ILLINOIS POLLUTION CONTROL BOARD 

November 2I, 2013 

ILLINOIS POWER HOLDINGS, LLC and ) 

AMERENENERGY MEDINA VALLEY ) 

COGEN, LLC; ) 

) 

Petitioner, ) 

) 

AMEREN ENERGY RESOURCES, LLC, ) 

) 

Co-Petitioner, ) 

) 

v. ) 

) 

ILLINOIS ENVIRONMENTAL ) 

PROTECTION AGENCY, ) 

) 

Respondent. ) 

DISSENTING OPINION (by D. Glosser): 

PCB 14-10 

(Variance- Air) 

I respectfully dissent from the majority opinion in this case. I would not have granted the 

variance as I fmd that Illinois Power Holdings, LLC (IPH), AmerenEnergy Medina Valley 

Cogen, LLC (Medina Valley), and Co-Petitioner Ameren Energy Resources, LLC (AER) 

(collectively, petitioners) have not established that an arbitrary or umeasonable hardship exists 

that warrants a variance. 

Section 35(a) of the Environmental Protection Act (Act) provides in pertinent part: 

The Board may grant individual variances beyond the limitations prescribed in 

this Act, whenever it is found, upon presentation of adequate proof, that 

compliance with any rule or regulation, requirement or order of the Board would 

impose an arbitrary or umeasonable hardship. However, the Board is not required 

to find that an arbitrary or umeasonable hardship exists exclusively because the 

regulatory standard is under review and the costs of compliance are substantial 

and certain. (415 ILCS 5/35(a) (2012)). 

Case law has evolved establishing that the Board must weigh any hardship against injury to the 

public or the environment. Marathon Oil Co. v. EPA, 242 Ill. App. 3d 200,206, 610 N.E.2d 

789, 793 (5th Dist. 1993). However, as the court stated in Marathon, 

We do not mean to indicate by our opinion that the Board should, in effect, give 

advisory opinions to potential polluters or encourage potential polluters to request 

variances for the sole purpose of testing the Board to see if the Board can be 

persuaded to ease its rules. We see nothing wrong in the Board establishing a 

2-l 

ATTACHMENT---
2 

requirement that the petitioner at least make a prima facie case that it would suffer 

an arbitrary and unreasonable hardship by complying with the Board's rule before 

the Board is required to examine the adverse impact the variance would have on 

the environment (emphasis added). I d. at 794. 

Substantial case law also exists indicating that where a hardship is the result of decisions 

by the petitioner, including business decisions, the hardship is "self-imposed" and a variance is 

not granted. See e.g. Ekco Glaco v. !EPA, PCB 87-41 (Dec. 17, 1987). As the parties and the 

majority opinion describe this history extensively, I will not repeat it here. However, as 

discussed below, I fmd that no hardship exists, so there is no need to examine the issue of 

whether or not the hardship is "self-imposed". 

The threshold question, based on both the statute and the case law, is whether or not the 

petitioner has established that an "arbitrary or unreasonable" hardship exists. The next question, 

assuming that some hardship exists, is whether the hardship is a result of the petitioner's own 

actions, such that the hardship is "self-imposed" and not "arbitrary or unreasonable". The 

petitioners in this case are IPH, Medina Valley, and AER. The majority, appropriately, does not 

find that Medina Valley suffers a hardship. Medina Valley is a part of the variance because it 

takes ownership of closed plants that are still a part of the Multi Pollutant Standard (MPS) group. 

Because Medina Valley's facilities are closed, and will remain closed, there are no emissions 

subject to emission limits. Thus, I agree no hardship can be found for Medina Valley. 

As to AER, I concede that under the prior variance AER was found to be suffering a 

hardship. See Ameren Energy Resources v. IEPA, PCB 12-126. But, as AER will no longer be 

an owner of the facilities, subject to the rule of general applicability, AER will have no 

compliance obligations. At worst, if the variance is not granted and AER retains possession of 

the facilities, AER will continue under the prior variance. Therefore, I cannot find a hardship for 

AER in this variance proceeding_ 

This leaves only the petitioner, IPH, required to at least establish a prima facie case that a 

hardship exists. The majority fmds that, "upon acquiring the operating MPS plants, IPH would 

face a hardship. Even with Medina Valley's continued non-operation of the Meredosia and 

Hutsonville stations, IPH must complete the Newton Flue Gas Desulfurization project to bring 

about MPS Group compliance with the MPS." The majority finds that 

The proposed variance would allow IPH to stay the course with that means [sic] 

of ultimate MPS compliance, locking in the benefit of the AER's expenditures 

and progress on the Newton FGD project pursuant to the variance granted in PCB 

12-126. Without a variance, IPH would have to accelerate completion of that 

project, which, according to petitioners, would still not bring the MPS Group into 

compliance with the MPS 2015 S02 emission rate, requiring plant closures. 

Illinois Power Holdings LLC eta/ v. IEPA, PCB 14-10, slip op. at 92 (Nov. 21, 

2013). 

IPH is a limited liability company owned directly by Illinois Power Holdings II, which is 

a directly and wholly owned subsidiary ofDynegy, Inc. Affidavit of Mario E. Alonso (Pet. Exh. 

.. -
3 

2) at 2. IPH was formed to assume the equity interest in Ameren's operating merchant 

generating stations pursuant to a March 14, 2013 transaction agreement between Ameren and 

IPH. !d. Following closing under the transaction agreement, IPH will own all of Ameren's 

interest in Ameren Energy Generating Company and Ameren Energy Resources Generating 

Company, and other AER subsidiaries. !d. Dynegy's subsidiaries, including IPH, are 

independent legal entities with separate assets and liabilities. !d. 

Under the transaction agreement, AER's corporate structure would change. Ameren 

would "initiate a reorganization of AER," creating "New AER" to accept the active generating 

facilities in the MPS group, namely, the Coffeen, Duck Creek, E.D. Edwards, Joppa, and Newton 

plants. Pet. at 4, citing Pet. Exhs. I, 2. In turn, IPH would acquire New AER and, with it, the 

five active generating plants. !d. Medina Valley would acquire the generating stations that the 

PCB 12-126 order granting the AER variance requires to remain shuttered for the term of the 

variance, namely, the Meredosia and Hutsonville stations. !d. Thus, the record is clear that IPH 

was created for the sole purpose of taking over the AER facilities, and IPH has not provided any 

capital for those facilities. 

The majority attempts to explain why the facts of this case are legally distinguishable 

from those cases where a hardship was found by the Board or courts. See generally slip op. at 

94-98. I believe the majority completely fails to do so. I fmd the facts of this request are very 

like the facts in the Willowbrook Motel Partnership v. PCB, 135 Ill. App. 3d 343,481 N.E.2d 

I 032 (I st Dist. I 985) and IEPA v. Lindgren Foundry, PCB 70-1 (Sept. 25, 1970). Therefore, 

consistent with those prior decisions, I would deny the variance. 

The majority distinguishes this requested variance from Willowbrook in three ways: I) 

no claimed fmancial losses if the variance is not granted; 2) a different "burden of compliance"; 

and 3) the nature of the environmental impact. See slip op. at 96-97. These factual distinctions 

are without meaning. The facts of Willowbrook are that the petitioner was a partnership 

established to develop land as well as owning and operating several hotels in the Midwest. 

Willowbrook Motel Partnership v. IEPA, PCB 81-49, slip op. at I (July 14, 1983). The company 

sought a variance to hook-up to an overloaded sewage treatment plant "on restricted status" to 

prevent any additional sewage flows. The partnership claimed: 

That denial of variance [sic] would result in an arbitrary or unreasonable hardship 

due to tli.e loss of job opportunities and the concomitant income and taxes to the 

State, the loss of sales and enhanced property taxes. !d. at 3 

The Board found that these "hardships" were expected consequences of the restricted status of 

the sewer system, and the benefits outweighed the adverse environmental impact. !d. The Board 

further found that the partnership's claims of economic loss were simply a delay in an 

investment opportunity and not an arbitrary or unreasonable hardship. !d. at 4. The court 

affirmed the Board's decision stating that the "hardship here consists of a temporary prohibition 

against intense development of the property." Willowbrook, 135 Ill. App. 3d 349. 

In Lindgren, petitioners were new owners of a foundry that the prior owner had operated 

"in plain violation" of particulate emission standards, and then closed. Lindgren Foundry, PCB 
4 

70-1, slip op. at I. The new owners sought to reopen the foundry immediately and operate it in 

violation of emission standards for seven months while they obtained and installed a scrubber to 

come into compliance. Jd. at 4. The new owners' hardship claims were that they would not 

open the facility without the variance, and Joss of profits during a shutdown would make the 

whole venture financially impossible. I d. The Board noted that if a variance were granted every 

time it cost money to comply with the law, "nearly everybody would qualify" and "permission to 

violate the law while making corrections cannot be granted automatically." I d. at 6. The Board 

went on to state that: 

it is therefore essential in passing upon a variance petition to compare the good 

effects of compliance with the bad. * * * The words 'unreasonable' and 

'arbitrary' plainly suggest that the Board is not to examine in every case whether 

or not compliance would be a good thing. To do so would completely destroy the 

force of the regulation and encourage excessive litigation." I d. 

The new owners claimed that a seven-month delay in resuming operations would make it 

impossible fmancially to reopen the foundry, and that they would lose $70,000 in sunk costs. 

Lindgren Foundry, PCB 70-1, slip op. at 8. The Board was "not greatly impressed" by that Joss, 

which it found was the full extent of the owners' losses, since they could "cut and run if 

prospects dim." I d. "By investing money with reason to know it would be lost absent a 

favorable decision," the Board added, the owners had "created their own hardship." I d. at 8. The 

Board emphasized that "[a] petitioner may not bootstrap himself into a preferred position by 

spending money frrst and then claiming he has been injured." I d. 

Lindgren and Willowbrook offer clear indications that entities purchasing facilities have 

no special status when seeking a variance from a regulation of general applicability and must 

establish a hardship exists. As I indicated above, IPH is an entity created to take control of 

AER's properties, and IPH argues that not allowing it to operate with a variance is an arbitrary or 

unreasonable hardship. IPH has made a business decision to assume ownership of AER's 

facilities, facilities that are not in compliance with the rule of general applicability. Failure of 

any entity to meet the requirements of a rule of general applicability might result in lost job 

opportunities; however, such a consequence alone is not an arbitrary or unreasonable hardship 

under Lindgren. IPH does not currently operate a facility subject to the MPS and thus its only 

hardship, if the variance were denied, is that it still would not operate a facility subject to an 

MPS. IPH could delay its business opportunity, while seeking other regulatory relief; therefore, 

under Willowbrook this is not an arbitrary or unreasonable hardship. 

As the variance statute states "the Board is not required to find that an arbitrary or 

unreasonable hardship exists exclusively because the regulatory standard is under review and the 

costs of compliance are substantial and certain." 415 ILCS 5/35(a) (2012). The facts in 

Willowbrook and Lindgren are strikingly similar to the facts here. This long-standing Board 

precedent establishes that there is no arbitrary and unreasonable hardship where a purchaser of 

an out-of-compliance company shows only that a variance is needed to make the facilities 

profitable. Therefore, I believe that the case law and clear statutory language support my position 

that !PH has not established a prima facie case that an arbitrary or unreasonable hardship exists. 
5 

The majority also found that granting the variance would result in an environmental . 

benefit and weighed that fact against any perceived hardship for IPH. I am not convinced that an 

environmental benefit exists and share the concerns raised by the Citizens Groups (see e.g. Obj. 

at 9, PC 2337 at 9). I have reviewed the USEPA's report concerning health effects of increased 

S01 emissions and find that report telling. See Integrated Science Assessment for Sulfur OxidesHealth Criteria, EPA-600/R-08/047F (Sept. 2008). I have grave concerns about the impact of 

even a temporary increase in S01 emission near the AER facilities. Even though I am not 

convinced there is an environmental benefit, I find that the weighing of any such benefit is 

inappropriate in this case. As made clear in Marathon Oil Co. v. EPA, 242 Ill. App. 3d 200, 206, 

610 N.E.2d 789, 793 (5th Dist. 1993), before the Board reaches the consideration of 

environmental benefit, a prima facie case that a hardship exists must be established. As 

discussed above, none of the petitioners in this proceeding have established the existence of a 

hardship, and therefore, any perceived environmental benefit is irrelevant. 

For all these reasons, I respectfully dissent from the majority opinion. 

Deanna Glosser 

I, John T. Therriault, Clerk of the Illinois Pollution Control-Board, certify that the above 

dissenting opinion was submitted on November 21, 2013. 

John T. Therriault, Clerk 

Illinois Pollution Control Board 
~- ..... _ .. _ .. 

. -· 

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD 

ILLINOIS POWER HOLDINGS, LLC and 

AMERENENERGY MEDINA VALLEY 

COGEN,LLC; 

AMEREN ENERGY 

RESOURCES, LLC 

Petitioners, 

Co-Petitioner, 

v. 

ILLINOIS ENVIRONMENTAL 

PROTECTION AGENCY, 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

) 

) PCB No. 14-10 

) (Variance- Air) 

) 

) 

) 

) 

) 

) 

) 

NOTICE OF FILING 

To: 

John Therriault, Clerk 

Carol Webb, Hearing Officer 

Illinois Pollution Control Board 

James R. Thompson Center 

100 West Randolph Street, Suite 11-500 

Chicago, illinois 6060 I 

John.Therriaultiallllinois.Gov 

Carol. Web b@.lllinois. Gov 

Gina Roccaforte 

Assistant Counsel 

Division of Legal Counsel 

Illinois Environmental Protection.Agency 

1021 N. Grand Ave., East 

P.O. Box 19276 

Springfield, IL 62794-9276 

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

Clerk of the Illinois Pollution Control Board a CERTIFICATE OF ACCEPTANCE, copies of 

which are herewith served upon you. 

For Illinois Power Holdings: For AmerenEnergy Medina Valley: 

~4~ William D.lngersOll 

ATIACHMENT---
Dated: December 20, 2013 

BROWN, HAY & STEPHENS, LLP 

Claire A. Manning 

William D. Ingersoll 

205 S. Fifth Street, Suite 700 

P.O. Box 2459 

Springfield, IL 62705-2459 

(217) 544-8491 

Fax: (217) 241-3111 

SCIDFF HARDIN, LLP 

Renee Cipriano 

Amy Antoniolli 

233 South Wacker Drive, Suite 6600 

Chicago, lllinois 60606 

(312) 258-5550 

Fax: (312) 258-5600 
CERTIFICATE OF ACCEPTANCE 

On December 2, 2013 Amcrcn Corporation and Illinois Power 

Holdings, LLC closed the trnns~ction rcfcr~.nccd in the opLllon IUld order of t!Je Illinois 

Pollution Control Board in docket PCB 14·1 0, dated November 21, 2013. 

l (We), D~niel P. Thompson/ Martin J. Lyons j boviog read the opinion 

and order of the fllinois PoUution Control Board in docket PCB 14-10, dated Novcmber21, 

2013, understand and accept the opinion and order, rcnJi7jng that this accepta."lce reeders all 

tenns and conditions of lho variance set forth in that order blading and epforceable. 

!LUNO!S PO'WER HOLDINGS, LLC 

Date: 

A.i',lDRENENF.RGY MEDINA V ALI.E Y CUUEN,.LLC 

;, _, 

Tltk 

Date: 
CERTIFICATE OF SERVICE 

I, the undersigned, certify that on this 20th day of December, 2013, I have served 

electronically the attached CERTIFICATE OF ACCEPTANCE, upon the following persons: 

1 ohn Therriault, Assistant Clerk 

Illinois Pollution Control Board 

James R. Thompson Center 

Suite 11-500 

1 00 West Randolph 

Chicago, Illinois 60601 

John.Therriault@lllinois.Gov 

Carol Webb, Hearing Officer 

Illinois Pollution Control Board 

1021 North Grand Avenue, East 

Springfield, Illinois 62794-9276 

Caroi.W ebb@IIIinois. Gov 

and by first class mail, postage affixed upon: 

Gina Roccafot1e, Assistant Counsel 

Division of Legal Counsel 

111inois Environmental Protection Agency 

1021 North Grand Avenue, East 

P.O. Box 19276 

Springfield, Illinois 62794-9276 

Faith E. Bugel 

Andrew Annstrong 

Environmental Law & Policy Center 

35 E. Wacker Drive 

Chicago, Illinois 60601 

BROWN, HAY & STEPHENS, LLP 

Claire A. Manning 

William D. Ingersoll 

205 S. Fifth Street, Suite 700 

P.O. Box 2459 

Springfield, IL 62705-2459 

(21 7) 544-8491 

Fax: (217) 241-3111 

SCHIFF HARDIN, LLP 

Renee Cipriano 

Amy Antonio IIi 

233 South Wacker Drive, Suite 6600 

Chicago, Illinois 60606 

(312) 258-5550 

Fax: (312) 258-5600 

. ·-· ... 
.. _ -•. ~'--~· 

2014 

R E G I S T E R ~~~:~~ental Agencies 

Volume 38, Issue 3 

January 17, 2014 

- - - -- -- - - - -

Printed by authority of the State of Illinois. January- 90 

PUBLISHED BY JESSE WHITE • SECRETARY OF STA}] 

ATTACHMENT-L"--"-
ILLINOIS REGISTER 2464 

14 

ENVIRONMENTAL PROTECTION AGENCY 

NOTICE OF PUBLIC INFORMATION 

The Illinois Environmental Protection Agency (Illinois EPA) Bureau of Air is accepting public 

comment on a variance granted by the Illinois Pollution Control Board (Board) to Illinois Power 

Holdings, LLC (!PH) and AmerenEnergy Medina Valley Cogen, LLC (Medina Valley) for the 

purpose of submitting such variance to the United States Environmental Protection Agency 

(USEPA) as a revision to the Illinois State Implementation Plan (SIP) under the Clean Air Act 

(CAA), 42 USC§ 7401 et seq. In order for a variance to be considered for approval as a revision 

to the SIP, the State must submit it in accordance with the requirements of 40 Code of Federal 

Regulations (CFR) § 5 J.J 04. 

On July 22, 2013, !PH and Medina Valley, along with Ameren Energy Resources, LLC (AER), 

filed a Petition for Variance with the Board. Illinois Power Holdings, LLC and AmerenEnergy 

Medina Valley Cogen, LLC, and Ameren Energy Resources, LLC v. Illinois Environmental 

Protection Agency, PCB 14-10. !PH and Medina Valley requested a variance for the electrical 

generating units in AER's Multi-Pollutant Standards (MPS) Group from both the 2015 and 2017 

sulfur dioxide (S02) emission rate provisions of the Illinois MPS, 35 Ill. Adm. Code 225.233, 

specifically the S02 emission standards set forth in Section 225.233(e)(3)(C)(iii) and (iv). This 

variance replaces the variance from the MPS for the same plants that AER currently holds. 

Ameren Energy Resources v. Illinois Environmental Protection Agency, PCB 12-126. 

!PH, an indirect subsidiary ofDynegy, Inc., has acquired ownership of the Ameren operating 

merchant generating stations, namely the Coffeen Energy Center located in Montgomery 

County, the Duck Creek Energy Center located in Fulton County, the E.D. Edwards Energy 

Center located in Peoria County, the Joppa Energy Center located in Massac County, and the 

Newton Energy Center located in Jasper County, under a transaction agreement between Ameren 

and IPH. Medina Valley has acquired the shuttered generating stations, the Meredosia Energy 

Center in Morgan County and the Hutsonville Energy Center in Crawford County. On 

November 21,2013, the Board granted the variance to IPH and Medina Valley from the 

applicable requirements of35 Ill. Adm. Code 225.233(e)(3)(C)(iii) for a period beginning 

December 31,2015, until December 31,2019, and 35 Ill. Adm. Code 255.233(e)(3)(C)(iv) for a 

period beginning January I, 2017, until December 31, 2019, subject to certain conditions. 

The MPS is a multi-pollutant comprehensive approach to reduce emissions of nitrogen oxides, 

SOz, and mercury. Section 225.233(e) is an approved rule of the Illinois SIP. On July 6, 2012, 

the USEPA approved the Illinois plan submitted to address the visibility protection requirements 

of Section !69A of the CAA, 42 U.S.C. § 7491, and the Regional Haze Rule, as codified in 40 

CFR § 51.308. See, 77 Federal Register 39943 (July 6, 2012). The Illinois plan includes Section 

225.233(e). Accordingly, since the petition for variance sought relief from provisions of the 

MPS and such relief was granted by the Board, the variance must be submitted to the USEPA for 

, '"' .. r· . ~ .... 
ILLINOIS REGISTER 

ENVIRONMENTAL PROTECTION AGENCY 

NOTICE OF PUBLIC INFORMATION 

approval as a SIP revision addressing the visibility requirements under· the CAA and the 

Regional Haze Rule. 

2465 

14 

The Illinois EPA will accept written comments from the public. The written comments must be 

postmarked by February 18. 2014. unless a public hearing is requested. Requests for public 

hearing must be mailed in sufficient time to arrive at Illinois EPA no later than February 18. 

2014. Comments and requests for hearing should be mailed to: 

Dean Studer, Hearing Officer 

lllinois EPA 

I 021 North Grand Avenue East 

P.O. Box 19276 

Springfield, Illinois 62794-9276 

Telephone: 217/558-8280 or TDD: 217/782-9143 

If a timelv request for a public hearing is physically received by February 18. 2014. a public 

hearing will be scheduled through a separate notice and held to receive comments regarding the 

proposed SIP revision. If a public hearing is conducted. the written public comment period will 

be extended as provided for in the separate notice . 

• 

If no request for a public hearing is received by the Illinois EPA by U.S. Mail, carrier mail, 

or hand delivered by February 18, 2014, no hearing will be scheduled. Verification of a 

public hearing will be posted by February 28,2014, on the Illinois EPA's website at 

http://www.epa.state.il.us/public-notices/. Interested persons may also contact Dean Studer, the 

Illinois EPA's Hearing Officer, at the phone number listed above to inquire as to the status of a 

public hearing. 

Copies of the proposed SIP revision may be viewed by the public during regular business hours 

(Monday through Friday 8:30a.m. until4:30 p.m, except for State holidays) at the following 

Illinois EPA offices: 1021 North Grand Avenue East, Springfield, lllinois; 9511 W. Harrison 

St., Des Plaines, Illinois; and 2009 Mall Street, Collinsville, Illinois. No walk-in requests for 

copies of this material will be accommodated, unless advance notice is provided. Requests and 

public inquiries should be directed to Dean Studer, the Illinois EPA's Hearing Officer, at the 

address and phone number listed above. 

If a hearing request is received, the hearing will be held in accordance with the provisions of the 

Illinois EPA's "Procedures for Informational and Quasi-Legislative Public Hearings," set forth at 

35 Ill. Adm. Code 164. This notice is intended to satisfy the requirements of Section II 0(1) of 

the CAA (42 USC§ 7410(1) (public notice for SIP revisions)). 
Earthjustice • Environmental Law & Policy Center • Sierra Club 

February 14,2014 

Via Email and Overnight Delivery 

Dean Studer 

Hearing Officer 

Illinois Environmental Protection Agency 

1021 Nortb Grand A venue East 

P.O. Box 19276 

Springfield, Illinois 62794-9276 

Re: Revision of Illinois State Implementation Plan: 

COMfvlUI\l!TV FlELATIONS 

ILUNO!S EPA 

Illinois Power Holdings, LLC and AmerenEnergy Medina Valley Cogen, LLC, 

Variance from the Multi-Pollutant Standard 

Dear Mr. Studer, 

The undersigned hereby request a public hearing on the above-captioned matter. 

Sincerely, 

Andrew Armstrong 

Staff Attorney 

Environmental Law & Policy Center 

35 East Wacker Drive, Suite 1600 

Chicago, IL 6060 I 

(312) 795-3738 

Thomas Cmar 

Coal Program Attorney 

Earth justice 

5042 Nortb Leavitt Street, Suite l 

Chicago, IL 60625 

(312) 257-9338 

Eva Schueller 

Associate Attorney 

Sierra Club 

85 Second Street 

San Francisco, CA 94105 

(415) 977-5637 

' 

2t.f- ATTACHMENT __ _ 
2s ATIACHMENT __ _ 
/. ":; - " c:.. '. _:·_ 

.' . " " 

' _,,jJd,~® r · '' .. . i! 

. b;)./;;,d~~jJ<c·. ,,jl 

i~-~ r~ ..tL 6/D,/ .":-":11 

.,. .. "'~~·· ., __ ,/·:..:_., ... , ., "'··'· ,_ II ' . •, . \ ll ·-·.J>. ·- _:;.},~. ~ ..,.<·...z~~~-"lo.:.d --;;,~~'" -- .. ', - :.:.. _{,- __ ,_-; 1' 

... K-)-~~':;)1'-#-. ._, --'-~'- .._1.,---:~\~ \~-.._.~:}... ,_-;!1 

I 

l 
2014 

R E G I S T E R ~~~:r~~ental Agencies 

.--

--

-

--

-

-

--

Volume 38, Issue 14 

April 4, 2014 

Index Department 

Administrative Code Division 

111 E. Monroe St. 

Springfield, IL 62756 

217-782-7017 

Printed by authority of the State of Illinois. April - 90 

PUBLISHED BY JESSE WHITE • SECRETARY OF STATE 

ATTACHMENT 7,..{p 
ILLINOIS REGISTER 7689 

14 

ENVIRONMENTAL PROTECTION AGENCY 

NOTICE OF HEARING 

On January 17,2014, the Illinois Environmental Protection Agency (Illinois EPA) provided 

notice that the Bureau of Air was accepting public comment on a variance granted by the Illinois 

Pollution Control Board to Illinois Power Holdings, LLC, and AmerenEnergy Medina Valley 

Cogen, LLC, under PCB 14-10, for the purpose of submitting such variance to the United States 

Environmental Protection Agency as a revision to the Illinois State Implementation Plan (SIP) 

under the Clean Air Act, 42 USC§ 7401 et seq. See, 38111. Reg. 2464. The notice also provided 

that if a timely request for a public hearing was received by February 18,2014, a public hearing 

would be scheduled through a separate notice and held to receive comments regarding the 

proposed SIP revision. By separate notice, a public hearing was previously scheduled by the 

Bureau of Air on April 7, 2014, at 9:00am in the Sangamo Room at the Illinois Environmental 

Protection Agency, 1021 North Grand Avenue East, Springfield, Illinois. See, 38111. Reg. 6493. 

The hearing has been rescheduled to May 20,2014, at 9:00am in the Sangamo Room at the 

Illinois Environmental Protection Agency, 1021 North Grand Avenue East, Springfield, Illinois. 

The hearing will be held in accordance with the provisions of the Illinois EPA's "Procedures for 

Informational and Quasi-Legislative Public Hearings," set forth at 35 Ill. Adm. Code 164. 

Requests to address special needs must be made to the Illinois EPA Hearing Officer by April29, 

2014. Such requests or any questions about the hearing procedures are to be sent to: 

Dean Studer, Hearing Officer 

Illinois EPA 

I 021 North Grand Avenue East 

P.O. Box 19276 

Springfield, Illinois 62794-9276 

Telephone: 217/558-8280 or TDD: 217/782-9143 

Written comments must be sent to the Hearing Officer and be postmarked by midnight, June 20, 2014, unless 

otherwise specified by the Hearing Officer. Written comments need not be notarized. Comments should be mailed 

to Dean Studer, Hearing Officer, at the address listed above. 

Copies of the proposed SIP revision may be viewed by the public during regular business hours 

(Monday through Friday 8:30a.m. until4:30 p.m, except for State holidays) at the following 

Illinois EPA offices: 1021 North Grand Avenue East, Springfield, Illinois; 951 1 W. Harrison 

St., Des Plaines, Illinois; and 2009 Mall Street, Collinsville, Illinois. No walk-in requests for 

copies of this material will be accommodated, unless advance notice is provided. Requests and 

public inquiries should be directed to Dean Studer, the Illinois EPA's Hearing Officer, at the 

address and phone number listed above. 
PUBLIC HEARING 5/20/2014 

Page I 

1 ENVIRONMENTAL PROTECTION AGENCY 

2 STATE OF ILLINOIS 

3 

4 IN RE: 

5 Revised State Implementation Plan 

for a Variance Granted by the 

6 Illinois Pollution Control Board to 

Illinois Power Holdings, LLC, and 

7 AmerenEnergy Medina Valley Cogen, LLC 

8 

9 

10 

11 

12 

13 

14 Public Hearing held, pursuant to 

15 Notice, on the 20th day of May, 2014, between the 

16 hours of 9:00a.m. and 9:22a.m., at 1021 North 

17 Grand Avenue East, Springfield, Illinois, before 

18 Mr. Dean Studer, duly appointed Hearing Officer. 

19 

20 

21 

22 

23 

24 

~======================================="~ 

www.midwestlitigation.com 

MIDWEST LITIGATION SERVICES 

Phone: 1.800.280.3376 Fax: 314.644.1334 1 IEPA ATTACHMENT No.L 
PUBLIC HEARING 5/20/2014 

1 TRANSCRIPT OF PROCEEDINGS 

2 HEARING OFFICER STUDER: I've got 9:00, 

3 so we'll go ahead and go on the record. 

4 Good morning, my name is Dean Studer 

5 and I'm the hearing officer for Illinois EPA. I 

6 would like to welcome you to this morning's 

7 hearing. This hearing is being held for the 

8 purpose of gathering public comment on the proposed 

9 State Implementation Plan, otherwise referred to as 

10 SIP, S-I-P, revision submittal related to a 

11 variance granted by the Illinois Pollution Control 

12 Board to Illinois Power Holdings, LLC, otherwise 

13 referred to as IPH, and to AmerenEnergy Medina 

14 Valley Cogen, LLC. That variance was granted in 

15 PCB 2014-010 and that was granted on November 21st, 

16 2013. The issues considered by the Illinois 

17 Pollution Control Board, otherwise referred to 

18 simply as the Board or IPCB, in the variance 

. 19 proceeding, and again that's PCB 2014-010, are not 

20 necessarily relevant in this proceeding. Illinois 

21 EPA has no authority to reconsider the previously 

22 granted variance by the Board, and as such, the 

23 issues involved with the granting of a variance are 

24 not relevant in this proceeding. What is relevant 

www.midwestlitigation.com 

MIDWEST LITIGATION SERVICES 

Phone: 1.800.280.3376 

t' ..... ~· ... 

2..::::_ .Oi~ Tr.::JHOA1 TA 1.9~1 

Page 2 

I 

Fax: 314.644.1334 
PUBLIC HEARING 5/20/2014 

1 in this proceeding are the compliance requirements 

2 for the SIP revision submittal to USEPA, the United 

3 States Environmental Protection Agency. 

4 The criteria for determining the 

5 completeness of SIP submissions to USEPA are set 

6 forth at Appendix V to Part 51 of the Code of 

7 Federal Regulations, 40 CFR 51. In order for a 

8 variance to be considered for approval as a 

9 revision to the SIP, the State must submit it in 

10 accordance with the requirements of 40 CFR Section 

11 51.104. 

12 The Illinois EPA plans to submit this 

13 proposal to USEPA for review and approval as a 

14 revision to the SIP to address the visibility 

15 protection requirements of Section 169A of the 

16 federal Clean Air Act, 42 USC Section 7491, and the 

17 Regional Haze Rule, as codified in 40 CFR Section 

18 51.308. Copies of the draft SIP proposal are and 

19· have been available for review at Illinois EPA 

20 locations in Des Plaines, Collinsville, and here in 

21 Springfield. 

22 IPH, an indirect subsidiary of Dynegy, 

23 Incorporated, has acquired ownership of th.e Ameren 

24 operating merchant generation stations, namely the 

www.midwestlitigation.com 

MIDWEST LITIGATION SERVICES 

Phone: 1.800.280.3376 

Page 3 · 

Fax: 314.644.1334 
PUBLIC HEARING 5/20/2014 

1 Coffeen Energy Center located in Montgomery County, 

2 the Duck Creek Energy Center located in Fulton 

3 County, the E.D. Edwards Energy Center located in 

4 Peoria County, the Joppa Energy Center located in 

5 Massac County, and the Newton Energy Center located 

6 in Jasper County, under a transaction agreement 

7 between Ameren and Illinois Power Holdings. Medina 

8 Valley has acquired the shuttered generating 

9 stations, the Meredosia Energy Center located in 

10 Morgan County and the Hutsonville Energy Center in 

11 Crawford County. On November 21st, 2013, the Board 

12 granted the variance to IPH and Medina Valley from 

13 the applicable requirements of the Illinois 

14 Multi-Pollutant Standard, MPS, set forth at 35 

15 Illinois Administrative Code 225.233(e) (C) --

16 excuse me, (e) (3) (C) (iii) for a period beginning 

17 January 1st, 2015, through December 31st, 2019, 

18 and 35 Illinois Administrative Code 

19 255.233 (e) (3) (C) (iv) for a period beginning January 

20 1st, 2017, through December 31st, 2019, and it's 

21 subject to certain conditions in that variance. 

22 The MPS is a multi-pollutant 

23 comprehensive approach to reducing emissions of 

24 n~trogen dioxides, sulfur dioxide, and mercury. 

www.midwestlitigation.com 

MIDWEST LITIGATION SERVICES 

Phone: 1.800.280.3376 

Page4 

Fax: 314.644.1334 
PUBLIC HEARING 5/20/2014 

1 Section 225.233(e) is an approved rule of the 

2 Illinois SIP. On July 6th, 2012, the USEPA 

3 approved the Illinois plan submitted to address the 

4 visibility protection requirements of Section 169A 

5 of the federal Clean Air Act and the Regional Haze 

6 Rule, which is approved. It's-- you can check 

7 that out at 77 Federal Register 39943, and that was 

8 on July 6th, 2012. The Illinois plan includes 

9 Section 225.233(e). Accordingly, since the 

10 petition for variance sought relief from the 

11 provisions of the MPS and such relief was granted 

12 by the Board, the variance must be submitted to 

13 USEPA for approval as a SIP revision addressing the 

14 visibility requirements under the Clean Air Act and 

15 the Regional Haze Rule. 

16 This hearing is being held under the 

17 provisions of 35 Illinois Administrative Code 164, 

18 Procedures for Informational and Quasi-Legislative 

19 Public Hearings. Copies of these procedures can be 

20 accessed on the website for the Illinois Pollution 

21 Control Board at www.ipcb.state.il.us, or if you do 

22 not have ready access to the web, they can be 

23 obtained from me. 

24 Gina Roccaforte, sitting here on my 

www .mid westlitigation.com 

. 

MIDWEST LITIGATION SERVICES 

Phone: 1.800.280.3376 

Page 5 

Fax: 314.644.1334 
PUBLIC HEARING 5/20/2014 

1 right, will introduce the Illinois EPA staff 

2 members present today. Following this, I will 

3 allow the public to ask relevant questions or 

4 provide comments and ask relevant questions. You 

5 are not required to verbalize your comments at this 

6 hearing as written comments are given the same 

7 consideration and weight and may be submitted to 

8 the agency at any time within the public comment 

9 period, which ends on June 20th, 2014. Any person 

10 who wants to make oral comments may do so as long 

11 as the statements are relevant to the issues that 

12 are addressed at this hearing and such person has 

13 indicated on their registration card that they 

14 would like to speak. If you have lengthy comments 

15 or questions, it would be helpful to submit them to 

16 me in writing before the close of the comment 

17 period, and I will ensure that they are included in 

18 the hearing record as an exhibit. 

19 Please keep your comments and questions 

20 relevant to the issues at hand. If your comments 

21 fall outside the scope of this hearing, I may ask 

22 you to proceed to another issue. Remember, all 

23 comments made at this hearing or submitted in 

24 writing before the close of the comment period will 

www.midwestlitigation.com 

MIDWEST LITIGATION SERVICES 

Phone: 1.800.280.3376 

Page 6 

I 

Fax: 314.644.1334 
PUBLIC HEARING 5/20/2014 

1 become part of the official hearing record and will 

2 be considered. If you would like to comment at 

3 this hearing, please complete a registration card 

4 which can be found on the registration tables and 

5 indicate on the card your desire to speak. Anyone 

6 who completes a registration card or submits 

7 written comments in this matter will be notified of 

8 Illinois EPA's final decision in this matter. That 

9 notification will also contain information as to 

10 how you may access the agency responsiveness 

11 summary. In this summary, Illinois EPA will answer 

12 all relevant and significant issues raised at this 

13 hearing or submitted to me in writing while the 

14 record is open. 

15 Again, the written record in this 

16 matter will close on June 20th, 2014. And again, 

17 all relevant documents, comments, and data will be 

18 placed into the hearing record as exhibits. Please 

19 send all written comments or data to me at the 

20 following address and that is: Dean Studer, 

21 Hearing Officer, Office of Community Relations, and 

22 this is regarding IPH Variance SIP Revision, 

23 Illinois Environmental Protection Agency, 1021 

24 North Grand Avenue East, P.O. Box 19276, 

www .mid westlitigation.com 

MiDWEST LITIGATION SERVICES 

Phone: 1.800.280.3376 

Page 7 

Fax: 314.644.1334 
PUBLIC HEARING 5/20/2014 

1 Springfield, Illinois 62794-9276. And this address 

2 is also listed on the public notice for the hearing 

3 today. 

4 A court reporter is here today taking a 

5 verbatim record of this proceeding for the purpose 

6 of us making our administrative record. For the 

7 benefit of the court reporter, please keep general 

8 background noise in the room to a minimum so he --

9 or, excuse me, so she can hear everything that is 

10 said. And also, when you begin to speak, please 

11 state your name and, if applicable, any 

12 governmental body, organization, or. association you 

13 represent. If you are representing yourself, you 

14 may simply indicate that you are a concerned 

15 citizen. Also, for the benefit of the court 

16 reporter, please spell your last name. If there 

17 are alternate spellings of your first name, you may 

18 also want to spell your first name so that an 

19 accurate record of your comments can be made. 

20 People who have requested to speak will be called 

21 forward to come to the podium. 

22 When your name is called, please come 

23 forward and state your name. And again, if you are 

24 representing a governmental body or organization, 

www.midwestlitigation.com 

MIDWEST LITIGATION SERVICES 

Phone: 1.800.280.3376 

· Page 8 

Fax: 314.644.1334 
PUBLIC HEARING S/20/2014 

1 you may so indicate or should so indicate. If you 

2 are representing yourself, you may simply indicate 

3 you are a member of the general public. 

4 And before I introduce Illinois EPA 

5 staff here this morning, I'd like to record a few 

6 preliminary documents into the official record as 

7 exhibits. And for the record, Exhibit 4 is a 

8 comment letter received from Bob Jorgenson, in East 

9 Peoria, and that was received on February 18th, 

10 2014, and Exhibit 5 is a request for a hearing in 

11 this matter ·from Earthjustice, Environmental Law & 

12 Policy Center, and the Sierra Club, dated February 

13 14th, 2014. 

14 Are there questions on how I'll conduct 

15 the hearing this morning? 

16 (No response) 

17 HEARING OFFICER STUDER: Okay. Gina. 

18 MS. ROCCAFORTE: Good morning. I'm 

19 Gina Roccaforte. I'm Assistant Counsel on behalf 

20 of the Illinois Environmental Protection Agency. 

21 And with me today is Mr. Rory Davis, Environmental 

22 Protection Engineer with the Bureau of Air. 

23 HEARING OFFICER STUDER: Thank you. 

24 Okay. We have one person that has 

www.midwestlitigation.com 

MIDWEST LITIGATION SERVICES 

Phone: 1.800.280.3376 

Page 9 

Fax: 314.644.1334 
PUBLIC HEARING 5/20/2014 

1 registered to speak and that's Andrew Armstrong. 

2 MR. ARMSTRONG: Yes. Thank you, 

3 Mr. Studer. 

4 HEARING OFFICER STUDER: I will allow 

5 you to sit at your seat as long as it can be heard, 

6 if people in the back can hear. You're going to 

7 have to project your voice because you do have 

8 people behind you a little bit, so 

9 MR. ARMSTRONG: Will do. 

10 My name is Andrew Armstrong. I'm a 

ll Staff Attorney at the Environmental Law & Policy 

12 Center. I am here today on behalf of ELPC, 

13 Earthjustice, and Sierra Club to offer comments on 

14 the proposed modification to the Illinois Regional 

15 Haze SIP. 

16 Illinois EPA is currently proposing to 

17 request that the Regional Haze SIP be modified to 

18 continue to recognize the Multi-Pollutant Standard, 

19 MPS, to be a best available retrofit technology, or 

20 BART, alternative for the Illinois coal plants 

21 formerly owned by Ameren and now owned by Illinois 

22 Power Holdings, even though the Illinois Pollution 

23 Control Board has granted a variance from the 

24 sulfur dioxide requirements of the MPS for the 

www.midwestlitigation.com. 

MIDWEST LITIGATION SERVICES 

Phone: 1.800.280.3376 

Page 10 

Fax: 314.644.1334 
PUBLIC HEARING 5/20/2014 

1 former Ameren fleet until 2020. 

2 This variance will allow Illinois Power 

3 Holdings to continue operating the former Ameren 

4 fleet without installing any additional pollution 

5 controls until well past the 2018 deadline by which 

6 the Regional Haze Rule would have required that 

7 BART controls be installed to address sulfur 

8 dioxide contributing to regional haze in downwind 

9 national parks and forests. 

10 Illinois EPA has never done a source11 specific analysis of what BART would require at the 

12 BART-subject units in the former Ameren fleet, but 

13 instead only evaluated "presumptive BART on" limits 

14 that do not reflect the reductions in sulfur 

15 dioxide emissions that would result from installing 

16 BART ·controls at BART-subject units. 

17 The United States Environmental 

18 Protection Agency did its own calculation based on 

19 much more stringent assumptions about the level of 

20 sulfur dioxide reductions that BART would require. 

21 USEPA ultimately approved the Illinois Regional 

22 Haze SIP based upon these calculations, which found 

23 that the total emissions reductions that the MPS 

24 would require at the former Ameren fleet would 

www.midwestlitigation.com 

MIDWEST LITIGATION SERVICES 

Phone: 1.800.280.3376 

Page 11 

Fax: 314.644.1334 
PUBLIC HEARING 5/20/2014 

Page 12 

1 exceed the emissions reductions that would result 

2 from only requiring BART at the BART-subject units. 

3 First, we think this is the wrong 

4 standard because we continue to believe, as we 

5 commented originally on the Illinois Regional Haze 

6 SIP when it was first submitted, that BART is a 

7 mandatory Clean Air Act requirement that may not be 

8 replaced by fleetwide standards such as the MPS. 

9 Even were this the right standard, though, USEPA 

10 needs to reevaluate whether it can lawfully approve 

11 the Illinois Regional Haze SIP modification for the 

12 former Ameren fleet by doing a new calculation of 

13 whether the MPS as implemented with variances for 

14 the former Ameren fleet is still "better than 

15 BART." 

16 The Illinois plan contains separate 

17 emissions limits for each fleet. The former Ameren 

18 fleet has its own emissions limits specified in the 

19 MPS and the variance applies to only the former 

20 Ameren facilities. Since the Illinois plan 

21 consists of fleet-specific emissions limits and 

22 since the proposed SIP revision applies only to 

23 Ameren, the BART alternative must be judged on the 

24 same fleet-by-fleet basis. If the Illinois plan is 

~======================~=============================~ 

www .midwestlitigation.com 

MIDWEST LITIGATION SERVICES 

Phone: 1.800.280.3376 Fax: 314.644.1334 
PUBLIC HEARING 5/20/2014 

1 not better than BART at the former Ameren 

2 facilities, it cannot be approved by lJSEPA. 

3 Now, if Illinois EPA were to attempt to 

4 make a showing that the MPS with the variance is 

5 better than BART, it should not be allowed to rely 

6 on purported emissions reductions at the Meredosia 

7 and Hutsonville units that have now been retired 

8 for several years due to economic reasons, nor 

9 emissions reductions from Edwards Unit 1 which is 

10 now only being operated for grid reliability 

11 purposes subject to a short-term System Support 

12 Resource Agreement with MISO. These plants have 

13 retired or are retiring before the MPS reductions 

14 are implemented, such that the MPS is not driving 

15 emissions reductions at those plants at all. 

16. Moreover, the Meredosia and Hutsonville units were 

17 not purchased by Illinois Power Holdings and should 

18 not be included in any analysis of emissions 

19 reductions at the former Ameren fleet. 

20 If lJSEPA performs a new calculation of 

21 the emissions reductions at the former Ameren fleet 

22 from the MPS that excludes purported 502 emissions 

23 reductions from the Meredosia and Hutsonville units 

24 and from Edwards Unit 1, then it will find that 

www.midwestlitigation.com 

MIDWEST LITIGATION SERVICES 

Phone: 1.800.280.3376 

Page 13 

I 

I 

I 

I 

J 

Fax: 314.644.1334 
PUBLIC HEARJNG 5/20/2014 

1 implementation of the MPS at the remaining Ameren 

2 units is no longer better than BART, as will be 

3 demonstrated in the environmental groups' written 

4 comments. 

5 We also would note that the Regional 

6 Haze Rule further requires that the burden is on 

7 the State to demonstrate that any BART alternative 

8 will achieve greater reasonable progress towards 

9 national visibility conditions in Class 1 areas 

10 than requiring BART controls to be installed at 

11 BART-eligible units. That demonstration has not 

12 been made here yet. 

13 Finally, we further contend that USEPA 

14 cannot approve the requested SIP revision because 

15 Illinois has not conducted required visibility 

16 modeling to show that the Illinois plan will 

17 achieve greater reasonable progress than would BART 

18 towards reducing visibility impairment. In order 

19 to demonstrate that an alternative program is 

20 better than BART, a state is required by 40 CFR 

21 51.308(el (3) to perform dispersion modeling unless 

22 the distribution of emissions is not substantially 

23 different under the alternative program relative to 

24 BART. EPA conceded that the Part 225 rules reflect 

www.midwestlitigation.com 

MIDWEST LITIGATION SERVICES 

Phone: 1.800.280.3376 

Page 14 

Fax: 314.644.1334 
PUBLIC HEARING 5/20/2014 

1 substantial averaging across units and across 

2 facilities. So visibility modeling of the Illinois 

3 plan and its relationship with BART must be 

4 conducted. 

5 So thank you very much for the 

6 opportunity to offer these comments. We will 

7 submit written comments by the deadline. 

8 HEARING OFFICER STUDER: Thank you, 

9 Mr. Armstrong. 

10 Is there anyone else that has comments 

11 or questions that they would like to ask on the 

12 record this morning? 

13 (No response) 

14 HEARING OFFICER STUDER: Okay. Let the 

15 record indicate no one raised their hand. 

16 I remind everyone that the comment 

17 period is open for 30 days and we will be accepting 

18 written comments as indicated on the public notice 

19 for this hearing. 

20 This hearing is adjourned. 

21 (The hearing adjourned at .9:22a.m.) 

22 

23 

24 

www.midwestlitigation.com 

MIDWEST LITIGATION SERVICES 

Phone: 1.800.280.3376 

Page 15 

Fax: 314.644.1334 
PUBLIC HEARING 5/20/2014 

Page 16 

1 

2 CERTIFICATE OF REPORTER 

3 STATE OF ILLINOIS 

ss 

4 COUNTY OF SANGAMON 

5 I, DOROTHY J. HART, a Registered 

6 Professional Reporter and Certified Shorthand 

7 Reporter within and for the State of Illinois, do 

8 hereby certify that the foregoing proceedings were 

9 taken by me to the best of my ability and 

10 thereafter reduced to typewriting under my 

11 direction; that I am neither counsel for, related 

12 to, nor employed by any of the parties involved in 

13 this proceeding, and further that I am not a 

14 relative or employee of any attorney or counsel 

15 employed by the parties thereto, nor financially or 

16 otherwise interested in the outcome of the action. 

17 

18 

19 

Registered Professional Reporter 

20 Certified Shorthand Reporter 

Illinois CSR No. 084-001390 

21 

22 

23 i 

24 I ~=====================================~ 

www.midwestlitigation.com 

MIDWEST LITIGATION SERVICES 

Phone: 1.800.280.3376 Fax: 314.644.1334 
PUBLIC HEARING 5/20/2014 

A answer7:11 4:19 Coffeen4:1 

ability 16:9 Appendix 3:6 behalf9:19 10:12 Cogen 1:7 2:14 

accepting 15:17 applicable 4:13 believe 12:4 Collinsville 3:20 

access 5:22 7:10 8:11 benefit8:7,15 come 8:21,22 

accessed 5:20 applies 12:19,22 best 10:19 16:9 comment2:8 6:8 

accurate 8:19 appointed 1:18 betterl2:1413:1 6:16,24 7:2 9:8 

achieve 14:8,17 approach 4:23 13:5 14:2,20 15:16 

acquired 3:23 approva13:8,13 bit 10:8 commented 12:5 

4:8 5:13 Board 1 :6 2:12 comments 6:4,5 

Act3:16 5:5,14 approve 12: I 0 2:17,18,22 4:11 6:6,10,14,19,20 

12:7 14:14 5:12,2110:23 6:23 7:7,17,19 

action 16:16 approved 5: I ,3,6 Bob9:8 8:I9 10:13 14:4 

addi~ional11:4 11:21 13:2 body8:12,24 15:6,7,10,18 

address3:145:3 areas 14:9 Box7:24 Community 7:21 

7:20 8:111:7 Armstrong 10:1 burden 14:6 complete 7:3 

addressed 6:12 10:2,9,10 15:9 Bureau9:22 completeness 3:5 

addressing 5: 13 Assistant 9:19 completes 7:6 

adjourned 15:20 association 8: 12 c compliance 3: 1 

15:21 assumptions C4:16 comprehensive 

administrative 11:I9 calculation 11: 18 4:23 

4:15,18 5:17 attempt 13:3 12:12 13:20 conceded 14:24 

8:6 attorney 10: II calculations concerned 8:14 

agency 1:1 3:3 16:I4 11:22 conditions4:21 

6:8 7:10,23 authority 2:2I called 8:20,22 14:9 

9:20 11:18 available 3: 19 card 6:13 7:3,5,6 conduct 9:14 

agreement4:6 IO:I9 Center 4: I ,2,3,4 conducted 14:15 

13:I2 Avenue I:17 7:24 4:5,9,10 9:12 15:4 

ahead 2:3 averaging 15: I 10:I2 consideration 

Air 3:16 5:5,I4 a.m 1:16,16 certain 4:21 6:7 

9:22 12:7 15:21 CERTIF1CATE considered 2: 16 

allow6:3 10:4 16:2 3:8 7:2 

11:2 B ·Certified 16:6,20 consists 12:21 

allowed 13:5 back 10:6 certify 16:8 contain 7:9 

alternate 8: I7 background 8:8 CFR 3:7,10,17 contains 12:16 

alternative I 0:20 BART10:20 14:20 contend 14:13 

12:23 14:7,19 11:7,11,13,16 check 5:6 continue 10:18 

14:23 II :20 12:2,6,15 citizen 8: 15 11:3 12:4 

Ameren3:23 4:7 12:23 13:1,5 Class 14:9 contributing 

10:2111:1,3,12 14:2,7,10,17,20 Clean 3:16 5:5 11:8 

11:2412:12,14 14:24 15:3 5:14 12:7 Control! :6 2:11 

12:17,20,23 BART -eligible close 6:16,24 2:17 5:2110:23 

13:1,19,2114:1 14:11 7:16 controls 11:5,7 

AmerenEnergy BART-subject Club9:12 10:13 11:1614:10 

1:7 2:13 11:12,16 12:2 coa110:20 Copies3:18 5:19 

analysis II: 11 based 11:18,22 Code3:6 4:15,18 counsel 9: 19 

13:18 basis 12:24 5:17 16:11,14 

Andrew IO:I,IO beginning 4: 16 codified 3: 17 County 4: 1,3,4,5 

. 

www.midwest1itigation.com 

MIDWEST LITIGATION SERVICES 

Phone: 1.800.280.3376 

4:6,10,11 16:4 

court 8:4,7,15 

Crawford 4:11 

Creek4:2 I 

criteria 3:4 I 

i 

CSR 16:20 

currently 10:16 

D 

data 7:17,19 

dated 9:12 

Davis 9:21 

dayl:l5 

days 15:17 

deadline 11:5 

15:7 

Dean 1: I8 2:4 

7:20 

December 4:17 

4:20 

decision 7:8 

demonstrate 

14:7,19 

demonstrated 

14:3 

demonstration 

14: II 

Des3:20 

desire 7:5 

determining 3:4 

I different 14:23 

dioxide 4:24 

10:24 I I1:8,15 

11:20 

I dioxides 4:24 

direction 16:11 

dispersion 14:21 I 

distribution 

14:22 I 

documents 7: 17 I 

9:6 i 

doing 12:12 I 

I 

DOROTHY 16:5 I 

I 

downwind 11:8 I 

I 

draft 3:18 i 

driving 13:14 I Duck4:2 I 

! 

I 

Fax: 314.644.1334 
PUBLIC HEARING 5/20/2014 

due 13:8 facilities 12:20 governmental 10:20,21,22 

duly 1:18 13:2 15:2 8:12,24 11:2,10,2112:5 

Dynegy 3:22 fall6:21 Grand 1:17 7:24 12:11,16,20,24 

February9:9,12 granted I :5 2:11 13:3,17 14:15 

E federal3:7,16 2:14,15,22 4:12 14:1615:216:3 

e4:16 5:5,7 5:11 10:23 16:7,20 

Earth justice final7:8 granting 2:23 impairment 

9:11 10:13 Finally 14:13 greater 14:8,17 14:18 

East1:17 7:24 financially 16:15 grid 13:10 implementation 

9:8 find 13:24 groups 14:3 1:5 2:914:1 

economic 13:8 first8:17,18 12:3 implemented 

Edwards4:3 12:6 H 12:13 13:14 

13:9,24 fleet 11:1,4,12,24 hand 6:20 15:15 included 6: 17 

ELPC 10:12 12:12,14,17,18 HART16:5 13:18 

emissions 4:23 13:19,21 haze 3:17 5:5,15 includes 5:8 

11:15,2312:1 fleetwide 12:8 10:15,1711:6,8 Incorporated 

12:17,18,21 fleet-by-fleet 11:22 12:5,11 3:23 

13:6,9,15,18,21 12:24 14:6 indicate 7:5 8:14 

13:22 14:22 fleet-specific hear 8:9 I 0:6 9:1,1,215:15 

employed 16: 12 12:21 heard 10:5 indicated 6:13 

16:15 following 6:2 hearing 1:14,18 15:18 

employee 16:14 7:20 2:2,5,7,7 5:16 indirect 3:22 

ends6:9 foregoing 16:8 6:6,12,18,21,23 information 7:9 

Energy 4: I ,2,3,4 forests 11:9 7:1,3,13,18,21 Informational 

4:5,9,10 former 11:1,3,12 8:2 9:10,15,17 5:18 

Engineer 9:22 11:24 12:12,14 9:23 10:4 15:8 installed 11:7 

ensure6:17 12:17,19 13:1 15:14,19,20,21 14:10 

environmental 13:19,21 Hearings 5: 19 installing 11:4,15 

1:1 3:3 7:23 formerly 10:21 held 1:14 2:7 interested 16:16 

9:11,20,21 forth 3:6 4:14 5:16 introduce 6: I 9:4 

10:1111:17 forward 8:21,23 helpful6: 15 involved 2:23 

14:3 found 7:4 I 1:22 Holdings 1:6 16:12 

EPA 2:5,21 3:12 Fulton4:2 2:12 4:7 10:22 IPCB2:18 

3:19 6:17:11 further 14:6,13 11:3 13:17 IPH2:13 3:22 

9:410:16 11:10 16:13 hours 1:16 4:12 7:22 

13:3 14:24 Hutsonville 4: 10 issue6:22 

EPA's7:8 G 13:7,16,23 issues 2:16,23 

evaluated 11:13 gathering 2:8 6:11,20 7:12 

exceed 12:1 general 8:7 9:3 I 

excludes 13:22 generating4:8 iii4:16 J 

excuse4:16 8:9 generation 3:24 Illinois I :2,6,6, 17 J 16:5 

exhibit 6:18 9:7 Gina 5:24 9:17 2:5,11,12,16,20 January4:17,19 

9:10 9:19 3:12,19 4:7,13 Jasper4:6 

exhibits7:18 9:7 given6:6 4:15,18 5:2,3,8 Joppa4:4 

E.D4:3 go2:3,3 5:17,20 6:1 7:8 Jorgenson 9:8 

going 10:6 7:11,23 8:19:4 judged 12:23 

F Good 2:4 9:18 9:20 10:14,16 July 5:2,8 

~ ~--'--· . --

www.midwestlitigation.com 

MIDWEST LITIGATION SERVICES 

Phone: 1.800.280.3376 

,, 

June6:97:16 

K 

keep 6:19 8:7 ' 

L ! 

Law9:11 10:11 ' 

lawfully 12:10 

lengthy 6:14 

letter9:8 

level I 1:19 

limits 11:13 

12:17,18,21 

listed 8:2 

little 10:8 

LLC 1:6,7 2:12 

2:14 

located 4: I ,2,3,4 

4:5,9 ' locations 3:20 

Iong6:10 10:5 

longer 14:2 

' 

M 

making8:6 

mandatory 12:7 

Massac4:5 i 

matter7:7,8,16 ' 9:11 

Medina 1:7 2:13 ! 

4:7,12 I 

member9:3 

members6:2 ' 

merchant 3:24 

mercury ' 4:24 ' 

Meredosia 4:9 ' ' 

13:6,16,23 ! 

minimum8:8 

MISO 13:12 

modeling 14:16 

14:21 15:2 

modification i 

10:1412:11 i 

modified I 0: 17 

' Montgomery 4: I ' ' Morgan4:10 l 

morning 2:4 9:5 I 

' ' ------' 

Fax: 314.644.1334 
PUBLIC HEARING 5/20/2014 

9:15,18 15:12 opportunity 15:6 present6:2 raised 7:12 15:15 

morning's 2:6 oral6: 10 presumptive ready 5:22 

MPS4:14,22 order3:714:18 11:13 reasonable 14:8 

5:11 10:19,24 organization previously 2:21 14:17 

11:23 12:8,13 8:12,24 procedures 5: 18 reasons 13:8 

12:19 13:4,13 originally 12:5 5:19 received 9:8,9 

13:14,22 14:1 outcome 16:16 proceed 6:22 recognize 10: 18 

multi-pollutant outside 6:21 proceeding 2:19 reconsider 2:21 

4:14,22 10:18 owned 10:21,21 2:20,24 3:1 8:5 record 2:3 6:18 

ownership 3:23 16:13 7:1,14,15,18 

N proceedings 2: 1 8:5,6,19 9:5,6,7 

name 2:4 8:11,16 p 16:8 15:12,15 

8:17' 18,22,23 parks 11:9 Professional16:6 reduced 16:10 

10:10 part 3:6 7: I 16:19 reducing 4:23 

national!!: 9 14:24 program 14:19 14:18 

14:9 parties 16:12,15 14:23 reductions 11: 14 

necessarily 2:20 PCB2:15,19 progress 14:8,17 11:20,23 12:1 

needs 12:10 people 8:20 10:6 project I 0:7 13:6,9,13,15,19 

neither 16: 11 10:8 proposa13:13,18 13:21,23 

never 11:10 Peoria 4:4 9:9 proposed 2:8 reevaluate 12: I 0 

new 12:12 13:20 perform 14:21 10:1412:22 referred 2:9,13 

Newton4:5 performs 13:20 proposing 10:16 2:17 

nitrogen 4: 24 period4: 16,19 protection 1: I reflect 11:14 

noise 8:8 6:9,17,2415:17 3:3,15 5:4 7:23 14:24 

North 1:16 7:24 person 6:9,12 9:20,22 11:18 regarding 7:22 

note 14:5 9:24 provide 6:4 regiona13: 17 5:5 

notice 1:15 8:2 petition5:10 provisions 5: 11 5:15 10:14,17 

15:18 placed7:18 5:17 11:6,8,21 12:5 

notification 7:9 Plaines 3:20 public 1:14 2:8 12:11 14:5 

notified 7:7 plan I :5 2:9 5:3,8 5:19 6:3,8 8:2 Register 5:7 

November 2:15 12:16,20,24 9:3 15:18 registered 10: 1 

4:11 14:16 15:3 purchased 13:17 16:5,19 

plans 3:12 purported 13:6 registration 6:13 

0 plants 10:20 13:22 7:3,4,6 

obtained 5:23 13:12,15 purpose 2:8 8:5 Regulations 3:7 

offer 10:13 15:6 please 6:19 7:3 purposes 13:11 related 2:10 

Office7:21 7:18 8:7,10,16 pursuant 1: 14 16:11 

officer 1:18 2:2,5 8:22 P.07:24 Relations7:21 

7:21 9:17,23 podium8:21 relationship 15:3 

10:4 15:8,14 Policy9:1210:11 0 relative 14:23 

official?: 1 9:6 pollution 1:6 Quasi-Legislat. .. 16:14 

Okay9:17,24 2:11,17 5:20 5:18 relevant 2:20,24 

15:14 10:22 11:4 questions 6:3,4 2:24 6:3,4, II 

open 7:14 15:17 Power 1:6 2:12 6:15,19 9:14 6:20 7:12,17 

operated 13:10 4:7 10:22 11:2 15: II reliability 13:10 

operating 3:24 13:17 relief5:10,11 

11:3 preliminary 9:6 R rely 13:5 . 

www.midwestlitigation.com 

MIDWEST LITIGATION SERVICES 

Phone: 1.800.280.3376 

remaining 14: I 

Remember 6:22 

remind 15:16 

replaced 12:8 

reporter 8:4,7,16 

16:2,6,7,19,20 

represent 8:13 

representing 

8:13,24 9:2 

request 9: 10 ' 

10:17 

requested 8:20 

14:14 ' 

' require II: 11,20 

11:24 

required 6:5 11:6 

14:15,20 

requirement 

12:7 

requirements 3:1 

3:10,15 4:13 

5:4,14 10:24 

requires 14:6 

requiring 12:2 

14:10 

Resource 13: 12 

response 9:16 

15:13 

responsiveness 

7:10 

result11:1512:1 

retired 13:7,13 

retiring 13: 13 

retrofit 10: 19 

review 3:13,19 

Revised 1:5 

revision 2:10 3:2 

3:9,14 5:13 

7:22 12:22 

14:14 

right 6:1 12:9 

Roccaforte 5:24 

9:18,19 

room8:8 

Rory9:21 

rule3:17 5:1,6,15 

11:6 14:6 

Fax: 314.644.1334 
PUBLIC HEARING 5/20/2014 

rules 14:24 3:9 8:11,23 typewriting wrong 12:3 

14:7,20 16:3,7 

s 

16:10 www.ipcb.stat ... 

statements 6: II 5:21 

SAN GAM ON States 3:3 II: 17 u 

16:4 stations 3:24 4:9 ultimately I 1:21 y 

scope6:21 stringent I 1: 19 Unit 13:9,24 years 13:8 

seat 10:5 Studer I: 18 2:2,4 United 3:2 11:17 

Section 3: 10,15 7:20 9:17,23 units 11:12,16 0 

3:16,17 5:1,4,9 10:3,4 15:8,14 12:2 13:7,16,23 084-001390 

send 7:19 subject4:21 14:2,11 15:1 16:20 

separate 12:16 13:11 USC3:16 

set3:5 4:14 submissions 3:5 USEPA 3:2,5,13 1 

Shorthand 16:6 submit3:9,!2 5:2,13 11:21 1 13:9,24 14:9 

16:20 1st4: 17,20 6:15 15:7 12:9 13:2,20 

short-term 13:11 submits 7:6 14:13 10211:16 7:23 

show 14:16 submittal2: 10 14th 9:13 

showing 13:4 3:2 v 1645:17 

shuttered 4:8 submitted 5:3,12 V3:6 169A3:15 5:4 

Sierra9:1210:13 6:7,23 7:13 Valley 1:7 2:14 18th 9:9 

significant 7:12 12:6 4:8,12 192767:24 

simply2:18 8:14 subsidiary 3:22 variance I: 5 2: 11 

9:2 substantial 15: I 2:14,18,22,23 2 

SIP2: 10 3:2,5,9 substantially 3:8 4:12,21 20th 1:15 6:9 

3:14,18 5:2,13 14:22 5:10,12 7:22 7:16 

7:22 10:15,17 sulfur4:24 10:24 10:23 II :2 20125:2,8 

11:22 12:6,11 11:7,14,20 12:19 13:4 20132:164:11 

12:22 14:14 summary 7: II variances 12:13 20141:15 6:9 

sit I 0:5 7:11 verbalize 6:5 7:16 9:10,13 

sitting 5:24 Support 13: II verbatim 8:5 2014-010 2:15,19 

sought5:10 System 13: II visibility 3:14 5:4 2015 4:17 

source 11:10 S-I-P2:10 5:14 14:9,15,18 20174:20 

S02 13:22 15:2 201811:5 

speak 6:14 7:5 T voice 10:7 2019 4:17,20 

8:10,20 10:1 tables 7:4 202011:1 

specific 11 : II taken 16:9 w 21st2:15 4:11 

specified 12:18 technology 10:19 want8:18 22514:24 

spell8:16,18 thank 9:23 10:2 wants6:10 225.233(e) 5:1,9 

spellings 8:17 15:5,8 web5:22 225.233(e)(C) 

Springfield 1:17 thereto 16:15 website 5:20 4:15 

3:21 8: I think 12:3 weight6:7 255.233(e)(3)( ..• 

ss 16:3 time 6:8 welcome2:6 4:19 

staff 6:1 9:5 today 6:2 8:3,4 we'112:3 

10:11 9:21 10:12 writing 6:16,24 3 

standard 4:14 7:13 34:16 

totall1:23 

10:18 12:4,9 written 6:6 7:7 30 15:17 transaction 4:6 

standards 12:8 TRANSCRIPT 7:15,19 14:3 31st4:17,20 

state I :2,5 2:9 2: I 15:7,18 354:14,18 5:17 

39943 5:7 

~ 

www.midwestlitigation.com 

MIDWEST LITIGATION SERVICES 

Phone: 1.800.280.3376 

4 

49:7 

40 3:7,10,17 

14:20 

42 3:16 

' 

5 ! 

59:10 

513:6,7 ' 

51.1043:11 

51.308 3:18 

51.308(e)(3) 

14:21 ' 

6 

6th 5:2,8 

62794-9276 8: I 

7 

74913:16 

77 5:7 

9 

9:001:16 2:2 

9:221:16 15:21 

; 

; 

; ' 

' 

'; 

' ' 

i 

! 

i 

' 

i 

' 

I ' 

! 

I 

OJ 

Fax: 314.644.1334 
INRE: 

BEFORE THE ENVIRONMENTAL PROTECTION AGENCY 

STATE OF ILLINOIS 

Revised State Implementation Plan 

For a Variance Granted by the 

Illinois Pollution Control Board to 

Illinois Power Holdings, LLC, and 

AmerenEnergy Medina Valley Cogen, LLC 

JOINT PUBLIC COMMENT 

OF ILLINOIS POWER HOLDINGS, LLC, 

AND AMEREN EJ\'ERGY MEDINA VALLEY COGEN, LLC 

Illinois Power Holdings, LLC ("IPH") and AmerenEnergy Medina Valley Cogen, LLC 

("Medina Valley") the entities who, as petitioners, sought and obtained the variance that is the 

subject of the proposed State Implementation Plan ("SIP") revision, here provide a joint public 

comment in support of the State of Illinois proposed SIP revision submittal. 

I. BACKGROUND 

The proposed SIP revision is occasioned by a variance granted to IPH and Medina Valley 

by the Illinois Pollution Control Board ("Board") in docket R-14-1 0, pursuant to illinois law, 

specifically Title IX of the illinois Environmental Protection Act ("Act"), 415 ILCS 5/35-38. 

The documents relevant to the Board's determination to grant the variance are part of the State of 

Illinois proposed SIP submittal, presented by the Illinois Environmental Protection Agency 

("IEP A"). The variance grants relief from the sulfur dioxide emission rate in the multi-pollutant 

standard ("MPS'') rules applicable to the following seven coal-fired electric generating plants, 

known as the AER MPS Group: Coffeen Energy Center (Montgomery County), Duck Creek 

2!3 

ATTACHMENT---
Energy Center (Fulton County), E.D. Edwards Energy Center (Peoria County), Joppa Energy 

Center (Massac County), Hutsonville Energy Center (Crawford County), Meredosia Energy 

Center (Morgan County), and Newton Energy Center (Jasper County). Specifically, the 

variance grants the AER MPS Group relief from 35 Ill. Adm. Code 225.223(e)(3)(C)(iii) for five 

years beginning January I, 2015 and ending December 31, 2019, and relief from 35 Ill. Adm. 

Code 225.223( e)(3)(C)(iv) for three years, beginning January 1, 2017 and ending December 31, 

· 2019, subject to certain conditions. 

The Board's variance proceeding, and its decision to grant the variance, is analyzed fully 

in its 107-page Opinion and Order, which has been presented by the IEPA as part of the 

proposed SIP revision. See fllinois Power Holdings, LLC and Ameren Energy Medina Valley 

• 

Cogen, LLC and Ameren Energy Resources, LLC v. Illinois Environmental Protection Agency, 

Ill. Pollution Control Bd. Op., PCB 14-10 (Nov. 21, 2013). The variance replaced a variance 

that was previously granted to the AER MPS Group on September 20, 2012, Ameren Energy 

Resources v. Illinois Environmental Protection Agency, Ill. Pollution Control Bd. Op., PCB 12-

126 (Sept. 20, 2012) ("PCB 12-126"), which was the subject of a SIP revision submittal on May 

16, 2013. The variance that is subject of the current proposed SIP revision was necessitated due 

to the sale of the AER MPS Group to IPH and Medina Valley Cog en. 

The proposed SIP revision will be submitted for United States Environmental Protection 

Agency ("USEPA") review and approval as a revision to the illinois SIP to address the visibility 

protection requirements of Section 169A of the Clean Air Act, 42 U.S.C. ~7491, and the 

Regional Haze Rule, as codified in 40 C.F.R. § 51.308. As the variance meets the criteria of 

both programs, the USEPA should approve this SIP. The comments made by the environmental 

2 
·-

groups in opposition to this SIP, discussed below, do not provide justification for USEPA to not 

approve tlli~ Illinois.SIP. 

IT. IEPA PUBLIC HEARING -ENVIRONMENTAL GROUP COMMENTS 

The !EPA held a public hearing on May 20, 2014 to receive comments regarding this 

proposed SIP revision. Attorney Andrew Armstrong, representing the Environmental Law &. 

Policy Center ("ELPC"), Earthjustice and the Sierra Club, was the only commenter at the 

hearing. The comments made by Mr. Armstrong cover the same or very similarly worded points 

made and rejected in the lllinois Regional Haze rulemaking (77 Fed. Reg. 39943, July 6, 2012) 

and to some e:>..ient by the Board in the November 21, 2013 Order granting the variance at issue 

here. The comments raised at hearing are summarized below, with responses by IPH and 

Medina Valley following each. 

Comment: IEPA has not done a "source-specific" analysis of BART requirements at BART 

units, but used a "presumptive BART' enlission rate. These do not reflect reductions that would 

really result from BART controls at all BART units. USEPA' s calculations used a similar 

approach and found emission reductions in the MPS exceeded reductions of BART at only 

BART units. 

Response: The "source-specific" argument was previously made by ELPC on the USEPA 

Illinois Regional Haze SIP revision proposal of January 26, 2012, see 77 Fed. Reg. 3966. 

USEP A analyzed this argument and rejected it, determining that the Illinois plan was an 

acceptable BART alternative. 77 Fed. Reg. 39943, 39945 (July 6, 2012). 

Comment: New calculations should be done using the variances to evaluate whether the Arneren 

fleet is still "better than BART." BART alternative should be evaluated only as to the Arneren 

fleet because the MPS is set up that way and the variance only applies to the Ameren fleet. If 

that is not still "better than BART' the plan should not be approved. 

Response: This comment is actually related to the "source-specific" argument that was rejected 

by US EPA in its final rule approval of the Illinois Regional Haze SIP. See 77 Fed. Reg. at 

39945. The only difference is that this comment focuses not just on BART-subject units, but 

wants to separate the Ameren plants for calculations apart from the entire fleet that was the 

subject of the Illinois Regional Haze SIP final rule. 

Comment: The reductions from the retiring of Hutsonville, Meredosia and Edwards Unit 

should not be included in the analysis. Such a calculation would show that MPS is no longer 

3 
"better than BART" for the remaining Arneren facilities. Cornmenters. promised to show 

calculations in their written comments. 

Response; This very issue was raised by opponents to the variance during the proceeding before 

the Board, but the Board determined otherwise (Board Order, page 86), stating "the Board agrees 

with the Agency that "providing credit for actions (e.g., unit shutdowns) that result in emission 

reductions is an acceptable part of the regulatory process" and that such "emission reduction 

offsets ... are creditable and allowable." Citing Arneren Energy Resources, PCB 12-126, slip 

op. at 56 (Sept. 20, 2012). New calculations from the cornmenters using their desired inputs 

(i.e., without crediting the shutdowns) may produce the cornmenters' desired answer, but will not 

change the Board's determination that shutdowns and emission reductions are an acceptable part 

of the regulatory process and creditable and allowable. 

Comment: State has not made the required demonstration that the BART alternative will 

achieve greater reasonable progress. 

Response: This comment is vague and conclusory. However, the Board clearly found that this 

variance produced a net environmental benefit over the MPS (as part of the Illinois plan). 

Further, since the instant variance has more reduction than the prior variance, the conclusion that 

the prior variance achieved greater reasonable further progress must also be true for this 

variance. USEP A had already determined that the underlying MPS would achieve the required 

greater reasonable progress. See 77 Fed. Reg. at 39945. 

Comment: Visibility modeling is required to show greater reasonable progress, citing 40 C.F.R. 

§51.308(e)(3). 

Response: This issue was addressed in the USEP A technical support document to the final rule 

approval of the lllinois Regional Haze SIP. 77 Fed. Reg. at 39945. In its technical analysis, the 

USEP A compared the lllinois strategy with source-specific BART, concluding that modeling 

analysis was not necessary; 

Given the regional nature of visibility impairment, an alternative that results in 

lower emissions of sulfur dioxide (SOz) and nitrogen oxides (NOx) will generally 

provide better visibility protection. Thus, in the absence of differences in spatial 

distribution of emissions, a modeling analysis is generally not necessary to be 

able to conclude that an alternative strategy with lower S02 and NOx emissions 

provides better visibility protection. 

Memorandum, Subject; Comparison of Illinoi Power Plant Emission Reductions to Reductions 

from Source-Specific Best Available Retrofit Technology, From; John Summerhays, Attainment 

Planning Maintenance Section, USEPA Region 5, To; Files (May 29, 2012), at 1. It is also 

worthy to note that USEP A pointed out in the final rule, 77 Fed. Reg. at 39946, that the closest 

distance of any BART -subject lllinois power plant to any Class I area was 140 kilometers. 

4 

-· 
.. 

ill. APPROVAL OF SIP ~VISION WILL NOT JEOPARDIZE NATIONAL 

AMBIENT AIR QUALITY STA.l\!DARDS 

In its decision, the Board found that "the requested variance will result in an overall reduction in 

emissions and therefore has no significant negative impact on the environment or health." IPCB 

14-10 (Nov. 21, 2013) Slip Op., p. 2. The Board also found that the requested variance was 

"consistent with federal law." On that later point, consistency with federal law, the Board found: 

The Board has authority under Section 110 oftheCAA (42 U.S.C. § 7410) to 

adopt regulations that are part of the State's plan for implementing, 

maintaining, and enforcing air quality standards. The variance procedure to 

grant relief from a Board regulation is consistent with the authority granted to 

the siates under the CAA's Section 11 (). 

If the variance is granted, the Agency will submit the variance order to USEPA 

for approval as a revision to the lllinois SIP. Agency Rec. at 26-27. As noted 

earlier, US EPA did not identify any adverse issues with the prior variance 

granted in PCB 12-126. The Agency does not expect that USEPA will find any 

adverse issues with the current request, in which 802 reductions are expected 

beyond those contained in the previous SIP revision submitted to USEPA for 

PCB 12-126. Agency First Resp. at 3; Agency Second Resp. at 1-2. 

The Agency concludes that granting this variance will not jeopardize the State's 

obligations to attain and maintain the 1-hour 802 NAAQS, but cautions: 

This variance deals only with the requirements in question at the 

current time. Any new rules mandating reductions in 802 will be 

addressed in a separate rulemaking proceeding before the Board. 

Variances for existing requirements do not affect any future rules. 

* 

• 

• 

[T]he [Agency] will propose new rules to the Board and such 

rules will require sufficient reductions to allow the attainment 

and maintenance of the NAAQS. Agency First Resp. at 2. 

Based upon this record, the Board finds that granting petitioners' request for a 

variance, subject to the conditions in the order below, would be consistent with 

current Illinois SIP obligations to attain and maintain NAAQS compliance. 

The Board therefore finds that granting petitioners a variance from the rule is 

consistent with federal law. 

5 
As indicated above, however, iffederal rules, such as a CAIR or CSAPR · 

replacement, go into effect, petitioners might need to implement additional 

controls. For example, USEPA's adoption of a new primary NAAQS for S02 

of0.75 ppb became effective August 23, 2010. 75 Fed. Reg. 35520 (Jllile 22, 

2010). Effective October 4, 2013, USEPA made its initiall-hour S02 air 

quality designations for the State of Illinois. Among the areas designated as 

"nonattainment" for the 1-hour S02 NAAQS is the area in which the E.D. 

Edwards station is located. 78 Fed. Reg. 47191 (Aug. 5, 2013). 

The schedule for state plans addressing areas designated as nonattainment is 

governed by CAA Sections 191(a) and 192(a) (42 U.S.C. §§ 7514(a), 7514a(a)). 

In adopting the new primary S02 NAAQS, USEPA stated: 

[A]ny State containing an area designated as nonattainment with 

respect to the S02 NAAQS would rieed to develop for submission to 

[US]EP A a SIP meeting the requirements of part D, Title I, of the 

CAA, providing for attainment by the applicable statutory attainment 

date .... [A]ll components of the S02 part D SIP must be submitted 

within 18 months of the effective date of an area's designation as 

nonattainment. 75 Fed. Red. at 35577 (June 22, 2010). 

Eighteen months from the October 4, 2013 effective date will be April4, 2015. 

USEP A also stated that SIPs "would need to provide for attainment and 

maintenance of the new 1-hour S02 NAAQS as expeditiously as practicable, 

which we expect to be no later than five years after initial designation ... in all 

areas of the State _ .. _" 75 Fed. Reg. at 35553 (June 22, 2010). Five years 

from the October 4, 2013 effective date will be October 4, 2018. Although the 

conditions of the variance order below would extend through the end of2020, 

the variance from the two MPS provisions at 3 5 Ill. Adm. Code 

225.233(e)(3)(C)(iii) and (iv) would end on December 31,2019, approximately 

14 months after October 4, 2018. 

Accordingly, it is conceivable that during the term of the variance, the Agency 

may begin proposing new rules for S02 emissions. As petitioners state, the 

Agency will need to analyze air emissions modeling to determine culpable 

sources and appropriate emission limits or control measures as part of its SIP. 

Pet. First Resp. at 7. Petitioners state that !PH "recognizes that the requested . 

variance relief would not exempt E.D. Edwards from compliance with any 

federal Clean Air Act requirements adopted in the future, including Illinois 

regulations, if any, needed to implement SIP obligations conceming the onehour S02 NAAQS." Pet. at 67. 

6 
" ' . ' 

Of course, as noted by the People, any changes to the Board's rules will go 

through the rulemaking process, and all parties and participants here will have 

an opportunity at the time to reassess petitioners' prospects and environmental 

and health impacts in light of new regulatory requirements. 

!PCB 14-10 (Nov. 21, 2013) Slip Op.,p. 99-100. 

Thus, while the proposed SIP revision concerns the Regional Haze SIP, it is clear that 

the Board carefully analyzed the variance with respect to attainment and maintenance of the 

NAAQS. The Board found thatthe variance was appropriate as to this issue, as well as the many 

others considered. 

WHEREFORE, Illinois Power Holdings, LLC and AmerenEnergy Medina Valley Cogen, 

LLC recommend that the proposed SIP revision for the variance granted them by the Illinois 

Pollution Control Board on November 21, 2013, be submitted to the USEPA for approval as part 

of the Illinois SIP. 

ILLINOIS POWER HOLDINGS, LLC 

By:41~. -

BRO"WN, HAY & STEPHENS, LLP 

Claire A. Manning 

cmanning@bhslaw.com 

William D. Ingersoll 

wingersoll@bhslaw.com 

.205 S. Fifth Street, Suite 700 

P.O. Box 2459 

Springfield, IL 62705-2459 

(217)544-8491 

Dated: June 20,2014 

7 

.1\MERENENERGY MEDINA VALLEY 

COGEN,LLC 

By: JMU?.q · . ,fJ_O:C 

One ofits A omeys 

SCHIFF HARDIN, LLP 

Amy Antoniolli 

Renee Cipriano 

233 South Wacker Drive, Suite 6600 

Chicago, lllinois 60606 

(312)258-5550 

Fax: 312-258-5600 

aantoniolli@schiffuardin.com 

., 
Earthjustice • Environmental Law and Policy Center • Sierra Club 

VIA E-MAIL AND REGULAR MAIL 

Dean Studer, Hearing Officer 

Illinois EPA 

1021 North Grand Avenue East 

P.O. Box 19276 

Springfield, Illinois 62794-9276 

Dean.Studer@lllinois.gov 

June 20,2014 

Re: Proposed Revision of the Illinois State Implementation Plan for Regional Haze 

Dear Mr. Studer, 

Please accept these comments submitted by Earthjustice, the Environmental Law and 

Policy Center ("ELPC''), and the Sierra Club on the proposal to revise the Illinois State 

Implementation Plan ("SIP") for regional haze to incorporate a variance granted by the Illinois 

Pollution Control Board ("PCB") to Illinois Power Holdings, LLC ("IPH") and AmerenEnergy 

Medina Valley Cogen, LLC ("Medina Valley"). 

As explained below, the Illinois Environmental Protection Agency ("IEPA") should not 

fmalize the proposed SIP revision and should not submit it to the U.S. Environmental Protection 

Agency ("EPA") because it does not meet the applicable requirements of the Clean Air Act 

("CAA"). First, the proposed SIP revision, like the original SIP, does not contain the five-factor, 

unit-specific best available retrofit technology ("BART") determinations required by the CAA. 

Second, even if it were permissible in theory to substitute an alternative program such as 

the Multi-Pollutant Standard ("MPS") for unit-specific BART limits, IEPA has not met its 

burden to show that the MPS is approvable as a BART alternative because the agency has not 

performed the required modeling of the visibility impacts from the MPS compared to BART. 

Third, the Illinois Pollution Control Board granted variances to Arneren Energy 

Resources, and later to IPH and Medina Valley, from the Illinois Multi-Pollutant Standard, 35 Ill. 

Adm. Code 225.233, from 2015 through the year 2019, that significantly weaken the MPS' 

requirements of reductions in haze-forming sulfur dioxide ("S02'') relied upon by EPA in 

approving the Illinois regional haze SIP. The MPS sets out annual fleet-wide sulfur dioxide 

limits applicable to the fleet of7 coal-fired power plants that, at the time of the MPS' adoption, 

were operated by Arneren Corporation and its subsidiaries ("Ameren"). The 5 Arneren plants 

still in operation-Coffeen, Duck Creek, E.D. Edwards, Joppa, and Newton-are now owned 

and operated by IPH; the 2 former Ameren plants that retired in 2011-Hutsonville and 

Meredosia-are owned by Medina Valley. The variances make the MPS' fleet-wide S02limits 

significantly less stringent than those EPA approved in its final rule. This development 

completely undermines the rationale for finding, pursuant to 40 C.F.R. § 51.308( e)(2)(i), that 

Illinois' implementation of the MPS to reduce S02 emissions from the former Ameren fleet's 

I 

ATTACHMENT 2. q 
Illinois coal-fired power plants will "achieve greater reasonable progress than would be achieved 

through the installation and operation of' BART at the fleet's BART-subject plants. Rather, 

because of the variances, the MPS will no longer require S02 reductions from the former 

Ameren coal fleet during the period of the first long-term strategy for regional haze (i.e., before 

2018, see 40 C.F.R. § 51.308(f)) that are greater than the reductions that would result from 

requiring IPH to install and operate BART on its BART-subject plants. 

As a result of these three legal deficiencies, EPA cannot approve the proposed SIP 

revision. Instead of finalizing a plan that EPA cannot lawfully approve, IEP A should conduct 

source-specific BART determinations for the !PH units subject to BART. 

I. BACKGROUND 

Recognizing that manmade haze diminishes visibility and degrades the integrity of many 

of the nation's national parks and wilderness areas, Congress in 1977 amended the Clean Air 

Act, "declar[ing] as a national goal the prevention of any future, and the remedying of any 

existing, impairment of visibility in mandatory class I Federal areas which impairment results 

from manmade air pollution." See 42 U.S.C. § 7491(a)(l); see also 40 C.F.R. pt. 81, subpt. D 

(listing the !56 protected Class I areas, including certain national parks, wilderness areas, and 

national memorial parks, as well as certain international parks). Among other things, Congress 

mandated that EPA adopt regulations that would require states to develop SIPs containing 

measures necessary to make reasonable progress toward the national goal of improving visibility, 

One of the cornerstones of the haze SIPs is the installation and operation of BART at BARTeligible sources 

1 that could be reasonably anticipated to cause or contribute to visibility 

impairment in a Class I area (referred to as sources "subject to BART"). 42 U.S.C. § 749l(a)(4), 

(b)(2)(A). 

In 1999 -after many years of deferred action on widespread, regionally homogenous 

haze- EPA promulgated the Regional Haze Rule. Regional Haze Regulations, 64 Fed. Reg. 

35,714 (July I, 1999). Under that Rule, states are directed to submit SIPs containing emissions 

limitations representing BART and schedules for compliance for each source subject to BART. 

See 40 C.F.R. § 51.308(e). States must determine BART for each source based on a case-bycase analysis, id. § 51.308(e)(l)(ii), and must require "each source subject to BART ... to install 

and operate BART as expeditiously as practicable, but in no event later than 5 years after 

approval" by EPA of the state's Regional Haze SIP, id. § 51.308(e)(l)(iv). 

On June 24,2011, Illinois submitted a proposed Regional Haze SIP to EPA. 77 Fed. 

Reg. 3966, 3970 (Jan. 26, 2012). In its proposed SIP, Illinois stated that, based on modeling 

completed by the Midwest Regional Planning Organization ("MRPO"), it determined that 

emissions sources in the state cause or contribute to visibility degradation in 19 national parks 

and wilderness areas (defined in the CAA as "Class I areas") 2 To comply with the BART 

provisions of the Regional Haze Rule, Illinois evaluated which BART-eligible emissions sources 

1 A source is BART Meligible if it is a stationary source within one of 26 enumerated categories, was not in operation 

before August 7, 1962 but was in existence on August 7, 1977, and has the potential to emit 250 tons per year or 

more of any pollutant. 42 U.S.C. § 749l(b)(2)(A), (g)(7). 

2 Illinois SIP Submittal, Attachment I to Docket lD No. EPA-R05-0AR-2011-0598-0002. 

2 

• 
within the state cause or contribute to visibility impairment in those Class I areas and are thus 

subject to BART. Illinois identified II such sources, including 9 coal-fired power plants. 3 

Instead of evaluating and determining BART for all 9 coal-frred power plants subject to 

BART, Illinois proposed for 7 of the 9 plants that two state emissions trading rules implemented 

in tandem- the MPS, 35 Ill. Adm. 225.233, and the Combined Pollutant Standard ("CPS"), 35 

Ill. Adm. Code 225.291-299- be relied on as an "alternative" to BART4 These 7 plants 

included 3 plants from the original Ameren fleet: Coffeen, Duck Creek, and E.D. Edwards5 

Each of these 3 plants is currently regulated by the MPS, as are the 4 additional plants in the 

original Ameren fleet 6 The MPS requires that this fleet's emissions of S02 and nitrogen oxides 

("NOx") be reduced to meet certain fleet-wide average emission rates each year

7 The MPS' 

fleet-wide average emission rates "are intended to allow the companies the flexibility to meet the 

fleet-wide emission limits in the most cost-effective manner" by reducing S02 and NOx 

emissions more at some plants than at other plants. 8 The S02 limits for the Ameren fleet vary by 

year; the fleet's average S02 emissions cannot exceed 0.25 lb/MMBtu between 2015-2016 and 

cannot exceed 0.23 lb/MMBtu from 2017 onwards. 

At the same time, because the MPS requires reductions at all 7 of the original Ameren 

plants instead of just the 3 plants with units subject to BART, Illinois proposed that EPA find 

that its "approach will yield much larger reductions ofNOx and S02 than will implementation of 

BART controls on just subject to BART emission units."9 Thus, according to Illinois, the greater 

fleet-wide reductions that the MPS requires of the original Ameren fleet (together with similar 

reductions that the MPS and CPS require of two other fleets, owned by Midwest Generation and 

Dynegy at the time the MPS and CPS were adopted) constitute "greater reasonable progress than 

would have resulted from the installation and operation of BART" at the BART-subject units in 

those fleets. 10 

After EPA proposed to approve the Illinois Regional Haze SIP, ELPC, Sierra Club and 

other organizations filed comments opposing EPA's approval. 11 The comrnenters first argued 

that under the plain language of Section 169A of the Clean Air Act, 42 U.S.C. § 7491, BART is 

a mandatory measure that must be implemented to achieve reasonable progress toward 

restoration of natural visibility conditions. 12 Second, the commenters noted several reasons why 

Illinois' implementation of the MPS/CPS will not achieve greater reasonable progress toward 

natural visibility conditions than BART and thus could not constitute a lawful BART alternative 

3 Technical Support Document, Attachment 2 to Docket ID No. EPA·R05-0AR·2011-0598-0002, at 12·22. 4 Illinois SIP Submittal at 19-20. For the remaining two BART-subject plants, Illinois proposed BART 

determinations. Technical Support Document at 31-38. 

'Illinois SIP Submittal at 20; Technical Support Document at 22, 28. 

'Technical Support Document at 28-30. 7 /d. at 24-25. 

8 /d. at 25. 

9 /d. 

10 Responsiveness Summary, Attachment 9 to Docket ID No. EPA-R05-0AR-2011-0598-0002, at 5 (citing 40 

C.F.R. § 51.308(e)). 11 Comments ofELPC, eta/., Docket lD No. EPA-R05-0AR-2011-0598-0004. 12 See id. at 6-7. 

3 
under the Regional Haze Rule. 13 Among other reasons, ELPC and Sierra Club pointed out that 

Illinois compared the MPS/CPS to "presumptive BART" limits for BART-subject units that were 

"at least 2 to 3 times higher than recent BART requirements" imposed after source-specific 

BART determinations, and that Illinois had failed to make similar source-specific BART 

determinations for any of the BART-subject plants regulated by the MPS or the CPS. 14 ELPC 

and Sierra Club's comments thus argued that, "if Illinois had conducted proper BART analyses, 

it is virtually certain that it would have determined that the MPS/CPS is not 'better' than BART 

for subject sources." 15 

On July 6, 2012, EPA issued the fmal rule approving and promulgating the Illinois 

Regional Haze SIP. 77 Fed. Reg. 39,943, 39,943-48. In response to ELPC and Sierra Club's 

comments, EPA stated that it "continues to believe that Illinois' plan limits power plant 

emissions as well as would be achieved by directly requiring [BART]" and thus that the Illinois 

SIP "satisfactorily addresses Clean Air Act section 169A and Regional Haze Rule requirements." 

!d. at 39,943. Although EPA acknowledged that the MPS/CPS allows BART-subject units to 

meet less stringent S02 and NOx emission limits than a BART requirement, EPA stated that 

"Illinois is requiring control across a universe of sources that includes many sources that are not 

subject to BART, thereby providing reductions that under EPA's rules and BART guidelines on 

alternative measures can compensate for any shortfall in control at BART units." !d. at 39,945. 

In addition, to address ELPC and Sierra Club's comment that the "presumptive BART'' 

limits analyzed by Illinois were 2 to 3 times higher than actual, source-specific BART limits 

would be, EPA prepared a "further analysis" using lower emission limits "of whether Illinois' 

requirements, addressing a substantial number of sources, can be expected to provide greater 

reasonable progress toward visibility protection than application of BART to the more limited 

number of units subject to a requirement for BART." !d. at 39,945. This analysis was 

summarized in a memorandum dated May 29, 2012, by John Summerhays, EPA Region 5 

Attainment and Maintenance Section, entitled "Comparison oflllinois Power Plant Emission 

Reductions to Reductions from Source-Specific Best Available Retrofit Technology" 

(hereinafter the "Summerhays Memo"), Docket ID No. EPA-R05-0AR-2011-0598-0007. 16 

For its further analysis in the Summerhays Memo, EPA assumed a S02 emissions limit 

of 0.06 lb/MMBtu, which it defined as an average of recent Best Available Control Technology 

("BACT") limits for S02 from EPA's national RACT /BACT ILAER Clearinghouse database. 17 

This limit is 2.5 times lower than the 0.15 lb!MMBtu "presumptive BART" limit that Illinois 

took from EPA's 2005 BART Guidelines, 40 C.F.R. pt. 51, App. Y.' 8 Using the same 

methodology, EPA developed a set of similarly lowerNOx emissions limits as well. 19 Although 

its analysis did not yield source-specific BART determinations, EPA asserted that assuming an 

13 See id. at 7-14. 14 !d. at 7-12. 

15 /d.atlO. 

16 EPA placed the Summerhays Memo in the rulemaking docket at the time that it finalized the rule approving and 

promulgating the Illinois Regional Haze SIP. The analysis in the Summerhays Memo was not made available to the 

public during the public comment period on EPA's proposed approval of the lllinois Regional Haze SIP. 17 Summcrhays Memo at 1. 18 Technical Support Document at 23-24. 

19 See Summerhays Memo at 1. 

4 
average BACT limit as equivalent to BART would create a "conservative estimate of the 

emissions of BART on a source-specific basis," because "the emission limits representing 

BART, which by definition apply to relatively old existing units, are unlikely to be lower than 

the limits that would apply to new units and would in many cases be significantly higher."20 

For all three fleets regulated by the MPS/CPS- Ameren, Dynegy, and Midwest 

Generation- EPA found that the fleet-wide S02 and NOx reductions under full implementation 

of those rules in the year 2017 would exceed the S02 and NOx reductions that would be 

achieved if those fleets' BART-subject units would be required to install and operate BART, 

even using EPA's "conservative estimate" of lower BART limits than Illinois presumed. 21 With 

respect to S02 emissions from the Ameren fleet, EPA's analysis showed that full 

implementation of the MPS would compel S02 emission reductions of Ill ,997 tons, as 

compared to emission reductions totaling 74,348 tons ofS02 ifBARTwere required?2 

After EPA approved the Illinois regional haze SIP, the Illinois Pollution Control Board 

issued an opinion and order on September 20, 2012 granting Ameren "a variance requiring 

compliance with an overall annual S02 emission rate of 0.35 lb/mmBtu from 2013 through 

2019" on average at each of its power plants23 Under the terms of the variance, Ameren would 

not be required to meet the MPS 2015 fleet-wide average emission rate of 0.25 lbs./mmBtu until 

January I, 2020, and it would not be required to meet the MPS 2017 fleet-wide average emission 

rate of 0.23 lbs./mmBtu until January 15, 202024 

Subsequent to the September 2012 Order, Ameren entered into a tentative deal to transfer 

ownership of two EGUs to Medina Valley, a subsidiary of Ameren, and five EGUs to Illinois 

Power Holdings, LLC, which is owned by a subsidiary ofDynegy. Ameren and !PH petitioned 

the PCB to grant to the new owners substantially the same variance from the S021imits that had 

been granted in the September 2012 Order to the prior owners

25 Over the objection of public 

interest groups, the PCB granted a variance to !PH and Medina Valley26 !EPA now proposes to 

revise the regional haze SIP to include this variance for the former Ameren fleet. 

II. ARGUMENT 

The proposed SIP revision suffers from three separate legal flaws, each of which would 

prevent EPA from approving the revision. First, the revised SIP continues to ignore the statutory 

mandate to include source-specific BART determinations for all units subject to BART. Second, 

even if BART could be satisfied by alternative programs such as the MPS, a state must 

demonstrate that the alternative program will make greater reasonable progress than would 

BART; under these facts, the only permissible way to make this showing is through visibility 

20 Id. 21 Id. at 1-6. 22 Id. at 4. 23 Opinion and Order, Case No. PCB 12-126, at 1-2 (Ill. Pollution Control Bd. Sept. 20, 2012). 24 I d. at 1-2. The Board further found (based on Ameren's own variance petition) that of the 7 Ameren power plants 

that are regulated by the MPS, only 5 remain in operation, as Ameren retired its Meredosia and Hutsonville power 

plants at the end of 2011. Id. 

25 Opinion and Order, Case No. PCB 14-10, at I (Ill. Pollution Control Bd. Nov. 21, 2013). 26 I d. at 102-04 

5 
modeling, which TEPA failed to do. Third, as a result of the variances, the emissions reductions 

from the MPS will be lower than the reductions that would be achieved by BART at Ameren's 

fleet, demonstrating that the MPS will not make greater reasonable progress than would BART. 

A. The Proposed SIP Revision Unlawfully Substitutes Fleet-wide Emission 

Limits for the Unit-Specific, Five-Factor BART Analysis Required by the 

CAA. 

The proposed SIP revision continues to violate the CAA mandate that each SIP contain 

emission measures including BART. Instead of conducting the unit-specific BART 

detenninations according to the five factors specified by the CAA, IEP A used the MPS to 

purportedly satisfy the BART requirements for the Ameren units subject to BART. The MPS 

requires reductions of S02 and NOx across the former Ameren fleet of 7 coal-fired power plants 

to meet certain fleet-wide average emission rates each year?7 The MPS' fleet-wide average 

emission rates "are intended to allow the companies the flexibility to meet the fleet-wide 

emission limits in the most cost-effective manner" by reducing S02 and NOx emissions more at 

some plants than at other plants28 

The Clean Air Act does not permit a state to exempt units from BART without going 

through the exemption process outlined in the statute. The CAA requires that each haze SIP 

"contain such emission limits, schedules of compliance and other measures as may be necessary 

to make reasonable progress toward meeting the national goal [of attaining natural visibility 

conditions] ... including" BART. 42 U.S.C. § 7491(b)(2)(A). The plain language of the statute 

provides that EPA's regulations "shall require" each SIP to contain various elements, and those 

elements must include BART as a minimum requirement of every haze SIP. Put simply, BART 

is a mandatory floor for each BART -subject unit, not an optional requirement. 

The statute then specifies the only circumstances in which a source may be exempted 

from BART, none of which apply here. !d. § 7491 (c). The CAA provision that allows some 

limited exemptions from BART makes plain that any such exemption must be assessed and 

determined on a source-specific, not a state-wide, basis. !d.§ 749l(c)(l). Furthennore, EPA 

may exempt a unit from the source-specific BART requirements of the CAA only where the 

Federal Land Managers concur with the EPA detennination of an exemption. We are not aware 

of any statement from Federal Land Managers agreeing with the substitution of MPS limits for 

source-specific BART limits in Illinois. 

!EPA's interpretation of the statute, in which a State may substitute an alternative for 

BART on a state-wide or fleet-wide basis cannot be reconciled with Congress specifying very 

narrow standards for exempting a source from BART. 29 As a result, IEP A's continued failure to 

27 !d. at 24-25. 

28 !d. at 25. 

29 If EPA relies on D.C. Circuit Court of Appeals decisions upholding its interpretation of the statute, that 

application is incorrect as those cases (or at least that interpretation of those cases) fail to confonn to the plain 

language of the CAA. To the extent those cases can or must be read to allow EPA to substitute CSAPR for BART 

in the manner proposed here, the cases are incorrect in that the D.C. Circuit Court of Appeals has rewritten the 

statute by failing to give effect to the plain language requiring each SIP to include BART and by disregarding the 

very specific parameters in the statute for exemptions from BART. See Ctr. for Energy & Econ. Dev. v. EPA, 398 

6 
conduct unit-specific BART analyses violates the CAA. To remedy this legal deficiency, IEPA 

should conduct five-factor BART analyses for each unit in the former Ameren fleet subject to 

BART and not finalize or submit to EPA its current proposal. 

B. IEPA Cannot Meet its Burden to Prove that the MPS Makes Greater Reasonable 

Progress than BART without Conducting Visibility Modeling. 

IEP A has not conducted any modeling comparing the visibility impact from the former 

Ameren fleet under the MPS and BART limits. !EPA cannot meet its legal burden under EPA's 

regulations until it performs visibility modeling showing that granting variances to !PH and 

Medina Valley will result in no degradation at any Class I area and, averaged across all affected 

Class I areas, the MPS will cause more visibility improvement than BART would. 

EPA's regulations purport to allow a state to rely on an alternative program in lieu of 

imposing source-specific BART limits if the state demonstrates that the alternative will make 

"greater reasonable progress" than would BART. 40 C.F.R. § 51.308(e)(2), (e)(3). There are 

two ways to make the showing that an alternative program will achieve greater reasonable 

progress. "If the distribution of emissions is not substantially different than under BART," the 

alternative is deemed to make greater reasonable progress if "the alternative measure results in 

greater emission reductions." !d. § 51.308( e)(3). However, "if the distribution of emissions is 

significantly different, the State must conduct dispersion modeling to determine differences in 

visibility between BART and the trading program for each impacted Class I area, for the worst 

and best 20 percent of days." !d. In order to demonstrate "greater reasonable progress," the 

visibility modeling must show that the alternative program does not cause visibility to decline in 

any Class I area and averaged across all affected Class I areas, the alternative program improves 

visibility relative to BART. !d. § 51.308( e )(3)(i), (ii). 

EPA conceded that the "Part 225 rules reflect substantial averaging across units and 

across facilities." 77 Fed. Reg. at 3971. EPA's statement reflects the fact that the MPS is 

designed to allow Ameren the "flexibility" to make emissions reductions at some facilities but 

not others, or to spread the reductions across all facilities, so long as the fleet-wide average 

emission limit is met. The variances do not alter this basic element of the MPS; instead, the 

variance simply increases the overall emissions rate that the former Ameren fleet must meet by 

specific dates. By contrast, BART determinations must be made for each unit, and the 

corresponding emissions limits are particular to that unit and cannot be traded or averaged with 

limits at other units. 

By design, the MPS allows the flexibility to implement emissions reductions other than 

by imposing uniform reductions at specific units subject to BART. !EPA therefore has no basis 

for claiming that the "distribution of emissions [under the MPS] is not substantially different 

than under BART ... " 40 C.F.R. § 51.308(e)(3). Instead, !PH, the owner of the units in the 

former Ameren fleet still in operation, is authorized to meet the MPS limits in such a way that 

"the distribution of emissions is significantly different," id., than it would be if its subject-toF.3d 653 (D.C. Cir. 2005); Utility Air Regulatory Group v. EPA, 471 F.3d 1333, 1340 (D.C. Cir. 2006). 

Furthermore, these decisions are not binding precedent in the 7th Circuit, which has jurisdiction over EPA's 

approval of the Illinois regional haze SIP. 

7 
BART units had to meet unit-specific BART limits. lfthe distribution of emissions is 

significantly different under an alternative program compared to BART, a state must conduct 

visibility modeling in order to meet its burden of securing approval for the alternative program. 

To comply with EPA's governing regulations, IEPA should at a minimum conduct 

modeling of the visibility impacts from the MPS and BART. However, we urge IEPA to 

abandon its illegal reliance on the MPS to satisfY the BART requirements and instead perform 

source-specific BART determinations for the units in the former Ameren fleet subject to BART. 

C. As a Result of the Variance, the MPS Will Lead to Higher Emissions and Less 

Reasonable Progress than would BART. 

The variance from the MPS authorizes the former Arneren fleet to emit greater S02 

emissions than would be emitted under BART, and thus IEPA cannot prove that the MPS will 

lead to greater reasonable progress than would BART. EPA's implementing regulations permit a 

state to rely on an alternative program in lieu of imposing source-specific BART limits only if 

the state demonstrates that the alternative will make "greater reasonable progress" than would 

BART. 40 C.F.R. § 51.308( e)(2), ( e)(3). "If the distribution of emissions is not substantially 

different than under BART," the alternative is deemed to make greater reasonable progress if 

"the alternative measure results in greater emission reductions." Id. § 51.308(e)(3). A State 

must also require that "all necessary emissions reductions take place during the period of the first 

long-term strategy for regional haze," id. § 51.308( e)(2)(iii), which the regulations define as 

ending in 2018, id. § 51.308(f). 

The Illinois plan contains separate emissions limits for each fleet. The former Ameren 

fleet has its own emissions limits specified in the MPS, and the variance applies to only the 

former Arneren facilities. Since the Illinois plan consists of fleet-specific emissions limits, and 

since the proposed SIP revision applies only to the former Arneren fleet, the BART alternative 

must be judged on the same fleet-by-fleet basis. If the Illinois plan is not better than BART at 

the former Arneren facilities, it cannot be approved by EPA. 

Both IEP A and EPA assumed that the distribution of emissions would not be 

substantially different under the MPS as compared to BART, and compared only the emissions 

reductions under the MPS and BART at the former Ameren facilities. E.g., 77 Fed. Reg. at 

39946. Even if this assumption were correct, a comparison of the emissions reductions 

demonstrates that BART would reduce emissions more than the MPS (as amended by the 

Arneren variance) would at the former Arneren facilities. 

The table below recreates the calculation for the remaining Ameren fleet's S02 emissions 

for the year 20 I 7 found in Table I b on page 3 of the Summerhays Memo, but with two updates 

to reflect the new circumstances. First, the table substitutes the 0.35 lb/mmBtu average 

emissions rate now applicable under the IPH and Medina Valley variances. 

8 
•. J ' • 

Second, the table below excludes the purported "emissions reductions" at the Meredosia 

and Hutsonville units that have now been retired for several years due to economic reasons,

30 

along with emissions reductions from Edwards Unit l, which is now being operated only for grid 

reliability purposes subject to a short-term System Support Resource ("SSR") agreement with 

MIS031 These plants have retired or are retiring before the MPS limits at issue here are 

implemented, so the MPS is not driving emissions reductions at those plants. Moreover, the 

Meredosia and Hutsonville units were not even purchased from Ameren by !PH and should not 

be included in any analysis of emissions reductions at the former Ameren fleet. 

Table 1. Emissions Reductions from BART vs. Variances from the MPS for Former 

Ameren Fleet 

Updated Summerhays Memo 

Calculation for Ameren 

Table l indicates that BART would reduce S02 emissions by 74,348 tons. This value is 

taken, unaltered, from EPA's calculations. See, e.g., 77 Fed. Reg. at 39946. Table I updates the 

reductions achievable under the MPS to reflect that the variance authorizes Ameren to emit S02 

at a higher fleet-wide average rate of 0.35 lb/MMBtu. As a result, the MPS would now reduce 

S02 emissions by 69,555 tons. Accordingly, BART would reduce S02 emissions from the 

former Ameren fleet by 4, 793 tons more than would the MPS (with the variances). 

30 See Opinion and Order, Case No. PCB 14-10, at 7, 10 (Ill. Pollution Control Bd. Nov. 21, 2013) (noting that the 

September 2012 PCB Order required that Meredosia and Hutsonville remain shut down through December 2020); 

see also Jeffrey Tomich, Ameren Corp. Prepares to Close Two Old Power Plants in Illinois, ST. LOUIS POSTDISPATCH, Oct. 5, 2011, available at http://www.stltoday.com/businessllocal/ameren-com-prepares-to-close-twoold-power-planls-in/article Oa82d93f-52c8-5f43-a2d9-303e8ef438dc.html. 31 FERC Docket No. ER-13-1962-000, Order at 1-2,6 (Nov. 25, 2013), available at 

http://www.ferc.gov/CalcndarFiles/20 131125200818-ER13-1962-000.pdf. 

9 
The new calculation in the table above demonstrates that !EPA cannot meet its burden to 

prove that the Illinois Regional Haze SIP will lead to greater reasonable progress than BART 

with respect to the former Ameren fleet's S02 emissions. As noted above, EPA approved the 

Illinois haze SIP based on a comparison in the Summerhays Memo between MPS fleet-wide 

average emission rates and what it described as a conservative estimate of source-specific BART 

limits. Even assuming that the Summerhays Memo lawfully interprets the Clean Air Act and 

Regional Haze Rule requirements,32 the Illinois Pollution Control Board's grant of variances to 

IPH and Medina Valley will require EPA to reverse its finding in the Summerhays Memo that 

Illinois' implementation of the MPS will achieve greater reasonable progress than would be 

achieved through the installation and operation of BART at the former Ameren fleet's BARTb. I 33 su Ject p ants. 

IEP A should not finalize and submit to EPA a SIP revision that EPA cannot approve 

because it violates EPA's regulations requiring a BART alternative to make greater reasonable 

progress than BART. Instead, !EPA should conduct five-factor BART analyses for the former 

Ameren units subject to BART and revise the haze SIP to include such BART limits. 

III. CONCLUSION 

For the reasons set forth above, Earth justice, ELPC, and Sierra Club respectfully request 

that !EPA withdraw its proposal and not submit it to EPA for approval. In its place, the agency 

should develop unit-specific BART determinations for the former Ameren units subject to BART 

and propose a SIP revision that includes such BART limits. 

Please do not hesitate to contact the undersigned if you have any questions about these 

comments. Thank you in advance for your consideration of these important issues. 

Sincerely, 

~-=-·~,-== 

ThomasCmar 

Earthjustice 

5042 N. Leavitt Street, Suite I 

Chicago, IL 60625 

(312) 257-9338 

tcmar@earthjustice.org 

Matthew Gerhart 

Earth justice 

705 Second Ave, Suite 203 

Seattle, WA 98104 

32 As noted above and for the reasons set forth in their comments on the proposed Illinois Regional Haze SIP, ELPC 

and Sierra Club believe that, even before the variances were granted, EPA's approval of the Illinois Regional Haze 

SIP was inconsistent with Clean Air Act and Regional Haze Rule requirements. 

33 See Summerhays Memo at I (citing 40 C.F.R. § 51.308(e)(2)). 

IO 

.. ' ... 
l ' 1 ~ 

II 

(206) 343-7340 ext. I 024 

mgerhati@earthjustice.org 

Andrew Armstrong 

Environmental Law and Policy Center 

35 East Wacker Drive, Suite 1600 

Chicago, JL 60601 

(312) 795-3738 

AArmst:rong@elpc.org 

A·)~ Eva Schueller 

Sierra Club 

85 Second Street 

San Francisco, CA 94105 

(415) 977-5637 

eva.schueller@sietTaclub.org 
J 

lllinois Environmental Protection Agency 

Summary of Comments and Statement 

State Implementation Plan Revision Submittal for Variance Granted to Illinois Power 

Holdings, LLC and AmerenEnergy Medina Valley Cogen, LLC 

On July 22, 2013, Illinois Power Holdings, LLC ("IPH") and AmerenEnergy Medina Valley 

Cogen, LLC ("Medina Valley''), along with Ameren Energy Resources, LLC ("AER"), filed a 

Petition for Variance with the Illinois Pollution Control Board (''Board"). Illinois Power 

Holdings, LLC and AmerenEnergy Medina Valley Cogen, LLC, and Ameren Energy Resources, 

LLC v. Illinois Environmental Protection Agency, PCB 14-10. IPH and Medina Valley requested 

a variance for the electrical generating units in AER's Multi-Pollutant Standards ("MPS") Group 

from both the 2015 and 2017 sulfur dioxide ("S02") emission rate provisions of the Illinois MPS, 

35 Ill. Adm. Code 225.233, specifically the S02 emission standards set forth in Section 

225.233(e)(3)(C)(iii) and (iv). On November 21, 2013, the Board granted the variance, subject 

to certain conditions. This variance supersedes the previously-granted variance from the MPS 

for the same units that AER held. Ameren Energy Resources v. Illinois Environmental 

Protection Agency, PCB 12-126 (Sept. 20, 2012). IPH acquired ownership of the Ameren 

operating merchant generating stations (Coffeen Energy Center, Duck Creek Energy Center, 

E.D. Edwards Energy Center, Joppa Energy Center, and Newton Energy Center) under a 

transaction agreement between Ameren Corporation and IPH, and Medina Valley acquired the 

shuttered generating stations (Meredosia Energy Center and Hutsonville Energy Center). 

On May 20, 2014, the Illinois Environmental Protection Agency ("Illinois EPA") held a hearing 

and accepted public comments on the variance for the purpose of submitting such variance to the 

United States -Environmental Protection Agency ("USEP A") as a revision to the Illinois State 

Implementation Plan ("SIP") under the Clean Air Act ("CAA''), 42 USC § 7401 et seq. In order 

for a variance to be considered for approval as a revision to the SIP, the State must submit it in 

accordance with the requirements of40 Code of Federal Regulations ("CFR") § 51.104. The 

public comment period closed June 20, 2014. 

Public Comments 

On June 20, 2014, the Illinois EPA received the Joint Public Comment of Illinois Power 

Holdings, LLC, and AmerenEnergy Medina Valley Cogen, LLC, and written comments from 

Earthjustice, Environmental Law and Policy Center, and Sierra Club. The Joint Public Comment 

of Illinois Power Holdings, LLC, and AmerenEnergy Medina Valley Cogen, LLC, ("Joint Public 

Comment") summarizes comments raised at hearing, with responses by IPH and Medina Valley. 

The Joint Public Comment also states that while the proposed SIP revision concerns the Regional 

Haze SIP, it is clear that the Board carefully analyzed the variance with respect to attainment and 

maintenance of the National Ambient Air Quality Standards. The Joint Public Comment 

indicates that the Board found the variance was appropriate as to this issue, as well as the many 

others considered. The Joint Public Comment recommends that the proposed SIP revision be 

submitted to USEP A for approval as part of the Illinois SIP. 

1 '30 

ATIACHMENT---
The comments of Earthjustice, Environmental Law and Policy Center, and Sierra Club state that 

the proposed SIP revision suffers from three separate legal flaws, each of which would prevent 

USEPA from approving the revision. The comments state that first, the revised SIP continues to 

ignore the statutory mandate to include source-specific Best Available Retrofit Technology 

("BART") determinations for all units subject to BART. Second, even if BART could be 

satisfied by alternative programs such as the MPS, a state must demonstrate that the alternative 

program will make greater reasonable progress than would BART; under these facts, the only 

permissible way to make this showing is through visibility modeling, which Illinois EPA did not 

do. Third, as a result of the variances, the emissions reductions from the MPS will be lower than 

the reductions that would be achieved by BART at Arneren's fleet, demonstrating that the MPS 

will not make greater reasonable progress than would BART. 

Re~onse and Statement 

On July 6, 2012, USEPA approved Illinois' Regional Haze Plan and found that it satisfactorily 

addresses Section 169A of the CAA and the Regional Haze Rule requirements. See, 77 Fed. 

Reg. 39943. In its approval, US EPA stated, in part: 

The primary requirement, as specified in Clean Air Act section 169A, is 

for sources to procure, install, and operate BART. In some cases this 

requirement is met with an analysis of potential controls considering five· 

factors set out in EPA's regional haze rule (a "five-factor analysis"). 40 

CFR 51.308( e)(! )(ii)(A). As noted above, EPA has determined that this 

requireinent can be met by a state establishing an alternative set of 

emission limits which mandate greater reasonable progress toward 

visibility improvement than direct application of BART on a source-bysource basis. 

77 Fed. Reg. 39945. USEPA has concluded that Section !69A of the CAA may reasonably be 

interpreted to provide that the requirement for BART may be satisfied by an alternative program 

that provides greater visibility protection in lieu oflirnitations that directly mandate BART for 

individual sources determined to be subject to the BART requirement. See, 40 CFR 51.308(e). 

77 Fed. Reg. 39944. USEPA further stated in its approval oflllinois' Regional Haze plan as 

follows: 

In promulgating the 1999 Regional Haze regulations, EPA stated that to 

demonstrate that emission reductions of an alternative program would 

result in greater emission reductions, ''the State must estimate the 

emission reductions that would result from the use of BART level controls. 

To do this, the State could undertake a source-specific review of the 

sources in the State subject to BART, or it could use a modified approach 

that simplifies the analysis." 64 FR 35742 (July 1, 1999). 

In guidance published on October 13, 2006, USEPA offered further 

clarification for states for assessing alternative strategies, in particular 

regarding the benchmark definition of BART to use in judging whether the 

2 
•' 

alternative is better. See 71 FR 60612. In this rulemaking, EPA stated in 

the preamble that the presumptive BART levels given in the BART 

guidelines would be a suitable baseline against which to compare 

alternative strategies where the alternative has been designed to meet a 

requirement other than BART. 71 FRat 60619; see also 40 CFR 

51.308(e)(2)(i)(C). Illinois' analysis is fully consistent with EPA's 

conclusions in this rulemaking, 

Nevertheless, EPA undertook further analysis comparing Illinois' strategy 

against more stringent definitions of BART. In briet; EPA found that the 

alternative restrictions imposed by Illinois can be demonstrated to provide 

greater emission reductions and greater visibility improvement than even 

very conservative definitions of BART, even without a full analysis of the 

emission levels that constitute BART. 

77 Fed. Reg. 39945. 

USEPA's further analysis concluded that the reductions from Illinois' plan provide significantly 

greater emission reductions, especially for S02 but also for nitrogen oxides ("NO."), than even 

very conservative definitions of BART for the BART -subject units. 1 USEP A asserts, in part: 

Given the regional nature of visibility impairment, an alternative that 

results in lower emissions of sulfur dioxide (S02) and nitrogen oxides 

(NO.) will generally provide better visibility protection. Thus, in the 

absence of differences in the spatial distribution of emissions, a modeling 

analysis is generally not necessary to be able to conclude that an 

. alternative strategy with lower S02 and NOx emissions provides better 

visibility protection. 2 

Such analysis by USEP A compared Illinois' plan against a very conservative estimate of the 

emissions ofBART on a source-specific basis. Instead of using presumptive limits, USEPA 

used emission limits described in the RACT/BACT/LAER Clearinghouse as being applied to 

new sources. 77 Fed. Reg. 39945. Such limits (0.06 pounds per million British Thermal Units 

for S02 and NO.) are as stringent and are probably more stringent than would generally be 

expected to be met at existing power plants, due to the design constraints that are sometimes 

inherent in controlling emissions at an existing facility. !d. It is important to point out that 

BACT, which applies to new and modified units, is not BART, which applies to relatively old 

existing units. Nevertheless, the results demonstrate that the reductions from Illinois' plan, 

which includes the MPS, provide significantly greater emission reductions, than even very 

conservative definitions of BART for the BART -subject units. 

'Memorandum from John Summerhays, Attainment Planning and Maintenance Section, to Files, 

Regarding Comparison of Illinois Power Plant Emission Reductions to Reductions from SourceSpecific Best Available Retrofit Technology, May 29, 2012. This technical support document is 

found in the docket for Illinois' SIP revision approval, Docket ID No. EP A-R05-0AR-20ll0598. 

'!d. at 1. 

3 
In addition, in PCB 14-10, as in PCB 12-126, Ameren Energy Resources v. Illinois 

Environmental Protection Agency, the Board agreed with the Illinois EPA that ''providing credit 

for actions (e.g., unit shutdowns) that result in emission reductions is an acceptable part of the 

regulatory process" and that such "emission reduction offsets ... are creditable and allowable." 

Illinois Power Holdings, LLC and AmerenEnergy Medina Valley Cogen, LLC, and Ameren 

Energy Resources, LLC v. Illinois Environmental Protection Agency, slip op. at 86 (Nov. 21, 

2013). The Board took into account S02 emission reductions from not operating the Meredosia 

and Hutsonville stations through 2020, as well as the retirement ofE.D. Edwards Unit 1 as early 

as 2017, and found that the requested variance would produce a net benefit to air quality. /d. 

Conclusion 

As stated above, in order for a variance to be considered for approval as a revision to the SIP, the 

State must submit it in accordance with the requirements of 40 CFR § 51.104. On November 21, 

2013, the Board granted the variance to IPH and Medina Valley, subject to certain conditions. 

Accordingly, since IPH and Medina Valley sought relief from provisions of the MPS and such 

relief was granted by the Board, the variance must be submitted to USEPA for approval as a SIP 

revision addressing the visibility requirements under the CAA and the Regional Haze Rule. 

4