MOTION TO WITHDRAW A PORTION OF THE

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

NOx

TRADING PROGRAM:

AMENDMENTS TO

ILL.

ADM.

CODE PART217

)

R06-22

(Rulemaking - Air)

NOTICE OF FILING

TO:

Mr. John T. Therriault

Assistant

Clerk of the Board

Illinois

Pollution Control Board

100 West Randolph Street

Suite 11-500

Chicago.

Illinois 60601

(VIA ELECTRONIC MAIL)

Timothy J. Fox. Esq.

Hearing

Officer

Illinois Pollution Control Board

100 West Randolph Street

Suite 11-S00

Chicago,

Illinois 60601

(VIA ELECTRONIC MAIL)

(SEE PERSONS ON ATTACHED SERVICE LIST)

PLEASE

TAKE NOTICE that I have today filed with the Office of the Clerk of the

Illinois

Pollution Control Board

MOTION TO WITHDRAW A PORTION OF THE

ILLINOIS ENVIRONMENTAL REGULATORY GROlJP'S PENDING MOTION

FOR RECONSIDERATION

AND CLARIFICATION OF TIlE ILLINOIS

POLLlJTION CONTROL BOARD'S AUGUST 20, 2009

ORnER

a copy ofvdlich is

herewith

upon you.

Dated:

October 15,2009

Alec M. Davis

General

Counsel

ILLINOIS ENVIRONMENTAL

REGULATORY GROUP

21S

East Adams Street

Springfield.

Illinois 62701

17)

S12

Respectfully submitted.

ILLINOIS ENVIRONMENTAL

REGULATORY GROUP.

By:

/s/ Katherine D. Hodge

One of Its Attorneys

Katherine D. Hodge

N. LaDonna Driver

Monica T. Rios

HODGE DWYER

DRIVER

31S0

Roland Avenue

Post Office Box

S776

Springfield. Illinois 62705

(217) 523-4900

THIS FlUNG SUBMITTED ON RECYCLED PAPER

Electronic Filing - Received, Clerk's Office, October 15, 2009

CERTIFICATE OF SERVICE

I, Katherine D. Hodge, the undersigned, hereby certify that I have served the

attached

MOTION TO WITHDRAW A PORTION OF THE ILLINOIS

ENVIRONMENTAL REGULATORY GROUP'S PENDING MOTION FOR

RECONSIDERA TION AND CLARIFICATION OF THE ILLINOIS POLLUTION

CONTROL BOARD'S AUGUST 20, 2009 ORDER upon:

Mr.

John

Therriault

Assistant

Clerk of the Board

Illinois Pollution

Control Board

100 West Randolph Street

Suite 11-500

Chicago,

Illinois 60601

Timothy J.

Esq.

Hearing

Officer

Illinois Pollution Control Board

100 West Randolph

Suite 11-500

Chicago,

Illinois 60601

Kathleen C.

Esq.

Schiff Hardin, LLP

6600

Tower

South Wacker Drive

Chicago. Illinois 60606-6473

electronic mail on October 1 2009.

Rachel L. Doctors, Esq.

Assistant

Counsel

Division of Legal Counsel

Illinois Environmental Protection Agency

102

North Grand A ven

L1C

Post Office Box 19276

Springfield, Illinois 62794-9276

Mitchell

Cohen. Esq.

General

Counsel

Illinois Department of Natural Resources

One Natural Resourees Way

Springfield, Illinois 62702-1

Matthew J. Dunn, Esq.

Chief, Environmental Bureau

Illinois Attorney

General's Office

69 West Washington Street

Suite 1800

Chicago.

Illinois 60602

Katherine D. Hodge

IERG:OOllR Dockcts/Pi1lR06-22/NOF cos Motion to Withdraw

Electronic Filing - Received, Clerk's Office, October 15, 2009

BEFORE TI-:!E ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

NOx

TRADING PROGRAM:

AMENDMENTS TO 35 ILL.

ADM.

CODE PART 217

)

R06-22

(Rulemaking

- Air)

MOTION TO WITHDRAW A PORTION OF THE

ILLINOIS ENVIRONMENTAL REGULATORY GROUP'S PENDING

MOTION FOR RECONSIDERATION AND CLARlFICATION OF THE

ILLINOIS POLLUTION CONTROL BOARD'S AUGUST 20, 2009 ORDER

NOW COMES the ILLINOIS ENVIRONMENTAL REGULATORY GROUP

("'rERG").

by and through its attorneys, Alec M. Davis and HODGE DWYER &

DRIVER. and hereby moves to withdraw the portion of its pending Motion for

Reconsideration and Clarification

of the Illinois Pollution Control Board's August 20,

2009 Order ("Motion")

relates to JERG's request for reconsideration. At the same

time. IERG hereby states that it wishes to maintain the portion

of its pending Motion that

relates

to IERG' s request for clarification.

PROCEDURAL HISTORY

On September 14, 2009, IERG filed a Motion for Reconsideration and

Clarification

of the Illinois Pollution Control Board's August 20. 2009 Order, requesting

that the Illinois Pollution

Control Board ("Board") reconsider its determination that an

emergency does not

warranting the adoption

of an emergency rule and clarify

whether the Board will accept a rulemaking proposed pursuant to Section 9.9

of the

Illinois Environmental Protection Act

("Ace).

415 ILCS 5/9.9, from parties other than

the Illinois Environmental Protection Agency

("Illinois EPA"). On

Electronic Filing - Received, Clerk's Office, October 15, 2009

September 29,2009, the Illinois EPA filed a Motion to File Instanter and For Extension

of Time to File Response to Motion for Reconsideration and Clarification of the Illinois

Pollution

Control Board's August 20, 2009 Order ("Illinois EPA Motion") requesting a

two-week extension

of the deadline to respond to IERG' s Motion. The Illinois EPA's

stated basis for the request was that

was involved in discussions with IERG regarding

issues raised in the Motion.

The Illinois EPA further reported that IERG had been

informed

of the request for extension of time and did not object.

On October 1,2009, via Hearing Officer Order, the Board granted the Illinois

EP A's Motion and directed the Illinois EPA to file its response to IERCr s Motion on or

before Tuesday, October 1 2009. Hearing Officer Order,

In the Matter of NOx

. Amendments

ill. Adm.

Part

(flI.Pol.ControI.Bd. Oct. 1. 2(09). On October 14.2009, the Illinois EPA filed a second

Motion

to File Instanter and For

of Time to File Response to Motion for

Reconsideration and Clarification of the Illinois Pollution Control Board's August 29,

2009 Order.

The Illinois EPA

that it is in

with IERG

raised in the Motion and requested an extension

of time to file a response to

IERG's Motion until October 26, 2009.

II.

WITHDRAWAL OF PORTION OF IERG'S PENDING MOTION

RELA TED TO REQlJEST FOR RECONSIDERATION

the

lERG appreciates the willingness

of the Illinois EPA to clarify and address the

compliance obligations

ofIERG's Member companies following the Board's August 20,

2009 Order

denying IERG' s request for emergency rulemaking to adopt an emergency

rule for the regulation

of nitrogen oxide ("N Ox") emissions of non-electrical generating

units

('"Non-EGUs") for the 2009 ozone season.

According to the Illinois EPA, the State has "opted to meet the NOx SIP Call

emission budget requirement without having Non-EGUs participate in a NOx trading

program." Letter from John

Kim, Chief Legal Counsel, Illinois EPA to Deirdre

Himel', Executive Director, IERG (Oct. 9, 2009), attached hereto as Exhibit 1. The

Illinois

EPA also states that it has discussed with the United States Environmental

Protection Agency ("USEP

N')

that sufficient emissions and permit restrictions,

regulations and consent decrees are in place, at this time, to demonstrate that Illinois can

meet

it NOx budget obligations for the 2009 ozone season.

See

Exhibit 1 In addition.

USEPA has indicated that it looks forward to working with the Illinois EPA in evaluating

the adequacy

of those restrictions in meeting emission budget requirements of the N Ox

SIP Call.

Lettcr from Cheryl

Ncwton, Director,

and Radiation Division,

USEPA Region V to Laurel Kroack,

Chicf~

Bureau of Air, Illinois EPA (Sept. 24, 20(9),

attached hereto as Exhibit 2. The Illinois EPA and USEPA have indicated, as more fully

described

in Exhibits

and

that since Non-EGUs in Illinois are not currently part of

CAIR

Trading Program,

sources

compliance obligation to hold NOx allowances on November 30,2009, in an amount

equal to their

2009 ozone season emissions.

See

Exhibit 1 and Exhibit 2. Similarly, the

Illinois EPA has determined that the obligation to hold NOx allowances at the end of the

2009 ozone season is no longer an applicable requirement as defined in Section 39.5(1)

of the Act, and that Clean Air Act Permit Program ("CAAPP") permits may be amended

accordingly pursuant to the minor permit modification provisions set forth in

Section

39.5(14) of the

Exhibit

Electronic Filing - Received, Clerk's Office, October 15, 2009

IERG agrees that the statements made by the Illinois EPA and USEP A, together

with the finding that

sources may accordingly amend their C AAPP permit requirements

through the

minor permit modification process, substantially addresses the compliance

obligation to hold

NOx allowances for the 2009 ozone season.

Therefore,

based on the representations made by the Illinois EPA and USEPA in

Exhibits

1 and 2, !ERG respectfully withdraws the portion of its pending Motion related

to its request for reconsideration.

III.

MAINTENANCE OF PORTION OF IERG'S PENDING MOTION

RELATED TO REQUEST FOR CLARIFICATION

In its pending Motion, IEH.G also requests clarification regarding "whether the

Board will accept a rulemaking proposal proposed pursuant to

Section 9.9 of the Act

from parties other

than the llIinois EPA." Motion at

14.

IERG does not withdraw this

portion

of the pending Motion, but rather respectfully maintains its request that the Board

provide clarification

on this

as described in tbe pending Motion.

IV.

CONCLUSION

IERG appreciates the efforts made by the lllinois EPA to clarify and address the

compliance obligations

of IERG's Member companies related to potential violation of

Subpa11 U requirements and CAAPP permit conditions requiring that sources hold

sufTicient NOx allowances equal to their 2009 ozone season emissions on November 30,

2009.

IERG thanks the Illinois EPA for its actions to secure a letter from USEPA

substantiating the Illinois EPA's position that sources subject to Subpart

have no

compliance

obligation to hold NOx allowances for the 2009 ozone season.

WHEREFORE, the ILLINOIS ENVIRONMENTAL REGULATORY GROUP

requests that the Board grant this Motion to withdraw the portion of !ERG's pending

Electronic Filing - Received, Clerk's Office, October 15, 2009

Motion related to the request for reconsideration. !ERG further states that

wishes to

maintain the portion

of its pending Motion related to the request for clarification and

requests that the Board provide such clarification as requested on the issues raised

therein.

Dated: October

15,2009

Alec M. Davis

General Counsel

ILLINOIS ENV[RONMENTAL

REG1JLATORY GROUP

215

Adams Street

Springfield. Illinois

62701

(2I7)

512

I ERG :00 IIR Dockcts/Fil/R06-22/Motion to Withdraw

Respectfully submitted,

ILLINOIS ENVIRONMENTAL

REGULATORY GROUP,

By:

lsi

Katherine D. Hodge

One of Its Attorneys

Katherine

D. Hodge

N. LaDonna Driver

Monica

T. Rios

HODGE DWYER

DRIVER

3150 Roland Avenue

Post Officc Box 5776

Springfield. Illinois

62705

17) 523-4900

Electronic Filing - Received, Clerk's Office, October 15, 2009