BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
1
PROPOSED NEW CAIR SOz, CAIR NOX
)
ANNUAL TRADING PROGRAMS,
)
R06-26
35
1LL.ADM.CODE 225,
)
(Rulemaking
-
Air)
CONTROL OF EMISSIONS FROM LARGE
)
COMBUSTION SOURCES,
1
SUBPARTS A, C, D, AND E
)
NOTICE OF FILING
To:
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
James R. Thompson Center
Suite 1 1-500
100 West Randolph
Chicago, Illinois 6060
1
Persons included on the
ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that we have today filed with the Office of the Clerk of the
Pollution Control Board
REQUl$ST TO CLARIFY SECOND NOTICE OPINION, copies of
Dated: August
2 1,2007
Sheldon A. Zabel
Kathleen C. Bassi
Stephen J. Bonebrake
SCHIFF
HARDIN, LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
3 12-258-5500
Electronic Filing, Received, Clerk's Office, August 21, 2007
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
1
)
PROPOSED NEW CAIR SOz, CAIR NOX
)
ANNUAL TRADING PROGRAMS,
1
R06-26
35
1LL.ADM.CODE 225,
)
(Rulemaking
-
Air)
CONTROL OF EMISSIONS FROM LARGE
)
COMBUSTION SOURCES,
)
SUBPARTS A, C, D, AND E.
1
REQUEST TO CLARIFY SECOND NOTICE OPINION
NOW COMES Participant, DYNEGY MIDWEST GENERATION, INC. ("Dynegy"), by
and through its attorneys, SCHIFF
HARDIN LLP, and pursuant to 35 Ill. Adm. Code
$5
102.1 10
and 102.108, for the reasons set forth below, requests the Board to waive non-statutory
requirements and to accept the attached letter, clarifying a point in the Second Notice Opinion
(July 26,2007). Dynegy does not seek a substantive change to the rule adopted at Second Notice
but rather merely to clarify a point made clear in the attached letter.
Respectfully submitted,
DYNEGY MIDWEST GENERATION, INC.,
MIDWEST GENERATION, LLC, and
SOUTHERN ILLINOIS POWER COOPERATIVE
by:
Electronic Filing, Received, Clerk's Office, August 21, 2007
Dated: August 2 1,2007
Sheldon A. Zabel
Kathleen
C. Bassi
Stephen
J. Bonebrake
SCHIFF
HARDIN, LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
3 12-258-5500
Fax:
3 12-258-5600
Electronic Filing, Received, Clerk's Office, August 21, 2007
Dynegy
Midwest
Generatrota,
Int.
~ooo
Louisla
na Street,
Suits
38uo
Hausf on, Texas 77002
Phurre
71
j.~v?..64uo
www.dy negy.com
August
2
1,2007
The
M~norablc Thon~as
E.
Johnson
Illinois Pollution Control Board
James
R. Tl~ornpson Center
100
W.
Randolph,
Suite
11-500
Chicago, Illinois 60601
Dear Mr. Johns-on:
Dynegy offers this letter to clarify a misunderstanding surrounding language in the July 26,2007
Opinion
and
Order
of
the
Illinois Pollution
Control Board
in
R06-26,
Proposed New
Clean
Air
Interstate
Rules (CAIR), S02, NOx Annual and NOx
Season Trading Programs,
35
ILL.
ADM.
CODE
225, Subparts
A,
C, D,
E,
and
F. In the Joint Motion to Amend the Proposed
Rulemaking
filed
on
March
13,2007
Dynegy and lEPA agreed that
D
ynegy's pending
Motion to
Dismiss would be withdrawn if the Board included the offered amended language in the Board's
First Notice,
On
page 6 of the PCB, Opinion
and
Order of the
Board,
in
the paragraph
labeled "Motion lo
Dismiss
and
Amend"
the Board correctly states that "on March
13,2007,
IEPA
and Uynegy filed
a joint
motion to
amend
Section
225.465(b)
(4)
(B) of
the
proposed
rule
to
address
Dynegy's
concerns regarding the manner in which the Clean
Air
Set
Aside (CASA)
provisions
penalized
sources with
consent decrees
relative
to
their baghouse projects."
The Board
also correctly
states
that Dynegy
requested
that the Board
stay action on the
motion
to dismiss and that Dynegy and
the
IEPA
agreed that
if
the
Board included the offered amendatory language of the Joint Motion
in the
Board's First
Notice of the Illinois Clean Air Interstate Rule,
Dynegy
would withdraw its
Matian
to
Dismiss.
However, the
Board
incorrectly
states
rhat its
April 19,2007
First-Notice Opinion and Order
incorporated the amendatory language offered by
Dynegy/lEPA
in the Joint Motion and that
Dynegy had Fdiled
to
file the
promised
withdrawal ofthe Motion to Dismiss.
In
fact a
comparison
of
the amendatory language offered
by
DyncgyiIEPA
in
the
Joint Motion,
the
First-
Notice Opinion and Order, and the Second-Notice Opinion and Order clearly illustrates that at
First-Notice
rule
at Section
225.465
(b) (4) (B) in the very last line it uses the term "heat ratio"
instead of
the term "heat rate", the term used
in
offered amendatory language and
upon Second-
Notice. This First-Woticc error, while appearing
to
be a
typog~aphical error,
significantly
Electronic Filing, Received, Clerk's Office, August 21, 2007
The Honorable Thomas
E.
Johnson
Illinois
Pollution Control
Board
August
2
1,2007
Page
2
changed
the
meaning
of
the
provision. It
was
one of many
changes
that were corrected
or
requested
between
First
and Second
Notice.
Since
the lang~tage
uscd
by
the
Roard
in
its
First Notice differed in a significant
manner
from the
offered amendatory
language
of the
Joint Motion, Dynegy
was
not
in
a
position
to withdraw the
Motion
to
Dismiss, nor
was
it
required
to
do
so
under
its agreement with XEPA,
Upon Second-
Notice, when
he
actual language change was
made, the
Board,
upon
its own
motion, struck
Dynegy's Motion
ta
Dismiss making
it
impossible for Dynegy to withdraw the
Motion
to
Dismiss. Had the
change
been made at First-Notice
or
were the Motion
to
Dismiss
still
alive
following Second Notice, Dynegy would
have promptly
filed
the promised withdraw
of
the
Motion
to
Dismiss.
Hopefully,
this
letter provides
some
clarity as to
the
actions
of
Dynegy
in this regard. We have
arranged for
a
copy
of
this
letter
to
be
placed
in the
nrlernaking
docket for PCB Docket No.
RUG-
26.
Please
advi
se
should
you have any conirnerlts
or concerns.
cc:
Vicki
Thomas,
JCAR, Executive
Director
Mcntbcrs
of
SCAR
Honorable Doug
Scott,
Director,
IEPA
Mr.
Steve Frenkel,
Sr.
Policy Development,
Office
of
the
Governor
Electronic Filing, Received, Clerk's Office, August 21, 2007
CERTIFICATE OF SERVICE
I, the undersigned, certify that on this 21 day of August, 2007, I have served
electronically the attached
REQUEST TO CLARIFY SECOND NOTICE OPINION
upon the
following persons:
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
James R. Thompson Center
Suite 1 1-500
100 West Randolph
Chicago, Illinois 6060 1
and electronically and by first-class mail with postage thereon fully prepaid and affixed to the
persons listed on the
ATTACHED SERVICE LIST.
Sheldon A. Zabel
Kathleen C. Bassi
Stephen J. Bonebrake
SCHIFF
HARDIN, LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
3 12-258-5500
Electronic Filing, Received, Clerk's Office, August 21, 2007
SERVICE LIST
(R06-26)
Richard R. McGill, Jr.
Hearing Office
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph
Suite 1 1-500
Chicago, Illinois 6060 1
mcgillr@,ipcb.
-
state.il.us
Matthew J. Dunn, Division Chief
Office of the Illinois Attorney General
Environmental Bureau
188 West Randolph, 20" Floor
Chicago, Illinois 6060 1
mdunn@,atg. state.il .us
David Rieser
James T. Harrington
Jeremy R. Hojnicki
McGuireWoods LLP
77 West Wacker, Suite 41 00
Chicago, Illinois 6060 1
drieser@mc~uirewoods.com
j harrington@,mcguirewoods.com
-
j
hoinicki@,mcguirewoods.com
-
Katherine D. Hodge
N.
LaDonna Driver
HODGE DWYER ZEMAN
3 150 Roland Avenue, P.O. Box 5776
Springfield, Illinois 62705-5776
khodge@~hdzlaw.com
nldriver@~hdzlaw.com
Faith E. Bugel
Environmental Law and Policy Center
3
5
East Wacker Drive, Suite 1 3 00
Chicago, Illinois 6060 1
fbugel@elpc.org
Rachel Doctors, Assistant Counsel
John J. Kim, Managing Attorney
Air Regulatory Unit
Division of Legal Counsel
Illinois Environmental Protection Agency
102 1 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
rachel.doctors@,illinois.gov
j0hn.i .kim@/illinois.gov
Virginia Yang, Deputy Legal Counsel
Illinois Department of Natural Resources
One Natural Resources Way
Springfield, Illinois 6270 1
-
127 1
virginia. vann@,illinois. gov
William A. Murray
City of Springfield, Office of Public Utilities
800 East Monroe,
4th Floor, Municipal
Building
Springfield, Illinois 62757-000 1
bmurray@,cwlp.com
S. David
Farris
Manager, Environmental, Health and Safety
City Water Light
&
Power
201 East Lake Shore Drive
Springfield, Illinois 62757
dfarris@,cwlp.com
Keith I. Harley
Chicago Legal Clinic, Inc.
205 West Monroe Street,
4" Floor
Chicago, Illinois 60606
kharley @/kentlaw.edu
Electronic Filing, Received, Clerk's Office, August 21, 2007
SERVICE LIST
(R06-26)
Sasha M. Reyes
Steven J. Murawski
Baker
&
McKenzie
One Prudential Plaza, Suite 3 500
1 3 0 East Randolph Drive
Chicago, IL 60601
Daniel D.
McDevitt
General Counsel
MIDWEST GENERATION,
LLC
440 South LaSalle Street, Suite 3500
Chicago, Illinois 60605
dmcdevitt@,mwgen. com
Bruce Nilles
Sierra Club
122 West Washington Avenue, Suite 830
Madison, Wisconsin 53703
bruce.nilles@,sierraclub.org
James H. Russell
Winston
&
Strawn LLP
3 5
W. Wacker Drive, 4oth Floor
Chicago, Illinois 6060 1
jrussell~,winston.com
Bill S. Forcade
Katherine M. Rahill
JENNER
&
BLOCK LLP
One IBM Plaza
Chicago, Illinois 6061 1
Karl A. Karg
Cary R. Perlman
Andrea M. Hogan
Latham
&
Watkins LLP
5800 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
karl.carrz@,lw.com
cary .perlrnan@lw.com
andrea. hogan@,lw .com
Electronic Filing, Received, Clerk's Office, August 21, 2007