BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    IN THE MATTER OF:
    )
    )
    PETITION OF MIDWEST GENERATION, LLC, )
    AS 07-03
    WAUKEGAN GENERATING STATION
    )
    (Adjusted Standard- Air)
    FOR AN ADJUSTED STANDARD FROM
    )
    35 ILL.ADM.CODE 225.230
    )
    )
    NOTICE OF FILING
    To:
    John T. Therriault, Assistant Clerk
    Persons included on the
    Illinois Pollution Control Board
    ATTACHED SERVICE LIST
    James R. Thompson Center
    Suite 11-500
    100 West Randolph
    Chicago, IL 60601
    PLEASE TAKE NOTICE
    that we have today filed with the Office of the Clerk of the
    Pollution Control Board
    MOTION FOR LEAVE TO FILE REPLY TO RESPONSE OF
    ILLINOIS EPA,
    copies of which are herewith served upon you.
    Respectfully Submitted,
    Faith E. Bugel
    Environmental Law & Policy Center
    35 E. Wacker Dr. Suite 1300
    Chicago, IL 60601
    DATED: March 3, 2008
    Electronic Filing - Received, Clerk's Office, March 3, 2008
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    IN THE MATTER OF:
    )
    )
    PETITION OF MIDWEST GENERATION, LLC, )
    AS 07-03
    WAUKEGAN GENERATING STATION
    )
    (Adjusted Standard- Air)
    FOR AN ADJUSTED STANDARD FROM
    )
    35 ILL.ADM.CODE 225.230
    )
    MOTION FOR LEAVE TO FILE REPLY TO RESPONSE OF ILLINOIS EPA
    NOW COMES the Environmental Law and Policy Center (“ELPC”), by and through counsel,
    and, pursuant to 35 Ill. Admin. Code 101.500(e), requests leave to file a reply to the Illinois
    Environmental Protection Agency’s Response to the Environmental Law & Policy Center’s
    Renewed Motion to Intervene (“Renewed Motion”). Illinois EPA filed its response to the
    Renewed Motion electronically on February 11, 2008 (“Response”), and the agency and ELPC
    have agreed to a service receipt date of February 22, 2008. As Midwest Generation has not yet
    filed its response to the Renewed Motion to Intervene, ELPC respectfully requests leave to reply
    to Illinois EPA’s Response within 14 days of receiving service of Midwest Generation’s
    response. In support of this motion, ELPC states as follows:
    1. ELPC requests that the Board consider paragraphs 1 through 3 of its Renewed Motion for
    Leave to Intervene, filed January 22, 2008, as incorporated in this Motion as background.
    2. On February 7, 2008, Midwest Generation filed a Reply to Environmental Law and
    Policy Center’s Response to Midwest Generation’s Motion to Strike. The Reply describes
    several scenarios that could result from the Board’s ruling on the company’s Motion to
    Strike, filed on January 14, 2008. The Reply requests that, if the Board does not grant the
    Motion to Strike with prejudice or “views ELPC’s motions filed in response to Midwest
    Electronic Filing - Received, Clerk's Office, March 3, 2008
    Generation’s Motion to Strike as motions rather than a response,” the Board establish a
    response schedule for each of the motions. Reply at 4.
    3. On February 11, 2008, the Illinois EPA filed with the Board its 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. The Illinois EPA’s filing is styled as and contains a substantive response to
    ELPC’s Renewed Motion to Intervene. See Response at ¶¶ 5 to 17.
    4. Pursuant to 35 Ill. Admin. Code 101.500(e), ELPC must file a motion for leave to reply
    within 14 days of service of a response. On February 11, Illinois EPA sent an email
    containing an electronic copy of the agency’s Response to ELPC attorneys Faith Bugel
    and Meleah Geertsma. From this date until February 21, 2008, Meleah Geertsma
    monitored mail received at ELPC’s offices for items addressed to Faith Bugel. At no time
    during this period did she find a hardcopy of Illinois EPA’s Response. On the morning of
    February 21, 2008, Meleah Geertsma called Rachel Doctors, attorney of record for
    Illinois EPA, to inquire about service of the Response. Rachel Doctors represented that
    she had indeed mailed the Response, but did not send it by certified mail and thus could
    not provide confirmation of the Response’s delivery date. At this time, Meleah Geertsma
    and Rachel Doctors agreed that, if ELPC did not receive the Response in the mail by
    February 22, 2008, they would stipulate to a service receipt date of February 22, 2008.
    5. Meleah Geertsma monitored mail received at ELPC until February 22 and did not find a
    service copy of Illinois EPA’s Response. Thus, as ELPC is filing this motion within 14
    days of the agreed upon service receipt date of Illinois EPA’s Response, this motion is
    timely filed.
    Electronic Filing - Received, Clerk's Office, March 3, 2008
    6. ELPC also contacted Illinois EPA concerning consolidation of its replies to Illinois
    EPA’s and Midwest Generation’s responses to the Renewed Motion to Intervene and
    Rachel Doctors, representing the Illinois EPA, indicated that Illinois EPA would agree to
    the consolidation of ELPC’s replies.
    7. On February 21, 2008, the Board issued an order granting ELPC’s motion to withdraw
    the December 6, 2007 motion to intervene, denying Midwest Generation’s motion to
    strike, and directing Midwest Generation to file a response to ELPC’s renewed motion to
    intervene by March 6, 2008. The effect of the order thus was to leave only the Renewed
    Motion to Intervene at issue before the Board.
    8. ELPC seeks leave to reply to address the arguments raised by Illinois EPA in its
    Response. Not allowing such reply would materially prejudice ELPC, as it would prevent
    full participation by a public interest organization representing members directly affected
    by the implementation of Illinois regulations controlling mercury pollution from the
    electric generating facility at issue in this case, with interests unique from those of the
    state agency responsible for implementing regulations across the state as a whole.
    9. ELPC also seeks an extension of time in which to file a reply to the Illinois EPA’s
    Response, in order to consolidate this reply with ELPC’s reply to Midwest Generation’s
    response to the Renewed Motion to Intervene. ELPC anticipates that Midwest Generation
    will put forth arguments in its response similar to, and potentially overlapping with, those
    in the Illinois EPA’s Response. ELPC therefore anticipates seeking leave to reply to
    Midwest Generation’s response once the response is filed. The extension requested in the
    present motion would reconcile the currently disparate briefing schedules and serve
    Electronic Filing - Received, Clerk's Office, March 3, 2008
    efficiency by allowing ELPC to provide the Board with a single reply brief addressing all
    issues raised by Petitioner Midwest Generation and the Illinois EPA.
    WHEREFORE, for the reasons set forth above, ELPC seeks leave to reply to the Response of
    Illinois EPA within 14 days of receipt of service of Midwest Generation’s response.
    Respectfully Submitted,
    Faith E. Bugel
    Environmental Law & Policy Center
    35 E. Wacker Dr. Suite 1300
    Chicago, IL 60601
    5
    Electronic Filing - Received, Clerk's Office, March 3, 2008
    CERTIFICATE OF SERVICE
    I, the undersigned, certify that on this 3rd day of March, 2008, I have served
    electronically the attached
    MOTION FOR LEAVE TO FILE REPLY TO RESPONSE OF
    ILLINOIS EPA
    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 with postage thereon fully prepaid and affixed to the
    persons listed on the
    ATTACHED SERVICE LIST.
    Faith E. Bugel
    Environmental Law & Policy Center
    35 E. Wacker Dr. Suite 1300
    Chicago, IL 60601
    DATED: March 3, 2008
    Electronic Filing - Received, Clerk's Office, March 3, 2008
    SERVICE LIST
    (AS 07-03)
    Rachel L. Doctors, Assistant Counsel
    Illinois Environmental Protection Agency
    1021 North Grand Avenue East
    P.O. Box 19276 Springfield
    IL 62794-9276
    Sheldon A. Zabel
    Stephen J. Bonebrake
    Kathleen C. Bassi
    Schiff Hardin, LLP
    6600 Sears Tower
    233 South Wacker Drive Chicago
    IL 60606-6473
    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 3, 2008

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