BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
PETITION OF MIDWEST GENERATION,
)
LLC, WAUKEGAN GENERATING
)
AS07-03
STATION FOR AN ADJUSTED STANDARD )
(Adjusted Standard – Air)
FROM AMENDMENTS TO 35 ILL.
)
35 ADM. CODE SECTION 225.230
)
NOTICE
TO:
John Therriault, Assistant Clerk
Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
State of Illinois Center
State of Illinois Center,
100 West Randolph, Suite 11-500
100 W. Randolph, Suite 11-500
Chicago, IL 60601
Chicago, Illinois 60601
Faith E. Bugel
Sheldon Zabel
Environmental Law & Policy Center
Kathleen C. Bassi
35 E. Wacker Dr., Suite 1300
Stephen J. Bonebrake
Chicago, IL 60601
Schiff Hardin, LLP
6600 Sears Tower
233 S. Wacker Drive
Chicago, IL 60606-6473
PLEASE TAKE NOTICE that I have today filed with the Office of the Pollution Control Board
the attached RESPONSE TO THE ENVIRONMENTAL LAW & POLICY CENTER’S
MOTION TO WITHDRAW AND REFILE MOTION TO INTERVENE, IN RESPONSE TO
MIDWEST GENERATIONS’ MOTION TO STRIKE, and RENEWED MOTION TO
INTERVENE of the Illinois Environmental Protection Agency a copy of which is herewith
served upon you.
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
By: ___/s/___________________
Rachel L. Doctors
Assistant Counsel
Division of Legal Counsel
DATED: February 11, 2008
P.O. Box 19276
Springfield, Illinois 62794-9276
217.782-5544
217.782.9143 (TDD)
Electronic Filing - Received, Clerk's Office, February 11, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
PETITION OF MIDWEST GENERATION,
)
LLC, WAUKEGAN GENERATING
)
AS07-03
STATION FOR AN ADJUSTED STANDARD )
(Adjusted Standard – Air)
FROM 35 ILL. CODE SECTION 225.230
)
RESPONSE TO THE ENVIRONMENTAL LAW & POLICY CENTER’S
MOTION TO WITHDRAW AND REFILE MOTION TO INTERVENE, IN
RESPONSE TO MIDWEST GENERATIONS’ MOTION TO STRIKE, and
RENEWED MOTION TO INTERVENE
NOW COMES the ILLINOIS ENVIRONMENTAL PROTECTION AGENCY (“Illinois
EPA”) by one of its attorneys, Rachel L. Doctors, Assistant Counsel, and, pursuant to 35 Ill.
Adm. Code 101.500(d) and 101.504, hereby respectfully responds to the Environmental Law &
Policy Center’s (hereinafter, “ELPC”) Motion to Withdraw and Refile Motion to Intervene, In
Response to Midwest Generations’ Motion to Strike, and Renewed Motion to Intervene
(“Motion to Withdraw” and “Renewed Motion,” respectively). The Illinois EPA requests that
the Illinois Pollution Control Board (“Board”) enter an order denying ELPC’s request to
intervene in the above matter. In support of this request, the Illinois EPA states as follows:
1.
On December 6, 2007, ELPC filed a Motion to Intervene in the above adjusted
standard. The Illinois EPA first became of aware of the request when Stephen Bonebrake,
counsel for Midwest Generation, contacted Rachel Doctors, counsel for the Illinois EPA in the
above matter. To date the Illinois EPA has not received a copy of ELPC’s Motion to Intervene.
The Service List attached to the Motion, as found on the Board’s website, indicates that service
was sent to Alec Messina, General Counsel, and John J. Kim, Managing Attorney of the Illinois
EPA. However, to date they have never received direct service of the Motion.
2.
On January 23, 2008, ELPC filed its Motion to Withdraw and Renewed Motion,
Electronic Filing - Received, Clerk's Office, February 11, 2008
2
received by the Illinois EPA on January 28, 2008. The Board’s procedural rules provide that a
timely response to a motion must be filed within 14 days of receipt of the motion. In this case,
the Illinois EPA must file a response to the Motion to Withdraw and Renewed Motion by no
later than February 11, 2008.
3.
However, as more fully set forth in the Motion for Leave to File Reply to ELPC’s
Response to Motion to Strike (“Motion for Leave”) and Reply to ELPC’s Response to Midwest
Generation’s Motion to Strike (“Reply”) filed by the Petitioner, Midwest Generation, LLC
(“Midwest Generation”), there are a number of procedural issues and potential defects in ELPC’s
filings. These issues relate to the content and form of ELPC’s Motion to Withdraw and
Renewed Motion.
4.
The Illinois EPA agrees with Midwest Generation that it is unclear whether
ELPC’s Motion to Withdraw and Renewed Motion should collectively be considered as a
response to Midwest Generation’s Motion to Strike. As Midwest Generation argued, there is no
further ruling needed as to the Motion to Withdraw or Renewed Motion if the Board grants
Midwestern Generation’s initial to Motion to Strike. In that case, ELPC’s Motion to Withdraw
and Renewed Motion will both be moot. Midwest Generation has adequately raised and
presented these issues and arguments to the Board, so the Illinois EPA will not further address
these arguments here.
5.
As contemplated by Midwest Generation in their Motion for Leave and Reply, it
is possible that the Board could ultimately rule that ELPC’s Renewed Motion remains a viable
motion and thus subject to a response. In the event that does happen, and to ensure that the
Illinois EPA has timely filed a response to the Renewed Motion, the Illinois EPA now responds
directly to the issues raised in the Renewed Motion.
Electronic Filing - Received, Clerk's Office, February 11, 2008
3
6.
The Board’s authority to grant intervention status to non-parties is found in 35 Ill.
Adm. Code 101.402 of the Board’s procedural rules. There is no claim by the petitioning
intervenor, and indeed none is provided in Section 101.402(c), that the petitioning intervenor has
a statutory right to intervene. The only means by which the petitioning intervenor may be
granted party status is for the Board to find that the discretionary provisions of Section
101.402(d) are applicable and weigh in favor of the petitioning intervenor.
7.
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:
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.
8.
To prevail, the petitioning intervenor must demonstrate that at least one of the
three criteria in Section 101.402(d) has been met. ELPC has not met that burden. First, ELPC
does not cite to any statutory right for intervention, and therefore ELPC has not demonstrated
that it has any statutory right to intervene. 35 Ill. Adm. Code 101.402(d)(1).
9.
Next, ELPC may show that they will be materially prejudiced absent intervention.
35 Ill. Adm. Code 101.402(d)(2). Again ELPC has failed to make this requisite showing, as they
fail to acknowledge the other means by which they may participate in the proceedings. Non-
parties to an adjusted standard may file comments, and if a hearing is held, non-parties may also
provide oral comments and ask questions of witnesses. These means provide a more than
sufficient opportunity for the petitioning intervenor to present any arguments they feel
appropriate to the Board, either through written or oral comments, or questioning of witnesses.
Electronic Filing - Received, Clerk's Office, February 11, 2008
4
These options preclude the petitioning intervenor from making any credible argument that failure
to grant them intervention would result in material prejudice.
10.
The last component for the Board’s consideration in a case of discretionary
intervention is whether the person is so situated that the person may be adversely affected by a
final Board order. 35 Ill. Adm. Code 101.402(d)(3). ELPC never directly states that it would be
adversely affected by a Board order. Instead, ELPC states that because of their involvement in
the Illinois Mercury Rule (R06-25) and Clean Air Interstate Rule (“CAIR”) (R06-26), their
members have an interest in a proceeding that would affect the applicability of the Illinois
Mercury Rules. Renewed Motion,par. 2. And second, ELPC states that its members would be
directly affected by the way the Illinois Mercury Rule is applied and the consequent mercury
emissions from the above facility. Renewed Motion, par. 3. That conclusory statement aside,
ELPC has not provided any arguments or facts on how its members are situated differently than
other citizens of Illinois or how its members would be materially prejudiced, should its Renewed
Motion be denied.
11.
The Board and the Illinois EPA are required by statute to protect all citizens from
harmful air pollution through adoption and implementation of air pollution control regulations.
415 ILCS 5/1, et seq. Under the Illinois Environmental Protection Act (“Act”), the Illinois EPA
is entrusted with development and proposal to the Board of rules to control the emissions of
pollutants, including mercury. The Illinois EPA is also responsible for the implementation and
enforcement of these regulations, and the evaluation of requests for adjustments to these
regulations. 415 ILCS 5/4 and 5/28.1. The Illinois EPA is the sole entity charged with making a
recommendation on the Petitioner’s request for an adjusted standard. 35 Ill. Adm. Code
104.416. Part of the Illinois EPA’s evaluation of whether the adjusted standard should or should
Electronic Filing - Received, Clerk's Office, February 11, 2008
5
not be granted involves evaluating whether the Petition is protective of the environment.
Id.
The
Illinois EPA will fulfill this responsibility by a date that will be determined through a future
Board order in this matter.
12.
If every individual that participated in a rulemaking is granted intervenor status in
a subsequent related adjusted standard proceeding based on the allegation that the individual will
be affected by the underlying rule, there could be a very large group of persons that may seek to
claim intervenor status. Participation in a rulemaking proceeding is not a circumstance that
should be deemed sufficient to warrant granting of a motion to intervene in a subsequent
adjusted standard proceeding. Indeed, 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. If each of those people filed a
public comment or otherwise participated in a rulemaking, and then sought intervenor status in a
related adjusted standard, there would be a lessening of the standards that are intended to allow
only real and affected parties to intervene. Hence, ELPC has not met the requirements for
intervention as set forth in Section 101.402(d)(3).
13.
The Board has not issued any final order that is persuasive in support of the
petitioning intervenor’s arguments. ELPC cites to no cases to support their request, as indeed
none exist.
14.
Relevant to the present proceeding are the Board’s decisions in other matters
involving requests for intervention. For the most part, the Board has not viewed motions to
intervene with favor, properly setting forth the requisite regulatory standard in Section 101.402.
This is a standard that should not easily be met, as intervention is a significant act with
implications to the parties that are otherwise clearly identified by the statute.
Electronic Filing - Received, Clerk's Office, February 11, 2008
6
15.
In the case of
2222 Elston LLC v. Purex Industries, et al.,
PCB 03-55 (January 23,
2003), the Board considered a request for intervention filed by the City of Chicago (“City”). In
that case, after a review of the facts the Board gave no special deference to the City based on its
status as a governmental entity. The Board was not persuaded that the City had provided
sufficient justification to allow for intervention, despite the City’s argument that financial
implications may result from an adverse Board decision.
16.
In another case involving a request by an environmental group to intervene in a
trade secret case, the Board ruled that intervention was not warranted even when the Petitioner
argued that the goal of the Illinois Environmental Protection Act to increase public participation
in protecting the environment is facilitated by giving access to the Illinois EPA’s records. The
petitioner for intervention had not articulated how its interest would not be adequately
represented by the Illinois EPA. The Board found that such argument did not meet the burden of
35 Ill. Adm. Code 101.402(d), but noted that the Sierra Club could participate in the proceeding
through the filing of an
amicus curiae
brief or submitting public comments.
Midwest Generation
v. Illinois EPA
, PCB 04-185 (November 4, 2004).
17.
Based on those decisions, it is clear that the Board considers the standard of
whether to grant discretionary intervention to be a strict one. Based on the facts presented here,
the petitioning intervenor has not presented a persuasive case that they should be granted
intervention.
Electronic Filing - Received, Clerk's Office, February 11, 2008
7
WHEREFORE, for the reasons set forth above, the Illinois EPA respectfully requests that
if the Board finds that ELPC’s Renewed Motion withstands the Motion to Strike and Reply filed
by Midwest Generation, the Board deny ELPC’s Renewed Motion.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By: /s/______________________
Rachel L. Doctors
Assistant Counsel
Division of Legal Counsel
DATED: February 11, 2008
1021 North Grand Ave. East
P.O. Box 19276
Springfield, IL 62794-9276
217.782.5544
217.782.9143 (TDD)
217.782.9807 (Fax)
Electronic Filing - Received, Clerk's Office, February 11, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE OF ILLINOIS
)
)
SS
COUNTY OF SANGAMON
)
)
CERTIFICATE OF SERVICE
I, the undersigned, an attorney, state that I have served electronically and by first class-
mail RESPONSE TO THE ENVIRONMENTAL LAW & POLICY CENTER’S MOTION TO
WITHDRAW AND REFILE MOTION TO INTERVENE, IN RESPONSE TO MIDWEST
GENERATIONS’ MOTION TO STRIKE, and RENEWED MOTION TO INTERVENE of the
Illinois Environmental Protection Agency upon the following persons:
John Therriault, Assistant Clerk
Bradley P. Halloran, Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
State of Illinois Center
State of Illinois Center,
100 West Randolph, Suite 11-500
100 W. Randolph, Suite 11-500
Chicago, IL 60601
Chicago, Illinois 60601
Faith E. Bugel
Sheldon Zabel
Environmental Law & Policy Center
Kathleen C. Bassi
35 E. Wacker Dr., Suite 1300
Stephen J. Bonebrake
Chicago, IL 60601
Schiff Hardin, LLP
6600 Sears Tower
233 S. Wacker Drive
Chicago, IL 60606-6473
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
___/s/__________________
Rachel L. Doctors
Assistant Counsel
Division of Legal Counsel
Dated: February 11, 2008
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
(217) 782-5544
217.782.9143 (TDD)
Electronic Filing - Received, Clerk's Office, February 11, 2008