SERVICE LIST

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

)

PETITION OF MIDWEST GENERATION, LLC,

)

WAUKEGAN GENERATING STATION

)

FOR AN ADJUSTED STANDARD FROM

)

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 MOTION TO STRIKE ENVIRONMENTAL LAW &

POLICY CENTER'SMOTION TO INTERVENE and AFFIDAVITS of STEPHEN J.

BONEBRAKE and KATHLEEN C. BASSI, copies of which are herewith electronically served

upon you.

-~~.

Kathleenc~

Dated: January 14, 2008

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, January 14, 2008

CERTIFICATE OF SERVICE

I, the undersigned, certify that on this 14

day of January, 2008, I have served

electronically the attached

MOTION TO STRIKE ENVIRONMENTAL LAW & POLICY

CENTER'S MOTION TO INTERVENE

and

AFFIDAVITS of STEPHEN J.

BONEBRAKE

and

KATHLEEN C. BASSI,

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

Stephen

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, January 14, 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(cv,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\1615591.5

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, January 14, 2008

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

THE MATTER OF:

)

PETITION OF MIDWEST GENERATION, LLC,

)

WAUKEGAN GENERATING STATION

)

FOR AN ADJUSTED STANDARD FROM

)

ILL.ADM.CODE 225.230.

)

AS 07-03

(Adjusted

Standard - Air)

MOTION TO STRIKE

ENVIRONMENTAL LAW AND POLICY CENTER'S MOTION TO INTERVENE

NOW COMES Petitioner, MIDWEST GENERATION, LLC, WAUKEGAN

GENERATING STATION, by and through its attorneys, SCHIFF HARDIN LLP, and, pursuant

35 Ill.Adm.Code § 101.500, moves the Board to strike the Motion to Intervene filed with the

Board on December

6, 2007

(see

the Board'swebsite at http://www.ipcb.state.il.us/

Cool/Exten1al/CaseView2.asp?referer=coolsearch&case=13141), 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). In support

of its motion, Petitioner states as follows:

On December 20, 2007, Schiff Hardin first became aware that the Environmental

Law & Policy Center had filed a Motion to Intervene in this matter through attendance at the

regular Board meeting held on that date. A review

of the Board'swebsite revealed that this

Motion to Intervene had been filed with the Board on December

6, 2007.

Section 101.402(a) of the Board'srules specifically provides that "[i]fa person

seeks to intervene in an adjudicatory proceeding, the person must file a motion to do

so with the

Clerk and serve a copy on all parties

to the proceeding." (Emphasis added.)

Adjusted standards are adjudicatory proceedings under the Board'srules.

See 35

Ill.Adm.Code § 104.1 OO(a) ("This Part applies to adjudicatory proceedings before the Board that

-1-

Electronic Filing - Received, Clerk's Office, January 14, 2008

provide relief from environmental regulations....") and Part 104, Subpart D (Adjusted

Standards). Therefore, the provisions

of Section 101A02(a) apply in this case.

On December 21,2007, Stephen 1. Bonebrake, one of the counsel of record on

behalf of Midwest Generation, investigated whether either of the other two attorneys at Schiff

Hardin who are counsel of record in this matter had been served with the Environmental Law

Policy Center'sMotion to Intervene. His investigation indicated that those attorneys had not

received the Motion to Intervene. On that day, he placed two telephone calls to Faith E. Bugel,

the attorney at Environmental

Law & Policy Center who signed the Motion to Intervene,

regarding the motion. However, he was unable to reach her and left her voice mail messages

regarding the motion, including that it did not appear that any Schiff Hardin attorney had been

served with a copy

of the motion. Mr. Bonebrake also sent a letter to Ms. Bugel stating that

Schiff Hardin had not been served and that 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's

website for this matter and was acknowledged in the Board's agenda for its January 10,2008,

meeting.

On January 2, 2008, Mr. Bonebrake received a voice mail message from Meleah

Geertsma, an attorney at the Environmental Law

Policy Center, indicating that the

Environmental Law

Policy Center had "taken care of the service issue." On that same day,

Kathleen C. Bassi, counsel of record at Schiff Hardin on behalf of Midwest Generation, talked

with Ms. Geertsma on the telephone to confirm that the Environmental

Law & Policy Center had

taken action to serve Schiff Hardin with the Motion to Intervene; Ms. Geertsma provided such

confirmation.

-2-

Electronic Filing - Received, Clerk's Office, January 14, 2008

As of the date of this Motion to Strike, Schiff Hardin has not been served with the

Motion to Intervene. Ms. Bassi has diligently inquired

of the two other counsel of record at

Schiff Hardin, to-wit Mr. Bonebrake and Sheldon

A. Zabel, to learn whether either of them .was

served, and they were not. Environmental Law & Policy Center has not complied with its

obligation under Section

101.402(a) that it Serve the parties with its Motion to Intervene even

though it was notified

of those obligations and it has had more than adequate opportunity to

serve the motion following that notification. Nothing in the Board'srules provides that posting

on its website constitutes proper service.

WHEREFORE, for the reasons set forth above and because a reasonable period

of time

has passed since the Environmental Law

Policy Center was made aware of its failure to serve

counsel

of record for Midwest Generation, Petitioner Midwest Generation, LLC, Waukegan

Generating Station, moves the Board to strike Environmental Law

Policy Center's Motion to

Intervene, with prejudice.

Respectfully submitted,

MIDWEST GENERATION, LLC,

WAUKEGAN GENERATING STATION

by:

-~.

oneo~neys

Dated: January 14, 2000

-3-

Electronic Filing - Received, Clerk's Office, January 14, 2008

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

Fax: 312-258-5600

CH2\2274474.1

-4-

Electronic Filing - Received, Clerk's Office, January 14, 2008

STATE OF ILLINOIS

)

COUNTY OF COOK

)

AFFIDAVIT OF KATHLEEN C. BASSI

I, KATHLEEN C. BASSI, having first been duly sworn, upon my oath state as follows:

I am Of Counsel at Schiff Hardin LLP, where I am one of the counsel of record

for Midwest Generation, LLC, in the matter captioned "In the Matter of: Petition

of Midwest

Generation, LLC, Waukegan Generating Station for an Adjusted Standard from

35 Ill.Adm.Code

225.230," docketed at the Pollution Control Board

as AS07-03.

I drafted, read, and signed the Motion to Strike to which this Affidavit is

appended.

The facts regarding my actions and knowledge as set forth in the Motion to Strike

are true and correct.

FURTHER AFFIANT SAYETH NOT.

•

Kathleen C. Bassi

Subscribed and sworn to before me this

,,.,..,....

day of January, 2008.

Notary Public

CH2\2274660.1

OFFICIAL SEAL

JACQUELINE M. BERGEL

Notary Public - State

of Illinois

My Commission Expires Mar 07,2011

Electronic Filing - Received, Clerk's Office, January 14, 2008

STATE OF ILLINOIS

)

) SS

COUNTY OF COOK

)

AFFIDAVIT OF STEPHEN J. BONEBRAKE

I, STEPHEN 1. BONEBRAKE, having first been duly sworn, upon my oath state as

follows:

I am a partner at Schiff Hardin LLP, where I am one of the counsel of record for

Midwest Generation, LLC, in the matter captioned "In the Matter of: Petition

of Midwest

Generation, LLC, Waukegan Generating Station for an Adjusted Standard from

35 Ill.Adm.Code

225.230," docketed at the Pollution Control Board as AS07-03.

I have read the Motion to Strike to which this Affidavit is appended.

The facts regarding my actions and knowledge as set forth in the Motion to Strike

are true and correct.

FURTHER AFFIANT SAYETH NOT.

Subscribed and sworn to before me this

1LfH.

day of January, 2008.

Notary Public

CH2\2274549.\

OFFICIAL SEAL

JACQUELINE M. BERGEL

Notary Public - State of Illinois

My Commission Expires Mar 07,2011

Electronic Filing - Received, Clerk's Office, January 14, 2008