BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DYNEGY MIDWEST GENERATION, INC.
(BALDWIN ENERGY COMPLEX),
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB08-W-
(Permit Appeal - Air)
NOTICE OF FILING
To:
John
T. Therriault, Assistant Clerk
Illinois Pollution Control Board
James
R. Thompson Center, Suite 11-500
100 West Randolph
Chicago, Illinois 60601
Alec Messina, General Counsel
Division
of Legal Counsel
Illinois Environmental Protection Agency
1
021 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 the APPEARANCES OF KATHLEEN C. BASSI, STEPHEN J.
BONEBRAKE, and SHELDON A. ZABEL and APPEAL OF CONSTRUCTION PERMIT
FOR THE INSTALLATION OF BAGHOUSE, SCRUBBER, SORBENT INJECTION
SYSTEM, AND BOOSTER FANS AT BALDWIN ENERGY COMPLEX UNIT 3, copies
of which are herewith served upon you.
-1iIUUa
Kathlee~Sl
11/
'Uu/
Dated: April 9, 2008
Electronic Filing - Received, Clerk's Office, April 9, 2008
Kathleen C. Bassi
Stephen
J. Bonebrake
Andrew N. Sawula
Sheldon A. Zabel
SCHIFF HARDIN
LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
312-258-5567
FAX: 312-258-5600
Electronic Filing - Received, Clerk's Office, April 9, 2008
CERTIFICATE OF SERVICE
I, the undersigned, certify that on this 9
th
day of April, 2008, I have served electronically
the attached
APPEARANCES OF KATHLEEN C. BASSI, STEPHEN J. BONEBRAKE,
and SHELDON A. ZABEL and APPEAL OF CONSTRUCTION PERMIT FOR THE
INSTALLATION OF BAGHOUSE, SCRUBBER, SORBENT INJECTION SYSTEM,
AND
BOOSTER FANS AT BALDWIN ENERGY COMPLEX UNIT 3, upon the following
person:
John
T. Therriault, Assistant Clerk
Illinois Pollution Control Board
James
R. Thompson Center
Suite 11-500
100 West Randolph
Chicago, Illinois 60601
and by first class mail, postage affixed, upon the following person:
Alec Messina
General Counsel
Division
of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
~'
Kathleen . Bassi
Kathleen
C. Bassi
Stephen
1.
Bonebrake
Andrew N. Sawula
Sheldon
A. Zabel
SCHIFF HARDIN LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
312-258-5567
FAX: 312-258-5600
Electronic Filing - Received, Clerk's Office, April 9, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DYNEGY MIDWEST GENERATION, INC.
(BALDWIN ENERGY COMPLEX),
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB
08--fp/(L
(Permit Appeal- Air)
APPEARANCE
I hereby file my appearance in this proceeding, on behalf
of Dynegy Midwest
Generation, Inc., (Baldwin Energy Complex).
~:
Katlileen C. Bassi
Schiff Hardin LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
(312) 258-5500
Dated: April 9, 2008
Electronic Filing - Received, Clerk's Office, April 9, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DYNEGY MIDWEST GENERATION, INC.
(BALDWIN
ENERGY COMPLEX),
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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)
)
)
)
)
)
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)
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PCB
08--k!L
(Permit Appeal- Air)
APPEARANCE
I hereby file my appearance in this proceeding, on behalf of Dynegy Midwest
Generation, Inc., (Baldwin Energy Complex).
Steph
Schiff ardin LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
(312) 258-5500
Dated: April
9, 2008
Electronic Filing - Received, Clerk's Office, April 9, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DYNEGY MIDWEST GENERATION, INC.
(BALDWIN
ENERGY COMPLEX),
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
PCB 08-.ltk.-
(Permit Appeal- Air)
APPEARANCE
I hereby file my appearance in this proceeding, on behalf of Dynegy Midwest
Generation, Inc., (Baldwin Energy Complex).
~~
Schiff Hardin LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
(312) 258-5500
Dated: April 9, 2008
Electronic Filing - Received, Clerk's Office, April 9, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DYNEGY MIDWEST GENERATION, INC.
(BALDWIN ENERGY COMPLEX),
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB(Permit
08-JiL
Appeal- Air)
APPEAL OF CONSTRUCTION PERMIT FOR THE INSTALLATION OF
BAGHOUSE, SCRUBBER, SORBENT INJECTION SYSTEM, AND BOOSTER FANS
AT BALDWIN ENERGY COMPLEX UNIT 3
NOW COMES Petitioner, DYNEGY MIDWEST GENERATION, INC. (BALDWIN
ENERGY COMPLEX) ("Petitioner" or "Dynegy"), pursuant to Section 40(a)(l)
of the Illinois
Environmental Protection Act ("Act") (415 ILCS 5/40(a)(l)) and
35 Ill.Adm.Code § 105.200
et
seq.,
and requests a hearing before the Board to contest the decisions contained in the
construction permit
l
issued to Petitioner on March 3, 2008, pursuant to Section 39(a) of the Act
(415 ILCS 5/39(a)) and 35 Ill.Adm.Code § 201.142 ("permit" or "construction permit") and
attached hereto as Exhibit
1. 35 Ill.Adm.Code §§ 105.210(a) and (b). Petitioner received the
construction permit on March 6, 2008.
See
Exhibit 1. Pursuant to Sections 39(a) and 40(a)(l) of
the Act, 35 Ill.Adm.Code §§ 105.206(a) and 105.208(a), this Petition is timely filed with the
Board.
I
Application No. 07110065.
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Electronic Filing - Received, Clerk's Office, April 9, 2008
In support of its Petition to appeal the first page and Conditions 1.1 (b)(i), 1.3, 1.4(a),
1.6(a)(ii), 1.6(b)(iii),
1.7(e)(v), 1.7(e)(viii), 1.7(e)(ix), 1.8(b), 1.9-1, 1.9-2(a)(i), 1.9-2(a)(ii), 1.9-
2(a)(iii)(A),
1. 9-2(b), 1.9-2(c), 1. 9-2(d), 1.9-3, 1.10-1., and 1.10-2 of the construction permit
issued March 3, 2008, for Unit 3
of the Baldwin Energy Complex, Petitioner states as follows:
I. BACKGROUND
(35 I1I.Adm.Code § 105.304(a»
1.
The Baldwin Energy Complex ("Baldwin"), Illinois Environmental Protection
Agency ("Agency")
J.D. No. 157851AAA, is an electric generating station owned and operated
by Dynegy Midwest Generation, Inc. The Baldwin electrical generating units ("EGUs") went
online between roughly 1969 and 1975. The Baldwin Energy Complex is located at 10901
Baldwin Road, Baldwin, Randolph County, Illinois. Randolph County is attainment for all
National Ambient Air Quality Standards except fine particulate matter ("PM2.5"). Randolph
Township, where Baldwin
is located, is part of the Metro-East/St. Louis PM2.5 nonattainment
area. Dynegy employs approximately
175 people at Baldwin.
2.
Dynegy operates three coal-fired boilers at Baldwin, but only one boiler, Unit 3, is
the subject
of this appealed construction permit. Unit 3, whose principal fuel is coal, fires oil as
auxiliary fuel during startup and for flame stabilization. Certain alternative fuels may be utilized
in Unit 3 as well. Baldwin operates associated coal handling, coal processing, and ash handling
equipment and systems in conjunction with Unit
3.
3.
Baldwin is a major source subject to the Clean Air Act Permitting Program
("CAAPP") (415 ILCS 5/39.5). The Agency issued a CAAPP permit to Dynegy for Baldwin on
September 29, 2005. Subsequently, on November
2, 2005, Dynegy timely appealed the CAAPP
permit for Baldwin at PCB 06-063. The Board accepted the appeal for hearing on November
17,
2005. On February 16,2006, the Board found that, pursuant to Section 10-65(b) of the
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Electronic Filing - Received, Clerk's Office, April 9, 2008
Administrative Procedure Act (5 ILCS 1OO/l 0-65 (b)) ("APA") and the holding in
Borg-Warner
Corp.
v.
Mauzy,
427 N.E. 2d 415 (Ill.App.Ct. 1981), the CAAPP permit is stayed, upon appeal,
as a matter of law. Order,
Dynegy Midwest Generation, Inc. (Baldwin Energy Complex)
v.
Illinois Environmental Protection Agency,
PCB 06-063 (February 16, 2006), p. 2. Baldwin is
subject to the federal Acid Rain Program at Title IV
of the Clean Air Act and has been issued a
Phase II Acid Rain Permit.
4.
Dynegy entered into a Consent Decree in the matter of the
United States of
America, et al.
v.
Dynegy Midwest Generation, et al.,
Case No. 99-833-MJR in the United States
District Court for the Southern District
of Illinois (the "Consent Decree"). Applicable provisions
in the Consent Decree must be reflected in permits issued to Dynegy. Dynegy'soperation
of the
Baldwin Energy Complex must comply with the provisions
of the Consent Decree as well as
with applicable law and regulations.
5.
Relevant to this appeal, emissions of sulfur dioxide ("S02") from Unit 3 are
currently controlled by limiting the sulfur content
of the fuel used for the boilers. PM emissions
from Unit 3 are currently controlled by an electrostatic precipitator ("ESP") with a flue gas
conditioning system.
II. REQUEST FOR PARTIAL STAY OF THE PERMIT
6.
Historically, the Board has granted partial stays in permit appeals where a
petitioner has so requested.
See, e.g., Midwest Generation, LLC, Will County Generating Station
v.
Illinois Environmental Protection Agency,
PCB 06-156 (July 20, 2006) (granted stay of the
effectiveness
of contested conditions of a construction permit);
Dynegy Midwest Generation, Inc.
(Vermilion Power Station)
v.
Illinois Environmental Protection Agency,
PCB 06-194 (October
19, 2006) (granted stay "of the portions of the permit Dynegy contests");
Dynegy Midwest
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Electronic Filing - Received, Clerk's Office, April 9, 2008
Generation, Inc. (Havana Power Station)
v.
Illinois Environmental Protection Agency,
PCB 07-
115 (October 4,2007) (same);
Hartford Working Group
v.
Illinois Environmental Protection
Agency,
PCB 05-74 (November 18, 2004) (granted stay of the effectiveness of Special Condition
2.0
of an air construction permit);
Community Landfill Company and City ofMorris
v.
Illinois
Environmental Protection Agency,
PCB 01-48 and 01-49 (Consolidated) (October 19, 2000)
(granted stay
of effectiveness of challenged conditions for two permits of two parcels of the
landfill);
Allied Tube
&
Conduit Corp.
v.
Illinois Environmental Protection Agency,
PCB 96-108
(December
7, 1995) (granted stay of the effectiveness of Conditions 4(a), 5(a), and 7(a) of an air
permit).
7.
Dynegy will suffer irreparable harm and the environment will not receive the
benefit
of the pollution control facilitated by the baghouse, scrubber, and sorbent injection
system
if Dynegy is not allowed to construct and operate these systems at the Baldwin Energy
Complex. Dynegy is required by the Consent Decree to construct the baghouse and scrubber for
Unit 3 and have it operational by December 31,2010. Dynegy'srequest for stay
of the contested
language would provide the necessary and appropriate authorizations to install and operate these
systems in a manner to protect the environment while allowing Dynegy to exercise its right to an
appeal under Section 40(a)
of the Act.
8.
Dynegy requests in this instance that the Board exercise its inherent discretionary
authority to grant a partial stay
of the construction permit, staying only those conditions or
portions
of conditions indicated in Exhibit 2,
i. e.,
Conditions 1.1 (b
)(i),
1.3, l.4(a), 1.6(a)(ii),
1.6(b)(iii), 1.7(e)(v), 1.7(e)(viii), 1.7(e)(ix), 1.8(b)(i), 1.9-1, 1.9-2, 1.9-3, 1.10-1, and 1.10-2.
In
the alternative, if the Board believes that it must stay the entirety of an appealed condition rather
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Electronic Filing - Received, Clerk's Office, April 9, 2008
than only the portions of the condition where so indicated in Exhibit 2, Dynegy requests that the
Board stay the entirety
of each of the conditions identified in Exhibit 2.
III. ISSUES ON APPEAL
(35 Ill.Adm.Code §§ l05.210(c))
9.
The issues raised in the conditions appealed herein fall into several categories.
One category addresses inclusion
of provisions for which the Agency has no underlying
authority to require. A second category
of issues concerns the Agency'streatment of the
mercury rule adopted by the Board at
35 Ill.Adm.Code Part 225. Dynegy also appeals provisions
that were appealed in the CAAPP appeal, PCB 06-063, or are otherwise CAAPP-related.
Dynegy objects to certain testing, recordkeeping, and reporting provisions in the permit and has
other general objections.
A.
The Agency Has Inappropriately Required Operation and Maintenance Plans
Without Authority to Do So - Conditions 1.6(a)(ii), 1.6(b)(iii), 1.9-2(a)(i), 1.9-2(a)(ii),
1.9-2(b), 1.9-2(c), 1.9-3(a), 1.9-3(c), 1.10-2(a).
10.
Condition 1.6(a)(ii) requires that Dynegy "operate and maintain the baghouse
system for the affected boiler in accordance with a written Operation and Maintenance Plan for
PM Control ["PM O&M Plan"] maintained by the Permittee pursuant to Condition 1.9-
2(b)(i)(A)." Condition 1.9-2(b)(i)(A) requires Dynegy to create the written PM O&M Plan
referenced in Condition 1.6(a)(ii). Condition 1.9-2(b)(i) is generally related to the PM O&M
Plan required by Condition 1.9-2(b)(i)(A). Condition 1.9-3(a) requires recordkeeping related to
the PM O&M Plan. There is no applicable requirement in the Act, the Board'sregulations, or
other source
of authority that Dynegy develop a PM O&M Plan.
11.
Therefore, the requirement in Condition 1.6(a)(ii) that Dynegy operate the
baghouse system pursuant to this PM O&M Plan, the requirement in Conditions 1.9-2(b) and
1.9-3(a) that it keep records related to the PM O&M Plan and submit them to the Agency, and
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Electronic Filing - Received, Clerk's Office, April 9, 2008
the related reporting requirements of Condition 1. 10-2(a) are beyond the scope of the Agency's
authority to require, are arbitrary and capricious, and should be deleted from the permit. Dynegy
requests that the Board order the Agency to delete Conditions 1.6(a)(ii), 1.9-2(b), 1.9-3(a), and
1.10-2(a) from the permit. Further, Dynegy requests that the Board stay the effectiveness
of
Conditions 1.6(a)(ii), 1.9-2(b), 1.9-3(a), and 1.10-2(a), as set forth in Exhibit 2, during the
pendency
of this appeal.
12.
Likewise, there is no authority in the Act, the Board'sregulations, or other source
of authority for the Agency to require a written Operation and Maintenance Plan for S02 Control
('"S02 O&M Plan"). Condition 1.6(b)(iii) requires operation and maintenance
of the S02 control
system pursuant to this S02 O&M Plan as required by Condition 1.9-2(c)(iii)(A). Condition 1.9-
2(c)(iii)(A) does not exist in this permit. However, Condition 1.9-2(c) is generally related to the
S02 O&M Plan. Condition 1.9-3(c) also addresses recordkeeping related to the S02 O&M Plan.
13.
Conditions 1.6(b)(iii), 1.9-2(c), and 1.9-3(c) exceed the scope of the Agency's
authority to require, are arbitrary and capricious, and should be deleted from the permit. Dynegy
requests that the Board stay the effectiveness
of Conditions 1.6(b)(iii), 1.9-2(c), and 1.9-3(c), as
set forth in Exhibit
2, during the pendency of this appeal.
14.
Conditions 1.9-2(a)(i)(A) and (B) are recordkeeping provisions that refer to
Condition 1.6(a). Condition 1.6(a) refers to paragraphs 83, 84, and 87
of the Consent Decree.
Likewise, Conditions 1.9-2(a)(ii)(A) and (B) are recordkeeping provisions that refer to Condition
1.6(b). Condition 1.6(b) refers to paragraph 69
of the Consent Decree. Paragraphs 69, 83, 84,
and
87 of the Consent Decree do not require recordkeeping.
15.
Therefore, the Agency has no authority to require the records identified in
Conditions 1.9-2(a)(i) and (ii). These conditions are arbitrary and capricious and should be
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Electronic Filing - Received, Clerk's Office, April 9, 2008
deleted from the permit. Dynegy requests that the Board stay Conditions 1.9-2(a)(i) and (ii), as
set forth in Exhibit
2, during the pendency of this appeal.
B.
The Agency Has Inappropriately Included Provisions Whose Only Purpose Is to
Implement the Mercury Rule - Conditions 1.4(a), 1.8(b), 1.9-1, 1.9-2(a)(iii)(A), 1.9-
2(d), 1.9-3(b), and 1.10-2(b).
16.
On March 14, 2006, the Agency submitted a proposed rulemaking to the Board,
"In the Matter Of: Proposed New
35 Ill.Adm.Code 225 Control of Emissions from Large
Combustion Sources," docketed at R06-25 ("the mercury rule"). The Board adopted this rule on
December 21, 2006. The mercury rule includes some provisions in Subpart A
of Part 225 and all
of Subpart B of Part 225. The initial compliance date for the mercury rule is July 1, 2009. 35
Ill.Adm.Code § 225.230(a)(l). If a company decides to opt in to the Multi-Pollutant Standard
("MPS") provisions
of Section 225.233, however, the initial compliance date for the mercury
emissions limitation
is January 1,2015. 35 Ill.Adm.Code § 225.233(d)(l). A company is not
required
to notify the Agency of its intention to opt in prior to December 31, 2007. 35
Ill.Adm.Code § 225.233(b). If a company decides to opt in to the MPS set forth in Section
225.233, it must install and operate sorbent injection systems on its EGUs by July 1,2009, or
December 31, 2009, as applicable.
35 Ill.Adm.Code § 225.233(c)(l)(A). Otherwise, the
mercury rule does not require sorbent injection system. The mercury rule requires that Dynegy
submit applications to revise its CAAPP permits to implement the mercury rule by December 31,
2008.
35 Ill.Adm.Code § 225.220(a)(2)(A).
17.
Dynegy did, indeed, opt in to the MPS. However, the construction permit
appealed here does not trigger any
of the requirements of the mercury rule or the MPS prior to
the dates included in the rules, and, as stated above, implementation
of the mercury rule is
required through CAAPP permits. The construction permit appealed here
is not, and the
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Electronic Filing - Received, Clerk's Office, April 9, 2008
application for this construction permit cannot be construed to be an application for, an
amendment to the CAAPP permit for Baldwin to satisfy the requirements
of 35 Ill.Adm.Code §
225.220(a)(2)(A). Yet the Agency has imposed requirements in the construction permit that go
far beyond Dynegy's simple request to install and operate a sorbent injection system. Some
of
these requirements imply that the Agency intends to implement the mercury rule at the Baldwin
Energy Complex through this permit.
18.
Specifically, Condition 1.4(a) requires compliance with the mercury emissions
limitations
of Part 225. Condition 1.8(b)(i) requires compliance with "all applicable
requirements
of 35 lAC Part 225" related to monitoring mercury emissions as well as operational
monitoring
of the sorbent injection system. Condition 1.8(b)(ii) requires measurement of the rate
of sorbent injection if the sorbent injection system can be adjusted remotely. Condition 1.9-1
requires Dynegy to maintain records relative to the mercury content
of the coal supply.
Condition 1.9-2(a)(iii)(A) requires records regarding sorbent injection. Condition 1.9-2(d)
requires additional records for the sorbent injection system, and Condition 1.9-3(b) requires
Dynegy to comply with "all applicable recordkeeping requirements
... related to control of
mercury emissions from the affected boiler" "and to maintain records of any emissions data for
mercury collected for the affected boiler
...." Condition 1.1 0-2(b) requires related reporting.
There are
no applicable requirements relevant to this permit that authorize the Agency to include
these conditions in this permit.
19.
The installation and operation of the sorbent injection system does not, in and of
themselves, require the imposition of mercury limitations, as the Agency has done in this permit.
Rather, mercury control requirements are to be included in a CAAPP permit. Therefore, the
inclusion in this permit
of mercury limitations in Condition 1.4(a), monitoring requirements
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Electronic Filing - Received, Clerk's Office, April 9, 2008
related to the mercury rule, particularly of mercury emissions, at Condition 1.8(b), and the
related recordkeeping and reporting conditions are inappropriate and arbitrary and capricious and
should be deleted from the permit.
20.
Condition 1.9-1 is particularly troublesome in a permit where Dynegy applied
merely to install and operate a sorbent injection system. Condition 1.9-1 requires Dynegy to
maintain records regarding the amounts
of mercury in its coal supply. The broad, general
requirement stated in Condition 1.9-1 for Dynegy to sample its coal supply for mercury content
and keep records thereof is inappropriate and arbitrary and capricious because measuring
mercury in the coal supply is required under the mercury rule only
if Dynegy chooses to
demonstrate compliance pursuant to Section 225.230(a)(l)(B), the requirement for a 90%
reduction from input mercury.
If Dynegy chooses to comply with Section 225.230(a)(l )(A), on
the other hand, there
is no requirement in the mercury rule that the Permittee monitor the
mercury content
of its coal supply. Moreover, monitoring the coal supply is in no way related to
the installation and operation
of the sorbent injection system.
It
is purely a function of
implementation of the mercury rule.
21.
Condition
1.9-1 is arbitrary and capricious, exceeds the scope of the Agency's
authority
as monitoring the coal supply has no relationship to constructing and installing a
sorbent injection system, exceeds the scope
of the Agency's authority under Section
225.230(a)(l), and should be deleted from the permit.
22.
Condition 1.9-2(a)(iii)(A) requires Dynegy to maintain records regarding the
sorbent being used, the settings for sorbent injection rate, and each period
of time when the
boiler is operated and the sorbent injection was not operated. Dynegy does not understand why
the Agency requires such a level
of detail as the settings for the sorbent injection rate. The MPS
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Electronic Filing - Received, Clerk's Office, April 9, 2008
requires a minimum sorbent injection rate. Requiring Dynegy to report the settings on its sorbent
injection system associated with the sorbent injection rate is micro-management. On the other
hand,
if Dynegy establishes the settings on its sorbent injection system as its means of
identifying the sorbent injection rate,
i. e.,
the settings are a surrogate for the rate, then recording
and reporting the settings may be appropriate. However, the condition does not provide for the
development
of such a surrogate; rather, it requires the settings. This exceeds the scope of the
Agency's authority and is arbitrary and capricious.
23.
For these reasons, Condition 1.9-2(a)(iii)(A) is arbitrary and capricious and
beyond the scope
of the Agency's authority to require. Dynegy requests that the Board order the
Agency to delete Condition 1.9-2(a)(iii)(A) from the permit.
24.
Most egregious, the Agency has required in Conditions 1.9-1 (a) and 1.9-2(d),
recordkeeping related to the mercury rule prior to the date set forth in the Board's rules. The
Agency has absolutely no authority to exceed the requirements
of the Board'sregulations.
Conditions 1.9-2(a) and (d) are beyond the scope
of the Agency's authority to require and are,
therefore, unlawful. These conditions should be deleted from the permit.
25.
Condition 1.9-3(b)(i) requires maintenance
of "all applicable recordkeeping
required by
35 lAC Part 225 related to control of mercury emissions...." As discussed above,
construction and installation
of a sorbent injection system do not trigger a requirement to comply
with the mercury rule, and this construction permit is not the lawful vehicle for implementing
35
Ill.Adm.Code Part 225, Subparts A and B. Moreover, there is no qualification included in this
condition that reflects the compliance dates
of the mercury rule. Rather, the recordkeeping
requirements
of Subpart B are required, according to this condition, immediately. Condition 1.9-
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Electronic Filing - Received, Clerk's Office, April 9, 2008
3(b)(i) is arbitrary and capricious, beyond the scope of the Agency's authority to require, and
unlawful.
It
should be deleted from the permit.
26.
Condition 1.9-3(b)(ii) is particularly unacceptable. As with Conditions 1.9-2(a)
and (d) discussed above, here the Agency requires the Permittee to "maintain records
of emission
data for mercury collected for the affected boiler" "[d]uring the period before the Permittee is
required to conduct monitoring for mercury emissions
... pursuant to 35 lAC Part 225."
Condition 1.9-3(b)(ii). (Emphasis added.) There is no authority for the Agency to require such
monitoring and recordkeeping. Requiring such information through a permit is inappropriate
and unlawful. There is no provision in the Act or any
of the applicable regulations that
authorizes the Agency to include conditions in permits merely to aid the Agency in gathering
data not otherwise required. Condition 1.9-3(b)(ii) is arbitrary and capricious, not based upon
any applicable requirements, beyond the scope
of the Agency's authority to require, and
unlawful.
It
should be deleted from the permit.
27.
Condition 1.10-2(b) requires Dynegy to comply with all applicable reporting
requirements
of 35 Ill.Adm.Code Part 225 related to mercury emissions. As with the other
conditions in the permit related to the mercury rule and mercury emissions, this construction
permit is not the lawful vehicle for implementing
35 Ill.Adm.Code Part 225, Subparts A and B.
Condition
1.1 0-2(b) is, therefore, arbitrary and capricious, beyond the scope of the Agency's
authority to require, and unlawful.
It
should be deleted from the permit.
28.
Conditions 1.4(a), 1.8(b), 1.9-1, 1.9-2(a)(iii)(A), 1.9-2(d), 1.9-3(b), and
1.1 0-2(b)
do not reflect any applicable requirements that come within the scope
of what Dynegy has
requested with respect to this permit. Inclusion
of these conditions is unlawful and arbitrary and
capricious and exceeds the scope
of the Agency's authority. These conditions should be deleted
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Electronic Filing - Received, Clerk's Office, April 9, 2008
from the permit. Dynegy requests that the Board stay Conditions 1.4(a), 1.8(b), 1.9-1, 1.9-
2(a)(iii)(A), 1.9-2(d), 1.9-3(b), and
1. IO-2(b), as set forth in Exhibit 2, during the pendency of
this appeal.
C.
The Agency Has Included Conditions That Either Were Appealed in PCB 06-063 or
Are CAAPP Requirements and Not Part 201 Requirements - Conditions 1.7(e)(v),
1.7(e)(viii), 1.7(e)(ix), and 1.10-1.
29.
Conditions
1.7(e)(v) and 1.7(e)(viii) require reporting a number of other data
during PM testing and Condition I.7(e)(ix) requires the final report
of PM testing to include
information about condensable PM emissions pursuant to USEPA Method 202. Dynegy
appealed these same requirements in its appeal
of the CAAPP permit issued to the Baldwin
Energy Complex.
See
Appeal of CAAPP Permit,
~~
77-82 and 117, respectively, PCB 06-063
(November 3,2005). The same reasons that Dynegy believes that Method 202 testing is not
applicable to the Baldwin Energy Complex in its CAAPP Appeal apply to this construction
permit. There is nothing in the provisions
of 35 Ill.Adm. Code Part 212 that would alter the
applicability
of Method 202 to Baldwin because of the construction permit. Altering the
requirement to include condensable emissions in the Final Test Report does not alter the
requirement for the testing. Likewise, the same reasons that Dynegy objected to the inclusion
of
the requirement to report other data during PM testing continue to apply. The Agency's
inclusion
of Conditions 1.7(e)(v), 1.7(e)(viii), and 1.7(e)(ix) undermines Dynegy'sright to a
hearing on the merits
of this issue in PCB 06-063 and the Board'sdecision in Order 2 staying the
effectiveness
of the CAAPP permit. For these reasons, inclusion of Conditions 1.7(e)(v),
I.7(e)(viii), and I.7(e)(ix) is beyond the scope
of the Agency'sauthority to require and arbitrary
and capricious. Dynegy requests that the Board order the Agency to delete Conditions
1.7(e)(v),
1.7(e)(viii), and 1.7(e)(ix) from the construction permit and that it stay the effectiveness
of
-12-
Electronic Filing - Received, Clerk's Office, April 9, 2008
Conditions 1.7(e)(v), 1.7(e)(viii), and 1.7(e)(ix), as set forth in Exhibit 2, during the pendency of
this appeal.
30.
Condition 1.10-1 requires deviation reporting. Deviation reporting is a function
of CAAPP permitting.
See
415 ILCS 5/39.5(7)(f)(ii).
It
is not a requirement found in the
permitting requirements
of Section 39 of the Act (415 ILCS 5/39) or the
construct~on
permitting
regulations
of 35 Ill.Adm.Code Part 201, the provisions of the Act and regulations under which
this permit was issued. While the pertinent provisions
of this construction permit will eventually
be rolled in
to Baldwin'sCAAPP permit, the construction permitting rules do not provide for
deviation reporting prior to inclusion
of the pertinent provisions in the CAAPP permit. Although
this construction permit will, indeed, serve as an operating permit for the pollution control
systems authorized by the permit until such time as the pertinent provisions are transferred to the
CAAPP permit, this construction permit
is not a CAAPP permit.
It
is not subject to any of the
CAAPP requirements for permitting. Dynegy acknowledges that some
of the permitting
procedures applicable under Part
201 may be the same or similar to some of the CAAPP
permitting procedures. However, such similarities or overlaps do not imply that Part
201
permitting is the same as CAAPP permitting in terms of the types of requirements that can be
included in the Part
201 permits.
31.
The Agency has exceeded the scope
of its authority under the Act and the
applicable regulations by requiring deviation reporting in this construction permit. For these
reasons, Dynegy requests that the Board order the Agency to delete Condition 1.10-1 from the
permit and that it stay the effectiveness
of Condition 1.10-1, as set forth in Exhibit 2, during the
pendency
of this appeal.
-13-
Electronic Filing - Received, Clerk's Office, April 9, 2008
D.
The Agency Has Inappropriately Included Certain Testing Provisions - Conditions
1.7(e)(v), 1.7(e)(viii), and 1.7(e)(ix).
32.
In addition to the testing requirements of Conditions 1.7(e)(v), 1.7(e)(viii), and
I.7(e)(ix) discussed above in Section D
of this petition, the Agency has included other
objectionable testing provisions.
33.
In addition to Dynegy's objection to the inclusion
of Conditions 1. 7(e)(v) and
I.7(e)(viii) as discussed above in Section
D, Dynegy objects to the provisions of these conditions
specifically relative to this construction permit. Condition 1.7(e)(v) requires Dynegy to provide
various operating data during PM testing. Condition I.7(e)(viii) requires that Dynegy provide
SOx, NOx, O
2
or CO
2
,
and opacity data during PM testing. Operation of an electric generating
station depends upon many variables - ambient air temperature, cooling water supply
temperature, fuel supply, equipment variations, and
so forth. Using operational and other
emissions data during PM testing as some type
of monitoring device or parametric compliance
data, which appears to be the Agency's intent by including this provision in the permit, would be
inappropriate. For these reasons, Conditions 1.7(e)(v) and 1.7(e)(viii) are arbitrary and
capricious and should be deleted from the permit. Dynegy requests that the Board stay the
effectiveness
of Conditions 1.7(e)(v) and 1.7(e)(viii), as set forth in Exhibit 2, during the
pendency
of this appeal.
E.
The Agency Has Included an Unnecessary Provision in the Permit - Condition
1.
1(b)(i).
34.
Condition 1.1 (b
)(i)
states, in part, that this permit does not address emissions of
nitrogen oxides ("NOx"). As Dynegy did not apply for a permit to construct any equipment that
would affect NOx emissions, there is no reason why the permit should address NOx. The
statement
is unnecessary and extraneous and should be deleted from the permit.
-14-
Electronic Filing - Received, Clerk's Office, April 9, 2008
35.
For the reasons set forth above, Dynegy requests that the Board order the Agency
to delete a portion
of Condition 1.1 (b)(i) he permit as unnecessary to the permit. Dynegy
requests that this partial condition be stayed during the pendency
of this appeal, as set forth in
Exhibit
2. However, if the Board finds that it may not stay only a portion of a condition, then
Dynegy requests that the Board not stay the identified portion
of Conditions 1.1 (b)(i).
F.
The Plant Identification Number Included in the Permit Is Incorrect - First Page of
the Permit.
36.
The Agency has established a system of permanent identification numbers ("IDs")
for sources
of air pollution. While permit numbers may change, the ID number on a permit
specifically applies the permit to that source. The ID number on the construction permit
appealed here is incorrect. The ID on the permit is 125804AAB, which is actually the ID
number for Dynegy's Havana Power Station. The ID number for Baldwin is 157851AAA.
See,
e.g.,
permit attached to appeal in PCB 06-063. While this is likely just a typographical error, it is
an error that must be corrected, and Dynegy requests that the Board order the Agency to make
that correction.
WHEREFORE, for the reasons set forth above, Dynegy appeals the first page and
Conditions 1.1(b)(i), 1.3, 1.4(a), 1.6(a)(ii), 1.6(b)(iii), 1.7(e)(v), 1.7(e)(viii), 1.7(e)(ix), 1.8(b),
1.9-1, 1.9-2(a)(i), 1.9-2(a)(ii), 1.9-2(a)(iii)(A), 1.9-2(b), 1.9-2(c), 1.9-2(d), 1.9-3, 1.10-1, and
1.10-2
of the construction permit issued March 3, 2008, for the Baldwin Energy Complex.
Additionally, Dynegy requests that the Board stay all or the portions
of the conditions appealed
above except for the first page, as set forth in Exhibit
2, or, in the event the Board believes it
cannot stay part
of a condition, except for and Conditions
1.
1(b)(i) and 1.3, as well. Dynegy will
extend its current practices
of recordkeeping and reporting to the new pollution control systems
-15-
Electronic Filing - Received, Clerk's Office, April 9, 2008
and will, of course, comply with all requirements of the Consent Decree and the Board's
regulations applicable to these new pollution control systems during the pendency
of this appeal.
Respectfully submitted,
Dated: April 9, 2008
SCHIFF HARDIN, LLP
Sheldon
A. Zabel
Kathleen
C. Bassi
Stephen
1.
Bonebrake
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
312-258-5500
Fax: 312-258-2600
kbassi@schiffhardin.com
by:
DYNEGY MIDWEST GENERATION, INC.
(BALDWIN ENERGY COMPLEX)
~~)
ne 0 ts Attorneys
-16-
Electronic Filing - Received, Clerk's Office, April 9, 2008
Exhibit 1
Construction
Permit Issued to
Dynegy Midwest Generation, Inc.
(Baldwin Energy Complex)
for
a Baghouse, Scrubber, and
Sorbent
Injection System
for
Unit 3
(received March 6, 2008)
Electronic Filing - Received, Clerk's Office, April 9, 2008
1021 NORTH
GRAND AVENUE
EAST, P.O. Box 19506, SPRINGFIELD, IlliNOIS 62794-9506 - ( 217) 782-2113
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
ROD
R.
BLAGOJEVICH, GOVERNOR
DOUGLAS
P.
SCOTT, DIRECTOR
217/782-2113
RECEIVED
CONSTRUCTION PERMIT
MAR 06
2008
PERMITTEE
Oynegy Midwest Generation, Inc.
Attn: Rick Oiericx .
2828 North Monroe Street
Decatur, Illinois 62526
OPERATIONS
ENVIRONMENTAL
COMPLIANCE
Baldwin Road, Baldwin, Randolph County
r.o. No.: 125804AAB
Date Received: November 30, 2007
and Sorbent Injection Systems for Unit 3
Application No.: 07110065.
Applicant's Designation:
Subject: Baghouse, Scrubber
Date Issued: March 3, 2008
Location: Baldwin Energy Complex, 10901
Permit is hereby granted to the above-designated Permittee to CONSTRUCT
equipment consisting of a baghouse, scrubber, and sorbent injection system
for the Unit 3 Boiler and associated installation of booster fans, as
described in the above referenced application. This Permit is subject to
standard conditions attached hereto and the following special condition(s):
1.1
Introduction
a.
This Permit authorizes construction of a baghouse system
(Baghouses A and B),
s~rubber
system (Scrubbers A and B), and
sorbent injection system to supplement the existing emission
control systems on the existing Unit 3 boiler. The new baghouse
system, scrubber system, and sorbent injection system would
further process the flue gas from this existing coal-fired
boiler, which is equipped with an electrostatic precipitator
(ESP). This permit also authorizes installation of booster fans
to compensate for the additional pressure drop from these new
control systems.
b.
i.
This permit is issued based on this project being an
emissions control project, whose purpose and effect will be
to reduce emissions of sulfur dioxide (S02), particulate
matter (PM), and mercury from the existing boiler and which
will not increase emissions of other PSD pollutants.
Accordingly, this permit does not address applicable
requirements for emissions of nitrogen oxides (NO
x
), as the
current project does not include any changes to control
measures for NO
x
emissions.
Electronic Filing - Received, Clerk's Office, April 9, 2008
Page 2
c.
This permit does not authorize any modifications to the existing
boiler or generating unit, which would increase their capacity or
potential emissions.
d.
This permit does not affect the terms and conditions of the
existing permits for the boiler or generating unit.
Note: These existing permits do not necessarily provide a
comprehensive list of the emission standards and other regulatory
requirements that currently apply to the unit 3 boiler.
e.
This permit does not affect requirements for the affected boiler
established by the Consent Decree in
United States of America and
the State of Illinois, American Bottom Conservancy, Health and
Environmental Justice-St. Louis, Inc., Illinois Stewardship
Alliance, and Prairie Rivers Network, v. Illinois Power Company
and Dynegy Midwest Generation Inc.,
civil Action No. 99-833-MJR,
U.S. District Court, Southern District of Illinois (Decree),
which is incorporated by reference into this permit.
(Refer to
Attachment 1.)
1.2
Applicability Provisions
a.
The "affected boiler" for the purpose of these unit-specific
conditions is the existing Unit 3 boiler after the initial
startup of the new emissions control systems, as described in
Condition 1.1.
b.
For purposes of certain conditions related to the Decree, the
affected boiler is also part of a "Unit" as defined by Paragraph
50 of the Decree.
1.3
Applicable Emission Standards and Limits for the Affected Boiler
a.
The affected boiler shall comply with applicable emission
standards under Title 35, Subtitle B, Chapter I, Subchapter c of
the Illinois Administrative Code.
1.4
Future Applicable Emission Standards and Limits
a.
The Permittee shall comply with applicable emission standards and
requirements related to mercury emissions for the affected boiler
pursuant to 35 lAC Part 225, Subpart B, by the applicable dates
specified by these rules.
b.
The S02 emission rate of affected boiler shall be no greater than
the limit specified in Paragraph 66 of the Decree, i.e., 0.100
Ib/mmBtu, 3D-day rolling average, by the date specified in
Paragraph 66, i.e., no later than December 31, 2010. Compliance
with this limit shall be determined in accordance with the
provisions in Paragraphs 4 and 82 of the Decree.
Electronic Filing - Received, Clerk's Office, April 9, 2008
Page 3
Note: The 80
2
emission rate for the affected boiler pursuant to
the Decree, when it takes effect, will be more stringent than the
current applicable site specific federal standard of 6.0
Ib/mmBtu.
[Refer to 40 CFR 52.720(c) (71), which incorporates by
reference the S02 emission limits within Paragraph 1 of Illinois
Pollution Control Board Final Order PCB 79-7, which was adopted
September 8, 1983.]
c.
The PM emission rate of the affected boiler shall be no greater
than the limit specified in Paragraph 85 of the Decree, i.e.,
0.015 Ib/mmBtu, by the date specified in Paragraph 85, i.e., no
later than December 31, 2010. Compliance with this limit shall
be determined in accordance with the provisions in Paragraphs 90
and 97 of the Decree.
Note: The PM emission rate for the affected boiler pursuant to
the Decree, when it takes effect, will be more stringent than the
current applicable state rule limit of 0.1 Ib/mmBtu pursuant to
35 lAC 212.203(a).
1.5
Nonapplicability Provisions
None
1.6
Work Practices and Operational Requirements for PM and S02 Control
Devices
a.
i.
The Permittee shall operate and maintain the baghouse
system authorized by this permit for the affected boiler in
accordance with Paragraphs 83, 84 and 87 of the Decree.
ii.
The Permittee shall operate and maintain the baghouse
system for the affected boiler in accordance with a written
Operation and Maintenance Plan for PM Control maintained by
the Permittee pursuant to Condition 1.9-2(b) (i) (A).
b.
i.
Effective no later that December 31, 2010, the Permittee
shall operate and maintain the scrubber authorized by this
permit for the affected boiler in accordance with Paragraph
69 of the Decree.
ii.
Effective no later than December 31, 2010, the Permittee
shall not operate the affected boiler and unit 3 unless the
requirements of Paragraph 66 of the Decree with respect to
addition of a flue gas desulfurization system (such as the
scrubber authorized by this permit) or an equivalent 80
2
control technology to the affected boiler have been
fulfilled.
iii. The Permittee shall operate and maintain the additional 80
2
control system on the affected boiler in accordance with a
Electronic Filing - Received, Clerk's Office, April 9, 2008
Page 4
written Operation and Maintenance Plan for 80
2
Control
maintained by the Permittee pursuant to Condition 1.9-
2 (c) (iii) (A) .
1.7
Testing Requirements
a.
i.
The Permittee shall have testing conducted to measure the
PM emissions from the affected boiler on a periodic basis
consistent with the requirements of Paragraphs 89 and 119
of the Decree with respect to the timing of PM emission
tests.
ii.
The Permittee shall also have testing conducted to measure
the PM emissions from the affected boiler within 90 days
following receipt of a request by the Illinois EPA for such
measurements or such later date set by the Illinois EPA.
b.
i.
These measurements shall be performed in the maximum
operating range of the affected boiler and otherwise under
representative operating conditions.
ii.
The methods and procedures used for measurements to
determine compliance with the applicable PM emission
standards and limitations shall be in accordance with
Paragraph 90 of the Decree.
c.
Except for minor deviations in test methods, as defined by 35 lAC
283.130, emission testing shall be conducted in accordance with a
test plan prepared by the testing service or the Permittee (which
shall be submitted to the Illinois EPA for review at least 60
days prior to the actual date of testing) and the conditions, if
any, imposed by the Illinois EPA as part of its review and
approval of the test plan, pursuant to 35 lAC 283.220 and
283.230. Notwithstanding the above, a test plan need not be
submit~ed
to the Illinois EPA if emissions testing is conducted
in accordance with the procedures used for previous testing
accepted by the Illinois EPA or the previous test plan submitted
to and approved by the Illinois EPA, provided, however, that the
Permittee's notification for testing, as required below, contains
the information specified by 35 lAC 283.220(d) (1) (A), (B) and
(C) •
d.
The Permittee shall notify the Illinois EPA prior to conducting
PM emission testing to enable the Illinois EPA to observe
testing. Notification for the expected test date shall be
submitted a minimum of 30 days prior to the expected date of
testing. Notification of the actual date and expected time of
testing shall be submitted a minimum of 5 working days prior to
the actual test date. The Illinois EPA mayan a case-by-case
basis accept shorter advance notice if it would not interfere
with the Illinois EPA's ability to observe testing.
Electronic Filing - Received, Clerk's Office, April 9, 2008
Page 5
e.
The Permittee shall submit the Final Report(s) for this PM
emission testing to the Illinois EPA within 45 days of completion
of testing, which report(s) shall include the following
information:
i.
The name and identification of the affected unit and the
results of the tests.
ii.
The name of the company that performed the tests.
iii. The name of any relevant observers present including the
testing company's representatives, any Illinois EPA or
USEPA representatives, and the representatives of the
Permittee.
iv.
Description of test method(s), including description of
sampling points, sampling train, analysis equipment, and
test schedule, including a description of any minor
deviations from the test plan, as provided by 35 lAC
283.230(a) .
v.
Detailed description of operating conditions during
testing, including:
A.
Operating information for the affected boiler, i.e.,
firing rate of the boiler (mmBtu/hour) and
composition of fuel as burned (ash, sulfur and heat
content) .
B.
Combustion system information, i.e., settings for
distribution of primary and secondary combustion air,
settings for O
2
concentration in the boiler, and
levels of
co
in the flue gas, if determined by any
diagnostic measurements.
C.
Control equipment information, i.e., equipment
condition and operating parameters during testing,
including any use of the flue gas conditioning
system.
D.
Load during testing (megawatt output) .
vii. Data and calculations, including copies of all raw data
sheets and records of laboratory analyses, sample
calculations, and data on equipment calibration.
viii. The 80
2
and NO
x
emissions (hourly averages), opacity data
(6-minute averages), and O
2
or CO
2
concentrations (hourly
averages) measured during testing.
ix.
The emissions of condensable PM during testing, either as
measured by U8EPA Method 202 (40 CFR Part 51, Appendix M)
Electronic Filing - Received, Clerk's Office, April 9, 2008
{
Page 6
or other established test method approved by the Illinois
EPA during testing for PM or based on other representative
emissions testing, with supporting data and explanation.
1.8
Monitoring Requirements
a.
The Permittee shall operate and maintain continuous monitoring
equipment to measure the following operating parameters of the
baghouse system:
i.
The temperature of the flue gas at the inlet of the system
(hourly average) .
ii.
The pressure drop across the system (hourly average) .
b.
i.
Beginning no later than the applicable dates specified by
35 lAC Part 225, the Permittee shall comply with all
applicable requirements of 35 lAC Part 225, related to
monitoring, including monitoring of mercury emissions from
the affected boiler and operational monitoring for the
sorbent injection system.
ii.
If the sorbent injection system can be adjusted remotely by
the personnel in the control room, the Permittee shall
install, operate, and maintain instrumentation for
measuring the rate of sorbent injection for the affected
boiler and the operational status of the system.
1.9-1
Recordkeeping Requirements for the Coal Supply for the Affected Boiler
a.
During the period before recordkeeping is required pursuant to 35
lAC Part 225, the Permittee shall keep records of the mercury and
heat content of the coal supply to the affected boiler, with
supporting data for the associated sampling and analysis
methodology, so as to be able to have representative data for the
coal supply to the boiler for periods during which mercury
emission data is collected for the boiler. The analysis of the
coal for mercury content shall be conducted using appropriate
ASTM Methods as specified in 35 lAC Part 225.
b.
If the Permittee elects to comply with a limit for mercury
emissions in 35 lAC Part 225 that is expressed in terms of a
control efficiency, the Permittee shall comply with all
applicable requirements of 35 lAC Part 225 related to sampling
and analysis of the coal supply to the affected boiler for its
mercury content beginning no later than the applicable date
specified by 35 lAC Part 225.
Electronic Filing - Received, Clerk's Office, April 9, 2008
Page 7
1.9-2
Records for Control Devices and Control Equipment
The Permittee shall maintain the following records for the new
baghouse, scrubber, and sorbent injection system on the affected
boiler:
a.
i.
Records for the Baghouse System
A.
Records for the operation of the baghouse system
that, at a minimum:
(1) Identify the trigger for bag
cleaning, e.g., manual, timer, or pressure drop; (2)
Identify each period when the Unit was in operation
and the baghouse system was not being operated or was
not operating effectively; (3) Identify each period
when any baghouse compartment(s) have been taken out
of regular service, with the identity of the
module(s) and explanation; and (4) Address the
implementation of the operating procedures related to
the baghouse system that are required to be or are
otherwise implemented pursuant to Condition 1.6(a).
B.
Records for maintenance and repair for the baghouse
system that, at a minimum:
(1) List the activities
performed, with date and description, and (2) Address
the maintenance and repair activities related to the
baghouse system that are required to be or are
otherwise implemented pursuant to Condition 1.6(a).
ii.
Records for the Scrubber System
A.
Records for the operation of the scrubber system
that, at a minimum:
(1) Identify each period when
the affected Unit was in operation and associated
scrubber system was not being operated or was not
operating effectively, and (2) Address the
implementation of the operating procedures related to
the scrubber system that are required to be or are
otherwise implemented pursuant to Condition 1.6(b).
B.
Records for maintenance and repair for the scrubber
system that, at a minimum:
(1) List the activities
performed, with date and description, and (2) Address
the maintenance and repair activities related to the
scrubber system that are required to be or are
otherwise implemented pursuant to Condition 1.6(b).
iii. Records for the Sorbent Injection System
A.
Records for the operation of the sorbent injection
system that, at minimum, identify the sorbent that is
being used, the sorbent injection rate or setting for
sorbent injection rate, each period of time when the
Electronic Filing - Received, Clerk's Office, April 9, 2008
Page 8
affected boiler was in operation without the system
being operated with explanation.
B.
Records for the maintenance and repair of the sorbent
injection system that, at a minimum, list the
activities performed, with date and description.
b.
Operation and Maintenance Plan for PM Control
i.
Beginning no later than December 31, 2010, the following
records related to the procedures and practices for the
baghouse system controlling PM emissions from the affected
boiler:
A.
A written Operation and Maintenance Plan for PM
Control, which shall be kept up to date, that
identifies the specific operating procedures and
maintenance practices (including procedures and
practices specifically related to startups and
malfunction/breakdown incidents) currently being
implemented by the Permittee for the baghouse system
to satisfy Condition 1.6 (a) (ii) .
B.
Accompanying this record, the Permittee shall
maintain a demonstration showing that the above
Operation and Maintenance Plan for PM Control
ful-fills the requirements of Conditions 1.6 (a) (i) and
(ii) .
ii.
Copies of the records required by Condition 1.9-2(b) (i)
shall be submitted to the Illinois EPA upon request.
iii. Accompanying the records required by Conditions 1.9-
2(b) (i), a file containing a copy of all correspondence and
other written material exchanged with U8EPA that addresses
the procedures and practices that must be implemented
pursuant to Paragraphs 83, 84 and 87 of the Decree. This
file shall be retained for at least three years after the
permanent shutdown of the affected Unit.
c.
Operation and Maintenance Plan for 80
2
Control
i.
Beginning no later than December 31, 2010, the following
records related to the procedures and practices for the
scrubber system controlling 80
2
emissions from the affected
boiler:
A.
A written Operation and Maintenance Plan for 80
2
Control, which shall be kept up to date, that
identifies the specific operating procedures and
maintenance practices (including procedures and
practices specifically related to startups and
Electronic Filing - Received, Clerk's Office, April 9, 2008
Page 9
1.9-3
malfunction/breakdown incidents) currently being
implemented by the Permittee for the scrubber to
satisfy Conditions 1.6(b)
(iii).
B.
Accompanying this record
l
the Permittee shall
maintain a demonstration showing that the above
Operation and Maintenance Plan for 80
2
Control "
fulfills the requirements of Conditions 1.6(b)
(i)
and
(ii) .
ii.
Copies of the records required by Conditions 1.9-2(c) (i)
shall be submitted to the Illinois EPA upon request.
iii.
Accompanying the records required by Condition 1.9-2(c)
(i)1
a file containing a copy of all correspondence and other
written"material exchanged with USEPA that addresses the
procedures and practices that must be implemented pursuant
to Paragraph 69 of the Decree. This file shall be retained
for at least three years
~fter
the permanent shutdown of
the affected Unit.
d.
Specific Records for the sorbent Injection System
During the period before recordkeeping is required for usage of
sorbent pursuant to 35 lAC Part
225
1
the usage of sorbent (lbs)
and average sorbent injection rate (lbs/operating hour), on a
monthly basis.
Other Recordkeeping Requirements
a.
Records for Lapses
in
the Implementation of the Operation and
Maintenance Plan for PM Control
Beginning no later than December 31,
2010,
the Permittee shall
maintain the following records, as relevant
I
for all lapses,
i.e., periods or incidents when applicable action(s) were not
taken for the baghouse system that were specified in the current
Operation and Maintenance Plan for PM Control
I
as prepared
pursuant to Condition
1.~-2
(b) (i) (A):
i.
The date of the lapse.
ii.
A description of the lapse, including the specified
action(s) that were not taken; other actions or mitigation
measures that were taken, if any; and the likely
consequences of the lapse as related to emissions
l
if any.
iii. The time and means by which the lapse was identified.
iv.
If relevant, the length of time after the lapse was
identified and before specified action(s) were taken or
were no longer applicable and an explanation why this time
Electronic Filing - Received, Clerk's Office, April 9, 2008
Page 10
was not shorter, including a discussion of the timing of
any mitigation measures that were taken.
v.
If relevant, the estimated total duration of the lapse,
i.e., the total length of time that the affected boiler ran
without the specified action(s) being taken.
vi.
A discussion of the probable cause of the lapse and any
preventative measures taken.
vii. A discussion whether the applicable PM emission limit, as
addressed by Condition 1.3(a) or 1.4(C), may have been
violated, either puring or as a result of the lapse, with
supporting explanation.
b.
Records Related to Mercury Emissions
i.
The Permittee shall comply with all applicable
recordkeeping requirements of 35 IAC Part 225 related to
control of mercury emissions from the affected boiler.
ii.
During the period before the Permittee is required to
conduct monitoring for the mercury emissions of the
affected boiler pursuant to 35 IAC Part 225, the Permittee
shall maintain records of any emission data for mercury
collected for the affected boiler by the Permittee,
including emissions (micrograms per cubic meter, pounds per
hour, or pounds per million Btu) and control efficiency,
with identification and description of the mode of
operation of the boiler and sorbent injection system.
c.
Records for Lapses in the Implementation of the Operation and
Maintenance Plan for
80
2
Control
Beginning no later than December 31, 2010, the Permittee shall
maintain the following records, as relevant, for all lapses,
i.e., periods or incidents when applicable action(s) were not
taken for the scrubber system that were specified by the current
operation and Maintenance Plan for
80
2
Control, as prepared
pursuant to Condition 1.9-2 (c) (i) (A) , :
i.
The date of the lapse.
ii.
A description of the lapse, including the specified
action(s) that were not takeni other actions or mitigation
measures that were taken, if anYi and the likely
consequences of the lapse as related to emissions, if any.
iii. The time and means by which the lapse was identified.
iv.
If relevant, the length of time after the lapse was
identified and before specified action(s) were taken or
Electronic Filing - Received, Clerk's Office, April 9, 2008
Page 11
were no longer applicable and an explanation why this time
was not shorter/ including a discussion of the timing of
any mitigation measures that were taken.
v.
If relevant/ the estimated total duration of the lapse,
i.e., the total length of time that the affected boiler ran
without the specified action(s) being taken.
vi.
A discussion of the probable cause of the lapse and any
preventative measures taken.
vii. A discussion whether the applicable 802 emission limit of
Condition 1.4(b) may have been violated, either during or
as a result of the lapse/ with supporting explanation.
1.10-1 Reporting Requirements - Reporting of Deviations
a.
Prompt Reporting of Deviations
For the affected boiler, the Permittee shall promptly notify the
Illinois EPA of deviations from the requirements of this permit
as follows. At a minimum, these notifications shall include a
description of such deviations, including whether they occurred
during startup or malfunction/breakdown, and a discussion of the
possible cause of such deviations, any corrective actions and any
preventative measures taken.
i.
Notification within 24 hours for a deviation from
requirements related to PM emissions if the deviation is
accompanied by the failure of six or more compartments in
the baghouse system.
ii.
Notification with the semi-annual reports required by
Condition 1.10-2(a) for deviations not addressed above/
including deviations from other applicable requirements/
e.g., . work practice requirements, required operating
procedures, required maintenance practices, and
recordkeeping requirements.
b.
Periodic Reporting of Deviations
The semi-annual reports required by Condition 1.10-2(a) shall
include the following information for the affected boiler related
to deviations from permit requirements during the quarter.
i.
A listing of all instances of deviations that have been
reported in writing to the Illinois EPA as provided by
Condition 1.10-1(a)
(i),
including identification of each
such written notification or report. For this purpose, the
Permittee need not resubmit copies of these previous
notifications or reports but may elect to supplement such
material.
Electronic Filing - Received, Clerk's Office, April 9, 2008
Page 12
ii.
Detailed information, as required by Condition 1.10-
l(a)
(ii),
for all other deviations.
1.10-2 Reporting Requirements - Periodic Reporting
a.
The Permittee shall submit semi-annual reports to the Illinois
EPA.
i.
These reports shall include a summary of information
recorded during the reporting period pursuant to Condition
1.9-3 (a) .
ii.
These reports shall include the information for the
affected boiler related to deviations during the quarter
specified by Condition 1.10-1(b).
iii. These reports shall be submitted within 30 days after the
end of each calendar half. For example, the report for the
first half, i.e., January through June, shall be submitted
by July 30.
b.
The Permittee shall comply with all applicable reporting
requirements of 35 lAC Part 225 related to control of mercury
emissions from the affected boiler.
1.11
Authorization for Operation
The Permittee may operate the affected boiler with the new baghouse,
scrubber, and sorbent injection system under this construction permit
until such time as final action is taken to address these systems in
the CAAPP permit for the source provided that the Permittee submits an
appropriate application for CAAPP permit, which incorporates new
requirements established by this permit within one year (365 days) of
beginning operations of the affected boiler with these systems.
If you have any questions concerning this permit, please contact Kunj Patel
or Christopher Romaine at 217/782-2113.
Edwin C. Bakowski, P.E.
Acting Manager, Permit Section
Division of Air Pollution Control
ECB:CPR:KMP:psj
cc:
Region 3
Date Signed:
Electronic Filing - Received, Clerk's Office, April 9, 2008
Attachment 1:
Consent Decree:
United States of America and the State of Illinois, American Bottom
Conservancy, Health and Environmental Justice-St. Louis, Inc., Illinois
Stewardship Alliance, and Prairie Rivers Network, v. Illinois Power Company
and Dynegy Midwest Generation Inc.,
Civil Action No. 99-833-MJR, U.S.
District Court, Southern District of Illinois
1.
Order, Modifying the Consent Decree, entered August 9,
2006
2.
Original Consent Decree, entered May 27, 2005
KMP:psj
Electronic Filing - Received, Clerk's Office, April 9, 2008
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF p::.LINOIS
UNiTED STATES OF AMERICA,
)
)
Pmmti~
)
)
and
)
)
THE STATE OF ll..LINOIS, AMERICAN
)
BOTTOM CONSERVANCY, HEALTH AND
)
ENVIRONMENTAL ruSTICE - ST. LOUIS,
)
INC., ILLINOIS STEWARDSffiP ALLIANCE,
)
and PRAIRIE RIVERS NETWORK.
)
)
Plaintiff-Intervenors
)
)
v.
)
)
ILLINOIS POWER COMPANY and
)
DYNEGY MIDWEST GENERATION, INC.,
)
)
Defendants.
)
)
Civil Action No. 99-833-MJR
-ORDER
TIllS MATTER comes before the Court upon the "United States'Motion to Enter
Proposed Consent Decree Modifications" (Doc. 703) which includes the parties' UJoint
Stipulation to Modify Consent Decree." Therein, the parties seek: to modify particular provisions
ofthe Consent Decree entered
in
this matter on May 27, 2005 (Doc. 695).
With respect to Section VI ofthe Consent Decree, concerning particulate matter ("PM")
emission
reduction and control requirements, the United States lodged proposed modifications
with the Court on March 20, 2006 (Doc. 702),
pending publication of a notice in the Federal
Register and an opportunity for public comment on the proposed modifications. Thereafter, the
United States published such notice at 71 Fed. Reg. 27516 (May 11,2006), and represents that it
Electronic Filing - Received, Clerk's Office, April 9, 2008
received no public comments concerning the proposed modifications during the 30-day period
following publication
ofthe notice.
The proposed modifications to the PM provisions are (1) to delete entirely the provisions
that provide
Dynegy Midwest Generation, Inc. ("DMG") with the option to perform a Pollution
Control Equipment Upgrade Analysis
in
lieu ofmeeting the default emissions rate of 0.030
Ibs/mmBTU for any of the seven units named
in
the Decree; instead, each ofthese seven units
would be required to meet the rate of0.030
Ib/mmBTU
by the dates specified. and (2) to set the
same December 31, 2008 deadline for the two Hennepin units to be
in
compliance with the 0.030
Ibs/mmBTIJ emission limit under the Consent Decree instead ofpennitting DMG to comply
with
this emission rate at one Hennepin unit by December 31, 2006 and at the other Hennepin
unit
by
December 31, 2010. The United States explains that this modification will result in
sooner overall PM emission reductions than would the original provisions ifDMG had exercised
its option under the Consent Decree.'s original terms to control the smaller Hennepin unit by the
earlier
date and the larger unit by the later date.
With respect to the requirement
in
Appendix A to the Consent Decree concerning the
deadline
for DMG to convey the Middle ForkIVennilion Property (UProperty") to the State of
Dlinois Department ofNatural ResoW'ces('WNR"), the Court previously entered the parties'
joint request to extend this date to June
30, 2006. Doc. 699. The parties now seek a
modification
to Appendix A to provide for an additional extension until September 30, 2006 due
to numerous difficulties DMG has encountered during the land survey process, including
easements
and encroachments on the property.
Upon careful consideration ofthe United States' Motion to Enter Proposed Consent
Decree Modifications. the Court
is satisfied that the proposed modifications are justified and in
2
Electronic Filing - Received, Clerk's Office, April 9, 2008
the public interest. All parties support entry of these modifications, and no public comments
were submitted
in opposition. Therefore, IT IS HEREBY ORDERED, ADJUDGED and
DECREED that, pursuant to the parties' Joint Stipulation to Modify Consent Decree,
the
Consent Decree entered
in
this matter on May 27, 2005, is amended as provided below:
1.
Paragraph 86 ofthe Consent Decree- is modified as follows:
"86.
At
each unit listed below, no later than the dates specified, and continuing
thereafter.
DMO shall operate ESPs or alternative PM control equipment at the following
Units
to achieve and maintain a PM emissions rate ofnot greater than 0.030
Ib/mmBTU:
Unit
Date
Havana Unit 6
December 31, 2005
1
st Wood River Unit
December 31. 2005
(Le., either ofWood River
Units 4
or 5)
2
00
Wood River Unit (Le., the
December 31, 2007
remaining Wood River Unit)
1
$I Hennepin Unit (Le., either
DecembeI 31, 2006
ofHennepin Units I or 2)
December 31. 2008
2
11d
Hennepin Unit (Le., the
December 31, 2610
remaining Hennepin Unit)
December
31 2008
1
it
Vermilion Unit (Le., either
December 31, 2010
ofVennilion Units 1 or 2)
2
0d
Vennilion Unit (i.e., the
December 31, 2010
remaining Vermilion
uiUo
[Remainder ofParagraph deleted.]"
2.
Paragraph 88 is deleted in its entirety, and replaced with a paragraph placeholder,
as
follows:
U88.
[Omitted.]"
3
Electronic Filing - Received, Clerk's Office, April 9, 2008
'
..
3.
Appendix A, Subsection
n,
Paragraph C, is modified as follows:
Performance - Upon approval ofplan by.the Plaintiffs, DMG shall complete the
mitigation project
according to the approved plan and schedule, and convey such
Property
no later than
JW1C
38,2666 September 30, 2006.
4.
All
provisions ofthe Consent Decree unaffected by the foregoing modifications
shall operate
in
conjunction with these new provisions in the same manner and to the same
extent as
did
the substituted language in the original Consent Decree; and
5.
Except as specificallyprovided in this Order, all other tenns and conditions ofthe
Consent Decree will remain unchanged and in full effect.
DONE
and
ORDERED Ibis
~
of
Il-M'jtltl r
.2006.
4
Electronic Filing - Received, Clerk's Office, April 9, 2008
IN THE UNITED STATES DISTRICT COu'RT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
Plaintiff - IntelVenors,
UNITED STATES OF AMERICA
ILLINOIS POWER COMPANY and
DYNEGY MIDWEST GENERATION.
INC.,
Civil A-ction No. 99-833-MJR.
Plaintiff,
and
Defendants.
v.
)
)
)
)
)
)
TIm STATE OF ILLINOIS, AlvIERICAN )
BOTTOM CONSERVANCY. HEALTH
)
AJ:-.il)
ENVIRONMENTAL JUSTICE -
)
ST. LOUIS, INC"
ILLINOIS
)
STE\VARDSHIP
ALLIANCE~
and
)
PRAIRIE RI\lERS l'\"ETWORK
)
)
)
)
)
)
)
)
)
)
)
-------------)
Electronic Filing - Received, Clerk's Office, April 9, 2008
TABLE OF CONTENTS
1. Jurisdiction and Venue
,
,
, . ,
4
II. Applic.ability ...•.......... ,
,
,5
lIT. Definitions
,
,
6
IV. NO
x
Emission Reductions and Controls
15
A. N0l< Emission Controls .........................................•...... 15
B. System-'WideAnnual
TOIUlage
Limitations forNO
x
•••••••••••••••••••••••••
16
C. Use ofNO,.
4~lo'\lances
17
D. NO. Provisions - Improving Other Units
18
E. General NO,. Pro\'isions
19
V. SOz Etnission Reductions and Controls
19
A.
SOz
Emission Limimtions and Control Requirements
19
B. System-Wide A1lllual TOllnage Limitations for
S~
21
C. Sunender ofSO! Allowallces
22
D. General S02 Provisious
25
VI. PM: Emission Reductions and Controls
25
A.
Optimization of PM Emission Confrols
25
B.
Jllst<lllation of New PM Emission Controls ..•.............•..... ;
26
C. Upgrnde ofExisting PM Emission
Confrol~
27
D. PM Emissions 1.:Iollitol'ing
30
E. General PM Provisions
34
V11. Prohibition 011 Netting Credits 01' Offsets fiUDl Required Conb'ols
34
VIII. Enviromnental Mitigation Projects
35
ii
Electronic Filing - Received, Clerk's Office, April 9, 2008
IX. Civil Penalty
_
__
_
37
X. Release and Covenant Not to Sue for Illinois Power Company
38
XL Resolution ofPlainti.ff'8'Crilll Claims AgamstDMG
_
40
A. Re.solution of Plailltif&' Civil Claims
40
B. Pursuit ofPlaintiffi/ Civil Claims Othenvil!e Resolve.d
, . _
__ . _. _41
XII. Periodic Reporting
__
_.. _
_45
XIII. Revie"\\' and Approval ofSubmittals _..............•......•........ " .,
47
XIV. Stipulated Penalties
_
_
_
__ .. _. _
48
XV. Force lYlaje.ure .••................. _...• _"
_..•..........•.••..•... 53
XVI.. Dispute Resolutiol1
_•.........••...•............. _.. _
56
X\lIL Pernufs
__
_.. _S8
:A.rVIII. Information Collection and Rc1entiol1 _.• __ ..................•............... 60
XIX. Notices
_
-
62
:xx.
Sate.~
or Transfers of Ownership Interests .. . . . . . . . . . . . . . . . . . . . . . . .. . . . ..
64
XXI. Eftecti\'e
Date
_
_
_
_
66
XXII. Retention ofJ\lrisdiction
_
_
.. _
67
XXIII. Modificati011
_..•....•.......................... 67
XXIV. General Provisio11s
_
67
XXV". Signatories and'Service
70
XX\lI.
Public Counneut
, ...•............................................. 70
{{XVII. Conditional Termination ofEllforcemellt Under Decree
71
XXVIII. Final Judgtllellt
, ..........•......... ,
72
Appendix A: Euvil'Ou11lentalMitigation Projects
iii
Electronic Filing - Received, Clerk's Office, April 9, 2008
'WHEREAS, the United States ofAmerica ("the United States")r 011 behalfofthe United
States Environmental Protection Agency ("EPA") fileet a Complaint <lgainst
IlliuoL~
Power
Company ("Illinois Power") on November 3, 1999, and Amended Complaiuts against illillois
Power Company and Dynegy Midwest Generatioll: Inc. ("DMG") on JaUlUl1Y 19.2000. 1\1al'ch
14,2001, and March 7:< 2003: pursuant to Sections 113(b) and 167 ofthe Clean Air Act (the
"Act"), 42 U.S.c. §§ 7413(b) and 7477, foJ' lllfunctive reliefand the assessment of civil penalties
fo!' alleged violations at the Baldwin Generating Station of:
(a) the Prevention ofSignificlUlt Detetioration provisions iu PR11 C ofSubchapter
I ofthe
Ac~
42 U.S.C. §§ 7470-92;
(b) the federally enforceable State Implementation PIau developed
by
the State of
Illinois (the "illinois SIP"); and
(c) dIe New Source Perfonnnllce StandClrd provisions in Part A of Subchapter
I
of the
Act, 42 U.S.C. § 7411.
WHEREAS, EPA issued Notices ofViolntion ,"vith respect to such allegations to lllinois
Power on November 3, 1999 and November 26,2000;
WHEREAS, EPA provided Illinois Power, DwIO. and the Stnte ofIllinois actnal notice
ofviolatioo$ pertaining to its alleged violations,
in
accordance with Section 113(a)(1) and (b) of
the
Act~
42 U,S.C. § 7413(a)(I) and (b);
WHEREAS, Illinois
Power was file O\lluer and operatpr ofthe Baldwin Facility from
1970 to October 1999. On October 1. 1999. TIlinois Power trallsfell'ed the Baldwin Facility to
nUnova COlpol'atioll. Itlinova Corporation tben conttibnted th.e Baldv:iu Facility to IIlillova
Electronic Filing - Received, Clerk's Office, April 9, 2008
Electronic Filing - Received, Clerk's Office, April 9, 2008
Power Marketing, Inc., after wlrich time TIlinoiJ:1 Power no longer owned 01'operated the Baldwin
Facility.
WHEREAS. beginnillg 011 October 1, 1999 and continuing through the date of lodging of
this Consent Decree, Illiuois Power has been neither the owner nor the operator of the Baldwin
Facility
01'
of
lUly
of the Units in the DMG System which ore affected
by
tlri.s Consent Decree;
WHEREAS,
in
Febnmry :woo, lliinova Corporation merged with Dynegy HoldulgS Inc.
and became 8 Wholly O\\11ed sl1bsidimy ofDynegy I11C.
(ref~l'1'ed
to llel'eill as
f4Dynegy'f).
TIlereafter, minova Power Marketing, Inc., the owner of the Baldwin Facility, changed its name
to Dynegy Midwest Generation. Inc. (l-efelTed to herein as
'"DNIG").
On September 30, 2004,
Dyuegy, through Illinova, sold Illinois Power to Allleren Corporation,
WHEREAS, Atnerell and Illinova
COIporation, 8 snbsidiary ofpyllegy, lmve entered into
an
agreement which p1'Ovides for the escrow ofcetiain fimds, the release ofwhich funds is
related
to the resolution ofcertain contingent envirolUl1entalliabilities that were alleged in the
above-referenced Amended Complaints
a.ga:in~f.l11inois
Power and DMO.
WHEREAS, Plaintiff-Intervenors - the American Bottom Conservancy, Health and
Environmental Justice - St. Louis, Inc., lllinois Stewardsllip Alliance. the Prairie Rivers
Nelvfo!1<:, and tbe Sfate ofIllinois - moved to intervene on September 25.2003 and filed
Complaints ill Intenrention. The Court granted intervention to all movants on October 23, 2003.
WHEREAS, jn their CQmplaints
J
PlaintiffUnired States and PlaintiffIntervellors
(collectively"Plaiutiffs
U
)
allege,
inter alia,
that Illinois Power and HMO
!~\iled
to obtain the
lleCeSs.-uy penuits and install the controls necessalY uuder the Act to reduce sulfur dioxide,
2
Electronic Filing - Received, Clerk's Office, April 9, 2008
nitrogen
oxides~
and/or pt111iculate matter emissions, 8nd that such emissions can damage human
health
and tbe envi1'Onment;
WHEREAS, the Plaintiffs' Complaints state claims upon which relief can be granted
against
Illinois Power fiud DMGunder Sections 113 find 167 ofthe Act. 42 U.S.C. §§ 7413 and
74"7~
allcl28 u.s.C. § 1355;
WHEREAS~
DMG and Illinois Power have dellied and continue to deny the violations
alleged in the COlllplaints, nlahltM11bat they have been ancl remain in compliam:e with the Act
and are not liable for civil
pena1t.ies or injunctive relief. and DMG is agreeing to
the
obligatioll$
imposed
by this
Consent Decree solely t.o avoid furtJler costs flnd lUlcertainty;
WHEREAS, DMG has installed equipment for tile control ofnitrogetl oxides emisft'ions
at the Baldwin Facility. including Overfire Air systems on Baldwin Units 1. 2, and 3, Low NOx
Bumel'S 011 Baldwin Unit 3 and Selective Catalytic Reduction
("SCR~')
Systems 011 Baldwin
Units 1 and 2, resulting in nreduction ill emissions ofnn-rogen oxides ftom the Baldwin Plant of
approxiumteJy 65% below 1999 levels fl.-om 55.026 tons in 1999 to 19,061 tons in 2003.:
WHEREAS~
DMO
~'\vitcbed
from use of high sulfur coal to low su1fhr Powder River
Basin coal
at Baldwin Units 1, 2 and :3
in
1999 and 2000., reSluting in a reduction in emissions of
sulfin- dioxide from the Baldwin Plant ofapproximately 90% below 1999 levels from
145~243
tOllS in 1999 to 26,311 tOllS ill 2003;
WHERBAS~
the Parties alllicipate that the insrnllation and operation ofpollution control
equipment pursuant
to
this Consent Decree will achieve.significant additional reducf.ions of 802'
NO;,;. and PM e1l'ussiolls and thereby fill'therlll1prOVe air quality;
3
Electronic Filing - Received, Clerk's Office, April 9, 2008
WHEREAS) in June of2003, tbe liability stage ofthe litigntiolll'esultillgfl:om the United
States' claims was fIied to the Court and no decision has yet been rendered; and
WHEREAS, the Plalntiffs, DMG ilnd Illinois Power have agreed, nlld the Court
by
entering this Consent Decree finds: that this
Con.llent
Decree has beeuuegotiated in good faith
and at anns length.; that this settlement is fair, reasonable. in the best interest ofthe Parties nnel
in
,
the public interest,
Bnd
c01lsistent with the goals ofthe Act; and that entry ofthis Consent Decree
witbout further litigation is the most appropriate means of resolving
this
nuttier;
NOW, mEREFORE, without any admission by the Defendants, and without
adjudication of the violatiolls alleged in the Complaints or the NOVs. it is hereby ORDERED,
ADJUDGED, AND DECREED as follows:
L JURISDICtION AND VENUE
1.
Tills COtul bas jurisdiction over tins action, the.subject
11lfitter
herein, .Bnd the
Pmties consenting hereto, PlU'SlUlllt to 28 U.S.C. §§ 1331, 1345. 1355, aud 1367. Sectio1l.') 113
and 167 ofthe Act, 42 U.S.c. §§ 7413 ilnd 7477, and Sectio.1l42(e) oftIle DUnois Envimlllllental
Protection Act,
41S
ILeS
3/42(e). Venue is proper lUlder Section
11~(b)
oftlle
Ac~~
42 U.S.C.
§ 7413{b), Bnd uuder 28 U.S.C. § 1391 (b) wId (c). Solely for the pUl-pOseS oftllis Consent.
Decree 3m1 the lUlc1erlyillg Complaints. and for no otlIer purpose, Defendants waive all
objections and defense!3 that they may have to the COUlt)S jurisdiction over this action, to the
Court'sjurisdict.ion over the Defendants) and to venue in this District. Defendants shall110t
challenge the terms ofthis Consent Decree
01'
this Court:s jurisdiction to enter
~nd
enforce
this
Consent Decree. Solely for purposes of the Complaints filed
by
the Plaintiffs hI this matter and
l'esolved
by
the COllsellt Decree, for purposes of entry and -enforcement of this Consent Decree,
4
Electronic Filing - Received, Clerk's Office, April 9, 2008
and for no other pU11}ose, Defendants waive any defense 01' objection based 011 standing. Except
as
expre~sly
provided for herein, this Consent Decree shall not cl'e«teany rights ill or obligations
of any party other than tIle Plaintiffs and the Defendant.s. Except as provided in Section XXVI
(public Comment) ofthis Consent Decree. tile Parties consent to
eutly
ofthis Consent Decree
without fmther notke.
II. APPliCABILITY
2.
Upon entty, the provisions of the Consent Decree shall apply to and be biuding
upon and inure to the benefit ofthe Citizen Plaintiffs and DMO., and their respective successors
and assigns,
officers~
employees and agents: solely in their capacities as such: and the State of
Illinoi'simel the United States. IUillOis Power is a party to tIus Consent Decree: is the beneficiary
of Section X ofthis Consent Decree (Release and Covenaut Not to Sue for lllinois Power
Company). lind is subject to Paragraph 171 and the other applicable provisions ofUle Consent
Decree as specified in such Paragraph in the event it acquires an Ownership Interest. in, or
becomes an opellltor (as that tellIl is used and interpreted under the Clean Air Act) of, 811y DMG
System Unit, but otherwise bas no other obligations lUldel' this Consent Decree except as
expressly bl)ecified herein.
3.
DMO shall be responsible fol'providing a copy of this Consent Decree to all
velldOI"S. supplie1'8, consultants, contractors, agents. and any other company 01' other organizatiQn
retained to perfonn any ofthe work required by tillS Consent Decree. Notwithstanding any
retention ofcontractors. subconl.ractol'$, 01' agents to pe1forlll any work required lmder tlUs
Consent Decree, DMG shall
be
responsible for ensuring that all work
is
pelfollued ill accordance
with the requirements ofthis Consent Decree.
In
any action to ellfol'cethis Consent Decree,
5
Electronic Filing - Received, Clerk's Office, April 9, 2008
DMG shall not asset.t as a defense the failure ofits officers, directors, employees, servants,
agents.. 01' contractors to take actions necessary to comply with this Consent Decree, lIDless DMG
establishes thnt sneh failure resulted fi'oma Force Majeure Event, as defined in Pal'<Igraph 137 of
this Consent Decree.
m.
DEFINmONS
4.
A "30-Day Rolling Avernge Emission Rate" for a Uuit shall be expressed
flS
IbfmmBTU and calculated in accordance with the following procedure: fU'st, sum
fhe
total
pounds oftIle pollutcmt in question emitte(l fi'ODl tbe Unit duting an Operating Day and the
previous twenty-nine (29) Operating Days; second, Sllm the t.otal beat input to the Uuit. in
ll11l1BTU during: the Operating Day mld the previO\ls nventy-nine (29) Opel1'ltingDays; and third,
divide the total number ofpounds of the pollutant emitted during the thirty (30) Opemfing Days
by
the total heat input d111111g the thirty (30) Operating Days. A new SO-Day Rolling Average
Emission Rate shall be
~aklliated
for each new Operating Day.
E~ch
30-Day Rolling Ayerage
Emission Rate shall include all emL'Jsionsthat occnr during all periods ofstartup, shutdo\\'ll8ud
M~dft1Ucti()n
within an Operating Day, ex.cept tiS follO\¥s:
8.
Emissions and BTU jnputs that occur dlUillg n period oflv1nlfiulctioll shall be
excluded from the calculation ofthe 30-Day Rolling Average Emission Rate if
D~1G
provides notice of the Malfunction to EPA
~l1d
the State in accordance with
Paragraph 138 in Section
x:v
(Force Majeure) ofthis Consent Decree;
b.
Emissiolls of
NOll
and BTU inputs that occur dml11g
the .fifth
and subsequent Cold
Start Up Period(s) that occur at
ft
given Unit dwing any 30-day petiod shall
be
excludedlroDl the calculation ofthe 30-Day Rolling Average Emissioll Rate if
6
Electronic Filing - Received, Clerk's Office, April 9, 2008
inclu.')ionofsuch en:rissiOH'iwould result in a violation ofany applicable 30-Day
RQlling Average Emission Rate and DMO has
in~talled,
opemted and maintained
the
SCR
in
questioll in accol'dancewith manufacturers'specifications and good
eugiuee1iug practices. A
'~Cold
Start Up Period':occurs whenever there has been
no fire ttl the boiler of a Unit (no combustion of any Fossil Fuel) for a period of
six (6) hours or more. The NO" emissions to be excluded during the fiftb ami
subsequent Cold
Start. up Period{s) shall be tIle lesser of (i) those NO" emissions
emitted during the eight (8) hour period conunencillg when the Unit is
s}'llc1uonized'with a utility electric transmission system and concluding eight (8)
hout'S later,
01' (ii)
those NO", emissions emitted prior to the thne that the flue gas
bas achieved the minimum SCR opemtional temperature specified
by
the cntalyst
nUllUlfacturel';
aud
c.
For a Unit that has ceased firing Fossil Fuel, emis.'i'lo11Sof SOz and Btu inputs that
occur dming allY period, 110t to exceed 1\'1"0 (2) h01U-S, from the restart of the Unit
to the time the Unit is flTed with any coal, shall be excluded ii"om the calculation
of the 30-Day Rolling Average Emissioll Rate.
5.
"Baghouse" means 8 fullsu"eam (fabtic filter) pa1ticulnte
~uisgiol1
control device.
6.
HBoHer
Island" means
a
Unit's(A) fuel combustion system (including bunker,
coal pulvelizers, crusher,
~toker.
and fuel bmuers); (B) combustion air system; (C-') steam
genernting system (firebox, boiler tubes, and walls); and (D) <h'flftsystem (excluding the stack),
all os further described ill iilnte-rpretation ofRecollst11lction,'l
by
John B, RHsuic U.S. EPA
(November 25. 1986) anei attacluuents thereto.
7
Electronic Filing - Received, Clerk's Office, April 9, 2008
7.
"Capital Expenditure" means all capital expenditures, as defmed
by
Generally
Accepted
ACtOlUlting Principles
C'GAAP")~
as those principles exist at tlle date of entry oftbis
Consent Decree, exc1udillg the cost ofinstalling or upgrnding pollUtiOll contrQI devices.
8.
"'CEMS"or HContilluous Emission MOllit01'illgSystem
n
means, fo1' obligntion9
involving NO
x
and
S~
under
tIns
Consent Decree.. the devices defined
in
40 C.F.R. § 72.2 and
illsialled and maintained as required
by
40 C.F.R. Part 75.
9.
"CiUzen PJaintiffs" means, collectively, the American Bottom
C01lServ~IlCY.
Healtb and Ellviromnent81 Justice -
st.
Louis, Inc.) illinois Stewardship Alliance, and the Prairie
Rivers
Net\'\'ork.
10.
"Clean Air Act" 01' "Act" means the federal CleallAir Act
1
42 U.S.C.
§§i401-
7671q. Dud
its
implementing regulations.
11.
<'ConsentDecree" 01' 'iDecree» means this Consent Decree and the Appendix
hereto, which is incorporated iuto tlus Consent Decree.
12.
"Defendallts~'
means Dynegy Midwest Generation,. Inc. and Illinois Power
Company.
13.
"DMO" meaus Dynegy Midwest
Gelleration~
Inc.
14.
<~1G
System" means, solely for pUll)oses ofthis Consent Decree, the following
ten (10) listed coal-fired, electlic steam generating Units (with the rated gross MWcapacity of
each Unit, reported to Mid-America Intel'COilllecteclNetworK ("MAlN
n
)
in 200"3:-lloted in
parentheses), located at the following plants:
•
Balchvill Generating Station in Baldwin, Illinois; Unit 1 (624 MW), 2
(629 MW), 3 (629 MW);
8
Electronic Filing - Received, Clerk's Office, April 9, 2008
•
HflvanR Generating Station in Havftna, llliuois: Unit 6 (487
NIW);
•
Hennepin Gene.rating Station in
Helll1epiu~
llJinois: Unit 1 (81
MW)~
Unit 2 (240
rvtW);
•
Velmilioll Generating Station ill Oakwood. illinois: Ullitl (84 MW),
Unit. 2 (113 MW);
•
Wood River Generating station in
Alt9n
l
Illinois: Unit 4 (105 MW),
Unit S (383 M\V).
15.
"Emission Rate" mean.,; the number ofpounds ofpollutant emitted per million
BTU ofhea
t
input
e'lb/mmBTU")~
memmred in accordance with tIris Consent Decree.
16.
"EPA" menus the United States Environmental Pr01ection Agency.
17.
"ESpn llleans electrostatic precipitator, a pollution control device for the
reduction
of PM.
18.
"Existing
Units» menus those Units included in the DMG 5'yStem.
19.
"FIne
Gas Desulfurizatioll System," or uFOD/'means a pollution control device
with one or more absorber vessels that employs flue gns desulful"izatioll technology for the
reduction ofsulfur dioxide.
20,
"Fos~il
Fuel" means any hydrocarbon fuel, illc111ding coal, petl'OleUlllcoke,
petroleum oil,
or natural gas.
21.
'~Illil1ois
Envirollmental Fwtection Act" means the Illinois Environmental
Protection AC4
415 !LeS 5/1 et seq., aud its implementing regulatioJLCJ.
22.
i1llliuois Power" meallS the Illinois Power Company.
9
Electronic Filing - Received, Clerk's Office, April 9, 2008
23.
"Improved Unit"
mean~.
in the case ofNO:o;. a DMG System Unit equipped with
01' scheduled oodet'this Consent Decree to be eqnipped with an SCR, Of, in the case of SOl. a
DMG
System Unit scheduled under this Consent Decree to be equipped with all FGD (01'
equivalent S02 control technology approved pursuant to Panlgrnpb 68). A Unit may be an
Improved Unit for one pollutant without being flll Improved Unit for the other, AllY Other Unit
can become an
Impl'OvedUnit if(a) in t!le case ofNO
X'
it is equipped with an SCR (or equivalent
NOx control technology approved p1U'suant to Paragraph (4)
anclh~s
become subject to a
federany enforceable 0.100 Ib/1llUlBTU NO>;
3Q.Day
Rolling Avel'ageEmission Rate, or (b) in
the case of S02, it is equipped with an FOD (or equivalent SOl control technology appl'oved
pW'SU8nf.to Paragraph (8) and has become subject to nfederally enforceable 0.100 IbfmruBTIT
S02 30.DayRolling Avel-age Emission
Rat~
and (c) in the case ofNOx or S02'the requirement
to llchieve and lllaintaiu
fI
0.100 Iblm1UBTU
30.Day
Rolling Average
Emb~$ioll
Rate is
incorporated into the Title V Pennit applicable
to that Unit or, if
110
Title V Penuit exists,
8
modification to this COll<Jent
Decr~e
that 15 agreed to
by
the Plnintiffs and DMG and approved
by
this Court.
24.
4'lb/rnll1BTU
n
means one pound pel'million British thermal units.
25.
HMalftmction" menn.'iany sudden,
jllfi-equent~
and not. reasonably preventable
failtu'e of air pollution control eqnipment, process equipment, or Cl process to operate ill a l10nnal
or
U~1lt1lll1flnner.
Failures that are caused in
P!ut
by
pOOl' 1llsinteuance
or careless operation are
not Malfunctions.
26.
"M\V" means a megawatt or one million Watts,
10
Electronic Filing - Received, Clerk's Office, April 9, 2008
27.
';NntioualAmbient
Au'
Quality
$tru1d~l'ds"
01' "NA.'\QS...means national ambient
air qunlity stftooards that are promulgated pursuant to Section 109 ofthe Act. 42 U,S.C. § 7409.
28.
'1NonattaimneotNSR" means the llonattnitunent area New
SOlU'ce
Re,de\"
program within tbe meaning ofPart D ofSubcbapter I ofthe Act, 42 U.S.c. §§ 7501-7515,40
C.F.R. Part 51.
29.
"NO;'means oxides of nitrogen.
30.
HNOl{ Allowance" means
nn
autholization ot'credit to emit Rspecified amount of
NO
x
that is allocated or issued lmder an e.missiolls trading or
lluU'ket~ble
pennit program ofany
l~ind
t11at has been
establi~hed
lmder the Clean Ail'Act or a State IW1»emeutatioll Plan.
31.
nOperafing Day" means any calendar day 011 wbicha Unit. fires Fossil Fuel;
provided, however, that exchwively for putposes ofParagl'aph36, "Operating Day"llleans any
calendar day Oil Wllich bofh
Bald\~riu
Unit 1 and Baldwin Unit 2 fire Fossil Fuel.
32.
Bother
Unit" means any Unit oftbe DMG System that is not an bnproved Unit
for the pollutant in question.
33.
'~Ownership
Interest"
lll~llS
patt 01' flll of DMG'slegal 01' equitable ownership
interest in allY Unit
in
the DMG Syst.em.
34.
"Pru1ies" means the United States, the State ofJ11illoi!), the Citizen Plaintiffs.
DMG, alld Illinois Power.
35.
"Plaintiffs"
means the United states, the State ofIllinois, i\ud the Citizen
Plaintiffs.
36.
A "Plaut-Wide 30-Day Rolling Average Emission Rate" shall be expressed as
Ib/mmBTU and calculated in
ac-eordll11Ce
with the following procedure: first. sum
th~
total
11
Electronic Filing - Received, Clerk's Office, April 9, 2008
pounds ofthe
pollut~l1t
in question emitted from 811 three Units at the Baldwin Plaut dining an
Operating Day and the previous twenty-nine (29) Operating Days; second, sum the total heat
input to all three Units at the Baldwin Plant in mmBTU
dUling
the Operating Day and the
previous twenty-nine (29) Operating
Days;
and third, divide the totaluUluher of
POlUlds
of
th.~
pollutant emitted D.-om all tln-ee Baldwin Units during the thirty (30) Opel'atingDays
by
the total
heat inpnt to
aU
three Baldwin Units during the thirty (30) Operating Days, A llew Plant-Wide
30-DflY Rolling Average Emission Rate shall be calculated for eacllllew Operating Day, Each
Plallt-\Vide
30~Day
Rolling Avernge Emission Rate shall include all emissions that oeem' during
all periods ofstartup, shutdown and Malfunction within an Operating Day. A MaIfhnction shall
be excluded from this Emission Rate. howevcl'. ifDMO satisfies the Force Majeure. provisions of
this Consent Decree.
37,
A "Phmt-'VideAnnual
T01U13ge
Emission Level" means. for the purposes of
Section XI of this Decree, the. number of tollS of the pollutant in question that may be emitted
fi'OIll the pImlt at isslle during the relevant calendlU'year (i.e., JmmalY 1 through December 31).
and shalt include aU emissions ofthe pollutant emitted during periods ofstartup, f>hutdown. and
Malfunction.
38.
i'PolIUtiollControl Equipment Upgrade
Ana1ysis'~
means the technical stu(ly.
811alygis, re\:iew, find ,selection of control technology reCOlllUlellchltiolls (including an
emi~-sioll
rate or removal efficiency) required to be performed in connection with au application for a
federal PSD permit. taking into account the characteristics oftlIe existing facility. Except as
othelwise provided in this Consent Decree, such studYt analysis: review: and selection of
recommendatiolls shall be cmrled out in accordance with applicable federal and state regulations
12
Electronic Filing - Received, Clerk's Office, April 9, 2008
and guidance describing the process and analysis for determining
Be~t
Available ControJ
TecIulology (BACT),
as
that tenn is defmed
u140
C.P.R. §52.21(b)(12),
iJlcJudillg~
without
limitation. the December 1, 1987 EPA Melllorandtmi from J. Craig PoUel', Assistant
Achninistmtol'
fol'Air and Radiation, regarding Improving New SOlll'ceReview (NSR)
Implementation. Nothing
in
this Decree shall be construed either to: (a) alter the force and effect
of statements known as or characterized as "guidance" or (b) permit tIle process 01' result ofa
~'Pollution
Control Equipment Upgmde. Analysi';JJto be c()usidered BACT for any pUll>ose under
the Act.
39.
';PMControl Device" means any device, including all ESP or a Baglrouse, that
reduces emissions
ofpnrticulate matter (PM).
40.
npM" means patticulate mutter.
41.
~'PM
CEMS" or
~'PM ContilluO\~c;
Emission Monitoring System!} meall.'3 the
equipment
tlmt samples, illialyzes, lllens1.ue5. and provides, byl'eadings
t4lken
at fi-equent
intervals, an elect.ronic 01'paper record ofPM emissions.
42.
"PM Emission Rate
n
means the mUllber ofpounds ofPM emitted pel'million
BTU
ofbent
input
(lbfuunBnJ), as meas.m'edin 8'illualstack te.<;ts in accordance with EPA
Method 5, 40 C.F.R. Pa1160. including Appendix A.
43.
"Projed Dollars" means DMG'sexpendittU'es and payments lllCtU'1'edor made ill
carrying out the Environmental Mitigation Projeds identified ill SectiQIl .VIII (Environmental
Mitigation Projects)
ofthis Consent Decree to the extent. that such expenditures orpaylllents
both:
(n)
comply ,,,itll the requirements set forth in Section VIII (EnvirQnmental Mitigatioll
Projects) and
AppendL"X A ofthis Consent Decree" and (b) constitute DMG'sdirect payments for
13
Electronic Filing - Received, Clerk's Office, April 9, 2008
sucb
pl"~iects,
D?-"IO's extemnl costs for contractors, vendors, and equipment, or DMG'sinternal
costs consisting of employee
time, travel, or out-of-pocket expenses specifically attlibutable to
these particular projects and documented in accordance with OAAP.
44.
"psn
u
means Prevention ofSignificant Deterioration within the meaning of
P~ut
C ofSnbchapter I ofthe Clean Ail'Act, 42 U.S.C. §§ 7470 - 7492 and 40 C.F.R. Part 52.
45.
"Selective Catalytic Reduction System" or
HSCR"
means
n
pollution control
device that employs selective catalytic reduction technology for the reduction ofNO" emissions.
46.
"SOt means sulfur dioxide.
47.
;'S02Allowance" llle!UlS "allow811ce" as defined at 42 U.S.C. § 76518(3): IIml
authorization, allocated to an affected unit
by
the Administrator ofEPA under Subchapter
N
of
the
Ac~
to emit,
dming
or after a specified calendar year, one tOll of
sutfiu'
dioxide."
48.
"System-Wide Annual Tonnage Limitation"
means the limitation on the number
On01lS of the pollutant in question that may be emitted from the DMG Syr:.1em during the
relevant calendm'year (i.e'
J
Jamwy 1 through December 31), and sllflU include all emissions of
the pollutant emitted during periods ofstartup. shutdown, anc1l\rfalfuncrioll.
49.
~'Title
V Penuit
tt
means the pelUut
r~quired
ofDMO'smajor sources lmder
SubchapterVofthe Act, 42 U.S.C. §§ 7661.7661e.
50.
"Uuie'llletlnScollectively. the coal pulvelizer, statiollary equipment that teeds
coal to the boiler. the boiler that prodnces steam fo1' the steam turbine, the steam turbine. the
gene-11ltol', the equipment necessmy to operate the general-or, steam ttl1'bineand boiler, and all
ancillary
equipment} including pollution control eqnipment. An electric steam generating station
tnllY
complise one or mote
Units.
14
Electronic Filing - Received, Clerk's Office, April 9, 2008
IV. NOr EMISSION REDUCTIONS AND CONTROLS
A. &
Etnis.sioll Controls
51.
Beginning 45 days after entry oUhis Consent-Decree. and continuing
thereaner~
DMG shall commence operation of the SCRs insmlled at. Baldwin Unit 1, Unit
2~
and Havana
Unit 6 so as to f1chieve and maintain a 30-Day Rolling AveJ1Ige Emission Rate from each such
Unit ofnot greater than 0.100 lb/mmBTU NO...
52.
Begilming 45 days after entry ofthis Consent Decree, and contilluillg
ther-~after,
DMG shall achieve and maintain a Phmt-Wide 30-Day Rolling Average Emission Rate ofuot
greater than 0.100 Ib/unnBTU NO
y
at the Baldwin Plant.
53.
Beginning 45 days aftel'enuy ofthis Consent Decree, and continuing thereafter,
subject to paragrapb 54 below, DMG shall achieve and maintain a 3D-Day Rolling
Average
Emission Rate of not greater thnn 0.120 Ib/mmBTUNOr; at BnIdwiu Unit 3.
54.
Begi!millg on December 31,2012. find cOlltilUling thereafla:. DMG sbflll maintain
a
30-Day Rolling Average Emission Rate. of
not
greater
Uum
0.100 IblnullBTU
Nn~
at BaIdwill
Unit 3.
55.
Beginning 30 days after entry of this Consent Decree, and continuing
thereaner~
DMG shall operate each SCR in the DMG Sy-stem at all times when the Unit
it
serves is in
operation.
pro~ided
that such operation of the SCR is consistent with the teclmologicaJ
IimitatiOlls, manufacturers' specifications, and good engineering and maintenance practices for
the
SG'R. During any such peliod in which the SCR
is
not opemtional, DMG \,'illlUinimize
emissions to the extent reasonably practicable.
15
Electronic Filing - Received, Clerk's Office, April 9, 2008
56.
BegilUliug 45 days from entlyof tIus Consent Decree, DMG shall operate low
N0
lt
bUlllers
("LNBU)
and/or Ovedire Air TeclulOlogy
(UOF
A") on the DMO System Units
li-sted in the table below at aU times that the Units are ill operation. consistent with the
technological1itllitation~.
manufacturers
I
specifications, and good engineering and
Ultlmtenance
practices for the LNB and/ot'tIle Ovel'fireAir Technology, so as to minimize emissions to the
extent reasonably practicable.
Dl\IG System Unit
NOs Control Terhnologx
Baldwin Unit 1
OFA
Baldwin Unit 2
OFA
Baldwin Unit 3
LNB,OFA
Havana
Unit
6
LNB,OFA
Hetulepin Unit 1
LNB.OFA
Hennepin Unit 2
Ll\TB,OFA
Vermilioll Unit 2
LNB,OFA
Wood River Unit 4
LNB,OFA
'WoodRiver Unit 5
LNB.OFA
B. System-"\Vide Annual
I2!111a~
LimitntiQl1S for NQ'I
57.
Dm"illg each calendar year specified in the Tnble
be1ow~
all Units in the DMG
System, collectively, shall not emit NOs in exce-ss ofthe.following System-Wide Annual
Tonllage Limitations:
16
Electronic Filing - Received, Clerk's Office, April 9, 2008
Apl)!ttable
Cu)elldm'
Veni'
S~I$tem~
'Vide Anmlnl
To.nunge
Limitations {Ol'
NOr;
2005
15.000
tons
......
-
..
_-.
2006
14
1
000 tons
2007 and ench year therenfter
13.800 tons
C.Use
QfNO~ AlIowl\ll~s
58.
Except
AS
proVided in tills Consent Decree. DMG sllalt not sell
01"
trade any
NO~
Allowances allocated to the DMG System that would otherwise be a'wdlablefo.r sale Of b-ade as a
result oftbe actions taken by DMG to comply with
the
requirements oftllis Consent DeCl'ee.
59.
Except as may be
nec~sulY
to comply with
S~CtiOll
XIV (Stipulated Penalties)
DMG may not nse NO
E
AllowtUlces to comply with any requirement oftIns Concsent
Decree~
including
by
claiming
~ompliallee
with any emission limitation
r~'lired
by
this Decree
by
.llsiJl&
tellde1'ing~
01'otherwise appl)flng NOli
Allow~nc~
to offset allY exce$$elll1.ssions (te.,
eulissjom~
above the limits specified in Pnrngraph 57).
60.
NO
x
Allowances allocated to tbe DMG System
1UftY
be u$ed
by
DMG only to
meet its own fwaral andl01'6tate Clean
Ail' Act
regulato1Y l'equil'emeuts,except as pl'ovide<tin
Pat'agraph61,
61.
Provided that DMCt is ill complinnce with tile System--Wide A1mutU Tonnage
Limitations f01'NO
x
set fOl'th i11 this
COllilell.t
Decree~
nothing
in
tltis Consent Decree sball
preclude
D:MO
froUl.
.selling OJ' tl'ansfeningNO:.: AUowroJ<:es
ftll~ated
to the DMO System that
become available fol'
sal~
or tl-ade solely as a result of:
D.
~ctivitie$
thnt reduced
NO~
emissions
Ilt
any Unit wj'binfhe DMO System pllor to
the date ofeutry of this Consent Decree;
17
Electronic Filing - Received, Clerk's Office, April 9, 2008
b.
the installation aud operation of
filly
NO" pollution control
tec]U1010gy
or
technique that is not othe1wise required
by
this Consent Decree; or
c.
acllieveJ.uent and maintenance ofNOx emission rates below a 30-Dtty Rollillg
Avel'ageEmi'l:siollRate of 0.100 Ib/1l1nlBTU ntBald\.\'inUnits 1,2 or 3, or at
HaVflUfi
Unit 6.
so long
at:;
DMG timely reports thi: generation of such surplus NOli Allowances ill accordance
with Section
xn
(Periodic Reporting) oft11i.s Consent Decree. DMG shall be allowed to sell 01'
transfer NO... Allowances eqtml to the N0;t emissions reductions achieved for allY given yeai'
by
any ofthe actions specified in Subpal'agl'8phs61.b or 61.c. only to the extent that. and in the
amount that,
the total NO", emissions fi'omall Units within the DMG System are belowUle
System-Wide
AtnlUal TOlliUl.ge Limitation specified in Paragraph 57 for that year.
62.
Nothing in this Consent
D~ree
shall prevent DMG foom purcbasiug or
othen\'is~
obtaining NO
x
Allowances fiUDl another source tbl'plll1)oses of co1llplying with state or federal
Clean Air Act requirements to the extent otben.vise allowed
by
law.
n.
NQ...
P1'9vi~i2.ns
- IUllJ.mY'!ng.Qthe.r..!.l.ni.t'!
63.
Ally Other Unit Cllll become an Improved Unit for NO"
if
(a) it is equipped with
an SCR (or equivalent NOx contml teclmology approYed pursuant to Paragraph 64), and (b) has
become subject to a federally enforceable 0.100 IbltmnBTU NO;; 30-Day Rolling Average
Emission Rate.
64.
With l)rior written notice to the Plaintiffs and '\\'littell11pprovalfrom EPA (after
COllsultlltioll with the State ofIllinois and the Citizen Plaintiffs). em Other Uuit ill the DMG
System may be
comidered
flll
Improved Unit under thi!') Consent Decree ifDMG installs
ffiLd
18
Electronic Filing - Received, Clerk's Office, April 9, 2008
operates
NO
x
control techllo1ogy':otllert11an all
SeR,
that has been demonstrated to be capable of
acllievillg tlnd maintaining a SO-Day Rolling Average Emissioll Rate not gl'eaterthan
0.100 Ib/mmBTU NOli; and ifsuch unit has become subject to
~
federally enfo1oceable
0.100 Jb/mmBTU
N0
le
30-Day RoIling Average Emission Rate.
65.
In determining Emission Rates for
NO~J
DMG shallllse CEMS in Rccordance
with tbe reference methods specified ill 40 C.F.R.
P~l1t
75.
V.
§l~.£MJ~QN
REDUCTIONS. A,1fD.CONTROLS
A.
~
Emission Limitations and Control Reguirellleuts
66.
No late!'tha11 tIle dates set iOl'fhin the Table below for each oftlle tW'eeUnits at
Baldwin and Havana Unit 6, and continuing thereafter, DMO shall not Q}>erate the specified lJnit
1Ulless andlwtil it 1ms installed and 'COtlliMllCedoperation of, 011 a yelll'-roundbasis, an FGD (01'
equivalent SOl control technology appl'Oved1)Ul'611anttoPaJ'agraph(8) on each such
Uni~
so as
to nchieve and mninrein a SO-Day Rolling Average Etui$sion Rate afnot gl'enterthan
0.100 lbfmmBTU 801'
11m
D.AI:E
First Baldwin Unlt
December SIt 2010
(l.-e.,
~U\y
ofthe Bttld\'\in Units
l~
2 or 3)
Second
Baldwin Unit
December 31, 2011
(i,e., either ofthe 2 remaining
Baldwin Units)
Third Baldwin U11it
December.31,2012
(Le., the l'emaillingBaldwin Unit)
Havana Unit (5
December
~l,
2012
19
Electronic Filing - Received, Clerk's Office, April 9, 2008
67.
Any
FOD required to be installed under this Consent Decree lllay be n wet FOD
or a
dry FGD
atDMO'soption.
68.
With
prior \:vrittell notice to the Phlintiffs and written approval from EPA (after
cOll'Jultatioll
by
EPA with the State ofIllillOis and the Citizen Plaintiffs), DMO may, illlieu of
installillg and operating 8n FOD at any ofthe Units specified ill Paragraph 66, illstall Bnd operate
equivalent SO! control technology so long as such equivalent SO) control tecllllOlogyhas been
demonstrated to be capable of achieving fmd maintaining a 30-Day Rolling Average Emission
Rate ofnot greater than 0.100 IblmmBW S02'
69.
Beginuing
Oil the later afthe date
~
..
~eci:fied
in Paragraph 66 or the first Operating
Day of eEleh Unit thereafter,
and
continuing thereafter,
D~1G
sball operate each FOD (or
equivalent S02 control technology approved pursuant to Paragraph 68) reqnired by th.is Consent
Decree at all times 1hatthe Unit it serves is ill operation. provided that such opemtion of the
POD or equivalent technology is consistent with the techllologicallimitatioIls, manufacmrers'
specifications,
and good engineering and Ulaintenance pnlctices for tIle FOD or equivalent
tedmology. During any such peliod in which the FOD or equivalent technology is not
operational, DMG willll1inimize
eUlis.~iollfS
to the extent i'easonnblypracticable;
70.
No later than 30 Operating Days after enhy of this COlls-eni
Decree~
and
continuing thereafter, DMG shall operate HelUlepill Units 1 and 2 and Wood River Units 4 and 5
so as to
achieve and maintain a 30-Day Rolling Average Emission Rate from each of the stacks
serving
such Units afnot greater than 1.200 lb/lllmBtll S02-
20
Electronic Filing - Received, Clerk's Office, April 9, 2008
11.
DMO sllall operate Vennilion Units J and 2 so that110 later than 30 Opet:nting
Days afterJanuary
1.,
2007~
DMO shall achieve and ummt.:'liua 30.DayRolling Ave1'age
Emi.sSiOll Rate :ft:om the st<1ck servIng such Units ofnot gl'eate1.'than
1.200
Ib/mmBtll SOl'
72.
No Inter than 30 Operating Days after entry oftbis C011$ent Decree and
continuing until December 31, 2012, DMO 811811 opel'tlteHavana Unit 6 so as to achieve and
maintain a SO-Day Rolling Average Emission Rate from the stack
sel"\Ting
such Unit ofnot
gl'eatel'
th~n
1.200 Ib/mnlBtl1 50
2
,
B.
~~- ~ride
Annual Tmmu.ge LimitatlotlS.fOf
SO~
73.
During
e~ch
calendar year specified
in
tbe T8blebelow, all Units in the DMO
System,
collectively~
shaJlllot emit
SOl
ill excess ofthe following
~yste1U·
Wide Annual
Tonnag:e Limitntion.c;:
Applkable Cflleudftl'Year
System.WideAnullftl
_
....
Tonnage Litnitntions t01' SO:
2005
66,300
tons
2006
66~300
tons
2007
65~OOO
tons
2008
Q2,OOOton$
2009
62,000 tons
2010
62,000 tOllS
2011
S7,OOOtQU$
201.2
49~500
tons
2013
and each year thereafter
29,000 tons
._-
...
..-
14.
Except as may be necessary to comply with Section XIV (Stipulated Penalties)}
DMG may not use SOz Allowances to comply with
~llY
requirement ofthis COilsent Decreet
11
Electronic Filing - Received, Clerk's Office, April 9, 2008
inc.luding
by
claiming compliance \-vitll allY emission limitation l'equired
by
this Decree
by
using,
tenderillg~
ol'otherwiseapplying SOl Allowal1ces to offset any excess emissions (i.e., ellussiOU$
above Ihe limits specified
in
Pfll'agraph73).
C. S1uJender of
SO~
Allowances
75.
POl'each yelu'specified below, DMO shall !l'Un-enderto EPA, Orh'allSferto a
non-]>l"Ofitthird
pm1y
selected by DMG for sn.rrender;t 50
2
Al10wllnces that bave been allocated
to DMG fot' the specified calendar yearby the Administrator ofEPA undel'the.Act 01'by any
state nudet'itsSt8te
Implemen~"'\tion
PIau, in the amounts specified below, $tibject to paragraph
16:
Cnlentlftl'
Xetll'
Am.o.!m1
2008
12~OOO
Allowances
2009
18,000
Allowallce~
2010
24
i
OOO Allowances
2011. and enc1l year
30
J
OOO Allowances
tllereafter
DMG shall make the sun'enderofSOl Allo'\vallcesrequired
by
this
Pfll'~oraphby
Dec.ember31
ofeacb specified calendar yeal'.
76.
If
the 41.Jll'elldet'ofS0
2
al10wlUlces requtrad
by
Pat'agrnph75 would l'mdt.hlau
iwmfficient munber of allowances being available from those allocated
to
the Units colupl'1sing
tIle DMO System
to
meet the requirements ofany Federal andfoI'State requirements for ttllY
DMG System unit, DMG must-providenottce to the Plaintiffs OfSllCh wl1fficieucYt including
documentation oftoo number of SOz
nllowlUlces
so
r~qllil'ed
Rlld the Federal audlol'
Stat~
requirement involved. Unless EPA obJects,
.in
writing, to the amolmf.s sul'reuderedol'to be
22
Electronic Filing - Received, Clerk's Office, April 9, 2008
surrendered.. the basis of the
amolUlts
surrendered
01'
to be :)U1Tendered, or tlle adequacy ofthe
doc\Uuelltation, DMG
may
reduce the
lUuubet'
of S02 allowances to
be
surrendered lmder
Paragrapl175 to the extent necessary to allow such
D~10
System Unit to satisfY the specified
Federal and/or State requirement(s).
If
DMG bas sold or traded
SOl
allowances allocated
by
the
Administrator of EPA or a State for the year
in
which the St11Tellderofal1owftnces under
Paragraph 75 would result
in
an iusufficiellt number of allowances, all sold or traded allowances
must be restored to DMG's account th1'ol1ghDMG
~s
plU'cbaseor transfer of allowance.,; before
DIvrG may reduce the surrender l'equirelllentsofParagmph 75 a1> described above,
77.
Nothing
in
this Consent Decree is intended to preclude DMG froDlllsing 80
2
AllowruK:es allocated to the DMO &'ystemby the
Adnljni~tmtor
ofEPA lUldel'the Act, or by
Cllly
state uuder its State Implementation PIau. to meet its 0"\'\111 Federal alldfol' State Clean Air Act
l'egulniolyrequirements 'for
llny
Unit. ill the DMO System,
78,
For purposes ofthis Subsection, the "sun'elldel'of allowances"
me~lllS
pellUtlllently snn'elldering
al1ow~nces
from the accOlUlts admillistered
by
EPA for all Units ill the
DMG System, so that such allowauces can never be used thereafter to meet. any compliance
l'equil'ementuuder the Clean Air Act, the
TIlilloi~
State Implementation PIau, or this Consellt
Decree.
79.
If any allowances l'eqniredto be fi11lTendered under this Consent Decree are
fl1l11Sfeo'ed
directly to
a
non-profrt third party. DMO shall include
a
desoiptiol1 ofsuch transfer
in the next report submitted to EPA pursuant to Section XII (Peliodic Reporting) of this Consent
Decree, Such report. shall: (i) identify the nOllwprofit third-party recipient(s) of the SOl
Allowancel) and list the serial numbers of the tnl1lsfe11'ed SO! Allowances; and (li) include a
Electronic Filing - Received, Clerk's Office, April 9, 2008
certification
by
the third-party recipient(s) stating that tile recipient(s) will not sell, trade. 01'
otherwise exchange any ofthe allowances and 'will not use any ofthe S02 Allowances to meet
allY obligation imposed
by
any enviromnenta11aw, No later thOll"the third periodic report due
after
the transfer of any
SO~
Allowances, DMO shull include a statement tbat tbe third-party
recipient(s)
slu.'l'endel'edthe S02 Allowances forpe1U1811ent surrender to EPA hI accordance with
the provisiolls ofPfl1.C\gl'apll 80 within one (1) year after DMO trallsfe.rred the SOl Allowances to
them. DMG sJ1811 not. have complied with the SO?
AnOwflnce
slU'1'endel'l'equirellleutsof this
Paragraph until all
third-patty l'ecipient(s)shan have actmdly slUl'enderedthe h:allsferred S02
Allowances to EPA.
80,
For all S02 Allowances surrendered to EPA, DMG or the third-patiy l'ecipient(s)
(ns the case may be) shall first submit an S02 AUowlUlce transfer request form to EPA's Office
of Air and Radiation'sClean Air Mnrkets Division directing the tl'aDsferOfSllCh SO:! Allowances
to the EPA Enforcement Smrender Account 01' to any other EPAacco\1ut that EPA may <lil'ectin
writing, As part ofSUbmitting: these transfer J'equests, DMG or thethil'd-pmiyl'ecipient(s) shall
inevocably authorize the
tnmsfer of these 50
2
Allowallces and identify - by name of
aCcOlUlt
and allY applicable serial or other identification llmnbers or station names - the SOllfce and
location of the S02 Allowances being sU1'1-endered.
81.
The requirements in Paragraphs 75 ancl76 oftlris Decree pertaining to DMCPs
~ll11"euder
of
SO~
Allowances are permanent. injunctions not. subject to any tenninafioll provision
ofthis Decree.
24
Electronic Filing - Received, Clerk's Office, April 9, 2008
E. General So, provisions
82.
III detel1ui:ning Emission Rates for
S02~
DMO shall use CEMS
in
accordance with
those reference methods specified in 40 C,F,R. Palt 75,
VI. PM EMISSION REDUCTIONS AND CONTR.QLS
A. QptimizatioJ1gfPM;gmission
~olltro.ls
83.
Begitu1ing ninety (90) days after e11.1ly of this Consent Decl'ee) and coutinuing
thel'enftel',D1v10 sllall operate each PM Control Device oneacl1 Unit"within the DMG System to
maximize PM emission reductions
at
all tunes WlleD the Uuit is in operatiou, provided that such
opertltion of the PM Control Device is col1sistent with the technological Umitations,
manufacturer'sspedficstions and good engineering and IDflintenance practices for the PM
Control De"vice. Durhlg any period5 "llen
tiny
$ection or compartment of the PM control device
is not oj>el'atlolla),DMO "'illminhnize emissions to the extent reasomlbJy practicable.
Specifically, DMO shaH, at a minimum, to tlte extent reasonably pl'1tcticable: (a) energIze each
section ofthe ESP for ea.ch unit.
whel't~
applicable, opemte each comt>81'tmentoftbe Bagbouse
for each lUlU, \vhere appticable (regardless ofwhethe.l." those actions are needecl to eomt.>1y with.
Ol)~city
limits), and repair any failed ESP section 01'Baghouse compm1mentat the next IJ]alUled
Unit outage (or \mplaWled outage
of~mfficient lengtJl)~
(b) operate automatic control systems on
each ESP to maximize PM
col1ectionefficiellcy~
where applicable;
(c)
mnintain and replace bags
on each Baghouse as needed to nliudmize coJIection efficiency, where npplkable;
and
(d) inspect
for and repair during the next planned Unit outage (or unplanned outage ofsufticient lellgth) allY
openings in .ES'P casings. ductwork and expansionjoiuts to tnfnlmize air leakage.
25
Electronic Filing - Received, Clerk's Office, April 9, 2008
84.
Within two hundred seventy (270) clays after enhy oftIus Consent Decree.. for
each DMG System Unit selved
by
an ESP or Baghollse, DMO shall complete a PM emission
contl'Oloptimization study which shan recommend: the best available maintenallce, repair.• and
operating practices
and a schedule for implementatioll ofsuch to optimize ESP 01'Baghollse
availability and perfunnance
in
accordance with manufacturers'specifications, the operational
design ofthe Unit, and good eugineerhlg practices. DMG 811all retain a qualified contractor to
assistin the perfonmmce .tlnd completion of each study and shall implement the stucly's
recommendations ill accoJ'dancewith the schedule provided for in the study, but lu110 event later
tIll'lU the next plamled Unit outage or 180 days of completion of Ule opfjmizatioll study>
whichever is later. Thereafter, DMG shall m.ailltaill each ESP and Baghouse as required
by
the
study's
recommelldatioJ1.,) or other altemative actions as approved by EPA. These l'equil'ements
oHhis Paragraph shall also
apply. and these activities shall be l'epented, whenever DMG makes <t
Ulajor change to a Unit'sESP, installs a new PM Control Device. or changes the fuel used
by
8
Unit.
B. Installation ofNew PM Emission Controls
85.
No later thOll the dates
~et
fortll
in
the Table below for
B~ddwiJ.1
Units 1, 2 and 3
and Havaua Unit 6, and confinuing thereafter, DMG shall not operate the specified Unit ull1ess
and
lUltil
it has installed nud
cOlll1llenced
operation ofaBaghouse on each
~mch
Unit so
a~
to
achieve and maintain a
PI,,! emissio1ls mte ofnot. grearertbau 0.01 :5lb/mmBTU.
26
Electronic Filing - Received, Clerk's Office, April 9, 2008
Unit
DotE'.
First Baldwin Unit
Decembel'31, 2010
(le,.
~ny ofB~ldwhl
Units
1,2 or 3)
..
.
-
.
..
Second Baldwin. Unit
December 31,2011
(i,e., either ofthe .2 .1'elluUniug
BalwNill Units)
Tlurd Bnldwiu Unit
D~embe1'
31
J
2012
(ie.• the felluclnmg Baldwin Unit)
Havana Unit
(1
December 31,2012
c. lJRgrade QfEi,<istillg
PM
Emissiop. Cont1321s
86.
At each Unit listed below, 110 later than the
dRtes
specified. llnd continuing
thereafter, DMO shull operate ESPs 01'
alte1'11ativ~
PM control equipment at the following Units
to achieve and maintain aPM emissions 111te ofnotgreate1'than 0.030 lb/mmBTU:
'Unit
Date
HavAna Unit 6
December 31.
2{)OS
1rt Wood River Unit
DecemOOJ'31. 2005
(i.e'
f
either of
'Wood
River
UnUs401'5)
l
lt
Hellnepin Unit (ie'
J
either of
December 31, 2006
Hennepin Units 1
01'2)
2
Q
<J .Wood
River
Unit. (i.e" the
December 31. 2007
remaining '\foodRiver Unit)
2
11d
HetUlepin Unit
(i.e,~
the
Decen~'31,2010
l'emainingHennepin Unit)
1
11
Velmiliou. Unit (Le., tithel'
December
31~
2010
ofVennilion Uni!$ 1 or 2)
2
nd
Venuiliol1 Unit
(i.e.~
(be
Decembe1'31,2010
remaining Ve1'1uiliotlUnit)
27
Electronic Filing - Received, Clerk's Office, April 9, 2008
bl the altemative and in lieu ofdemonsh'atiugcompliance with the PM emission rate applicable
under this Paragraph, DMO may elect
to undel1ake all upgl'ade of the existing PM emissioJls
control e.quipmellt for any such Unit based 011 a Pollution Control Equipment Upgrade Analysis
for that Unit. The prepa.ration, submission, and iUlplementatioll of such Pollution Control
Equipment Upgrade Analysis shall be
lUldel'taken
and completed in acco1'(!ancewith the
compliance schedules and procednres as specified in Parngraph 88.
87.
DMG shall operate each ESP (on Ullits without a Bagbonse) and each Bagho'Use
in the DMG System at aJl times when the Unit it selves is in operation, provided that such
operation
of the ESP or Baghouse is consistent with the tecllnologicallimitations.
manufacturers,) specificatioDS, and good engineering and lnaintenance practices for the ESP or
Baghouse. Duri11g auy such peliod in which the ESP 01'Baghollse is not operational, DMG will
minimize emissions to the extent reasonably practicable. Notwithstanding the foregoing
sentence, DMO shall not be required
to operate an ESP 011 allY Unit OIl which a Baghollse is
installed and operating,
11111~s
DMG operated the ESP
dming
the immediately preceding stack
test required by Paragraph 89.
88,
For each Uuit ill tIle DMG System for which DMG does 110t elect to meet a PM
Emission Rate
orO.030 Ib/1llmBTU as required by Paragraph 86. D1YIG shall prepare, submit,
and implelllellt a Pollution Control Equipment Upgrade Annlysis
in
accordance with this
Paragraph. &l.lcll Pollution Control Equipment Upgmde
Allnlysi~
shan include proposed
upgrades to
tlle Unit'sexisting PM Control Devices and Rproposed altemate PM Emissiou Rate
that the Unit
shall meet upon completion ofsuch upgrnde. DMG shaH delive1'
su~h
Pollution
Contt'OlEquipment Upgrade Analysis to EPA and the State ofIllinois for approval
pUTsmmt
to
28
,
.
Electronic Filing - Received, Clerk's Office, April 9, 2008
Section XIII (Review anel Approval ofSubmittals) ofthis C01lsent Decree at least 24 months.
prior to the deadlines set forth in Pffillgraph 86 for each such Unit. unless those deadlines are less
tItan 24 montlli; aftel'the date ofently ofthis Decree. In those cases only, (a) the Analysis shall
be delivered within
180 days of entry of this Decree, and (b) so long as DMO timely submits the
AnaJY&ls, any deadline for implementing; 3 PM Emission Control Equipment Upgrnde may be
extended in ac<:ordance with tbe provisions ofsubpnragmph (c) below.
a.
In conducting the Pollution Cont1\>1 Equipment Upgrade Analysis for any Unit,
DMG shall consider
all
~ol1l1nercial1y
available control technologies. except that
DMG need not consider any
of the following
P~1
controlmeasw'es:
1.
the complete replacement oftheexi:5ting ESP with a new ESP. FGD, or
Baghollse
l
or
2.
fhe npgrade of the existing ESP controls through the installation of any
sllPJ>l~mental
PM pollution control device
if
the costs of such
upgrad~
are
eqnal to
01' greater Ulan the costs ofa replacement ESP
~
FGD, or Bagllotlse
(011 a
total
dollar-per-ton-of-pollutallt-removed basis).
b.
With each Pollutiol1 Control Equil)lllellt Upgrade Analysis delivered to EPA and
the State ofIHinois, DMO shall simultaneously deliver
all documents that were
considered
ill preparing such Pollution Control Eqnipment Upgrade Analysis.
DMG shall retain n qualified contractor
to assist in the perfomlallce and
completion
ofefich Pollutio1l Control Equipment Upgrade Analysis.
c.
Beginning.one (I) year after EPA and the StafeofIlliuois approve the
recollunelldation(s)
made ill a Pollutioll Control Equipment Upgrade Aualysis for
29
Electronic Filing - Received, Clerk's Office, April 9, 2008
a Uuit, DMG
sh~ll
not operate that Unit unless all equipment called for in the
l'econnnendation(s) ofthe PolhltiOll COlltl'olEqnipment. Upgrade Analysis has
been installed.
An
installation period longer than one year may be allowed if
DMG- makes such a request in the Pollution COlltl'olEquipment Upgrade Analysis
and EPA and tile State ofDlillOis detenniue such additional time is necessflty due
to factors including but. not limited to the magnitude ofthe P1\1 control project or
the need
to address reliability coucems that could result from multiple Unit
outages within the DMG system. Upon installation of all equipment
recommended uuder an approved Pollution Control Equ1lmlellt Upgrade Analysis,
DMG shall operate such equipment in compliance with the reco1l1meudation(s) of
the approved Pollution Control Equipment Upgrade Analysis, including
~OlllpliRnCe
with the PM Emission Rate specified
by
1he recommendation(s).
D,
;eM
~mm~.tlt1QDilQ.ting
I, PM Stack Tests.
89.
Beginning in calendar year 2005. and continuing in each calendar
yeID'
thereafter,
DMG shall conduct a PM petfomlance test on each DMG System Unit. The IUlllUal
stnck
te~t
reql.liremellt imp<>sed on each DMO SystemUnif
by
this Pamgraph
may
be satisfied
by
stack
tests condrn:ted
by
DMO as: required
by
its penults fi:olll the State ofIllinois for any year that
such stack tests are
requh'edUll(lel'the peollits. DMO lllay l'elfonntesting every other year.
rather than every year, provided that two
of the most recently COWl)leted test results from tests
conducted in accordance
with the methods find pJOcedm'egspecified in Paragraph 90 demonstmte
that the p<'lriiculatematter emissions are equal to or less than 0,015 Ib/mmBTU DMG shall
30
Electronic Filing - Received, Clerk's Office, April 9, 2008
perfOl1U te-mug every year, rather
tb~ll
every other year, beginning ill tbe yeflf immediately
following any test result demonstratius that tIle ptu'ticulatemattei'emissions ilre greater
t11811
0.015Ib/uunBTU.
90.
The reference methods and procedures for determining compliance with
P~l
Emission Rntes shall be those
sp~ified
in 40 C.F.R.
Pm't
60, Appendix A, Method 5, or an
altemative method that is promulgated
by
EPA. requested for use l1el'eill
by
DMG. and approved
for u.<;e herein
by
EPA and tlle State ofIllinois. Use of auy pal1icnlar method shall COnfOll11 to
the EPA requirements specified in 40 C.F.R, Part
60~
Appendix A and 40 C.P.R. § 60.48a (b)
and (e), or any federally
approved mefhod contained in fhe nIinois State Implemen1ationPlall.
DMG shall calculate the PM Emission
Rates from the smek test l'eS"llltsin accordance with 40
C.F.R. § 50.S(t). The results ofeach PM stack test sllall be snbmittecl to EPA and the State of
DIhl0~
\\-'ithu1 43 dnys of cQmpletioll ofeach test.
2. PMCEMS
91.
DMG shall iru;tall and operate PM CEMS in accot'dance withPCll'agmphs 92
tIu'ough96. Eacll PM CEMS shall comprise
Ii
continuous pmiicle l1l8SS monitor
U1ea~lUil1g
!>aruculate matter concentration: directly or indirectly, on an hourly average basis and a diluent
monitor used to convert the concelltrotioll to units of Ibltl1111BTU. DMG slm1l1l1aiutaill, in 811
electronic database, the hourly llverage emission values produced
by
all PM CEMS in
Ib/mmBTU. DJ\1IG shall use l'easOl1flbleeffurts to keep each PM CEMS numillg and producing
data whenever any Unit sen.'ed
by
the PM CENtS is operating.
92.
\VitWu nine (9) months after entry of tillS Consent Decree, but ill any case 110
later than June 30, 2006
1
DMO shall submit to EPA and the State ofTIHnois fol'review and
31
Electronic Filing - Received, Clerk's Office, April 9, 2008
approvlll pursuant to Section XlII (Review lUid ApJ)roval ofSUbmittals) oftl1is COUS-ellt Decree
(a) a plan for the installation alld certification
of
eflch PM CElV1S; and (b) a proposed Quality
ASSll1'ml~e/Quality
ColltfOl ("Q..J\fQC") pl'Otocolthat shall be followed in calibrating such PM
CEMS. In developing both the
pl~n
for installatknl and certification ofthe PM CEMS and the
Q.A/QC protocoJ
t
DMO shall use the cdtelin set fOlth
.in
EPA'sAmendments to Standards of
Perfollnance for New Statiomuy Sou!C'es: Monitoring Requirements, 69 Fed. Reg. 1186 (Jnnuary
t2~
2004) (tlp.S. 11
1
').
EPA and the State ofIl1illois shall expeditiously l'eVieWsuch submissions.
Follow1ng appl'ovnl
by
EPA am! tile State
ofnlinQj~
offhe
Pl"otocol~
DMO
sh~l1 fll~reafter
Ope1'AteeacbPM CEMS in accordance with the approved protocol.
93.
No later than tile dates specified below, DMCt shnU install, cel'Ufyj and opemte
PM CEMS on four (4) Units
l
stacks
01'
common stacks in accordance with the following
schedule;
STACK
DATE TO
COlVIMENCE
OPERATION OF
p~t
---
---
.-.-._._
..._....
_. __._-
...
_
...
_.-----
CEMS
1
~
em1
o~
81l)'DMQ System
December 31, 2006
Unit llotscl1eduletl to receive
anFGD
2
M
CEM on any DMO
De~1Uber
31, 2007
System Unit not..scheduled to
receive {In
FOD
3'd
eEI\'!
on allY
DMG
DecemberS!,2011
System Unit scheduled to
receive an FOD
4
fa
CElv! on any DMG Systelll
December 31, 2012
Unil scheduled to
t~ceive
an
FOD
~
.....
32
Electronic Filing - Received, Clerk's Office, April 9, 2008
94.
No Inter thnn ninety (90) days nfter DMG begins operation ofthe PM CEMS,
DMG shall conduct tests
ofeach PM CEMS to demonstrate compliance with the PM CEMS
instnllation and certificfltionplan submitted
to and approved by EPA and the Stale ofI1lillOis
in
accordance with Paragraph 92.
95.
DMG shall operate fhe PM CE!'viSfol'at least two (2) years on each ofthe Units
specified ill Paragraph
93. After two (2) years ofoperation, DMG sha11110t be required to
conUnue opemting
the PM CEMS on any such Units ifEPA detemunes that. operation of the PM
CEMS i!) no longer feasible. Operation of a PM C&\fS shall be
cOIL~idered
no longer feasible if
(a) the PM CEMS cannot be kept
in
proper c-ouditioll for sufficient periods ofUme to produce
reliable, adequate.
or useful data
COlls~tellt
with the
QNQC
protocol; or (11) DMG demonstmtes
that
recun'ing.chronic, or unusual equipment 3cljushl1ent or servicing needs
in
relation to other
types
of continuons emissioll111onitoi1i carnlot be resolved through reasouable expenditures of
l"eS(l"\.uces. IfEPA determines that DMO has demonstrated pursuant to tlus Pat'f1grnph that
operation is no longer feasible, DMG shall be entitled to discontinue opernti011 ofand remove the
PMCEMS.
3. PM Reporting
96.
Following the il1':ltallationofeadl PM CE1vIS, DMG shaH begin
l1ud
contiuue to
repolt to EPA, the State of Illinois, anet the Citizen Plain1iffs, pursuant to Section XII (peIiodic
Reporting), the
dnta l'ecorded
by
the PM CEMS, expressed i1l1b/mmBTU on a 3-hour rolling
average
basis
in electronic fanuat, as required
by
Paragraph 91.
33
Electronic Filing - Received, Clerk's Office, April 9, 2008
E. Oenernl PI'l!Provisions
97.
Nothing ill this Consent Decree- is intended to, or shall, nIter or waive any
applicable law (including any defenses. e-lllitlemellts, challenges, or c.Jalificatious l'elntedto the
Credible E"\ideul;e
Rul~
62 Fed. Reg. 8315 (Feb. 27
~
1997)) concerni.ng the use of datn for any
purpose under the Act.
VII. PROHIBmON ON
NETTING
CREDITS OR
OFFSETS PROM REQUIRED CONTROLS
98,
Emission reductious that result from actions
to
be taken
by
D~1G
after entry of
this Consent Decree to comply with the requireIllents of this
Con~'e1lt
Decree sbal1llot be
considered as a creditable contemporaneous emission decrease for the pUlpose ofobtaining a
netting credit undet'
the Clean Air Act'sNonartaimllent NSR and PSD pl'ogmllis.
99.
The limitatious all tile generation and use ofnetting credits or offsets set forth ill
the pre-vious Pm-agrnpb 98 do not apply to emissiolll'eductiol1sachieved
by
Dro/IO System Units
that lire greater than those required uuder this Consent
Decr~.
For plJq)oses ofthis Paragraph,
emission
reductions from a DMG System Unit are greater tball those required uuder tIlii; Consent
Decree it: for example, they result from DMG compliance with federally enforceable emission
limits
tl18t are more stringent. thou those limits imposed 011 DMG System Units uuder this
COllsent. Decree and under applicable provi')iousof the Clean Air Act or the IIlillOis State
Implementation Plan.
100,
Nothing in this COllsent Decree is intended to preclude the emission reductions
generated under tltis Consent Decree from being considered
by
tile State ofIllinois or EPA as
creditable contemporaneous emission decreases for the pUlpose of attainment demonstrafions
34
,
.
Electronic Filing - Received, Clerk's Office, April 9, 2008
submitted pUrStl8utto § 110 of the Act, 42 U.S.C. § 7410,01'ill defenllinillg impacts 011 NAAQS,
PSD increment. or air quality related values, including visibility, ill a Class I area.
VIII. ENVIRONMENTAL MITIGATION PROJECTS
101,
DMO shall implement the Environmental :Mitigation Projects (UProjects'')
described in Appendix A to this Decree
in
compliance with the 3]>pl'Ovedplans and schedules for
such Projects and other tenDS of this Coll$)-eut Decree. DMO sballl')ubmitplans fol'tbe Projects
to the Pla1utiffs for
review and approval
pursuallf
to Section XIII (Review and Approval of
S'ubmittals) of this Consent Decree in accordance with the schedules set fOlill in Appendix A. In
implementing the Projects, DMG shall spend no less than $1.5 million ill Project Dollnrs 011 or
before December 31,2007. DMO shall maintain, and present to the Plaintiffs upon request, all
dOCUUlents to substantiate the Project Dollars expended and shall provide these documents to the
Plaintiffs
within tlrlrty (30) days ofa request
hy
any of the Plaintiff') for the documents.
102.
All plans
and reports prepared
by
DMO pursuant to the requirements of this
Section
ofthe Consent Decree and required to be submitted to EPA shall be publicly available
from
DMG without charge.
103.
DMG shall certifJ. as part of each plan submitted to the Plaintiffs for any Project,
that
DMO is not otherwise required by law to perfooll the Project desclibed ill the
plall~
that
DMG is WlaWiU'e of any other person who is required by law to perform tbe Project, and that
DMG \\-'i11 nor use any Project. 01'jJ<>ltioll thereof, to satisfy allY obligations tht'ltit may have
lUlder other applicable requirements oflaw,
il1cl~1Cling
any applicable renewable porttblio
standards.
35
Electronic Filing - Received, Clerk's Office, April 9, 2008
104. DMG shall use good faith efforts to
seC-lU'e
as much benefit as possible for the
Project Dollars expended,
~ollsistellt
with the applicable requirements and lillUts of this COllsent
Decree.
lOS.
If
DMG elects (where such au election i'3 allowed) to IUldertake a Project
by
confributitlg funds to another person or entity that v.rill callY ont tbe Project ill lieu ofDMG
7
but
not including DMG's
agents 0.1' contractors, timt perSOll or instrumentality DlUSt, in writing: (a)
identifY its
legal nuthOlity for accepting sllch funding; and (b) identify its legal autholityto
conduct the Project fqr which DMG cont.libutes tIle fiUlds. Regardless ofwhether DMQ elected
(wllere such election is allowed) to undertake a Project
by
itself01' to do so
by
contributing ftmds
to another person 01' iusfnl111ent.ality that will canyout the
Project~
DMG ach."'1lowledge.'Jthat
it
will receive credit fortbe expenditure of SilCh funds as Project Dollans only ifDMG
demoJ1'.ltl'afesthat the. fitnds lmve been actl11111y spent
by
either DMG or
by
the persoll or
illsfnuuentality receiving them (or,in
the
case ofintemal costs, have (Ietna
By
been incurred
by
DMG), and that such expelldinu'esmet all requirements oftllis Consent Decree.
106.
Begiturlng six (6) months afte/'entry ofthis Consent Decree: and continuing Ulltil
completion
of each Project (including any applicable periods ofdemonstration or testing). DMG
shall pJ'Ovide the Plaintiffs with semi-alUmal updatescOllcenling the progress of each Project
107.
Within sixty (60) days following the completion ofeach Project reqnired under
this Consent Decree (including any
applicable periods ofdemonstration or testing)! DMG shall
snbmit to the PlailltitJs a report that documents the dnte that the Project. was complefed, DMG's
results ofimplementing the Project. inclnding the emission reductions or other euviromnental
benefits achieved, and the Project Dollars expended
by
DMG in implemenfing the Project.
36
Electronic Filing - Received, Clerk's Office, April 9, 2008
IX. CIVIL PENALTY
108.
\Vithiu thirty (30) calelldflf days after entry of this Consent Decree, DMG shall
pay to the United states n civil penalty in the amount of
$9,OOO~OOO,
The civil penalty shall be
paid by Electronic Funds Transfer ("EFT") to the United states Department ofJustice, ill
accordance "'lith current
EFT procedures. referencing USAO File Nmnber 1999V00379 and DOJ
Case Number
90~5·2·1·06837
and tbe civilactioll case name and case muuber ofthis nction.
The costs ofsuch EFT shall be DMC'sresponsibility. Payment shall be made in (\ccordauce
with instructions provided to DMG by the Financial Litigation Unit ofthe u.s. Att01lley'sOffice
for
the SOl.1them District ofIllinois.
Any
funds received after 2;00 p.m. EDT shall be credited on
the llextbusilless day. At the time ofpayment, DMG sl1a11 provide 1lotice ofpaYlllellt.
referencing the
USAO File Nmnbel'! the
DOl
Case Number, and the civil action case name and
case.munber, to the Depaltment ofJustice and to EPA
in
accordance with Section XIX (Notices)
of this Consent Decree.
109.
Failure
to timely
pfly
the civil penalty shall subject DMG to interest accruing
from the
dote
payment
is
due
tUltil
the date payment is made at the rate presclibed
by
28 U.S.C.
§ 1961, and shall renderDMG liable for an cbarges, costs, fees! and penalties established by law
for the benefit of a creditor or of the United states ill secl.lling payment.
110.
Paym.ents made pm.suant to this Section al'e
penalti~
within the meaning of
Section 162(f) of the Internal Revenue Code, 26 U.S.C. § 162(f). and are lIot fax-deductible
expenditures for pl11poses of tederal1aw.
37
Electronic Filing - Received, Clerk's Office, April 9, 2008
X. RELEASE AND COVENANT NOT TO SUE
EORILLlNQlS POWER COMPANY
111. Upon ent1'Yof this Dee1-ee, each ofthe Plaintiffs hereby forever re]eases nlinois
Power Company
frolD~
and
coveU811m
not to sue I1Jinoil> Power Company
f01'~
AllY
and all civil
claims: causes of fictioll, and liability under the Clean
.Ail'
Act fI1tdtOl' the nJillols Ellvh'Ollmerrtnl
P1'OtectionAct that S\lcll Pl'lJntlft$could nssert (whether such
claims~
CRuses of action, and
liability are, were. 01' eve!'will be Chfll'1lcterizedas ktlo'wn01'llnlmown, asserted or ullasserted,
liqu.idflted 01'.contingent, accrued or nnaccmed), wllere s\lch
cl{1itn$~ ~allSeS
ofaction, and
liablIit;y are based on any modlfi'Oiatioll,within the metUling of the Clean Air Aot an<Vo1'the
DIitiois Euv.iromnentalProtection Act, undertaken at AllY tilllebefol'elodging .ofthis Decree at
allY DMG System Unit. including aml without limitAtion all sueh claims,
Ca\1.E"~S
of
~cti()n,
and
jiflb1Hty asserted, Of that could have
.be~n ~-sel'ted,
against Illinois Power Company
by
tIle United
St-ates, the State Ofl1Hl1ois audio!'the Citizen PlaiutHfs in the lawsuit styled United States of
America. etal vzlllinois Power
CO!ll1~t)Y
and DYJlegy Midwest Generation. Inc., Civil Action
No. 9P-833-MJR aud all such civil claims, causes ofactio1lt 8ncllinbility ilssel'ted01' t11ft! c<nl1d
have been or could be 3s:serted tmder any or all ofthe .following statutory and/or l'eguhltOty
provisions:
a.
Parts C
(If
D ofSubchapter 1ofthe Clean Ait.Act,
b,
Section 111 oftbe Clean Air Act ftncl4Q C.F.R. Section 60
.14~
c.
The federally 6!)!>l'oved and.enforceablenUnois State Implementation PlauJbut
only insofflr as s\.lch claims
wer~
alleged in the third amended complaint filed ill
tlle
lnw~nit,so
styled,
38
,
I
Electronic Filing - Received, Clerk's Office, April 9, 2008
d.
Sections 502(£1) and 504(a) of the CleflU Air Act. but only to the extent that such
clflinv.: are based on Illinois
Power~
failw'e to obtain an operating penmt that
reflects upplicable requirements imposed
tmdet'Pal'ts
C.
or D ofSubchapter I, or
Section 111, ofthe Clean Ail'Act.
e.
Sections 9 and 9.1 oftlte nlinois EnviroDmenml Pl'otectiollAct, 415
ILeS
519
and
9.1, all applicable regulations pronmlgated thel'ewlder,and all relevmlt plior
versions ofsuch statute and regulations,
and
f.
Section 39.5 of fIle filinois Envil'Orunental P1"otection Act. 415 ILCS
5/39.5,
and
all applicable regulations promulgated thereunder, Ctnd all relevant prior versions
of such statutes and l'egulations, but only to the extent. that such claims are based
OD illinois Power'sfuilure to obtnin au operating pemrit that reflects applicable
requirements imposed
lmder Sections 9 and 9.1 ofthe Illinois Environmental
Protectioll Act, 415 ILCS 5/9 and 9.1,
where such claims,
~u.ses
ofactiolls and liability are based on any modificatio1l.. WitlUl1 the
meaning ofthe Clean
Air
Act an<Vor ihe TIlinois Envirolllllental Protection Act, tmdeffilkell at
any tiule before lodging ofthis Decree at any DMO System Unit.
~
to Illinois POWe!'
Compauy. such re-solved claims shall not be subject to the Bases for Pm'suingResolved Claims
set forth
in Section
Xl,
Subsection B, ofthis Consent Decree.
112.
111 accordance with Paragraph 171 oft1lis De.cree,
in
the event. that
Illilloi.~
Power
acquire.'iftll Ownership Interest in, or becomes all operator (as flIat term is u')edand interpreteel
tUlder the Clean Air Act) of,
~ny
DMG System Unit,
tIus
release shall become void with respect
39
Electronic Filing - Received, Clerk's Office, April 9, 2008
to the Unit(s) to which the Ownership
Intel'~Sf.
applies when and to the extellt fll)ecified in
Pal'agl'aph171.
XI.
RESOLUIIQN.QEPLAINIJFFS' ClVlL.CLAL.\tfS. AGAINST DMG
A.
RESOL!IT~1YJI"CLAIMS
113. Claims Based on Modifications OC£\l1lillgBefore the 1.todgingofDesree.
Entry oftllis Decree shall.t'esolve--811 civil claims ofthe Plaintiffs against DMO under
any
or all
of:
a.
Pflrts C Of D ofSttbchnpter I ofthe Clenn Ail'Act,
b.
SectioJlll.1 oftile Clean Air Act and 4Q C,F.R. Section 60.14,
c.
The federally appl'oveduudenforceable Illinois State Implementation Plan) but
OlUY insofat'as such claims were alleged in the third amended complaint filed in
the law&wt styled United States ofAlllerlca,.et!ll....Y, IllinQis
Po.,'\':er..C01l1~
~Midwest Qellel'atio~,
Civil Action No.
99·833-~
d.
SectiOtl$ 502(a) and
~04(a)
oCthe Clean Ail'Act. but oIlly to the eKfentthat such
claims are based 011 DMG'sor Illinois Power'sfaUUt'e to
obfain
all opemting
peullit thtlt reflects applicable .requirements imposed lU1det'Parts C 01' D of
Subchaptet'l..
01'
Section 111
1
Qftbe Clean Air
Act~
e..
Sections 9 and 9.1 of the illinois Environmental Protection Act, 415
!LeS
5/9 and
9.I
~
all applicable l'egulationspronmlgatedthe-ramOO: nud all relevant :Pl'WJ'
versions-ofsuch statute and regutatlolls.)
~l1d
f.
Section 39.5 of the fiUllois Euvirolllueut.'\1 Protection Act, 415 lLCS
5139.5~
and
all applicable regulations p1'Onmlgatec1tlletelUlder, and alll'ele"antP1'iOl'versiolUi
40
.
I
Electronic Filing - Received, Clerk's Office, April 9, 2008
ofsuch statufes and regullltioll5
1
but only to the extent that such claims are based
on Illinois Power'sfailure to obtain an opemtiug pemllt that. reflects applicable
requU'elllenfs
imp-ose<llUlc1er
Sections 9 and 9.1
of
the llHnois Environmental
Protection Act.. 415 ILCS
5f9
and 9.1.
that arose tl'Otllany modifications commenced at any DMG System Unit prior to the date of
lodging of this Decree, including but not limited to those modifications alleged in the
Complaints filed in this civil actioll.
114. Claims Based 011 Modifications After the Lodging ofDecl'ee.
As to DMG, entry ofthis Decree also shall resolve. aU civil claims of the Plaintiffs
lIgainst
DMG
for pollutants regulated lUuler Parts C or D of Subchapter I of the Clenn Air Act, and uDder
regulatiolls promulgated thereunder
as
ofthe date of lodging ofthis Decree, where f>llCh claims
are based on a modification completed betbre Decembel'31.2015 alld:
a.
~omll1ellced
at 8IIY DMC System
\uut
after lodging of
tIus
Decree; or
b.
that this COlls-ent Decree expressly directs DMG to undertake.
The term "modification" as used ill tlus Paragraph 114 shallllave the meaning that term
is
given
under the Clean
Aii'
Act and Imder the regulations promulgated thereunder as ofJuly 31, 2003.
115.
&.QP.eners. The Resolution of the Plaintiffs'Civil Claims
agaj]).~t
DMG. as
provided by tllis Subsection A. is subject to the
l)fo\.i~ions
ofSubsec.tionB oHhis SectiOJL
B. PU@UIT OF PLAlNTIFFS' CIVIL CLAINfS OlliERWISE
~OLv'EQ
116.
Bases fqr PUfSuh}g Resolved
C1~i1lls
Across
~10
Sxstem. IfDMG violates
System.Wide Aunual Tonnage
Lilnitatioll~
for
Nq~
required pursuant to Paragraph 57, the
System-Wide Annual
T01Ulnge
Limitations for S02 required pursuant to P81'ag1'8ph73, or
41
Electronic Filing - Received, Clerk's Office, April 9, 2008
operates a Unit mOl'ethan ninety days past an installation date witllollt completing the required
installation Of upgrade and commencing operation ofany emission control device required
pursuant to Paragraphs 51
~
54, 60, or 8:5: then the Plaintiffs nmy pursue any claim at nny DMG
System Unit that is otllenvise resolved
llt1d~l'
Subsection A (Resolution ofPlail1tiffs' Civil
Clajm~),
subject to (a) aud (b) below,
a,
Fet a.ny
cl~jnls
based on Ulodifi¢atioJ}s
Utldeltaken
at an Other Unit (ie.• any
UnU
ofthe DMO System thnt is .not au Impt'ovedUnit tOr the pollutant 1n question),
cla.inls may be ptu'$uedonly where the Dlo<lification(s) onWhich such claim is
bosed was
eOllwl~lced
within tile five (5) years preceding the \liolatioil
01'
faUll1'e
specified
in
this
Pamg1~ph.
b.
For allY claims based on modificatiolls Imdel'takenat an Improved Unit
1
claims
may be pU1'suedonly wbere the mo<1ifieatioll(s) 011 which suell claim .is based was
commenced (l) after lodging oftl1e Consent Decree l'Ind(2) within the five years
preceding the violation
01'
faihtre specified in this Pamgrapll.
11,.
AdditJ011al Bm;s lQr PumuDlg Resolyed Claims for Modifications at all Improved
!lniL.
Solely with respect to ltnpi'ovedUnits; the PIillutiffs nrn}'also pursue claims fldsillg
froUl
n
modification (Qf collection ofmodifications)
I\t
an Improved Unitlhat have ofhelwise bel.'ll
resolved 'uLlderSubsection A (Resolution ofPlailltU'fi/ Civil
Clt1i1l1s)~
ifthe modIfication (01'
coJlectio1l. of1llodiflcatiollS) at the Improved Unit all wbich such claims are base<! (8) was
commented aftel'lodgingoftbis CouseJltDeCl-ee. and (I) individually (01'
col1ectiv~ly)
mCJ.'e.ased
the mrodumffi hOUl.'ly emission 1'uteofthat Unitfol'NO
x
or
SOl
(as measured
by
40 C,F.R. §
60.14 (b) and (11))
by
UlOl'e than ten pell:ent (10%).
42
,
.
Electronic Filing - Received, Clerk's Office, April 9, 2008
118.
AdditioDnl Bases fot' Pursuing Re§91Yed Claims for Modifi54ltiolls at
fU1
Other
lllliL
a.
Solely witlll'espectto Other Units, the Plaintiffs may also pUl"slle claims arising
from
a modification (01' collection ofmodificatioll.'» at an Other Unit that have
oUlerwise been resolved undel' Subsection A (ResQlution ofPlaintiffs' Civil
Claims),
ifthe modification (or collection ofmodifications) at the Other Unit 011
which the claim is based was cotntnencecl withil1 the five (5) years preceding allY
of the following events:
1.
a modification (01' collection ofmodifi-cations) at such Other Unit
commenced after lodging ofthis C-ousent Decree increases the maximum
honrly emission rate for such Othel'Unit for the relevant pollutant (N0l< 01'
SO~
(as measmed by 40 C.F.R. § 60.14(b) and (h);
2.
the aggregate of all Capital Expenditures made at such Other Unit
(a) exceed S150/KW on the Unit'sBoiler Islau<1 (based on the generating
capacities identified ill Paragraph 14) during tile peliod from the date of
lodging oftllis Decree thrOUgh December 31,
2010~
provided tbat Capiro!
E."C.pendinlres made solely forUle cOllversioll ofVellllilioJl Ullits 1 lind 2 to
low sulfur coal through the earlier ofentIy of this Consent Decree or
September 30,2005, shall be excluded; or (b) exceed $125/K\Von the
Unit'sBoiler Island (based on the generating cnpacities ident.ified ill
Partlgraph 14) during the period from January It 2011
through
December
31,2015. (Capital Expenditw-es shall be measured in calendar yeat'2004
43
Electronic Filing - Received, Clerk's Office, April 9, 2008
constant dollars. as adjusted
by
the McGrawwHill Engilleedng
News~
Record Const1'llctionCost Index); or
3.
nmodification (or collection ofmodifications) at such OtJler Unit
commenced aft.er lodging ofthis Consent Decree results in an emissions
increase ofNO", andlor
SOl
at such Other
Ulli~
and such increase:
(i)
presents,
by
itself,
01'
in combination with other entissiollii
or somces, ".an imminent and substantial endangerment" within
the meaning ofSection 303 ofthe Act
t
42 U,S.C. §7603;
(it)
Cf\uses or contributes to violation ofa NAAQS in any Air
Quality Control Area that is in attahullent with that NAi\QS;
(iii)
causes 01' contributes to violation ofa PSD incre-ment; or
(iv)
Cffill3es or contributes to nny adverse impact on any
foollally-re<:ognize<1 air quality
~nd
relnted values in
any
Class
r
-nrea.
4.
The introduction of allY new or changed NAAQS shall not,
stauding alone) provide the showing needed under Paragraph 113,
Subparagraphs (3)(ii)
01'
(3}(iii), to pursue any claim for fl- modification at
IDl Other Unit resolved nnder Subsection B of Uris Section.
b.
Solely 'withrespect to Other Units at the plants listed below, the Plaintiffs may
also pw-sue claims Arising from a modification (or collection ofmodificatiou')) at
such other Unit commenced after lodging of
tlus
Consent Decree ifsuch
modification (or collection ofmodificatiolls) results in au emissions increase of
44
Electronic Filing - Received, Clerk's Office, April 9, 2008
NO
x
aud/or S02 at such Other Unit. and such increase cflltSeS the emissions at the
Plant at
issue to exceed the Plant-'VideAllllual Tonnage Emission Level';;,listed
below;
Unit
§Q~
Tons Limit
llQ.x Tons Limit
Hemlepiu
9
1
050
2}650
Vel1uillioll
17,370
(in
2005)
3,360
5~650
(in 2006 and
thereafter)
Wood River
13,700
3,100
,"_.
XII. PERIODIC REPORTING
119.
Within one hundred eighty (180) days after each date established
by
tlris Consent
Decree for DMG to acWeve ami mnintain
(l
'CertainPM Emission Rate at filly DMO System
Unit~
DMG shall conduct a perfonnance test. for PM that demonstrates compliance with the Emission
Rate required
by
tllis Consent Decree. Within f011y-five (45) days ofeach such l>erfonnance
test, DMG shall
~mbD1it
the results ofthe performance test to EPA. the State ofIllinois. and the
Citizen Plaintiffs at the addresses specified in Section XIX (Notices) ofthis Consent Decree.
120. Begillniug
thht)1
(30) days after the end oftlle second full calendar qnnrter
following the entry of this Consent Decree, and continuing 011 a se1ui-anllual basis ootil
December 31, 2015. and in addition
to itlly
other express reporting requirement ill this Consent
Decree, DMG shall submit to EPA
J
the State ofIllinois, and the Citizen Plaintiffs a pmgress
report.
12i.
The progress report shall contain the following
illformatio~
4.5
Electronic Filing - Received, Clerk's Office, April 9, 2008
a,
all illfonuation necessary to determine compliance with the l'eql1il'emenfs
of the following Pal-ag11lphs of this Consent Decree: Paragraplu.l 51, 52, 53, 54,
and 57 conceming
NO~
emissions; Paragraphs 66.• 70. 71, 12 and 13 concerning
S02 emissions; Pamgl'aphs 83,84,85,86.88 (ifnpplkable), 8-9,91,93, 8ud 94
con~eming
PM emissions;
b.
documentation of
any
Capital Expenditures
nUl
de, (huing the period
covered by the progress report. solely for the conversion ofVer.miIioll Units 1 8ud
2 to low sulfur coal.• but excluded from the
a&...~l'egate
of Capital Expenditures
pursuant
to
Pal'agl'aph118(a)(2);
c.
all iufonnation relating to emission allowances and credits that. DMG
claims to have genemted in accordance with ParagrapJ} 61 throngh compli81lce
beyond the requil'ementfiof tbis Consent Decree; nud
d.
all inf-otmation indicating thutlhe installation nnd commencement of
operatiQu for a pollution control device may be delayed, including tlle nature and
cause ofthe dela.y, and any'steps ttlken
by
DMG to mitigate such delay.
122. In any periodic progress l'epOltsubmitted pursuant to this Section, DMG may
incorporate by l'efereuceinfonuatioll previously submitted under its Title V permitting
requirements, provided that. DMG attaches the Title V permit
report~
or the relevant portion
thereof. aud provides a specific reference to the provisions oftIle Title V pennit report that are
responsive to the information required
in
the periodic progress report.
123.
In l1ddition to the progress reports required pmsuulltlo this Section, Dl-..fG shall
provide
n"'TUten
n~port
to EPA, the State ofIJlinois. and the Citizen Plaintiffs of
llny
violation of
46
Electronic Filing - Received, Clerk's Office, April 9, 2008
the requirements of this Consent. Decree within fifteell (15) calendar days ofwben DMG knew or
should have known of
aily
such viola tion. In1hls report. DMO shall explain the cause or causes
of tile violation and all measures takeu or to be taken
by
DMG to prevent
~mch
violfltlolls
in
the
future.
124.
Each DMG repol1 shaH be signed by DMG'sVice President of Enyironmenfal
Services 01' his 01' her equivalent or designee of at. least the rank ofVice President" and shall
contain the following certification:
This illfonuation
wns
pl'ep!ll"'edeither
by
me 01' under
my
du-ectiOll 01'supervision
III accordance with a system designed to assure that. qualified personnel properly
gather and eVIIluate the infolluatioll submitted. Based au
my
evaluation, or tbe
direction and my inquiry oftbe person(s) who manage the system, or the
pel'son(s) directly res-P0llsible for gatlletlng the infonl'lation,I hereby certify under
penalty orlaw
tha~
to the best of my knowledge and
belie~
this infollnation is
tme, accurate, and complete. I nnderstand that there are significant penalties for
subnritting false, inaccurate, or incomplete illfomlatioll to tIle United State.s.
125.
If
any S02 Allowances are sun'enderedto allY third party pursuant to this Consent
Decree, the third pal1y'Scelirncatioll pU1'snautto Paragraph 79 shall be signed
by
a luanaging
officer ofthe third party and shall contain the following language:
I
certifY under penalty oflaw that,
[nallle of third party]
willllot sell, trade, Qf
othelwi~'e
e.xcb£lnge allY of the allowances and wi11llot use
allY of the allowances to meet any obligation imposed
by
any ellviromnelltallaw.
I l1ndersumd that there are sigllific81lt penalties for submitting false, inaccurate, or
incomplete information to the United States.
XllI. REVIEW AND AFFROVAL OF SUBMITTALS
126. DMO shall submit eacllplan,
repoI't~
or other submission required by this Decree
to the Plaintiff(s) Sj)ecified \vhenever such a document is required to be submitted for review or
approval pursuant to this Consent Decree. The Plawtiff(s) to who111 the repoli is sUbnritted, as
reqnired, lllay approve the submittal 01' decline t.o approve it and provide wlitten comments
47
Electronic Filing - Received, Clerk's Office, April 9, 2008
explaining the bases f01'declining sucll approvfll. Such Plalntiff(s) will endeavor to
~oordlnnte
their COlDmentsult.o oue dOC111llent when explahling tbeir bases for decliuing such Approval.
\Vitllin sixty (00) da.ys ()freceiving miften comments from AtlY ofthe
Plnjtltif£~
DMG shaH
either: (n) l'evisethesubmittal consistent with the written comments nnc11:>tO\:i.de 111e revised
submittal
to
the Plaiutiff$; or (0) $uomit the ronfter for dispute resolution, including the period of
infonnal negotiations: under Section XVI (Dispute Resohltion) ofthis COllseut DeC1'ee.
127,
Upon receipt of.EPAis finAl approval oftbe sub1I11Uill, or upon
cOl~pletiou.
ofthe
submittal pUfStmnt to dispute resolution, DMG s11all JUll>lemellt the approved submittal in
accordau~e
withtl1e schedule specIfied tllereill 01'anofllerEPA-approved schedule.
XlV. STIPULATED PENALTIES
128. For any failure by DMO to comply witb the tenlls oftbis Consent Decree, and
:mbJect to the provisions of Sections XV (Force
~je\l.1'e)
and XVI (Dispute Resolution), Dj\.10
shall pay, within thit1)'(:30) days after
l'~elpt
ofwritten demand to DMO by the U:llited States,
the follo\\'iugstipulated penalties to the United States:
Consent Decl'eeViolntlon
Stillulllted Peualty
n. FnillU'eto pay the clviJpel1ftlty as spe¢ified in Section IX
$10,000 pel'day
(Civil PenaltY)
of
this Consent Decree
b. Failnre to comply with .any applicable SO-Day RolHng
Avemge Emission Rate fot'N0
ilt
or
$OJ
or Enussion Rate
$2~500
per daypm'violatioll
for PM
t
wbere t11e violation Is less fhan 5% jn excess of tbe
lim!ts set £011h in tbis Consent
Dec.J'~e
c.
Fai1u~
to comply with any applicable
30~Day
Rolling
Avernge Emission Rate for NO
x
Of
s~
01'Emis$ioll Rate
$5,000 per day 1)el'violation
fot'~,
where the violation is equal to 01" greater fhan 5%
but less thun 10% in excegs of tlle limif$ set for-til in tbis
Consent DeCree
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Electronic Filing - Received, Clerk's Office, April 9, 2008
d. Failui'e to comply with any Rl,pllcoble 30-Day Rolliug
Average Emission Rate fo1'
NOll
or 50
2
Qr Emission Rate
$1
O~OOO
per cL'ty pel'violation
fOf
PM~
where the violation
is
eql181 to 01' greatel'than 10%
in excess ofthe limits set fOlth in this Consent
De¢'l'~
e. Fnilure to comply with the System-Wide Arumal
$60,000 pel'calendar
ye~u~
plus
TOtU1age Limits for
S~.
wllel'e tbe violation
is
less tban
the Sl.lrrendel.', l)UfS\lout to the
100 tons in excess Qfthe limits set fOlth in
tlus
Consent
p1'Ocedm-esset forth in
DeCl'ee
P8tllgraphs 79 and SO of ibis
Consent DeCl'\'!e}of
SOl
Allowances in au amount equal
to
two times the llumber oftoos
by which the limitation was
exceeded
f. Failtu'eto comply "\vith tbe
Systenl~
Wide
AlUlUat
$120,000
pel'
calendar year,
Tonnage Limits fol'
SOZt
where 1he .violntion is equal to
01'
plus the surrender. pursuant10
greater
thRll 100
tons in excess ofthe limits set 101t11 in
this
the procedw"es set forth in
Conwut Decree
Pm'llgl'aphs79 811d 80 of this
Consent Decl'ee, of
SOl
Allowanc-es in an amount equal
to two times the
number
oftou~
by
which the limitation was
exceeded
g. Fnilure to comply with tIle System-Wide Annual
$GO,ooo
'pe!'cnlend81'yeal'jplus
TOllnage Limits for NO
xt
where the violation is less
tha1l
the s1.lR-eudel'ofNO
x
100
tou~
in excess of the limits set forth ju this Consent
Allowances in au amount equal
Decree
to two times the number oftous
by
w.hi.ch the lhnitation was
exceeded
h, FAilure to comply with the System-Wide Annual
$120,000 per calendar
year~
Tonnage LImits fol'N0
lt
'
where the violation is equal to
01'
plus the sUt'reuderofNO
Ie
greater than. 100 tons in excess of the limits set !ol'thin this
Al1owflnc~s
in au
nmowrt
equal
Con.sent
D~l'ee
to two time-s the number ofton!)
by
which the.1hnitntion was
ex<:eeded
1. Operation of nUnit required lU10el'this Consent Decree
$10)000 pel'day per violation
to
be
el}uipped witb tiny NOll.> S02> or PM ¢onu.'oJdevIce
dlU'illg tile til'st 30 days,
without the operation ofsuch device, as requiIed under this
$21,SOO pel'dayperviolatioll
Consent Decree
thereafter
j. Failw'eto install or operate CElYIS flS required in this
$1,000 per day per violation
Consent. Decree
49
Electronic Filing - Received, Clerk's Office, April 9, 2008
k. Failure to conduct perfOm181lCe tests ofPM emis.&iolls,
$1,000 per day per violation
as required
in this Consent Decree
1.
Failure to apply for
Bny
permit required
by
Section XVII
$1,000 per
day
per "\iolatioll
m. Failme to timely submit, modify. 01' implement: as
$750 per day perviolafion
approved, the repol'ts,plans, studies, analyses,
protocol~
or
duting the first ten days, $1,000
other submittflls required by this Consent Decree
pe.rday pel'violation thereafter
n. Using, selling or transfelling
NO:~
Allowances except as
the SUITender ofNO"
pennitted
by
Paragraphs 60
and
61
Allowances in
all
amount equ8l
to fom'times the ll1ffilber of
NOy- Allow.ances nsed, sold, Of
traulifen'ed
in.
violation of
Ulls
Consent Decree
o. Failure to sun'endel'
SOl
AUOWRllces as required
by
(8) $27,500 per day pins (b)
Paragraph 75
$1,000 per SOl Allowance not
slU'l'endered
p. Failure to demoutitl'arethe
tllird~pal'ty
slIl1'eudel'of an
$2,500 per
d~y
per violation
50
1
Allowance in Accordance with Paragraph 79 and 80
q. Failure to undeliake and complete any of the
$1,000 pel'
day
per violation
Env;romneotal Mitigation Projects in compliance with
dnring
the first 30 days: $5,000
Section VIII (Environmental Mitigation Projects) ofthis
pel'day pel'violation thereafter
Consent Decree
._-_
..
f.
Any
other violation of this Consent Decree
$1,000 pel'day per violation
129.
Violation oran Emission
Rate
thatis bnsedon
a30~Day
Rolling Average is n
violation on
evelY day on which the avemge is based. Where a violation ofa 30-Day Rolling
Average Emission Rate (for the smne pollutant and fi'omthe same source) recurs within periods
ofless tluUl tbirty (30) days. DMG shall not pay a daily stipulated penalty for any day oftlle
l"'eC\UTenCe
for which a stipulated penalty lIaS aJready been paid.
130.
In allY case in which the payment of a stipulated penalty includes the surrender of
so.'!
Allowances, the provisions ofPnragraph 76 shall not
apply.
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Electronic Filing - Received, Clerk's Office, April 9, 2008
131, All stipulated penalties shnIJ begin to accrue 011 the
day
after the perfonU31lCe is
due 01' 011 the day a 'Violation
occurs~
whichever is applkable, and shall continue to accme until
perfOlmallce i9 satisfactorily completed or until the violation ceases, whichever is applicable.
Nothing in tIlis COllsent Decree shall prevent the simultaneous accrual ofseparate stipulated
penalties for separate violations ofthis ConselltDecl"ee.
132. DMG shall pay all stipulated penalties to the United States within thilty (30) days
ofreceipt ofwritten demand to DMG fi"Olll the United States, and shall continue t.o make such
payments ever)'1hirty (30) days thereaftel'1.1Dtiltbe violation(s) 110 longer continues, uuless DMG
elects within 20 clays ofreceipt ofwrirten demand to DMG from the United States to di.'3pute the
accrual of stipulated penalties in accordance with the provisions
in
Section XVI (Dispute
Resolution) ofthis Consent Decree.
133.
stipulakd penalties shall coutiune to aco:ue as provided in accordance with
Paragraph 128 during filly dispute, with interest 011 accrued stipulated penalties payable and
calculated at the rate established
by
the Secretary oftile Treasmy. pursuant to 28 U.S.C. § 1961.
but need not. be paid lUltil the following:
fl,
Ifthe dispute is resolved
by
agreement. or
by
a decision ofPlnintiffCJ pursuant to
Section X\"-1 (Dispute Resolution) ofthis Consent Decree that is not appealed to
the Court, accrued stipulatedlJel1alties .agreed 01' determined to be owing. together
'Vitllm;c11led intere.st, .shall be paid ,vithin thirty (30) (mys oftile effective date of
the agreement or of the receipt of Plaintiffs' decision;
b.
Ifthe dispute is appealed to the Comt and Plaintiffs prevail in whole or in
pal't~
DMG s.hall, within sixty (60) days ofreceipt ofthe Court'sdecision or order, pay
51
Electronic Filing - Received, Clerk's Office, April 9, 2008
all accmw stipulated penalties detenuined
by
the Court to be owing, together
witll interest accmed 011 such penalties cletennined
by
the Coud to be owing,
except as pl'Ovided
in
Subparagraph c, belo.w;
c.
lftbe Court'sdecision is appealed
by Rny
Party, DMO shall.. within fifteen (15)
days
ofl'eceiptof the final appellate coul1 decision, pay all acc111edstipulated
penalties determined to be owing,. together with interest accrued on such
stipulated peualtie.':l detennined to be. owing
by
tIte appeUate -couti.
Notwithstanding 8ny other provision ofthis Consent Decree, tIle accl11ed stipulated penalties
agreed b)rtbe Plaintiffs and DMO, or detelluinecl
by
the Plaintiffs tlll'ough Dispute Resolution, to
be
owing may
be
less than the stipulated penalty amounts set forill iu
Pal~gl'aph
128.
134.
All stipulated penalties shaJl be paid
in
tbe
Ulfluner
set forth
ill
Section IX (Civil
Penalty)
oftbis Consent Decree.
135.
Should DMO fail to pay stipulated penalties in compliance with the tenns ofthis
Consent Decree, the United
States
shall be entitled tn collect interest on suchpenalties
l
as
provided forin 28 U.S.C. § 1961.
136.
TIle stipulated penalties provided for in this Consent Decree shall be in addition
to any Qtller rights
3
remedies, or sanctions available to the United states by reason ofDMG-'s
t1ilure to comply with any requirement of this Consent Decree Of applicable law, except. that 101'
any violation of the Act for which
tlris
Consent Decree provides for payment ofa stipulated
penalty:
DMG shall be allowed a credit for stipulated pen.alties paid against any statutory
penalties also imposed for such violation.
52
.
.
Electronic Filing - Received, Clerk's Office, April 9, 2008
. '
. XV. FORCE MAJEURE
137.
For purposes of this Cousent
Decr~e.
a "Force Majeure Event" .sllallmeall an
e,rent that has been
01'
will be caused
by
circ\Ullstances beyond the control
ofD~G~
its
cont1'actors, 01' any entity controlled
by
DMG tbat delays compliallce with any provisioll ofthis
Consent Decree or oOlervl'isecau.ses 8 violation ofany p1'ov.isiollof this COllsent Decree despite
DMQ'sbest effo115 to fulfill the obligation. "Best efforts to fulfil! the obligation" include nsing
best efforts to anticipate allY potential Force Majenre Event ami to fI<ldress the- effects of allY
such event (n) as
it
is OC-CllITing and (b) after
it
has occt1l1'ed,!mch that the <relay or violation is
minimized
to the greatest extent possible.
138.
HQ!jce
ofFoI£~J}jfAi~l!r~E.Y~1L~.
If any event
OCellI's
or has occurred that may
delay compliance with or otherwi$e cause a violation ofauy obligation under this Consent
Decree. as to which DMG intemts
to
assert a claim ofForce Majeure, DMG shall notify the
Plaintiffs in writing-as soon as practicable, but in no event latel' thrm fourteen (14) business
days
following the date DMO first knew, or
by
the exercise ofdue diligence should have known, that
the event caused or may cause such delay 01'violation, In this notice, DMG shall reference this
Paragraph oftrus Consent Decree aud describe the anticipated length oftime that the delay or
violation may persist. the cause or causes of the delay 01' violatio1l, all measures taken or to be
taken
by
DMG to prevent or minimize the delay orviolation, the schedule
by
which DMG
proposes to implement tholie measures. and DMG'srationale for attributing a delay orviolatioD
to a Force Majetu-e Event. DMG shall adopt all rea')ollable1Ueasures
to
avoid or minimize such
delays
01'
violations. DMG shall be deemed to know ofany circtmlStance which DMO, its
cOllf1llctOJ:S, or
lIny
entity controlled
by
D:MG knew 01' should have known,
53
Electronic Filing - Received, Clerk's Office, April 9, 2008
139. Failure to Give Notice. IfDMG fnib to CODlply with the notice requirements of
this Sectiol1. EPA (after commltntion with the State ofIllinois and the Citizen
Plaintiff~)
may
void
DMG'sclaim for Foree Majem'eas to the specific event fOl'\vllich DMG has failed to
comply with such notice reqnit'eUlellt.
140.
Plaintiffs'Res,pollse. EPA shall
notifY
DMO in writing: regardingDMG'sclaim
ofForce
M~jeure
within twenty (20) busiuess
days
ofre-ce-ipt oftbe notice provided wIder
Paragraph ]38. If EPA (after consultation with the State ofIllinois and the Citizen Plaintiffs)
agrees that a delay in pelfolU"UlllCe has been 01'will be caused by a Force MnjelU'e Event. EPA
and DMG shall stipulate to an exte.11c;ion of clenc1Une(s) foq)erfonnauce ofthe affected
compliance
l'eql1iremellt(s)
by
a period equal to the delay actunlly caused
by
the event. In such
circumstances,
au appropriate modification shall be made pursuant to Section xxm
(Moditication) of tbis Consent Deere.e.
141.
Dismu-eemEU!.
If
EPA (after
c01l,~1I1tation
with the S1nte oflllinoig and the Citizen
Plaintiffs) does not accept. DMG'sclaim of Force Majeure, or if EPA aud DNIG camot agree on
the length of the delay actually caused
by
the Force
~lajeure
Event. the matter shall be l'esotved
in accordance with Section XVI (Dispute Resolntion) ofthis Consent. Decree.
142.
Btu'den
ofProof. In
filly
d~"pute
regarding Force Majeure. DMO shall bear the
burden ofproving that any delay ill pelformance or any other violation ofany requirement ofthis
Consent Decree was caused
by
or will be caused
by
a Force Majeure Event. DMG shall also
benl'the burden ofproving that DMG gave the notice required
by
this Section and the burden of
pl'Oviugtbe anticipated duration and extent ofallY delay(s) attributable to n Force Majeure Event.
54
"
Electronic Filing - Received, Clerk's Office, April 9, 2008
An extellsion of one compliooce date based on a particular event may'. but willuot necessarily,
result in an extension of a subseqnent compliance date.
143.
Events Exc1nded. Unantic.ipate-d 01' increased costs or expenses nssociate-d with
the perf01111«JlCe ofDMGls obligations lmdel'this Consent Decree sballllot constitute a Force
Majeure Event.
144.
Potential Force .Maieure Events. 111e Parties agree tbat. depending upon the
clrClUustances related to au event and DMO'sresponse to such
CirclUllEtsnces.
the kinds of
events listed below are Among tllose that COll1d qualify as F01'CeMlljelU'eEvents within the
meaning ofthis Section: construction, labor, or equipment delays; Malfunction ofa Unit or
emission cOlltrol device; acts of God; acts ofwar or telTOrism; Bud orders
by
a govemment.
official, government agency
t
other regulatory authority.. or a regio1lal transmission organizatiol1,
flcting under and authorized
by
applicable law. tbat directs
Dl\'fG
to supply electlidty ill response
to n systeuHvide (state.-wide or regional)
emergl~llcy.
Depending upon the cirC'lll1stallcesand
DMO'sresponse
to such
cil'CUmstallces~
failure ofa pellnitting anthority to issue n necessary
pennlt
in
a timely fashion may constitute a Force Majem'eEvent where the failure ofthe
penuitting authority
to act is beyond the control ofDMO amI DMG has taken aU steps avnilable
to it to obtain the llecessmy permit.
induding,
but 110t limited to: snbmitting a complete pennit
application;
l'Cspolldingto reque&1s for additional il1fonuatioll by the pelluitting authority ill a
timely
:fushion; mId accepting lawful pel'mittenns and c-ouditions after expeditiously exhnusting
any legal rights to appeal tetnlS and
~ollditiong
imposed
by
the pel1uittillg authority.
145. As part of the resolution ofnny matter submitted to this Comt under Section XVI
(Dispute Resolution) of1his Consent Decree regarding
II
claim ofForce Majeure.. the Plaintiffs
5S
Electronic Filing - Received, Clerk's Office, April 9, 2008
and DMG
by
agreement. or tlus Court
by
Ol'der.. nh1Y in appropriate cirCulllstances extend 01'
modify the schedule for completion ofwork under this Consent Decree to
aCcoWlt
for the delay
in
the work that OCCUlTed as a result of
~ny
delay agreed to
by
the United States and the States or
approved
by
the Court. DMG shalllle liable for stipulated
peu~lties
for its L1ilure thereafter to
complete the work ill accordance with the extended or modified schedule (provided that DMO
shalt not be precluded
fi'ommaking a further claim
o~Force
Majeure "With regard to meeting
any
such extended or modified schedule).
XVI. DISPUTE RESOLUTION
146.
The dispute resolution procedure provided
by
this Section shall be
av~ilable
to
resolve ull disputes alising l1uder t11is Consent Decree, provided that the Party iuvoking sucb
procedm'ehas first made a good faith attempt to resolve
the.matter with the other Party.
147.
TIle dispute resolution procedure required herein shall be invoke-d
by
one Party
giving \''l'itlennotice to the other Party advliJillg of(\ dispute pUf5nallt to this Section. The notice
shall desclibe the natnre
oftbe dispute and shall state the noticing Pa1'ty'sposition with regard to
such dispute. The Paliy receiving such
II
notice Bhal1acknowledge receipt oftbe notice, and tlle
Partie,')
in
dispute shall expeditionsly schedule a meeting to discuss the dispute illfolluaUy not
latel'than
fOUlt.eell (14) clays fullowing receipt ofsuch notice.
148. Disputes submitted to d!fo'Pute resolution under this Section shall, in the first.
instance, be the subject of illfol"lllalllegotiations among the disputing Parties. &"uch period of
infofi1lll111egotiatiolls 6ha1111ot extend beyond tbirty (30) calendar clays from the date ofthe first
meeting among the disputing Patties' representatives lmless fhey agree in wlitillg to shorten or
extend this period, During the infol111nlllegotiations period, the disputing Parties may also
56
I.
Electronic Filing - Received, Clerk's Office, April 9, 2008
submit their dispute to a nmtually agreed upon altemative dispute resolution (ADR) fOl'lUl if the
Parties agree that the ADR activities can be completed within
the 30-day infolmaI negotiations
period (or such longer period as
tIle Parties may agree to ill \\'l'iting).
149,
If
the disputing Parti-es are unable to reach agreement <hlrillg the informal
negotiation
period, the Plaintiffs shall provide DMG with a written slUumary oftheir P9sitiOll
regarding the dispute, The \"litte11 position provided
by
Plaintiffs shall be considered bin.ding
unless, within fol1y-five (45) calendar days
thel'eafter~
DMO seeks jUdicial resolution oftl1e
dispute by
filing a petition with tltis Court The Plaintiffs mayl'espoudto the petition within
forty"five (45) calendar days offiling.
In
their initial filings with the C.ourt under Uris P811lgrapb.
the disputing Pllliies shall state theil'
r~"pecfive
positions as to the applicable standard of law for
resolving the
pnrticu.Jar dispute.
1
SO.
The time peliods set out in this Section
m8J be
shortened or lengthened upon
motion to the Comt of one of the
Pflrl:ie~
to the dispute._ explaining the parl)"s
ba~is
for seeking
such a schedUling modification,
151. This Court shall not draw allY inferences nor establish any pJ'eSUlllptiollSadverse
to any disputing Party as a result. ofillvocation oftlris Section or the c1isputiug PnrUes' inability
to reach agreement.
152.
As
Palt of the resohltion ofallY dispute under this Sec.tion, in appropriate
circumstances the disputing Parties may
llgree! or this COllrt may order. an extension 01'
moditication of tIle schedule for the completion of the activities required uuder this Consent
Decree
to account for the delay that occllll'edas a result of dispute resolution. DMG shall be
liable
for stipnlate-d penalties for its failme thereat1el'to complete the work
in
accordance with
57
Electronic Filing - Received, Clerk's Office, April 9, 2008
the extended
01'
modified schedule.• provided thut DMO shall not be precluded fl:om asseltil1g
that a Force Majem'eEvent has caused or may cause a delay in complying with the extended or
modified schedule,
153. Tbe
CO\l1t
shall decide all disputes pursunnf to applicable pdnciples of law fot'
resolving such disputes, 111 their initial filings with the Court under Paragraph 149, the disputing
Pftrties
s11<111
state their respective positions as to the
appli~able
smuda1'dof law fo1' resolving the
l)/uticular
dispute.
XVII. PERL"vIITS
154. Unless expressly stated othelwise in this Consent Decree, in any instance where
otllerwise
applicable law 01' this Consent Decree requires DMO to secure a pennit to authorize
COllstmction 01' opemtion of any device contemplated herein. including all precollstructioll.
COll~tl1lctiont
and operating IJel1nits requirec1lUlder state law, DMG shall make such application
in t\ timely manner. EPA and the State ofIllinois shall use their best efforts to review
expeditiously all permit applications submitted by D},rfG to meet the requirements ofthis
Consent DeCI'ee.
155. NotwitllStanding the previous Pamgmph
l
nat1ling inthis Consent Decree shall be
corntrued to lequire DMG
to apply for 01' obtain a PSD or Nonattairullent NSR permit for
phy&icfll'chnnges in, or changes in the method ofoperation
~t:
filly
DMG Syslem Unit that would
give rise to claims resolved
by
Section XI. A. (Resolution of Plaintiffs' Civil Claims) of this
COll!leJlt Decree.
156, When permits aloe required as described in Parag.nlph 154, DMG shall complete
amI submit applications for such pennits to tbe appropliate autlIorities to allow time for all
58
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legally required
proce.~illg
811d review ofthe pennit request, including requests for additional
infomla1ion
bythe
pe1lllitting authorities.
Any
failure
by
DMG to submit a timely permit
application for any Unit in the DMG System shall bar any nse by DMG
ofSection XV (Force
Mftje'llre) of this Consent Decree, where a Force MajelU'e claim is based on permitting delays.
157. Notwithstanding the reference
to Title V pemlits
in
this Consent
Decree~
the
enforcement
ofsuch pernlits shall be in accordance with their own temlS and the Act. The Title
V pemlits shall not
be enforceable under tbis
Con.~ent
Deeree, althOUgh any tenn or limit
established by or under
tlus Consent Decree shall be enforceable under this Consent Decree
re.gal'dlessofwhetller such term has Of will become pa11 ofa Title V penlli!: subject to the tenus
ofSectiou XXVII (Conditional Temunatiou ofEllforcement
Under Decree) ofthis Consent
Decree.
158.
Within
one hlUICh-ed eigllty (180) da)'safter entry of this Consent Decree, DMG
shaH amend any applicable Title V permit application. or opply for amendments of its Title V
permits. to include a schedule fot. all Unit.speci{ic performauce,
o}lerntional~
maintenance, and
control technology reqnirements established
by
tlris Consent Decree including. but not limited to,
requir~d
emission rates and the requirement in Pflra.gl'aph 75 perttlining to the sUll'euderofS02
Allowances.
159,
\Vithin one (1)
yen!'
from the commencement of operation ofeach pollution
control device
to be illstaUed: upgraded, or operated under this Consent Decree, DMG shall
RIJply to amend its Title V pennit fur the generating plant where such device is installed to
reflect a1lnew requirements applicable to that
plallt~
including, but not limited to, allY applicable
30.Day Rolling Avernge Emission Rate.
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160. PriOl'toJanuary 1, 2015) DMO shall either: (a) apply to mnend the Title V permit
for each plant in
the DMG System to inclllde a provision, which shall be identical for each Title
V permit, that contains the allowance
~U1Tellder
requirements and the System.Wide Annual
TOlmage Limitations set forth ill this Consent Decree.: or (b) apply for C11nelldlllellts to the illinois
State Implementation Plan to include suell requirements and limitations therein.
161,
DMO shall proVide tIle Plaintifts with a. copy ofeach application to amend its
Title V permit for
fi
plant witbin the DMG System, as well as a copy ofany pennit proposed as a
result
of
~11ch
applic.ation, to allow for timely pmticipatioll in allY public comment opportunity.
162.
If
DMG sells or transfers
to
an entity unrelated to DMG (hThird Party
Pmchaserl)) part. or all ofits Ownersbip Interest in n Unit in the DMG System, DMO shall
comply with the requirements ofSection XX (Sales or Transfers OfO\lv1lership Interests) with
regard to 111at Unit prior to allY such sale 01' transfer tmless, following
flny
such sale or
transfer~
DMO remaiu"> the holder oftIle Title V pel1Dit for such facility.
XVIII.
I~"'FOR1vfATION
COLLECTION AND RETENTION
163.
Any
authorized representative ofthe United States or the State oflllillOis,
:inclnding their attorneys, contractors,
flud cOll">ultants, upon presentation of
cl'edentiaI~,
shall
l1ave
fI
right of elllry upon the premises of any facility in the DMO System atan)r reasonable
time for the p1UlJose of:
a.
monitoring Ule progress ofactivities 1'equil'edwlder this Consent Decree;
b.
verifying any data or infonnatioll submitted to the United States. in accQrdance
with the tenus oftills Consent Decree;
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c.
obtaining samples and, upon request, splits ofallY samples taken
by
DivIG
01'
its
representatives, contractors; or consultants; and
d.
ns-sessillg DMG'8 compliance with this Consent Decree.
164.
DMG shall retain. mId instruct its contractors and agents to preserve,. all non-
identical copies offllll'ecord$ and dOC\lmellts (including records and d0C11ments
in
elech"Ouic
form) now in its 01' its contractors' or agents'possession or control. alld that directly relate to
HMG'sperfotmance of its obligations uncler this Consent Decree for the following periods: (8)
uutil December 31. 2020 for records conceruin.@. physical or operational changes lwdertaken ill
accordance with Paragraph 114; and (b) until December 31,2017 for all other l"ecQrds. This
record retention requireluent shall npply regardless ofany cOlpornte document retention policy to
the contnu-y.
165.
All infolluntion
~nd
cloctunellts l1ublllitted
by
DMG pursuant
to
this Cons'ent
Decree shall 'besubject to Rny requests uudel'applicable law providing public disclosure of
documents unless (a) the infol111ation and documents are subject to legal privileges or protection
or (b) DMG Clai1l1S alld substantiates in accordance with 40 C.P.R. Part 2 that the infomlatioll
anel dOClIDlents contain confidential business illtbmmtion.
166.
Nothing in this Consent Decree shall limit the autholity ofthe EPA or the
state
of
DIinois to conduct tests and inspections at DMG'sfacilities lUldel' Section 114 ofthe Act, 42
U.S.C. § 7414, 01' any other applicable fede.ffll 01' state laws, regulations or pemlits.
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XIX NOTICES
167. Unless otherwise provided herein, wbenever notifications, submissions, 01'
conmmmciltions are required
by
this Consent Decree, the}'shall be made in wdting and
add1'essedas follows:
Chief, Enviromnental Enforcement Section
EnvirolUuent and Natural Resources Division
U.S. Depm1mellt ofJ\.lstice
P.O. Box 7611: Bell Franklin Stntion
WashillgloD
t
D.C.
20044~7611
DJ# 90-5-2-1-06837
and
Director, Air Eufol'cementDivision
Office ofEnforcement and Compliance Assurance
U,S. Euvironmelltal Protection Agency
A1'ielRios Building [2242A]
1200 Pennsylvania Avenue, N.W.
Witshinglon, DC 20460
and
Regional Administl'at.or
U.S. EPA- Regio.n 5
77
W. Jackson St.
Chicago: IL 60604
and
George Czemiak. Chief, AECAB
U.S. EPA- RegionS
77 W. Jackson St. - AE-l7J
Chicago, IL 60604
As to the State oflllinois:
Bureau Chief
Bureau of
Ail'
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Illinois Environmental Protection Agency
1021 North GraudAvellue.East, P.O. Box 19276
Springfield, Illinois 62794-9276
and
Bureau Chief
Environmental Bm-eau
Illinois Attorney Genellil'sOffice
500 South Second Street
Sprillgfield~
illinois 62706
Executive Director
Environmental Law
a11<1
Policy Center of the Midwe.')t
3S
East Wacker Dt'. Suite 1300
Cbicago, Illinois 60601-2110
Vice Pre.<;idenf, Envirolllnentni Health & Safety
Dynegy Midwest Generation. Inc.
2828 North MOIU"oe Street
DecaflO',lllinois 62526
and
Executive Vice President and General COlUlSCI
Dynegy Inc.
1000
Louisi~ml
Street, Suite 5800
Houstoll: Texas 77002
As to llliuQi§ Power !;:onmanx:
Senior Vice President, General Counsel, nnd Secretmy
Illinois Power Company
One Amel'ellPlaza
1901
Chouteau Avenue
81. Louis, Missouri 63166
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168;
All notifications, conummicntions or submissiol1s made PllI'Sl131lt to thi:s Section
shall be sent either
by:
(a) overnight 1l1c'lil 01'Qvernight deHvely service) or (b) celtified or
registered mail. l'efU1ll receipt requested. All uotifications) couumnticatiolls and transmissions
(a) sent by oveOlight.. certified or registered mail shall be deemed submitted on tIle date they are
postmarked, 01' (b) sent by ovemight delivery service shall be deemed submitted on the date they
m:e delivered to the delivery service.
169.
Any
Party
nmy
change eitber the notice recipient or the nddres-s for proViding
notices to it
by
serving an other Parties with a notice setting fortb such new notice recipient or
address.
XX. SALES OR TRANSFERS OF OWNERSHIP
IN~ERESTS
170.
If
DMG proposes to sell or tnUL')feran Ownership Interest to an entity unrelated to
DMG ("Third Party Purchaser"), it shall advise the Third Party
PUl'cha.~er
ill writing of the
existence
of this Cou.orent Decree priOI'to sucll snle ortransfer, and shall send a copy ofsuch
wlitten notification to the Plaintiffs pursunnt to Section XIX (Notices) of this Consent Decree at
least sixty (60) days before such proposed sale or
tl1111sfer. .
171. No sale
Of transfer of an Ownership Interest shall take place before the Third
Party
PltrCllMer and EPA have executed, tUld the Cowt has
approve(~
n modification pursuant to
Section XXIII (Modification)
of this COllsent Decree making the Third
Pm1y
Purchaser a. party
to this Consent
Decr~e
andjointly and severally Hable with DMG fOl' all the requirements of this
Decree that may be applicable to the trausfen-ed
or purchasecl Ownership Interests, Sbould
Illinois Power
(01' any successor thereot) become a TWrd Palty Purchaser or all opemtol'(as the
tell11
'~operator"
is used lind illtel})refed uuder the Clean Ail'Act) of any DMO System Unit, then
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the provisioll':'lin Section X ofthis Consent Decree (Release and Covenant Not to Sue for Illinois
Power Company) that apply to Illinois Power shall no longer apply as to the DMG System
Unites)
as~-ocinted
with the transfer. and instead! the Resolution ofPIailltiffs' Civil Claims
pl'Oyjgions in Section XI tbat apply to DMG shall apply to Illinois P()\\,er with re50'Pectto such
transferred Unit(s), and such
ch~nges
shall be reflected in the modification to the Decree
reflecting the sale 01' transfer of an Ownership Interest contemplated by this Paragraph.
172.
TIllS Consent Decree shall not
be
collstmed to impede the transfer of any
Owllership Interests between DMG and any Third Party Purchaser so long as the requirements of
this Consent Decree (lre met. This Consent Decree shall 110t be COI1J,true-d to prohibit a
contractual allocation - as between DMG and any ThiroPal'ty
Purcha~el'
of Ownership Interests
-
of the burdeus of compliance witl1lhis Decree, pmvided tlmt both DMG and such Tlrl1'dParty
Purchaser
shalll'eOlainjointly and severally liable to EPA for the obligations ofthe Decree
applicable to the transfeo-ed or
pur~haged
O\\llership Interests.
173.
IfEPA agrees,
EPA~
DMG, and the TIlird party Purchaser that has become a party
to
thi~
Consent Decree pursuftnt to P81'ftgt'ftpb
171~
may execute a modification tImt relieves
DMG ofits liability under thi.» Consent Decree for,
flud
makes the Third
Pm1y
Purchaser liable
for, all obHgatiollS and liabilities applicable to the purchased or t11lnsfel'l'edOwnership Interests:.
Notwithstandiug the foregoing, however, DMG may not assign, and may not be released from,
any obligation lUlder this COllsellt Decree, that is not specific to the purchased or transferred
O\vllership Interests, including the obligations set forth
in
Sei:tiOllS VIII (Envi1'01llueutnl
Mitigation Projects) ll11d IX (Civil Penalty). DMG may propose and the EPA may agree to
restdct the scope
of the joint 3ud severalliabilit)" of any purchaser or transferee for
lilly
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Electronic Filing - Received, Clerk's Office, April 9, 2008
obligations ofthis
Cou~nt
DeCl'eethat are not spetific to the tt'a11Sfe1wdOJ'purtbased
Ownership Interests
1
to
the
extent
snch
obligations may be adequately sepa1:atecl in an
enforceable nmlUler,
174, Pttt'8grnphs 170 and 171 of this Consent Decree do not apply if
an o'\-11efship
Interest is sold or h-ansfen.'edsolely as collatemlsecurlty in order to
comtIDl1nafe
a flnaIlc.ln.g
t!n'angelUent (I1otJllc.lucling
a sale-leaseback), so long asDMG: t1) remninsthe operator (as that
te1Ul is used and interpreted uncleI'the Clean Air Act) oftl1e subject DMG System
Ull1t(s)~
b)
refmtins subject to and Hable for aU obligations and liabilities ofthis Consent Decree; and c)
supplies Plaintiffs with the foUowh18 certification Withlll30 days of the sale 01' transfer:
"&;§1jJficaliotl of Change in Ownership Itltel'estSolely for Pll1:gose of C-onS\llInun1ing
.fjntU1Cing. We, the Chief Executive Offl¢ej'and Oeil-eml CouIl.$el ofDynegy Midwest
Generatiou., bel'ebyjointly
cel1.i:1Y
under Title 18 U.S.C. Section 1
00l~on
OUI'
ownbehalf
mel on behnJf ofDyuegy Midwest Generation ("DMG
'
), that
~ny
cllange ill DMO's
O\"llel'SllipIntet'estill any Unit that is cau-sed by 1Ile sale or transfer as collateral security
ofsuch Ownership Interest in such Unit(s) t>tJ1'StUUltto the financing agreement
C011$U1umat.ed 011 [insert
~ppHcable
dnw) between DMO and [lusett applicable entity]: a)
is made solely for the pUl1JOse ofproviding collateral security ill order to consummate 8
financing arrangement; b) does noi impnir DMQ's
t\bility~
legally Ol'otberwise, to comply
timely with all terms 4'nclprovi-sions ortlle Consent Decree entered 1n
Uilited States of
America, et al.
'I,
illinois
POW(J1'
Company GlId Dyn8gyMidwest Generation)
luc,~
Civil
Af;tiot1 No. 99-833.MJR; c) does not affect DMO'sopel'ationnlcontl.'01ofany Unit
covered by tb8t Consent Decree in a mmUlel'that i$lllCOnsJstellt with
DMO~s
pedbnnance ofits obligations under the COtlmlt Decree; and d) hi no wa.y affects tl1e
status
ofDMG~sobHgatioua
o.1'Uabilitle-s \111001' that Consent
Decl·ee.~
175. The effective date oftIli5 Consent Decree shall be the date upon which this
Consent Decree is entered
by
the Court.
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XXII. RETENTION OF J!JlUSDICTION
176.
The Court shall reminjudsdiction oftl1is case after ellby oftbis Consent DeCl'ee
to
enforce compliance with the tel1l1S and conditions ofthis Consent Decree and to take any
action necessllry or appropriate for its illtetpretation, eonstructioll, executioll, modifiC<1tioll, or
adjudication of dispute.<;. During the tell11 ofthis Consent Decree, any Party to this Consent
Decree may apply to the Cou.rt for any relief llecessmy to construe 01'effectuate 111is Consent
Decree.
xxm. MODWICATION
177.
The tenus of this Consent. DeCl'ee
Dlay
be modified only
by 8
subsequent wlitten
agreement signed
by
the Plaintiffs and DMG. "Where the modification constitutes a mnterial
change to any tel1ll of this DiXl'ee, it. shall be effective only upon
approv~ll
by
the CoUlt.
XXIV. Q£.t.m.B&PROYISIONS
178. Tllis Consent Decree is not a permit. Compliance with the tenus of this Consent
Decree does 110t guarante.e compliance with all applicable federal
t
stat~
or locnllaws or
regulations. The emission rates set f011h herein do not
reliev~the
Defendants from My
obligation to comply \\lith other state and federal reqnireUlents lUlc1el'the Clean Air Act.
including the Defendants'obligation to satisfy any state modeling
requ.iremenl~
set forth in the
illinois Stat.e Implementafion Plan.
179. TJlls COllsent Decree does not apply to
<lny
claim(s) ofalleged Cll1l1iualliability.
180. In any subsequent administrative or judicial action initiated by any ofthe
Plaintiffs for iUjl111ctive reliefor civil penalties relatiug to the facilities covered
by
this Consent
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DeC1'ee~
the Defendants shnllllot asselt any defense or claim based Ilpon pl'inciptes
Qfw~liver,
m
llldicata.
~ollateral
estoppel, issue preclusion, claim preclusion. or claim splitting, 01' any ot1ler
defense based upon the 'Contentionthat the claims mised by M\Y of the Plaintiffs in
tl1t~
subsequent proceeding We1'e W.ought. 01'should have been 'bl'OUght..
in
tlle insfant case; provided.
however" tllat nothing in tlUs Paragraph is intended to affect tIle validity ofSections X (Relea.se
llud Covenant
Not
to Sue for Illiuois POWeJ'Compauy)
find
XI (Resolution ofPlalutiftSt Civil
Cla.ims Agall1$t DMO).
181. Except ns specifically provided
by
this Conseut Decree, nothing in this Consent
Decree slmIl relieve tbe Defendants oftheil'obligation to £oulply with aU applicable federal,
sttlte, and locnllaws nnd regulation-c;, Subject to the provisiouslll Sections X (Release and
Covenant Not to Sue for DUuois
POW~l'
Company)ancl XI (ResohltiOll ofPlaintiffs: Civil Claims
Against DMG), llQtbing contained
in
this Consent
De~l'ee
shall be constmed to p1'eventor limit
the rights of thePlft.intifts to obtain penaltIes 01'injlulctlve l'eliefuuder the Act or othei'federal,
state! or local
statlltes~
regll1ntions
t
01' pe1'111its.
18.2, Every term expressly defme-d by this Consent Decree 811fl11 have the meaning
given to t11at teon
by
this Consent.Decree and, excepf as -otbenvbe l)rovidt:d in thIs Decree,
eve!y other tellll used in this Decree that is also a tellU uuder the Ad OJ' tIle l'egulEttions
bDl)lell1ent-illg the Act shatl mean in this Decree what such telll1 means lJnder the Act Ot. those
iml>lementin,g regulati(ms.
183.
Nothing in this Consent
D~re.e
is intended to, 01'
sbal1~
alter 01'waive
any
applicable law
(including but
not limited
to
8UY
c1efenses~
entitlements, challenges, or
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, '
clarifications related to the Credible Evidence Rule. 62 Fed. Reg. 8314 (Feb. 24, 1997»
c:onccming
the use ofdata for any plup03e under the Act.
184.
Each limit and/or other requirement
est~blished
by or lU1der this Decree is a
separate, independent requirement
185.
PerfOl'lll1111Cestandards, emissions linlits, and other quantitative stalldnrds set
by
or under this Consent Decree must be met to the number ofsignificant digit,')in which the
standard 01' limit is eA'Pressed. For example. au Emission Rate ofV.I 00 is not luet iftlle actual
Emission Rate
is
0.101. DMG shall romld the fourth significant digit to the nearest tWrd
i>ignificant
digit. or the third significant digit to the nearest second significant. digit, depending
upon whether the limit is expressed to three or two significant digits. For example, if an actual
Emission Rate is 0.1004. that shaH be l'epol'tedas 0.100, and shall be ill compliallce witl1 an
Emission Rate of 0.100. and ifan actual Emission Rate is
O.1005~
that shall be l'eportedas 0.101,
and shall not he in compliance with ml Emil'>sionR(lte of0.1 00. DMG sha11 report data to the
number ofsignitknnt digits
in
which the stondard or limit is expressed.
186.
Tbis Consent Decree does not. limit, enlarge or affect the rights of
BUy
Party to
this Consent Decree as agaiust allY third parties.
187.
This Consent Decree constitutes the final, complete and exclusive agreemeut and
understanding among the Parties witlll'espectto the settlement embodied
in
tlris Consent Decree,
and supercedes 311 prior agreenlent.s and understandings among the Parties related to the subject
matter helcill. No document., representation, inducement, agreement. mwel.stalldinB',or promise
CQ11.')titu!es any part of this Decree or the settlement it
represents~
nor shaJl they be nsed
in
constnting Ule terms of this Consent Decree.
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188. Eacl1Palty to this action shall bear its own costs and attomeys'fees.
XXV. SIGNATORIES AND SERVIC.E
189.
Each undersigned representative of the Parties certifies that he or she is fully
authorized to enter iuto the terms anel conditions of this Consent Decree and to execute and
legally bind to this document the Party he or she represents.
190.
This Consent Decree may be. signed in counterparts.. and suetl counterpart
signature pages shall
be given full force and effect.
191.
Each Party hereby agrees
to accept service ofprocess
by
mail \vith respect to all
matt.ers alibing Imdel'or l'elatlngto thisConsent Decree and to ,Jlaive the f01llull service
requirements set forth in Rule 4 of the Fe-deml Rules ofCivil Pl"ocechlre and row applicable Local
Rules
of this Court inchlding, but not limited t.o, service of a. SlUIUlIOllS.
XXVI.
PUBLK~
COIvTh.1ENT
192.
The Parties 3gl'eeand a.cknowledge that final
~pproval
by
the United States and
entry
ofthis Consent Decree is subject to the procedlU"es of28 C.F.R. § 50.7, which provides for.
notice
oftlle lodging ofthis Consent Decree
in
the Federal Register) an opportunity for public
conTInent, and the right ofthe United States to withdraw or withhold consent
jf
the conuneu!s
disclose facts
01'
considerations which indicate that the Consent Decree is inappropriate.
improper
or inadequate. The Defendants sball110t oppose entry ofthis Consent Decree
by
this
Court or clmI!enge any provision of tlus Consent Decree unless fhe United Sta
tel)
bas notified the
Defendants, in writing, that the United States- no longer supports entry ofthe Consent DeCl'ee.
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XXVII. CONDITIONAL TERiVlINATIQM DFENFORCE1VIEl\TT I-i"NDERDECREE
193.
TemJination as to COlllpleted Tasks. As soon as DMO completes a constmctiou
project
or any other requirement of this Consent Decree tIlat
is
not ongoing or recuniu&- DMG
may,
by
motion to this C:omt, seek termination ofthe provision or provisions oftius- Consent
Decree that imposed tIle requirement.
194. Copdiiiomd TenninatiQll ofEn.forcement Tln:ongh the C.onsent Decree. After
DMG:
a.
has successfully completed
COllstl1lctiOll~
and has maintained operation, of
aU pollution con1rols as required
by
this Consent Decree;
b.
bas obtained tina! Title V pennits (i) as required b}'the temlS of tbis
Consent Decree;
(Ii)
that cover all ,mits.
inthis
Consent Decree; and
(iii)
that include as enforceable pel'fuitteInlS all of the Unit. pel'fOllUBllceand
ollier
requirements specitied ill Section XVII (penuits) of this Consent
Decree;
and
c.
certifies that the date is later Hum December 31
t
2015;
then
DMG may so certify these facts to the Plaintiffs nlld this Com't. Ifthe Plaintiffs do
not object
ill
wtiting
with specific reasons within forty-five (45) days of receipt of
DMG'sCel'tificiltion.then. for any Consent Decree violations that occur after tIle filing of
uotice~
the Plaintiffs shall pursue enforcement ofthe requirements contained in fhe Title
V pennit thl'OUgh the applicable Title V pennit and not through this Consent Decree.
195,
ResQ11 to Enforcement under this CQllsellt Decree, Notwithstanding Pat'aS1llpl1
194:
if
enforcement of a provision ill this Decree camlot be pW'suedby a party under the
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applicable Title V pennit.
01'
if a Decree requirement
wa5
intended to be part of
n
Title V Pel1nit
and did not become 01'remain part ofsuch
permit~
then such requirement may be enforced under
the telnlS of tlus Decree at any time.
x...'XVllI.FINAL JUDGMENT
196. Upon approval and entry ofthis Consent Decree by the
COU1t~
this Consent
DeCl'eeshall constitute a. final Judgmeut among tbe Plaintiffs, DMG, and Illinois Power.
SO ORDERED, THIS __DAY OF
:t 20o_.
HONORABLE MICHAEL
J. REAGAN
UNITED STATES DISTRICT COURT JUDGE
72
'\
Electronic Filing - Received, Clerk's Office, April 9, 2008
Siguahu'ePage for Consent Decl'ee
ill:
United states ofAmericlf
v.
illinois Power (fild
~Yl1egy
Midwest CTimemiion Inc.
FOR THE UNITED STATES OF A"\rIERICA:
THO~fAS
L. SANSONETTI
ASbistRut Attomey General
Environmental and Natural Resources Division
United States Department ofJustice
Nicole Veilleux
Trial
Atfo11ley
Enviromnental Enforc-elllent Section
Enviro1Ul1elltal and Nanu-al ResolU'Ces Division
United
State-s Department ofJu.stice
William Coonan
As~istant
United States AttQmey
Southem District ofIllinois
United States Depal'bnelltofJustice
Electronic Filing - Received, Clerk's Office, April 9, 2008
Signature Page for Consent Decree- in:
United Siafes ojAmerica
v.
Illi110is PO't'o'6J'
Company
and pl'negy JV!idwesf Generation hIe.
THOM.'\.S V. SKINNER
Acting Assistant Admini')tmtor
Office ofEnforcement and Compliance Assurance
United st.'ltesEnviroumental Protection Agency
ADAM lvL KUSHNER
Acting Dil'ector,
Ail'
Enforcement Division
Office ofEllforcement and Compliance Assmance
United states Environmental Protection Agency
Edward J. Messina
Attomey Advisol'
Air E.nforcement Division
Offic~
ofEnforcement and Compliance ASSlll'allce
United states Enviroumental Protection Agency
r I
Electronic Filing - Received, Clerk's Office, April 9, 2008
SignaflU'ePage for Cousent Decree in:
United States ofAmerica
v.
Illinois
Pon-'il1'
Company and
~Vllegy
l'fidwest
Generation Inc.
Bharat Mathur
Acting Regional Adminish<Uor
U.S. Ellvirorunental Protection Agency
RegionS
Mark Palermo
Associate Regional COlUlsel
U.S. EuvirolUllelltal Protection Agency
Region 5
Electronic Filing - Received, Clerk's Office, April 9, 2008
Signnn:u-e Page for Consent Decree in:
United States ofAme.rica
1'.
Illinois Power Company and Dynegy }vlidwest Generation Inc.
FOR THE STATE OF ILLINOIS
PEOPLE OF THE STATE OF ILLINOIS ex rei:
LISA MADIGA.N'
Attorney General ofthe State oflliinois
MATTHEW J. DUl\TN. Chief
Environmental EntbrcementlAsbestos
Litiga.tion Divif')ioll
by:
TIlOmas Davis: Chief
Environmental Bureau
As£istallt
AftolUey
General
I,
Electronic Filing - Received, Clerk's Office, April 9, 2008
Signanu'ePage for. Consent Decree ill:
United States ofAmerica
'V.
nlinois Power Company and Dyuegv
~'1idwllSt
Generation Inc.
FOR CITIZEN PLAINTIFFS:
Albert Ettinger
Senior
StaffAUomey
EllvirolIDletltaJ
Law
and Polh..
y
Centet. ofthe Miclwest
17
Electronic Filing - Received, Clerk's Office, April 9, 2008
Signature Page
fo!'
Consent Dect'eein:
United States of
Amelica
1'.
lllfnois Power Company and Dynegy 1vfidwest Generation Inc.
FOR
Dl:~EGY
l\nn\VEST GENERATION:
Alee G. nt'eyer
President
Dynegy Midwest
Genel'ation~
Inc.
78
r l
Electronic Filing - Received, Clerk's Office, April 9, 2008
Signatme Page for Consent Decree
in:
United States ofAmeJica
11.
Illinois Power
Compm~v
and Dynegy
i\fw)I!est
Generation Inc.
Sleveu R.
SUUiVf\11
Senior Vke Pl'esident, General Counsel and Secretary
Illinois Power Company
79
Electronic Filing - Received, Clerk's Office, April 9, 2008
APPENDIX A - MITIGATION PROJECTS REQUIREMENTS
In compliance with and in addition to the requirements in Section "\-'IIIofthe Consent Decree,
DMG shall comply with the
requirements of
tIlls
Appendix to
ellSUI'e
that the benefits of the
envil'Omnelltal mitigation projects are achieved.
1.
Advanced Tmck Stop Elecnification Pl"Oject
A.
Within oue hundred thirty five (135) days after entty ofilii!; COllsent Decree.
DMG sball submit a plan to the Plaintiffs for review and approval for the completion of
the illSt81111tiOIl ofAdvanced Truck Stop Electrification. preferably at State ofIllinois
owned rest areas
along Ulinois interstate highways in the St. Louis Metro East area
(comprised ofMadison. St. Clair and M01l1'Oe Counties in Illinois) 01' as nearby as
pO.'3sible. Long-ooul trnck chivers typically idle tbeir engine!) at nigbt
fit
rest areas to
supply
Ileal. or cooling hl theil'sleeper cab compartments, nnd to mahltain vehicle battery
charge while
eleclIi<:al flpplionces such as TV.s. computers and microwaves are in use.
l\'fodificatiolls
to rest areas to provide parking spaces with electrical power.
hent
and air
conditioning
will allow t11lck dd\refS to tum their
ellgille~
otI. Tmck drivel'utilization of
the Advanced Tmck Stop Electrificatio11 will result
in
reduced idling time amI therefore
reduced filel usage. reduced emissions
ofPM. NOx, VOCs and taxies, mId reduced noise.
This Project shall include. where necessary. techniques and
iufi'astn~tlU-e
needed to
support. such project. DMQ sl1all spend no less than $1.5 million
in
Project Dollal'Sin
perfooning this Advanced Tl1.1ck Stop Electrification Project.
B.
Tile pl'OposedpIon shall. safisfy tIle following cliteria:
1.
Descnoe how the
work
or project to
be
perfOlllled is consistent WiUl
requirements ofSec.tionI. A., above.
2.
Involve rest
are~s
located ill areas that are either in the Sf. Louis Metro
East area (compl'isedof}o.1adisoll, St. Clair and Motll'OeCounties in
Illinois) or as nearby as l-easonably possible.
3.
Provide for the construction ofAdvanced Tmck Stop Electrification
stfttions
with established technologies and equipment designed to reduce
emissions ofpartknlates
mlCVor
ozone precursors.
4.
Account for hardware proclU"ement and installation costs at the recipient
tmckstops.
5.
Include a schedule for completing each portion aftlle project.
6.
Desclibe generally the expected enVil'OlUllelltalbenefits of the project.
7.
DMG shall not profit from this project for the first five years of
implementation.
C.
Performance - Upon approval ofplan
by
the Plaintiffs, DMG shall complete the
mitigation project according to the appro\led plan and schedule, but no Intel'than
December 31, 2007.
Appendix A - Page 1
Electronic Filing - Received, Clerk's Office, April 9, 2008
II.
Middle Fork/Vel1nilion Land Donation
A.
W'ithUlsixty (60) days nfter entry ofthe Consent Decree, DMG shall submit a
phm to the Plaintiffs for review and alJproval for the transfer of ownerslrlp to the State of
Illinois Department ofNatnral Resources (IDNR), of an npproximately 1135 acre parcel
of laud along the
~fiddle
Fork Venuiliol1 River in Vennilion County identified as the
Middle ForklVenuilion e'Propertyt'). The vahle ofthe Property to be donated
~an
be
fai1'ly valued at $2.25 million. Accordingly, DMG'sfull and fmat t1'81lsfet'oftIle Property
in
accordance witb tIle plan shall satisfy its requirement to spend at least $2.25 million
Project
Dol1al'~
to implement this project.
B.
The proposed plan shall
Sfltisfy
the follo\-ving criteria:
1.
Describe how tbe work or project to be perfollued is consistent 'with
l'equin~Dlents
of Section II. A.. above.
2.
This project entails
the.dOlUltiO.1l of the entire parcel of lanel owned
by
DMG (an approximately 1135 acre parcel of land)
(IS
oflodging of the
C01lSent Decree along the Eastside ofthe ?\-fiddle Fork Vemlilioll River ill
Vemlilioll County. The Propelty is located between Kickapoo State Pal'k
and the
~'Iiddle
Fork State Fish and Wildlife Al:ea and Kemlekuk COUllty
Pm"k on the East side ofthe Middle Fork ofthe Vermilion River.
Ownership of the Property and mallage1lleut ofthe natural resources
thereon shall be tnm.'S"fen.edto lDNR so
AS
Lo ensure the continued
presel"VatiOll and pUblic use onhe Propetty.
3.
The pll\l1 shall include DMG'sagreelllellt
to
convey to IDNR,
rue
Property, the Ancillary Stmchn'esand the Personal Property, ifany. to the
extent located on the Property, and to the extent owned
by
DMG. The
plan shall include steps for resolution of aU past liens, paymeut of all
outstanding taxes
t
title transfer
l
and otller such infol1l1fltioll as would be
ueees-sary to convey the Property to !DNR. In all other respects, the
Property will be conveyed subject to the easements, lights-or-way and
similflf lights ofthird pmues existing 8S ofthe dote aftIle conveyance.
4.
DMG shilU retain its existing right to take find use t.he.wate.r from a
striplllille lake located ill the N"""\\11A ofSection 28, T-ZO_N. R-12-\V,
3
P.M. and in the NE
~~
ofSection 29.. T-20...".N. R-12-W, 31'<lP.:M. of
Venllillioll COU1lty, and an easement to access this Wilter and to provide
electrical power to pump
the wnhu'.
5.
DMG agrees to fiU'nish to J;DNR a cluTelltAlta/ACSM Laud Title Stuvey
ofthe Property prepared and certified
by
an Illinois
regist~red
land
f>.urveyor.
6.
Describe generally the expecte-d environmental benefit for the project
C.
Perfonuance • Upon appl'Oval ofplan
by
the Plaintiffs. DMG shall complete the
mitigation project according to the approved plan and schedule, aud convey such
Pl'operty
prior to the dote 180 days from entry of this Consent Detree or
J1Ule
30, 2006,
\Vlricheverisearliet
Appendix A • Page 2
Electronic Filing - Received, Clerk's Office, April 9, 2008
m.
Metro East Land Acquisition and Preservation and Illinois River Projects
A
Within
.si..xty (60) days after entry of the Consent Decree, and following
consultation with
Plaintiffs~
including on behalf ofthe State ofllliuois, the IUinois
Dep81illlent ofNnfural
Reso1U-ces, DMG shall submit a plan to the Plaintiffs f-or review
(lnd
~ppro"a1
for the l1C1nsfer of $2:75 million to the Dlinois Conservation FOWldation, 20
ILeS 880/15 (2004). TIle ftmcls transfen-ed by DMG to tile Dlinois Conservation
Foundation slmll be used forthe express purpose ofacquiring llatul'allandsand babitat in
the St Louis Metro East
81'eR. for acquiring audlor restoring endallge1'e<1habitat along the
IllillOis River, and for
fhture
flmding of the Illinois River Sediment Removal and
Beneficial Reuse Initiative,
admitl~tered
b}'the Wafo1e Management Resou1'ceCenter of
IDNR. h1 addition. to tlle extent possible, the ftlllding $l1all be utilized to enhance
existing wetbmdlJ and create new wetlands restoration projects at sites along the Illinois
River between DMG'sHavana Station and the Helmepin
station,
and provide for public
use
ofacquired areas in a manner consistent with rhe ecology and historic: uses ofthe
area. Further, to the extent possible. the funding shall enable the removal and transport
ofhigh quality soil sediments from the Illinois River bottom to end users. inclnding State
fish and wildlife areas, a local
envirollmental remediation project, and other projects
deemed beneficial
by
plaintiffs. Ally properties acquired through ftulding ofthis project
shall be placed
ill the penuancnt ownership of the
state
ofrIli.l1ois and preselYed for
pUblic use
by
IDNR
B.
The proposed plan shall satisfy the following criteria:
1.
Descnoe how the work or project to be pelfol111ed is consistent \-yith
requirements ofSection III. A., above.
2.
Include
n
schedule for completing the funding ofeach portion of the
project.
3.
Desctibe generally the expected enviromnental benefit for the }J1'oject.
C.
Performance - Upon approval ofplan by the PL1intiffs, DMG sbaH complete the
mitigafio1l1J1'ojectaccording to the approved plan Rnd schedule, but 110 late1. than
December 31, 2007.
IV.
~rmilion
fowel'§tntioll Mercuty Control
~j!;l£t
A.
\Vithitl sixty (60) days of entry oftlle Consent Decree, DMG shalt submit a pIau
to the Plnintiffs for review and approval for thepelfonnance oftI1e Vermilion Power
Station Mercury Control Project. Tl1e project will result in the installation of a baghoHse,
along
with a sOl'bentinjection
systelll~
to control mercury emission8 from Vemlilioll
Units 1 and
2, with a
gOIl!
ofachieving 90%
mercUl'Y
reduction. For
pUlpOSes
ofthe
COlL'ientDecree, oftile approximately $26.0 million expected capital cost. for
construction
and installation ofthe baghouse with
l\
sorbent injection system
t
DMG shall
be deemed
to have expended $7.5 million Project Dollars upon COllunellceDlent of
opemtion of fhis control
t~hnology.
provided that DMO continues to operate the cOllu'Ol
tec1mology for five (5) years and sun'endersany mere-Ul)'allowances muifor mel'CulY
reduction credits, as applicable, dming the five (:5) year period. DMG shall complete
Appendix A - Page 3
f
,
r\
Electronic Filing - Received, Clerk's Office, April 9, 2008
COllstnlctioll and installation of the bagllouse with a sorbent injection system, and
commence
opemtion ofsuch control device, 110 latel'than Jlule 30, 2007.
B.
The proposed plan shall satisfy the following critetia:
1.
Describe how tbe work or project to be perfomled is consistent with
requirements
ofSectiou IV. A.) above.
2.
Include a general schedule and budget for completion of tIle construction
ofthe baghollse and sorbent injection system,
along: with a plat) fOT the
submittal
ofperiodic reports to the Plaintiffs on the progress of the work
through completion
ofthe COllstmctioll and the commencement of
operation ofthe baghollse ,l1Id sorbent injection system.
3.
TIle SOluent injection system shall be designed to inject sufficient amounts
ofsorbent to collect (find remove) mercmy enlissions fi'om the coal-fired
boilers and to promote tbe goal
ofachieving a total merclll'yreduction of
90%.
4.
DMG shall not be pelmitted to
beuefit~
\mder auy federal or state mercmy
cap and trade program.. from the operation of this prqie.ct betore June 30,
20 I2 (if such a cap and trade system
is
legally
in
effect at that time).
SpecificallYJ DMG shaIlllot be pemritted to sell., or use within its system,
any mercury allowances andlor mercury reduction credits earned through
resulting mercury reductious under any Mercury MACT mle 01' otlIer state
or federallllercmy
credit/allowance trading pl'ogmUl. through June 30.
2012.
5.
From July 1.2007 through June 30,. 2012
t
DMOshaH stl11'enderto EPA
any and nllmercury cl'edit.s/allowancesobtained tlll'Oughmercmy
reductions
l'esultlngfrom
tIus
project.
6.
DMG shall provide the Plaintiffs. llpon completion of the construction aud
continuing for five (5) years thereafter. Vtith semi-anl1ual updates
documenting: a) the Dle1"Cury reductioll acbieved. illcluding summaries of
all mercmy testing and allY available continuous emi')siousmonitoring
data; fiud b) any mercury nI1owane.es audio)'mercury reduction ct-edits
eamcd through resulting mercmy reductions under
filly
Mercury MACT
mle 01' other state or fedel'almercl11y credit/allowance lra<Ung program;
and &1u'reuderthereof. DMG also shall nlake such Se1lli.allllualupdates
contenting the perf0l111RUCe of the project available to the public. Such
infol1uat"ion disclosure shall include, but not be limited to, release ofsellli-
alumal progress reports clearly identifying demonstrated removal
efficiencies ofmer(:ury, Borbellt injection rates, and cost. effectiveness.
7.
Describe generally the expected ellVil'OlUnelltalbenefit for the project.
C.
Petf011l1illlce. Upon approval oflJlall
by
the Plaintiffs. DMG shall complete the
mitigation project according to the approved plan and schedule.
Appendix A - Page 4
Electronic Filing - Received, Clerk's Office, April 9, 2008
v.
MlYlicipal DlldEducatiQnal Builditl& Energy CO
use11'atiog&EnergyEffic1ellcy
Proiects
A.
Within one huudred thirty five (135) days after entry oftbe Consent Decree$
DMG shall submit a plan to Plaintiff,; .for review and approval fOl'the completion ofthe
Municipal nnd Educational Building Energy Conservation & Energy Efticiency Projects.
as deb,<:ribec1 herein. DMG shall spend no less than $1.0 million Project Dollars for the
pm'chaseand installation ofenvironmentally beneficial energy technologies fur
Ulunicipal
and public educational buildings U1 the Metro
Ea~t
area or the City ofSt.
Louis.
B.
Tile proposed plml shflll satisfy the following criteria;
1.
Desclibe how the work or project to be pelfonued is consistent with
requirements
ofSection V. A.. above.
2.
Include a gellel"al
scbedule nll.d
budget (for $1.0 million) for c.ompletioll of
the projects.
3.
Describe generally the expected ellvironmental benefit for the project.
C.
Petfol1mmce - Upon appl'Oval ofplan by the Plaintiffs
t
DMG shall complete the
mitigntioll project according to the approved plan and schedule. but 110 later than
December 3J
~
2007.
Appendix A - Page 5
KMP:07110065:psj
of
f
. "
'\
Electronic Filing - Received, Clerk's Office, April 9, 2008
STATE OF ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY
DIVISION OF AIR POLLUTION CONTROL
P. O. BOX 19506
SPRINGFIELD,ILUNOIS 62794-9506
STANDARD CONDITIONS FOR CONSTRUCTION/DEVELOPMENT PERMITS
ISSUED BY THE ILLINOIS ENVIRONlVIENTAL PROTECTION 'AGE'NCY
July 1, 1985
The Illinois Environmental Protection Act (Illinois Revised Statutes, Chapter
111-1/2,
Section 1039) authorizes the
Environmental Protection Agency to impose conditions on permits which it issues.
The following conditions are applicable unless susperseded by special condition(s).
1. Unless this permit has been extended or it has been voided by a newly issued permit, this permit will expire one
year from the date of issuance, unless a continuous program of construction or development on this project has
started by such time.
2. The construction or development covered by this permit shall be done in compliance with applicable provisions of
the Illinois Environmental Protection Act and Regulations adopted by the Illinois Pollution Control Board.
3. There shall be no deviations from the approved plans and specifications nnless a written request for modification,
along with plans and specifications as required, shall have been submitted to the Agency and a supplemental
written permit issued.
4. The permittee shall allow any duly authorized agent of the Agency upon the presentation of credentials, at
reasonable times;
a. to enter the permittee's property where actual or potential effluent, emission or noise sources are located or
where any activity is to be conducted pursuant to this permit,
b. to have access to and to copy any records required to be kept under the terms and conditions of this permit,
c. to inspect, including during any hOUTS of operation of equipment constructed or operated under this permit,
such equipment and any equipment required to be kept, used, operated, calibrated and maintained tinder this
permit,
d. to obtain and remove samples of any discharge or emissions of pollutants, and
e. to enter and utilize any photographic, recording, testing, monitoring or other equipment for the purpose of
preserving, testing, monitoring, or recording any activity, discharge, or emission authorized by this permit.
5. The issuance of this permit:
a.
shall not be considered as in any manner affecting the title of the premises upon which the permitted
faciIi ties are to be located,
b.
does not release the permittee from any liability for damage to person or property caused by or resulting from
the construction, maintenance, or operation of the proposed facilities,
c.
does not release the permittee from compliance with other applicable statutes and regulations of the United
States, of the State of Illinois, or with applicable local laws, ordinances arid regulations,
Printed on Recycled Paper
090-005
d. does not take into consideration or attest to the structural stability of any units or parts of the project, and
IL 532-0226
APe 166 Rev. 5/99
Electronic Filing - Received, Clerk's Office, April 9, 2008
e. in no manner implies or suggests that the Agency (or its officers, agents or employees) assumes any liability,
directly or indirectly, for any IOB8 due to damage, installation, maintenance, or operation of the proposed
equipment or facility.
6. a. Unless a joint construction/operation permit has been issued, a permit for operation shall be obtained from
the Agency before the equipment covered by this permit is placed into operation.
b. For purposes of shakedown and testing, unless otherwise specified by a special permit condition, the equip-
ment covered under this permit may be operated for a period not to exceed thirty (30) days.
7. The Agencymay file a complaint with the Board for modification, suspension or revocation of a permit:
a. upon discovery that the permit application contained misrepresentations, misinformation or false statements
or that all relevant facts were not disclosed, or
b. upon finding that any standard or special conditions have been violated, or
c. upon any violations of the Environmental Protection Act or any regulation effective thereunder as a result of
the construction or development authorized by this permit.
Electronic Filing - Received, Clerk's Office, April 9, 2008
DIRECTORY
ENV.IRONMENTAL PROTECTION AGENCY
" BUREAU OF'AIR
lIVINGiTOi-f
62234
Illinois EPA
Region 1
Bureau of
air~
FOS
9511 West Harrison
Des Plaines, Illinois. 60016
847/294-4000
III i no; s Envi ro'nmenta1. Profecti on
.Ag~ncy
Division of Air Pollution Control
,Permit Section
1021 N.'Grand AveE.
P:~O~B~X-
19506 :' '
_.
.
.Springfie1d, Illinois 62794-9506
Illinois EPA
Region 2
5415 North University
Peoria" Illio015 61614..
309/693-5463 .
Iiliilois EI'A
:R~gion
3
2009
Mall Street, .
Collinsv~lle,
Illinois
618/346-5120
For assistance in preparing a permit
application contact ,the Permit
Section,
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Electronic Filing - Received, Clerk's Office, April 9, 2008
Exhibit 2
Redlined Construction
Permit
Illustrating Those Portions of the Permit
That Dynegy Requests Be Stayed
Electronic Filing - Received, Clerk's Office, April 9, 2008
EXHIBIT 2
217/782-2113
CONSTRUCTION PERMIT
PERMITTEE
Dynegy Midwest Generation, Inc.
Attn: Rick Diericx
2828 North Monroe Street
Decatur, Illinois 62526
Baldwin Road, Baldwin, Randolph
I . 0 .
No.:
12 5 8 04 AAB
Date Received:
November 30, 2007
and Sorbent Injection Systems for Unit 3
Application No.:
07110065
Applicant's Designation:
Subject:
Baghouse, Scrubber
Date Issued:
March 3, 2008
Location:
Baldwin Energy Complex, 10901
County
Permit is hereby granted to the above-designated Permittee to CONSTRUCT
equipment consisting of a baghouse, scrubber, and sorbent injection system
for the Unit 3 Boiler and associated installation of booster fans, as
described in the above referenced application. This Permit is subject to
standard conditions attached hereto and the following special condition(s):
1.1
Introduction
a.
This Permit authorizes construction of a baghouse system
(Baghouses A and B), scrubber system (Scrubbers A and B), and
sorbent injection system to supplement the existing emission
control systems on the existing Unit 3 boiler. The new baghouse
system, scrubber system, and sorbent injection system would
further process the flue gas from this existing coal-fired
boiler, which is equipped with an electrostatic precipitator
(ESP). This permit also authorizes installation of booster fans
to compensate for the additional pressure drop from these new
control systems.
b.
i.
This permit is issued based on this project being an
emissions control project, whose purpose and effect will be
to reduce emissions of sulfur dioxide (S02), particulate
matter (PM), and mercury from the existing boiler and which
will not increase emissions of other PSD pollutants.
Pre cor j.
i
n 9
±y,-t:-f:
~::.~
p
~~
rrn i -t--{..:te-e-s-.--ftET1::..-ttEi4r-E.-::...s-s--a-pf...+±-::i::-eafr±.e
requirements
for
CFFl~_[;3io:;-,3
of
R"i.~:rogen
on::"des
(1;0*),
a3 trle
euT-E"*-">..frt-·-fJ-r~t:-......aE7e-s---fT€rt.·
; L e
1
u
de --.aTTy.....
.efTaFrge-s-. t C G-e-rrtrE7±
m~::a.Jurc.J
tor
';:70*
era:i.. ssj.CflS.
ii.
This permit is issued based on the receiving, storage and
handling of limestone and activated carbon for the new
control systems each qualifying as insignificant
activities, with annual emissions of PM in the absence of
control equipment that would be no more than 0.44 tons, so
that these activities need not be addressed by this permit.
This does not affect the Permittee's obligation to comply
with all applicable requirements that apply to the
receiving, storage and handling of these materials.
Electronic Filing - Received, Clerk's Office, April 9, 2008
Page 2
c.
EXHIBIT 2
This permit does not authorize any modifications to the existing
boiler or generating unit, which would increase their capacity or
potential emissions.
d.
This permit does not affect the terms and conditions of the
existing permits for the boiler or generating unit.
Note: These existing permits do not necessarily provide a
comprehensive list of the emission standards and other regulatory
requirements that currently apply to the Unit 3 boiler.
e.
This permit does not affect requirements for the affected boiler
established by the Consent Decree in
United States of America and
the State of Illinois, American Bottom Conservancy, Health and
Environmental Justice-St. Louis, Inc., Illinois Stewardship
Alliance, and Prairie Rivers Network, v. Illinois Power Company
and Dynegy Midwest Generation Inc.,
Civil Action No. 99-833-MJR,
U.S. District Court, Southern District of Illinois (Decree),
which is incorporated by reference into this permit.
(Refer to
Attachment 1.)
1.2
Applicability Provisions
a.
The "affected boiler
u
for the purpose of these unit-specific
conditions is the existing Unit 3 boiler after the initial
startup of the new emissions control systems, as described in
Condition 1.1.
b.
For purposes of certain conditions related to the Decree, the
affected" boiler is also part of a "Unit
U
as defined by Paragraph
50 of the Decree.
1.3
Applicable Emission Standards and Limits for the Affected Boiler
a.
The affected boiler shall comply with applicable emission
standards under Title 35, Subtitle B, Chapter I, Subchapter c of
the Illinois Administrative Code.
1.4
Future Applicable Emission Standards and Limits
a.
The Permittee shall comply \iith applicable emission standards and
~reme:-lts'
rei ated to mer:.::mry en:iscions fC:7r--t+te
affcE-~d
bciler
pursuant to 35 lAC Part 225, Subpart B,
by
the applicable dates
specified by these ru
l
c3.
b.
The S02 emission rate of affected boiler shall be no greater than
the limit specified in Paragraph 66 of the Decree, i.e., 0.100
Ib/mmBtu, 30-day rolling average, by the date specified in
Paragraph 66, i.e., no later than December 31, 2010. Compliance
with this limit shall be determined in accordance with the
provisions in Paragraphs 4 and 82 of the Decree.
Note: The S02 emission rate for the affected boiler pursuant to
the Decree, when it takes effect, will be more stringent than the
current applicable site specific federal standard of 6.0
Ib/mmBtu.
[Refer to 40 CFR 52.720 (c) (71), which incorporates by
Electronic Filing - Received, Clerk's Office, April 9, 2008
Page 3
EXHIBIT 2
reference the S02 emission limits within Paragraph 1 of Illinois
Pollution Control Board Final Order PCB 79-7, which was adopted
September 8, 1983.J
c.
The PM emission rate of the affected boiler shall be no greater
than the limit specified in Paragraph 85 of the Decree, i.e.,
0.015 lb/mmBtu, by the date specified in Paragraph 85, i.e., no
later than December 31, 2010. Compliance with this limit shall
be determined in accordance with the provisions in Paragraphs 90
and 97 of the Decree.
Note: The PM emission rate for the affected boiler pursuant to
the Decree, when it takes effect, will be more stringent than the
current applicable state rule limit of 0.1 lb/mmBtu pursuant to
35 lAC 212.203(0.).
1.5
Nonapplicability Provisions
None
1.6
Work Practices and Operational Requirements for PM and S02 Control
Devices
a.
i.
The Permittee shall operate and maintain the baghouse
system authorized by this permit for the affected boiler in
accordance with Paragraphs 83, 84 and 87 of the Decree.
11.
The Permittee shal.l operate and maintain the baghollse
s-y-s-h~r--t.
he a f fee
t '':
d b
0 i
1 e r
~::rr--a-eeErrda
nee
I; li-t.,.fi.-a--.w-r-±-t-4:-f.':ft
OpeJ"at.:Lon and P1a:i.ntcnar:ce [I.an for PH
C~)nt:;:.·oJ.
ma:i..nta:i..ned
b~i
the Permittee pursuant to Condition 1.9 2 (hi (i)
(P.) •
b.
i.
Effective no later that December 31, 2010, the Permittee
shall operate and maintain the scrubber authorized by this
permit for the affected boiler in accordance with Paragraph
69 of the Decree.
ii.
Effective no later than December 31, 2010, the Permittee
shall not operate the affected boiler and Unit 3 unless the
requirements of Paragraph 66 of the Decree with respect to
addition of a flue gas desulfurization system (such as the
scrubber authorized by this permit) or an equivalent S02
control technology to the affected boiler have been
fulfilled.
lJl. The Permittee shall operate and maintain the additional
SO~
ee-rTt-rol r3y.:::toffi-Or:
the affccted-
bo~
leI'"
+Ft- Cl3cordance
",:J:..t:.fi-.-a
'voJr:i.. ttcn
Opcrat:.:i.or:
and
~(i::::i.ntcn:::;~cc
PIan
for SO;& C:cr:t:.rc)J
maintained by the Permittee pursuant to Condition 1.9
-2-+~"'-)--+i-i--i:-+·+A-)---;··
Electronic Filing - Received, Clerk's Office, April 9, 2008
Page 4
EXHIBIT 2
1.7
Testing Requirements
a.
i.
The Permittee shall have testing conducted to measure the
PM emissions from the affected boiler on a periodic basis
consistent with the requirements of Paragraphs 89 and 119
of the Decree with respect to the timing of PM emission
tests.
ii.
The Permittee shall also have testing conducted to measure
the PM emissions from the affected boiler within 90 days
following receipt of a request by the Illinois EPA for such
measurements or such later date set by the Illinois EPA.
b.
i.
These measurements shall be performed in the maximum
operating range of the affected boiler and otherwise under
representative operating conditions.
ii.
The methods and procedures used for measurements to
determine compliance with the applicable PM emission
standards and limitations shall be in accordance with
Paragraph 90 of the Decree.
c.
Except for minor deviations in test methods, as defined by 35 lAC
283.130, emission testing shall be conducted in accordance with a
test plan prepared by the testing service or the Permittee (which
shall be submitted to the Illinois EPA for review at least 60
days prior to the actual date of testing) and the conditions, if
any, imposed by the Illinois EPA as part of its review and
approval of the test plan, pursuant to 35 lAC 283.220 and
283.230. Notwithstanding the above, a test plan need not be
submitted to the Illinois EPA if emissions testing is conducted
in accordance with the procedures used for previous testing
accepted by the Illinois EPA or the previous test plan submitted
to and approved by the Illinois EPA, provided, however, that the
Permittee's notification for testing, as required below, contains
the information specified by 35 lAC 283.220(d) (1) (A),
(8)
and
(C) .
d.
The Permittee shall notify the Illinois EPA prior to conducting
PM emission testing to enable the Illinois EPA to observe
testing. Notification for the expected test date shall be
submitted a minimum of 30 days prior to the expected date of
testing. Notification of the actual date and expected time of
testing shall be submitted a minimum of 5 working days prior to
the actual test date. The Illinois EPA may on a case-by-case
basis accept shorter advance notice if it would not interfere
with the Illinois EPA's ability to observe testing.
e.
The Permittee shall submit the Final Report(s) for this PM
emission testing to the Illinois EPA within 45 days of completion
of testing, which report(s) shall include the following
information:
Electronic Filing - Received, Clerk's Office, April 9, 2008
Page 5
i.
ii.
iii.
EXHIBIT 2
The name and identification of the affected unit and the
results of the tests.
The name of the company that performed the tests.
The name of any relevant observers present including the
testing company's representatives, any Illinois EPA or
USEPA representatives, and the representatives of the
Permittee.
iv.
Description of test method(s), including description of
sampling points, sampling train, analysis equipment, and
test schedule, including a description of any minor
deviations from the test plan, as provided by
35
lAC
283.230(a) .
v.
Detailed description of operating conditions during
testing,
includ~ng:
l~.
Operating info:r-Rwtior: for
the
affected beiler,
.
c. ,
firing rate of the boiler (mmBt:J/ho:Jr) 3:nd
composition of fuel ao burned (ash, sulfur aEd heat
content)
.
B.
Combustion system information, l.e.,
sett~ngs
for
ffi-B-t-r:-:ii::r1:1-t-±ei.:r----o-£-r7:F--im-a-ry-a-f¥cl-s-e
eon
d
a
ry--~::-em-b-B:-&t":J:"E.~'t---a-±-rT
settings for
O~
concentration in the boiler, 3nd
-l-e¥c Iso
f ----GG--i-f1--t.fte--f-l-H-e-<:trrs,---:i-f-..--ti-e-t-erTFr±Hee---lry.--aT=ry
diagnostic measurcments.
C.
Control equipment info
r
m3tion, : .e., equipment
~~r
and
opcr-a~
param(:8?rs
d:-u-f..:i:.R.g-
testing,
including any usc of the flue gas conditicnjng
~"ffl-;-
D.
..J.:Jcjad
durinq
·~:cst.inq
(me~Ja'j,Jat.~:
output.).
vii.
Data and calculations, including copies of all raw data
sheets and records of laboratory analyses, sample
calculations, and data on equipment calibration.
v-rli~F.f:re--&9o;-a-rrd---NG*
cmis::.~ions
(hcurly avcrag:.::c),
opacity---f.1a-'E-a
(6 minute averages), and O
2
or
CO~
concentrations (hourly
aver3gcs) mcasured during tcsting.
H>f-.
The emi s-s-:i:-en-s--e-f-..-eefi€te
E.
s af7-l-e-PI'1 du r
i
Eg--t-e
0
t 1E9 , e
~
t be r
-D:-5-
meas:::rcd by :JSEPI\ I'4cthod 202 (40 CFR Part 51, Appendi}[ I'4)
or other cstablishe-Ei teot method approved by the =:l'inoi-s
.CPl'.
dn:F.:;..
ng t.esLinq for
PH
or based on ot:.hc:c rcpresentat:>lc
cmiss~
ons testing, 'dith support1 ng dat3 and ocp' an3tion.
1.8
Monitoring Requirements
a.
The Permittee shall operate and maintain continuous monitoring
equipment to measure the following operating parameters of the
baghouse system:
Electronic Filing - Received, Clerk's Office, April 9, 2008
Page 6
b.
i.
ii.
i.
EXHIBIT 2
The temperature of the flue gas at the inlet of the system
(hourly average) .
The pressure drop across the system (hourly average) .
Beg~nning
no :ater theE the 2pplicuble dates
opecif~ed
by
35 .{Z\C
P~22
5, tho PorRl=-tt-ee-shall comp:y yQ"ith al'
applicable requirements of 35 lAC Part 225, related to
ff\.-E7fT-itoring, including mOLi tOl':"-i ng of morcl..:.ry emisfJ
i
eno
..f..r-ern
the aff=eted boiler and operational monitoring for the
oOTbent injection system.
-i--h----l:...f...-t...f-te--s-o-
r
t~
(.:..fl4::.-.i-n-j-t..- C
t .:.
-t:.+rr---s-y-s-t: ern c a
I~--be-a·ftj-u.-'34:.,.ea~A:-E.::-lT-·b-y
the personnel in the control room, the Permittee ohal'
±H-&'t:·a±l-;--~Jf7E.>.£-a-E€T.....-.aTtEi-Ifl:tt±-nt:ca-iTt-±n-&t-:-:J:"1±HK...::..rrt-a-t
i
0 Ir........f-er
measuring the rate of sorbent injection for the affected
boiler and the
operat~ona'
status of the system.
1.9 1 RecordJ:eeping Requiremento for the Coal Supply for the Affected Boiler
.a..,
..-.....
...__.,,[+tt£ci-rHj-..
-tc,fi(:;.-[:7G-E-i-e4-b
0
f
0
r-e--£·e€i...+i.=-<:t~:>.f~lli-H3-""·i-s-
r e (rJ:-i.ref::'i---p-1::I£5.1::h±H.{:,........
t.f:'r--3-§.
lAC Part 225, the Permittee shall keep records of the mercury and
he3t content of the c031 supp'y to the affected boiler,
\;~th
f.3-Uf.:.'im-r-t..i.H.g-.-t+a-tca-
...
..
.f-&r-..
+r.h:.,.:>........
a-&&f:'1ei-at:~4·5iffilp±
..i-r+g--aHfr-a-rta-±-yB'±-&
methodology, so as to be able to have representative data for the
ee-a.±-....
5 ..
H'f.7f-:...l-y-te-.:t.,.fTe--b-E:.±-J:..E:T-·.f-E7I'--pc~o
d s ..
+j.tTr-i"rn:J-wh..
i-t~
..
h-"-fITe-.r-eB-r-y
emission data is collected for the boiler. The analysis sf the
C02' for mercury content shal' be conducted uDing
appropr~atc
AS4:!.M-
~lethods
::1::'>
[3pccificd in 35 l1\C Part
225.
b.
If the
Perm~~ttee
ele::-;ts to compl.y T,Ji.th a limit for merc:Jry
€miofJ~
OR-f3 in 35 lAC F:::rt 225 t.f:.at is expTcE:.wed =-n tCTr:w of a
cor~t
::':-01
e
f f::
c:;.. ency, the
r::;rR~it:.tee
::.h.a::.. l comply .,?:it:.h all
app'icable
reqH~rements
of 35 IDC Part 225 related to
sampl~ng
aH-e-.......;:rrra
'
yE3is of .....:t+te--coai supr:ly t'3 -::.hc--a..ffectcd :ooi:er for
~-t--5
mercury centent beg=-nning no later than the applicable date
f3-pf..-..e:i fie d t"7--3-5- I
l\C
P::: r
t 2 2
5.-
1.9-2 Records for Control Devices and Control Equipment
The Permittee shall maintain the following records for the new
baghouse, scrubber, and sorbent injection system on the affected
boiler:
a.
i.
Records for the Baghouse System
A.
Records for the operation of the baghouse system
that, at a minimum:
(1) Identify the trigger for bag
cleaning, e.g., manual, timer, or pressure drop; (2)
Identify each period when the Unit was in operation
and the baghouse system was not being operated or was
not operating effectively; (3) Identify each period
Electronic Filing - Received, Clerk's Office, April 9, 2008
Page 7
EXHIBIT 2
when any baghouse compartment(s) have been taken out
of regular service, with the identity of the
module(s) and explanation; and (4; Address the
implementation of the operating procedures re'3ted to
4::-~e-S:-fJh
0
u
Des
y
[J t ern t..J::rn..t.. arc r e
q
1
.l-:i-Fef:1.......t-e--e.e--e-:t:'--a-r-E.'.
othcHlLJe implemented
P~lr.-sl:iJnt
to Conditio:;}
J.6(a).
B.
Records for maintenance and repair for the baghouse
system that, at a minimum:
(1) List the activities
performed, with date and description, and (2)
Addre~G
t:-f.:J.-e---H-tui-n-t-e-Frt.=t-fl.-(:;.e---a-FtEl.....
-:Ff.::p-a-3:-r :::
c
t i
v
i
."E--k[1 r-eh4:-E.:>.fr.....t.,.e---t-fi.e.
baghouse system that are required to be or arc
-e4:+rerwise impl
eH~ent:-cd
pursuant to ("":ondition
l-...-€i+a-)-.
ii.
Records for the Scrubber System
A.
Records for the operation of the scrubber system
that, at a minimum:
(1)
Identify each period when
the affected Unit was in operation and associated
scrubber system was not being operated or was not
operating effectively, and (2) Address the
implement3t~on
of the cperuting
proced~res
reluted to
*:Fte---G-f.7I'Bl'the:r-s-y-st-f~-.h:-a-i::---a-r-e-·-:r-eq-u-i-r-E:4··-4:ce---e.e.·--t,.·r-·-a··I:'e
o::heni'ise .i.mp2.emcnted
pULJ~_:aLt
to Conji.tion
1..6 (b) .
B.
Records for maintenance and repair for the scrubber
system that, at a minimum:
(1) List the activities
performed, with date and description, and ;2) Address
t-:B-e--ma-i~~
a n
C
2-Cttl.fr--r.eyJ-a-i-r---a-c.::t.:l.::-i-v-icH-ef.3---±'fA..a4:-f::-d......4:-B-tcfl.{::
Gcrueber system that arc required to be or are
ether-,lise irnplcrnented pUrSUGEt t.o Go-REH:4::-i-e-f+-+.--6-(-h-t-.
iii. Records for the Sorbent Injection System
n.
Records for the eperation of the sorbcnt
~njcct~cn
S.y-S-t-eRt-.-#+r-=t-t,----a-t---fR-H-ri-f!ttHR-,---:i:.-8:e-rTt:-H-y-.--t-h-e----£rt_7-±:..f:7eftt---t.f't-a-t:---:i-&
being used, the Gorbent injection rate or setting for
£te-r-J9.f=ttt--:i-R-j-et-,-t-:i:...e-B r c t-€'(--eaeh----pe-:r.:.±-fx+--E7.f---t-:Htte---wf't.eH----t;..B-E:'-
affected bo.::"J..c:c
\lDD
.in
opc_r:::~.:i.on
',v.it.heLl"/::'
tLe .:;:/stcrn
being opcT3ted Hith (;1{planJ:t
iOB.
B.
Records for the maintenance and repair of the sorbent
injection system that, at a minimum, list the
activities performed, with date and description.
b.
OpeI'Dtion and.
t~i.::.intcnaccc
r:~an
for
p~q
Control
i.
EcgiEning no 'ater then December 31, 2910, the
fo'lo'd~ng
-'£".0co F€:£:;-.-I''-E::-±-at-E:'-d:.....
-t-e-.....
t-h-e--p-r-e-eeffi:H'eB---a-f't'=.i-.-p-r-a-e4::.*'-e-&--:fe-r-..-t.fl-t':;
bagho:l!3e sy:Jtem co:,--;trol::.icg
Pt1
e::TI::'.E33ior.:; frcrn the
i3f=e:.~::::ed
f:.:)(:ri-:l.-t::-r-+-
l\.
2\ ',.ritter Opcrat:i.. c;n and
~qa.:i.ct::cr:·.::.nce
l")lac fo:c
;"'I'~
Control, '",hich sh,:.ll be ]:.ept up to
datc,~
-i.d-t'::-nt..i
..f-i-e.s....._.t;..J::t-E."--...
..E.'i.!-3.e.e.i-.jO.i.'":;-.
..
··-of)-e·r·-a·=t:··i--Ft-g-·····p·r·€·e·e(~~·1:1:·I:·t:;-E.,.·······;~Hl-f5
mainteLance practices (including procedures and
Electronic Filing - Received, Clerk's Office, April 9, 2008
Page 8
EXHIBIT 2
practices specifically related to startups and
HtaH·tHi-E..+i:-<:'H+';-t:rre-a-ltti-e-wR--H+S~>.f1-€--s-)---f:':-tl·:r:·
r
c:.
E
-:..,..l-y-bc->4-FHj
implemented by the Permittee for thc baghouss system
to ::JCttiwfy
Conj~tion
1.6(c)
(ii).
B-;....----
j\
C
G0H+pa-H-yi-rn.:t-.4:-fi
i D
r c :.;
0
.y.fr,--H-re---Pe~.:.mi4;-t-ee--.:.:;.f'l:
a
11.
mainV:in a demonstrotion
~)hO'idng
thc:t the abo-Je
Gf.7e~B---T
...
H1:€l-Ma-:i-ft.t.e.Fz.a..rre.e
PIa
n
for
p~g
c:
0 r:
t. r
0 1
fulfi.::.. ls t.te,; rec:{u.:i.. rcmcnts of Cond.:;..
·~:::.ons
1.((a) (::) and
-H:4+-.-
ii.
C:op~es
or t+te--:r::.e:.;ord,:::;
~''''cquired
by Cor:dit.ion 1.9 2 (b) (i)
shall be submitted to the Illinois EPA upon request.
i
~
i .
Z\eeE7Ht}..:rarty-i-fi 9 t h Co: r e cord s r e qu
i
~Bfi6:.i..€-
i () n
S~-+h+-t-i-+-T
a file containing a cspy af all correspondence and other
",ritten mat.eElJ: I eKchanged Hith UE'EPP. that 'Addresse3 the
f.7:F(~~-E..-""fr-<:"'.>..ft4--p
r~:
:.;
t
-i-E.:;.e-s-.-t:-fiat........-ffH:t&E-be--i-ffi}7.±..-f::menh'-'f.:1-F+.:tr-frti-a-n.t.
to Paragraphs 83, 84 and 87 of the Pecrce.
This file shaJI
be ret a
:i."y.I£-e--...f.€r£--a-t- 1
e
~
s t. t h r e c.. yea r-s......-a-f-t:-e-r-...:t+:e-.pe-rTft!_ttTE."'f+i::
c.h.ut:.dc"JC c:f
~:!"Je
affe::.. ted
Un::.. t.
e.
Opera-:ioL J:nd I'1c:intencnce PI an for
~=O:.).
Con-:rol
.i--;----Bc g i -f+rH-Ftg--YTfH ate r
t hcr: D
c..~~~.G+8--,---t-h-e--..f-&±-±-ew:i+J:fJ
records related to the procedures and practices for the
&e-I:.:.ttBb e r
s y s t '.:..m eo
fl t
r 01 1
~.......£.G&--enri-s-&i-f'Yh&-...f..J::.eftt--t:h:e-a-f.
fee
't=-f:.':'{:1
boi
.1ar:
1'1.
p~
'dritteE Operation and Eaintenance PI an for
~X);;,
C-Qft€-.:r:ce-±,- ...
wh-i-eh---s-h-a-l-.l:---b-e---+;:.ep t up
t-e--.-4a-i::-e-,--i::.f-ra-t:
identificw the specific operating procedures and
Hti-.."'-:i-R-t-f::..
n ::. n e-e-r..4-r.a c
t-i-e
c
:.-~
-+:b:-YH:;.-±ttEl:.i-mj'.-.t.'rI:.:.o+-.."'f.':f.:1-tt:F€-G-
...aft<:l
practices specifically related to startups and
mclfenetion/bre3]:dmm
in'::'.~
denL))
c~J:c("ently
be~
ng
±fftpt-l-errtt.."Y1:t.:-(,*-e.y.-t....fte-.p-eflft-i-t+e
f
.7--h.:rr--.-4:::ne-.--S€.:r:.O'+.:i.J9.t:te.:r::......t6
sc:t::'.sfy Conditionw 1.6 (b) (l.::'.i)
.
£,-;---
r~c
,:'Y:'Jmpany
~ F~i-s-
r e
ee-FEl,-t.fK""---Pe-:r:.:r::-+i-t-t-E.:;.e......-si'J-a-i:-±
rn::.:i..nt3:i.n
c:
derr~onst-r::t::
.. on shc,,!::.. r:q
t_h~-:;t
'~~he
above
Operation and
~~aintenance
Plan for
20;;,
Control
.f-1±:l f i
11 s the r e q"c::.
i
r ernefl t. ::.s
0 f
G-erl4i+:i-0FtS--l--.-€-fb-) (l )-a.yrcJ:
f
~
~_
\
~
±i .-.-...
-----G0F-'t-:J:-e.&-&f--t:....fl-e.- r c
C-E7£-{:'i-s--~.:..(~rrri-red:--by--8~i-on&-·-1:-....9~.:;+-+i+
shall be
s~bmitted
to the Illincis EPA upon request.
iii.
Z\ceompJ:ny~
n9 the records reqe
~
red by
Cond~
t
i
en 1. 9 c-, (c) (i) ,
a--..
.f.i--l€'....-f_:;.EH'}t:-a-i-f1-i-n-g..
-a---e0f~
..y.-B-f-.--a.±-1-._.-E...""&r.:.£-e-s'P'f..:H+6.1.eFtEX
.:>..--a-nd--"6trTf::r
..
",ritter, ::-n,-::tcr.:i..a 2. e):chaLqed ',lith USEPl\: that :Jddrcs wc.,) tr\c
r:::.re-eeEl1:J:.E-E::-&---ttr-rt:i--p-r-a:e-t-i..
ee-s-...t..f-+Et--t-..
.-ffi\::tt.:;-€-....-Bt:---iH11.:r±€'Fftt-"'Y't-t:ee:--pl::H'''E.:;-1:h:H'r.t.
te Paragraph 69 of the Decree. This file shall be retained
for at I ea:3t three years cftcr the pcrmaEent shutdmJE of
4:-ftt'-.-rtHe€'tct"f:i--8-rri+;-
d.
Specific Records for the Sorbent Injection System
Electronic Filing - Received, Clerk's Office, April 9, 2008
Page 9
EXHIBIT 2
D:Jr:i.ng the peri.cd before
rccord:eeep:~ng
1.s req:Jired for '-.w::ge
0:::
t:H.:r:f.:.e-en t
pur
S"'cl a L t
t-e-....
~
.....fAG Par t 2-2-§.,---4: h
c
u.s
:1
go
C -0 f
f3
0
r b 0-ftt.--+±-t7S-+
and average ssrbent injection rate (lbs/operating hour), on a
montE.' y
basis.
any.
1.9-3 Other Recordkeeping Requirements
a.
Reccrds for L::pses in the Implementation of the Operatjcn and
Na-.i-n-:t-eFt-ttf-Tee--P-l-a n for
r'
~
g Ge-r+t..r ..s±
Beginning no later than December 31, 2010, the Permittee shall
maint.:::in ::hc
fo2.1mT~
ng recerd3, as relevJ:nt, fer aI' : ap.]es
,
.i-...
··-e·-;·T·-·T)-c··r~
..
i.e-Ei.s..
..
.-e-r:....
.-i..Ftt..:;.-i-f*'Tl-t-s-.
..-wf'l-f.:..---n--.-al""P"H.e.ab-l-e---r_tt"'4::-:i-e-B-(
.s)
'vv
e
r~e--B'&E'
t:.:::Jcen for the b,-:gho:Jse system that
~:ere
specified .in ::he
c~
..:rrent
Gf.7i.c:::--:r-a-t.,..i-f..'H't---r.:H¥j.....-fv1-a-i-n-t, C fl:l n--(:*..""----P-1-a-fr-....
f~M
c.:e-r+E-re-l,--a-S--I~t£-t"'i:7d-r-e-Ei
pursu::nL1::.o COLdit:i.. or: ;.. 9 ;:. (b) (:i.)
(Px)
:
i.
The dcte of the lapse.
H ...
--~d-<::f-*-:;r±..pt.
i
3B 0
f~:.:
'ap
(3 C ,
in€..."-:l-~he
':"lpe
c.i-.f-i--c-d
action (s) that Here flot t::l:en; other u..:::tions or mi
t::'.g::~_ion
Hte-a-&tl-£--e&-4:-h z:: t
',ve-£--(:;-~r-;--i4
........a"H.YT--a-fld the I:;" Jee-.1-y
consequences of the lapse as related to emissions,
i
~
i.
The time and n:eans by 'dhich the lapse
'da.]
ident~
fied.
±.'V-..-.
..._._......+.f.-..
..£-€-l:.e..viH-rt.T..-..:t-ctH..::--l.-eR-E;JBr--&f--t
....:irn-e--a-f-t:-€-r.--. ..
t:-I'l.-e.--l-ap
s
e--w-r..'l-S
idc:nt::.. ficd D.nd before specified act.:.on(3) ',i'ere tc±;(en or
Wf":;-r'-E.>...
.-n-e-l.-F..rfHJe-r--a-r2frH..
2a-b-±e--aftEl:--a.f+......e ...
~l-a-Bi.'i.:t:·i--efl-w-fi.y···
..
t:-.f+-i-o-....:t.±Ht-(:;
~j{i:-:;
..:3
nClt 3h.ort:e:c,:r:cludj.nq.:: d:i.s:::uss:i..c:n of
tr~ei::.:i
.. m:i.nq of
c-:-tny
m~
tigz::tioB
mC3.JUrc.J
that ,wre
t,-:J::.cn.
-v,.....-...--....
H-..-:r.:.e-i.-€'-+rarrt.:..,....t
ft
~)
--e+.3-t:-3: rna
ted
+.:
eta' 4u-:r+...rt-i-e-R-&f---t-h-e ::..
a
p:= e.,..
i.e., the total length of tjrne that the atfested boiler ran
w-i.t::--Fte-ttt---t.+re----s-r:7ee:ifie d act i
0
Fr+.c:~e-~-t--a-k-en.
...
VL.
A discussion of the probable sause of the lapse and any
prevcBtat
~
ve measures ta]::.efl.
.v-i..
i-.......-.......;.;.......
d±-G-<::-U-O := ion T,
1ft
c: t-f:t..e.r.--t he a pp1 i-ea-t.:r± e P£
q
cm
i
.s s
i ')H
1
i ill : t,----a--o-
addressed by Condition 1.J(a) or 1.4 (c), may have been
-"f-i-t"r±.-a-t-:-e€.+,-E:.'-i.4:.fie..
:r-,-oo-F--.i-n+j--&F-a+j-...
-a
yo
c::.'u
±-t.:-....
-e-f--t...{-=t€--±a p s e ,
"'-i#!
supporting explanation.
b.
:Re8ords
:ReL~ted
to
~ger8ury
Em:;"ssions
-i....;-.-..
----!i.:.I1€--..:P-<::-rffi-i-t-t·:-e-e·---f..Tfrr..rH---e-emp--l--y·--w-i-t-h-a-H--r3f1f~l-i--f.:;.ab-l-e
recordJceeping
req'-.1.~.remenL3
of 35
2:TE:
Part 225 relj::..ted to
-e-e-rr-t-r.o-l......
-e..f--HTe:J:'t'+.H:"-Y···-€ffi±-s-s--:i:-o-n...g--f-F-F~+H:"""'-i.±
..
:f+E:~··--OO±
1 c r ..;...
ii
Durin.q the period before the Permittee is
re~lired
to
con.d~ct
mOflitor:;"Gg for the mercury emi.ssions of the
-a-f...f.eete€i-·-e-e±-k~-f7tH'..g..u.a.n...t--t-:-&-
..:3...§ ...
""":.f:Af":--f:2.a--:Ft:-~,......:t:-he-··...p.e
..
rmi :f.:-.t-ee-
shall maintain records cf any emission data for mercury
ee-l-i:-ee-t:-e-d...-:f.o-r..-t-+1-e--.a4-
f (.:
c
t.
c d b ()
i
ler-:c-y.....-t-he--P€ rm
i.
t t.-e (.: ,
inc2.uding emissi.ons (micrograms per cubic meter, pounds per
Electronic Filing - Received, Clerk's Office, April 9, 2008
Page 10
EXHIBIT 2
hour, or pounds per milJion Btu) and control efficiency,
w±-i=-fl--±-6-{::-Ftt--l-f-i.E::-T.:'"
t i
0
r~
Cl-n-El:-+.:ie-t3"f=-r+t~-..t-i-eTI:--o-f-4-he
mode
0
f
operaticn af the boiler and sarbent injectisn system.
Records for Lapses
~n
the
Implementctt~on
of the Operation and
Beginning no later than December 31, 2010, the Permittee shall
Hta·i-frt:··a-.i:-n-·····t-fl-E:)......··f-B·±-1..(:'rw·i-r'l-fJ·--:J:~E:~d·s-,--r.:r5---r·e-±-E...."'-Vacr+t.,-fe-F--a-l-±---±Op--5-f::-s-,·
i.e., pcr::od.: or:nci:icnts ""hc;n appLi-::;ob1.:.-; a::::t:ion(s) li'ere not
taken ::or the ::cy:ubber syotem that ',}ere specified by the current
GtJe.FO-E-Wfl-,,;.=r.FtE'1--{-'4.a-H-rt:C L:::
r-Te'~"""""P±-etH
.....-f-e-r-SG;.!.--G€tfltf-F...tl.,--a-s--p-r€f.7a-rea
P\1LJ~.:.:::n:~
to Conjition 1..9 ;2 (c) (i)
(7\)
, :
11.
A description of the lapse, including the opecified
act: on
(0)
that
~,'Cre
not te-:;.]:eD; other actions or
fR~
t
~
g,-:;.t
~
on
Htt-:o-EH:H'--e-"..J---t..fl..a.t......iJere
t
a ]:en,
i f
0 n y ; 0 n
d 4-he--l-:i:-*e±y'
consequences of the lapse as related to emissions, if any.
i.if.
I.'r re.le7aet:, t.he .:Lenqt.h of t::i.rae afte:r.' the
l~'Jpse
',932
ident
~
fi ed Clnd before specified actlon
(0)
'dere taken or
Wf:..-"'L~-,.---tte--~~E7F)
1
~
3 ab 'eon d a
n-~J-±..a..H-a-t-i-e-n
'vih
y --t-h±-s--..
-t:--i-ffie
\ICS
not shorter, including.::: discussion of the timing of
-a-Ry--m-i:--~.:t
ion -- me
G ':'1U
yo
eDt1'1
a t-we--:t:-E...::........t-a-*eR-o
v.
If relevant, the estimated total duration of the lapse,
i.e., the total length of time tEat the affected boiler ran
W=i-ffi.e.B-t-4:+te-----G--f:7ef=-i:-f-i.e4.-.---aet:-i:Bft-(-s--1--b-E:'-i-R--Ej-t--a-k-en-.-
Vl.
A djscussion of the probable cause of the lapse and any
F:r~-e"ir-e-f-rt--a·t-i-"'.ff~Tteu'-fJ-tt-r-e·&---t:-a-h.::.c:·rr.·
-;,r :.. 1
lA
d::.[Jc;us::::OIJ
',vh~::'~:he:r.
the
appJ.::.cc:b.~e
20-2- crnis:J:i.on l:ircit of
Condition 1.4 (b) may have been violated, either
dur~ng
or
·a-5--a---·-·:J:t'--&1::t-±4:-----e+--t..fK.~T----w-i-t-{T--"3-1::l·p_r7€t-Ft.-i-f:t-g---e-I>{_p_±_art_at_i----Et·F!-.
:: •
~
C
1.
Reporting Requirements
Reporting of Deviations
For the affected boiler, the Permittee shall promptly notify the
I'linois EPA 0:: deviations from the requirements o£ this
perm~t
a-s-.-f_e-J:--l.ews--.-M--a-Ht-i--rri...:l'HUflT,--t--h-e-s.e-
.....n-e4:....i:-f..i.e.ett±€tH--G
sh
.:::.l--l--H~-f.7±-ttd:-€-·--tt
description of such deviaticns, including
~lhether
they occurred
d+J.-I:ci--f-l-'::.:r-·--s·t-a-:J:~E-tip--e-:J::.......ma-±-fttn·e-t-i-e-r:r--l·B-r-ea-*B:ewH-r---a-f-K....:L..a-·--Ei-i--S-c~:;-·&-i-e-rr·--e
..f-.-.-t..f+e-
pessible souss of suoh deviations, any corrective actions aed any
prevent at
~
ve measures
taJ:cn.
-i-.;.......-..
..--......-.-N.e-t:.-i..f.:i-t::-.o.tc:i:-t:,..r:r---..v.,..i-t
..h.i-rT.....
~~·4·
..
--h_e-tt-.r.:..s.-..-fE.'l-:r:--....,:J:--.__€i_e-+r-i-.a-t--i.E:H-l----...:f.f:-(:'ffi'r
requ:iremcnt:.:';
re:~.atcj
t.o
Pt1
errl~:
::'3sioLs
.j.. f
the dev:i.ation is
a·e€-o-r{tpaH-i·e{~:t--·-t:7y
....--t:.he...
..
-f,;:l·-i:-·l-u-E~e-·e--f--s-:i-z.c--e-:J::--··Ht6-:J:'t"--E...--:>.ffift!-~_ffi_e·rrt...s:.3---i:·H
the taghotlse system.
Electronic Filing - Received, Clerk's Office, April 9, 2008
Page 11
i
1.
EXHIBIT 2
~Jot.l
f:"c-:::t:"on voJith the scm:"
ann~;l.:::l
reports required
by
Condition 1.10 2(a) for deviations not addressed above,
in21uding deviations from other applicable requirements,
e. g., 'dork practice requirements, required operat
~
ng
rn-E7et:...:>.t:i+n:-e
s ,
r c
qui-R....::..e
rna
1
n t
e-rra-Ftee--p-r-r~:
-3 tice
s
,........-.aTtEt
recordkecping requirements.
The semi annual reports required by Csndition 1.10 2(a) shall
include the follovoJing information for the affected boiler related
-t:B---€k..~i-ati-errs-...f-F-6:ffi--i:1€"rffi±..t--Ff':::
qu ireRtC:>.ftt..e---€i-u
r
ing
t
l+e-q.:u-a~::.
r
.
A
listing of all instances of deviations that have been
repe-:F-t:t4--4-fl---W-f-H-i-ng
totf'.(2 T 11 ifte..i..f3 E
Pl~
a-s--p
r
0
v
1 dc d
try
Cc.;nd:i.t:.:L~)n
1.1.0 1(a)
(:i.. ;,
:i..:-lc::.uding ident::.fic:::t::.on of each
such
'",r~
tten notification or report.
For this purpose, the
¥e-r'frr-ittee
I:eed
no': res'clbmit copies
of~""'-fre
previo1::l-&
notifications or reports but may elect to supplement such
materia
l
.-
1.:.•
Detailed information, as required by Condition 1.10
1 (a) (ii), :or all other
dC"',,-~
ations
.
1.10-2
a.
Reporting Requirements - Periodic Reporting
The Permittee shall submit semi annual reports to the IIll.nois
.:i..
~;'hes:~:;:·er):::;:t:"t!3
shal]
:i.nc:;.'c.~.de
a summar}' of ::.nform:::.t::i.on
recorded during the reporting
per~od
pursuant to
Cond~tion
1.9 j
(a)
.
ii.
These reports shall include the information for the
a-:f.f".e-E....::ct-:t'"€i--Bt~·-re-l-a~-t:B-~'t5-"'JB-r-i-~---t:.
f'.C
-q~ce·r
specified by Condition 1.10
I(b).
±-~
i.
These reports 3ha'1 be subm'::'tted 'dith
~
n
30 days after the
eoo--e-f..-e-a-efi---ea±t-..n-aa-r-h-a-±...;f-;--..Fe-f--.-e*-a-ffip±e,-......:tl-re---r-epe-r-t-....:fe.,r'--4;,.f:=re
fjrst half, i.e., January through June, shall be submi.tted
hy,,-";:;'u-lT-·;~.fl...·
b.
'{'he Pc.rrn:i.. ttcc shall. :::c:rnpl'y' '..,,:L:::h
a:~.1
app.::..
:Lcablc
repClr~.::.r:q
requirements of 35 TAG Part 225 related to contro' of mercury
€ffi.--i-&f3-±-E:H-'i-5---f.-r-om---t--h-e---a f
fee t c d......f:7o..i-l-e'f'-;-
1.11 Authorization for Operation
The Permittee may operate the affected boiler with the new baghouse,
scrubber, and sorbent injection system under this construction permit
until such time as final action is taken to address these systems in
the CAAPP permit for the source provided that the Permittee SUbmits an
appropriate application for CAAPP permit, which incorporates new
requirements established by this permit within one year (365 days) of
beginning operations of the affected boiler with these systems.
Electronic Filing - Received, Clerk's Office, April 9, 2008
Page 12
EXHIBIT 2
If you have any questions concerning this permit, please contact Kunj Patel
or Christopher Romaine at 217/782-2113.
Edwin C. Bakowski,
P.E.
Acting Manager, Permit Section
Division of Air Pollution Control
ECB:CPR:KMP:psj
cc:
Region 3
Date Signed:
Electronic Filing - Received, Clerk's Office, April 9, 2008
EXHIBIT 2
Attachment 1:
Consent Decree:
United States of America and the State of Illinois, American Bottom
Conservancy, Health and Environmental Justice-St. Louis, Inc., Illinois
Stewardship Alliance, and Prairie Rivers Network, v. Illinois Power Company
and Dynegy Midwest Generation Inc.,
Civil Action No. 99-833-MJR, U.S.
District Court, Southern District of Illinois
1.
Order, Modifying the Consent Decree, entered August 9, 2006
2.
Original Consent Decree, entered May 27, 2005
KMP:
psj
Electronic Filing - Received, Clerk's Office, April 9, 2008
