BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
PETITION OF MIDWEST GENERATION, LLC,
)
WAUKEGAN GENERATING STATION
)
FOR AN ADJUSTED STANDARD FROM
)
35
ILL.ADM.CODE 225.230.
)
NOTICE OF FILING
To:
AS 07-03
(Adjusted Standard - Air)
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
James
R. Thompson Center
Suite 11-500
100 West Randolph
Chicago, Illinois 60601
Persons included on the
ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that we have today electronically filed with the Office of the
Clerk
of the Pollution Control Board RESPONSE TO THE ENVIRONMENTAL LAW
&
POLICY CENTER'S RENEWED MOTION TO INTERVENE, copies of which are
herewith electronically served upon you.
-~
K~ee~Bassi
Dated: March 6, 2008
Kathleen
C. Bassi
Stephen
1. Bonebrake
Sheldon
A. Zabel
SCHIFF HARDIN, LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
312-258-5500
Electronic Filing - Received, Clerk's Office, March 6, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
PETITION OF MIDWEST GENERATION, LLC,
)
WAUKEGAN GENERATING STATION
)
FOR AN ADJUSTED STANDARD FROM
)
35
ILL.ADM.CODE 225.230.
)
AS 07-03
(Adjusted Standard - Air)
RESPONSE TO THE ENVIRONMENTAL LAW
&
POLICY CENTER'S
RENEWED MOTION TO INTERVENE
NOW COMES Petitioner, MIDWEST GENERATION, LLC, WAUKEGAN
GENERATING STATION, by and through its attorneys, SCHIFF HARDIN LLP, and, pursuant
to
35 Ill.Adm.Code § 101.500(d), requests that the Board deny the Environmental Law & Policy
Center's (hereinafter, "ELPC") "Renewed Motion to Intervene." In support
of its request,
Petitioner states as follows:
1.
On January 10, 2007, Petitioner filed a Petition for Adjusted Standard from the
requirements
of 35 Ill.Adm.Code Part 225, Subpart B.
2.
On December 6, 2007, ELPC filed a Motion to Intervene.
3.
Petitioner first became aware of ELPC's motion through attendance at the regular
Board meeting held on December 20,2007. Subsequent investigation, which included phone
calls to Faith Bugel, the attorney at ELPC who signed the Motion to Intervene, and talks with the
other counsel
of record at Schiff Hardin, revealed that Schiff Hardin had not been served with
ELPC's Motion to Intervene.
4.
On January 3,2008, Mr. Stephen J. Bonebrake, one of the counsel of record at
Schiff Hardin, sent a letter to Ms. Bugel stating that SchiffHardin had not been served and that
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Electronic Filing - Received, Clerk's Office, March 6, 2008
according to the Board'srules, the time for response does not begin until service has been
completed. That letter has since been added to the Board'swebsite docket for this matter.
5.
On January 14, 2008, Petitioner filed a Motion to Strike ELPC's Motion to
Intervene for failure to properly serve counsel
of record as required by 35 Ill.Adm.Code §§
104.100(b), 104.400(b), and 101.304, and 101.402(a).
6.
On January 23, 2008, ELPC filed a Motion to Withdraw and Refile Motion to
Intervene, in Response to Petitioner'sMotion to Strike and a Renewed Motion to Intervene.
7.
Petitioner replied on February 7, 2008, requesting that the Board first address
Petitioner's outstanding Motion to Strike.
8.
On February 11, 2008, the Illinois Environmental Protection Agency (hereinafter,
the "Agency") filed its response, opposing
ELPC's Motion to Intervene (hereinafter, "Agency
Response").
9.
On February 21,2008, the Board granted ELPC's Motion to Withdraw its Motion
to Intervene and denied Petitioner'sMotion to Strike. The Board granted Petitioner'sMotion to
File a Reply and directed it to be filed by March
6.
10.
Petitioner joins the Agency in opposing ELPC's Renewed Motion to Intervene.
Specifically, Petitioner agrees with paragraphs 6 through
17 of the Agency Response.
11.
ELPC does not cite to any authority in support of its petition for intervenor status;
however, the Board'sprocedural rules provide the Board with discretion to grant intervenor
status to a non-party when one
of the criteria set forth in 35 Ill. Adm. Code § 101.402(d) is met.
12.
Section 101.402(d) provides:
Subject to subsection (b)
of this Section, the Board may permit any person to
intervene in any adjudicatory proceeding if:
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Electronic Filing - Received, Clerk's Office, March 6, 2008
1)
The person has a conditional statutory right to intervene in the
proceeding;
2)
The person may be materially prejudiced absent intervention; or
3)
The person is so situated that the person may be adversely affected by a
final Board order.
13.
ELPC has not met any of the requirements of Section 101.402(d).
14.
First, ELPC has not cited a statutory right to intervene and, as the Agency points
out, there is no statutory right to intervene applicable in this matter.
See
Agency Response, par.
8.
15.
Second, ELPC has not demonstrated that it will be materially prejudiced absent
intervention.
35 Ill. Adm. Code § 101.402(d)(2). The Board has rarely found that a non-party
would be materially prejudiced absent intervention. According to a review
of the Board'sprior
cases,
of the 11 motions to intervene that have been before the Board since 2001, there are only
two instances where the Board found that a non-party may be materially prejudiced absent
intervention and granted the motion to intervene. See
Saline County Landfill, Inc.
v.
IEPA,
PCB-
02-108 (April 18, 2002), (finding that the
citizens of the County may be materially prejudiced absent
intervention in the land permit appeal since the Agency relied on the County Board's 2001 resolution in
denying the permit) and
Saline County Landfill
v.
IEPA,
PCB-04-117 (Feb. 19,2004) (finding Saline
County may be materially prejudiced
if not permitted to intervene because the issue underlying the appeal
was whether the County had granted siting to the area that was the subject
of the permit application in
dispute).
16.
More often, the Board has found that a non-party would not be materially
prejudiced absent intervention.
See, e.g., Illinois
v.
Alloy Engineering and Casting Company,
PCB 01-155 (Sept. 6,2001) (denying motion for leave to intervene by 45 movants who reside, or
did reside, near respondent's facility, finding that movants will not be materially prejudiced
if
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Electronic Filing - Received, Clerk's Office, March 6, 2008
not allowed to intervene because "the attorney general will adequately represent the concerns of
all of the People of the State of Illinois in this matter" at p. 3); 2222
Elston LLC
v.
Purex
Industries, Inc.,
PCB 03-55 (Jan. 23,2003) (denying the City'smotion for leave to intervene,
finding the City had not provided sufficient facts to show that it may be materially prejudiced
and finding the City's assertion that the Board could find a separate complaint by the City
duplicative and unpersuasive).
See also Midwest Generation EME,
LLC
v.
IEPA,
PCB 04-185
(Nov. 4,2004);
Commonwealth Edison Company
v.
IEPA,
PCB 04-215 (Aug. 18,2005); and
Midwest Generation EME, LLC
v.
IEPA,
PCB 04-216 (Aug. 18,2005) (all denying Sierra Club's
motions to intervene in a trade secret appeal because
Sierra Club did not establish that it may be
materially prejudiced absent intervention and did not articulate how its interests will not be adequately
represented by IEPA).
17.
Like the non-parties whose motions to intervene were denied, ELPC has not
established that the Agency does not adequately represent its interests nor that the ways it can
participate in this proceeding without intervening are insufficient. As the Agency pointed out,
ELPC has several other avenues for participation as a non-party to the adjusted standard
including filing comments and providing oral comments and questioning witnesses at a hearing.
See
Agency Response, par.
9.
18.
Third, ELPC has not demonstrated that it would be adversely affected by the final
Board order.
35 Ill. Adm. Code § 101.402(d)(3). In at least one instance, the Board was critical
of a non-party's claim that it would be adversely affected by the Board'sfinal order.
See Stuart
v.
Fisher,
PCB 02-164 (Jan. 23, 2003) (denying the County'smotion to intervene, finding the
possibility that the Board'sorder could conflict with Will County'snoise ordinance was not a
convincing argument that County would be adversely affected by the Board'sdecision; permitted
County to file
amicus curiae
briefinstead).
- 4-
Electronic Filing - Received, Clerk's Office, March 6, 2008
19.
Here, ELPC has asserted even more generally that "ELPC and its members will
be directly and materially affected by the outcome
of this proceeding." Renewed Motion to
Intervene, par.
3. While Midwest Generation, as a permit holder, holds an obvious and direct
interest in the outcome
of its adjusted standard petition, ELPC has asserted no fact suggesting if
or how it will be affected by the outcome of this proceeding.
20.
Finally, ELPC asserts that its interest and prior involvement in the CAIR (R06-
25) and Mercury (R06-26) Rulemakings entitle it to non-party intervenor status. However, there
is nothing in Section 101.1 04(d) to indicate that interest or prior rulemaking involvement entitle
one to non-party intervenor status.
21.
Even
if the Board were to find discretionary intervention is permissible in this
matter, the Board must consider "whether intervention will unduly delay or materially prejudice
the proceeding or otherwise interfere with an orderly or efficient proceeding." 35 Ill. Adm. Code
§
101A02(b). As the Agency stated "the rationale that ELPC and its members will be affected
by the rulemaking given the scope and content
of the Illinois mercury rule is an argument that
could be made by literally thousands and thousands
of people." Agency Response, par. 12.
Allowing ELPC to intervene on the basis of its participation in the rulemaking could open the
floodgates to all those who participated and would thereby threaten the efficiency
of this
proceeding.
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Electronic Filing - Received, Clerk's Office, March 6, 2008
WHEREFORE, for the reasons set forth above, Petitioner Midwest Generation, LLC,
Waukegan Generating Station, requests that the Board deny ELPC's Renewed Motion to
Intervene.
Respectfully submitted,
MIDWEST GENERATION, LLC,
WAUKEGAN GENERATING STATION
by:
Wu!l~~'dNIoL--·
~ItS
Attorneys
__
Dated: March 6, 2008
Sheldon A. Zabel
Kathleen C. Bassi
Stephen
1.
Bonebrake
SCHIFF HARDIN, LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
312-258-5500
Fax: 312-258-5600
- 6-
Electronic Filing - Received, Clerk's Office, March 6, 2008
CERTIFICATE OF SERVICE
I, the undersigned, certify that on this 6
th
day of March, 2008, I have served electronically
the attached
RESPONSE TO THE ENVIRONMENTAL LAW & POLICY CENTER'S
RENEWED MOTION TO INTERVENE,
upon the following persons:
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
James
R. Thompson Center
Suite 11-500
100 West Randolph
Chicago, Illinois 60601
and electronically and by first class mail, postage affixed, to the persons listed
on the
ATTACHED SERVICE LIST.
----.~-
Kathleen C. Bassi
Kathleen
C. Bassi
Stephen
J. Bonebrake
Sheldon A. Zabel
SCHIFF HARDIN, LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
312-258-5500
Electronic Filing - Received, Clerk's Office, March 6, 2008
SERVICE LIST
(AS 07-03)
Rachel L. Doctors
Assistant Counsel
Air Regulatory Unit
Division
of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
rachel.doctors@illinois.gov
Faith
E. Bugel
Environmental Law & Policy Center
35 East Wacker Drive, Suite 1300
Chicago, Illinois 60601
fbugel@elpc.org
Courtesy copy to Meleah Geertsma at ELPC
CH2\1615591.7
Mr. Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street, Suite 11-500
Chicago, Illinois 60601
hallorab@ipcb.state.il.us
Electronic Filing - Received, Clerk's Office, March 6, 2008
