the hearing officer “to ensure that the prefiling date for rebuttal testimony will not occur”
    for at least 30 days after the conclusion of the cross-examination of the Agency’s witnesses.
    The Board finds that it is premature for the Board to direct the hearing officer to change
    the order and conduct of the hearings at this time. The Board recognizes the concerns raised by
    the participants; however, the hearing officer has the authority to alter the schedule and order of
    hearings (
    see
    35 Ill. Adm. Code 102.416-102.424). Therefore, any motions seeking a change in
    scheduling or the conduct of the hearing should be addressed to the hearing officer.
    IT IS SO ORDERED.
    I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board
    adopted the above order on June 15, 2006, by a vote of 4-0.
    Dorothy M. Gunn, Clerk
    Illinois Pollution Control Board

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