BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

1

1

PROPOSED NEW 35 1LL.ADM.CODE PART 225

)

PCB RO6-25

CONTROL OF EMISSIONS FROM

)

Rulemaking

-

Air

LARGE COMBUSTION SOURCES

1

NOTICE OF FILING

To:

Dorothy Gunn, Clerk

Marie Tipsord

Illinois Pollution Control Board

Hearing Office

James R. Thompson Center

Illinois Pollution Control Board

Suite 11

-500

James R. Thompson Center

100 West Randolph

100 W. Randolph

Chicago, Illinois 60601

Suite 11

-500

Chicago, Illinois 60601

Gina Roccaforte, Assistant Counsel

Persons included on the

Charles Matoesian, Assistant Counsel

ATTACHED SERVICE LIST

John J. Kim, Managing Attorney, Air

Regulatory Unit

Division of Legal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue, East

P.O. Box 19276

Springfield, Illinois 62794

-9276

PLEASE TAKE NOTICE that we have today filed with the Office of the Clerk of the

Pollution Control Board PARTICIPANTS DYNEGY MIDWEST GENERATION, INC.,

KINCAID GENERATION,

L.L.C.; and MIDWEST GENERATION, LLC'S

REQUEST TO

CANCEL HEARINGS AND RESCIND SCHEDULE,

copies of which are herewith served

upon you.

IS/

Xatk

6

BPB~~

Kathleen C. Bassi

Dated: May 2, 2006

---

SCHIFF HARDIN LLP

Attorneys for

Dynegy Midwest Generation, Inc, Midwest Generation, LLC, and Southern

Illinois Power Cooperative

Sheldon

A. Zabel

Kathleen C. Bassi

Stephen

J. Bonebrake

Joshua

R. More

Glenna L. Gilbert

6600 Sears Tower

233 South Wacker Drive

Chicago, Illinois 60606

3 12

-258-5567

FAX: 312

-258-5600

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

IN THE MATTER OF:

1

PROPOSED NEW 35 1LL.ADM.CODE PART 225

)

PCB R06-25

CONTROL OF EMISSIONS FROM

)

Rulemaking

-

Air

LARGE COMBUSTION SOURCES

1

REQUEST TO CANCEL HEARINGS AND RESCIND SCHEDULE

NOW COME Participants, DYNEGY MIDWEST GENERATION,

INC., KINCAID

GENERATION, L.L.C., and MIDWEST GENERATION, LLC, (collectively

"Participants"), by

and through their attorneys Schiff

Hardin, LLP, and Jenner

&

Block LLP, and request that the

Board cancel the hearings and rescind the schedule established for this matter in the Board's

Order of March 16,2006, and the Hearing Officer's Order of March 16,2006 (collectively, the

"March

26

Orders"). In support of their request, Participants state as follows:

1.

Participants filed a complaint in the Circuit Court,

Sangamon County, Illinois,

seeking injunctive and other relief with respect to the March 16 Orders. In a Motion for

Preliminary Injunction, attached hereto as Exhibit 1, Participants moved the Circuit Court to

enjoin both the Board and the Illinois Environmental Protection Agency (

"Agency") from

proceeding in this matter under Section 28.5 of the Act,

41 5 ILCS 5128.5, and from proceeding

under the hearing schedule established by the Board and Hearing Officer in this matter on March

16,2006. The Circuit Court's May 1,2006, Order granted Participants' Motion for Preliminary

Injunction, attached hereto as Exhibit 2.

2.

Consistent with the Court's Order, Participants submit that the Board and the

Agency are prohibited from proceeding pursuant to the March 16 Orders and hereby request that

---

the Board cancel the hearings and rescind the schedule established for this matter in the March

16 Orders

WHEREFORE, for the reasons set forth above, Participants DYNEGY MIDWEST

GENERATION, INC., KINCAID GENERATION, L.L.C., and MIDWEST GENERATION,

LLC, request that the Board cancel the hearings and rescind the schedule established in this

matter by the March

16 Orders.

Respectfully submitted,

DYNEGY MIDWEST GENERATION, INC., and

MIDWEST GENERATION, LLC

by:

IS/

Katfiken C.

Bassi

One of Their Attorneys

KINCAID GENERATION, L.L.C.

by:

is/

Bills.

Forcade

Bill S. Forcade

Dated: May 2,2006

Sheldon A. Zabel

Kathleen C. Bassi

Stephen J. Bonebrake

Joshua R. More

Glenna L. Gilbert

SCHIFF

HARDIN, LLP

6600 Sears Tower

233 South Wacker Drive

Chicago, Illinois 60606

3

12-258-5500

Fax: 3 12-258-5600

Bill S. Forcade

JENNER

&

BLOCK LLP

One IBM Plaza

Chicago, Illinois 6061 1

3 12

-222-9350

Fax: 3 12

-527-0484

---

Matian far

PreIimCnaw Injunctian

(Circuit Cwrt, Ith

Judicial Circuit,

SANGAMON COUNTY. ILLINOIS

. .

%" -.

Dynegy Midw~t Generation, Inc., Kincaid

Generation,

E%.c:,

andMidwest

i

Generation, L.L.C.,

)

1

Plaintiffs,

)

No. 2006-CH-213

1

VS.

)

Judge Londrigan

1

Illinois Pollution Control Board and Illinois

1

Environmental Protection Agency,

1

1

Defendants.

MOTION FOR PRELIMINARY INJUNCTION

NOW COME PLAINTIFFS Dynegy Midwest Generation, Inc.,

F

ation,

L.L.C., and Midwest Generation, L.L.C. ("Plaintiffs"), by and

for a preliminary injunction and state as follows:

1.

Pursuant to Section 11

-102 of the Injunction Act (735 ILCS 5111-102), plaintiffs

pray for entry of a preliminary injunction restraining and enjoining Defendants, the Illinois

Pollution Control Board

("PCB") and the Illinois Environmental Protection Agency

("IEPA"),

from proceeding to consider and adopt the proposed mercury emission regulation described in

Paragraph 2 hereof pursuant to Section 28.5 of the Illinois Environmental Protection Act (the

"Act"), 415 ILCS 5128.5, and conducting hearings pursuant to the schedule adopted by the PCB

on March 16,2006 (the

"Schedule"), until further order of the Court

2.

As discussed more fully in the attached Memorandum in Support of Motion for

'

Preliminary Injunction and the Complaint, the IEPA has submitted the "Proposed new 35 Ill.

Adm. Code 225 Control of Emissions from Large Combustion Sources (Mercury)

" (the

"Mercury Proposal") to the PCB for review and approval under the fqiiefqiieilif&l."&it.'track''

. .. .

.. .

procedures provided for in Section 28.5 of the Act.

---

3.

Defendant PCB has accepted and is proceeding to adopt the Mercury Proposal

under Section 28.5 of the Act.

Despite the filing of motions by Plaintiffs opposed to the

application of the fast track

rulemaking procedures as unauthorized as a matter of law, Defendant

IPCB adopted the Schedule,

whch accelerates the hearing process, such that the first hearing

must be on or before May 8, 2006; the second hearing must he on or before June 7,2006; and the

third and last hearing must be on or

before June 21, 2006.

4.

Plaintiffs are likely to prevail on the merits of their claims. Defendant IEPA, by

filing the Mercury Proposal with the PCB and initiating fast track procedures under Section

28.5, and Defendant IPCB, by accepting the proposal under Section 28.5 and setting the

expedited hearing Schedule, have acted outside their authority as the Mercury Proposal does not

meet the statutory requirements for consideration under Section 28.5 of the Act.

5.

Plaintiffs will suffer irreparable harm if the Defendants are allowed to proceed

under Section 28.5 and the accelerated

mlemaking Schedule. Defendants' actions under Section

28.5 are

unlawful, and as such those actions cause irreparable harm. Further, Plaintiffs would be

deprived of their rights to participation in a full mlemaking process with the procedural

safeguards necessary to protect their interests as operators of electric generation stations. Absent

preliminary injunctive relief

iiom this Court, it is highly unlikely there would be any resolution

on the Complaint in this case prior to June 21, 2006, the latest date of the last PCB hearing

under the Schedule. The Mercury Proposal, if adopted, would have substantial and costly

impacts on Plaintiffs' business and Plaintiffs should not be deprived of their right to participate

and protect their interests in the face of such impacts

6.

If fast track

rulemaking under Section 28.5 is permitted to proceed, the Plaintiffs

e>

do not have an adequate remedy at law. The Plaintiffs will not be able to prepare adequately and

present testimony for the administrative record that describes the individual

ham that each will

iS0505857.1 4!13/2006 CJN

KAV/

2

---

incur.

Because appeals of rulemakings are limited to the

information developed in the

administrative record, 415 ILCS

5/41(b), the record will be deficient. Moreover, there is no way

-..: . .. . :.

to measure the damages that the Plaintiffs'will incur should the rulemaking proceed, and

Plaintiffs currently are unaware of any means to recover such damages from the IEPA or

PCB.

WHEREFORE, Plaintiffs request that this Court issue a Preliminary Injunction enjoining

Defendants

fiorn proceeding to consider and adopt the Mercury Proposal pursuant to Section

28.5 of the Act, and conducting hearings and taking any other action pursuant to the Schedule

adopted

by the PCB, until further order of this Court.

Dated: April 13,2006

Respectfully submitted,

Bill S. Forcade

JENNER

&

BLOCK LLP

One

IBM Plaza

Chcago, IL 6061 1

Telephone:

312

-222-9350

Facsimile:

312

-527-0484

By.

One of Its

AttoGeys

PLAINTIFF KINCAID GENERATION, L.L.C.

Sheldon A. Zabel

Stephen

J. Bonebrake

Kathleen

C.

Bassi

SCHIFF

HARDLN LLP

6600 Sears Tower

Chicago,

IL 60606

Telephone:

312

-258-5500

Facsimile:

3

12-258-5600

PLAINTIFFS DYNEGY MIDWEST GENERATION, INC.

and

MDWEST GENERATION, L.L.C.

Charles

J. Northrup

Sorling Northrup Hanna

Cullen

&

Cochran Ltd.

P.O. Box 5131

Springfield, IL 62705

Telephone:

21 7-544-1 144

ALL PLAINTIFFS

/SO505857

I 411312006 CJN

KAVj

---

Qrder on Motion for

(Sangamon Countv No. 21(>(>6-CH-213, May 1,2006)

---

IN

THE

CIRCUIT COURT FOR

T!-IF SEVENTH JIIDICIAL ClRCl !I'l'

Uyncrgy ?didwest Generation.

Inc..

1

Kincriid .;encrolion. I. .L.C.. and

Midwes! Cicnere:ion. I..l,.C.,

)

Case

No. Oh-CII-2 I :i

i

Plaintiffs.

i

1

v<,

i

Illinois Poilution Contuol Hoard :md lilinois

i'n~ironr,~cnta!

I'roteciion Agoney,

)

('.~us~

callcd Tor hcaring on Motion for Prelirniiluy injunction and [he Coun

linds

as

l'~lIl0,~s:

Tk purtics agrce that to prevail, ihc

party requesting a preiiminq injunction nnlsi shm~

1ha1:

1

,

it has a clear and lawful right for which it seeks prokction.

2

it will sut‘fcr irreparable harm absent (he greliminsry isunction.

3'

here is no adequate remedy at law. and

4.

it is likely

:o

be successful on the merits.

Grandhers v. Di&&$~&279

Ill. App.

hi

886. 216 ill. !kc. 338

61>5

N, E.

Zd

3%

(I" Dis! 1996)

'h

party must also esrahiish !ha! the balance ol:he hardships bctwcen the parries

w@s

ill

I~VW

i-*fgrmiing

il

preiiminary injunction, In balancing !he hardships, "the (:our! sl!ouid

u!ir

consjiicr

cf{w! of the

injunction on the

Grandbergv. Didrickson. 'l'he partics dso

~QSCC tha thcre is no question of

Siw,

only a question of law for tl~c Couc lo consider.

Afies

review of the, Petition !he rcsponsz io the Peiition, case law. corrcspor~ding

:\iithi),-itiis and oral argurnvnt, the (:ouri fir.& as foilows:

---

c,!ehlisbcd a likelihood of' success on their claim []..at the lllinoii; Imvironmental Protection

,'r~~w>cy

iircs

filed and the lllinuis Pollution Control Board has acccpted the Illinois Mcrwry

Prciposn, undur Section

28.5

ofthe Act in violation of the law. Thc lllinois Mcrcury hposd

does not meet thc statutory

definitio~l of "required ro be adopted." A proposed rule qudifies f<r

Ijs!

traclc procedures iinder Section

28.5

of the Act or.ly if the United States Environmentnl

I'rofcctirtn Agency has authority under the federal Clean Air Act to impose sanctions egainst

lll~r~ois

i!'!herulc is nor adopted by the Illinois Pollu!ion Control Board. The term "sanctions" is

not

dAed

by

case

!;lwor the Act. 'This Court docs not beliesc tie imposition of'& fcderal plan

until

sucn

time as liliiiois adopts rulcr governing mercury emissions would be

ti

sanction under

!lie Act.

)

Mancini? the hardshia? and the effect on ihe

p&lJs,

There appe;us lo be

liulc risk dharm io the environmental iiiteresrs on the public since Unilrd States Environmcnlnl

I'ratecti~m Agency will impose the federal mercuiy constraints of ihc Clcun Air Mcrcury

Rule

if

!Iliitois mles are not in place. 'The intcrests of the public may be Setter

served

by n more fonnal

:wd

CX~C:IS~VC

rule makjng procedure under Section 27 oi'thc Act. This would allow the public lo

wciyh ths cost benefit of the lllinois Environmental Protection Agency plan versus that

of the

Ihilcd 5lntcs Environmental Prolection Agency.

:.I

)

Irrepii.;~blc harm.

How

is this dirfeicnt than thc unsucccssfiil hidtier on the

!ir.$fd.k~?

@@he&

Joint Venture

v.

City of Ev~.

332 111. App. 3d 163. (i'irst IXst.

2002). ')he Plainliffi

arc

enlitled to a fnir hearing as much as the hidder in m"'u wants

to

parricipaie in a fair bidding process. In the present casc, the use oTSection 28.5 or fast track,

prohibih the Plaintiff from participation in a fair hearing. In this casc the

fllajnf ffs have

mrahiishrd a prima facie case as to !he element of irreparable ham

4)

Inadcap&~edv at Law

The Coun finds rhe Plaintiffs have cstublishcd a

prin~ii facie

case for

the element of inadequate rrmedy at law.

As

in

&fs&

the harm 10

biddcrs, (the plnii~tif'fs in the present case) and the public alike will likcly continuc unebared

tinless

the govemrnen! body is cnjoined from maintaining an unfair hearing. Keefc-Sb, 332 111.

i\pp 3d 163 at 176-177..

I:i conclusioti the public and the Plaintiffs have an interest in ensuring thar rule-making, in

thc SIRIC of Illinois complies with Illinois procedural requirements and that the public's

p;uticiprrion rights are preserved. For the rcasons above, the Cowt pnls the PlninrirCs Moticn

Sor I'reli:ninary Iniunclion.

---

CERTIFICATE OF SERVICE

I, the undersigned, certify that on this 2nd day of May, 2006, I have served electronically

the attached DYNEGY MIDWEST GENERATION, INC., KINCAID GENERATION, L.L.C.,

and MIDWEST GENERATION,

LLC's

REQUEST TO CANCEL HEARINGS AND

RESCIND SCHEDULE,

upon the following persons:

Dorothy

Gum, Clerk

Illinois Pollution Control Board

James R. Thompson Center

Suite 11

-500

100 West Randolph

Chicago, Illinois 60601

and by first

-class mail with postage thereon fully prepaid and affixed to the following persons:

Marie Tipsord

Gina Roccaforte, Assistant Counsel

Hearing Office

Charles

Matoesian, Assistant Counsel

Illinois Pollution Control Board

John

J. Kim, Managing Attorney

James R. Thompson Center

Air Regulatory Unit

100 W. Randolph

Division of Legal Counsel

Suite 11

-500

Illinois Environmental Protection Agency

Chicago, Illinois 60601

1021 North Grand Avenue, East

P.O. Box 19276

Springfield, Illinois 62794

-9276

to the participants listed on the

ATTACHED SERVICE LIST

Kathleen C. Bassi

SCHIFF

HARDIN LLP

Attorneys for Dynegy Midwest Generation,

Inc: Midwest Generation, LLC, and

Southern Illinois Power Cooperative

Sheldon A.

Zabel

Kathleen C. Bassi

Stephen J. Bonebrake

Joshua

R. More

Glenna L. Gilbert

6600 Sears Tower

233 South Wacker Drive

Chicago, Illinois 60606

312

-258-5567

FAX: 312

-258-5600

---

SERVICE LIST

William A. Murray

Special Assistant Corporation Counsel

Office of Public Utilities

800 East Monroe

Springfield, Illinois 62757

Christopher W.

Newcomb

Karaganis, White

&

Mage., Ltd.

414 North Orleans Street, Suite 810

Chicago, Illinois

6061 0

Faith

E. Bugel

Howard A. Learner

Meleah Geertsma

Environmental Law and Policy Center

35 East Wacker Drive, Suite 1300

Chicago, Illinois 60601

David Rieser

James

T. Harrington

McGuireWoods LLP

77 West Wacker, Suite 4100

Chicago, Illinois 60601

N.

LaDonna Driver

Katherine D. Hodge

Hodge

Dwyer Zeman

3150 Roland Avenue, P.O. Box 5776

Springfield, Illinois 62705

-5776

Bill

S. Forcade

Jenner

&

Block

One IBM Plaza, 40

" Floo~

Chicago, Illinois 6061 1

Keith I. Harley

Chicago Legal Clinic

205 West Monroe Street,

4th Floor

Chicago, Illinois 60606

S. David Farris

Manager, Environmental, Health and Safety

Office of Public Utilities, City of Springfield

201 East Lake Shore Drive

Springfield, Illinois 62757