BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF
:
)
PROPOSED NEW CAIR SO2, CAIR NOX
)
ANNUAL AND CAIR NOX OZONE
)
SEASON TRADING PROGRAMS, 35 ILL
. )
ADM
. CODE 255, CONTROL OF
)
EMISSIONS FROM LARGE
)
COMBUSTION SOURCES, SUBPARTS )
A,C,DANDE
)
To: see attached service list
Please take notice that today I filed with the Office of the Clerk of the Pollution Control
Board a Response to Motion To Dismiss filed by Dynegy Midwest Generation, Inc
.,
Midwest Generation, Inc
. and Southern Illinois Power Cooperative, a copy of which is
hereby
ed upon you
.
Keith Harley
Dated: December 13, 2006
Keith Harley,
Chicago Legal Clinic, Inc
.
205 W. Monroe, 4th
Floor
Chicago, IL 60606
(312) 726-2938
(312) 726-5206 (fax)
kharley@kentlaw .edu
NOTICE OF FILING
R06-26
(Rulemaking- Air)
RECEIVED
CLERKS
OFFICE
DEC 1 3 2006
Pollution
STATEOFControl
ILLINOISBoard
Dorothy Gum, Clerk
Illinois Pollution Control Board
James R. Thompson Center
Suite 11-500
100 West Randolph
Chicago, IL 60601
John C . Knittle, Esq .
Hearing Officer
Illinois Pollution Control Board
2125 South First Street
Champaign, IL 61820
John J . Kim and Rachel L
. Doctors, Esq .
Air Regulatory Unit, Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O . Box 19276
Springfield, IL 62794-9276
Sheldon A
. Zabel, Kathleen C . Bassi,
Stephen J . Bonebrake
Schiff Hardin LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, IL 60606
James T. Harrington, David Reiser and Jeremy R
. Hojnicki
McGuire Woods LLP
77 West Wackei Drive, Suite 4100
Chicago, IL 60601
Steven J . Murawski, Sasha M
. Reyes
Baker & McKenzie
One Prudential Plaza, Suite 3500
130 East Randolph Drive
Chicago, IL 60601
Matthew Dunn, Division Chief
Division of Environmental Enforcement
Office of the Attorney General
188 West Randolph Street
20th Floor
Chicago, IL 60601
William A
. Murray
Regulatory Affairs Manager
City of Springfield Office of Public Utilities
800 East Monro'e, 4th Floor
Springfield, IL 62757
Service List
N
. LaDonna Driver and Katherine D . Hodge
Hodge, Dwyer & Zeman
3150 Roland Ave .,
P.O . Box 5776
Springfield, IL 62705-5776
S . David Farris
Manager, Environmental, Health and Safety
Office of Public Utilities - City of Springfield
201 East Lake Shore Drive
Springfield, IL 62757
Virginia Yang
Illinois Department of Natural Resources
One Natural Resources Way
Springfield, IL 62702-1271
Bill S
. Forcade and Katherine M . Rahill
Jenner & Block, LLP
One IBM Plaza
Chicago, IL 60611
Daniel D . McDevitt
General Counsel
Midwest Generation, LLC
440 S . LaSalle St.,
Suite 3500
Chicago, IL 60605
James H . Russell
W inston & Strawn, LLP
35 W
. Wacker Drive, 40th Fl .
Chicago, IL 60601
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF :
)
PROPOSED NEW CAIR SO2, CAIR NOX
ANNUAL AND CAIR NOX OZONE
SEASON TRADING PROGRAMS, 35 ILL .
ADM. CODE 255, CONTROL OF
EMISSIONS FROM LARGE
COMBUSTION SOURCES, SUBPARTS
A, C,DANDE
R06-26
(Rulemaking-Air)
RESPONSE TO MOTION TO DISMISS
Environment Illinois and the Environmental Law and Policy Center (collectively
"Environmental Advocates") oppose the Motion to Dismiss Filed by Dyncgy Midwest
Generation, Inc, Midwest Generation, LLC, and Southern Illinois Power Cooperative
(collectively "Movants")
. The Illinois Environmental Protection Agency ("Agency") will
address the substantive jurisdictional arguments raised by the Movants . In this Response,
the Environmental Advocates solely address the lack of timeliness of the Motion to
Dismiss, which provides an independent basis for the Motion to be denied .
Relevant Facts
The following facts in this case are not in dispute
. On May 30, 2006, the Agency
submitted to the Illinois Pollution Control Board ("Board") a rulemaking proposal
pursuant to Sections 27 and 28 of the Illinois Environmental Protection Act (the "Act")
(415 ILCS 5/27 and 28 (2004)) that proposes to add new Subparts C, D and E to Part 225
.
On June 30, 2006, Kathleen C . Bassi, Stephen J
. Bonebrake and Sheldon A . Zabel of the
firm Schiff Hardin LLP filed their Appearances on behalf of Dynegy Midwest Generation
Inc
. ("Dynegy Midwest") and Midwest Generation, LLC ("Midwest Generation")
. Also
on June 30th, by and through their attorneys, Dynegy Midwest and Midwest Generation
RECEIVED
CLERK'S OFFICE
DEC 1 3 2006
Pollution Control
B
acrd
filed a Motion for Leave to File Responses and Responses to several Agency Motions
.
By and through their attorneys, Dynegy Midwest and Midwest Generation subsequently
participated in Board hearings on October 10th, October I I th and October 12th in
Springfield, and on November 29th and November 30th in Chicago
. On November 30,
2006, Dynegy Midwest and Midwest Generation filed a Motion to Dismiss this
rulemaking proceeding . Southern Illinois Power Cooperative ("SIPC") is also listed as
Movant
. SIPC was not identified on the original Appearances of Ms . Bassi, Mr .
Bonebrake or Mr . Zabel.
Discussion
In general, Board regulations allow motions to be fled at any time unless specifically
provided by rule . 35 I11 .Adm .Code 101
.500 . The Movants concede Board rules
specifically require that motions to strike, dismiss or challenge the
sufficiency
of any
pleading filed with the Board must be filed within 30 days after service of the challenged
document . 35 Ill
.Adm.Code 101 .506. This rule creates no exceptions for motions to
dismiss on jurisdictional grounds
; therefore, it may be presumed that the present Motion
to Dismiss is governed by this 30-day timeline .
The Movants did not adhere to the deadline established in Board rules
. In the present
case, the Motion to Dismiss was filed on November 30th, 184 days after the Agency's
original rulena' aking proposal and 153 days after the Dynegy Midwest's and Midwest
Generation's attorneys filed their Appearances, initial Motion and extensive Responses to
the Agency's rulemaking proposal
. Notably, the Motion to Dismiss is based on legal
arguments that could have been raised in compliance with the 30-day requirement
imposed by Board rule
. That is, the Movants' arguments are not based on any evidence
introduced subsequent to the Agency's initial filing . Simply, the Movants could have
filed, but chose not to file, their Motion to Dismiss within the period mandated by Board
rules . There is no explanation in the Motion for this several month delay .
There are several reasons for the Board to view this course of conduct with suspicion
and to enter an Opinion and Order that will discourage it . First, the Movants' failure to
act within 30 days materially prejudices every other participant in these proceedings .
Since the conclusion of the 30-day period, there have been several days of hearings that
have involved significant commitments of time and/or expense for dozens of participants,
including witnesses, attorneys, members of the public, Board members, Board staff
members and'court reporters . By withholding a potentially dispositive Motion, the
Movants are elevating their own convenience or desire for tactical effect at the expense of
every other participant in this process .
The importance of the issue of prejudice is addressed in the only Illinois Pollution
Control Board case cited by the Movants to establish the timeliness of their Motion,
Brazas v
. Village of Hampshire, PCB 06-131 . In Brazas, the Agency filed a Motion to
Dismiss within 30 days of filing the record of a permit determination, within 43 days
after a Board !Order and Opinion finding much of a permit appeal to be deficient, and
more than 30 days prior to the date of the first evidentiary hearing . Id. at 2
. Brazas never
responded to the Agency's Motion to Dismiss. Id. In granting the Agency's Motion, the
Board specifically cited the Agency's argument that material prejudice would result in
proceeding to hearing in the absence of Board jurisdiction . Id . at 3 .
In the present case, the delay in filing the Motion to Dismiss is more than ten times
longer than the few days in the Brazas case
. On the critical issue of avoiding material
prejudice, the cases are also clearly distinguishable
. Unlike Brazas, where the Agency
acted prior to hearing, in the present case the Movant delayed until after the hearings
concluded to file their Motion to Dismiss . In
Brazes, the Agency alleged the material
prejudice exception to an ordinarily applicable rile, and the Board in its discretion and
under the circumstances presented allowed the Motion to proceed
. Material prejudice
was not asserted by the Movants in the present case . In Brazes,
the risk of material
prejudice was the introduction of inappropriate evidence at hearing
. In the present case,
the reality of material prejudice is the unexplained delay in filing a Motion to Dismiss
that could have been filed consistently with Board rules, potentially meaning that
thousands of hours of cumulative effort by dozens of participants in a Board proceeding,
and tens of thousands of dollars, could be wasted .
Second, if this course of conduct is permitted, the Board unwittingly could be
encouraging parties to engage in bait-and-switch tactics
. In the present case, the
Movants demonstrated their ability to engage in motion practice before the Board as early
as June 30, 2006 with their initial filing in this matter
. A Motion to Dismiss on that date
would have been timely
. Earlier this year, in PCB R-2006-025, the very same Movants
filed a dispositive Motion one day after the Agency submitted its rulemaking proposal
.
In the present case, the Movants did not file a Motion to Dismiss until the hearings
concluded, six months after the Agency rulemaking proposal and five months after the
Movants' first Motion
. In the meantime, they fully availed themselves of the opportunity
to create a record favorable to their interests
. Only after creating this record
- and having
the opportunity to gauge the likelihood of success on the merits of the evidence
-
did they
produce a Motion alleging the proceedings never should have taken place at all
. In order
to avoid this, the Board rules prudently establish an orderly process in which potentially
dispositive Motions are resolved very early in the rulemaking process
. The Board has
every reason to issue an Opinion and Order underscoring the necessity of adhering to this
process, especially when a dispositive Motion could have been timely fled but was not,
without explanation and without any demonstration of material prejudice, by Movants
that participated fully in the hearing process .
Third, if the Board denies the Motion for lack of timeliness, the Movants are not
without an alternative in this rulemaking process
. The period for post-hearing comments
will remain open until December 22nd
. The Movants are free to make legal arguments in
their post-hearing comments
. By requiring the Movants to make their arguments in post-
hearing comments, the Board will be acting consistently with Board rules and with the
Hearing Officer's Orders for the efficient conduct of this proceeding, while also curtailing
the possibility of interlocutory appeal, see
Dynegy Midwest Generation, Inc ., Kincaid
Generation, LLC and Midwest Generation, LLC v
. PCB and IEPA, No . 2006-CH-213,
Sangamon County Circuit Court
. Of course, the Board could also eliminate the
possibility of a last minute interlocutory appeal simply by withholding its decision on the
Motion To Dismiss until it issues its final Opinion and Order in this matter, meaning all
issues would be addressed in the same proceeding if an appeal is filed
.
Conclusion
For the reasons described in this Reply, the Environmental Advocates respectfully
request the Board to deny the Motion to Dismiss on the basis that it was not filed in a
timely manner .
Respectfully Submitted,
Environment Illinois
By
Keith Harley
Chicago Legal Clinic, Inc .
205 W
. Monroe, 4th Floor
Chicago, IL 60606
(312) 726-2938
kharley@kentlaw
.edu
Environmental Law and Policy Center
By
Faith Bugel
Environmental Law and Policy Center
35 E
. Wacker Drive, Suite 1300
Chicago, IL 60601
(312) 795-3768
fbugela~,elpe.org
CERTIFICATE OF SERVICE
[,Keith Harley, an attorney, hereby certify that true copies of the foregoing Appear an cc
were delivered on December 13, 2006 to the following :
Dorothy Gum, Clerk
Illinois Pollution Control Board
James R . Thompson Center
Suite 11-500
100 West Randolph
Chicago, IL 60601
and that true copies of the foregoing Appearance were mailed by First Class Mail, by
depositing the same in the U .S . Mail depository located at 227
West Monroe, Chicago,
Illinois in an envelope with sufficient postage prepaid, on December 13, 2006,
to the
following :
John C
. Knittle, Esq .
Hearing Officer
Illinois Pollution Control Board
2125 South First Street
Champaign, IL 61820
John J . Kim and Rachel L
. Doctors, Esq .
Air Regulatory Unit, Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P .O . Box 19276'
Springfield, IL 62794-9276
Sheldon A . Zabel, Kathleen C . Bassi,
Stephen J . Bonebrake
Schiff Hardin LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, IL 60606
James T . Harrington, David Reiser and Jeremy R
. Hojnicki
McGuire Woods LLP
77 West Wacker Drive, Suite 4100
Chicago, IL 60601
Steven J . Murawski, Sasha M
. Reyes
Baker & McKenzie
One Prudential Plaza, Suite 3500
130 East Randolph Drive
Chicago, IL 60601
Matthew Dunn, Division Chief
Division of Environmental Enforcement
Office of the Attorney General
188 West Randolph Street
20th Floor
Chicago, IL 60601
William A . Murray
Regulatory Affairs Manager
City of Springfield Office of Public Utilities
800 East Monroe, 4th Floor
Springfield, IL 62757
N
. LaDonna Driver and Katherine D . Hodge
Hodge, Dwyer & Zeman
3150 Roland Ave .,
P.O . Box 5776
Springfield, IL 62705-5776
S
. David Farris
Manager, Environmental, Health and Safety
Office of Public Utilities -
City of Springfield
201 East Lake Shore Drive
Springfield, IL 62757
Virginia Yang
Illinois Department of Natural Resources
One Natural Resources Way
Springfield, IL 62702-1271
Bill S
. Forcade and Katherine M . Rahill
Jenner & Block, LLP
One IBM Plaza
Chicago, IL 60611
Daniel D . McDevitt
General Counsel
Midwest Generation, LLC
440 S . LaSalle St ., Suite 3500
Chicago, IL 60605
James H . Russell
W inston & Strawn, LLP
35 W
. Wacker Drive, 40th Fl .
Chicago, IL 60601
Keith Harley
,
Chicago Legal Clinic, Inc
.
205 W
. Monfoe, 4`h Floor
Chicago IL 60606
(312) 726-2938
(312) 726-5206 (fax)
kharley@kentlaw
.edu
