Message-ID: <4119818.1075861737107.JavaMail.evans@thyme> Date: Thu, 8 Nov 2001 09:33:04 -0800 (PST) From: barshk@gtlaw.com To: kay.mann@enron.com, ben.jacoby@enron.com Subject: RE: DEP Air Permits-Conversation w/ Martha Nebelsiek re Consolidation & Related Matters Cc: reetzr@gtlaw.com Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Bcc: reetzr@gtlaw.com X-From: BarshK@gtlaw.com X-To: Mann, Kay , BarshK@gtlaw.com, Krimsky, Steven , Jacoby, Ben X-cc: ReetzR@gtlaw.com X-bcc: X-Folder: \KMANN (Non-Privileged)\Mann, Kay\Inbox X-Origin: Mann-K X-FileName: KMANN (Non-Privileged).pst Kay, I agree with your comments on the selection of the ALJ. The following is our response to your two questions : Ryan and I believe that we can set forth a number of differences between the two cases such as the site -specific air quality impact analysis required under the applicable regulations; the differences in parties to the proceedings; the different impacts to the various petitioning local governments depending upon their distance from the facility in question; the different phases of discovery that the cases are presently in, and the like. Nevertheless, the foregoing may not be sufficient grounds to preclude the consolidation based upon a minimal delay in the proceedings, as we understand that DEP is proposing. More importantly, we previously expressed our concern with the company's current position in the Deerfield proceeding relative to the proposed Nox limitation of 36 ppm. Because DEP has not been persuaded to date to increase the permit limitation to 42 ppm and because Enron did not legally oppose such a condition in the Deerfield permit, then Enron's ability to raise such an objection at this point appears to be impaired. (There may be an argument that Enron noted its objection within the permit comment period, which terminated after the deadline for filing any legal objection, and therefore Enron noted its objection on the record and no one is prejudiced by asserting its objection within the pending proceeding at this stage, since discovery has only just been initiated). In light of these circumstances, we could advise DEP that Enron's position is that it does not object to the consolidation as long as the trial date is in January 2002 and as long as the parties recognize that Enron will challenge the proposed Nox limitation of 36 ppm under backup fuel use conditions with respect to both permits in a consolidated proceeding. Please advise me of your thoughts. --Kerri -----Original Message----- From: Mann, Kay [mailto:Kay.Mann@ENRON.com] Sent: Thursday, November 08, 2001 8:48 AM To: BarshK@gtlaw.com; Krimsky, Steven; Jacoby, Ben; ReetzR@gtlaw.com Cc: ReetzR@gtlaw.com Subject: RE: DEP Air Permits-Conversation w/ Martha Nebelsiek re Consolidation & Related Matters Thanks for the clear report. On the issue of the judge, I suggest we opt for whoever you think will be most favorable, assuming we can get a hearing in January. On the consolidation, what would we use as a basis for the objection? If we don't have a decent basis I don't think we should object. On a related issue, assuming we are going forward with the fuel oil option on Deerfield, how are we going to put the 36 vs 42 issue in play? Thanks, Kay -----Original Message----- From: BarshK@gtlaw.com Sent: Wed 11/7/2001 7:28 PM To: Mann, Kay; Krimsky, Steven; Jacoby, Ben; ReetzR@gtlaw.com Cc: ReetzR@gtlaw.com Subject: DEP Air Permits-Conversation w/ Martha Nebelsiek re Consolidation & Related Matters Kay, Steve, Ben and Ryan, I spoke with Martha today on the subject referred to above and she advised me of the following : 1. DEP is not contemplating a single, consolidated permit but an air permit for each of the Pompano Beach and Deerfield Beach facilities. 2. The petitioning local governments have no objection to the consolidation proposed by DEP (no surprises there). 3. Martha wants our input as to which ALJ we would prefer to hear the case should DEP's request for consolidation be granted. ( The upside to suggesting Judge Alexander is that we know that he have already reserved his time for a 4-day hearing in January. Otherwise, we might choose Judge Stampelos based upon the prior comments that we have received from our Tallahassee attorneys, although both Judges were considered to be good.). 4. Martha indicated previously that she is looking for a hearing in January, depending upon which ALJ hears the case and his particular schedule. 5. Martha advised me that she will file her request for consolidation late tomorrow afternoon. I told her, as we discussed in our conference call, that if she does not hear from me to the contrary, then we oppose the consolidation at this time. 6. Martha agreed to provide us with the permit language that DEP is proposing in connection with its Notice of Change of Agency Position on the Pompano Beach proceeding as soon as Al Linero completes the drafting and she reviews the proposed permit conditions with him. Martha expects to provide us with the proposed permit language next Monday or Tuesday. 7. The petitioning local governments have served DEP with discovery. I have yet to receive a copy of the discovery but Martha intends to meet with Al Linero this Friday to discuss DEP's response. Based upon the foregoing, please advise me if you want me to convey any further message to Martha prior to her filing of the motion for consolidation tomorrow afternoon. Specifically, I am interested in your thoughts on our preference on the Judge that will hear the proceeding, if consolidated, and whether we have any objection to DEP's filing the motion for consolidation in which she will note our objection. As we discussed in our conference call, we can assert our position more fully in a subsequent response to the motion for consolidation and can withdraw our objection if we change our mind. Thanks ! Kerri _______________________________________________________________ The information contained in this transmission may contain privileged and confidential information. It is intended only for the use of the person(s) named above. 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