BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
PETITION OF MIDWEST GENERATION, LLC, )
AS 07-04
WILL COUNTY 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 CONSOLIDATED REPLY
and
CONSOLIDATED REPLY TO RESPONSES OF ILLINOIS EPA AND MIDWEST
GENERATION TO RENEWED MOTION TO INTERVENE
, 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 18, 2008
Electronic Filing - Received, Clerk's Office, March 18, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
PETITION OF MIDWEST GENERATION, LLC, )
AS 07-04
WILL COUNTY GENERATING STATION
)
(Adjusted Standard- Air)
FOR AN ADJUSTED STANDARD FROM
)
35 ILL.ADM.CODE 225.230
)
MOTION FOR LEAVE TO FILE CONSOLIDATED REPLY
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 consolidated reply to the
Responses of the Illinois Environmental Protection Agency (“Illinois EPA”) and Midwest
Generation to ELPC’s Renewed Motion to Intervene (“Renewed Motion”). ELPC timely filed a
motion for leave to reply to the Illinois EPA’s Response on March 3, 2008, requesting an
extension of the time in which to reply so as to file a consolidated reply following submission of
Midwest Generation’s response. Thus, ELPC now respectfully requests leave to file a
consolidated reply. In support of this motion, ELPC states as follows:
1. ELPC requests that the Board consider paragraphs 1 through 9 of its Motion for Leave to
File Reply to Response of Illinois EPA (filed March 3, 2008) as incorporated in this
Motion by way of background.
2. Illinois EPA filed its Response to the Environmental Law & Policy Center’s Renewed
Motion to Intervene on February 11, 2008 (“Illinois EPA’s Response”). As noted in the
Motion for Leave to File Reply to Response of Illinois EPA, Illinois EPA and ELPC
agreed subsequently to a service receipt date of February 22, 2008.
3. On March 3, 2008, within 14 days of the agreed upon service receipt date of Illinois
EPA’s Response, ELPC filed a Motion for Leave to File Reply to Response of Illinois
EPA, asking for an extension in which to reply so as to enable consolidation of replies to
Electronic Filing - Received, Clerk's Office, March 18, 2008
both Illinois EPA and Midwest Generation. ELPC stated in its motion that it anticipated
arguments from Midwest Generation similar to and potentially overlapping with those in
Illinois EPA’s Response.
4. In keeping with the Board order issued February 21, 2008, Midwest Generation filed its
Response to the Environmental Law & Policy Center’s Renewed Motion to Intervene on
March 6, 2008 (“Midwest Generation’s Response”). Midwest Generation’s Response
noted Petitioner’s agreement with paragraphs 6 through 17 of the Illinois EPA’s
Response.
5. 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. ELPC received mail service of Midwest
Generation’s Response on March 10, 2008. This motion thus is timely filed.
6. ELPC seeks leave to reply to address the arguments raised by Midwest Generation 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.
7. Efficiency would be served by consolidating ELPC’s replies to the Illinois EPA and
Midwest Generation.
WHEREFORE, for the reasons set forth above, ELPC seeks leave to submit a consolidated reply
to the Responses of Midwest Generation and Illinois EPA to ELPC’s Renewed Motion to
Intervene.
Electronic Filing - Received, Clerk's Office, March 18, 2008
Respectfully Submitted,
Faith E. Bugel
Environmental Law & Policy Center
35 E. Wacker Dr. Suite 1300
Chicago, IL 60601
Electronic Filing - Received, Clerk's Office, March 18, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
PETITION OF MIDWEST GENERATION, LLC, )
AS 07-04
WILL COUNTY GENERATING STATION
)
(Adjusted Standard- Air)
FOR AN ADJUSTED STANDARD FROM
)
35 ILL.ADM.CODE 225.230
)
CONSOLIDATED REPLY TO RESPONSES OF ILLINOIS EPA AND MIDWEST
GENERATION TO RENEWED MOTION TO INTERVENE
NOW COMES the Environmental Law and Policy Center (“ELPC”), by and through counsel,
and, pursuant to 35 Ill. Admin. Code 101.500(e), respectfully replies to the Illinois
Environmental Protection Agency’s (“Illinois EPA”) “Response to the Environmental Law &
Policy Center’s Renewed Motion to Intervene” (Feb. 11, 2008) and Midwest Generation’s
“Response to the Environmental Law & Policy Center’s Renewed Motion to Intervene,” (Mar. 6,
2008). ELPC requests that the Illinois Pollution Control Board (“Board”) enter an order allowing
ELPC’s intervention in this matter, as failure to do so would result in material prejudice to and
would adversely affect ELPC and its members. In support of this request, ELPC states as
follows:
1. ELPC requests that the Board consider paragraphs 1 through 3 of its Renewed Motion for
Leave to Intervene (filed Jan. 23, 2008) as incorporated in this Reply by way of
background.
2. At issue in this proceeding is whether to grant an adjusted standard to Petitioner Midwest
Generation for control of mercury at its Will County Generating Station (“Will County”).
Petitioner in sum seeks an adjusted standard on the basis that the existence of a hot-side
electrostatic precipitator (“HS ESP”) at Will County would require the facility to add or
replace equipment at a cost exceeding that assumed as the economic basis for the state’s
Electronic Filing - Received, Clerk's Office, March 18, 2008
mercury rule, 35 Ill. Adm. Code 225.230, in order to comply with the rule as adopted.
See
Petition at E, pages 3-4 (Jan. 10, 2007). Petitioner also argues that insufficient time exists
for equipment modification or addition to ensure compliance by the rule’s deadlines.
Id.
3. Intervention in Board proceedings is governed by 35 Ill. Adm. Code 101.402.
Specifically, ELPC seeks to intervene under Section 101.402(d)(2) or in the alternative
Section 101.402(d)(3). Under these provisions, the Board may permit any person to
intervene in any adjudicatory proceeding if the person may be materially prejudiced
absent intervention, 35 Ill. Adm. Code 101.402(d)(2), or 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).
4. As stated in the Renewed Motion, ELPC and its members will be directly and materially
affected by the outcome of this proceeding, which will determine the mercury emissions
from Will County. Renewed Motion at ¶ 3. Mercury pollution from coal combustion
deposits both locally and regionally, affecting air quality, bodies of water, and fish.
In the
Matter of: Proposed New 35 Ill. Adm. Code 225 Control of Emissions from Large
Combustion Sources (Mercury)
, Board Order at pp. 7
1
, 60
2
, and 63
3
(Nov. 2, 2006);
In
the Matter of: Petition of Midwest Generation, LLC. Will County Generating Station For
an Adjusted Standard From 35 Ill. Adm. Code 225.230
, Petition for Adjusted Standard
1
“According to the Agency, reactive and particulate forms of mercury compounds have the greatest impact on near-
field deposition of mercury.”
2
“all three studies support the Agency’s contention that reduction of mercury emissions from coal combustion
plants would significantly reduce local mercury deposition”; testimony of Dr. Keeler that “recent studies pertaining
to mercury chemistry suggests [sic] that in certain environments, such as downwind of urban areas, elemental
mercury is rapidly transformed to reactive mercury.”
3
“the Board believes that [the Steubenville] study persuasively demonstrates that local and regional coal combustion
sources contribute significantly to the wet deposition of mercury”; “the Board finds [the Florida and Massachusetts]
studies support the Agency’s contention that a reduciton of mercury deposition will result in a reduction of mercury
levels in fish tissue.”
Electronic Filing - Received, Clerk's Office, March 18, 2008
pp. 3
4
(Jan. 10, 2007) (Will County’s emissions will have significance as a regional
concern). ELPC represents members who live both in the local vicinity of the plant and
the region impacted by the plant’s emissions.
See
Attachment A. These members include
mothers of childbearing age, parents of young children and/or anglers who are concerned
with the impact of mercury emissions from Waukegan on the quality of the air, nearby
waters, and fish within those waters, and thus their health and their enjoyment of the
impacted waters. ELPC’s members therefore are so situated that they may be adversely
affected by the Board’s final order.
5. The Board has regularly permitted intervention by individuals and/or citizen groups
where, as here, the proposed intervenors would be impacted by the pollution from the
activity at issue and were interested in participating regarding the primary issue in the
proceeding.
a. Admittance has been granted where, as is highly possible here, the proposed
intervenor and Illinois EPA take different positions on the substantive result to
advocate before the Board.
See Commonwealth Edison Co. v. Illinois EPA
, PCB-
91-29 (Nov. 21, 1991) (Sierra Club admitted as intervenor where it opposed a
variance and Illinois EPA’s position was that a variance was not necessary due to
inappliability of the provision in question);
Village of Round Lake Beach v.
Illinois EPA
, PCB-86-59 (Sept. 11, 1986) (concerned citizens admitted as
intervenors where citizens opposed variance and Illinois EPA recommended that
variance be granted);
In the Matter of: Proposed Determination of No Significant
Ecological Damage for the Joliet Generating Station
, PCB-87-93 (Nov. 15, 1989)
4
“Will County’s emissions have more significance as a regional concern than as a local concern.”
Electronic Filing - Received, Clerk's Office, March 18, 2008
(Sierra Club admitted as intervenor where Sierra Club opposed company’s
petition and Illinois EPA supported the petition).
b. The Board has also granted intervenor status under other circumstances relevant
to this case.
See Citizens Utilities Co. of Illinois v. Illinois EPA
, PCB-85-95 (Apr.
10, 1986) (Village permitted to intervene where it alleged that a Board order
regarding exemption from water quality standards could affect the rates and
services provided to its citizens);
Gallatin Nat’l Co. v. Illinois EPA
, PCB-90-184
(Jan. 18, 1991) (citizen group permitted to intervene where it and Illinois EPA
opposed grant of variance);
We Shred It v. Illinois EPA
, PCB-92-180 (Mar. 25,
1993) (county permitted to intervene because it could be adversely affected by
order granting variance to tire shredding company).
See also Caterpillar, Inc. v.
Illinois Environmental Protection Agency
, PCB-94-198 (Sept. 1, 1994) (unions
admitted as intervenors).
6. Illinois EPA and Midwest Generation put forth essentially two arguments regarding why
ELPC and its members should not be granted intervenor status: the opportunities for
participation short of intervention are sufficient to avoid material prejudice, and Illinois
EPA will adequately ensure that their interests are not adversely affected.
See
Illinois
EPA’s Response at ¶¶ 9 and 11; Midwest Generation’s Response at ¶¶ 10, 16, and 17.
The Board should reject both of these arguments.
7. ELPC and its members may be materially prejudice absent intervention. The rights of a
party are significant in general and with respect to this case. With an adjusted standard
proceeding, only a party to the proceeding may appeal a final order in state court. 415
ILCS 5/41(a). Similarly, only parties may file briefs and take part in telephonic status
Electronic Filing - Received, Clerk's Office, March 18, 2008
conferences on important issues before the Board. 35 Ill. Adm. Code 101.500;
see e.g.,
Order of February 22, 2007 (parties or legal representatives to participate on telephonic
status conference). Thus, failing to admit ELPC would prevent access to judicial review,
while admittance would permit ELPC to establish a complete record for review and file
an appeal to protect its members. These rights are especially important in an adjusted
standard proceeding where, as here, a range of outcomes based on different technologies
is possible.
8. ELPC and its members also may be adversely affected without status as intervenors.
While the Illinois EPA is responsible for protecting all the state’s citizens from harmful
air pollution, Illinois EPA’s Response at ¶11, this duty does not necessarily mean that the
agency represents the best interests of a select group of citizens living within the area that
will be impacted by mercury pollution from the plant.
a. In formulating its recommendation for the Will County Station for the Board, the
agency has to take into account the precedent of the recommendation over the
range of facilities for which it has regulatory responsibility. This position may
cause the agency to advocate for a lesser degree of clean-up at this particular
facility than would be advanced by ELPC and its members, who will be impacted
primarily by mercury pollution from the Will County plant.
b. The Illinois EPA has yet to file its recommendation with the Board. Without a
recommendation, it is presumptuous to assume that the agency will advocate for
the same position as ELPC. Illinois EPA may recommend that an adjusted
standard is appropriate, while ELPC may advocate for application of the rule.
Both the agency and ELPC may agree that an adjusted standard is appropriate.
Electronic Filing - Received, Clerk's Office, March 18, 2008
Under this scenario, it is entirely possible that the agency and ELPC will disagree
about which technology to present to the Board to achieve what numeric standard
over what time period. A motion to intervene is not an appropriate forum to argue
the merits of a case. Thus, based on the range of possible disparate positions
between the agency and ELPC, ELPC has adequately demonstrated for the
purposes of intervention that Illinois EPA will not sufficiently represent the
interests of ELPC and its members.
9. In addition, cases cited by Illinois EPA and Petitioner are distinguishable from the bases
on which ELPC seeks intervention. Unlike the City in
2222 Elston LLC v. Purex
Industries et al.
, PCB 03-55 (Jan. 23, 2003), which relied on tenuous financial impacts to
show adverse affects, ELPC alleges harms to the health and well-being of its members
and cannot file a complaint of its own with regards to this adjusted standards proceeding.
Also unlike the Sierra Club in the
Midwest Generation
proceeding, ELPC has a direct
interest in the core issue at stake in this proceeding, i.e., the standard that the Will County
unit must meet.
Contrast Midwest Generation v. Illinois EPA
, PCB-04-185 (Nov. 4,
2004) (denying intervention where Illinois EPA would seek the same outcome as Sierra
Club on the trade secret issue at stake and Sierra Club’s “rationales for seeking
intervention [did] not concern the sole issue in [the] appeal.”) Finally, as stated above, the
present adjusted standards proceeding could result in any number of substantive
standards for Will County, with ELPC and Illinois EPA potentially advancing different
technologies, standards, and timelines. The enforcement proceeding at issue in
Illinois v.
Alloy Engineering and Casting Company
, PCB-01-155 (Sept. 6, 2001), in contrast,
involved the single issue of liability. In that case, unlike here, the Illinois Attorney
Electronic Filing - Received, Clerk's Office, March 18, 2008
General (who would be calling the proposed intervenors as witnesses in the case, in
contrast to Illinois EPA in this case) could clearly be viewed as representing the interests
of the proposed intervenors on the sole up-or-down issue at stake.
10. Nor will admittance of ELPC as an intervenor result in the slippery slope to undue delay
and inefficiency posited in the Responses. See Agency Response at ¶ 12; Petitioner
Response at ¶ 21.
a. The Board at all times retains the discretion to permit or deny intervention based
on the strength of the interests asserted by the proposed intervenor. See 35 Ill.
Adm. Code 101.402d (Board “may” permit intervention). With respect to prior
participation in a rulemaking, the Board may consider the intensity of
participation as an indicator of the interests to be affected in later adjudications.
The Board can readily draw a distinction between an intervenor who, like ELPC,
actively participated in all aspects of the rulemaking process by attending public
hearings, meeting with the agency, submitting comments on draft rules,
introducing oral and written expert testimony at the hearing and actively cross-
examining the agency’s own witnesses, and one who participated by, e.g., merely
attending a single hearing.
b. Regardless of the level of participation in the rulemaking, nowhere in the
intervention provision is there the authority to deny intervention solely on the
basis that a large number of persons would qualify, where those seeking
intervention would otherwise qualify to intervene based on their interest and
status. As with standing in the federal courts, the mere fact that injury may occur
to many persons does not erase the injury and the status it confers.
See, e.g.,
Electronic Filing - Received, Clerk's Office, March 18, 2008
Massachusetts v. EPA
, 127 S. Ct. 1438, 1453 (2007) (rejecting EPA’s argument
that the widespread nature of harm from global warming creates an
insurmountable standing bar, citing
Lujan v. Defenders of Wildlife
, 504 U.S. 555,
581 (Kennedy concurrence that “it does not matter how many persons have been
injured by the challenged action”)). The Board instead has the authority to limit
the participation of intervenors once admitted “as justice may require.” 35 Ill.
Adm. Code 101.402e. The Board’s rules thus anticipate that some degree of
inconvenience may occur from intervention and contain a means for the Board to
prevent or minimize disruption while recognizing the rights of intervenors.
c. Finally, intervention by a single non-profit group representing multiple members
potentially adversely affected by a rule may be viewed as an efficiency measure,
against the alternative scenario of each member or adversely affected person
seeking to intervene on his or her own behalf.
WHEREFORE, for the reasons set forth above, the Environmental Law and Policy Center
requests that the Board admit ELPC as an intervenor in this proceeding.
Respectfully Submitted,
Faith E. Bugel
Environmental Law & Policy Center
35 E. Wacker Dr. Suite 1300
Chicago, IL 60601
Electronic Filing - Received, Clerk's Office, March 18, 2008
ELPC ATTACHMENT A
Electronic Filing - Received, Clerk's Office, March 18, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
PETITION OF MIDWEST GENERATION, LLC, )
WILL COUNTY GENERATING STATION
)
FOR AN ADJUSTED STANDARD FROM
)
35 ILL.ADM.CODE 225.230
)
AS 07-04
(Adjusted Standard- Air)
DECLARATION OF STACY MARIA JAMES
STACY MARIA JAMES, residing at 509
S. Draper, Champaign, Illinois, 61821,
declares under penalty
of peIjury as follows:
1.
I am a member of the Environmental Law and Policy Center.
2.
ELPC is actively involved in efforts to protect air and water quality in Will
County
by researching, attending public hearings, providing comments/testifying, interacting
with government agencies, creating public awareness and educating the public on environmental
issues that are detrimental to our health and safety.
3.
I am aware that the State
of Illinois has issued a statewide fish consumption
advisory because
ofmercury pollution and that most of the mercury air emissions in Illinois
come from coal-fired power plants.
4.
I am aware that the Will County coal fired power plant is a major source
of air
pollution, including mercury pollution. Additionally, I am aware that the mercury pollution from
Will County not only exists in the surrounding air, but also deposits locally and regionally in
relation to the plant. This local and regional deposition
ofmercury pollutes the nearby waters,
including the Des Plaines River and other downwind waterways, and contaminates the fish living
in those waters.
~'!;ttI~
.....
_~~~-e
.. _
.F.I.-~'"~
~.
~;r~~~,that
t>Sr'in the air and water is associated with numerous
~
:~i':
-"!l" }..
~ ~-'I.o::i;:;
j\:,:';jJ~;'
V'!;:" ..
'~',!
\
~
j~;('
health
problems,;inSl,W;Ij~~l~al"~t,
arit developmental delays from the mother's and child's
Electronic Filing - Received, Clerk's Office, March 18, 2008
consumption of contaminated fish. I am also aware that mercury has been linked to increased
risk
of heart attack in adults from their consumption of contaminated fish, and mercury pollution
in the air to increased prevalence
of autism among children.
6.
I am aware that mercury can impair the reproductive system
of birds feeding on
mercury contaminated fish. I understand that Lake Renwick is a heron breeding sanctuary
described
by the Illinois Audubon Society as "By far the most valuable rookery in all of
Illinois...a site of outstanding statewide significance," is located approximately six miles from
the Will County plant, and has among the highest levels
of mercury contamination of any lake in
the state, as well as the highest levels
of mercury-contaminated fish.
7.
I am concerned about air pollution from these coal-fired power plants and the
effect that such pollution has on
my health and my community. I am especially concerned about
the impacts
of mercury pollution on the health of Illinois' waterways and the aquatic life in them.
As a scientist who has devoted her career to protecting aquatic resources in Illinois, I am affected
by the negative impacts that mercury pollution has
on aquatic systems and the people and
wildlife who consume mercury-contaminated organisms.
I declare under penalty
ofperjury that the foregoing is true and correct.
Executed
on March 17, 2008
JACLYflN
OFFICIAL SEAL
Notlry Public. State of
Illinois
My
Commission
ElCpi'res
September
18. 2010
Electronic Filing - Received, Clerk's Office, March 18, 2008
CERTIFICATE OF SERVICE
I, the undersigned, certify that on this 18th day of March, 2008, I have served
electronically the attached
MOTION FOR LEAVE TO FILE CONSOLIDATED REPLY
and
CONSOLIDATED REPLY TO RESPONSES OF ILLINOIS EPA AND MIDWEST
GENERATION TO RENEWED MOTION TO INTERVENE
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 18, 2008
Electronic Filing - Received, Clerk's Office, March 18, 2008
14
SERVICE LIST
(AS 07-04)
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 18, 2008
