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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

WATER QUALITY STANDARDS AND

EFFLUENT LIMITATIONS FOR THE

CHICAGO AREA WATERWAY SYSTEM

AND LOWER DES PLAINES RIVER

PROPOSED AMENDMENTS TO 35 ILL.

ADM. CODE 301, 302, 303, and 304

John Therriault, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, IL 60601

Deborah J. Williams, Assistant Counsel

Stefanie N. Diers, Assistant Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, IL 62794-9276

Marie Tipsord, Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, IL 60601

Persons included on the attached

SERVICE LIST

PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of

the Pollution Control Board MIDWEST GENERATION'S MOTION FOR EXTENSION OF

TIME TO FILE PRE-FILED TESTIMONY OF GREG SEEGERT AND

DR.

ALLEN

BURTON, a copy of which is herewith served upon you.

Electronic Filing - Received, Clerk's Office, July 25, 2008

MIDWEST GENERATION, L.L.C.

Date: July 25, 2008

Susan M. Franzetti

Nijman Franzetti LLP

10 S. LaSalle St., Suite 3600

Chicago, IL 60603

(312) 251-5590 (phone)

(312) 251- 4610 (fax)

Kristy A. N. Bulleit

Brent Fewell

Hunton & Williams, LLP

1900 K. Street, NW

Washington, DC 20006

(202) 855-1500 (phone)

(202) 778-7411 (fax)

Electronic Filing - Received, Clerk's Office, July 25, 2008

CERTIFICATE OF SERVICE

I, the undersigned, certify that on this 25

day of July, 2008, I have served electronically

the attached MIDWEST GENERATION'S MOTION FOR EXTENSION OF TIME TO FILE

PRE-FILED TESTIMONY OF GREG SEEGERT AND DR. ALLEN BURTON, and NOTICE

OF FILING upon the following person:

John Therriault, Clerk

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, IL 60601

and by U.S. Mail, first class postage prepaid, to the following persons:

Marie Tipsord, Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, IL 60601

The participants listed on the attached

SERVICE LIST

Deborah J. Williams, Assistant Counsel

Stefanie N. Diers, Assistant Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, IL 62794-9276

. Franzetti

Electronic Filing - Received, Clerk's Office, July 25, 2008

SERVICE LIST

Frederick M. Feldman

Ronald M. Hill

Margaret T. Conway

Metropolitan Water Reclamation District

of Greater Chicago

111 East Erie Street

Chicago, IL 60611

Bill Richardson, Chief Legal Counsel

Illinois Department of Natural Resources

One Natural Resources Way

Springfield, IL 62702-1271

Keith Harley

Elizabeth Schenkier

Chicago Legal Clinic, Inc.

205 West Monroe, 4th Floor

Springfield, IL 62705-5776

Dennis Duffield

Director of Public Works & Utilities

Brown Hay& Stephens LLP

700 First Mercantile Bank Bldg

205 S. Fifth St

Springfield, IL 62705-2459

Frederick Keady

Vermillion Coal Company

1979 Jolms Drive

Matthew Dunn, Chief

Environmental Bureau

Office of the Attorney General

100 West Randolph, 12th Floor

Chicago, IL 60601

Ann Alexander

Natural Resources Defense Counsel

101 N. Wacker Dr., Ste. 609

71 South Wacker Drive

Chicago, Illinois 60606-4637

Albert Ettinger

Jessica Dexter

Environmental Law & Policy Center

35 E. Wacker Dr., Suite 1300

191 N. Wacker Dr., Suite 3700

Chicago, IL 60606-1698

Chicago, IL 60601-7567

Fred L. Hubbard

P.O. Box 12

16 West Madison

Electronic Filing - Received, Clerk's Office, July 25, 2008

Glenview, IL 60025

Georgia Vlahos

Naval Training Center

2601A Paul Jones St

Great Lakes, IL 60088-2845

W.C. Blanton

Blackwell Sanders LLP

4801 Main St, Suite 1000

Kansas City, MO 64112

Danville, IL 61834

Kay Anderson

American Bottoms

One American Bottoms Road

Geneva, IL 60134-2203

Jerry Paulsen

Cindy Skukrud

' McHenry County Defenders

Metropolitan Water Reclamation District

6001 W. Pershing Rd

Cicero, IL 60650-4112

Bloomington Normal Water Reclamation

PO Box 3307

Bloomington, IL 61702-3307

Kenneth W. Liss

Andrews Environmental Engineering

3300 Ginger Creek Drive

Springfield, IL 62711

Marc Miller

Jamie S. Caston

Office of Lt. Governor Pat Quinn

Room 414 State House

Springfield, IL 62706

Lisa Frede

Chemical Industry Council of Illinois

1400 E. Touhy Ave., Suite 110

Des Plaines, IL 60018

Chicago, IL 60601-7447

Tom Muth

Fox Metro Water Reclamation District

682 State Route 31

Oswego, IL 60543

Vicky McKinley

Evanston Environmental Board

223 Grey Avenue

Evanston, IL 60202

Electronic Filing - Received, Clerk's Office, July 25, 2008

James L. Daugherty

Thorn Creek Basin Sanitary District

700 West End Avenue

Chicago Heights, IL 60411

Tracy Elzemeyer

American Water Company

727 Craig Road

St. Louis, MO 63141

Irwin Polls

Ecological Monitoring and Assessment

3206 Maple Leaf Drive

Glenview, IL 60025

Jeffrey C. Fort

Ariel J. Tesher

Sonnenschein Nath & Rosenthal LLP

7800 Sears Tower

233 S. Wacker Drive

Chicago, IL 60606-6404

Mayor's Office of Intergovernmental Affairs

121 North LaSalle Street, Room 406

125 South Clark Street

Chicago, IL 60603

James Huff

Huff & Huff, Inc.

915 Harger Road, Suite 330

Oak Brook, IL 60523

Beth Steinhorn

2021 Timberbrook

Springfield, IL 62702

Traci Barkley

Prairie Rivers Networks

1902 Fox Drive, Suite 6

Champaign, IL 61820

Susan Hedman

Andrew Armstrong

Environmental Counsel

Environmental Bureau

Suite 1800

69 West Washington Street

Chicago, IL 60602

Electronic Filing - Received, Clerk's Office, July 25, 2008

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

WATER QUALITY STANDARDS AND

EFFLUENT LIMITATIONS FOR THE

CHICAGO AREA WATERWAY SYSTEM

AND THE LOWER DES PLAINES RIVER:

PROPOSED AMENDMENTS TO 35 Ill.

Adm. Code Parts 301, 302, 303 and 304

R08-9

(Rulemaking - Water)

MIDWEST GENERATION'S MOTION FOR EXTENSION OF TIME TO FILE PRE-

FILED TESTIMONY OF GREG SEEGERT AND DR. ALLEN BURTON

Pursuant to 35 Ill. Adm. Code 101.522, Midwest Generation, L.L.C. ("Midwest

Generation" or "MWGen"), respectfully submits this Motion for Extension of Time to File Pre-

Filed Testimony of Mr. Greg Seegert and Dr. Allen Burton. In support of this motion, Midwest

Generation states as follows:

I. Pre-Filing

Deadlines.

On April 23, 2008, during a pre-hearing conference with the Hearing Officer, prior to the

start of hearing that same day, discussions were had regarding possible dates for pre-filing

deadlines and the deadline was tentatively set for August 4, 2008. During the pre-hearing

conference, counsel for Midwest Generation expressed concern regarding the company's ability

to meet the August 4 deadline, based on ongoing efforts by MWGen to collect additional field

data and sampling in the Des Plaines River to address issues raised by the testimony and exhibits

filed by the Illinois Environmental Protection Agency ("IEPA") in support of this rule-making

proposal.

Electronic Filing - Received, Clerk's Office, July 25, 2008

Since the April 23 pre-hearing conference, Midwest Generation has moved diligently to

try to complete these additional data-gathering activities. However, some of the field work was

dependent upon seasonal conditions and could be conducted no sooner than field conditions

allowed. Midwest Generation has now determined that the August 4, 2008 deadline for pre-filed

testimony does not provide sufficient time to physically collect and analyze the data and to

finalize witness reports and pre-filed testimony. The Hearing Officer during the April 23 pre-

hearing conference acknowledged MWGen's concern and stated that, if additional time was

needed, a request for an extension of time should be sought describing the need for the additional

time and the amount of additional time being requested.

The Hearing Officer issued orders on May 2 and May 19, giving notice of a pre-filing

deadline "tentatively set" for August 4, 2008. Both Orders mention the fact that pre-filing

deadlines were discussed the morning of April 23 and reflect the concern expressed by Midwest

Generation of meeting the August 4 deadline. To accommodate these concerns, the Hearing

Officer, in the May 19 Order, directed that, in the event more time was needed, a motion be filed

with the Hearing Officer prior to the filing deadlines, explaining why and how long an extension

would be sought. Pursuant to the May 19 Order, MWGen respectfully requests an extension of

time to September 8, 2008 to file certain of its pre-filed witness testimony for the reasons set

forth below. MWGen's request for this extension is limited in both time and scope. The

extension is only being sought with respect to the pre-filed testimony of two of the witnesses to

be presented on behalf of MWGen, Dr. Allen Burton and Mr. Greg Seegert. Additional time is

needed to validate and analyze new, recently collected sediment and QHEI data for the Upper

Dresden Pool and to fmal the pre-filed testimony of these two witnesses whose testimony will

Electronic Filing - Received, Clerk's Office, July 25, 2008

address issues related to sediment and habitat conditions in the Upper Dresden Pool. MWGen is

not seeking an extension of time to file pre-filed testimony of any other witnesses.

II. MWGen-Sponsored

Sediment Sampling Study For Upper Dresden Pool.

During the IEPA hearing testimony, IEPA witnesses explained that because adequate

sediment data was lacking, it did not consider whether the presence of contaminated sediments

affected the process of identifying the attainable use for the Upper Dresden Pool, as well as other

parts of the UAA.

See Januar}, 28 Hearing Transcript at p. 98; March 10 Hearing Transcript at

pp. 9, 23, and 92-93; and February 1 Hearing Transcript at p. 182.

IEPA also speculated that, if

anything, sediment quality may have improved due to reduced instances of CSO's and improved

effluent quality and steps taken to reduce non-point source pollution.

See January 28 Hearing

Transcript at pp. 161-162.

MWGen believes that sediment quality is an important and relevant

factor to be considered regarding the identification of the appropriate aquatic life attainable use

for the Upper Dresden Island Pool (UDP). While sediment data is available concerning the

subject waterway from other sources, MWGen's review of available data noted that recent

sediment quality data was not available for the UDP to show that the results of extensive

sediment sampling in the 1990's which documented significant contaminated sediments are still

representative of sediment conditions today. To that end, earlier this year, MWGen retained the

services of EA Engineering to perform a sediment study in the UDP. The scope of the study was

developed and 35 sampling sites in the UDP were identified to be included in the field work.

During the period of May 5-9, 2008, sediment samples were collected from the 35 sampling sites

included in the study's scope of work. These samples were sent for analysis and the data

package was received in early July. Quality assurance/quality control review of the laboratory

Electronic Filing - Received, Clerk's Office, July 25, 2008

analytical results is now being completed (expected to be completed week of July 21) to confirm

the reliability of the results. A review of the data and the preparation of a summary report to

present the results to the IPCB still need to be completed. Further, the data report also needs to

be reviewed by MWGen's expert witness, Dr. Allen Burton, and as appropriate, incorporated into

his pre-filed testimony which will address the issue of sediments in the UDP. Dr. Burton will be

out of the country for a previously scheduled trip abroad during the period of July 24 to August

8. As the data report will not be completed prior to Dr. Burton's departure, a few additional

weeks of time upon his return is needed to allow Dr. Burton to review the results and to

incorporate them into his pre-filed testimony.

HI. MWGen-Sponsored QHEI Study Of The Upper Dresden Island Pool.

The IEPA has testified that it relied on a weight of evidence approach that was weighted

towards habitat conditions, to determine the appropriate use designation for the UAA waterways.

See, e.g, April 24 Hearing Transcript at pp. 12-13.

As part of its filings and testimony before the

IPCB, the IEPA has cited to and relied upon QHEI data collected and presented by the Midwest

Biodiversity Institute (MBI) in 2006 for three sampling sites in the UDP.

See Attachment S:

Aquatic Life and Habitat Data Collected in 2006 on the Illinois and Des Plaines Rivers. Midwest

Biodiversity Institute, prepared for U.S. EPA Region 5 (2006) to IEPA's Statement of Reasons;

see also January 31 Hearing Transcript at pp. 246-249.

This data had not been disclosed by the

IEPA prior to this rule-making because it was received just months before the Agency filed its

Petition with the Board.

Id.

MWGen submits that this QHEI data is not sufficiently complete

nor statistically representative of habitat conditions in the UDP. Nevertheless, these three

samples are being relied upon by the IEPA to support its proposed Aquatic Life Use designation

Electronic Filing - Received, Clerk's Office, July 25, 2008

for the UDP. As indicated by its questioning of the IEPA witness, Mr. Christopher Yoder, who

was in charge of the 2006 MBI QHEI data collection, MWGen questions the representativeness

and accuracy of certain of the data included in the 2006 MBI QHEI data and believes that such

data need to be evaluated through further field survey work.

The IEPA also has presented data collected previously in the UDP at two locations by

Mr. Edward Rankin of the Center for Applied Bioassessment and Biocriiteria ("CABB") in

2004, which data generally showed lower QHEI values than the 2006 MBI QHEI data.

See

Attachment R: Analysis of Physical Habitat Quality and Limitations to Waterways in the

Chicago Area. Center for Applied Bioassessment and Biocriiteria, prepared for US. EPA

Region 5 (2004) to the IEPA 's Statement of Reasons.

However, because this prior QHEI data

was collected in the month of March, it has been noted in IEPA witness testimony that it was

collected outside of the standard mid-June to mid-October seasonal index period for conducting

QHEI field survey work. The mid-June to mid-October time period is when normal summer

flow conditions and certain habitat features, which are measured by the QHEI procedures, are

expected to be present. For example, habitat conditions constituting "cover" (e.g., overhanging

vegetation and rooted aquatic macrophytes) within the meaning of the QHEI scoring approach

do not reach their optimal seasonal condition until the summer months.

See February 1 Hearing

Transcript at pp. 142-3.

To address both the lack of recent, comprehensive QHEI data for the UDP, and any

issues raised with regard to the timing of the March 2004 CABB QHEI field work, MWGen

subsequently authorized EA Engineering to develop a comprehensive QHEI scope of work to be

performed in the UDP during the accepted mid-June to mid-October seasonal index period to

avoid any potential issue that the QHEI work was performed when habitat conditions would

Electronic Filing - Received, Clerk's Office, July 25, 2008

perhaps bias the QHEI scores. EA developed a study scope that included 50 stream survey •

locations in the UDP. EA conducted the 50-sites QHEI stream survey work on July 10 and 11,

2008, which was the earliest scheduled time that would ensure the presence of acceptable habitat

conditions, such as cover, to be included in the survey work. This July 2008 QHEI field data is

currently under QA/QC review. Upon completion of the QA/QC review, a report will be

prepared to present the QHEI survey results in this proceeding. As a final step, MWGen's expert

Greg Seegert of EA will need to review the QHEI report to incorporate this information as

appropriate into his pre-filed testimony. Each QHEI field data sheet contains over 100 boxes

that can be checked and scored. Therefore, after the EA data have been verified, Mr. Seegert

will need time to compare the scores EA calculated with the scores MBI and CABB developed

for each category and subcategory to determine the case of any differences.

IV. Recently Filed Additional Sediment Data Reports And Additional Information

Requested For Exhibits 40 through 43 by IEPA.

On June 30, 2008, the IEPA filed, in relevant part,

additional "30 different reports

which address sediment data" and other information.

See Requests Made to the Illinois EPA at

the Hearings Held April 23 rd and 24th, 2008, dated June 27, 2008.

MWGen counsel received

this information

via

U.S. mail on or about July 15, 2008. This recently received information is

being reviewed to determine the extent of its relevance to the preparation of the witness

testimony of Messrs. Burton and Seegert that MWGen intends to present to the Board.

However, the receipt of this data less than four weeks prior to the August 4, 2008 filing deadline

does not allow sufficient time to complete our review and to determine whether and to what

extent this new data is relevant to and should be incorporated into the witness testimony of

Messrs. Burton and Seegert to be filed on behalf of MWGen. The requested extension to

Electronic Filing - Received, Clerk's Office, July 25, 2008

September 8, 2008 will allow sufficient time to complete this additional and potentially

important review of the 30 additional sediment reports produced by the Agency in July 2008.

WHEREFORE, for the forgoing reasons, Midwest Generation respectfully requests that

the Board grant an extension to September 8, 2008 for the filing of the pre-filed testimony of

Messrs. Allen Burton and Greg Seegert.

Respectfully submitted,

MIDWEST GENERATION, L.L.C.

10 S. LaSalle St., Suite 3600

Chicago, IL 60603

(312) 251-5590 (phone)

(312) 251- 4610 (fax)

Kristy A. N. Bulleit

Brent Fewell

Hunton & Williams, LLP

1900 K. Street, NW

Washington, DC 20006

(202) 855-1500 (phone)

(202) 778-7411 (fax)

By:

Electronic Filing - Received, Clerk's Office, July 25, 2008