ILLINOIS POLLUTION CONTROL BOARD
March 5, 2009
DYNEGY MIDWEST GENERATION, INC.
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 09-48
(Variance - Air)
ORDER OF THE BOARD (by G.L. Blankenship):
On January 9, 2009, Dynegy Midwest Generation, Inc. (Dynegy) filed a petition
requesting a variance from the Board’s air regulations limiting emission of mercury.
Specifically, Dynegy seeks relief from the multi-pollutant standard (MPS) in Sections
225.233(c)(1)(A), 225.233(c)(2), 225.210(b) and (d), and 225.233(c)(5). Dynegy requested the
variance for its Baldwin Unit 3 coal-fired power plant in Randolph County. In the petition,
Dynegy waived hearing. On February 5, 2009, the Board identified several informational
deficiencies in the petition and directed Dynegy to file an amended petition to provide the
additional information. The Board allowed Dynegy until March 9, 2009, to file the amended
petition and noted that the 120-day statutory period for the Board to decide this case will
recommence upon the filing of the amended petition.
See
35 Ill. Adm. Code 104.232(a)(2).
On February 18, 2009, Dynegy filed a motion asking the Board to reconsider the
February 5, 2009 order (Mot.) and Dynegy filed an amended petition, accompanied by a motion.
In the motion to reconsider, Dynegy asserts that the “informational deficiencies” identified by
the Board in the February 5, 2009 order “do not rise to the level of jurisdictional deficiencies”
that warrant dismissal of the petition. Mot. at 4. Dynegy asserts that therefore, “it is improper
for the Board to treat Dynegy’s submittal” as an amended petition and recommencing the 120-
day statutory period.
Id
.
In ruling on a motion for reconsideration, the Board will consider factors including new
evidence or a change in the law, to conclude that the Board’s decision was in error. 35 Ill. Adm.
Code 101.902. In Citizens Against Regional Landfill v. County Board of Whiteside, PCB 93-
156 (Mar. 11, 1993), we observed that “the intended purpose of a motion for reconsideration is
to bring to the court's attention newly discovered evidence which was not available at the time of
hearing, changes in the law or errors in the court’s previous application of the existing law.”
Korogluyan v. Chicago Title & Trust Co.
, 213 Ill. App. 3d 622, 627, 572 N.E.2d 1154, 1158 (1st
Dist. 1992).
The Board is unconvinced by Dynegy’s arguments. The information requested in the
Board’s February 5, 2009 order was information necessary to evaluate the petition for variance
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and absent that information the Board would be unable to consider the petition. Dynegy suggests
that the Board’s question might have been answered at a hearing; however, Dynegy waived a
hearing. The Board’s rules specify the information that must be included in a variance petition.
See
35 Ill. Adm. Code 104.200-248. In the February 5, 2009 order the Board found several
deficiencies in the petition. One example of the deficiencies found by the Board is that Section
104.204(b)(2) was not adequately addressed because the petition did not specify the nearest
downwind monitoring station maintained by the Agency that is used for monitoring mercury
emissions for each of Dynegy’s power stations. Rather than dismiss the petition, the Board
allowed Dynegy to file an amended petition. Dynegy has not pointed the Board to any factors
that would warrant the Board reconsidering the February 5, 2009 order. Therefore, the Board
denies the motion to reconsider.
The Board has reviewed the amended petition and finds that the petition meets the
requirements of Section 104.204. The Board accepts the amended petition and notes that the
Board’s decision deadline is June 18, 2009.
I, John Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that the
Board adopted the above opinion and order on March 5, 2009, by a vote of 5-0.
___________________________________
John Therriault, Assistant Clerk
Illinois Pollution Control Board
