Electronic
    Filing
    - Received,
    Clerk’s
    Office, February
    18, 2009
    BEFORE
    THE
    ILLINOIS
    POLLUTION
    CONTROL
    BOARD
    DYNEGY
    MIDWEST
    GENERATION,
    INC.,
    Petitioner,
    ILLINOIS
    ENVIRONMENTAL
    PROTECTION
    Agency,
    To:
    NOTICE
    OF FILING
    John
    Therriault,
    Assistant
    Clerk
    Illinois Pollution
    Control Board
    James
    R.
    Thompson
    Center
    Suite 11-500
    100
    West Randolph
    Chicago, Illinois
    60601
    Illinois
    Environmental
    Protection
    Agency
    Division
    of
    Legal
    Counsel
    1021 North
    Grand
    Avenue, East
    P.O.
    Box
    19276
    Springfield,
    Illinois
    62794-9276
    PLEASE
    TAKE
    NOTICE
    that we
    have today
    electronically
    filed
    with the
    Office of the
    Clerk of the
    Pollution
    Control
    Board MOTION
    FOR
    RECONSIDERATION,
    copies of which
    are
    herewith
    served upon
    y
    Dated:
    February
    18, 2009
    Kathleen C.
    Bassi
    Stephen J.
    Bonebrake
    SCHIFF HARDIN,
    LLP
    6600
    Sears
    Tower
    233
    South
    Wacker
    Drive
    Chicago,
    Illinois
    60606
    312-258-5500
    V.
    )
    )
    )
    )
    )
    PCB 09-48
    )
    Variance
    Air
    )
    )
    )

    Electronic
    Filing
    - Received,
    Clerk’s
    Office,
    February
    18,
    2009
    BEFORE
    THE
    ILLINOIS
    POLLUTION CONTROL
    BOARD
    DYNEGY
    MIDWEST
    GENERATION,
    INC.,
    )
    )
    Petitioner,
    )
    )
    v.
    )
    PCB
    09-048
    )
    Variance
    — Air
    ILLINOIS
    ENVIRONMENTAL
    )
    PROTECTION
    Agency,
    )
    )
    Respondent.
    )
    MOTION
    FOR
    RECONSIDERATION
    OF
    RECOMMENCING
    THE
    120-DAY
    PERIOD
    FOR
    THE
    BOARD’S
    DECISION
    NOW
    COMES
    Petitioner,
    DYNEGY
    MIDWEST
    GENERATION. [NC.
    (“DMG”).
    by
    and
    through
    its
    attorneys,
    SCHIFF
    HARD1N,
    LLP,
    pursuant
    to
    35
    Il1.Adm.Code
    §
    101.520,’
    and
    moves
    the Board
    to
    reconsider
    its
    Order
    entered
    February
    5,
    2009,
    in this
    matter
    (“Order”),
    finding
    that
    the
    “informational
    deficiencies”
    cited
    by
    the Board
    are
    so
    egregious
    as to require
    DMG
    to
    submit
    an
    amended
    petition,
    2
    thereby
    recommencing the 1 20-day
    statutory
    period
    for
    the
    Board to
    issue
    its decision
    on the
    merits
    of
    DMG’s
    Petition
    for Variance
    (“Petition”).
    More
    specifically,
    DMG
    respectfully
    requests
    that the
    Board
    reconsider
    its
    determination
    that the
    120-
    Hereinafter,
    references
    to the Board’s
    rules
    codified
    at
    35
    Ill.Adm.Code
    are
    referred
    to
    merely
    by section
    number.
    2
    DMG
    is,
    indeed,
    providing
    the
    four
    additional
    items
    of
    information
    requested
    by
    the
    Board
    by filing
    a
    document
    stylized
    as an
    Amended
    Petition
    for
    Variance
    simultaneously
    with
    this
    Motion
    for
    Reconsideration.
    However,
    as stated
    in
    the
    Amended
    Petition,
    the document
    would
    be more
    correctly
    stylized
    as a Supplement
    to DMG’s
    Petition
    for
    Variance.
    Also
    as
    stated
    in the
    Amended
    Petition,
    DMG
    does
    not waive
    any
    rights
    of
    appeal
    of the
    Board’s
    Order
    by
    complying with its
    terms
    and submitting
    document
    stylized
    as
    an Amended
    Petition
    for
    Variance.

    Electronic
    Filing
    - Received,
    Clerk’s
    Office, February
    18, 2009
    day
    statutory
    period for decision
    must
    recommence.
    In
    support of
    its
    Motion for
    Reconsideration,
    DM0 states
    as
    follows:
    I.
    BACKGROUND
    1.
    On January 9,
    2009, DM0
    petitioned the Board to
    grant it
    relief
    from the
    requirements
    of Sections
    225.233(c)(1)(A)
    and 3
    225.233(c)(2) that
    it
    inject
    halogenated
    activated
    carbon
    4
    at a rate
    of
    5.0
    pounds per
    million actual cubic
    feet
    (“lb/macf”)
    exhaust gas flow
    beginning July
    1, 2009, at Unit 3 at its
    Baldwin
    Energy
    Complex (“Baldwin
    Unit 3”).
    Pet.,
    p.
    1.
    The
    relief sought in
    the Petition for Variance
    is
    time-sensitive
    in light of
    the July 1,
    2009,
    compliance
    date
    applicable
    to
    Baldwin
    Unit 3 and
    the lead time
    needed,
    to
    prepare
    Baldwin
    Unit
    3 to
    meet the
    requirements
    of
    Section
    225.233. The term
    of the variance
    would end March 31,
    2010, by
    which time Baldwin
    Unit 3
    will be temporarily shut
    down as
    part
    of the outage
    necessary
    for DM0
    to install
    various
    pollution control equipment
    on that unit. Pet.,
    p.
    20,
    34.
    If DMG
    is
    not
    timely granted
    the relief sought,
    then DM0
    must
    take a two-day outage
    in spring
    2009 to install
    the
    sorbent
    injection lances
    for Baldwin
    Unit 3 and
    have sorbent on-site
    before
    July 1,
    2009,
    in order to
    comply
    with
    Section
    225.233(c).
    5
    DM0
    also
    sought
    relief from the related
    monitoring,
    recordkeeping, and
    reporting
    provisions at
    Sections 225.210(b)
    and (d) and
    225.233(c)(5).
    “The
    terms
    “halogenated
    activated carbon”
    and “sorbent”
    were
    used
    interchangeably
    in
    the
    Petition for
    Variance and
    are, likewise, used interchangeably
    here.
    As discussed
    in the Amended
    Petition, DM0
    must
    comply with Section
    225.23 3(c)
    and,
    therefore,
    must proceed
    with
    plans for
    installing the sorbent
    injection system
    at
    Baldwin
    Unit 3 if
    it does
    not
    have
    a
    decision
    from the
    Board
    at
    its May 7,
    2009, meeting, barring
    any
    other relief
    that
    might
    be
    available.
    Moreover,
    DM0 will not inject
    sorbent
    at
    Havana Unit
    6 or
    Hennepin
    Unit
    2 beginning
    July
    1, 2009,
    unless
    the relief requested
    in the Petition
    for Variance
    is
    granted,
    as
    the
    compliance
    date
    for these
    units is not until December
    31, 2009.
    -2-

    Electronic
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    18, 2009
    2.
    To ensure there would be no
    environmental
    harm resulting from the
    granting of
    this variance, DM0 proposed to inject
    sorbent at Unit
    6 at
    its Havana Power Station
    (“Havana
    Unit 6”) and at Unit
    2 of
    its Hennepin
    Power Station
    (“Hennepin
    Unit 2”) approximately
    six
    months before required, see Section
    225.23
    3(c)(1)(A), at a rate of 5
    lbs/macfor at the rate
    necessary for these two
    units
    to achieve,
    either individually
    or averaged
    together, mercury
    reductions of
    90%
    or a mercury
    emission rate
    of 0.0080 lb/GWhr
    6based
    upon a single stack test
    on
    the applicable unit or units in accordance with
    proposed
    Sections
    225.239(d)(4) and (5), (e),
    and
    (f)(1), assuming that those
    sections are adopted
    under
    the Board’s Docket R09-10
    substantively the same as on the date
    of the filing of the Petition. Pet.
    p.
    20,
    36(A).
    3.
    On February
    5,
    2009, the Board issued an Order in this matter
    identifying four
    “informational
    deficiencies.”
    Order,
    p.
    1.
    The Order further stated that
    [b]efore this proceeding can
    continue,
    petitioners must
    remedy these
    informational deficiencies by filing an amended petition. . .
    . Failure to timely
    file
    the
    amended petition will
    subject
    this matter to dismissal.
    See 35
    Ill. Adm.
    Code
    104.230. The 120-day
    statutory
    period for the Board
    to decide
    this case will
    recommence upon
    filing of the amended petition. See 35 111. Adm.Code
    1
    04.232(a)(2).
    Order,
    p.
    2. For each of
    the “informational deficiencies” identified in
    the Order, the Board cited
    a
    subsection of Section
    104.204.
    6
    The
    proposed compliance plan providing for DMG’s compliance
    with
    the 90%
    removal
    rate
    or the mercury
    emission rate was for purposes
    of the
    variance only and
    was not intended
    to
    be
    an opt-in to
    the mercury emission standards of Section 225.233(d). See Pet.,
    p.
    21,
    39.
    Note
    that the Board’s Order contains a typographical
    error and dates the Order as
    February 5,
    2008.
    -3-

    Electronic
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    - Received,
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    18, 2009
    II.
    THE
    BOARD’S
    INFORMATION
    REQUESTS
    DO
    NOT
    ESTABLISH
    AN
    INADEQUATE
    PETITION
    FOR
    VARIANCE.
    4.
    Pursuant
    to Section
    104.230,
    the
    provisions
    of Section
    104.204
    are essentially
    jurisdictional
    in nature.
    That is, if
    the
    information
    required
    by
    one
    or more of
    the subsections
    of
    Section
    104.204
    is not
    included
    in
    the petition,
    the
    Board may
    dismiss the
    petition
    for
    variance
    pursuant
    to Section
    104.230(b).
    However,
    the
    “informational
    deficiencies”
    identified
    by the
    Board
    in this matter
    do not
    support dismissal
    and
    do not
    rise to the
    level
    ofjurisdictional
    deficiencies.
    Rather,
    each
    one
    is
    in the
    nature of
    a request
    for
    additional
    information,
    such
    as
    information
    that
    would
    or could
    be obtained
    through
    direct
    or cross
    examination
    at
    a
    hearing
    or
    through interrogatories
    or other
    fact-gathering
    procedures.
    Certainly
    any number
    of questions
    might
    be raised
    about
    any
    variance
    petition, but
    that does not
    mean that
    the
    Petition
    filed is
    deficient.
    None
    of
    the
    information
    requested by
    the
    Board
    is essential
    for the Board
    to fairly
    and
    comprehensively
    determine
    whether
    DMG’s
    Petition
    should
    be
    granted.
    None
    of
    the
    particular
    information
    requested
    by
    the Board
    in
    the
    Order is specifically,
    or in
    some cases,
    even
    indirectly,
    referenced
    under
    Section
    104.204.
    Therefore,
    it is improper
    for the Board
    to treat
    DMG’s
    submittal
    of this information
    as an
    amended
    petition
    (regardless
    of
    the
    phrasing
    of the
    document),
    thus
    recommencing
    the
    120-day statutory
    period
    for
    the Board
    to issue its
    decision in
    this
    matter.
    A
    Item 1:
    Location
    of
    Air Quality
    Monitors
    Relative
    to DMG’s
    Power
    Plants
    5.
    Item
    1
    requires
    DMG to
    “indicate
    the nearest
    monitoring
    station
    as well as
    the
    nearest
    downwind
    monitoring
    station
    maintained
    by
    the Agency
    that
    are used
    for
    monitoring
    mercury
    emissions
    for
    each
    of
    Dynegy’s
    power
    stations
    and identify
    the specific
    stations by
    name
    and
    location.”
    Order,
    p.
    1.
    DMG provided
    a
    map
    taken from
    page
    34
    of
    the Illinois
    Environmental
    Protection
    Agency’s
    (“Agency”)
    Illinois
    AnnualAir
    Quality Report
    2006.
    Pet.
    -4-

    Electronic
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    Office,
    February
    18,
    2009
    Ex. I (cited
    at
    Pet.
    p.
    2,
    2, footnote
    2).
    DMG’s
    power stations
    were
    superimposed
    upon this
    map. DM0
    contends
    that this
    map alone
    is
    sufficient
    to satisf’
    the requirements
    of
    Section
    1
    04.204(b)(2).
    6.
    Section
    1 04.204(b)(2)
    requires
    identification
    of
    the nearest
    air
    monitoring
    stations
    “if known.”
    35
    Ill.Adm.Code
    §
    l04.204(b)(2).
    Section
    104.204(b)(2)
    does
    not require
    the
    identity
    of
    specific stations
    by
    name
    and the
    exact street
    address. The
    map taken
    from the
    2006
    air quality
    report
    shows
    the
    locations
    of the
    Agency’s
    air monitoring
    stations,
    which
    is all that
    Section
    104.204(b)(2)
    requires.
    There
    is nothing
    in Section
    104.204(b)(2)
    to suggest
    that
    anything
    more than
    a copy
    of the
    Agency’s
    map from
    the Agency’s
    annual
    air quality
    report is
    required
    if the petitioner’s
    source is
    identified
    on that
    map or
    otherwise
    in relation
    to
    that map.
    7.
    Moreover,
    the
    Agency’s
    annual
    air
    quality reports
    are
    readily
    available
    online,
    and
    the map
    was
    properly cited.
    The information
    the Board
    requests in
    Item
    1 is readily
    obtainable
    by the
    Board
    and would
    not have
    caused it
    to expend undue
    time
    and effort
    to
    obtain
    it.
    8.
    DM0
    is, indeed,
    providing
    the information
    requested
    by
    the Board
    in
    the
    Amended
    Petition filed
    simultaneously
    with
    this
    Motion
    for
    Reconsideration.
    However,
    the
    information
    is
    taken
    from
    the Agency’s
    2007
    air
    quality
    report,
    not available
    at the
    time that
    the
    Petition
    for
    Variance
    was initially
    filed.
    Had the
    Board’s
    rules
    been
    more
    specific
    regarding
    the
    level of
    detail the
    Board
    prefers,
    DMG would
    have
    provided it
    at the
    time
    that it
    initially
    filed
    its
    Petition
    for Variance.
    9.
    For
    the reasons
    set forth
    above,
    the additional
    information
    requested
    by
    the Board
    in its
    Order
    at
    Item
    I does not
    rise
    to the
    level of
    a
    jurisdictional
    deficiency
    and is
    not
    a
    ground
    for the Board
    to
    dismiss
    DMG’s
    Petition
    for Variance
    or recommence
    the 120-day
    statutory
    -5-

    Electronic
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    Office,
    February
    18,
    2009
    period for decision.
    The
    map at Exhibit
    1
    of
    DMG’s Petition
    for
    Variance
    showed the
    locations
    of all
    of the
    Agency’s
    air
    monitoring
    stations
    and the locations
    of DMG’s
    power
    plants,
    thereby
    satisfying
    the
    requirements
    of
    Section
    104.204(b)(2).
    B.
    Item 2: Quantification
    of the Amount
    and
    Type of
    Coal Burned
    at
    Baldwin
    Unit 3, Havana
    Unit 6,
    and
    Hennepin
    Unit
    2
    10.
    Item
    2 of the
    Board’s Order
    quotes
    DMG’s
    statement
    in
    its Petition
    stating
    that it
    burns
    low
    sulfur coal
    to control
    sulfur dioxide
    (“SO
    2
    ”)
    emissions
    and then
    requests
    quantification
    of
    “the
    amount
    and type
    of
    coal
    used
    at each
    power
    station (Baldwin
    Unit
    3,
    Havana
    Unit
    6, and Hennepin
    Unit 2)
    and
    [whether]
    that
    amount
    and
    type
    is
    expected to
    change
    during
    the
    proposed
    variance
    period,”
    citing
    Section
    1
    04.204(b)(6).
    Order,
    p.
    1. Again,
    Item 2
    asks for
    supplemental
    information
    that
    might
    be
    of
    general
    interest
    to the Board,
    but the
    lack of
    this information
    does not
    rise
    to the
    level of a deficiency
    that
    supports
    dismissal
    of the
    Petition
    for
    Variance.
    Moreover,
    DMG’s Petition
    for Variance
    made
    no
    claim
    of a fuel
    switch or
    different
    coal
    usage and
    so
    had no reason
    to
    even
    consider
    providing
    such
    information
    in the
    Petition
    for Variance.
    The
    use
    of sorbent
    for
    mercury
    control will
    not change
    the rate of
    coal
    used
    by
    these
    units.
    II.
    First,
    SO
    2
    emissions,
    to which
    the
    Board’s
    item 2 initially
    refers, are
    irrelevant
    to
    the
    Petition
    for Variance.
    The
    pollutant
    of concern
    to the
    Petition for
    Variance is
    mercury.
    12.
    Second,
    the
    “materials
    used
    in the process
    or activity
    for
    which the
    variance is
    sought,”
    35
    Ill.Adm.Code
    §
    104.204(b)(6)
    are sorbent,
    not coal.
    DM0
    stated
    in its
    Petition that
    it
    estimates
    that
    it would inject
    4 million
    pounds
    of sorbent
    at
    Baldwin
    Unit
    3 during
    the
    variance
    period.
    Pet.,
    p.
    13,
    18.
    Likewise,
    DM0 stated
    that it expected
    to
    inject 2.5
    million
    fewer
    pounds
    of sorbent
    in
    Havana
    Unit
    6
    and Hennepin
    Unit
    2 during
    the variance
    period.
    Pet.,
    p.
    15.
    In fact,
    the
    Board referred
    to
    these
    very numbers
    in
    Item 4 of its
    Order.
    -6-

    Electronic
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    Office,
    February
    18,
    2009
    13.
    Though
    the
    amount of
    coal burned
    at these
    units during
    the variance
    period
    is
    not
    necessarily
    germane
    to the requirements
    of Section
    104.204(b)(6)
    for
    DMG’s Petition
    for
    Variance, the
    information
    is provided
    in
    the Petition,
    though it
    was
    not presented
    as obviously
    as
    the
    Board apparently
    prefers.
    See
    Pet. Ex.
    6,
    Table
    labeled “Predictions
    of
    Mercury Emissions
    Off-sets
    for
    Baldwin Unit
    3,
    70%
    Removal”
    (“Table”).
    The amount
    of coal
    burned
    in each
    unit,
    which
    is a direct
    function of
    the
    capacity
    factor,
    heat
    rate, and
    coal heating
    value,
    is
    implicitly
    included
    in the
    Table,
    and one can
    use
    that information
    to
    determine
    the
    amounts
    of
    coal used for
    determining
    the
    mercury reduction
    anticipated
    during
    the variance
    period.
    Nonetheless,
    for
    clarity and
    convenience
    for the
    Board,
    DMG is specifying
    the
    amount of
    coal
    DMG
    anticipates
    will be burned
    during
    the variance
    period
    in the
    Amended
    Petition
    filed
    simultaneously
    with
    this
    Motion for
    Reconsideration.
    14.
    For the
    reasons set
    forth above,
    specifically
    that coal
    is not
    the relevant
    “material[J
    used in the
    process
    ... for which
    the variance
    is sought,”
    35 Ill.Adm.Code
    §
    1
    04.204(b)(6),
    and
    because
    DMG
    did provide
    the
    Board
    with both
    the amounts
    of sorbent
    (the
    relevant
    “material[j
    used
    in the
    process”) that
    would
    be
    injected at
    Baldwin Unit
    3
    if that
    unit
    were to
    comply
    with
    Section
    225.233(c)
    and at
    Havana Unit
    6
    and
    Hennepin
    Unit 2 during
    the
    variance
    period
    and information
    from
    which
    the
    amount of
    coal can be
    derived,
    Item
    2
    of
    the
    Board’s
    Order does
    not
    rise to
    the
    level
    of a jurisdictional
    deficiency and
    cannot
    serve as a
    basis
    for
    dismissal
    of the
    Petition or
    recommence
    the
    120-day statutory
    period
    for
    decision.
    C.
    Item 3:
    Additional
    Mercury
    Emissions
    at
    Baldwin
    Unit
    3
    if the Unit
    Operated
    Past
    March
    10,
    2010
    15.
    While
    understanding
    the
    Board’s
    confusion
    that gave rise
    to the question
    posed
    at
    Item 3 in the
    Order,
    the additional
    information
    requested
    does
    not rise
    to the
    level
    of a
    jurisdictional
    deficiency
    in the
    Petition
    creating
    a ground
    for
    dismissal
    of the Petition.
    -7-

    Electronic
    Filing - Received,
    Clerk’s
    Office, February 18, 2009
    Moreover, Section
    104.204(c), the section cited as
    support
    for the Board’s request for
    information, does not require
    the type of information
    that
    the Board requested in Item 3,
    despite
    the
    Board’s reference to the end date on the
    Table in
    Exhibit 6 to the
    Petition.
    16.
    Section
    104.204(c) requires that the Petitioner provide “[djata describing
    the
    nature and
    extent of the present or anticipated
    failure
    to meet the regulation. .
    . from which
    variance is sought and facts that support petitioner’s argument that compliance with the
    regulation. .
    . was not
    or
    cannot be achieved
    by
    any required compliance date.” The
    Board’s
    information request asks for
    any
    amount of mercury to be emitted in excess of
    126.83 pounds
    at
    Baldwin Unit 3
    if the unit is operated
    past
    March
    6,
    2010. The information on the Table
    was
    provided to demonstrate that
    there would be no environmental
    harm
    resulting
    from the
    variance
    and that,
    in fact, DMG
    estimated
    there could be a net environmental benefit
    resulting from its
    proposed compliance plan
    relative
    to its operation
    of Havana Unit
    6
    and Hennepin Unit
    2.8
    17.
    The amount of mercury
    that
    could
    be emitted during the term of the variance is
    not part of the “extent
    of the. . . anticipated failure” to
    comply
    because there is no
    requirement
    that DMG emit
    only
    a
    certain
    amount of
    mercury or at a prescribed rate. The only requirement
    applicable to Baldwin Unit 3
    during the variance
    period is
    that it inject one of the named
    brands
    of sorbent at a
    rate of
    5
    lb/macf through an
    injection system designed
    for
    effective absorption of
    mercury. 35
    Ill.Adm.Code
    §
    225.233(c)(2);
    see also Testimony of Jim Ross, R09-10 Tr.,
    pp.
    (Feb.
    10, 2009). That
    system was described in the Petition. See
    Pet.,
    p.
    13,
    19;
    see also Pet.
    Ex. 5
    (discussion of the
    inhibitive effect
    of
    injection of sulfur trioxide on mercury
    removal,
    a
    8
    The
    Board could view subparagraph
    A
    of
    the compliance
    plan at
    36
    of the Petition
    as
    more
    appropriately characterized as a
    condition
    of granting the variance.
    However, the Board
    determines the
    conditions of a variance, and
    DMG’s characterizing
    its pfoposed
    operation of
    Havana Unit 6 and Hennepin Unit 2 as part of the compliance plan rather than as a
    condition
    to
    the granting of
    the variance
    is also
    not a ground for
    dismissal of the Petition.
    -8-

    Electronic
    Filing - Received,
    Clerk’s
    Office,
    February 18,
    2009
    limitation
    on the ability of Baldwin
    Unit 3
    to more effectively remove
    mercury). The
    extent of
    the “anticipated
    failure” is that
    DMG would inject
    no sorbent at
    Baldwin Unit
    3.
    That
    is
    implicit
    in
    DMG’s
    request
    for the variance and
    was
    stated
    numerous
    times in the
    Petition. See, e.g., Pet.
    p.
    20,
    35(A).
    18.
    For the reasons
    set forth above,
    the
    Board’s
    request for
    additional
    information
    regarding
    the amount of
    mercury that
    DMG estimates would
    be emitted if
    the spring 2010 outage
    begins
    after March
    6,
    2010,
    does not
    rise
    to
    the level
    of a
    jurisdictional
    deficiency
    and cannot
    serve as
    a
    basis
    for
    dismissal
    of the Petition or
    recommence the 120-day
    statutory
    period
    for
    decision.
    Because
    there
    is
    no
    requiremefit for
    reduction of a
    specific amount
    of
    mercury
    and
    no
    mercury emission
    limitation that
    applies to Baldwin
    Unit
    3,
    the amount
    of mercury that would
    be
    emitted during
    the 15 days identified
    in Item
    3
    of the Order is irrelevant.
    D.
    Item
    4: Amount
    of
    Money Saved by
    Not Losing Revenue
    Through an
    Outage to
    Install Lances
    at
    Baldwin Unit
    3
    19.
    The
    Board cites
    DMG’s
    decision
    to
    not
    include the cost of
    lost revenue (a
    commercially
    sensitive
    issue in light of market
    competition)
    due
    to the
    outage
    that would be
    necessary
    to install
    lances for injecting sorbent
    at Baldwin
    Unit
    3
    as
    a
    piece of
    information rising
    to the
    level of
    ajurisdictional
    deficiency
    pursuant to Section
    104.204(d).
    However, Section
    104.204(d)
    does not require
    a
    petitioner
    to
    provide
    explicitly
    each cost of
    immediate compliance.
    It
    does state
    that a petition
    ai
    provide the
    overall capital costs
    and
    annualized
    capital and
    operating
    costs
    of
    immediate
    compliance. Therefore,
    the
    additional
    information that the
    Board
    requests
    does not
    rise the
    level
    of
    a
    jurisdictional deficiency,
    serving as a
    basis for dismissal
    of
    the
    Petition or
    recommencement of
    the 120-day statutory
    period
    for
    decision.
    20.
    Section
    104.204(d)
    requires the corresponding
    costs of
    compliance alternatives.
    DM0
    provided
    those
    costs,
    though again apparently
    not as obviously as
    the Board prefers.
    -9-

    Electronic
    Filing
    - Received,
    Clerk’s
    Office,
    February
    18, 2009
    There is no
    compliance
    alternative,
    DM0
    must inject
    sorbent
    at
    a
    rate of 5
    lb/macf
    at
    Baldwin
    Unit 3. There
    is no other
    way for
    Baldwin
    Unit
    3 to comply
    with
    Section
    225.233(c)(2).
    Therefore,
    there is no
    cost associated
    with
    a
    compliance
    alternative.
    21.
    DM0 did
    propose
    to inject
    sorbent
    at
    Havana
    Unit 6
    and
    Hennepin
    Unit
    2 to
    ensure
    there
    ,ras
    no environmental
    harm resulting
    from
    the granting
    of the
    variance.
    Item
    4 of
    the Board’s
    Order
    refers
    to this
    proposal
    and confuses
    the cost
    of this
    action,
    not required
    by
    any
    rule
    but
    offered
    as an
    offset
    to
    avoid
    environmental
    harm,
    with the
    cost
    of an alternative
    compliance
    approach.
    Injecting
    sorbent at
    Havana
    Unit 6
    and Hennepin
    Unit
    2 is not an
    alternative
    compliance
    approach.
    It is merely
    an activity
    that DM0
    is
    willing
    to undertake
    to
    offset
    the
    mercury emissions
    that
    would occur
    from operating
    Baldwin
    Unit
    3
    without
    sorbent
    injection
    during
    the
    variance period.
    22.
    For the
    reasons
    set forth
    above,
    Item 4
    of
    the Board’s
    Order
    does
    not request
    information
    that
    is
    required
    by
    Section
    104.204(d).
    The
    information
    required
    by
    Section
    104.204(d)
    was included
    in the
    Petition for
    Variance.
    Item 4 cannot
    serve as
    a basis
    for
    the
    Board
    to dismiss
    DMG’s
    Petition
    or
    recommence
    the 120-day
    statutory
    period
    for
    decision.
    III.
    CONCLUSION
    WHEREFORE,
    for the
    reasons set
    forth above,
    DMG asserts
    that there
    were no
    “informational
    deficiencies”
    in its
    Petition
    for Variance
    and that
    the Board’s
    Order
    was
    improper.
    Therefore,
    the Board’s
    determination
    that
    the
    I
    20-day
    statutory
    period
    for
    it
    to
    issue
    its
    decision
    regarding
    DMG’s Petition
    for Variance
    must
    recommence
    was improper
    as
    well.
    For
    these
    reasons,
    DMG
    respectfully
    requests
    that the Board
    reconsider
    its determination
    that
    the
    -10-

    Electronic Filing
    - Received, Clerk’s
    Office,
    February
    18,
    2009
    120-day
    statutory
    period
    for decision
    must
    recommence
    upon the
    filing
    of DMG’s
    responses
    to
    the
    Board’s
    requests
    for
    additional
    information.
    Respectfully
    submitted,
    DYNEGY
    MIDWEST
    GENERATION, INC.,
    by:
    One
    of ts
    Attorneys
    Dated:
    February
    18,
    2009
    Kathleen
    C.
    Bassi
    Stephen
    J. Bonebrake
    SCHIFF
    HARDIN,
    LLP
    6600 Sears
    Tower
    233 South
    Wacker
    Drive
    Chicago,
    Illinois
    60606
    312-258-5500
    Fax:
    312-258-2600
    kbassi@schifthardin.com
    —11—

    Electronic
    Filing - Received,
    Clerk’s
    Office, February
    18,
    2009
    CERTIFICATE
    OF SERVICE
    I, the
    undersigned, certify
    that on
    this
    18
    th
    day of
    February,
    2009, I have served
    electronically
    the attached
    MOTION
    FOR
    RECONSIDERATION
    upon
    the following
    persons:
    John
    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:
    John J.
    Kim, Managing Attorney
    Illinois
    Environmental Protection
    Agency
    Division of Legal
    Counsel
    1021
    North
    Grand
    Avenue,
    East
    P.O.
    Box 19276
    Springfield, Illinois
    62794-9276
    Kathleen C. Bassi
    Stephen
    J.
    Bonebrake
    SCHIFF
    HARD1N,
    LLP
    6600 Sears Tower
    233 South
    Wacker
    Drive
    Chicago,
    Illinois 60606
    312-258-5500

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