1. CERTIFICATE OF SERVICE
      2. 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
)
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 MOTION FOR LEAVE TO FILE REPLY TO ELPC'S
RESPONSE TO MOTION TO STRIKE and REPLY TO ENVIRONMENTAL LAW AND
POLICY CENTER'S RESPONSE TO MIDWEST GENERATION'SMOTION TO
STRIKE, copies of which are herewith electronically served upon you.
-----.~~
/--lJfI-
Kathleen C. BaSSI
Dated: February 7, 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 February 7, 2008
CERTIFICATE OF SERVICE
I, the undersigned, certify that on this
i
h
day of February, 2008, I have served
electronically the attached
MOTION FOR LEAVE TO FILE REPLY TO ELPC'S
RESPONSE TO MOTION TO STRIKE
and
REPLY TO ENVIRONMENTAL LAW AND
POLICY CENTER'S RESPONSE TO MIDWEST GENERATION'S MOTION TO
STRIKE,
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.
~
athleen . 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 February 7, 2008
SERVICE LIST
(AS 07-03)
Rachel L. Doctors
Assistant Counsel
Air Regulatory Unit
Division
of Legal Counsel
Illinois Environmental Protection Agency
1
021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
rachel. doctors0J,illinoi
s. 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\1615591.6
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 February 7, 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)
MOTION FOR LEAVE TO FILE REPLY TO ELPC'S
RESPONSE TO MOTION TO STRIKE
NOW COMES Petitioner, MIDWEST GENERATION, LLC, WAUKEGAN
GENERATING STATION, by and through its attorneys, SCHIFF HARDIN LLP, pursuant to
35
Ill.Adm.Code § 101.500(e), and moves the Board for leave to reply to the Environmental Law &
Policy Center's ("ELPC") apparent response to Midwest Generation's Motion to Strike. In
support
of this Motion for Leave to Reply, Midwest Generation states as follows:
1.
Midwest Generation filed a Motion to Strike ELPC's Motion to Intervene on
January 14, 2008.
2.
On January 22, 2008, ELPC filed a Motion to Withdraw and Refile Motion to
Intervene, in Response to Midwest Generation's Motion to Strike. This apparently is
ELPC's
response to Midwest Generation's Motion to Strike allowed under 35 Ill.Adm.Code §
101.500(d), although it is stylized, at least in part, as a motion.
3.
If the Board views ELPC'sfiling of January 22,2008, to be a response to the
Motion to Strike, then Midwest Generation requests leave to file a reply. Midwest Generation's
Reply is included with this filing.
4.
Midwest Generation will be materially prejudiced if the Board does not grant this
Motion for Leave to Reply and consider Midwest Generation's Reply. The requested adjusted
Electronic Filing - Received, Clerk's Office February 7, 2008
standard that underlies these motions is currently pending before the Board. The inclusion of
additional parties, to which Midwest Generation objects, could cause the proceeding to become
more complex than necessary, thus materially prejudicing Midwest Generation.
WHEREFORE, for the reasons stated above, Midwest Generation requests Leave to
Reply to ELPC's response to Midwest Generation's Motion to Strike.
Respectfully submitted,
MIDWEST GENERATION, LLC,
WAUKEGAN GENERATING STATION
by:
-----I~~
O~Attomeys
Dated: February 7, 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
Fax: 312-258-5600
CH2\2308147.1
Electronic Filing - Received, Clerk's Office February 7, 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)
REPLY TO ENVIRONMENTAL LAW AND POLICY CENTER'S
RESPONSE TO MIDWEST GENERATION'S MOTION TO STRIKE
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), replies to the Environmental Law
&
Policy Center's("ELPC")
"Motion to Withdraw and Refile Motion to Intervene, in Response to Midwest Generation's
Motion to Strike." Midwest Generation offers no response at this time to ELPC's"Renewed
Motion to Intervene" because the Board has not yet ruled on Midwest Generation's Motion to
Strike and then, possibly, ELPC'sMotion to Withdraw and Refile Motion to Intervene." As
discussed below, the Board'sorders in either
of the first two motions could affect the third
motion. Midwest Generation requests that the Board enter its order regarding Midwest
Generation's Motion to Strike and ELPC'sMotion to Withdraw and Refile.
If the Board denies
Midwest Generation's Motion to Strike and grants ELPC'sMotion to Withdraw and Refile, then,
in that case, Midwest Generation requests that the Board establish a date by which responses to
ELPC's Renewed Motion to Intervene are due. In support
of its requests, Petitioner states as
follows:
1.
Petitioner requests that the Board consider paragraphs 1 through 6 of its Motion to
Strike (filed January 14, 2008) as incorporated in this Reply by way
of background.
-1-
Electronic Filing - Received, Clerk's Office February 7, 2008
2.
At its January 24, 2008, meeting, the Board held over and took no action on
Midwest Generation'sMotion to Strike because the time for response had not yet passed.
3.
However, on January 22, 2008 (according to the Board'swebsite but dated
January 23, 2008 in the certificate
of service) ELPC responded to Midwest Generation's Motion
to Strike with ELPC'sMotion to Withdraw and Refile Motion to Intervene, in Response to
Midwest Generation's Motion to Strike and its Renewed Motion to Intervene. The Board noted
at this meeting that this filing had occurred.
4.
Counsel for Midwest Generation received ELPC'sResponse on January 25,2008.
5.
There are now currently one or possibly two ripe motions pending before the
Board, one
of which is characterized as a response to Midwest Generation's Motion to Strike:
(1) Midwest Generation'sMotion to Strike ELPC'sMotion to Intervene, and (2) ELPC'sMotion
to Withdraw and Refile Motion to Intervene, in Response to Midwest Generation's Motion to
Strike. Accepting for purposes
of discussion that a motion is a proper response to a motion,
because the Board may grant Midwest Generation's Motion to Strike and deny
ELPC's Motion
to Withdraw and Refile, Midwest Generation believes that the Board must enter its orders
regarding these two motions before it reaches ELPC'sRenewed Motion to Intervene, which was
filed with and is the subject
ofELPC's Motion to Refile. Midwest Generation reminds the
Board that its Motion to Strike requested that it be granted with prejudice.
If the Board were to
grant Midwest Generation's Motion to Strike with prejudice, ELPC would be barred from the
relief it seeks in its Renewed Motion to Intervene. Therefore, the Board must enter its order on
Midwest Generation's Motion to Strike before either Midwest Generation or the Illinois
Environmental Protection Agency should be required to respond to ELPC's Renewed Motion to
Intervene.
-2-
Electronic Filing - Received, Clerk's Office February 7, 2008
6.
Midwest Generation notes that responding to a motion with a motion is not
provided for in the
Board's rules. Such a response seems to keep open the chain of response and
reply, arguably
ad infinitim.
The Board's rules at Part 101, Subpart E do not provide for such a
scenario. Particularly
in a situation like this one, where a person's participation in a proceeding
is in question, the practice
of assuming that the Board will grant a motion is quite presumptuous
and causes confusion. In the situation where a party files a Motion to File
Instanter
with the
motion it wishes to file
instanter,
the Board has the option of denying the Motion to File
Instanter
and ignoring the substantive motion filed with it. Here, if Midwest Generation
responds to
ELPC's Renewed Motion to Intervene prior to the Board's order on Midwest
Generation's Motion to Strike,
it
may have expended time and research unnecessarily.
7.
Midwest Generation asserts that ELPC has not responded to Midwest
Generation's Motion to Strike and thereby waives objection to that motion pursuant to 35
Ill.Adm.Code § 101.500(d)
("If no response if filed, the party will be deemed to have waived
objection to the granting
of the motion... "). If the Board agrees and grants Midwest
Generation's Motion to Strike with prejudice, then the two remaining motions filed by ELPC are
moot.
8.
If the Board grants Midwest Generation's Motion to Strike but without prejudice,
then Midwest Generation should be granted time to respond to each
of the two motions filed by
ELPC on January 22, 2008.
9.
If the Board determines that Midwest Generation should have responded to the
two motions in this Reply, then Midwest Generation requests that the Board grant it an extension
of the
ti~e
in which to respond, pursuant to 35 Ill.Adm.Code § 101.500(d).
-3-
Electronic Filing - Received, Clerk's Office February 7, 2008
WHEREFORE, for the reasons set forth above, Midwest Generation requests that the
Board consider ELPC to have waived its response to Midwest Generation'sMotion to Strike and
grant that motion with prejudice. In the alternative,
if the Board either does not grant the Motion
to Strike with prejudice or views
ELPC'smotions filed in response to Midwest Generation's
Motion to Strike as motions rather than a response, Midwest Generation requests that the Board
establish a response schedule for each
of the motions.
Respectfully submitted,
MIDWEST GENERATION, LLC,
WAUKEGAN GENERATING STATION
by:
-----.~~.::---'
--
I
One of Its Attorneys
Dated: February
7, 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
Fax: 312-258-5600
CH2\2307933.2
-4-
Electronic Filing - Received, Clerk's Office February 7, 2008

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