### ILLINOIS POLLUTION CONTROLBOARD September 18, 2013 ILLINOIS POWER HOLDINGS, 

### LLC and AMERENENERGYMEDlNAVALLEY COGEN, 

### LLC, Petitioners, AMERENENERGY RESOURCES, LLC, Co-Petitioner,


### v. ILLINOIS ENVIRONMENTAL PROTECTIONAGENCY, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) } ) 

### PCB 2014-010 (Variance- Air)



### HEARING REPORT 

### RECEIVED CLERK'S OFFICE



## SEP 1

## B 2013 STATE OF ILLINOIS Pollution Control Board

On September 

### 17, 20

### l3, a hearing in this matter 

### was heldbeforethe Illinois Pollution Control Board in Springfield, illinois. Attomey ClaireManning appeared onbehalfofthe petitioners, and attorney Renee Cipriano appeared on behalfofthe co-petitioner. Attorney Gina Roccaforte appeared onbehalfofthe respondent. 

### Witnesses Thefollowing witnesses testified during theheming: Mr. DanThompson Mr. George Bilicic Dr. LisaBradley, PhD 

### Mr. Steven Klafka and Mr. DavidJohnson made oral statements on behalfofthe EnvironmentalLaw and Policy Center. Approximately 160 people offeredpubliccomment at hearing. 

### Exhibits No exhibits were offered into evidenceatthehearing. 

# (3 ATTACHMENT

__ _

### 2
Public Commentand Briefing Schedule The public comment deadline is September24, 2013. The parties' brief's are dueby October 

### 7, 2013. Themailbox rule will not apply, and documents filed electronically are due 

### by 

### 4:30 

### p.m. on the due date. IT IS SO ORDERED.

Carol Webb Hearing Officer Illinois PollutionControl Board 1021 North Grand AvenueEast P.O. Box 19274 Springfield, Illinois 62794-9274 217/524-8509 Carol.Webb@illinois.gov

### 3


### CERTIFICATE OF SERVICE It is hereby certified that true copies ofthe foregoing order were mailed, first 

### class, on September 18,2013, to each ofthepersons on the attached service 

### lisL It is herebycertified that 

### atruecopy oftheforegoing order 

### was hand delivered to the following on September 18, 2013: John T. Therriault Illinois Pollution Control Board James R. Thompson Center 100 W. Randolph St., Ste. 11-500 Chicago, Illinois 60601

CarolWebb Hearing Officer Illinois Pollution Control 

### Board 1021 North Grand Avenue East P.O. Box 19274 Springfield, Illinois 62794-9274 217/524-8509 Carol.Webb@illinois.govPCB 2014-010 William D. Ingersoll Brown, Hay 

### & Stephens LLP 205 SouthFifth Street, Suite700 P.O. Box 2459 Springfield, IL 62705-2459

PCB 2014-010 Renee Cipriano SchiffHardin, LLP 6600Willis Tower 233 S. WackerDrive Chicago, IL 60606-6473

PCB 2014-010 GinaRoccaforte IEPA 1021 North Grand AvenueEast P.O. Box 19276 Springfield, IL62794-9276 4
PCB 2014-010 Claire A. Manning Brown,

### Hay & Stephens

### LLP 205 South Fifth Street, Suite700 P.O. Box 2459 Springfield. IL 62705-2459

PCB 2014-010 Amy Antoniolli SchiffHardin,LLP 6600 Willis Tower 233 S. WackerDrive Chicago. IL60606-6473

## Electronic Filing- Racivad. Clark's Office: 09/2412013- PC# 2337

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD ILLINOIS POWERHOLDINGS, LLC, and AMERENENERGY MEDINA VALLEY COGEN,LLC, Petitioners, AMERENENERGYRESOURCES, LLC, Co-Petitioner,

v. 

### ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, Respondent. ) ) ) 

### ) ) ) ) ) ) ) ) ) ) ) ) ) 

### PCB 2014-010 (Variance- Air)

NOTICE OF ELECTRONIC FILING To: Attached Service List PLEASE TAKE NOTICE that on September 24, 2013, I electronically filed with the Clerk ofthe illinois Pollution Control Board ofthe State ofIllinois the POST-HEARING COMMENTS ofEnvironmental Law and Policy Center, Natural Resources Defense Council, Respiratory Health Association, and Sierra Club, a copy ofwhich is attached hereto and herewith served upon you.

Dated: September 24, 2013 Respectfully submitted,

Faith Bugel Andrew Armstrong Environmental Lawand Policy Center 35 EastWacker Drive, Suite 1600 Chicago, IL 60601 312-795-3708

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## Electronic Filing- Recived, Clerk's Office: 09/24/2013- PC# 2337

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD ILLINOIS POWERHOLDINGS, LLC, and AMERENENERGY MEDINAVALLEY COGEN,LLC, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 

### PCB 2014-010 (Variance- Air) Petitioners, AMERENENERGYRESOURCES, LLC, Co-Petitioner,

v. 

### ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, Respondent. POST-HEARING COMMENTS OF ENVIRONMENTAL LAW & 

### POLICY CENTER, NATURAL RESOURCES DEFENSE COUNCIL. RESPIRATORY HEALTH ASSOCIATION, AND SIERRA CLUB Pursuant to 35lll. Adm. Code 104.224(d), Environmental Law & 

### Policy Center, Natural Resources Defense Council, Respiratory Health Association, and Sierra Club (collectively, "Citizens Groups") submit thefollowing comments on the Petition for Variance ("the Petition") filed by lllinois Power Holdings, LLC ("IPH''), AmerenEnergy MedinaValley Cogen, LLC ("Medina Valley"), and Ameren Energy Resources, LLC ("AER") with the illinois Pollution Control Board ("Board") on July 22, 2013. TheBoard should deny this improper Petition for "advisory" variances from the MultiPollutant Standard's ("MPS") fleet-wide S02 

### emission limits from 2015 through 2019. These variances would confer a benefitto a handful ofcorporations, at an unacceptably high cost to the general public. PetitionerIPH wouldbenefit, because IPHwould receive a pre-transaction approval ofits plan to operate five AERcoal plants for five extrayears without installing needed 1



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pollution controls. PetitionerIPH's parent company, Dynegy Corporation ("Dynegy"), would benefit, because Dynegy's creation ofiPH as a new acquisition vehicle, with none ofDynegy's capital needed to install pollution controls, will have allowed Dynegy to place a risk-free bet on the power markets. Finally, the Ameren companies also would benefit, because AER could rid itselfofover $800 

### million in debtthat would be transferred to IPH-debtthat Dynegy itself could walk away from if(most likely "when") the critically undercapitalized IPH ultimately fails. It

### is the rest ofthe State that would bear the cost ofthe variances. State air quality as a whole would suffer from five more years ofexcess sulfur dioxide ("S02") 

### pollution and resulting fine particulate matter. Locally, the communities around AER's three unscrubbed plants-E.D. Edwards, Newton, and Joppa-will continue to bear pollution in excess ofthe recently adopted National Ambient Air Quality Standard ("NAAQS") for maximum hourly concentrations ofS02. 

### These communities also would betied to the undercapitalized IPH, and therefore would gain little more certainty aboutthe future ofthe plants than they have now. TheBoard should deny the Petition because the variances' negative environmental impact outweighs thehardship to IPH in being required to comply with the MPS, and because its request for "advisory" variances is legally improper. 

### I. Petitioners Have Failed to Prove That Any 

### Hardship is Not Self-Imposed. TheBoard should deny the Petition, first, because any hardship IPH claims in complying with the MPS would be self-imposed. In 

### orderfor the Boardto grant a variance, the petitioner has the burden ofpresenting adequate proofthat immediate compliance with regulations would impose an "arbitraryor unreasonable" hardship (including that the claimed hardship outweighs the public interest in attaining compliance with regulations designed to protect the public). 415 2

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ILCS 5/35(a); see also, e.g., WillowbrookMote/P'ship v. !PCB, 

### 135lll. App. 3d 343, 345 (1985); LandandLakes Company v. !EPA, 

### PCB 96-198 (Sept. 5, 1996), at 4; We, ShredIt, Inc. v. !EPA, 

### PCB 92-180 (Nov. 18, 1993), at 3. Importantly, however, a petitioner cannot meet this burden ifthe hardship it complains of is "self-imposed"-such a "hardship" simply cannotbe deemed "arbitrary and unreasonable." See, e.g., City of Salem v. !EPA, 

### PCB 98-1 (July 3, 1998), at 4; Bravo-Ernst v. !EPA, 

### PCB 81-62 (Dec. 3, 1981). Financial hardship resulting from a business decision-including a decision to acquire assets-is the very type of"self-imposed" hardship that cannotform the basis for a variance. See, e.g., WillowbrookMotelP'ship, 

### 135 ill. App. 3d at 345 (holding that hardship was self-imposed where, as here, purchaser conditioned an offerto purchase property on its ability to obtain a variance); !EPA v. Lindgren Foundry Co., 

### PCB 70-1 (Sept. 25, 1970) (holding that hardship was self-imposed where petitioners purchased ofa foundry with knowledge of environmental complianceissues and the fact that the foundry could not be operated profitably without a variance); Ekco Glaco v. !EPA, 

### PCB 87-41 (Dec. 17, 1987) (holding that "any hardship in complying with the 1983 regulations is largely self-imposed, in that it results from priorbusiness decisions"); SkywayRealty v. !EPA, 

### PCB 75-249 (Sept. 18, 1975), at 2 (holding that hardship was not arbitrary or unreasonable where an entity proceeded with the construction ofnewhomes while having full knowledge ofa costly existing regulation, therefore making its hardship self-imposed). In 

### the present case, IPH's claimed "hardship" is plainly self-imposed. Most basically, the alleged financial hardship is solely the result ofan intentionally risky business strategy that Dynegy- IPH's parent-is seeking to implement. This business strategy-agamble on futnre energy prices-couldbe potentially lucrative for Dynegy shareholders ifenergy prices 3

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unexpectedly increase. More likely, however, IPHwill ultimately fail, and while Dynegy will
notbe harmed, citizens oflllinois will have suffered from years ofincreased airpollution by subsidizingDynegy's gamble. All ofthis is a direct result ofthe intentionally irresponsible way in which Dynegy and IPHhave chosen to structurethe proposed acquisition. The structure ofthe proposedtransaction is examined in detail in the expert report ("ACMReport") 1 submitted by DavidJohnson' ofACMPartners in connection with thePetition. In his report, 

### Mr. Johnson makes extremely clear thatthe structure oftheproposedtransaction, and theprojected financial hardship at issue, is the direct result ofan intentional business strategy beingpursuedby IPH and its corporateparent, Dynegy. Theproposed structure ofthe transaction, as well as the economics ofthe assets being acquired, makes the ACMReport's conclusion fairly apparent. Dynegy, acting through IPH (which it, in fact, formed for this purpose), is only proposingto acquire the AERplants because ithas negotiated whatitviews as a potentially lucrative business deal where it proposesto: (a) acquire the AERplants in a bankruptcy remote subsidiary 

### (i.e., IPH)'; (b) notproperly capitalize IPHor otherwise risk any significant amount ofits own money;' and (iii) only committo acquiring the AERplants ifit gets advance approval ofa variance suchthatIPH is not required

1 The report includes an economic and financial analysis of the proposed transaction betv.een Illinois Power Holdings, LLC ("!PH"), a subsidiary ofDynegy, and Ameren Energy Resources ("AER"), as well as an assessment ofthe strength ofthe fmancial hardship claim brought by the Petitioners. The analysis contained in Mr

. .Tohuson's Report is incorporated herein by reference. 2 Mr. Johnson is a recognized expert in his field, with a deep background in advising management, creditors and other key stakeholders on restructurings, distressed transactions, and the adequacy of proposed capital structures. He has authored over twenty articles in trade publications, and he routinely presents to management groups, lenders, and professional associations. He is also a frequent lecturer at business schools and has been cited in numerous business publications as a subject matter expert. 3 See ACMReport at 5, 17. 4 IPH's «thin" initial capitalization is coming from Ameren. Ameren, the seller, is committing $226 millionto divest-i.e., getrid of-the Coal Plants. See ACM Report at 4, 6. 4

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to immediately comply with the MPS in operating the AER plants.' After a careful analysis of the structure and economics oftheproposed transaction, Mr. Johnson concludes that: The precarious financial situation that IPH will immediately find itself in is plainly not an accident. Dynegy has gone to lengths to structure the transaction in this exact manner to keep it from having to invest money in or otherwise properly capitalize IPH. It 

### has highlighted the non-cash nature of the deal to investors, presumably to assuage concerns about what might otherwise appear to be a questionable acquisition. After all, Ameren-itself a financially troubled public company-is affirmatively devoting $226 million (not counting risk sharing on future liabilities) to divest the Coal Plants and shed expected future losses (and likely restructuring costs). In light ofthe above-i.e. the problematic nature ofthe assets being acquired and the likelihood that a restructuring or bankruptcy ofIPH will be necessary in the relative short term (absent an turnaround in energy prices that even IPH does not predict)-Dynegy management has also been at pains to assure its investors that IPH is "ring-fenced" 

### (i.e. Dynegy will not be harmedby IPHfailing). In short, it appears that Dynegy-a financially viable company that could properly capitalize IPH ifit chose to-is attempting to structure the acquisition to position itselfto make a lowrisk "gamble" on future energy prices. 

### Ifwholesale electricity prices climb une>.'])ectedly fast, the acquisition could be a great success, and ifnot-the far more likely outcome-Dynegy loses little even ifiPH fails spectacularly. 

### Dynegy 's 

### conscious andstrategic decision not to capitalize IPHand to generally stmcture the proposed transaction in a manner that will allow it to speculate onfuture energy prices, more than any other factor, is 

### the overriding cause of anyfinancial hardship claim IPH is 

### currently claiming. Any financial hardship is 

### thus plainly selfimposed, and to allow a variance under the circumstances would set ve1y 

### troublingprecedent. It would in essence give future buyers of environmentally problematic assets a "blueprint" for how to structure the acquisition so as to manufacture a perception of "financial hardship" and thereby avoid environmental compliance costs. ACMReport at 30 (emphasis added).

'See ACMReport at 4. 5

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In 

### sum, this is the exact 

### situation that the "self-imposedhardship" standard is designed to protect against. In

### fact, granting the Petition would set an extremely dangerous precedent. This precedent would allow any company looking to acquire distressed assets subject to environmental compliance costs to (1) putthe asset into a shell entity; (2) propose to insufficiently capitalize it; and then (3) seek advance approval ofa variance to remove the burden ofenvironmental compliance. lPHhas preemptively attempted to distinguish its situation from several "self-imposed" hardship cases. See 

### Petition PDFpages 52-53. This is both misleading and inaccurate at multiple levels. First, even the cases lPH cites plainly stand for the proposition that a hardship resulting from an affirmative business decision cannot form the basis for a variance. See, e.g., Ekco Glaco v. 

### !EPA, 

### PCB 87-41 (Dec. 17, 1987) (denying variance application as a result of finding that "anyhardship in complying with the 1983 regulations is largely self-imposed, in that it results from priorbusiness decisions"); Marathon Oil Co. v. 

### IEP A, 

### PCB 95-150 (May 16, 1996) (holding that one's own decision-making cannotbethebasis for a claim ofarbitrary or unreasonable hardship). lPH's attempt to distinguish these cases factually-which itselfis a stretch-does nothing to undermine the basic principle thatthey standfor. Second, Dynegy has failed to address additional case lawthat is on point both factually and legally. Specifically, in WillowbrookMotelPartnership, 

### purchasers formed an entity-just like Dynegy has formed lPHhere-which agreed to purchase an interest in land where a motel

was proposed to be developed. See WillowbrookMotelP'ship v. Pollution ControlBd., 

### 135 

### ill. App. 3d 343, 345' (1985). Just as in the present case, the proposed acquisition was conditioned

on the partnership receiving a variance. !d. In 

### other words, as here, the purchaser was only willing to proceed on the economic terms proposed ifthe variance request was approved. Thus, 6

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the Board properly found that there had been "no showing ofarbitrary or unreasonable hardship" and denied the petition for a variance. See WillowbrookMotelP'ship v. !PCB, 

### PCB 81-149 (July 14, 1983), at 4. The appellate court affirmed the decision ofthe Board, holding that the proposed purchaserknew about the environmental restrictions, that "its developmentplans constituted a gamble to obtain permits," and that as a result its alleged hardship was self-imposed. Willowbrook, 

### 135 

### lll. App. 3d at 345. Not only was the Board's decision affirmed on appeal, the appellate court also cited to the case of!EPA v. Lindgren Found1y Co., 

### PCB 70-1 (Sept. 25, 1970), where purchasers ofa foundry argued that they were facing an "arbitrary and unreasonable" hardship because they could notprofitably operate the foundry without a variance from environmental regulations. According to the Appellate Court in Willowbrook: 

### The Board [in the Lindren Foundry 

### case] stated that the new owners had reason to know when they invested that they could not operate the foundry without a favorable decision on their petition for a variance, and so their loss of investment was a self-imposed hardship. The Board considered.the losses to creditors and former employees more sympathetically, but concluded that it was fair that the hardship be borne by those who would benefit from the operation. 135 

### lll. App. 3d at 1036. In

### other words,justlike Willowbrook, 

### the Lindgren Found1y 

### case makes clear that companies cannot structure an acquisition so as to require a variance--doing so is plainly creating a "self-imposed" hardship. In the present case,justlike in the foregoing cases, Dynegy and IPH have intentionally structured the proposed transaction so that they can now argue that IPH will not be able to operate profitably without a variance. Thetransaction does not have to be structured this way. If Dynegy really thought this was a good bet, Dynegy has the financial resources to properly

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capitalize IPHin orderto allow itto meet its environmental obligations. 6 

### It has chosen notto, thereby imposing upon IPHthe projected "hardship"IPH complains of.7 

### Alternatively, ifthe AERfleet is so over-leveraged that it cannot be operated profitably and in compliance with environmental regulations, another possibility would have been a restructuring where bondholders take a "haircut" as part ofa transaction that results in a viable company. 8 

### Dynegy is instead asking thepublic to subsidize the transaction, preventing it or current debt-holders from having to face up to the compliance obligations associated with the assets. In 

### sum, any hardship IPHmay face ifthetransaction goes through is plainly the result of the manner in which it and Dynegy have chosen to structure the proposed acquisition. Petitions for variances have routinely been denied where the hardship imposed on thepetitioner was entirely self-imposed. This is especially true where thepetitionerhas made a business decision
to attempt to acquire assets without assumingthe environmental costs that go with it. In

### this
case, the denial ofa variance would not place any arbitrary or unreasonable hardship upon IPH

or Dynegy, as any hardship imposed wouldbe oftheir own making.

6 ACM Report at 15 ("It is well \\otlrin the financial capability ofDynegy to properly capitalize !PH, and Dynegy's failure to do so, more than any other factor, is the overriding cause ofany financial hardship claim IPH may have."). 7 These facts-that !PH \\Oll be undercapitalized from the start, that Dynegy has set !PH up as a bankruptcy remote subsidiary, and that Dynegy is not agreeing to invest any ofits own cash into the deal and has been at pains to let investors knO\v that it does not intend to support IPH going forward-cut directly against IPH's hardship claim. For example, in the Lindgren Found1y case (discussed above), purchasers of a foundry had put in little of their own money, and like Dynegy here, had structured the transactions so that they could easily dump the investment ifit did notV•'ork out The Board took this into account in denyingthe variance request, holdingthat: We are not greatly impressed by the O\vners' o\vn alleged losses. In the first place, they can cut and run if prospects dim; they will not be stuck**\\~th** a million-dollar plant they cannot sell or \\oth the obligation to pay half a nrillion in old debts. They will lose, at most, $70,000 by their own evidence. LindgrenFound1y, PCB 70-1 (Sept. 25, 1970)
8In fact, a potential restructuring is likely only being postponed by structuring the transaction in this manner. See ACM Report at 16 ("Based on the high fixed costs that independent power producers wrestle with, and the highly leveraged capital structure ofa post-transaction IPH, there is a reasonable concern that such a restructuring will not be avoided, but only deferred.".) 8

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II. IPH's Proposed Variance Would Threaten Public Health. The Petition also shouldbe denied because IPH's proposed variance would have a significant negative environmental impact that outweighs IPH's self-imposed hardship. The

excess S02

### emissions permittedbythe variance would cause both I) local health impacts in the communities around unscrubbed AERplants through direct short-term exposure to S02 

### and 2) degradation ofair quality throughout the State (and region) through transformation ofS02 

### into fine particulate matter ("PM2.5"). In 

### evaluating whether a proposedvariance is necessary to avoid an "arbitrary or unreasonable hardship," 415 ILCS 5/35, the Board must balance individual hardship against environmental impact. Monsanto Co. v. !PCB, 

### 67lll. 2d 276, 292 (1977). IPHbears the burden ofdemonstratingthat "thehardship resulting from a denial ofthe variance outweighs any injury
to the public or the environment from a grant ofthe variance." Marathon Oil Co. v. !EPA, 

### 242 ill. App. 3d 200, 206 (5th Dist. 1993). This entails an analysis ofboth I) "the nature and amount ofemissions

... ifthe variance is granted, compared to those that would result ifimmediate compliance were required" and 2) a "qualitative and quantitative description ofthe impact of petitioner's activity on human health and the environmentifthe requested variance is granted, compared to the impact ofpetitioner's activity ifimmediate compliance is required." 35lll. Adm. Code 104.204(g). In this case, IPHhas understated both the amount ofexcess S02 

### emissions that would be attributable to its proposed variance andthe emissions' impact on public health. In 

### calculating the amount ofemissions ifthe variance is granted, IPH relied upon outdated average heat inputs for the AERplants from up to seven years ago. Thatis inconsistent with the approach the Board approved in assessing the environmental impact ofthe variance granted to Midwest Generation 9

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earlier this year. SeeMidwest Generation, LLCv. !EPA, 

### PCB 13-24 (Apr. 4, 2013), at 66 (relying upon average annual heat input offour most recent years to assess environmental impact). IPH also improperly relies upon "credits" from the shutdowns ofthe Meredosia and Hutsonville plants, even though those plants are no longerrelevant for MPS compliance purposes. As discussed in Section III.B, below, Citizens Groups' analysis ofthe variance using appropriate heat inputs, and excluding Meredosia and Hutsovnille, shows thatthe variance would yield almost 50,000 tons more S02

### emissions from the fourth quarter of2013 through 2020 than would compliance with theMPS. Citizen Groups' analysis is attached hereto as Exhibit A. 

### Even more, IPHhas failed to adequately characterize the public health impacts ofthe AERplants' S02 

### emissions. IPH does not acknowledge the localized impactthat the three unscrubbed AER coal plants-E.D. Edwards, Joppa, and Newton-have on surrounding communities. This impactis demonstrated by the United States Environmental Protection Agency's ("U.S. EPA") recent designation ofthe community surrounding the E.D. Edwards plant as nonattainment for the latest National Ambient Air Quality Standard ("NAAQS") for S02, 

### as well as by thedispersion modeling analyses presented by Mr. 

### Steven Klafka. Mr. 

### Klafka's analyses predicted that each ofthe three unscrubbed plants cause NAAQS exceedances, whether based on pennitted or measured actual emissions. Contrary to Petitioners' attempts to minimize the harm ofS02

### pollution in general, NAAQS exceedances reflect that current emissions from the AERplants already are threatening public health. Any further delay in MPS compliance will mean further harm.

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A. The Proposed Val"iance Would Cause Localized Envh·onmental Harm 

### By Allowing the Continued Ope•·ation ofUnscrubbed Coal Plants. IPH has failed to acknowledge that its proposed variance would delay the installation of pollution controls or curtailment ofoperations for one ormore ofAER's three unscrubbed coal plants. As a consequence, the variance would allow a negative environmental impact-local exceedances ofthe 2010 NAAQS for S02-to continuethrough the end ofthe decade. IPH in this proceeding appears to question the premisethat direct S02exposurehas any demonstrable negative health impact. IPH is flatly wrong. U.S. EPA has found that direct shortterm exposure to S02 is linked to "an array ofadverse respiratory effects including bronchoconstriction [i.e., the constriction ofairwaves] and increased asthma symptoms." U.S. EPA, http://www.epa.gov/airquality/sulfurdioxide/health.html. To address direct short-term exposure, U.S. EPA in 2010 promulgated anewprimary NAAQS setting a maximum hourly ambient air concentration for S02of75 parts perbillion. U.S. EPA,

### P1immyNationalAmbient AirQuality Standard forSulfio·Dioxide, 75 Fed. Reg. 35520 (June 22, 2010). 9 In setting the standard, U.S. EPA considered a "broadrange ofscientific information" and ultimately concluded thatthe newNAAQS was "necessary to provide increasedpublic health protection for at-risk populations against an array ofadverse respiratory health effects related to short-term (i.e., 5 minutes to 24 hours) exposures to ambient S02." ld. at 35541. U.S. EPA settheNAAQS pursuant to Section 109(a) ofthe Clean AirAct, 42 U.S.C. § 7409, which directs the U.S. EPA to promulgate "primary" and "secondary" NAAQS for pollutants for which air quality criteriahave been issued. Section 109(b)(1) defines a "primary" standard as one "the attainment and maintenance ofwhich in thejudgmentofthe Administrator,

9 Specifically, the standard is based on the 3-year average ofthe 99th percentile ofthe yearly distribution of !-hour daily maximum S02 concentrations. ld. at 35222. 11

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based on the air quality criteria and allowing an adequate margin ofsafety, are requisite to protect the public health." 42 U.S.C. § 

### 7409(b)(1). The Clean Air Act's legislative history indicates that a primary standard is to be set at "the maximum permissible ambient air level

... which will protect the health ofany sensitive group ofthepopulation." S. Rep. No. 91-1196, 91st Cong., 2d Sess. 10 (1970). The U.S. Court ofAppeals for the D.C. Circuit has explained: NAAQS must protect not only average healthy individuals, but also 'sensitive citizens' such as children, and if a pollutant adversely affects the health of these sensitive individuals, EPA must strengthen the entire national standard. Coalition ojBatte1yRecyclersAss'n v. 

### US. EPA, 604 F.

### 3d 613, 618 (D.C. Cir. 2010) (internal quotations and citations omitted). In its Petition and at the September 17, 2013 hearingbefore the Board, IPHhas misconstrued the significance ofU.S. EPA's promulgation ofthe 2010 NAAQS. For example, IPH witness Dr. LisaBradley stated at hearing that "there are misconceptions about whatthe scientific research is telling us" about the health effects ofexposure to S02. 

### Transcript at 74, lines 20-21. She asserted that the U.S. EPA's Integrated Science Assessment ("ISA") supporting the newNAAQS concluded that studies "do notprovide sufficient evidence to infer a causal relationship between long-term exposure to S02" 

### and negative health outcomes. Id. at 79, line 14, to 80, line 2 (emphasis added). Only after questioning from the Board did Dr. Bradley mention that U.S. EPA's ISA also had addressed impacts ofshort-term exposure to S02

### -the very subject ofthe 2010 NAAQS. I

### d. at 80, line 16, to 81, line 3. Even then, Dr. Bradley impliedthatthe NAAQS had been based on only one epidemiological study showing a statistically significant correlation between S02 

### exposure and negative health impacts. Id. Dr.

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Bradley further asserted that later evaluations ofepidemiological studies had shown that "correlations with health effects are actually due to otherpollutants." 

### Id. Dr. Bradley's statements are both factually incorrect and legally irrelevant. Contrary to Dr. Bradley's implication, the U.S. EPA did not adopt the NAAQS based on a single epidemiological study. As discussed in the Federal Register notice adopting the rule, U.S. EPA considered controlled human exposure studies; "numerous epidemiologic studies [that] reported positive associations between ambient S02concentrations and respiratory symptoms in children,

as well as emergency department visits and hospitalizations for all respiratory causes and asthma

across multiple age groups"; and toxicological studies demonstrating that the basic physical effect ofS02exposure is bronchoconstriction. 75 Fed. Reg. at 35525. In the same notice, U.S. EPA also specifically addressed the contention from industry commenters that negative health impacts associated with S02exposure actually are causedby otherpollutants, stating: Although EPAhas recognized that multiple factors can contribute to the etiology of respiratory disease and that more than one air pollutant could independently impact respiratory health, 

### we continue tojudge, as discussed in 

### the !SA, that the available evidence suppoHs the conclusion that there is an independent effect ofS02 

### on respiratOJy morbidity

. . . . It 

### is therefore important to note that when the ISA evaluated U.S. and international epidemiologic studies employing multi-pollutant models, S02 

### effect estimates generally remained positive and relatively unchanged when co-pollutants, including PM, were included. I

### d. at 35531 (emphasis added). TheBoard should disregard 

### IPH's attempts to relitigate the merits ofthe 2010 S02 NAAQS. The U.S. Court ofAppeals for the D.C. Circuit already has rejected similar challenges, and affirmed that U.S. EPA did not act arbitrarily in setting the NAAQS. 

### NationalEnvtl. DevelopmentAssoc.'s CleanAirProject v. EPA, 686 F.

### 3d 803, 805 (D.C. Cir. 2012), 

### cert. denied 133 S. Ct. 983 (2013). 

### IPH should acknowledge the significance ofU.S. EPA's action.

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Pursuantto its statutory mandate to set a S02standard "requisiteto protectthe public health"- including specificallythe health ofparticularly sensitive subgroups-U.S. EPA promulgated a maximum hourly standard of75 parts perbillion. Exceedances ofthis standard nowmustbe regarded as constituting a threat to thehealth ofthe public exposed to heightened levels ofS02. Indeed, the Board in earlier variance cases has evaluated environmental impact in connection with NAAQS compliance, and has relied on air quality modeling to do so. In 

### Central IllinoisLight Co. v. !EPA, PCB 

### 99-80 (Apr. 15, 

### 1999), theBoard evaluated a petition for a variance from regulatory sulfur dioxide limits at the E.D. Edwards plant soughtby AER's

successor. TheBoard assessed whether granting the variance would threaten the area's compliance with the then-applicable NAAQS for S02. TheBoardreviewed an air quality modeling analysis provided by the petitioner which showedthatthe emission changes from the variance wouldresult in a total concentration ofS02 in the areathat was still "well belowthe NAAQS for sulfur dioxide." 

### Id., at 5. TheBoardtherefore concludedthatthe variance would
nothave a negative environmental impactbecause "the analysis shows that the proposed variance will notthreaten the area's compliance with the NAAQS, the standardthattheUSEPA has establishedto 'protectthe health and welfare ofall citizens."' 

### Id., at 5, 6. 

### See also Wallace Phannaceuticals v. !EPA, PCB 

### 02-207 (Sept. 

### 19, 2002), at 3 ("The Agency agrees thatthe requested variance should result in no significant environmental harm, as Wallace is not out of compliance at this time and the requested reliefwill not result in an increase in YOMemissions that will threaten violation ofthe ozone NAAQS in the area."). Therefore, itis significant in this case that all three ofAER's unscrubbed coal plants all have been predictedto cause NAAQS exceedances. With respect to theE.D. Edwards plant, this is demonstrated by the fact that U.S. EPA has designated Hollis Township in PeoriaCounty, the 14

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area surroundingthe plant, as non-attainment, because on monitored exceedances ofthe NAAQS. U.S. EPA,Air QualityDesignations for the 2010 SulfurDioxidePrimm)'National AmbientAir QualityStandards, 78 Fed. Reg. 

### 47191,47198-99 (Aug. 5, 

### 2013). For all three plants, though, the reports submitted by Mr. Klafkafurther indicate that that the plants' permitted and actual emissions are predictedto cause exceedances ofthe NAAQS. 10 Mr. Klafka conducted a dispersion modeling analysis for each plantto assess compliance with the 

### 2010 S02 NAAQS. See, e.g., KlafkaEdwards Report at 

### 2. Followingthe mostrecent federal and state guidance, Mr. Klafkautilized U.S. EPA's AERMOD air dispersion model to predictthe downwind S02 concentrations associated with each plant's emissions-both currently permitted and measured actual. See, e.g., idat 2. Foreach plant, Mr. Klafka's analysis predicted exceedances ofthe NAAQS throughout theirrespective regions, to a maximum distance offifty kilometers for the Edwards and Joppaplants, and to a maximum distance ofeight kilometers for the Newton plant. Id. at 3; KlafkaJoppaReport at 3; KlafkaNewton Report at 4. Petitioners have questioned how Mr. Klafka's analysis ofone-hour NAAQS compliance is relevantto a variance proceeding from the MPS. The answer is simple. Compliance with the MPS's lower annual fleet-wide emission limits will in any case require significantreductions in S02 emissions from one ormore ofthe three unscrubbed AERplants. This could come in the form ofcompletion oftheNewton scrubberproject; the installation ofdry sorbent injection at

one or more plants; or significant curtailments in operation at one or more ofthe plants. Delaying compliance with theMPS means continuinglocalized NAAQS exceedances at the

10 Mr. Klafka is an environmental engineer with over thirty years ofexperience in air quality modeling. He is a registered professional engineer in several states, including Illinois. He works for Wingra Engineering, a consulting business he started two decades ago. Serving abroad mix ofclients, including utilities, industries, environmental groups, and neighborhoods, Mr. Klafka has conducted numerous air dispersion modeling analyses to determine facilities' compliance with air quality standards. 15

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three unscrubbed plants. As the Board's precedent demonstrates, NAAQS exceedances are a touchstone ofa variance's negative environmental impact. The Board accordingly should deny the Petition. B, The Proposed VarianceWould Negatively Impact State and Regional Air Quality By Allowing More Fleetwide S02 

### Emissions 

# so2 also is a precursor to fine particulate matter, which is "associated with a number of serious health effects including premature mortality, aggravation ofrespiratory and cardiovascular disease

... , lung disease, decreased lung function, asthma attacks, and certain cardiovascular problems." U.S. EPA, FederalImplementationPlans: Interstate Transport of Fine ParticulateMatterand Ozone andCorrection of SIPApprovals, 

### 76 Fed. Reg. 48208, 48218 (Aug. 8, 2011). The l'v!PS was adopted, in part, to address the particulate matter formed by S02 

### emissions at illinois coal plantsl 1 

### U.S. EPAhas found that illinois coal plants' emissions ofS02 

### and nitrogen oxides contribute to PM2.5 issues throughout the Midwest, from Indianato Michigan to Ohio, and all the way south to Alabama and Georgia. !d. 

### at 48,241-45. Within illinois, illinois EPA has cited the l'v!PS as supporting continued attainment ofthe 1997PM2.5 NAAQS in the Chicago region. See, e.g., 

### U.S. EPA,ApprovalandPromulgation of AirQuality ImplementationPlans; Illinois; Redesignation of the ChicagoArea toAttainmentof the 1997

11 Discussing the MPS in testimony before the United States Congress, then-Director ofthe Illinois EPA, Doug Scott stated: S02 is a precursor to particulate matter
. . . . Particulate matter related annual benefits include fewer premature fatalities, fewer cases ofchronic bronchitis, fewer non-fatal heart attacks, fewer hospitalization admissions (for respiratory and cardiovascular disease combined) and should result in fewer days ofrestricted activity due to respiratOI}' illness and fewer work loss days. Moreover, there should be health improvements for children from reduced upper and lower respiratory illness, acute bronchitis, and asthma attacks. Exhibit B, ScottTestimony, at 9. 

### 16

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AnnualFine ParticulateMatterStandard (ProposedRule), 78 Fed. Reg. 48103, 48119 (Aug. 7, 2013). Therefore, in addition to the localized impacts ofAER's unscrubbed plants, itis important to consider the AER plants' fleetwide emissions, as the Boardhas done in earlier proceedings for variances from theMPS. Petitioners assert, and illinois EPA agrees, that the variance would yield a "net environmental benefit." See Petition at PDFpage 61; Illinois EPA Recommendation at 2. However, Petitioners' analysis includes three features that significantly
overstate the baseline fleet emissions to which Petitioners compare emissions expected underthe variance. Together, these features disguise a significantly negative environmental impact. First, in their original analysis, Petitioners compared emissions during two different timeframes: 2010 to 2020, and 2013 to 2020. See Petition at PDF page 65. Neither timeframe is appropriate. In 

### Ameren's 2012 variance proceeding, the Boardheldthat pre-variance emissions

are not relevant when assessing a proposed variance's environmental impact. AmerenEnergy Resources v. !EPA, PCB 12-126 (Sept. 20, 2012), at 57. Citizen Groups therefore support the Board's indication in its September 12, 2013 questions to the Petitioners that it views the fourth quarter of2013 as a proper starting point for assessing environmental impact. Second, Petitioners' analysis is based on average heat inputs at the AERplants that are

nowfar outdated. Specifically, IPH's analysis relies upon a baseline heat input for the AERfleet (including Meredosia and Hutsonville) of340,446,252MMBtu annually. See, 

### e.g., Petition at Exhibit 10, Tables I and 2. IPH's baseline heat input without Meredosia and Hutsonville is 312,003,694MMBtu annually. Id. These figures originate from AER's analysis offleetwide emissions in its 2009 docket amending theMulti-Pollutant Standard, In the Matter ofProposed Amendments to 35 Ill. Adm. Code 225: Control of Emissions From Large Combustion Sources 17

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(MercwyMonitoring), R09-IO. 

### SeeAER, PCB 12-126 (July 30, 2012) (AER's Responses to the lllinois Pollution Control Board Technical Unit's Questions) at 8. This figure represents the averageheatinput at the plants from 2006, 2007, and 2008. 

### !d. Ameren also used this figure in seeking a variance lastyear. 

### !d. Whatever the merits ofthis approach in earlier proceedings, these average heat inputs no longer reflect reality for the AERplants. Citizen Groups urge the Board to follow its approach in evaluating Midwest Generation's proposed variance earlierthis year. In

### that case, the Board evaluated the impacts ofthe proposed variance using the fleet's average heat inputs from 2008 to 2011, the four most recent full years ofavailable data at the time thepetition was filed. 

### See Midwest Generation, LLCv. !EPA, PCB 13-24 (Apr. 4, 2013), at 66. In

### this case, based onU.S. EPA Air Markets data, the average heat input for the five remaining AERplants is 283,259,518 MMBtu. 

### See Exhibit C, 2009-2012 AERFleetEmissions. Third, Petitioners' analysis includes "credits" relatedto the shutdowns oftheMeredosia and Hutsonville plants. This is inconsistent with the Board's June 6, 2013 order stating that any variance request related to the five plants IPHproposes to purchase would require "anew analysis specifically related to the five facilities in the requested variance." 

### AER (June 6, 2013),
at II. There is no legitimate regulatory reason for MedinaValley to seek a variance related to Meredosia and Hutsonville, andtherefore no reason that the plants should factor into the analysis ofiPH'sproposed variance. Both plants are shut down and no longer produce electricity for sale, as is required by the 

### MPS' definition of"EGUs" subject to the 

### MPS. 35lll. Adm. Code 225.233(e)(3)(c)(iii). Therefore, under the 

### MPS, they simply are not a factor in 

### MPS compliance. 

### See In the Matter ofProposedNew 35Ill. Adm. Code 225 Control of Emissions from Large Combustion Sources, R06-25 (Tr. Aug. 15, 2006) at 350-51 (containingtestimony 18

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from illinois EPAwitness stating that shutdown MPS units "no longer have to worry about the complexities of [MPS compliance]"). Moreover, there is no reason to conclude that the existing Meredosia and Hutsonville units ever will ever generate electricity again. As statedby illinois EPA witness Chris Romaine during the original MPS rulemaking: "I don'tbelieve that powerplants usually shut down for ten years and startback up." Id. 

### This point is further supported by Illinois EPA's August 23, 2013 release for public comment oftwo draft construction permits for theFutureGen 2.0 project, to be built at the site ofthe retired Meredosiaplant. See 

### illinois EPA, ProjectSummmy for the Const111ctjon Permj{AppHcarionsfromAmeren andtheFutureGen IndusflialA!Hance, Inc.,for ConstniCNon of an**O:~.y-Combusrion** PowerPlantat theMeredosjaEnergy Centerjn Meredosja, I!Hnojs 

### at 2 (available at http://www.epa.state.il.us/public-notices/2013/ameren-futuregenmeredosia/project-summary.pd£). 12 

### In the FutureGen 2.0 Project Summary, lllinoisEPA states it does not considerthe FutureGen 2.0 projectto triggerthe applicability offederal Prevention ofSignificant Deterioration ofAir Quality ("PSD") regulations for major newprojects because of"decreases from thepermanent shut down ofthe existing coal and oil fired boilers at theMeredosia Energy Center." !d. at4-5. Inother words, Illinois EPA contends, the net difference ofemissions from the proposed FutureGen 2.0 project and the now-shuttered coal and oil fired units at Meredosia

are not significant enough to warrantPSD review. illinois EPA's approach demonstrates the permanence ofMeredosia's shutdown. Attached as Exhibit A is an analysis ofemissions under theMPS and under IPH's proposedvariance, from the fourth quarter of2013 through 2020, using an average baseline heat

12 The permit applications were submitted by Ameren Energy Resources Generating Company and the FutureGen Industrial Alliance. 

### 19

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input of283,259,518 MMBtu for the AERfleet, and disregarding the closure ofMeredosia and Hutsonville, butincluding adjustments for the 2017 retirement ofE.D. Edwards Unit 1 and opening ofFutureGen 2.0. The analysis shows that baseline S02 emissions at the AERfleet under the MPS are expected to be 279,719 tons through 2020. This is 48,227 tons fewer than IPH's recently proposed fleetwide emission cap of327,996 tons from the fourth quarter of2013 through 2020. The variance therefore will have a negative environmental impact. The insufficiency ofiPH's recently proposed cap also is demonstrated by considering AER's 2012 emissions. 

### In 2012, the AER fleet emitted only 45,711 tons ofemissions. Over seven-and-a quarter years, that would amount to 331,404 tons ofS02. 

### In other words, IPH's commitmentto a fleetwide cap of327,996 tons would allow it to emit S02 

### at nearly the same average rate that AER did in 2012-eventhough IPHpurportedly will be installing an FGD system at Newton and retiring Unit 1 atE.D. Edwards during this time period. Whether assessed for its localized impacts at unscrubbed AERplants, oron a fleetwide level, IPH's proposed variance will have a negative environmental impact that outweighs IPH's self-imposedhardship. 

### III. Petitioners Cannot Be Gmnted Vadances Because They Do Not Own Plants Regulated By the MPS. Finally, the Board should reject the Petition becausePetitioners are improperly seeking "advisory" variances applicable to facilities they do not yet own. Granting these variances would be contrary to law and would set aterrible precedentfor future cases. Petitioners' proposed transaction remains hypothetical. 13 

### As discussed at length in Citizen Groups' August 15, 2013 Objection, granting Petitioners "advisory" variances inthis

13 As ofthe filing date ofthese comments, the Federal Energy Regulatory Connnission ("FERC") has not authorized the transaction. Instead, FERC has requested additional information ofthe Petitioners, and several parties have filed oppositions. Also, as discussed in the comments and in Section III.B, above, PetitionerMedina Valley will not own facilities subject to the MPS even ifthe transaction closes. 

### 20

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case would be contrary to the Board's regulations, see 

### 35 

### Ill. Adm. Code 104.202(a); the Board's previous decision in The Ensign-Bicliford Co. v. !EPA, 

### PCB 02-159 (Apr. 3, 2003), in which the Boardprovided that the proposed buyer ofa facility should seek variance reliefonly after ithad purchased the facility at issue; and the Board's long-standing disfavor ofthe issuance ofadvisory opm10ns. Notably, the lllinois EPA has not endorsed Petitioners' approach. In 

### its Recommendation, Illinois EPA stated that it "neither supports nor objects" to the Board's grantingthe Petition. Recommendation at I. 

### However, the Board noted the Citizen Groups' objection to the legal sufficiency ofPetitioners' request for variances related to facilities they had
not yet purchased, and stated: As to whether or not Petitioners may properly seek the variance relief requested given the pendency ofthe related transaction that would transfer ownership of the Energy Centers in question, the lllinois EPA posits that any ruling by the Board be specifically limited to the unique facts of the situation presented. Recommendation at 6 n.2. In 

### other words, lllinois EPA appears to contendthat, ifthe Board determines to grant the proposed variances, the Board should not regard such advisory variances

as generally acceptable. Yet granting the proposed variances in this case would set a terrible precedentfor future

cases. Granting the variances would send a signal to companies doing business il) lllinois that they can createbrand-new, undercapitalized acquisition vehicles, unable to comply with environmental requirements, and then obtain a variance from those environmental requirements because of 

### that undercapitalization. Moreover, the decision would signal that undercapitalized companies could seek an advisory opinion from the Board whether their proposed level of undercapitalization is acceptable, or ifthey should come back with a "better offer." Thatis not 21

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howlllinois law should work. The baseline rule shouldbethat environmental compliance requirements befactored into transaction prices. Variances shouldbe reserved for cases where a company has made a good-faith effort to comply with environmental requirements but through

no fault ofits own has run short oftime ormoney. IPH is not that company, and this case demonstrates why granting advisory variances reflects badpolicy. What is most troubling about Petitioners' request is the manner in which it has cometo pass. Last year, AERreceived a variance by representing a deep commitmentto its plants and their communities. Closing its post-hearing comments with multiple pages ofcomments from plant workers and community leaders, AER concluded that "it is not ready to give up on the completion ofthe Newton scrubber and it certainly is notpreparedto give up on theplants." AER, 

### PCB 12-126 (Aug. 15, 2012) (AERPost-Hearing Comments), at 55 (emphasis added). Despite this ringing proclamation, Ameren in December 2012 announced its intention to exit the Illinois merchant generation business. LisaBrown,Ameren to exitmerchant generation business, 

### Sr. LomsPOST-DISPATCH (Dec. 20, 2012), available at http://www.stltoday.com/business/local/ameren-to-exit-merchant-generationbusiness/article_9b768f23-bd51-566a-8d6e-fdc1dd36f483.html (attached as Exhibit D). And justmonths after that announcement, in March 2013, Dynegy announced its intention to purchase and operate the AERplants through the newly-created subsidiary IPH-but only ifit

were allowed the samevariance from the MPS that AERhad been allowed. Now, again, IPHhas madethe same arguments that AER did last year regarding the economic impacts ofthe affected plants. Citizen Groups ask the Boardto closely examine IPH's claims. An undercapitalized IPH will not providethe stability that Dynegy has represented to Illinois communities. In the past year, in the community ofa closed coal plant in 22

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NewYork, Dynegy has litigated with local property tax authorities over the amount ofback
taxes Dynegy owes, based on Dynegy's claimed devaluation ofthe plant. 

### See JessicaDiNapoli, 

### Dynegy: Cut tax assessments 90%: Decision couldmean millions, TIMEs HERALD-RECORD (Aug. 22, 2012), 

### available at http

### :1 /www.recordonline.com/ apps/pbcs.dll/ article?AID=/20120822/NEWS/208220330; Jessica DiNapoli, 

### Danskammerpower plantsale dragging due to taxes: Company stillowes $11M, TIMES HERALD-RECORD (July 2, 2013), 

### available at http://www.recordonline.com/ apps/pbcs.dll/ article?AID=/20130702/NEWS/307020326 (attached as ExhibitE). Howwould Dynegy contendthatthe AERfleet shouldbe valued, given that IPHwouldbepayingnothing for it? Any assertions ofiPHin this case ofpreservedjobs and property taxes should be viewedin light ofMr. David Johnson's summary ofthe proposed transaction: 

### "Ifwholesale electricity prices climb unexpectedly fast, the acquisition could be a great success, and ifnot-the far more likely outcome-Dynegy loses little even ifIPH fails spectacularly." ACMReport at 30. TheBoard should not sanction this risky proposed transaction, which entails a certain negative environmental impact, with no such corresponding benefitto the lllinois public. 

### IV. Conclusion For the reasons set forth in these Post-Hearing Comments, the Board should deny the Petition for Variance.

23

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DATED: September 24, 2013

24 Respectfully submitted,

Faith Bugel AndrewArmstrong Environmental Lawand Policy Center 35 EastWackerDrive, Suite 1600 Chicago, IL 60601 312-795-3708 FBuge]@elpc.org AArmstrong@elpc.org

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CERTIFICATE OF SERVICE 

### I, Faith Bugel, hereby certify that I have filed the attached POST-HEARJNG COMMENTS on behalfofthe CitizensEnvironmental Lawand Policy Center, Natural Resources Defense Council, Respiratory Health Association, and Sierra Club in PCB 2014-10. The aforementioned documents have been served upon the attached service list by depositing said documents in the United States Mail, postage prepaid, in Chicago, lllinois on September 24,2013.

25 Respectfully submitted,

Faith Bugel SeniorAttorney Environmental Lawand Policy Center 35 EastWackerDrive, Suite 1600 Chicago, IL 60601 312-795-3708

### SERVICE LIST September 24, 2013 GinaRoccaforte, Assistant Counsel lllinois EPA 1021 North Grand AvenueEast P.O. Box 19276 Springfield, IL 62794-9276

Claire A. Manning WilliamD. Ingersoll Brown, Hay & Stephens LLP 205 South Fifth Street, Suite 700 P.O. Box 2459 Springfield, lllinois 62705-2459

26 Renee Cipriano Amy Antoniolli SchiffHardin, LLP 6600 Willis Tower 233 South WackerDrive Chicago, IL 60606AERFleetEmissionsUnderMPSBaselineandUnderProposedIPHVarianceYearHeatInputMPSBaselineMP5ProposedProposedAnnualCumulativeEdwardsFutureGen(mmBtu)502EmissionBaselineVariance502Variance502IncreaseinIncreaseinUnit1at(Averageof5limit502EmissionAllowed502Allowed502Allowed8,617,891AERPlants(lb/mmBtu)AllowedlimitEmissions EmissionsEmissionsmmBtu/yrfrom2009-Emissions(lb/mmBtu)(tons)BecauseofBecauseof(Average2012)(tons)Variance{tons)Variance(tons)from2009-2012)4Q201370,814,8800.5017,7040.3512,393-5,311-5,311002014283,259,5180.4360,9010.3549,570-11,330-16,641002015283,259,5180.2535,4070.3549,57014,163-2,478002016283,259,5180.2535,4070.3549,57014,16311,685002017283,259,5180.2332,5750.3549,57016,99628,6801,5085902018283,259,5180.2332,5750.3549,57016,99645,6761,5085902019283,259,5180.2332,5750.3549,57016,99662,6711,5085902020283,259,5180.2332,5750.2332,575062,6711,508590TotalBaseline279,719342,39062,6716,0322,360IPH'sProposedCap:327,996DifferenceBetweenBaselineandIPH'sProposedCapI48,077CumulativeDecreaseFromEdwardsUnit1andFutureGen00009181,8362,7543,6723,672CumulativeIncrease,withEdwardsUnit1andFutureGen-5,311-16,641-2,47811,68527,76243,84059,91760,76960,769IPCBCaseNo.2014-010ExhibitAPage1of1

### Written Testimony ofDouglas P. Scott Director, Illinois Environmental Protection Agency Before the: U.S. Senate Committee on Environmentand Public Works/ Subcommittee on Clean Air and Nuclear Safety On the Issue of: IPCB Case No. 2014-010 

### Exhibit B Page 1 of 16



### "Oversight: Environmental Protection Agency's Clean Air RegulationsOne Year after the CAIR and CAMR Federal CourtDecisions" July 9, 2009

Mr. Chai1man and Members ofthe Committee: Myname is Doug Scott and I am the Director of the Illinois Environmental Protection Agency. I want to thank SenatorCarper and the other members ofthe Senate Subcommittee on CleanAir and Nuclear Safety for this opportunityto testify onIllinois' regulations to control sulfur dioxide, nitrogen oxides and mercury emissions from the State's coal-fired powerplants.

I received a Bachelor's Degree withhonors from the University ofTulsa in 1982, and received a graduateJuris Doctor law degree with honors from Marquette University in 1985. I served as Assistant City Attorney and CityAttorney for the City ofRockford, Illinois from 1985 to 1995. I also represented the City on a number ofenvirorunental issues. From1995-2001 I served as an Illinois State Representative for the 67th District and served on the House Energy and Environment Committee, and was a member ofthe committee that rewrote the States' electric utility laws. I was elected to the Office ofthe Mayor ofRockford inApril2001 and served a four-year term and served as President ofthe Illinois Chapter oftheNational Brownfields Association. I was appointed as the Director ofthe Illinois EPA byGovernor Rod Blagojevich in July 2005, and have served as Chair ofthe Air Committee ofthe Environmental Council ofthe States (ECOS), the national organization ofstate environmental agency leaders.

I am pleasedto behere to providetestimony onthe "threepollutant" approach and Illinois' experience in reaching agreements with our state's three largest coal-fired powerplant system
owners. Mytestimony will provide background information and a broad overview oftheIPCB Case No. 2014-010 Exhibit 8 Page 2 of 16 

### development ofIllinois' multi-pollutantreduction agreements. I will address some ofthe
measures the Illinois EPA took during rule development to ensure that we relied on accurate and current information as we crafted the rule.

Illinois Multi-Pollutant Regulatory Approaches 

### Illinois is a large industrial state with a population ofabout 13 million people and a gross state product of$522 billion. Each ofthese are approximately four percent ofthe U.S. total and ranks Illinois as fifth among the nation inthese categories. Illinois obtains more than 40 percent ofits electricity from coal-frred powerplants and sits on top of38 billion tons ofcoal, giving it the third largest coal reserves in the nation. Coal-frred powerplants in Illinois constitute the largest
source ofman-made emissions ofmercury (Hg) and sulfur dioxide (S02), 

### and one ofthe largest
sources ofnitrogen oxides (NOx). Illinois is home to 21 large coal-frred plants that operate electric generating units.

Overthe last several years in Illinois, exceptional progress has beenmade inreducing the emissions that contribute to ozone and particulate matter (PM) air pollution, as well as reducing toxic Hg emissions that deposit into and contaminate Illinois' waters and fish. Inparticular, the Illinois Environmental Protection Agency (Illinois EPA) reached landmark multi-pollutant standard agreements with the three largest coal-frred powerplant systems operating in Illinois: Midwest Generation, Ameren and Dynegy. These three companies represent 88% ofIllinois' 17,007 megawatts ofcoal-frred electric generating capacity and account for hundreds of thousands oftons ofair emissions each year.
These multi-pollutant standards (MPS) are expected to result in measurable air quality improvements in Illinois and also in regional air quality by dramatically reducing Hg, S02, 

### and NOx emissions from Illinois' coal-frred powerplants. The agreed-to multi-pollutant standards
are one ofthe mostimpmtant environmental and public health advances in Illinois inrecent decades. Theyrepresent the largest reductions in air emissions ever agreed to by individual companies in Illinois under any context, whether through an enforcement action orregulation.IPCB Case No. 2014-010 

### Exhibit B Page 3 of 16


### As a result ofthe knowledge and experience gained through Illinois' efforts, the Illinois EPA suppmts a comprehensive national strategy for reducing emissions ofmultiple pollutants from electric generating units. A comprehensive, integrated approach benefits both regulators and the regulated community. Multi-pollutant approaches should supplement, not replace, the existing CleanAir Act programs such as New Source Review (NSR), Maximum Achievable Control Technology (MACT) standards and regional haze, as well as otherimpmtant statutory requirements for achieving and sustaining clean air.

In meeting emission goals, the regulated community shouldbe afforded flexibility, where appropriate, which mayinclude an emissions trading mechanism for NOx, and S02, 

### but not pollutants where local impacts are ofgreat concern or where concentrated emissions at a local scale mayoccur- as in the case ofHg. Anymulti-pollutant strategymust also ensure that regions, states and localities retain their authority to adopt and implement measures which are more stringent than those ofthe federal government.

A 3-pollutant approach for controlling the emissions ofHg, S02, andNOx from coal-firedpower plants can have numerous advantages overthe traditional, single pollutant schemes. For example, a well crafted multi-pollutant standard can increase the protection ofpublic health and the environment, reduce pollution more cost-effectively, and offer greater certainty to both industry and regulators. Since Hg emission reductions canbe obtained as a "co-benefit" from the control devices used to reduce S02 

### and NOx, it makes sense to allow companies the option to synchronize the control ofthese pollutants, provided that public health and the environment are likewise positivelyimpacted. Whereas the federal CleanAirMercury Rule (CAMR) singlemindedlytackled mercury emissions, and the federal CleanAir Interstate Rule (CAIR) addressed S02 

### and NOx, Illinois was able to use a multi-pollutant strategy that accomplishes the aforementioned benefits in a unified regulatory framework accounting for planning, engineering, availability offmancing and other issues that accompany a multi-pollutant control strategy.

Illinois believes the most feasible method ofobtaining reliable emission reductions in a costeffective manner is through a combination ofemissionrate based limits along with emissions trading. Although sources under the MPS are not allowed to utilize allowances to meet theIPCB Case No. 2014-010 

### Exhibit B Page 4 of 16


### numeric emissions standards, sources are free to sell or trade allowances that are generated as a result ofemissions being below the allowable emissionrates. This provides an incentive for companies to go beyond the reductions required under the MPS in orderto recover some ofthe costs associated with the control measures taken. Moreover, emissions' trading is recognized to provide market incentives for sources to control emissions as far and as fast as reasonably possible. Ofnote is that emissions trading under a cap and trade program has historically resulted in the highest emittingplants making the deepest reductions in emissions - a keyfmding that strongly supports the inclusion ofemissions trading into any control strategy.

Illinois Multi-Pollutant Agreements



### The catalyst for Illinois' agreements was the position taken in early 2006 that Illinois would propose an aggressive mercury regulation focused on cutting mercury emissions by 90% from coal-burning powerplantsbymid-2009. After the illinois EPApresented its findings in support ofthe mercuryrule duringtwo weeks ofwell-attended and hotlycontested public hearings, the Agency was approached byAmeren who expressed a desire to work with the Agencytoward
common goals. Subsequentto long hours ofnegotiation, an altemative standard was proposed that involved allowing some flexibility in complying with the mercury standards in exchange for commitments to also significantlyreduce S02 

### and NOx emissions from Ameren's coal-fired powerplants. This initial agreement led to similar discussions and agreements with Illinois' other two large coal burning systems, Dynegy and Midwest Generation.

The agreements reached and memorialized in the Multi-Pollutant Standard (MPS) and Combined Pollutant Standard (CPS) are significant not only for the magnitude ofemissions reductions that occur, but also for the rule support that accompanied the agreements. The Illinois mercury rule
was vehemently opposed by aunified coal-fired power industry. The initial agreement established that mutual goals were achievable, set the guiding principles, and opened the door for other companies to follow -whichthey did. Ultimately, the mercuryrule was unanimously approved in 2006 byboththe Illinois Pollution Control Board and the Joint Committee on Administrative Rules, the two goveming oversight bodies for regulations in lllinois.IPCB Case No. 2014-010 Exhibit B Page 5 of 16
BoththeMPS and CPS provisions provide some flexibility onthe timing ofmercuryreductions in exchange for commitments to make significant reductions inboth S02 and NOx. All ofthe provisions include some level oftrading restrictions on S02 and NOx allowances providedunder CAIR. Ameren, Dynegy and Midwest Generation will install a multitude ofpollution control equipment on their boilers costing several billion dollars, including wet and dry scrubbers, selective catalytic reduction (SCR) and selectivenon-catalytic reduction (SNCR) devices, and fabric filters. Recent discussions withrepresentatives ofIllinois' coal-fired powerplants indicate that they are all preparing to meet the requirements ofthe MPS and CPS, which initiate in 2010. 

### In doing so, a wide array ofemissions control equipment costingbillions ofdollars will come on-line in Illinois overthe next several years. Illinois coal-fired powerplants have already installed and begunoperating numerous halogenated activated carbon injection (ACI) systems for mercury control. The first ofmanynew scrubbers for S02 control will begin operation shortly. Fabric filter controls will accompany the installation ofmany ofthe scrubbers and result in the co-benefit ofparticulatematterreductions. Selective catalytic reduction devices and other
new NOx controls are being scheduled for installation across Illinois. The shutdown ofa few of the older, mostpolluting electric generating units began in December2007 with two moreunits scheduled for shutdown byDecember 2010.



### Illinois Mercurv Rule

The Illinois mercuryrule is designed to achieve a high level ofmercury control, based on Illinois EPA's finding thatthere exists mercury control technology that is bothtechnically feasible and economicallyreasonable. Mercury emissions maybe reduced through the application ofcontrol technology specifically designed to control mercury (e.g., activated carbon injection), orthrough co-benefit from other control technologies designed to control S02 NOx, and PM. Depending 

### , on several variables, including coal and boilertype, there are a number ofcontrol technologies that will achieve 90+% removal ofmercury. Mercury emissions control technology is a rapidly advancing field, withhalogenated sorbents being an affordable and effective option for most applications. Althoughthere maybe some challenges to achieving 90% removal ofmercuryforIPCB Case No. 2014-010 Exhibit 8 Page 6 of 16


### all applications, in almost every case each ofthese challenges canbe overcome or addressed through technology that is economicallyreasonable and available today.

The Illinois mercury rule provides substantial flexibility in orderto reduce the costs of compliance and risk ofnoncompliance for powerplants. This flexibility includes the ability to meet either a 90% reduction or an output based standard of0.0080 pounds mercury/GWh, phasing in standards over a period of3 Y, 

### years with a less restrictive standard in phase one, complianceby averaging ofemissions, and the avoidance ofinstalling controls onunits that will be shutdown inthe near future provided companies make an enforceable commitment to shutdown those units bya date certain.

Additional flexibility is provided via a "TemporaryTechnology Based Standard" (TTBS) that provides relieffor units that install appropriate mercury controls but do not achieve full compliance. Eligible units onlyneed to operate the mercury controls in an optimal manner to comply. This provision is available through June 2015 and can beused byup to 25% ofa company's generating capacity. Companies maychoose to voluntarily comply with the MPS or CPS as an alternative to the otherwise applicable requirements ofthe mercuryrule. These provisions provide additional flexibility in regards to mercury control in return for companies achieving significantreductions in the emissions ofS02 

### and NOx.

Under the MPS and CPS, companies can commit to voluntarilymeet numerical emission standards for bothNOx and S02 

### and inreturn are provided additional flexibility incomplying with the mercury emission standards. The MPS and CPS provisions also contain restrictions on the trading ofNOx and S02 

### allowances providedunder CAIR. Byregulating the emissions of NOx and S02 

### and restricting the trading ofallowances, the MPS and CPS have obvious implications for the proposed CAIRNOx and S02 

### cap and trade program. As modeling has demonstrated, thebenefits ofthese reductions will mostly impact Illinois and a few ofthe closest neighboring states (i.e., Indiana, Wisconsin and Missouri) withlesserbenefits further downwind. While the positiveimpacts ofthe reductions are most significant within Illinois and its closestIPCB Case No. 2014-010 Exhibit B Page 7 of 16 neighbors, Illinois does support emissions trading as the most cost effective controls will be installed and the timing ofcontrols is likely to occurmore quickly than under a command and control option.



### Emission Reductions

The combination ofthe Illinois mercury rule, CAIR, and the MPS and CPS will have enormous positive impacts, reducing mercury, S02 andNOx emissions far beyond the levels required under the federal CAMR and CAIR alone.

Under CAIR, U.S. EPA estimates that coal-fired powerproducers in Illinois would only have beenrequired to reduce their S02 emissions by34%, not the estimated 76% for Ameren, 65% for Dynegy, and 80% for Midwest Generationrequired under the MPS and CPS. The emissions of NOx are likewise expectedto be reduced beyond the levels obtainedbythemodel CAIR. In addition, both the MPS and CPS contain trading restrictions designed to ensure that the S02 and NOx reductions occur in Illinois.IPCB Case No. 2014-010 Exhibit 8 Page 8 of 16
The reductions agreed to under the MPS and CPS for S02 and NOx are expected to go a long waytoward helping lllinois achieve attaimnent ofthe ozone and PM standards. Themodeling demonstrates that the emission reductions are vety substantial.

The Illinois EPA estimates the total emission reductions from all three powercompanies at: 

## • so2 = 233,600 tons peryear eliminated
• NOx = 61,434 tons peryear eliminated
• Mercury= 7,040 poundsperyear eliminated

Under CAMR, coal-frred powerproducers in Illinois wouldhave onlybeen required to reduce their mercuryemissionsby47% in 2010 and 78% by 2018, notthe 90% reduction by 2009 specified in the Illinois rule. Thetiming of mercuryreductions forIPCB Case No. 2014-010 

### Exhibit 8 Page 9 of 16


### those sources that opt-in to the MPS or CPS is essentially the same, and the amount ofreduction is expected to be close to 90%, although the companies will not berequired to complywith the 90% reduction requirement on a 12 month rolling basis until2015. Sources under the MPS and CPS are expected to have mercury emission reductions that exceed the required 90% after 2015 due to the co-benefit reductions achieved from the installation ofcontrols needed to comply with the conesponding S02 

### and NOx standards.
Impacts ofEmissions Reductions

Under the agreements between the Illinois EPA and Midwest Generation, Ameren and Dynegy, the decreases in Hg, S02, 

### and NOx emissions are estimated to far exceed the reductions required under the federal CAMR and CAIR.

In

### regards to mercury, overtime Illinois expects to see reductions in deposition ofHgto Illinois' lakes and streams and conesponding mercurydecreases inIllinois' fish, makingthose fish caughtin Illinois waters safer to eat. There will be several recognized benefits to the State from tighter mercury controls beyond the expected public health benefits that come with a reduction in deposition to Illinois' waters and fish. Suchbenefits include support for existingjobs and the potential for additionaljobs resulting from the installation and operation ofadditional pollution control devices.

The benefits ofremoving S02 

### andNOx are well established and most notably will result in reductions inbothparticulate matter and ozone. S02 

### is a precursor to particulate matter and NOx is a precursorto bothparticulate matter and ozone. Particulate matter related annual benefits include fewer premature fatalities, fewer cases ofchronicbronchitis, fewer non-fatal heart attacks, fewer hospitalization admissions (for respiratory and cardiovascular disease combined) and shouldresult in fewer days ofrestricted activity due to respiratory illness and fewer work loss days. Moreover, there shouldbe health improvements for children from reduced upper and lowerrespiratory illness, acute bronchitis, and asthma attacks.IPCB Case No. 2014-010 

### Exhibit 8 Page 10 of 16


### Ozone health-related benefits are expected to occur during the sununer ozone season and include fewer hospital admissions for respiratory illnesses, fewer emergencyroom admissions for asthma, fewer days with restricted activity levels, and fewer days where children are absent from school due to illnesses. In addition, there should be ecological and welfare benefits. Such benefits include visibility improvements; reductions in acidification in lakes, streams, and forests; reduced nutrient replenishing in waterbodies; and benefits from reduced ozone levels for forests and agricultural production.

CAMR and CAIR Vacatur Impact on Illinois Regulations:



### OnFebruary 8, 2008, the United States Court ofAppeals for the District ofColumbia Circuit vacated the federal CAMR. The Illinois mercury rule is separate from the federal CAMR and therefore the vacatur ofCAMRhad minimal impact on the Illinois rule. However, this court action raised concernsregarding the status ofcertain federal provisions dealing withthe monitoring ofmercury emissions. Given the uncertainty surrounding federal mercmy monitoring provisions, the Illinois EPAdetermined that a revision to the Illinois mercury rule
was appropriate. The revisions focused onthe methods used to measure ormonitormercury emissions, and did not include any revisions to the control standards themselves. The rule was amended to allow a source to demonstrate compliance for a three year period using stacktesting. The Illinois mercuryrule remains in full effect and all Illinois companies began complying with therule on July 1st 

### ofthis year.
In

### July of2008, the U.S. Court ofAppeals for the District ofColumbia Circuit (DC Court of Appeals) vacated the CAIRrule in its entirety. After entertainingmotions for reconsideration from theparties, onDecember23, 2008, the same court issued an opinion stating that the federal CAIRwas remanded to U.S. EPA without vacatur. U.S. EPA subsequently confirmed that it has begun implementation ofCAIR starting January I, 2009. Illinois CAIRis in full effect. For a number ofreasons, the vacatur and reinstatement ofPhase I ofCAIRhave had minimal impact
on Illinois sources and the MPS and CPS remain in effect. However, for the reasons discussed below, Illinois strongly favors federal multi-pollutant legislation to "remedy" the flaws in CAMRand CAIR.IPCB Case No. 2014-010 Exhibit B Page 11 of 16



### The decision ofthe DC Court ofAppeals vacating CAIRinpart, i.e., vacating Phase II ofCAIR butreinstating Phase I ofCAIR, has thus far had minimal impact on Illinois. CAIRPhase I required reductions up until the beginning ofCAIRPhase II in January I, 2015. Although Illinois relied upon CAIRPhase I as part ofour 8-hour ozone (85 ppb) and annual PM2.5 attainment plans, air quality in Illinois' two 8-hour ozone (85 ppb) and annual fme particulate matter nonattainment areas has improved to a very significant degree without these expected reductions. As a result, all but one monitor is in attainment for these standards, and itis expected to be in attainment in 2012. Because the MPS and CPS result in significantreductions before 2015, Illinois is not dependent on CAIRPhase II reductions for the newest 8-hour standard (75 ppb) orthe newest daily fme particulate matter standards, and for which attainment plans are not yet due. Despitethe improvement in air quality, Illinois would have much more significant problems in demonstrating attainment in it state implementationplan ifCAIRPhase I was not reinstated.

There is some concern that Illinois coal-fired powerplants maydelay or cancel some controls that werebeing installed to comply with CAIR Phase I due to the loss ofvaluein S02 

### and NOx allowances. The market value ofthese allowances is uncertain, becausethere is controversy over whetherthe DC Court ofAppeal's opinion has disallowed an emissions trading program. As a result, companies have no incentive to go beyond the reductions required by CAIRPhase I because the incentive to install controls early due to the cost recoverybenefit ofthe allowances obtained is removed. Also, many companies have a significant number ofbanked allowances available for their use or for sale, and thesebanked allowances will be depleted rather than companies meeting the "emissions cap" through installation and operation ofpollution control equipment, perhaps even to the extent ofnot operating existing orrecently installed controls. However, webelieve the MPS and CPS should keep illinois sources on track for installation and operation ofthe planned control devices and reductions.

After the vacatur ofCAIR, theNortheast and Midwest states began a process, called the "State CollaborativeProcess", the stated intent ofwhich was to develop a multi-pollutant strategy to achieve levels ofNOx and S02 

### reductions from the electric utility sector in the 28-state CAIRIPCB Case No. 2014-010 Exhibit 8 Page12of16 

### region as expeditiously as possible that would remedy CAIR's flaws in accordance with the Court's July II, 2008 opinion and satisfy the requirements ofthe Clean Air Act to attain the 1997 national ambient air quality standards (NAAQS) for ozone and PM. While significant progress was made in developing a framework for a CAIRreplacement rule, no final recommendation to USEPAhas yet been developed. The participating states disagree overthe level ofreductions that shouldbe required, whether best available controls should be required on everypowerplant orjustthe larger/largest units, the timing ofcontrols, whether emissions trading (or even intra-state emissions averaging) is allowable under the Court's decision, and whether a replacement rule can forestall Section 126 petitions under the CleanAirAct.

It is Illinois' experience that emissions trading will result in the greatest amount ofreductions at the lowest cost. More importantly, emission trading will encourage companies to install controls earlier, and go beyond required reduction levels, as compared to a command and control strategy. Under a command and control strategy, the regulatory compliance deadline mustbe set such that there is I00% assurance that every affected source will be able to comply in consideration ofthe time necessary for planning, engineering and construction deadlines. In 

### other words, there mustbe sufficient availability ofengineering firms, control equipment and construction companies to plan, engineer, build and install all ofthe pollution control equipment required for compliance. Such a regulatory compliance date would certainly be difficult to establish and likely result in far fewer reductions in the near termwhen compared to an approach that includes emissions trading. Also, the construction season in many ofthe affected CAIR states is limited to a 7 to 8 month window, when electric demand is at its highest, further complicating this approach.

In 

### addition to regulatory compliance deadlines, sources (and the states) mustbe concerned with power outages. In 

### Illinois' opinion and experience in negotiating the MPS and CPS, within the CAIR region, it is not practical (and maynot bepossible) to retrofit all coal-fired powerplants of any significant size (e.g., 25 MWe or more) in the same 3-yearwindow (or even 5-yearwindow). A command and control strategy necessarily sets a date certain for compliance for each affected and similarly situated source. Emissions trading will allow those time frames to be compressed,
as sourceby source compliance is notrequired.IPCB Case No. 2014-010 Exhibit 8 Page 13 of16

As Illinois discovered during its MPS and CPS negotiations, there are very significant costs associated with installing pollution controls ofthe magnitude negotiated under Illinois' rulesestimated in excess of3 billon dollars. While this cost maybe seem small on a kilowatt hour basis, these companies must obtain a rate increase ifthey are in a regulated state or financing if they are in a deregulated state like Illinois. The ability to obtain a rate increase or fmancing for these projects is uncertain and takes time, which mustbe accounted for in a compliance date for any command and control strategy. Emissions trading will allow those time frames to be compressed as well, as source by source compliance is not required.

The vacatur ofboth CAMRand CAIR emphasizes the high risk associated with moving forward with federal regulations subject to widespread opposition and controversy. Federalregulations will almost certainlybe challenged, potentiallyresulting in further delay ofa vital strategyfor the states to achieve attaimnent ofthe federal air quality standards. Section 126 petitions will surely also be filed by any state that believes its neighbor and upwind states could do moreto address nonattaimnent, even ifthe complaining state's air quality issues are largely a result of emissions from its own sources (area, mobile and point) and even ifthe targeted other state(s) has done more to address emissions from its coal-fired powerplants than the complaining state. Section 126 petitions will useprecious resources that are needed to address the newestrecent daily PM2.5 standard, the revised 8-hour standard (75 ppb), the newest lead standard, and the recently-announced, revisedN02 standard. Federal multi-pollutant legislationrepresents the best option for addressing thepoints ofdisagreement among the states, without beingbound by interpretations ofthe scope and flexibility providedunder the 1990 Clean AirAct amendments, and in a waythat best serves the goal ofobtaining the greatestreductions in S02, NOx and Hg, in the shortestpossible time frame, whiletaking into account electric costs and reliability.


### In conclusion, the multi-pollutant approach taken in Illinois for controlling the emissions ofHg, S02, andNOx from coal-fired powerplants has numerous advantages. Whereas the federal CAMR focuses solely on mercury emissions, and CAIRconcentrates on S02 andNOx, Illinois' has taken a combined approach that exceeds the goals inthe context ofa singleregulatory framework, accommodating engineering and constructionissues and outage schedules, as well as!PCB Case No. 2014-010 

### Exhibit B Page14of16 

### financing issues. Theresult has been a tremendous win-win-win for the environment, public health and the regulated community./PCBCaseNo.2014-010ExhibitBPage15of16Multi-PollutantStandard&CombinedPollutantStandard-RequiredEmissionsRatesand%ReductionsMidwestGeneration!Amcrcn'Dyncgynusswno euchonEmission%ReductionEmission%ReductionEmissionRateRateRateRate(lbs/nunbtu)(lbs/mmbtu)(lbs/mmbtu)(Ibs/mmbtu)0.5052%20130.5031%0.4413.7%20140.4119.6%0.4356%20150.4534%0.2845.1%0.2576%20160.19561.8%20170.1570.6%0.2378%20180.1374.5%20190.4534%0.1178.4%'0.2378%ID!+,__0Annual-0.1544%0.1162%'0.1152%2012Annual-0.1255%0.1162%'0.1152%2015Seasonal---0.1151%0.1122%2012'CAIRcmtssionratenumbersfrompage5oftheJw1c28,2005USEPApresentationtoLADCO01tlp://www.ladco.org/rcports/mo/Rcuional%20Air<Yo200ualitv/Junc282005/Junc-Workshop/CAIR%20L/\DC0%20.pdi).PercentreductionsfromtheUSEPAwebsitethatprovidesCAIRreductionsexpectedinIllinois(http://ww\.v.cpa.gov/cair/il.hlml).EmissionsusedforcalculationsarefromCleanAirMarketsDivisionsofUSEPA.280%includingplmmcdshutdowns.368%includingplannedshutdowns.Note:AmcrcnS02ratesreflectchangestoallowableratesascontainedinproposedrevisiontolllinoismercuryrule.0.240.190.190.100.100.10%Reduction56%65%65%48%48%25%IPCBCaseNo.2014-010ExhibitBPage16of16PercentMe.-curyReductionsfromCAMR,IllinoisCombinedPollutantStandard(CPS)andMulti-PollutantStandard(MPS)047%201120178%havecontrolsinstalledthatarc84%(ACIinstalledonmost>90%95%(ACIinstalledonmostunits)94.4%mercury(ACIinstalledonmostunits)86%93.5%2ScveralunitsatplanthavecombinationofScrubber,Bughouse,SCRand/orACIandmanyunitswillachievegreaterthan90%reductioninmercuryemissions.AllnumbersarcIllinoisEPAestimates.State IL IL IL IL IL

IL

State IL IL IL IL IL

IL

State IL IL IL IL IL

IL

State IL IL IL IL IL

IL 

## AER Fleet Heat Inputs, 2009-2012 IPCB Case No. 2014-010 Exhibit C Page 1 of 1 Facility Name Facility ID (ORISPL) Year S02 (tons) Heat Input (MMBtu) Coffeen 861 2009 13398.074 47566048.5 Duck Creek 6016 2009 506.11 21407744.51 ED Edwards 856 2009 11734.455 53116957.8 Joppa Steam 887 2009 24238 77314386.41 Newton 6017 2009 24755.123 82537779.61 TOTAL: 74631.762 281942916.8

E D Edwards, Unit 1 856 2009 2069.99 9053098.616
Facility Name Facility ID (ORISPL) Year S02 (tons) Heat Input (MMBtu) Coffeen 861 2010 210.818 57019175.45 Duck Creek 6016 2010 756.371 28849322.93 ED Edwards 856 2010 12009.979 52842841.94 Joppa Steam 887 2010 25896.713 85465053.05 Newton 6017 2010 23501.798 78862613.16 TOTAL: 62375.679 303039006.5

E D Edwards, Unit 1 856 2010 2114.741 8781808.481
Facility Name Facility ID (ORISPL) Year S02 (tons) Heat Input (MMBtu) Coffeen 861 2011 82.526 57500363.25 Duck Creek 6016 2011 167.093 24159532.43 ED Edwards 856 2011 12596.199 55404148.49 Joppa Steam 887 2011 26180.048 83823895.86 Newton 6017 2011 20870.966 75980200.38 TOTAL: 59896.832 296868140.4

E D Edwards, Unit 1 856 2011 2148.064 9189275.078
Facility Name Facility ID (ORISPL) Year S02 (tons) Heat Input (MMBtu) Coffeen 861 2012 103.296 54159484.31 Duck Creek 6016 2012 295.852 25219962.03 ED Edwards 856 2012 11802.717 44200087.69 Joppa Steam 887 2012 16990.769 71583571.45 Newton 6017 2012 16519.06 56024904.65 TOTAL: 45711.694 251188010.1

ED Edwards, Unit 1 856 2012 1973.891 7447380.6959124113 

# CJlSILOUIS POST-DISPATCH Ameren to exit rrerchant generation business: Business IPCB Case No. 2014-010 Exhibit D Page 1 of2



# Ameren to exit merchant generation business
DECEMBER2o, 2012 8: 56AM • BY USA BROWN LBROWN @POST-DISPATCH.COM 314-340-8127 

### Ameren Corp. plans toget out ofthe merchant generationbusiness, which produces power for the competitive wholesale electricity market, as power prices remainweak and the cost of environmentalcompliance increases. As a result, Ameren

### willincur a non-cash charge ranging from $1.5 billion to $2 billion in thefourth quarter. However, investors liked the news that the company would exit a business that heldweak profit prospects.Theutility's stock shot up nearly 4 percenttoclose Thursday at $31.17 a share. "It's the ongoing low pricing environment," saidAndy Smith, a senior analyst withDes Peres-basedEdwardJones, which changed its recommendation onAmeren's stock from sell tohold Thursday. "They'renot generating enough money for what it costs them." Themerchant generationbusiness is operatedby the St. Louis-based company'sAmeren Energy Resources subsidiary, which serves commercial and wholesale power markets in the Midwest. Collinsville-basedAER, which employs about 900 

### people, was formed in 2000 

### following Illinois' deregulationofthe state's electricity markets, andits customers include municipal utilities andruralcooperatives. Themerchant generationbusiness representedonly about 15 percent ofAmeren's $5.3 billion ofrevenue inthe first nine months oftheyear.Theremainder ofAmeren'sbusiness is derivedfrom regulatedutilities AmerenMissouri andAmerenIllinois. Amerensaidin a regulatory filing Thursday thatthe merchant generationbusiness has experienceddecreasing earnings and cashflows for severalyears. Inthefiling, Amerenalso cited environmentalregulations thathave resultedin significant investmentrequirements. Ameren spokesman Brian Bretsch said a timeline for exiting thebusiness has not beenset for the exit, andthe am10uncement has "noimmediate impact onAmerenEnergy Resources' operations

... orfacilities." Genco, a subsidiary ofAER, 

### willlikely sell at least one ofits three naturalgas-fired power plants toimproveliquidity, accordingto the filing. Thethree Illinois plants are inElgin, 'INI-W.stltoday.comlbusiness/local/arreren-to-exit-merchant-generation-business/article_9b768f23-bd51-!366a-8d6e-fdc1dd36f483.html?print=true&cid=print 1129124113 

### Gibson City and GrandTower_ Ameren to exit merchant generation business: Business IPCB Case No. 2014-010 Exhibit D Page 2 of2 

### The decision toleave this business "resultedfromAmeren's analysis ofthe current and projectedfuture financial condition ofits merchant generationbusiness segment, including the need tofund Genco debt maturitiesbeginning in 2018, 

### andits conclusion that this business segment is nolonger a core component ofits future business strategy," according to thefiling_ Amerenalready closed two ofits merchant power plants in Illinois in 2011-

WNN.stltoday.comlbusinessllocal/amererrto-exitwmerchant-generation-business/article_9b768123-bd51-566a-8dt)e..fdc1dd36f483.html?print=true&cid=print 212

## Danskammer power plant sale dragging due to taxes Company still owes $11M 

### By Jessica DiNapoli Times Herald-Record Published: 2:00AM- 07/02/13 IPCB Case No. 2014-010 Exhibit E Page 1 of 5

TOWN OF NEWBURGH
- Sale negotiations for the Danskammer power plant have dragged out far longer than anticipated, leaving about $11 million in overdue taxes in the balance and the future of the plant increasingly uncertain. The heart of the stalemate is the property assessment and taxes on 62-year-old Danskammer, currently planned to be demolished. Owner Dynegy, in a court filing Monday, says the value of Danskammer and sister plant Roseton combined is less than the total amount of overdue taxes, and is seeking to have the amount due reduced to $8 million. The town, Orange County and the Marlboro School District should not be entitled to penalties and interest, Dynegy argues. The back taxes are based on the town's $313 million valuation of Danskammer. That number comes from a 2008 settlement for Danskammer and Roseton that pegged their combined value at $890 million. That figure is "divorced from the economic realities of the value" of the plants and their operating results, according to Dynegy's filing. The taxes ultimately contributed to Dynegy's bankruptcy, the filing states. Dynegy finalized the sale of Roseton to Castleton Commodities International this spring for $19.5 million. Steve Durkee, the president of ICS NY Holdings, which won last year's bankruptcy auction of Danskammer with a bid of $3.5 million, said the property taxes and the assessment for Danskammer going forward are the last issues to resolve before the deal can close. Durkee said it makes no sense to pay taxes that are three times the purchase price of the plant. "Why would anyone do that?" Durkee has formally contested the 2013 assessment of the retired plant- $189 million, which he called a "deal-killer."!PCB Case No. 2014-010 Exhibit E Page 2 of5

In an assessment grievance filed with the town in May, he sought to reduce the assessment to $0, claiming the property's value is actually negative because of the costs associated with contamination on the site. Newburgh, however, didn't budge on the assessment. It's still $189 million, said Supervisor Wayne Booth. David Murphy, the attorney representing Newburgh in the assessment issue, said the town wouldn't reconsider the assessment until the site has changed hands. The town is not sure if ICS NY Holdings has the financing to buy it. "Suppose we reduce the assessment to zero, and then the deal fell through. We'd look a little ridiculous, wouldn't we?" Murphy said. "!don't want the Town of Newburgh looking ridiculous." Durkee is barred by the court from walking away from the deal until July 9. Dynegy can look for other buyers, but has been focused on working through the sale process with Durkee, according to spokeswoman Katy Sullivan. For Orange County, the problem would get "exponentially worse" if ICS abandoned the deal, Durkee said. "The asset sits and becomes a massive liability right on the river," Durkee said. idinaooli@th-record.com

## Dynegy: Cut tax assessments 90% Decision could mean millions IPCB Case No. 2014-010 Exhibit E Page 3 of5

Dynegy is suing to have tax assessments on its Roseton and Danskammer plants reduced by more than 90 percent. The Marlboro School District stands to lose $17 million, more than 40 percent of its tax revenue. Newburgh could lose $5 million, which worries Supervisor Wayne Booth, who stands before the Roseton plant. Dynegy has already failed to pay its taxes due in January. 

### By Jessica DiNapoli Times**Herald~Record** Published: 2:00AM- 08/22/12 Last updated: 8:51 AM
- 08/22/12 The owners of the Roseton and Danskammer power plants have filed lawsuits asking for a more than 90 percent reduction in their 2012 assessments, a move that could have major consequences for taxpayers in the Town of Newburgh and Marlboro School District. Those taxpayers would have to come up with most of the money the plants normally pay if Dynegy, which is also in Chapter 11 bankruptcy, wins its assessment challenge. Altogether, it may mean around $23 million in lost revenues for the Marlboro School District, the Town of Newburgh and Orange County. The potential loss is "such an ominous number for the town and school district," Newburgh Town Supervisor Wayne Booth said. The most severe effects would be in Marlboro, where the tax base is mostly farms and homes. The district covers most ofthe Town of Marlborough and parts of the Towns of Newburgh and Plattekill. District officials are expecting the power plants to pay about $17 million in taxes, more than 40 percent of all the taxes the district will raise for the upcoming school year.

### District may have to borrow IPCB Case No. 2014-010 Exhibit E Page4of5

Superintendent Raymond Castellani said Dynegy needs to pay its taxes until a decision is made on the lawsuits. "It doesn't concern me as much as them not paying," Castellani said. Ifthe Houston power company skips out on the bill in the fall, the district will likely have to borrow money until April, when Orange County would have to make it whole, said Neysa. Sensenig, the assistant superintendent for business. Sensenig added the scenario could change if the plants are sold -a key part in Dynegy's plan to pay back its creditors in bankruptcy. If Dynegy wins its new lawsuits, taxpayers in Newburgh will have to come up with an extra $5 million, according to this year's budget and levy. The assessments Dynegy is targeting are used for a January 2013 tax bill, David Murphy, an attorney for the Town of Newburgh, said.

Dynegy says in court papers that the two plants together have a market value of $64.9 million, a drastic decrease from the agreed-upon value of about $895 million reached in a settlement almost five years ago. The terms of that settlement are in effect through the end of this year and affect some taxes next year. But Dynegy is trying to alter the final year with its current lawsuits, Murphy said. The company's backtracking will be a part of his defense in court.

Booth said it's possible that Dynegy, in its new lawsuits, could again get retroactive judgments despite the existing settlement. Since the previous Dynegy settlement, Marlboro has reduced staff by 20, while Newburgh laid has off nine full-timers. The recession also played a role in the staffing changes. The $64.9 million price tag for the plants is a lowball figure, Murphy said. Expert appraisals ordered during the legal proceedings usually determine the new value of the properties, he said. The upcoming auction of Roseton and Danskammer in bankruptcy court may also show what the best price is, Murphy said. The auction is tentatively scheduled for November, according to bankruptcy court filings.

### 2012 

### town, county taxes unpaid IPCB Case No. 2014-010 Exhibit E Page 5 of5

Dynegy already owes the Town of Newburgh and Orange County money. The company skipped out on a $7.5 million tax bill due in January because it was unsure of who would ultimately own the plants. That bill -now more than $8 million because of penalties -is scheduled to be discussed at Dynegy's Aug. 31 hearing. But ongoing negotiations may mean it will be settled before then, said attorney Lewis Wrobel, who is representing the Town of Newburgh in Dynegy's bankruptcy case. jdinapoli@th-record.com

# Electronic Filing - Recived, Clerk's Office: 08/24/2013

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

ILLINOIS PO\VER 

### HOLDINGS, LLC and ) AMERENENERGY MEDINA VALLEY ) COGEN, LLC; )

AJ\1EREJ\ ENERGY RESOURCES, LLC Petitioners,

Co-Petitioner,
V. 

### ILLINOIS ENVIRON:viENTAL PROTECTION AGENCY, Respondent. ) ) ) ) ) 

### PCB No. 14-10 ) (Variance- Air) ) ) ) ) ) ) )


### NOTICE OF FILING To: ALL PERSONS ON TI-lE ATTACHED SERVICELIST Please take notice that today we have electronically filed with the Office.ofthe Clerk of the Illinois Pollution Control Board a 

### Waiver ofSt&t lory

### De~is·o~n eadline, a copy ofwhich are herewith servedupon you. ' /;) // ;· 

# /( /Ufl ';{. /iLt/UG?3'

Dated: September24, 2013 

### BROWN, HAY & 

### STEPHENS, LLP Claire A. Manning Willian1 D. Ingersoll 205 S. Fifth Street, Suite 700 P.O. Box 2459 Springfield, IL 62705-2459 (217) 544-8491 Fax: (217) 241-3111 cmanning(,Vbhsla>Y.com wingersoll@bhslaw.com Claire A. Mmming



### SCHIFFHARDIN, LLP Renee Cipriano Amy Antoniolli 233 South WackerDrive, Suite 6600 Chicago, Illinois 60606 (312) 258-5550 Fax: (312) 258-5600 rcipriano,'ci),schiffhardin.com aantoniolli@schiffhardin.com 

# fS ATTACHMENT---

## Eh:Jctronic Filing
- RBcivBd, CIBrk's OfficB: 

# 08/24/2013

BEFORE THE ILLINO!S POLLUTION CONTROL BO

. 

### .!J>..D ILLINOIS POWER HOLDINGS. LLC and AMEREJ'.iENERGY 1v1EDINA VALLEY ) COGEN, LLC; } ) Petitioners, ) ) A.J\1EREN ENERGY ) 

### RESOURCES, LLC ) ) Co-Petitioner, ) PCB No. 14-10 ) (Variance-Air) v. ) ) 

### ILLINOIS ENVIROJ'.i1V1El'iTAL PROTECTION AGENCY, Respondent. ) ) ) ) WAIVER OFSTATt:TORYDECISION DEADLINE Pursuant to the request ofthe Hearing Officer, Petitioners Illinois Power Holdings, LLC and AmerenEnergy Medina Valley Cogen, LLC, and Co-Petitioner Amcren Energy Resources, herebywaive the statutory decision deadline in the above-captioned matter up to, and including, November 21, 2013. 

# /j /.A

-- {/1w..rL 

# U. h{tvtvJt..A

__ · Claire 

### A. Manning Dated: September 24,2013 

### BROWN,HAY & 

### STEPHENS, LLI' 

### Claire A. Manning 

### WilliamD. Ingersoll 205 S. 

### Fifth Street, Suite 

### 700 P.O. Box 2459 Springfield, 

### IL 62705-2459 (217) 544-S49l 

### Fax: (217) 241-3111 cmanningtmbhslaw.com wimzcrsollrci:.bhslaw.com SCHIFTHARDIN, LLP Renee Cipriano 

### Amy Anloniolli 233 SouthWackerDrive, Suite 6600 Chicago, Illinois 60606 (312) 258-5550 

### Fax: (312) 258-5600 rcipriano@schiffhardin.com aanioniollifa:sehiffhardin.com

## EIBctronic Filing- RBcivBd, CIBrk's OfficB: 

# 08/24/2013

CERTIFICATE OF SERVICE L the undersigned. certify that on this 24th day of September. 2013, I have served electronically the attached ·waiver ofStatutory Decision Deadline, upon the following persons: John Therriault, Assistant Clerk Illinois Pollution Control Board James R. Thompson Center Suite 11-500 100 West Randolph Chicago, Illinois 6060 I 

### and 

### by first class mail, postage affixed upon: Carol Webb, Hearing Officer Dlinois Pollution Control Board 1021 North Grand Avenue, East Springfield, Illinois 62794-9276 Gina Roccaforte, Assistant Counsel Division ofLegal Counsel Illinois Environmental Protection Agency I

### 021 North Grand Avenue, East P.O. Box 19276 Springfield, Illinois 62794-9276 Faith E. Bugel Andrew Armstrong Environmental Law & 

### Policy Center 35 

### E. Wacker Drive Chicago, Illinois 6060

### I

BROWN, HAY & 

### STEPHENS, LLP Claire A 

### Mmming William D. Ingersoll 205 S. Fifth Street, Suite 700 P.O. Box 2459 Springfield, IL 62705-2459 (217) 544-8491 Fax: (217) 241-3111 cmmming(a]bhslaw.com Vi'ingerso]](a)bhslaw.com Claire A. 

### Manning SCHIFF HARDIN, LLP Renee Cipriano i'uny Antoniolli 233 South Wacker Drive, Suite 6600 Chicago, Illinois 60606 (312) 258-5550 

### Fax: (312) 258-5600 rcipriano@schiffhardin.com aantoniolli!Wschiffhardin.com

# Electronic Filing- Recived, Clerk's Office: 0812412013

-PC# 2336

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD ILLINOIS POWERHOLDINGS, LLC and ) AMEREN ENERGY MEDINAVALLEY ) COGEN, LLC, ) Petitioners, ) ) ) 

### AMEREN ENERGY RESOURCES, LLC, )

v. ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, Respondent. ) ) ) ) ) ) ) 

### PCB 2014-010 (Variance- Air)

NOTICE OF FILING TO: SEE ATTACHED SERVICE LIST PLEASETAKENOTICE that I have electronically filed today with the Illinois Pollution Control Board the Comments ofthe Illinois Attorney General's Office, a copy ofwhich is hereby served upon you.
Dated: September 24, 2013

BY: Respectful!y submitted, PEOPLE OF THE STATE OF ILLINOIS byLISA MADIGAN, Attorney General ofthe State ofIllinois

JAMES P. GIGNAC Environmental and Energy Counsel Illinois Attorney General's Office 69 W. Washington St., 18th Floor Chicago, Illinois 60602 (312) 814-0660 jgignac@atg.state.il.us


# {(, ATTACHMENT

___ _

### '



### . 

# Electronic Filing
- Recived, Clerk's Office : DB/24/2013
- PC# 2336

Carol Webb Hearing Officer Illinois Pollution Control Board 1021 North Grand Avenue East P.O. Box 19274 Springfield, IL 62794-9274 Gina Roccaforte 

### SERVICE LIST

lllinois Environmental Protection Agency I021 North Grand Avenue East P.O. Box 19276 Springfield, IL 62794-9276 Claire A. Manning WilliamD. Ingersoll Brown, Hay & 

### Stephens LLP 205 SouthFifth Street, Suite 700 Springfield, IL 62705-2459 Renee Cipriano AmyAntoniolli SchiffHardin, LLP 6600 Willis Tower 233 S. Wacker Drive Chicago, IL 60606-6473

# Electronic Filing- Recived, Clerk's Office: OB/2412013
- PC# 2336

BEFORE THE ILLINOIS POLLUTION CONTROLBOARD ILLINOIS POWERHOLDINGS, LLC and ) AMEREN ENERGY MEDINA VALLEY ) COGEN, LLC, ) Petitioners, AMEREN ENERGY RESOURCES, LLC,

v. ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, Respondent. ) ) ) ) ) ) ) ) ) ) ) 

### PCB 2014-010 (Variance- Air)

COMMENTS OFTHE ILLINOIS ATTORNEY GENERAL'S OFFICE Pursuant to 415 ILCS 5/32 and 35 Ill. 

### Adm. Code§ 104.224(d), the Illinois Attorney General's Office, on behalfofthe People ofthe State ofIllinois (the "People"), hereby submits the following comments to the illinois Pollution Control Board (the "Board") for its consideration in the above-referenced matter. INTRODUCTION The People strongly support the Board's decision in PCB 12-126 to require Dynegy's subsidiary, Illinois Power Holdings, LLC ("IPH"), to make its own independent showing ofneed for a variance and to require that IPH file its request in a new docket to undergo the public process requirements set forth in 35 Ill. Adm. Code 104, Subpart B. 

### The wisdom ofthis decision is evidencedbythe large numbers ofpublic comment (written and oral) received bythe Board in the current docket, as well as through the exchange ofquestions and recommendations by and between the Board, the Illinois Environmental Protection Agency ("IEPA"), and the petitioners. One issue, however, that the Board did not appear to squarely address in PCB 12-126 is the procedural question ofwhether it is appropriate for the Board to considerrequests for
I

# Electronic Filing- Recived, Clerk's Office: 0912412013
- PC# 2336

variances from entities, such as IPH, who are not yet actually subject to the regulations from whichthey seek relief. Assuming, though, that the Board finds this type ofrequest to be allowable, the People provide the following suggestions to aid the Board's analysis ofthe substantive merits of!PH's petition. DISCUSSION I. Evaluation ofEmissions Petitioners go to great lengths to attempt to claim that the requested variance will not result in higher pollution amounts than ifthey were required to comply with the MPS. Forthe

reasons set forth below, the Board should reject IPH's attempt to claim credit for not operating plants that it will not acquire. Also, because IPH is requesting prospective variance reliefto begin on an uncertain date, the Board should examine a range ofemission scenarios and consider the use ofadjustable emission caps based onthe actual date ofthe closingbefore determining that a varianceis warranted. A. Medina Valley is an Unnecessary Party. 

### In denying the motion to substitute parties inPCB 12-126, the Board pointed outthat IPH

was proposing to acquire only five out ofthe sevenplants that theBoard had analyzed in granting the variance to AER. Order ofthe Board (June 6, 2013) at II. The Board stated that it "wouldtherefore berequired to undertake a new analysis specificallyrelated to the five facilities in [IPH's] requested variance." 

### !d. (emphasis added). But instead offollowing the Board's instructions and presenting a new analysis, IPH decided tojoinwith another entity (Medina Valley Cogen, LLC) and repackage the same set ofpollutioncalculations involved inPCB 12- 126. As discussed below, the MedinaValley subsidiary is irrelevantto IPH'svariance request and should be excludedfrom the Board's analysis inthis docket.

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# Electronic Filing
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Upon acquiring the two shut-down facilities (Hutsonville and Meredosia), there is nothing Medina Valley would need to do to comply with the MPS and therefore no reason for it
to bebefore the Board requesting variance relief. Nowhere does Medina Valley state any intent ofresuming coal-firedpower generation at either Hutsonville orMeredosia. It

### appears that the FutureGen 2.0 project, ifit is built at the Meredosia plant, would operate at an emission rate of .044lb/mmBtu 1 

### and have verylittle impact one way or the other onthe overall MPS group compliance due to its relatively small size. To the extent FutureGen would affect anything, it would only assist IPH with MPS compliance obligations. The simplest and most straightforward wayto address FutureGenwouldbe for IPH, as part ofthe proposed transaction, to agree to indemnifyMedina Valley inthe event Medina Valley is claimed to be in violation ofthe MPS by operating the FutureGenboiler during thetetm ofa variance. Accordingly, the Board should deny Medina Valley's variance request, focus its analysis

onthe five plants that IPH proposes to acquire, and should follow-through with a new evaluation that it determined to be necessary in denying the substitution of!PH for AERin PCB 12-126. TheHutsonville and Meredosiaplants shouldbe excluded from the revised analysis becausethey have zero impact on the fleet-wide emissionrate (no heat input, no sulfur dioxide ("S02') emissions) and are, therefore, irrelevant to IPH's compliance with the MPS. IPH's insistence on continuing to claim credit for the closures ofHutsonville and Meredosia-plants that itnever owned and will never own-only serves to obscure the question ofharm to public health and the environment and represents a fiction that should be rejected bythe Board.

1

### According to the draft air permitting documents, the FutureGenboiler wouldbe limited to a heat input of 14,500,000 mmBtu/year and an

# so2 emission limit of322.4 tons/year ((322.4x2000)/14500000=0.044). http://www.epa.state.il.us/public-notices/2013/amerenfuturegen-meredosialdraft-pennit-12020013.pdf.
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## EIBctronic Filing- RBcivBd, CIBrk's OfficB: 

# 09/2412013 - PC# 

# 2336

B. Uncertain ClosingDate In 

### addition to confining its analysis to the actual plants that IPH proposes to acquire, the Board should also reject IPH's attemptto take credit for emission reductions that occurprior to it taking ownership ofthose plants. In PCB 12-126, the Board found that the beginning ofAER's commitmentunder the proposed variance conditions was the appropriate starting point for analyzing the environmental impact ofthe variance. Opinion and Order (Sep. 20, 2012) at 56 ("[T]he Board fmds that 2012 is the appropriate startpointbecause the variance will be granted in 2012 and commits AERto complying with a more stringent overall [sulfur dioxide ("S02")] 

### annual emission rate starting in 2012

... as a prerequisite to the dual vatianceperiods themselves."). Here, when IPH's commitment will begin is unclear because ofthe contingent nature of the proposed transaction. One ofthe major contingencies is the Federal Energy Regulatory Commission ("FERC") approval the transactionunder Section 203 ofthe Federal Power Act (16 U.S.C. § 824b). Dynegy and Ameren filed their application for FERC approval onApril16, 2013. See 

### Joint Application, FERC Docket EC13-93? The FERC must act on a completed Section 203 application within 180 days ofthe filing. 18 C.P.R.§ 33.11. Thus, ifthe AmerenDynegy application had been deemed complete, the FERC would have had a decision deadline ofmid-October. Butthe application was not complete. In a letter dated July 26, FERC staff directed the applicants to atnend the application and provide additional information to allow FERC to analyze the filing.3 

### Ameren and Dynegy submitted the additional information on

2 

### http://elibraty.ferc.gov/idmws/docket search.asp
3 

### Office ofEnergyMarket Regulation, Letter orderdirecting AmerenEnergy Generating Companyet a!. to provide an amendment to the 4/16/13 application for authorization ofa disposition of jurisdictional assets and merger under EC13-93 (July 26, 2013). 4

# Electronic Filing- RecivBd, CIBrk's DfficB: OS/2412013
- PC# 2336

August 5th, which FERC had stated in its letter would be considered an amendment to the application and would involve assigning a new date to the filing. Thus, FERC approval maynot by achieved bymid-October and mayin fact still be pending into 2014. The possibility that FERC approval couldbe delayed appears to havebeen anticipated by Ameren and Dynegy. Through the asset purchase agreement, the parties gave themselves until March 14, 2014 to complete the closing beforeunilateral termination rights accme. See Exhibit Bat26, Motion to Reopen Docket (May 2, 2013), PCB 12-126. They also allowed the option to extend this date by an additional thirty days if"govemmental consents" (e.g., FERC approval) had not been secured. 

### !d. As the requestor ofthe variance, IPH carries the burden ofproof. Marathon Oil Co. v. EPA, 242 Ill.App.3d 200,206 (5th Dist. 1993) (citingMonsanto Co. v. PCB, 67 Ill.2d 276,293 (1977)) ("The partyrequesting the variance has the burden ofestablishing that the hardship resulting from a denial ofthe variance outweighs any injury to the public or the environment from a grant ofthe variance."). As oftoday, IPH is unable to prove when it will assume ownership oftheplants and can only speak to its expectations or what it anticipates orhopes will

occur. Under the asset purchase agreement, it is conceivable that IPH would not assume ownership and would not become subject to the variance until as late as Aprill4, 2014. Ifin fact the closing date is delayed into 2014, the calculation ofdifferences between

mass S02 

### emissions underthe MPS and under the requested variance would need to be adjusted. Thus, the Board should examine a range ofemission scenarios ranging from what it has already requested (Fourth Quarter 2013 through 2020) up to and including April2014 through 2020. Also, as discussed below, the People support the inclusion ofmass emission caps as a condition
to any IPH variance that maybe granted to ensure that actual emissions do not exceed the

5

# Elactronic Filing
- Racivad. Clark's Offica: 0912412013
- PC# 2336

amounts that the Board finds appropriate. To address the uncertainty ofthe actual closing date in this case, the Board could consider including, as an additional condition to the variance, that IPH provide a re-calculation ofthe emission cap(s) needed based onthe date ofclosing and submit it
to the Board as part ofits certification ofacceptance. II. Consideration of 1-Hour 

### S02 

### Modeling Analysis The Citizen Groups have submitted air modeling analyses ofthe unscrubbed plants proposed to be acquired by IPH (Edwards, Joppa, and Newton). PC #113. According to the results, all three ofthe plants are estimated to be causing violations ofthe !-hour S02 

### national ambient air quality standard. 

### !d. Forthereasons set forth below, the Peoplebelieve that it is appropriate for the Board to include the analyses inits evaluation ofthe potential for harm to publichealth as a result ofthe variance. 

### 1n orderto complywith theMPS, some action would need to betaken by IPH at one or

more ofthe Edwards, Joppa, and Newtonplants to reduce S02 

### emissions starting in 2015. Depending on the specific action to betaken, the reduction in 

### SOz emissions would help to eliminate orreduce exceedances ofthe !-hourS02 

### standard at one or more ofthe plants. Instead, under the variance, IPH can operate the three plants as they are being operated today, likely continuing to cause exceedances ofthe 1-hour S02 

### standard until such time as the sources

are addressed bya SIP revision (by 2018 inthe case ofEdwards and even later for Joppa and Newton, depending onwhen USEPA completes the attainment designations for those areas). 

### 1n PCB 12-126, the People focused their commentary on the higher amounts ofS02 

### emissions that the variance would permit from 2015-2020 compared to what would otherwise

occurunderthe MPS. While the Board ultimately accepted the use ofemission reductions in 2012-2014 to offset the increase, neither the People nor the Board had the benefit ofthe air

6' 

# . Electronic Filing - Recived, Clerk's Office: OB/2412013
- 

# PC# 2336

modeling analyses nowbeing provided bythe Citizens Groups. The People believe the analyses support the view that citizens could be exposed to unsafe levels ofairpollution longer underthe proposed variance than they otherwise would be if !PH was required to comply with the MPSand that this is true regardless ofoffsetting emissionreductions in earlier years. The Board should acknowledge this factor and incorporate it into its evaluation ofwhether IPH has shown that its hardship outweighs harm to public health and the environment. 

### III. Additional Conditions to a Granted Variance ThePeople support the use ofannual mass emission caps as a means ofensuring that actual emissions under thevariance do not exceed levels that the Board may fmd appropriate in its analysis. Whilepetitioners have expressed their willingness to accept anoverall cap, Response to Sept. 12th Questions at 2-3, annual caps wouldbepreferable as a safeguard against pollution spikes occurring in one ormore particular years during the variance. The People also support inclusion ofthe additional variance conditions identified by IEPA and agreed to by !PH regarding scrubber efficiency, sulfur content offuel, and the commitmentnot to operate Edwards Unit I upon approval bythe system operator.



### 7

# Electronic Filing- Recived, Clerk's Office: 09/24/2013

-PC# 2336

Dated: September 24,2013

MATTHEW J. DUNN, Chief Environmental Enforcement/ Asbestos Litigation Division 

### BY:

8 Respectfully submitted, PEOPLE OF THE STATE OF ILLINOIS by LISA MADIGAN, Attorney General ofthe State ofIllinois

# ~**-r,~o** -c JAMES P. GIGNAC Environmental and Energy Counsel Illinois Attorney General's Office 69 W. Washington St., 18thFloor Chicago, Illinois 60602 (312) 814-0660 jgignac@atg.state.il.us ' 'l**~** 

# Elsctronic Filing- Rscivsd, Clsrk's OfficB: 09/24/2013 - PC# 2336

CERTIFICATE OF SERVICE I, James P. Gignac, an Assistant Attorney General inthis case, do certify that I caused to be served this 24th day ofSeptember, 2013, the foregoing Comments ofthe Illinois Attorney General's Office upon the persons listed on the Service List by depositing same in an envelope, first class postage prepaid, with the United States Postal Service at 69 W. Washington St., Chicago, Illinois, at orbeforethe hour of5:00p.m.

JAMES P. 

### GIGNAC. 

### '

# Electronic Filing- Recived. Clerk's Office: 10/0712013

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD ll..LINOIS POWERHOLDINGS, LLC and ) AMERENENERGYMEDINAVALlEY ) COGEN, LLC, ) Petitioners, ) ) 

### AMERENENERGY ) RESOURCES, LLC ) Co-Petitioner, ) )**~** 

## ) ) 

### ll..LINOIS ENVIRONMENTAL ) PR01ECTIONAGENCY, ) Respondent. ) PCB No. 14-10 (Variance- Air)



### NOTICE OF FILING To: John Therriault, Assistant Clerk CarolWebb, Hearing Officer illinois Pollution Control Board James R. Thompson Center 100WestRandolph Street, Suite 11-500 Chicago, lllinois 60601 therriaj@ipcb.state.il.us cwebb@ipcb.state.il.us 

### Claire A 

### Manning WilliamD. Ingersoll Brown Hay & 

### Stephens LLP 204 S. Fifth St., Ste. 700 Springfield, 

### IT.. 62704 Tel: 217-544-8491 Gina Roccaforte Assistant Counsel Division ofLegal Counsel lllinoisEnvironmental Protection Agency 1021 North Grand Avenue, East P.O. Box 19276 Springfield, Tilinois 62794-9276

FaithE. Bugel Andrew Armstrong Environmental Law and PolicyCenter 35 E. Wacker Drive Chicago, IL 60601

PLEASE TAKE NOTICE that we have today electronically filed with the Office ofthe Clerk of the illinois Pollution Control Board the attached

### AMEREN ENERGY RESOURCES' BRIEF IN RESPONSE TO COMMENTS, copies ofwhich are herewith servedupon you.



# 11 ATTACHMENT---

## EIBctronic Filing
- RBcivBd. CIBrk's OfficB: 

# 10/0712013

Dated: October 7, 2013 Renee Cipriano AmyAntoniolli SCHlFFHARDINLLP 233 SoutbWacker Drive Suite 6600 Chicago, lllinois 60606 312-258-5500 aantoniolli@schiffhardin.com

# Electronic Filing- Recived. Clerk's Office: 10/0712013

CERTIFICATE OF SERVICE I, the undersigned, certify that on this 7th day of October, 2013, I have served electronically the attached 

### AMEREN ENERGY RESOURCES' BRIEF IN RESPONSE TO COMMENTS, upon the following persons: John Therriault, Assistant Clerk Carol Webb, HearingOfficer illinois Pollution Control Board James 

### R. Thompson Center Suite 11-500 100 WestRandolph Chicago, illinois 60601 therriaj @ipcb.state.il.us cwebb@ipcb.state.il.us and electronically and byfirst class mail, postage affixed, upon: GinaRoccaforte Assistant Counsel Division oflegalCounsel lllinois Environmental Protection Agency 1021 North Grand Avenue, East P.O. Box 19276 Springfield, illinois 62794-9276 FaithE. Bugel Andrew Armstrong EnvironmentalLaw and Policy Center 35 E. Wacker Drive Chicago, IL 60601

Renee Cipriano AmyAntoniolli SCHIFFHARDIN LLP 233 SouthWackerDrive Suite 6600 Chicago, lllinois 60606 312-258-5500 aantoniolli @schiffhardin.com Claire A. 

### Manning WilliamD. Ingersoll Brown Hay & 

### StephensLLP 204 S. Fifth St., Ste. 700 Springfield, IL 62704 Tel: 217-544-8491

# ~&- y

C. Antoniolli

## EIBctronic Filing- RBcivBd, CIBrk's OfficB: 

# 10/0712013

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD 

### ILLINOIS POWER HOLDINGS, LLC and ) 

### AMERENENERGY MEDINA VALLEY ) 

### COGEN,LLC, ) 

### Petitioners, ) ) 

### AMEREN ENERGY ) 

### PCB No. 14-10 RESOURCES, LLC ) 

### (Variance- Air) Co-Petitioner, ) ) 

### v. ) ) 

### ILLINOIS ENVIRONMENTAL ) 

### PROTECTION AGENCY, ) 

### Respondent. ) 

### AMEREN ENERGY RESOURCES' BRIEF IN RESPONSE TO COMMENTS 

### AER and the Petitioners acknowledge the magnitude ofthe decision before the Board and the acute level ofpublic interest. Without a doubt, the granting ofthe variance reliefrequested herein provides the best option for continued operation ofthe AER coal plants and the economic stability oftheir surrounding communities. But it does not and will not come at the expense of the environment. As in PCB 12-126, Petitioners herein have proposed a compliance plan that mitigates the environmental impact ofthe requested relief. The Parties have crafted a request and compliance plan that recognizes the core purpose ofthe MPS and provides the Board with comfort that the MPS's foundation ofoverall emission reductions will not be compromised. The granting of variance requested provides improved environmental benefits when compared to PCB 12-126, while increasing the economic stability of the AER energy centers and their surrounding communities.

# Electronic Filing -Recived. Clerk's Office: 10/0712013

I. INTRODUCTION 

### ELPC 1 

### asks this Board to deny the variance as a matter of policy.2 

### They state that granting the variance would amount to "bail{ing} outwhat appears to be a failing indust1y." Tr., p. 321. Another opponent states that 

## "if granted, [the variance} wouldprovidefuture buyers of environmentally risky assets a modelfor how to structure acquisitions to avoid environmental compliance costs under the guise of financial hardship." Tr., p. 304. There is further claim that the variance request is "an unfair way to set up a choice"-a choice betweenjobs and the livelihood of thousands and others who have health related issues." Tr., p. 318. Despite these claims, all ofthe opponents and proponents before this Board, and respectfully this Board itself,
must resist approaching this request as a choice between jobs and environmental protection. Indeed, Petitioners and Co-Petitioner are not asking the Board to make this choice; the elected officials in support of this variance request and the workers who run these energy centers everyday are also not asking this Board to make this choice. The Illinois Supreme Court has clarified what was envisioned for the Board in a variance proceeding: "to decide if a regulation imposes an arbitrary or unreasonable hardship on an individual polluter. Ifthe Board finds such hardship, it may then grant a variance." Monsanto 

### Co. v. IPCB, 367 N.E.2d 684, 67 Ill. 2d 276 (1977). This conduct is quasi-judicial and must be based on specific findings of fact, with the exception of setting variance conditions, which is considered policy-making and within the Board's rulemaking authority "in the sense that its focus is on future conduct and its efficacy depends on agency expertise." Monsanto, 67 Ill.2d at

1 In this Response Brief, Co-Petitionerwill refer to the Natural Resource Defense Council, Sierra Club, Respiratory Health Association and Environmental Law and Policy Centercollectively as "ELPC" for ease in reference.
2 This Response Brieffiled on behalf ofAER will be referred to hereinafter as "AER's Response to Comments." This brief is intended to respond to comments made that require a response from AER only and is intended to compliment and supplement the Post Hearing Brieffiled by Petitioners and Co-Petitioner. Further, the transcript of the September 17, 2013 hearing held in this matter will be cited to throughout this briefas "Tr., p. _."
2

# Electronic Filing- Recived, Clerk's Office: 10/0712013

290, 367 N.E.2d at 689. In granting variances, the Board has indeed set conditions that narrowly tailor each variance to the unique set of facts at hand. And in the MPS context, variance conditions the Board has imposed have required a demonstration ofcontinual progress towards compliance with requirements more prescriptive and stringent than those found in the underlying regulation. In its Recommendation3 ("Recommendation"), the Illinois Environmental Protection Agency ("IEPA" or "Agency"), agrees that the Petitioners' "compliance plan as set forth in the Petition shows a net environmental benefit consistent with previous net environmental benefit determinations" and proposed three additional conditions. Rec., p. 29-30. IEPA concludes there wouldbe no injury to the public ifthe variance were granted with the conditions proposed. Rec., p. 17. The Petitioners have agreed to include the IEPA-proposed commitments as variance conditions and IPH has also agreed to an emissions cap to provide the Board with further

assurance that an overall benefit will be achieved. Together, there is no doubt that environmental impact was fully considered andrespected. For the reasons more fully set forth in the Petitioners' and Co-Petitioners' Post-Hearing Brief also filed today and supplemented with the paragraphs below, AER respectfully requests this Boardto grant the requested relief, subject to the proposed conditions. 

### II. GRANTING THE VARIANCE WILL NOT COMPROMISE THE STRUCTURE AND PURPOSE OF THE MPS OR HARM THE ENVIRONMENT. The MPS is a unique regulatory structure different from any other regulatory structure on the books in Illinois and nationally. The MPS was a negotiated rule and a briefbackground of the creation of MPS provides context for responding to public comments. The United States Environmental Protection Agency ("U.S. EPA") promulgated regulations requiring a reduction

3 The Agency's Recommendation will be cited to through-out this Briefas "Rec., p._."
3

# Electronic Filing - Recived, Clerk's Office: 10/0712013

of NOx and S02 

### (the "Clean Air Interstate Rule" or "CAIR"), and mercury (the "Clean Air Mercury Rule" or "CAMR") in 2005. The Agency proposed rules in Illinois to implement both federal rules: ProposedNew 35Ill. Adm. Code 225 Control of Emissions from Large Combustion Sources (Mercwy), 

### R06-25 (Dec. 21, 2006), and (2) Proposed New Clean AirInterstate Rules (CAIR) S02, NOx, Annual andNOx Ozone Season Trading Programs, 35 Ill. Adm. Code 225, Subparts A, 

### C, D, E, andF, 

### R06-26 (Aug. 23, 2007). At hearing, Mr. Dan Thompson presented

a chart identifYing all of the pollution control equipment that has been installed on the AER plants to meet the Illinois Mercury Rule and the MPS, attached hereto as Exhibit 1. The total
cost ofthese controls has exceeded $1 billion dollars. One only needs to take a cursory look at Exhibit 1to conclude that installation ofpollution control equipment at coal-fired powerplants is very complex. Installations must be sequenced and the equipment must be specifically fabricated for each project and site conditions. There are years oflead time for equipment and supplies ordering, labor retention, weather considerations, and, ofcourse, permitting. Hundreds ofworkers are required for many ofthese pollution control installation projects and thousands of

man hours go into managing the projects internally. With a number ofvery complex emission reduction programs converging at the same time and the State ofIllinois' desire to have one of the most stringent mercury reduction programs in the nation in place at the state level, AER stepped forward "before they were required to do so"4 

### (as requested by Ms. Joyce Blumenshine in her comments before the Board, Tr., p. 166) to develop the MPS with IEPA technical expertise and guidance. The goal was to achieve a progressive reduction ofemissions across a

4 ELPC includes as Exhibit B to their Post-Hearing Comments a copy ofthe Testimony ofthen Director Douglas Scott as he appeared before Congress on July 9, 2009. The Citizen Groups inaccurately cite to this testimony as standing for the proposition that the "MPS was adopted, in part, to address particulate matter." The MPS was not adopted to address PM but certainly as then Director Scott noted in his testimony, reduction ofNOx and S02 will result in lower PM emissions. The testimony also recognizes the genesis ofthe MPS and Ameren's efforts in that regard, as relevant here.



### 4

# Electronic Filing- Recived, Clerk's Office: 10/07/2013

period oftime that would result in the synchronized implementation oftechnology to meet the proposed requirements at both the federal and state level. The MPS, which became effective on January 5, 2007, 

### was a system-wide rule applicable to AER's fleet of seven coal-fired power plants and its structure is wholly dependent on compliance averaging by the Ameren MPS Group

across all 

### electric generating units in the system. The MPS structure, however, presupposed that federal regulations would set a level playing field nationally. That would not be the case. 5 It

### is important to acknowledge that the MPS goes far beyond what has been accomplished
at the federal level, and Illinois has imposed more stringent S02, 

### NOx, and mercury requirements than surrounding states, all to the benefit ofthe general public. Had setting a multipollutant standard for coal-fired electric generating units been easy, the U.S. EPA would have gotten it right by now. But it has not and compliance with the prescriptive, declining nature of the emission rates structured to synchronize with the now non-existing federal rules has been challenging especially in the face ofadditional factors that have arisen since the promulgation of the MPS. As a direct result, AER has sought modifications to the MPS emission rate timing on two occasions. First, AER sought an amendment to the MPS in 2009 

### which allowed the company to better synchronize construction projects so as to avoid devastating stranded costs. In seeking those amendments, AER worked with IEPA within the framework ofthe MPS to ensure that the integrity ofthe structure and purpose of the MPS were not compromised. AER then sought a variance from the 2015 

### and 2017 

### annual emission rates for S02 

### in 2013. 

### In doing so, AER also worked closely with IEPA to ensure the integrity ofthe structure and purpose ofthe MPS was not compromised. Both times, the reworking ofthe MPS has resulted in additional

5 As previously, stated, the federal CAMR rule had been vacated (NewJersey v. EPA, 517 F.3d 574, 583 (D.C. Cir. 2008) and the federal CAIRrule remanded (North Carolina v. EPA, 550 F.3d 1176, 1777-78 (D.C. Cir. 2008). U.S. EPA attempted to replace the CAIR with the Cross-State Air Pollution Rule in 20 II,but that rule was vacated as well (EPA v. EMEHomer City, 696 F.3d 7 (D.C. Cir. 2012). As ofthe date ofthis filing there are still no federal replacements for these rules.


### 5

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commitments above what was required by law to address any environmental impact resulting from the requested timing change. Both times, there has been a net benefit to the environment that has been crafted "hand in hand" with IEPA. Both times, AER did not make the request lightly and recognized the need to work with IEPA to respect the framework that it had helped develop. At no time has AER asked the Board orthe State to walk away from the MPS, even as the Ameren MPS Group struggled through the unanticipated hardship caused by depressed power markets while putting best efforts towards reducing emissions from its seven-plant fleet. Even today faced with the same hardship, Petitioners, representing the seven-plant Ameren MPS Group upon closure ofthe transaction are not asking the Board or the State to walk away from theMPS. ELPC's argument that the variance would "confer a benefit to a handful of corporations,
at an unacceptably high cost to the generalpublic" 

### ignores the achievements of the Illinois mercury rule and the MPS to date and the progressively stringent standards to which the Ameren MPS Group adheres. AER's fleet has made drastic reductions in S02, 

### nitrogen oxides ("NOx"), and mercury emissions over the past decade. With respect to S02, 

### since 1990 AER has achieved

a steady and significant decline in S02 

### emissions across the fleet--87% since 1990 and 51% over just the last five years. Second, with respect to NOx, AER has achieved a steady and significant drop in NOx emissions since 1990. These reductions have been accomplished even while utilizing greater quantities ofcoal. As Mr. Bell ofthe Coffeen Energy Center noted: "AER has spent over a billion dollars on pollution control technology. So what does supporting the variance mean for us? It means we will continue to reduce S02 

### and NOx during this timeframe." 

### Tr., p. 137. In granting AER's request for variance in PCB 12-126, the Board recognized the benefit that would occur in part due to early reductions in annual emission rates



### 6

## EIBctronic Filing- RBcivBd, CIBrk's OfficB : 

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of S02• AER v. !EPA, 

### PCB 12-126, p. 54. Under the variance, the applicable annual S02 

### emission rate is currently 0.35lb/mmBtu through December 31,2019. Without the variance, the applicable annual S02 

### emission rate would be 0.50 lb/mmBtu during 2013 and 0.43 lb/mmBtu during 2014. ELPC ignores the commitments that AER made in agreeing to meet a more stringent emission rate than currently required by the MPS, including higher levels ofcontrol at the Duck Creek and Coffeen Energy Centers, and procurement ofultra-low sulfur coal for use at the Edwards, Newton, and Joppa Energy Centers on an ongoing basis. These commitments show that AER has not wavered on its promise to provide the greatest reductions economically possible. AER has continuously sought to provide greater environmental benefits than necessary to meet the standard required for seeking a variance

- in spite ofcrumbling economic conditions and regulatory uncertainty at the federal level. Today, through this proceeding, IPH and Medina Valley are seeking to do the same. There can be no question that ifgranted the variance request with the compliance plan, as currently structured, will provide the greatest benefits to the State under the MPS to date. 

### III. ELPC'S ANALYSES FAIL TO SHOW THAT THE E.D. EDWARDS, JOPPA, AND NEWTON ENERGY CENTERS ARE CAUSING LOCALIZED ENVIRONMENTAL HARM. ELPC relies on a report prepared on behalfofthem by Mr. Klafka ofWingra Engineering
to stand for the technical conclusion that "all three of AER's unscrubbed coal plants all have been predicted to cause NAAQS exceedances,"6 

### and the general proposition that the variance "would allow a negative environmental impact

... to continue through the end ofthe decade." PC#2337, p. II, 14-15. The technical conclusion is drawn from what ELPC describes as "a dispersion modeling analysis" that was performed by Mr. Klafka for each plant (e.g., 

### Edwards,

6 Post-Hearing Comments of Environmental Law and Policy Center, Natural Resources Defense Council, Respirat01yHealthAssociation, andSierra Club (PC# 2337), PCB 14-10, p. 14.


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Newton and Joppa Energy Centers) "to assess compliance with the 2010 S02 

### NAAQS." !d., p. 15. They further explain that "[f]ollowing the most recent federal and state guidance, Mr. 

### Klafka utilized U.S. EPA's AERMOD air dispersion model to predict the downwind S02 

### concentrations associated with each plant's emissions-both currently permitted and measured actual." !d. ELPC goes on to state that "[f]or each plant, Mr. Klafka's analysis predicted exceedances ofthe NAAQS throughout their respective regions, to a maximum distance ofeight kilometers for the Edwards and Joppa plants, and a maximum distance of eight kilometers for the Newton plant." !d. Mr. Gignac nowbelieves that with the Klafka analyses in hand there is support for "the view that citizens could be exposed to unsafe levels of air pollution longer under the proposed variance than they would otherwise would be ifiPH was required to comply with the MPS-and that this is true regardless of offsetting emission reductions in earlier years."7 

### The Klafka analyses are not credible and cannotbe used to assess compliance with the !-Hour S02 NAAQS standard. Moreover, the requested MPS variance will not impact compliance with the !-hour NAAQS. In order to respond to the technical conclusions reached by Mr. Klafka in his assessment, AER retained Mr. Robert Paine of AECOM. Mr. Robert Paine is a Certified Consulting Meteorologist and a Qualified Environmental Professional with 3 8 years of experience in air quality modeling and consulting, all with AECOM. He has participated in the design, coding, evaluation, and documentation ofseveral air quality models over a period of30 years, including AERMOD, which is EPA's current guideline model. Mr. Paine continues to work with EPA on dispersion modeling improvements as an active member ofthe Technical Modeling Workgroup.

7 Comments of the Illinois Attorney General's Office (PC# 2336), PCB 14-10, p. 7. Notably, Mr. Gignac appears to accept the modeling analysis presented by the Citizens Group as the technical "final word" and omits mention that Illinois EPA, based on its review ofthe technical data, did not recommend designating Hollis Township as nonattainment for the S02 I HourNAAQS.



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He also has worked with professional trade associations and scientific organizations such as the American Petroleum Institute and the Electric Power Research Institute on new modeling techniques and advances. 

### Mr. Paine's biographical background andtechnical experience is more thoroughly presented in his 

### Curriculum Vitae attached to Exhibit 6, Attachment A of the Petitioners' and Co-Petitioner's Post-Hearing Brief. Mr. Paine found that the modeling analyses performed by Mr. Klafka contained a number of flaws resulting in an over prediction of emissions from all three plants.8 

### Mr. Paine concluded that the approach to modeling employed by Mr. Klafka that uses both allowable emission rates as well as peak actual emission rates "grossly overstates actual emissions from the three energy centers, as well as their impact on air quality." 

### Paine Report, p. I. Mr. Klafka himself admits that there are "a number ofmodeling assumptions that I used that made my analysis conservative." Tr., p. 86. Mr. Paine agrees and further concludes that "the Klafka modelingrepresents a very conservative analysis that does not present credible results." 

### Paine Report, p. I. A draft guidance document released by U.S. EPA in May 2013, the S02 NAAQS Designations Modeling Technical Assistance Document, addresses ways in which third-party modeling for NAAQS review might be limited. ld., p. 3. A key consideration is whether actual emissions data is used. As noted, Mr. Paine's technical review found that the Klafka modeling did not use actual hourly emissions monitoring data, but rather used both allowable emission
rates and peak actual emission rates (which can be regarded, at best, as a conservative screening analysis, not evidence ofa violation). 9 

### Id., p. 6. In addition, Mr. Paine explains that the Klafka

8 See Technical Critique of RecentAirQualityModelingAnalyses of theEdwards, Joppa andNewton Plants dated September 30,2013, Exhibit 6 to the Petitioners' and Co-Petitioner's Post-Hearing Brief("PaineRepart").
9 Mr. Paine notes that both sets ofthese emission rates are often much higher than actual hourly emissions. Paine Report, p. 6. In fact, Klafka used the single highest maximum peak 1-hour S02 emission rate measured and assumed the Edwards units emitted at that rate 24 hours per day, seven days a week and 52 weeks per year when the
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# Electronic Filing - Recived, Clerk's Office: 10/07/2013

analyses resulted in modeled design concentration that is a factor of about I0 

### too high for the E.D. Edwards Energy Center. Ifthis factor is corrected by scaling ofKlafka's modeling results
to represent typical plant conditions, the resulting 

# so2 concentrations fall below the 

# so2 NAAQS and are more consistent with monitored concentrations in Peoria that are well below the NAAQS, while Klafka's modeling indicated predicted violations at that monitor. !d. 

### Mr. Paine also found that Mr. Klafka similarly overstated emissions in his modeling for the Joppa Energy Center. By using a more typical emission rate to adjust the Klafka modeling results using allowable emissions and also with an adjustment correcting for the actual stack height for the facility, Mr. Paine found from scaling arguments that the total design concentration again falls below the !-hour S02 

### NAAQS for the energy center. Not surprisingly, Mr. Paine found that Mr. Klafka overstated emissions for the two units at the Newton Energy Center as well. Id. By scaling the allowable emissions with more typical emission rates for the two units, Mr. Paine found that the total design concentration again falls below the 1-hour S02 

### NAAQS. In general, Mr. Paine's analysis shows that the Klafka analyses simply cannot be used as "evidence" ofnonattainment with the !-hour S02 

### NAAQS and, more importantly, does not rely

on accurate information or provide credible results. As such, the Klafka analyses should also not be used to "support the view that citizens could be exposed to unsafe levels ofpollution longer under the proposed variance" as suggested by Mr. Gignac. ELPC accurately notes that the U.S. EPA has designated Hollis Township, in Peoria County as non-attainment in the federal S02 

### designations and classifications rulemaking

actual hourly emissions were significantly less on most days and near zero on other days. !d., p. 2. This same methodology was used in the Newton and Joppa modeling studies.

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# Electronic Filing- Recived. Clerk's Office: 10/0712013

docket. 10 

### PC#2337, pp. 14-15. This designation has the potential ofimpacting E.D. Edwards Energy Center. However, what ELPC did not explain is that the IEPA 

### did not propose that Hollis Township (Peoria County) be included as a non-attainment area basedupon its assessment of the data and relevant information. 11 

### They also do not consider that the S02 

### monitor in the Peoria area north of the energy center, more likely downwind of the facility, shows S02 

### concentrations well under the NAAQS. AERalso submitted comments to U.S. EPA objecting to the inclusion ofHollis Township as non-attainment for the !-hour S02 

### NAAQS. 

### See "Comments of Ameren Services dated March 15, 2013," EPA-HQ-OAR-2012-0233, and attached as Exhibit 2. Specifically, Ameren disagreed with the inclusion of Hollis Township based on four meaningful disputes with U.S. EPA's analysis. Based on Ameren's review ofthe technical data and meteorology and 

### based upon Illinois EPA's analysis, the facilities located north of the Tazewell monitor did not contribute to any of the measured exceedances of the !-hour S02 

### NAAQS in Tazewell County. 

### !d. The E.D. Edwards Energy Center is located directly north of the exceeding monitor. 

### !d. The Illinois Environmental Regulatory Group ("IERG"), an affiliate of the Illinois Chamber of Commerce, also disagreed with U.S. EPA's inclusion of Hollis Township. 

### See !ERG Comments on EPA Responses to Illinois' 2010 Sulfor Dioxide Recommendations, EPAHQ-OAR-2012-0233, dated March 18,2013 and attached as Exhibit 3. IERG states, inpart: "we do not believe that U.S. EPA gave ample consideration to all ofthe meteorological information provided by Illinois supporting its recommendation to not include Hollis Township. Further,

10 U.S. EPA, Air QualityDesignation for the 2010SulfurDioxide (SO:) PrimwyNationalAmbientAir Quality Standard, 78 Fed. Reg. 47191 (Aug. 5, 2013).
11 See also Technical Supp011 Document: RecommendedAttainment/NonattainmentDesignations in Illinois forthe 2010RevisedPrimmy 1-HourS02NationalAmbientAir QualityStandard, AQPSTR 11-01, !EPA, Jun. 2, 2011; available from USEPA's website (last viewed Oct. 7, 2013): httn://www.epa.gov/so2designations/recletters/R5 IL rec wtechanalysis.pdf.



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analysis of more recent data than 2007-2009 data provided by Illinois also supports the conclusion that sources located in Hollis Township do not impact the monitored exceedances of the standard that serves as the basis for nonattainment designation." !d. 

### On September 5, 2013, AER filed in the Seventh Circuit Court of Appeals a petition for judicial review of the designation by U.S. EPA of Hollis Township as an area that does not meet the !-hour S02 

### NAAQS. AERO's appeal, docketed as Case No. 13-2959, is attached as Exhibit 4. The process for designating areas following the promulgation of a new or revised NAAQS is contained in section 107(d) of the Clean Air Act and that process for the future designations should proceed as intended. Contrary to Mr. Klafka's analyses, Illinois EPA has
not proposed to include as non-attainment the areas within which the Joppa and Newton Energy Centers are located and in Illinois, this is the state regulatory agency entrusted by Congress to recommend air quality designations. Further and importantly, if U.S. EPA believed it was prepared to proceed with additional non-attainment designations at this time, it would have done
so, but it has not. ELPC simply cannot contend today as it does today that "[d]elaying compliance with the MPS means continuing localized NAAQS exceedances at the three unscrubbed plants" and therefore, localized environmental harm results. IV. THE FORESIGHT PROPOSAL IS NOT A VIABLE COMPLIANCE ALTERNATIVE. In both its written and oral public comments, Foresight Energy LLC presented aproposal that it has termed a "win- win" for the State ofIllinois, the Illinois coal industry and the AER plants. Specifically, Foresight offers to fund the Newton scrubber in exchange for a long term Illinois coal contract or, alternatively, "assume Dynegy's role in the proposed acquisition, acquire the assets as structured and construct the scrubbers." PC# 2000, p. 2. Notwithstanding its facial appeal, there are many factors that must be considered by the Board before the Board

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could determine that the Foresight proposal is a viable alternative to the current plan to complete the Newton ScrubberFGD Projectby December 31, 2019. Importantly, AER wishes to explain at the onset that Ameren Corporation and IPH have entered into a formal Transaction Agreement and are obligated to proceed in good faith towards closing that transaction. Negotiations with third parties to 

### "assume Dynegy 's role in the proposed transaction" would constitute a breach under that Agreement. As explained to the Board, Ameren announced its intent to exit the merchant business in December 2012. The intent
to exit was announced publicly in Ameren's Form 8-K with the Securities Exchange Commission. Dynegy, upon learning ofAmeren's intent, contacted Ameren to express interest in the merchant assets and began the process of formal negotiations and due diligence. After three months of negotiation and due diligence, an agreement between the parties was reached. At no time during that three month period did Foresight indicate a desire to begin formal negotiations with Ameren Corporation. As noted above, now that a Transaction Agreement has been signed, neither Ameren nor AER can engage in negotiations with a new third party to acquire the business in lieu ofiPH norcan AERnegotiate a long-term coal supply contract along the lines sought by Foresight. Further, based on the limited information presented, it appears that Foresight's proposed financing of the Newton FGD Scrubber Project is conditioned entirely upon the execution ofa long-term coal supply contract from one or more of its Illinois coal mines, with the specific commercial terms yet to be defined. The funding for the scrubber project, Foresight explains, would be embedded in the cost ofthe coal. PC# 2000, Attachment A, p. 2. However, the current design fuel for the Newton's scrubber FGD project is a full range of PRB coal only. Redesigning the project to accommodate Illinois basin coal would result in almost a complete

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# Electronic Filing - Recived, Clerk's Office: 10/0712013

duplication of the current configuration and construction efforts, excluding the stack. AER estimates that modifying the scrubber design to accommodate Illinois coal would significantly impact engineering, construction, and tie-in costs to well over $1 billion. 12 

### For the Foresight proposal to be commercially viable, such increased costs embedded in a coal supply contract would still need to be cost competitive and it is unclear how the additional costs will be reflected in a competitive way through a long term coal contract. Under current market conditions, PRB coal from the Wyoming basin is more economical than Illinois coal notwithstanding the additional transportation and delivery costs. 13 It 

### is hard to understand how these additional costs embedded in a fuel contract would improve the economics ofthe Newton Energy Center. As compared to PRB, Illinois coal also has a higher sulfur and different elemental properties. These properties impact the scope of the Newton scrubber project and the proper operation ofthe boiler. While originally designed for Illinois coal, AER and its predecessors have methodically converted boilers across the fleet to burn PRB coal, in large measure to address increasing restrictive S02 

### emission limitation requirements. Set forth below is a chart that reflects the dramatic 87% decline in S02 

### emissions from AER's fleet. 14

12 Based upon costs developed prior to the deceleration ofthe Newton scrubber, completion ofthe current project scope is estimated to be approximately $250M for a total direct project cost ofS460M. Such direct costs would need to be recalculated once the construction aspects ofthe project resume in earnest and in accordance with the Board's Order in PCB 12-126.
13 AER does bum a blend ofIllinois basin and PRB coal at its Duck Creek and Coffeen Energy Centers. Earlier this Spring, AER experimented with burning Illinois coal from Foresight's Deer Run mine at Coffeen Energy Center but abandoned such efforts when the boilerback pass became plugged due to high sodium levels within the coal forcing the unit to shut down.
14 The 87% drop in S02 emission since 1990 reflects a system-wide conversion of boilers to PRB coals (Joppa 1995; Newton 1999; Duck Creek 2004; E.D. Edwards and Coffeen 2005), as well as the installation of scrubber systems at Duck Creek and Coffeen.



### 14350 (5"300 0 C)


### .....**~** 250 1: 

### .3**~200** 0 ..c:**~** l£ 150 ,Q**~** 

# ·"' ElOO 

# ... N**~** 50 

# Electronic Filing

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Historical 502 Emissions - MPS Units**~~~ ~~~~~~~-**  20 18- 0 0 16 ::;- 0 14 

## °- ,... X**\~-----------------~----:** 12**~** 

### .3 10 -;;-**~--------~--~--------------~** -----j .2 8**~** E 6**~** 

### " 

## 8 4 2

# ~ 0**~~----~~--~~ ~~~-~~~~~~-~~---~----------~~----~-~-** **~--~~-~--~----** 0 1990 2005 2006 2007 2008 2009 2010 2011 2012
--Total 502 Tons --Coal Consumption


### More significantly, the current scrubber is simply not designed to accommodate Illinois coal. 15 

### The Newton scrubber has been designed for a full range ofPRB coals, and AER has performed only conceptual engineering design related to the potential use ofIllinois coal. To scrub Illinois coal would require almost a complete duplication of the current configuration/construction efforts, additional gypsum landfill space; and a water treatment facility. The current project calls for two absorber vessels and supporting equipment, buildings and facilities. IfIllinois coal were to be used, the project scope would need to be expanded to include the following: two complete absorber vessels (including agitators, slurry nozzles, mist eliminators,jet air spargers, absorber bleed pumps, absorber transfer pumps, emergency quench system, outlet hoods, and associated piping and electrical); new absorber building (including recycle pumps and motors, and associated piping, valves, and electrical); booster fans; additional

15 The scrubber chimney stack has been designed and constructed to accommodate both PRB and Illinois coals.
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ductwork with modifications to existing ductwork; oxidation air blowers; gypsum slurry feed pumps; expansion of the existing dewatering system (including: belt filters, and vacuum pumps); additional limestone storage tanks with associated equipment (including: rotary feeders, limestone conveying blowers, limestone feed screw pumps; and air compressors); an additional gypsum storage tank; water treatment facility; new electrical building including all switchgear; transformers; and new power feed from the switchyard; miscellaneous valves; and modifications
to the distributed control system control logic; and additional landfill gypsum storage. Under the existing scrubber design, the Newton FGD Project is at 59.3% completion level, with engineering at 90.5% complete as ofAugust 23, 2013. From an envirorunental impactperspective, in addition to S02, the MPS contains systemwide NOx emission limitations of 0.11 lb/mmBtu. Illinois coal inherently has higher nitrogen levels than PRB coal. In response to the Foresight public comments (oral and written), AER has examined the impact a conversion to Illinois basin coal would have on NOx emissions at Newton. On PRB coal, Newton's NOx emission rate is typically 0.10 lb/mmBtu. In comparison, from 1994-1997, Newton Unit 1burned Illinois coal and its NOx emission rate was approximately 0.30 lbs/mmBtu. Even with aggressive tuning and optimization of all existing pollution control equipment across the AER fleet (over-fired air; low NOx burners; and SCRs at Coffeen, Duck and Edwards), the projected system NOx emission rate would be approximately 0.133 lb/mmBtubased on currentprojected generation. The use ofIllinois coal at Newtonwould result in an inability to comply with the MPS NOx requirements absent either a regulatory change to the MPS or the installation ofNOx control equipment at either Joppa orNewton. The original estimate developed several years ago of an SCR was in excess of $150 million. In addition, since Illinois coal has a high chlorine level, there is an increased potential for water

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wall tube corrosion with low NOx burners and over fire air. Tubes located in the water area of the boiler would need to have alloy cladding to prevent corrosion. Such a project would require

a two months outage and cost approximately $20 million perunit. V. AER REQUESTED A VARIANCE IN 2012 IN GOOD FAITH AND IS BACK WITH IPH AND MEDINA VALLEY BECAUSE THE HARDSHIP DEMONSTRATED EXISTS REGARDLESS OF THE OWNER AND THE NET ENVIRONMENTAL BENEFIT EXPECTED BY THE BOARD WILL CONTINUE In 

### an effort to diminish the request for relief, ELPC suggests that Ameren Corporation and AERwere disingenuous in their representation before the Board in PCB 12-126. According
to Ms. Bugel, Ameren is "yet again c1ying wolf" Tr., p. 320. Mr. Armstrong believes that AER "does not have a realisticplanfor coming into compliance with the MPS" and that, contrary to its prior representations before the Board, Ameren is walking away from these plant and their communities. Tr., p. 324. As a consequence, Petitioners and Co-Petitioner are not to be believed and ELPC urges the Board to "closely examine !PH's claims." PC# 2337, p. 22. Although AER knows this is unsubstantiated rhetoric, it feels compelled to respond appropriately for the Board's full consideration. First, the Board recognized the viability ofAER's proposed compliance plan and in fact conditioned reliefupon the performance of specific project milestones that insures the Newton scrubber project will be in service by the end of 2019. IPH has pledged to continue those construction commitments and has budgeted sufficient capital expenditures to complete the Newton scrubber project. How is that not a "realisticplanfor coming into compliance with the MPS?"Second, Ameren Corporation and AER wish to reassure the Board that at no time

- as implied by ELPC and some opponents

- did the companies secure variance relief so as to ease Ameren Corporation's exit from the merchant business. Rather, as the Board found in PCB 12-

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# Electronic Filing - Recived, Clerk's Office: 10/0712013

126, AER approached the Board when it became apparent that market conditions and AER's financial resources had deteriorated to the point where it could not continue on its current course ofconstruction so as to comply with the MPS's 2015 S02 

### emission rate. As the Board noted in its Order, third-party financing from either a financial institution or parental support from Ameren Corporation were not feasible compliance alternatives. The only other compliance option available to AER would be to shut down one or more units which would have tremendous human and economic repercussions. The Board detem1ined that the evidentiary case presented by AER satisfied the regulatory standards for variance relief. AER filed its request for reliefin the beginning ofMay, 2012 and the Board issued its ruling on September 20,2012. As detailed in Mr. Lyons' affidavit, Exhibit I to the Petition, accounting standards require public companies such as Ameren Corporation to evaluate, on an ongoing and continual basis, the viability of their business operations. Petition Exh. 1, 

### par. 6. This accounting requirement is assessed every financial reporting quarter. ELPC cannot credibly dispute that due
to a deep and lingering recession, power market prices are at or near historically low ranges. Nor

can they dispute the predicament facing AER in its inability to access financing for the scrubber project. In

### fact, they seem to acknowledge the impact that natural gas prices have had across the energy sector. Written Statement of ACMPartners on behalfof Sierra Club andEnvironmental Law andPolicy Center 

### (PC#3162), p. 26. The fact remains- which ELPC does not and cannot dispute- market conditions in 2012 continued to worsen. Accordingly, Ameren Corporation, having performed the requisite accounting evaluation, had no choice but to publicly acknowledge that a material change in circumstance had occurred and record a $1.95 billion impairment charge relating to the merchant business. Petition Exh. 1, 

### par. 6. Given sustained weak market conditions, lack ofstrategic fit with its regulated businesses and the need to allocate

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# Elsctronic Filing - Rscivsd, Clsrk's OfficB: 10/07/2013

capital within those businesses, Ameren Corporation ultimately determined in December 2012 that it had no viable alternative but to exit the merchant generation business. !d. 

### Do the opponents truly believe that Ameren Corporation would have worked to secure a variance for AER and taken a nearly two billion accounting impairment as a marketing ploy to entice prospectivebidders such as Dynegy? In fact, rather than abandoning the AER plants and their communities as argued by ELPC, Ameren Corporation has taken pains to ensure sufficient liquidity is left in AER postclosing so as to provide a runway for success. Working capital, proceeds from the Put Option, and credit support all speak to Ameren Corporation's desire to provide IPH!New AER with a solid financial footing. Ameren chose to negotiate with Dynegy/IPH based in large measure on the beliefthat IPH and Dynegy, with its deep roots in Illinois, will use its commitment to the merchant market and operational synergies to bring a more certain future to the energy centers. VI. CONCLUSION 

### In these economic times, businesses in this nation are fighting to survivei 6 

### This fight exists across almost every industry sector, but acutely within the coal-fired power sector. Despite these hard times, environmental regulation advances but the very regulations on paper
are by nature blind to economic changes and temporary hardships that may challenge timely compliance. In its wisdom, the Illinois General Assembly put into place a process to allow our regulators and this Board to react to hard or exceptional times in a way the hard words in a regulation cannot-that process known as a "variance" is a statutory creature enacted within the very body ofthe Illinois Environmental Protection Act.

16 "Not unlike the autonzobile indust1y after2008, we just needa little time tofiscallygetacross this bridge through apooreconomy and finish the scrubberwithout decimatingourcompany and thejobs that itprovides.", Mr. Larry Quick, storeroom stockman, newton Energy Center. (Tr., p. 231)
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Petitioners and Co-Petitioners are before this Board requesting that they be granted a variance. And even though the Parties are before this Board once more for the purpose of demonstrating need for the continuation ofthe same reliefthis Boardprovided the Ameren MPS Group in PCB 12-126, this is not, as it was not before, a choice between the plants andjobs on
one side, and the environment and public health on the other. Just as in PCB 12-126, Petitioners and Co-Petitioner worked hard to craft a request that both recognized the core purpose ofthe MPS and then, going further, Petitioners followed through by agreeing to conditions that provide the Board with further comfort that the MPS's foundation ofoverall emission reductions would
not be compromised. ELPC asks "[s}o why are we back here?" 

### Tr., p. 319. Specifically, Ms. Bugel posits, "[tj 

### he granting ofthe variance was supposed to avoid all ofthis a year ago. Granting the variance a year ago was supposed to allow the plants to stay open, and at that time, we even discussed thepossibility thatgranting the variance wouldnot allow theplants to stay open." 

### Tr., p. 319. With the utmost respect for the Board, AER and Petitioners would like nothing more than to not be here. Ameren would like nothing more than to have AER not be here. AER put forth its best effort to make the variance and economics ofthe energy centers work within the Ameren family, but further degradation ofeconomic circumstances coupled with the regulated
nature ofit's core business left Ameren Corporation no choice but to exit the merchant business. This was not a shell game move on Ameren's part. This was not a "let's hoodwink the Board and get what we want so we can tum around and switch out the owners." This was a decision that had to be made and the promise ofa company like IPH, as part ofthe Dynegy family, made Ameren more comfortable that AER's representation of "not giving up on the plants" that was made to the Board roughly one year ago would still ring true. Petitioners and Co-Petitioners are



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before this Board again because they have no other viable alternative. The hardships have not changed nor will they in time for AER to meet the current MPS rates should the variance not be granted. The relief is still vitally needed-indeed, this is just simply not a circumstance of "c1ying wolf" 

### WHEREFORE, Co-Petitioner Ameren Energy Resources, LLC, respectfully requests that the Board grant the requested variance to Petitioners, Illinois Power Holdings, LLC and AmerenEnergy Medina Valley Cogen, LLC, and Co-Petitioner, Ameren Energy Resources, LLC, to become effective after the closing of the transaction and upon filing an executed certificate ofacceptance with the Illinois Pollution Control Board.

Respectfully submitted,

Renee Cipriano Amy Antoniolli SchiffHardin LLP 233 South Wacker Drive, Suite 6600 Chicago, IL 60606 Tel: 312-258-5500 Counsel for Ameren Energy Resources, LLC

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AFHDAVIT OF STEVEN C. WHITWORTH


### I. BACKGROUND AND QUALIFICATIONS 1. My name is Steven 

### C. Whitworth, and I am employed by Ameren Services Company as the Director of Environmental Services. Ameren Services Company provides business services to Ameren Corporation's operating companies including Ameren Energy Resources ("AER") and its subsidiary companies, Ameren Energy Generating Company ("GENCO") and AmerenEnergy Resources Company. In addition to supervising staffpersonnel. I 

### am responsible for implementingpolicies and procedures relating to environmental compliance, including reporting requirements under federal and state laws. In this capacity, I am responsible for representing the Ameren Companies before regulatory and administrative bodies with respect
to state and federal permitting conditions and regulatory requirements. I 

### am familiar with Illinois Multi-Pollution Standard ("MPS") and AER's efforts to comply with that regulation. 

### 2. I have reviewed Ameren Energy Resources' Brief in Response to Comments and confirmthe accuracy ofthe statements contained therein.

Further affiant sayeth not.

Subscribed and sworn to before me this

# ~ay ofOctober, 2013.

## Not~ Public
BECKIEJ, EAVES Notary Public
- NotarySeal State of Mlssoufi Cornrnissloned for SlLouis City My Commission Expires: February21, 2G14 Commission Number.10936572

# ;&~----- Steven C. Whitworth

# Eh:!ctronic Filing

-Recived, Clerk's Office: 10/0712013

AH'IDAVIT OF DUANE E. HARLEY My name is Duane E. Harley and I am the Senior Director ofEngineering for Ameren Energy Resources ("AER"). Through its subsidiary companies Ameren Energy Generating, Ameren Energy Resources Generating Company, and Electric Energy Inc. (collectively, the "AER Companies"), AER owns the following coal fired generating stations: Duck Creek, E.D. Edwards, Coffeen, Newton, Meredosia, Hutsonville and Joppa. As part of my duties, I am responsible for all aspects of the Newton Scrubber Project including the foHowing: engineering design, contract negotiation, budget and

resource estimate and planning and project construction and execution. I have reviewed the written public comment filed by Foresight Energy regarding the proposed use of Illinois Basin Coal at the Newton Energy Center. I have reviewed Ameren Energy Resources' Briefin Response to Comments including those made by Foresight Energy and confirm the accuracy ofthe statements contained in AER's response.

Further, Affiant sayeth not.

Subscribed and sworn to before me thisf.,LLday

## of~ 2()13

BECKIEJ. EAVES NotarY Public
- No1arySeai Sta1a ofMissoun Commissionedfor St.**lou~** Clly My Gommlsslon Expkes: February21, 2014 Commission Number: 10938572

# Electronic Filing- Recived, Clerk's Office: 10/07/2013

EXIDBIT 1 LIST OF AER POLLUTION CONTROL EQUIPMENT

# Elactronic Filing- Racivad. Clark's Offica: 10/0712013

POLLUTION CONTROL EQUIPMENT INSTALLED ON AER PLANTS

COFFEEN

DUCK CREEK CATEGORY SO, Control

NOxControl

MercuryControl

Particulate Matter

MercuryControl U2

U2

U2



### U1

mercury removal. DATE



### 2012

2011

# Elactronic Filing- Racivad, Clark's Offica: 10/0712013

CATEGORY UNIT

U2 EDWARDS NOxControl U3

MercuryControl

U1 Pe

EDWARDS (cont'd) U2 Particulate FGC (SO,Inj)

### I Upgrade for ESP Matter performance PowerSupply Upgrade ESP upgrade forS03 injection Elimination U3 ESP FGC

NEWTON DATE INSTALLED

1993

1979 

### I 2003 2009
2012-2013 1972 1979JOPPA

JOPPA {cont'd) 

# Electronic Filing

-Recived. Clerk's Office: 10/0712013

CATEGORY

NOxControl

Particulate Matter

NOxControl

NOxControl {cant'd) UNIT 

### Ul
U2

U2 ' ESP

:..

### F(j<:;(SC)**lf1iJ.LL!iJ~~ade**

U2 U3

U4



## us

U6 2002
1994 2002

2002

2002

# Electronic Filing

-Recived. Clerk's Office: 10/0712013

CATEGORY UNIT CONTROLTECHNOLOGY

U2
U3 Particulate Matter U4


## us
U6 DATE INSTALLED

1994

# Electronic Filing- Recived, Clerk's Office: 10/0712013

EXIUBIT 2 AMEREN COMMENTS IN RULEMAKING DOCKET EPA-HQ-OAR-2012-0233

# Electronic Filing

-Recived. Clerk's Office: 10/0712013

# ~r~ 

# iWAmeren ll.>rmen**Ser>~ices**

. . : ;::: ::: ·:: ;.: ...><•• ......... :::.:::::::::: -:;·:: ;:;, :: :;::: ::::::::**:~** ::::.:::::::::::::::::**=~:::::.:::::::.**:::::::".;.::::..."

.. ····-········-- ----·••-><•·• ....... _. •••••., ............- .............. '''""

### .. "''"'""' ····---- 

### ... "'"'

### -·· ''''"""'··-·· .............. ._ March 15, 2013

United States Environmental Protection Agency Air Docket Attention Do<:ket ID No. EPA-HQ-OAR-2012.{1233 Mail Code 6102T 1200 Pennsylvania Ave., NW Washington, DC 20460 Dear Sirs, Ameren appreciates the opparlunity to comment on the US EPA recommendations for the**Pe~in,** IL 802 nonattainmerll 

### area. Ameren Corporaf1on ("Ameren"} is based in St. Louis, MO. and through its operating companies serves 2.4 million electrtc and nearly one million natural gas customers across a 64,000-square-mile area in Illinois and Missouri. Ameren companies' net generating capacity is more than 16,400 megawatts. Our power plants use avariety of fuels to generate electrtcity-principally coal, nuclear, hydro and n;>tural gas. Speoffically Ameren disagrees with the inclusion of the Hollis Township in Peoria County to the Pekin, IL S02 noo-attaimnantareafor the loUowing reasons' 1) The Pekin area map displayed in Figure 2 ofthe Illinois EPA's technical support docum<'nt1 shows that the Hollis Township (in particular the Ameren Edwards Energy Center) is located almost directly north of the exceeding**Pe~in** 

### SO,monitor. Figure 3 in that same document shows the wind rose for the nearby Peoria Regional Airport This figure indicates that winds from tne north account for less than 5% of total direction occurrences. US EPA makes the following statement in their response to the Illinois technical support document: "The wind rose provided by Illinois suggests that winds come most frequently from the south, and somewhat frequentlyfrom !he northwest. but winds come 

### trom all directions with sufficient frequencyto suggest that meteorology is not a signfficant factor in defining this nonattainment area.•c: This statement is misleading.**W~h** such a low percentage of winds from tha north the probability ol facilities located north of the exceeding monitor having asignificant impact is expected to be low. 2) Figure 4 olthe Illinois technical support document1 shows the**pollu~on** rose for the years 2008-2010. This figure shows that over 90% of thE' occurrences of hours with 

### S02 > 75 ppb occurred for wind directions from the West to Southwest. The remaining hou.rs IIIith**SO,~** 75 ppb occurred iorWiild directions from the**Ee~st** to Sooth-Soutllwest. Figure 1 below and Attachment I shows a more detailed picture ofthis pollutant rose.' This tigure uses data from the Tazewell county 

### S02 monitor and meteorologyfrom the Greater Peoria Regional Airport (see Attachment 1). The enhanced pollutant rose

1 Teclm'1cal Support Document; Recommended**Ana~mer.t!Nonattatnment** Designations in 11Unois for the 2010 Revised Primary 1-Hoor**S~** Nall"""l .O.mbieo!Air**Qua~ly** Slan<lerd (AQPSTR 11-02); June 2, 2011 2 Df'a4 T echnlcsl Support Document Illinois Area DesignatiCfls Forthe 201o S02 Ptlme!Y Natiooal Ambient AirQuality SlaMetct; US EPA Febtuary2013. "' See references. in Attachment I ror data sources

1901 Chouteau Avenue PO Box66149, MC 6G2 St. 'ouis, MO 6316S-Il149 Amsrefl.COf\1

## ElEctronic Filing- REcivEd, ClErk's OfficE: 

# 10/0712013 03/15/201;\ 1:54:00 PM Page 2**of~** shown in Figure 1 demonstrates that fof the 3 year period 2008-2010 there were no contributions from facilities located north ofthe**Ta~ewell** county monitor for measured SO, levels greater than or equal to 75 ppl:>. Actually over 99% ofthe measured S02 levels 75 ppb or larger occurred for winds from the South-Southeast to West-Northwest The majority ofthese occurred with winds from the West and**w~t-Sou\h~t.** 3) Further evaluation of Figure 1 (as well as the detailed hourly data in Attachment I) indicates tilat the meteorology associated wijh elevated S02 1evels was occurring a majority ofthe time with wind speeds greater than 10 mph. Th<;<se relatively high wind speeds can cause plumes from relatively short stacks to experienoe significarttdownwash. Such**stac~sexil>l]ust** we<o\ ol theT<IZI'I+Ie\\ ccur.\'1 

## so,**mor~i\or.** 4) US EPA in its response to Illinois' analy$is for designating the Pekin, IL area nonattainment insinuates that just because there is a significant S02 emitting source north ofthe monitor th!lt ilautomatic.!llly contributes to the nigher levels monitored. This assumption is false based on the analysis desctibed above. In addiUon as US EPA surely knows that the level ofemissions emitted is not the only factor that should !:Je considered. US EPA oEH3dS toconsider the actual location of the source relative to the monitor and area's meteorology (as discussed above); the sources stack height; sources stack llow and temperature; and the sources other relevant operating characteristics. It is presumptuous of US EPA to assume that a source that emits SO, automatically contributes to the exceedances measured without considering all relevant information.

80.00% 70.00% 60"00% 50.00%

- 40.00% 30.00% 20.00% 10.00% OJ(J% 

## Figure 1 

## 502 Pollutant Rose 

# 2008-2010 Tazwell Monitor

# {17-179-0004} 

# 502 levels >= 

# 75 ppb

lUI >::.15 .nph "10 lSmph "'5·10 mph 110·5**m~h**

Based on this analysis and Illinois**~PA's** analysis the facilities located north ofthe Tazewell monitor did not contribute to any ofth& measured exceedances ofthe one hour S02 standard in Tazewell County. US EPA has not sufficiently demonstrated that Hollis Townshll), P<aorla. Cou\'\tY 

### sooll\d oo i!\C\oollll in the Pellin, \L 

### so, nonattainment area afld thus Hollis Township should be remove<! from US EPA's recommendation.

## EIBctronic Filing- RBcivBd, CIBrk's OfficB: 

# 10/0712013
03/15/2013 1:S4:00 PM**P~ge** 3 of.3
ltyou have any questions please don't hesitate to contact me at 314-544-2089. Sincerely,

# ~~ K'<'\lne\\1 1'.\'\00o;oo Managing Supervisor- Air Quality Management


### Attachment

# Electronic Filing

-Recived, Clerk's Office: 10/0712013



# Attachment I
Hourly SOz 

# Data from 

# theTazewell Monitorand Wind Data from the Peoria Airportfor Measured S02 

# levels 

# >= 75 ppb 2008-2010'I' 

# Electronic Filing- Recived. Clerk's Office: 10/0712013

S02 and Wind Data for Tazewell Area 2008Wind Wind Speed 

### Olrectlon Oate 

### Hour S02 (ppb) {mph) (deg) 12/27/2008 21:00 277 5 200 ll/08/2.008 0:00 260 17 260 12/28/2008 0:00 256 18 260 OS}f:/2/2008 18:00 243 15 260 12/27/2008 23:00 

### 231 24 270 11/08/2008 2:00 229 14 260 12./28/2008 3:00 225 15 260 12/28/2008 2:00 211 20 250 ll/07/2008 23:00 207 14 260 14 260 17 260 12/2$/2CO% 1:00 

### 205 18 250 12/28/2008 6:00 

### 181 13 260 11/07/2008 22:00 165 

### 15 2.70 12/27/2008 22:00 164 

### 15 270 

### 2.2 

## no 12/28/2008 4:00 164 11 250 21 270 04/12/2008 5:00 160 11 270 03/25{2008 15:00 155 10 200 05/03/2008 8:00 155 20 260 03/25/2008 16:00 143 15 270 04/12/2008 4:00 143 11 250 04/12/2008 2:00 142 15 260 

### 16 260 05/03/2008 9:00 140 20 270 11/08/2008 1:00 136 14 260 04/26/2008 8:00 119 

### 16 250 15 260 16 250 12{29/2.008 ll:OO 119 

### 14 270 10/02/2.008 14:00 118 11 260 01/17/2008 

### 2.2:00 117 10 260 04/26/2008 13:00 115 18 280 04/07/2008 12.;00 114 16 270 03/21/2008 13:00 

### 112 11 220 12/02/2008 1:00 112 8 250 

### 9 260 12/28/2008 7:00 

### 111 9 270

# Electronic Filing- Recived. Clerk's Office: 10/07/2013

01/17/2008 21:00 110 11 

### 260 14 260 10/02/2008 15:00 109 7 280 11/08/2008 9:00 

### 105 20 270 04/26/2008 5:00 103 14 270 04/07/2008 11:00 

### 101 14 290 Ol/17/2008 16:00 

### 100 15 270 04/12/2008 1:00 97 

### 16 260 04/25/2008 10:00 

### 96 15 260 04/12/2008 6:00 95 

### 16 280 04/26/2008 7:00 

### 90 15 250 20 260 12/02/2008 2:00 90 8 260 7 260 8 260**o~/2S/2oog** 14·.00**~** 

### 22 260 04/26/2008 11:00 87 

### 15 260 11/07/2008 18:00 86 

### 13 250 12/28/2008 5:00 85 5 230 04/26/'liJO& 12;00 

### Bl 1B 270 04/26/2008 9:00 80 15 240 05/04/2008 16:00 80 9 260 12/28/2008 8:00 80 

### 15 260 11/10/2008 U:OO 79 0 0 06/28/2008 16:00 

### 78 

### 14 290 05/26/2008 12:00 77 3 

### VR 04/12/2008 3:00 77 11 

### 250 06/28/2008 11:00 77 10 25() 10/02/2008 16:00 

### 77 7 280 05/02/2008 19:00 

### 76 10 250 11/08/2008 4;00 76 

### 13 260

# Electronic Filing

-Recived. Clerk's Office: 10/07/2013

S02 and Wind Data for Tazewell Area 2009 Wi11d Wind Speed Direction Date Hour S02 (ppb) (mph) (degj 

### 03/31/2009 17:00 

### 352 22 

### 260 11./09/2009 7:00 

## n1 28 200 

### 2& 260 22 260 

### 26 260 

### 10/23{2009 16:00 263 14 

### 250 14 250 12/09/2009 9:00 

### 262 

### 25 260 29 2\'Al 29 260 

### 26 260 29 

### 210 1.2/09/2009 8:00 252 29 260 30 

### 260 28 

### 260 

### 31 260 

### 26 

### 260 10/23/2009 17:00 

### 235 14 260 13 

### 260 15 260 11 

### 260 10 270 10 270 

### 10/30/2009 23:00 

### 233 18 260 13 

### 260 04/30/2009 

### 10:00 231 17 280 

### 14 280 12/28/2009 2:00 230 10 260 05/Zl/2009 11:00 229 15 

### 210 0&/20/2009 15:00 

### 202 1(, 270 

### 12/09/2009 10:00 

### 198 31 270 28 260 

### 24 280 03/31/2009 18:00 197 

### 15 

### 250 03/10/2009 18:00 

### 193 20 

### 290 14 

### 290 10/31/2009 3:00 187 

### 1'> 

### 2'>0 10/31/2009 2:00 183 

### 15 260

# Electronic Filing

-Recived, Clerk's Office: 10/07/2013

03/08/2009 14:00 181 31 270 08/20/2009 17:00 175 7 250 10/31/2009 0:00 173 14 250 13 280 01/17/2009 15:00 171 18 290 12/28/2009 4:00 170 10 260 11 270 04/30/2009 14:00 169 14 270 11 260 11 2!\0 04/30/2009 9:00 163 18 280 18 270 17 260 15 

### 260 06/01/2009 

## n:oa 161 8 250 05/21/2009 10:00 

### 160 17 260 10/31/2tm 7:00 160 13 260 08/20/2009 14:00 155 17 240 12/03/2009 21:00 

### 155 13 260 10/03/2009 3:00 154 

### 10 260 11 250 11 250 12/27/2009 23:00 151 11 270 11 260 10/31/2009 5:00 149 

### 8 260 05/30/2009 14:00 148 

### 5 290 10/31/2009 4:00 147 13 260 05/29/2009 11:00 146 3 

### VR 03/08/2009 13:00 144 28 280 05/31/2009 11:00 144 3 

### 160 03/24f2C'V9 21:00 

### 144 11 250 10/23/2009 15:00 142 

### 14 260 15 

### 260 13 250 05/14/2009 

### 11:00 

### 142 13 280 10/06/2009 16:00 141 18 270 10/03/2009 5:00 140 10 260 

### 10 

### 260 08{20/2009 16:00 139 

### 14 250 12/10/2009 12;00 

### 138 18 260 12/09/2009 6:00 138 

### 25 260 25 

### 260 23 260

# Electronic Filing

-Recived, Clerk's Office: 10/07/2013

12/10/2009 6:00 

### 13& 

### 14 270 10/23/2009 14:00 

### 137 13 260 

### 13 250 ll 250 06/09/2009 12:00 

### 137 0 0 10/24/2009 10:00 137 9 270 06/01/2009 12:00 134 11 280 12/28/2.009 3:00 134 11 260 10/24/2009 12:00 133 10 280 10/02/2009 21:00 130 14 240 15 250 

### 10/31/2009 1:00 129 

### 13 270 14 270 10/30/2009 22:00 129 

### 25 260 21 260 03/2012009 B:OD 127 18 240 10/03/2009 4:00 127 10 250 10 260 05/29/2009 10:00 126 5 280**0~/31/2<lGS** 16:00 125 2fi 270 10/03/2009 8:00 125 14 250 06/28/2009 23:00 125 5 260 10/03/2009 11:00 

### 123 8 260 9 250 06/01/2009 15:00 120 8 270 10/24/2009 13:00 119 10 250 04/08/2009 10:00 119 9 290 06/05/2009 9:00 1.18 

## a 2:W 11/25/2009 19:00 118 10 270 08/21/2009 12:00 113 13 270 10/31/2009 8:00 113 14 280 14 2.70 12/09/2009 13:00 112 20 270 28 270 11/25/2009 11:00 

### 112 14 280 11 260 14 270 05/31/2009 12:00 112 6 

### VR 10/23/2009 20:00 112 

### 17 270 10 270 10 260 12/10/2009 23:00 110 7 260 05/30/:1.009 12:00 109 13 250

# Electronic Filing

-Recived, Clerk's Office: 10/0712013

12/10/2009 21:00 108 13 270 05/10/2009 14:00 107 13 310 OS/21/2009 11:00 107 8 260 14 260 011/25/2009 15:00 105 8 

### 260 OS/30/1009 11:00 105 13 260 10/06/2009 14:00 104 17 280 10/30/2009 20:00 103 15 250 03/25/2009 12:00 102 ll 240 12/10/2009 7:00 102 13 

### 260 12/28/2009 1:00 

### 101 

### 11 260 03/25/2009 14:00 

### 100 B 250 05/11/2009 9:00 99 5 

### VR 10/04/2009 14:00 98 5 260 10/24/2009 11:00 98 14 260 \) 

### 280 05/21/2009 13:00 97 9 240 11/04/2009 ll:OO 97 10 270 06/19/W09 10:00 97 18 250 03(2.5/2009 1():00 9'1 15 250 16 260 14 260 15 260 02/07/2009 13:00 

### 96 B 250 03/08/2009 15:00 95 29 270 05/23/2009 8:00 95 0 0 06/01/2009 10:00 95 9 240 03/15/2009 11:00 94 10 2.60 12/04/2009 9:00 94 11 260 05/14/2009 10:00 94 13 260 12/10/2009 22:00 93 lO 270 11/25/2009 18:00 91 10 260 

### 11 260 04/30/2009 13:00 91 11 270 04/25/2009 14:00 

### 91 6 270 05/14/2009 12:00 91 13 260 11/25/2009 13:00 90 16 270 06/20/2009 14:00 90 9 260 10/23/2.009 18:00 89 14 2:60 15 280 12/28/2009 0:00 87 J3 260 12/03/2009 17:00 85 10 260 07/31/2009 B:OO 85 

### 7 280

## EIBctronic Filing- RBcivBd, CIBrk's OfficB: 

# 10/0712013

1:2/03/2009 20:00 85 11 

### 260 12/10/2009 

### 13:00 84 14 28() 07/15/2009 12:00 84 11 290 06/09/2009 13:00 83 6 280 05/29/2009 12:00 83 5 250 10/23/2009 21:00 83 14 270 14 

### 260 11 280 06/0S/2009 12:00 82 8 240 03/25/2009 15:00 80 11 250 11 28() OS/21}2009 '>:()() 80 11 260 12/11/2009 0:00 80 7 260 10/06/2009 15:00 79 16 270 04/01/2009 13:00 79 16 270 OS{Ol/200g lS:OO**7~** 0 0 11/04/2009 10:00 79 10 270 03/25/2009 1:00 79 3 210 04/09/2009 10:00 78 0 0 11{25(200g Zl:OO 78 15 280 12/26/2009 21:00 78 

### 10 260 10 270 05/27/2009 11:00 77 11 270 11/03/2009 12:00 76 5 2:10 07/31/2009 10:00 76 10 280 06/05/2009 17:00 75 9 

### 240 05/29/2009 9:00 75 5 300

## EIBctronic Filing
- RBciVBd, CIBrk's OfficB: 

# 10/0712013

S02 and Wind Datafor Tazewell Area 2010 Wind Wind Speed Direction Date Hour S02 (pl)b) (mph) (deg) 05/13/2010 15:00 331 21 250 06/02/2010 8:00 254 10 260 01/25/2010 11:00 241 16 270 09/07/2010 9:00 228 15 260 09/07/2010 11:00 224 20 260 10/27/2010 13:00 220 22 250 09/07/2010 10:00 217 21 260 09/07/2010 14:00 210 15 270 09/07/2010 12:00 202 24 260 10/20/2010 16:00 198 9 250 10/20/2010 14:00 196 

### 18 260 09/07/2010 13:00 195 20 260 05/13/2010 14:00 

### 190 14 260 04/07/2010 14:00 179 14 260 01/25/2010 12:00 178 17 280 17 260 16 270 21 270 22 270 

### 17 280 17 270 17 260 03/18/2010 13:00 177 9 240 01/24/2010 12:00 174 10 250 11 270 10/20/2010 15:00 173 13 270 10/30/2010 13:00 172 16 260 04/21/2010 20:00 170 10 260 11/13/2010 23:00 167 15 270 01/24/2010 11:00 161 11 270 10/14/2010 12:00 160 8 260 11/13/2010 18:00 

### 151 17 250 01/25/2010 6:00 150 11 260 10 250 11/3.0{2.010 .8.:()0 

### 149 B 2W 13 260 15 260 14 260

## EIBctronic Filing- RBcivBd, CIBrk's DfficB: 

# 10/0712013

10/20/2010 13:00 145 

### 17 260 11/13/2010 20:00 144 21 270 11/30/2010 6:00 144 13 2.60 11/26/2010 7:00 138 10 260 11/30/2010 12.:00 137 

### 16 270 11/26/2010 2:00 134 6 240 04/15/2010 11:00 134 

### 16 250 10/20/2010 17:00 127 7 250 11/30/2010 10:00 125 16 270 H/14/2010 3:00 122 10 260 11/13/2010 19:00 122 20 270 10/14/2010 14:00 120 13 260 03/11/2010 20:00 117 9 250 11/26/2010 8:00 116 13 270 04/15/2010 12:00 116 15 230 06/19/2010 13:00 

### 115 7 290 11/13/2010 21:00 114 13 260 02/19/2010 11:00 114 3 190 11/30/2010 

### 5:00 114 15 270 11 2&1 11/30/2010 11:00 

### 114 20 270 11/30/2010 2:00 113 20 270 14 270 11/26/2010 14:00 

### 111 15 26Q 10/26/2010 15:00 lll 17 250 09/12/2010 13:00 110 14 250 04/21/2010 15:00 109 0 0 03/19/2010 12:00 108 14 

### 2W 10/14/2010 13:00 108 14 280 03/23/2010 14:00 108 

### 15 210 10/27/2010 12:00 107 21 250 07/2.8/2010 13:00 107 13 260 05/11/2010 12:00 106 15 270 10/20/2010 12:00 105 13 270 11/14/2010 13:00 104 13 240 05/09/2010 12:00 

### 104 7 

### VR 04/03/2010 11:00 102 14 

### 290 09/16/2010 6:00 102 

### 13 260 11 260 11 260 

### 13 260 11/13/2010 17:00 102 17 250 12/31/2010 23:00 99 20 260

# Electronic Filing- Recived, Clerk's Office: 10/07/2013

10/06/2010 15:01) 98 

### 13 

### 260 OS/09/2010 14:00 97 3 

### VR 05/13/2010 16:00 97 16 270 10/01/2010 13:00 97 6 300 04/15/2010 13:00 97 15 230 10/27/2010 16:00 96 22 270 11/30/2010 14:00 95 21 270 ll/3D/2010 9:00 

### 95 13 250 07/28/2010 12:00 94 13 250 09/12/2010 11:00 92 9 280 01/25/2010 10:00 91 13 260 14 250 13 260 12/31/2010 22:00 

### 91 16 260 02[03/2010 12:00 89 3 170 01/17/2010 1:00 

### as 5 10 5 40 5 20 3 20 0 0 12/11/2010 20:00 

### 88 13 250 06/27/2010 14:00 87 13 280 06/27/2010 13:00 87 15 260 Olj24/2010 13:00 &6 

## n 280 05/03/2010 14:00 

### 86 13 280 03/11/2010 15:00 

### 82 15 240 12}11/2010 19:00 

### 81 14 270 03/19/2010 13:00 81 13 240 05/03/2010 17:00 81 10 280 06/19/2010 14:00 80 

### 11 260 10/30/2010 14;00 77 11 250 02/19/2010 10:00 77 0 0 01/25/2010 5:00 77 10 260 11/30/2010 7:00 77 14 260 02/23/2010 14:00 

### 75 9 270 OS/14/2010 10:00 

### 75 10 

### 260 ll/30/2010 4:00 75 

### 21 270 11/30/2.010 3:00 75 

### 13 270


### Note: 

### 1. Zero for wind speed/direction indicates calm

# EIBctronic Filing- RBciVBd. CIBrk's OfficB: 10/0712013

2. Multiplewind speed/direction readings indicate morethan one reading was taken for that hourbecause of changing condrtions. 3. VR-variable 4. 502 data from U5 EPA AirData- Tazewell monitor (ID: 17-179-0004) Pekin, ll 5. Wind Speed/Direction d<!ta from NOAA- Quality Controlled local Climatological Data {QCLC) Greater Peoria Regional Airport- Station ID: 14842/PIA

# EIBctronic Filing
- RBcind, CIBrk's OfficB: 10/07/2013

EXHIBIT 3 IERG COMMENTS IN RULEMAKING DOCKET EPA-HQ-OAR-2012-0233

# Electronic Filing

-Recived, Clerk's Office: 10/07/2013

# I~G Illinois Environmental Regulatory Group An Affiliate ofthe Illinois Chamber ofCommerce



### March 18, 2013

United States Environmental Protection Agency Air Docket Attention Docket ID No. EPA-HQ-OAR-2012-0233 Mail Code 6102T 1200 PennsylvaniaAve., NW Washington, DC 20460 215 East Adams Street Springfield, IL 62701 217-522-5512 (FAX -5518)

Email: iergstaff@ierg.org



### Re: Comments on EPA Responses to illinois' 2010 SulfurDioxideRecommendations Dear Sir/Madam: Thank you for the opportunity to providethese comments regarding U.S. EPA's February 6, 2013 response to lilinois' June 2, 2011 recommendations identifYing specific areas ofillinois that it believed met the criteria for being designated as nonattainment for the 2010 sulfur dioxide National Ambient Air Quality Standard. U.S. EPAhas accepted illinois' recommendation that the nonattainment area in Tazewell County consist ofCincinnati and Pekin Townships. However, U.S. EPAis also proposingto include Hollis Township in Peoria County. Webelieve that U.S. EPA has overlooked important and relevant information contained in illinois' submittal in proposingthis change. Specifically, we do not believe that U.S. EPAgave ample consideration to all ofthe meteorological information providedby illinois supporting its recommendation to not include Hollis Township. Further, analysis ofmore recent datathan the 2007-2009 dataprovidedby Illinois also supports the conclusion that sources located in Hollis Township do notimpact the monitored exceedences ofthe standard that serve as the basis for the nonattainment designation. The lllinois Environmental Regulatory Group ("IERG") is a not-for-profit lllinois corporation affiliated with the lllinois Chamber ofCommerce. IERGis composed offifty (50) member companies throughoutthe State oflllinois, including major industrial facilities in the chemical, food, pharmaceutical, transportation equipment, energy, heavy manufacturing, steel, oil, cement and power generation sectors, that are regulated by governmental agencies that promulgate, administer or enforce environmental laws, regulations, rules orotherpolicies. The nonattainment designations contained in U.S. EPA's response will ultimately impact the permitting and operation ofiERGmembers with facilities located in the geographic areas identified for designation.

Provided by the lllinoisEnvironmental Regulatory Group

# Electronic Filing- Recived, Clerk's Office: ID/0712013
2 The five factor analysis used by Illinois pursuantto guidance issuedby the U.S. EPA includes consideration ofemissions-related data (location and sources ofpotential contribution to ambient S02 concentrations) and meteorology (weather/transportpatterns) "as well as other relevant information." 1 Thelllinois recommendation identified 5 emission sources inPeoria and Tazewell Counties that are in the general vicinity ofthe violating monitor and have emitted over 100 tons peryearfor atleast oneofthe years from 2007through 2009. Two ofthese sources are in Tazewell County, with one being in Cincinnati Township and the other in Pekin Township. The Ameren-Edwards Station facility is located in Hollis Township approximately 4.5 km 

### (-2.8 miles) north ofthe violating monitor. U.S. EPA's analysis states thefollowing: "

...EPAfinds that Ameren's E.D. Edwards powerplantis only 4 kilometers from the monitor and has significant emissions with potential to have significant impact on concentrations atthe monitor. This source is located in Hollis Township, and so this township warrants being considered an area that contributes to the violation measured in Pekin."2
In evaluatingthe meteorological conditions in the Pekin area, illinois compiled a wind frequency distribution that showed,"

...that southerly winds are mostfrequent in the Peoria area, with a secondary maximumfrom the northwest." 3 U.S. EPA acknowledged Illinois' conclusion but added that"

...winds comefrom all directions with sufficient frequency to suggestthat meteorology is not a significant factor in defining this nonattainment area."4 The following Figure A graphically illustrates the windpatterns at the violating monitor in Pekin. Figure A is a composite oftwo figures presented in lllinois' Technical SupportDocument included with its June 2, 2011 recommendation to U.S. EPA. One ofthe figures in the composite is lllinois' Figure 

### 2 (Location ofMajor S02 Emission Sources in Tazewell and Peoria Counties) andthe second figure is lllinois' Figure 3 (Greater Peoria Airport Climatological WindRose).

1 Designations guidance memorandum from StephenD. Page, Director, U.S. EPA Office ofAir Quality Planning and Standards, Attachment 2, Page 1-2. 2Draft Technical Support Document Illinois Area Designations For the 2010 S02 Primary National Ambient Air Quality Standard, U.S. EPA, February 2013. ("U.S. EPATSD") at 10. 3 Technical SupportDocument: Recommended Attainment/NonattainmentDesignations in Illinois for the 2010 Revised Primary !-Hour S02 National Ambient Air Quality Standards, AQPSTR 11-02, June2, 2011. ("IL TSD") at 13. 4 U.S. EPATSD at 10.
Provided bythe lllinois Environmental Regulatory Group

# Electronic Filing

-Recived, Clerk's Office: 10/07/2013
3 

### Figure A: Map ofPekin Area S02 

### Emissions Sources with Climatological Wind Rose 

### Proposed 

### S02 Nonattainmentlc"::' " '". A . T C i u. Archer Daniels "



### rea m azewell ounty 1 Midland co. ,·•''"

PEORM COUNTY

M1dwest Generation Powerton Keystone Steel &Wire Co.

Ameren Edwards 

## ' '**~**

COUNTY 

# e?**~** Legend



## .·' t=l PrC;KJ$-ed NAA

0 lZS ;:s**SM.~s** 

### Figure A shows that the wind flow in the Peoria area would be capable ofblowing emissions from any ofthe 5 major sulfur dioxide sources to the Pekin monitor. However, illinois also evaluatedthe meteorological data in concert with hourly readings from its Pekin sulfur dioxide monitor from 2007- 2009 to identify wind directions associated with measured S02 

### concentrations exceeding 75 ppb. Since the Ameren facility is north ofthe Pekin monitor, lllinois' analysis shows that the Ameren facility is not contributing to violations measured at that monitor. The following Figure B graphically illustrates this conclusion and shows the wind directions associated with hourly values ofsulfur dioxide greater than 75 ppb at the Pekin monitor. This Figure is a composite oftwo figures presented in Illinois' Technical Support Document included with its June 2, 2011 recommendation to U.S. EPA. One ofthe figures in the composite is illinois' Figure 2 (Location ofMajor S02 

### Emission Sources in Tazewell and Peoria Counties) and the second figure is derived from lllinois' Figure4 (Pekin Pollution Rose).

Providedby the illinois Environmental Regulatory Group

# Eiloctronic Filing
- Recived, Clerk's Office: 10/0712013
4 Figure B: Map ofPekin Area S02 Emissions Sources with Graphical Depiction ofWind Directions Associated with S02 Values >75ppb 

### Proposed 502 Nonattainment! Area in Tazewell County

PEORIA COUNTY

' 

## ' Powerton**""'~~**

Legend 

## Cl**Prop:~~d** NAA SOZ l•lomtors

0 1"" ZS**S~L~r.** '
U.S. EPA did not make comment, orrefer in any way, to lllinois' analysis ofthe relationship between wind direction and elevated sulfur dioxide levels when it concludedthat Hollis Township shouldbe considered nonattainment due to its potential impact at the Pekin monitor. U.S. EPA did make note ofthe sametype ofanalysis conducted for theLemont area. U.S. EPA statedthe following in its analysis ofIllinois' meteorological assessment: "Forthis area [Lemont], winds can befrom any direction. Therefore, for a onehour standard, it is useful to consider all directions to have potential contribution. Nevertheless, according to wind information provided with Illinois' recommendations, winds in this area come from the west and southwest more frequently than from other quadrants, particularly when concentrations are high at the Lemont monitor, so sources to the west and southwest ofthe monitor are most likely to contributeto violations at this monitor."5

'U.S. EPA TSD at 7.
Provided bythe lllinois Environmental Regulatory Group

# Electronic Filing

-Recived. Clerk's Office: 10/0712013
5 IERG extended the analysis conductedby lllinois to include quality assured sulfurdioxide data forthe years 2007- 2011. Hourly wind speed and direction data6 from the Greater Peoria Regional Airport was pairedwith hourly sulfur dioxide datafrom thePekin monitorthat was greaterthan 75 ppb. Table 1 shows the results ofthis analysis which further supports the conclusion, demonstrated by lllinois' analysis, that the Ameren-Edwards Station facility does not impact the Pekin sulfur dioxide monitor when hourly readings exceed 75 ppb. Table 

### 1. WindDirections Associated with Hourly 2007-2011 S02Values> 75 ppb S02 AVERAGE AVERAGE WIND VALUES PERCENT S02 WIND DIRECTION > 75 PPB OF TOTAL (PPB) DIRECTION N NNE NE ENE

E ESE SE SSE



## s 1 0.2% 114 190' 

## ssw 8 1.8% 127 210 

## sw 13 2.8% 116 227 WSW 98 21.4% 131 248



### w 304 66.5% 136 267 WNW 14 3.1% 117 291

NW 2 0.4% 103 310 NNW VARIABLE 17 3.7% 102 The dataprovidedby Illinois andthe additional dataprovided in Table 1 by IERG showsthat Ameren's Peoria County facility has notbeen implicated in any ofthe 457hours overthe last 5 years where sulfur dioxide values exceeded 75 ppb.

6National Oceanic and Atmospheric Administration, National Climatic Data Center, Local Climatological Data from GreaterPeoria Regional Airport (14842/PIA), Final Edited (VER3) Data, Hourly Observations
Providedby the lllinois Environmental Regulatory Group

## EIBctronic Filing- RBcivBd. CIBrk's OfficB: 

# 10/07/2013
6 IERG encourages U.S. EPA to reconsider its proposal to include Hollis Township as a designated nonattainment area. The evaluation ofwind frequency coupled with high monitored sulfur dioxide values at the Pekin monitor clearly showthat the Ameren facility is not a contributorto the monitored sulfur dioxide violations. Hollis Township should be designated unclassifiable as recommended by Illinois. Once Illinois completes its dispersion modeling for the Pekin area, that information can be used to verify the attainment status ofHollis Township and the Peoria and Tazewell Counties in general. Thank you for your consideration ofthese comments. Cordially,

Alec Messina Executive Director

Provided by the illinois Environmental Regulatory Group

## EIBctronic Filing- RBcivBd, CIBrk's OfficB: 

# 10/0712013

EXHIBIT 4 7rn CIRCUIT APPEAL OF FEDERAL AIR QUALITY DESIGNATIONS FOR THE 2010 

### SULFUR DIOXIDE (S02) 

### PRIMARY NATIONAL AIR QUALITY STANDARD

## EIBctronic Filing - RBcivBd, CIBrk's OfficB: 

# 10/07/2013 Case: 

### 13-2959 Document: 

### 1-1 Filed: 

### 09/05/2013 Pages: 

### 21

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT 

### AMEREJ\.TENERGY RESOURCES GENERATING COMPANY, Petitioner,



### v. U.S. ENVIRONMENTAL PROTECTION AGENCY andGLI\JA MCCARTHY, ADMINISTRATOR, Respondents. SHORT RECORD FILED 9/5/1 3 

### Case No. APPEAL NO. 13-2959



### PETITION FORJUDICIAL REVIEW 

### Pursuantto Rule 15 oftheFederal Rules ofAppellate Procedure and Section 307(b) 

### oftheCleanAir Act, 42 U.S.C. § 7607(b), 

### AmerenEnergy Resources Generating Companypetitionsthe Court for review ofa final action ofrespondents-the U.S. Environmental Protection Agency, and Gina McCarthy,Administrator, U.S. Environmental Protection Agency-entitled "Air QualityDesignations for the 2010 Sulfur Dioxide (SOz) Primary National Ambient AirQuality Standard," 78 Fed Reg. 47191 (August5, 2013), a copy ofwhich is attached hereto. (1 

### of 25)

# Electronic Filing - Recived, Clerk's Office: 10/07/2013 Case: 13-2959 Document: 1-1



### Dated: September 5, 2013 Filed: 09/05/2013 Pages: 21



### Respectfully submitted,

### Re~~ Cipriano 

## J. Michael Showalter KathrynMcColloughlong ,

### TL (Motion for Admissionforthcoming) SCHIFFHARDINLLP 233 S. Wacker Dr.,Ste. 6600 Chicago, lL 60606 Telephone: (312) 258-5500 Facsimile: (312) 258-5600 rcipriano@schiffhardin.com mshowalter@schiffhardin.com klong@schiffhardin.com

-2- (2 of 25)

# Electronic Filing- Recived, Clerk's Office: 10/0712013 Fohli!,\l!'t:**~?tlll'iWol. ~CNb\lEl§li** **/M~nday, Ati;oiJ!ill:i59~&lgij~** **ancPI1o!i~Jtilatfulns** 4

### m11t 

## zs) (b) The Secretary must provide each agencybyJanuary 15 ofeach year with the format and guidelines for electronically submitting the agency's occupational injury and illness recordkeeping information.

{c) Each agency must submit to the SecretarybyMay 1, 2014. a list ofall establishments. The list must include information about the department/ agency affiliation, NAICS code, a street address, city, state and zip code. Federal agencies are also responsible for updating their list ofestablishments by lviav 1 ofeach vear\'•!hen they submit**the~annual rep~rt**  to the SecrOtary required by§ 19G0.71(a)[1).

• B. Add new§ 1960.73 to read as follo-ws: § 1960.73 Federal agency injury and illness recordkeeping forms.

(a) Wben filling out the OSHA Form 300 or equivalent, each agency must enter the employee's OPMjob series number andjob title in Column (c).

(b) VVhen recording the injuries and illnesses ofuncompensated volunteers, each agency must enter a ''V" before the OPMjob series number in Column {c) of the OSHForm 300 log or equivalent.

(c) Each agency must calculate the total number ofhours v.rorked by uncompensated volunteers. [FR Doc. 2013-18-157 Filed 8-2-13:8:45 am] BILLING CODE 4510-26-P

DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2013-Q6871 Drawbridge Operation Regulation; Albemarle Sound to Sunset Beach, Atlantic Intracoastal Waterway (AICW), Wrightsville Beach, NC AGENCY: Coast Guard, DHS. ACTION: Notice ofdeviation from drmvbridge regulation. SUMMARY: The Coast Guard has issued a temporal')' deviation from the operating schedule that governs the operation of the S.R. 74 Bridge, at mile 283.1. over the AIC\,V, at \1\'rightsville Beach, NC. The deviation is necessary to facilitate electrical system and equipment upgrades to the bridge. This temporary deviation allows the drawbridge to remain in the closed to navigation position. DATES: This deviation is effective from 7 p.m. on August 19, 2013 to 7 p.m. August 27,2013. ADDRESSES: The docket for this deviation, [USCG-2013-0687] is available at http://wn.w.regulations.gov. Type the docket number in the "SEARCH" box and click "SEARCH." Click on Open Docket Folder on the line associated vdth this deviation. You mav also visit the Docket Management · Facility in Room \\i12-140 on the ground floor ofthe Department of Transportation West Building. 1200 Ne1v Jersey Avenue SE., \Vashington. DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: If you have questions on this temporary deviation, call or email Mr. Jim Rousseau, BridgeAdministration Branch Fifth District, Coast Guard; telephone (757) 398-6557, email james.L.Rousseau2@uscg.mil. Ifyou have questions on revievving the docket, call Barbara Hairston, Program Manager, Docket Operations, (202) 366-9826. SUPPLEMENTARY INFORMATION: The North Carolina Department ofTransportation, V•.'ho owns and operates this bascule bridge, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.821 (a)(4), to facilitate electrical system and mechanical equipment upgrades to the bridge.

Under the regular operating schedule, the draw for the S.R. 74 Bridge, at mile 283.1 over the AICW, at Wrightsville Beach, NC shaH open on signal for commercial vessels at all times and on signal for pleasure vessels except betvfeen 7 a.m. and 7 p.m.. need only open on the hour; and except for annual triathlon events that occurfrom September through November. The S.R. 74 Bridge has a temporcu·y vertical clearance in the closed position of 18 feet above mean high \Vater due to additional ongoing maintenance.

Under this temporary deviation, the drmvbridge will be maintained in the closedto navigation position, beginning at 7 p.m.. on Monday. August 19, 2013 until 7 p.m., on Tuesday August 20, 2013. In the event ofinclement\Veather, the alternate dates and times wi11 begin at 7 p.m., on Monday August 26, 2013 ending at 7 p.m., on Tuesday August 27. 2013. Thebridge will operate under its nmmal operating schedule at. all other times. The Coast Guard has carefully coordinated the restrictions with commercial and recreational waterway users.

Vessels able to pass under the bridge in the closed position may do so at anytime and are advised to proceed with caution. Thebridge ·will be able to open for emergenciesbut at a slower rate. There is no immediate alternate route for vessels transiting this section ofthe AIC\1\!but vessels may pass before and after the closure each dav. The Coast Guard v.•ill also**inform~**additional v ..'aterv.;ay users through ourLocal and Broadcast Notices to Mariners ofthe closure periods for the bridge so that vessels can arrange their transits to minimize any impacts caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end ofthe designated time period. This deviation from the operatingregulations is authorized under 33 CFR 117.35.

Dated: July 25, 2013. Waverly\rV. Gregory, Jr., B1idgeProgram Manager, Fifth Coast Guard District. [FR Doe. 2013-18740 Filed 8-2-13:8:45 am] BILLING CODE 911Q-04-P
ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 81 [EPA-HQ-<JAR-2012-0233; FRL 9841-41 RIN 2060-AR18 Air Quality Designations for the 2010 Sulfur Dioxide (SO,) Primary National Ambient Air Quality Standard AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This rule establishes air quality designations for certain areas in the United States for the 201 0 primary SulfurDioxide (SOl) National Ambient Air Qualitv Standard (NAAQS). The EPA is iss{;_ing this rule to identify areas that, based onrecorded air quality monitoring data shovdng violations of the NAAQS, do not meet the 2010 S02 NAAQS and areas that contribute to S02 air pollution in a necu·by area that does not meet the S02 NAAQS. At this time. the EPA is designating as nonattainment most areas in locations ·where existing monitoring data from 2009-2011 indicate violations ofthe**1~hour** 

### so:! standard. The EPA intends to address in separate future actions the designations for all other areas for \Vhich the agency is not yet prepared to issue designations and that are consequently not addressed in this final rule. The Clean Air Act (CAA) directs areas designated nonattainmentby this rule to undertake certain planning and pollution control

# Electronic Filing- Recived, Clerk's Office: 10/07/2013**FJdiJ,>ilLR~?t~ii,B;**

### ol. 

### f11P.CNWEll3o/M:lmday, A 

### J;oiJ!ilfl5**p;!{il§ij~** 

### ancPR€!l'illill4\;lns ( 

### 4 of 

### 25)

### ========~========~==~======~======= 47192 activities to attain the NAAQS as expeditiously as practicable. DATES: Effective Date: The effective date ofthis rule is October4, 2013. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2012-0233. All documents in the docket are listed in the H'lt'w.regulalions.gm' index. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and v,ril} be publicly available only inhard copy form. Publicly available docket materials are available either electronically in lt'Ww.regulatiom>.gov or in hard copy at the EPA Docket Center, EPA \·Vest, Room 3334. 1301 Constitution Avenue NW., \Nashington. DC. The Public Reading Room is open from 8:30a.m. to 4:30p.m., Monday Regional offices through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744 and the telephone number for the Air Docket is (202) 566-1742.

In addition, the EPA has established a VVeb site for this rulemaking at: http:!/ IH\·11r.epa.goF/so2designalions. The\Veb site includes the EPA's final S01 designations, as \veil as state and tribal initial recommendation letters, the EPA's modification letlers. technical support documents, responses to comments and otherrelated technical information. FOR FURTHER JNFORMATJON CONTACT: For general questions concerning this action. please contactRhonda Wright, U.S. EPA, Office ofAir Quality Planning and Standards, Air QualityPlanning Division, C539-04, Research Triangle Park, NC 27711, telephone (919) 541- 1087, email at wright.rhonda@epa.gov. SUPPLEMENTARY INFORMATION:

Regional Office Contacts: Region f-Donald Dahl (617) 918- 1657,

Region If-Kenneth Fradkin (212) 637-3702.

Region III-Ruth Knapp (215) 814- 2191.

Region IV-Lynorae Benjamin (404) 562-9040,

Region V-John Sumrnerhays (312) 886-6067,

Region VI-Dayana Medina {214) 665-7241,

Region VII-Larry Gonzalez (913) 551-7041,

Region VIII-Crystal Ostigaard (303) 312-6602.

Region IX-John Kelly (415) 947- 4151.and

Region X-Steve Body (206) 553- 0782.

The public may inspect the mle and state-specific technical support information at the following locations: States Dave Conroy, Chief, Air Programs Branch, EPA New England, 1 Congress Street, Suite 1100, Boston, MA 02114-2023, (617) 918-1661. Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont. Richard Ruvo, Chief, Air Planning Section, EPA Region II, 290 Broadway, 25th Floor, New York, NY 10007-1866. (212) 637-4014. New Jersey, New York, Puerto Rico and Virgin Islands. Cristina Fernandez, Associate Director, Office of Air Program Planning,

EPA Region Ill, 1650 Arch Street, Philadelphia, PA 19103-2187, {215) 814-2178. Delaware, District of Columbia, Maryland, Pennsylvania, Virginia and West Virginia. R. Scott Davis, Chief, Air Planning Branch, EPA Region IV, Sam Nunn

Atlanta Federal Center, 61 Forsyth Street, SW, 12th Floor, Atlanta, GA 30303, {404) 562-9127. Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina and Tennessee. John Mooney, Chief, Air Programs Branch, EPA Region V, 77 West

Jackson Street, Chicago, JL 60604, (312) 886-6043. Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin. Guy Donaldson, Chief, Air Planning Section, EPA Region VI, 1445

Ross Avenue, Dallas, TX 75202, (214) 665-7242. Arkansas, Louisiana, New Mexico, Oklahoma and Texas. Joshua A. Tapp, Chief, Air Programs Branch, EPA Region VII, 11201

Renner Blvd., Lenexa, KS 66129, (913) 551-7606. Iowa, Kansas, Missouri and Nebraska. Gail Fallon, Acting Unit Chief, Air Quality Planning Unit, EPA Region

VIII, 1595 Wynkoop Street, Denver, CO 80202-1129, {303) 312- 6281. Colorado, Montana, North Dakota, South Dakota, Utah and Wyoming.
Doris Lo, Air Planning Office, EPA Region IX, 75 Hawthorne Street,

San Francisco, CA 94105, {415) 972-3959. American Samoa, Arizona, California, Guam, Hawaii, Nevada and Northern Mariana Islands. Debra Suzuki, Manager, State and Tribal Air Programs, EPA Region X,

Office of Air, Waste, and Taxies, Mail Code OA0-107, 1200 Sixth Avenue, Seattle, WA 98101, {206) 553-0985. Alaska, Idaho, Oregon and Washington.

Table ofContents

The follmving is an outline ofthe Preamble. I. Preamble Glossary ofTerms and Acronyms II. \'\'hat is the purpose ofthis document? Ill. \Vhat is sulfur dioxide? IV. What is the 2010 S02 NAAQS and lNhat are the health concerns that it addresses? V. What are the CAA requirements for air quality designations and what action has the EPA taken to meet these requirements? VJ. What guidance did the EPA issue and how did the EPA apply the statutory requirements and applicable guidance to determine area designations and boundaries? VII. ·what air quality data has the EPA used? VIII. How do designations affect Indian Country? IX. Where can I find information forming the basis for this rule and exchanges between the EPA, states and tribes related to this rule? X. Statutory and Executive Order Revie\VS

A. Executive Order 12866: Regulatory

Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. PaperworkReduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination \'\lith IndianTribal Governments G. Executive Order 13045: Protection of

Children from Environmental Health and Safety Risks H. Executive Order 13211: Actions That

Significantly Affect Energy Supply, Distribution, orUse I. National Technology Transfer and

Advancement Act (NTTAA) J. Executive Order 12898: Federal Actions

To Address EnvironmentalJustice in Minority Populations and Low-Income Populations K. Congressional Review Act L. Judicial Review

## EIBctronic Filing- RBcivBd, CIBrk's OfficB: 

# 10/07/2013
FthlilMt:

## Re1t?tllJi>Wol. i71P.CNIJ.lE!13li ;:MJ,nday, At!;oiJ@£1**i;}l;J{fq§ij~ ancP~Bfflht?,ks**  I. Preamble Glossary ofTerms and Acronj'lllS

The following are abbreviations ofterms used in the preamble. i\PA Administrative Procedure Act Cr\A CleanAirAct CFR Code ofFederal Regulations DC District ofColumbia EO Executive Order EPA Environmental Protection Agency FR Federal Register NAAQS National Ambient Air Qualitv

Standards

- NTTAA National Technology Transfer and

Advancement Act Otv1B Office of:rvtanagement and Budget S02 Sulfur Dioxide SOx SulfurOxides RFA Regulatory Flexibility Act SlP State Implementation Plan U!v1RA Unfunded Mandate Reform Act of

1995 TAR Tribal Authoritv Rule TSD Technicol SupJlortDocument U.S. United States VCS Voluntary Consensus Standards II. \.Vhat is the purpose ofthis document?

The purpose ofthis action is to announce and promulgate designations and boundaries for certain areas ofthe country not meeting the 2010 S02 NAAQS based on available information, in accordance ·with the requirements of the CAA. The initial list ofareas being designated nonattainment in each state and the boundaries ofeach area appear in the tables within the regulatory text.

This notice identifies the 29 initial areas being designated as nonatlainment areas for the 2010 S0 2 NAAQS. The basis for designating each area as "nonattainment" is monitored air quality data from calendaryears 2009- 2011 indicating a violation ofthe NAAQS in the area. For these areas being designated nonattainment, the CAA directs states to develop State Implementation Plans (SIPs) that meet the requirements ofsections 172(c) and 191-192 ofthe CAA and provide for attainment ofthe NAAQS as expeditiously as practicable, butno later than October 4, 2018. The CAA directs states to submitthese SIPs to theEPA within 18 months ofthe effective date ofthese designations, i.e., byApril 6, 2015. III. \1\lhat is sulfur dioxide?

S02 is one ofa group ofhighly reactive gasses known as "oxides of sulfur" (SOx). The largest sources of SOz emissions are from fossil fuel combustion at powerplants (73 percent) and other industrial facilities (20 percent). Smaller sources ofS02 emissions include industrial processes, such as extracting metal from ore, and theburning ofhigh sulfurcontaining fuels by locomotives, large ships and non-road equipment. S02 is linked \Vith a number ofadverse effects on the respiratory system. IV. What is the 2010 SO, NAAQS and what are the health concernsthat it addresses?

The Administrator signed a final rule revising the primary S0 2 NAAQS on June 2, 2010. The rule was published in the Federal Register on June 22, 2010 (75 FR 35520), andbecame effective on August 23, 2010. Based on the Administrator'srevie\v ofthe air quality criteria for oxides ofsulfur and the primary NAAQS for oxides ofsulfur as measured by SOz, the EPA revised the primary S0 2 NAAQS to provide requisite protection ofpublic health 11\'ilh an adequate margin ofsafety. Specifically. the EPA established a new 1-hour S02 standard at a level of75 parts perbillion (ppb), which is met at an ambient air quality monitoring site i·vhen the 3-year average ofthe annual 99th percentile of 1-hour daily maximum concentrations is less than or equal to 75 ppb, as determined in accordance w·ith Appendix T of40 CFR part 50.40 CFR 50.17(a)-(b). The EPA also established provisions to revoke both the existing 24-hour and annual primary S02 standards, subject lo certain conditions. 40 CFR 50.4(e).

Current scientific evidence links short-term exposures to S02 , ranging from 5 minutes to 24 hours, with an array ofadverse respiratory effects includingbronchoconstriction and increased asthma symptoms. These effects are particularly important for asthmatics at elevated ventilation rates (e.g., \\•hile exercising or playing). Studies also show a connectionbetween short-term exposure and increased visits to emergency departments and hospital admissions for respiratory illnesses, particularlyin at-risk populations including children, the elderly and asthmatics.

The EPA's NAAQS for SO, is designed to protect against exposure to the entire group ofSOx. S02 is the component ofgreatest concern and is used as the indicator for the larger group ofgaseous SOx. Other gaseous SOx (e.g., S03) are found in the atmosphere at concentrations much lowerthan S0 2 •

Emissions that lead to high concentrations ofSOz generally also lead to the formation of other SOx. Control measures that reduce S02 can generallybe expected to reduce people's exposures to all gaseous SOx. This may also have the important co-benefit of reducing the formation affine sulfate particles, which pose significant public health threats. SOx can react with other compounds in the atmosphere lo form small particles. These particles penetrate deeply into sensitive parts of the lungs and can cause or worsen**respirator~y** disease, such as emphysema and bronchitis, and can aggravate existing heart disease, leading to increased hospital admissions and premature death.' The EPA's NAAQS for particulate matter are designed to provide protection against these health effects. V. \.Vhat are the CAA requirements for air quality designations and \\'hat action has the EPA taken to meet these requirements?

After the promulgation ofa nev .., or revised NAAQS. the EPA is required to designate areas as "nonattainment," ''attainment," or "unclassifiable," pursuant to section 107(d)(l) ofthe CAA.

The process for designating areas follm.-.•ing promulgation ofa new or revised NAAQS is contained in section 107(d) ofthe CAA. The CAA requires the EPA to complete the initial designations process \·vithin 2 years of promulgating a ne'\v or revised standard. Ifthe Administratorhas insufficient information to make these designations bythat deadline, the EPA has the authoritv to extend the deadline for completing designations by up to 1 year. OnJuly 27, 2012, the EPA announced that ithad insufficient information to complete the designations for the 1-hour SOz standard within 2 years and extended the designations deadline to June 3, 2013.

At this time, the EPA is initially designating as nonattainment most areas in locations where existingmonitoring data from 2009-2011 indicateviolations ofthe 1-hour S02standard. In some cases, we have had to use data from a different three-yearperiod or are still evaluating whether data from 2009- 2011 are influencedby exceptional events. In separate future actions. the EPA intends to address the designations for all other areas for 1vhich the agency is not yet prepared to issue designations and that are consequentlynot addressed in this final rule. \1\Tith input from a diverse group ofstakeholders, the EPA has developed a comprehensive implementation strategy for the future 

### so2 designations actions that focuses resources on identifying and addressing unhealthy levels ofS02 in areas where people are most likely to be exposed to violations ofthe standard. For

1 SeP. Fact Sheet Revisions to the Primary National Ambient Air Quality Standard, Jvi:onitoring Network, and Data Reporting Requirements for Sulfur Dioxide atl!tlp:/hnnt'.epa.gov/ahqualityl sulfrmlioxidei pdf s/20100602 f.;;.pdf.

## EIBctronic Filing- RBcivBd, CIBrk's OfficB: 

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### ========~============~~========~======~ 47194 informational purposes, the strategy is available at: http://wvt·w.epa.gayf airqualityl sui furdioxide/ implement.html. The EPA plans to continue to work closelvwith state, tribal and local air quality management agencies to ensure healthRprotective. commonsense implementation ofthe 1- hour S02 NAAQS.

Bv not later than 1 year after the proinulgation ofa**ne,~r** or revised Ni\.AQS, CAA section 107(d)(1)(A) provides that each state governor is required to recommend air quality designations, including the appropriate boundaries for areas, to the EPA. The EPA reviews those state recommendations and is authorized to make any modifications the Administrator deems necessary. The statute does not define the term "necessary,"but the EPA interprets this to authorize the Administratorto modify designations that did not meet the statutory requirements orwere othen·\•ise inconsistent ·with the facts or analysis deemed appropriatebythe EPA. Ifthe EPA is considering modifications to a state's initial recommendation. the EPA is required to notify the state ofany such intended modifications to its recommendation not less than 120 days prior to the EPA's promulgation ofthe final designation. During this period ofno less than 120 days, ifthe state does not agree with the EPA's modification, it has an opportunity to respond to the EPA and to demonstrate ·why itbelievesthe modification proposed by the EPA is inappropriate, as contemplated by section 107(d)(1)(B)(ii). Even ifa state fails to provide anyrecommendation for an area, in vd1ole or in part, the EPA still must promulgate a designation that the Administrator deems appropriate, pursuant to section 107(d)(l)(B)(ii).

Section 107(d)(1)(A)(i) ofthe CAA defines a nonattainment area as any area that does not meet an ambient air quality standard or that is contributing to ambient air quality in a nearby area that does not meet the standard. Ifan area meets eitherprong ofthis definition, then the EPA is obligated to designate the area as "nonattainment."

The EPA believes that section 107(d) provides the agency with discretion to determine huwbest to interpretthe terms in the definition ofa nonattainment area (e.g

.. "contributes to" and "nearby") for a new or revised NAAQS, given considerations such as the nature ofa specific pollutant, the types of sources that may contribute to violations, the form ofthe standards for the pollutant, and otherrelevant information. In particular, the EPA believes that the statute does notrequire the agency to establish bright line tests or thresholds for ·what constitutes "contribution" or "nearby" for purposes ofdesionations.z

SimiTarlv, the EPA believes that the statute**per~mits** the EPA to evaluate the appropriate application ofthe term "area" to include geographic areas based upon full orpartial county boundaries, and contiguous or noncontiguous areas, as may be appropriate for a particularNAAQS. Forexample. section107(d)(1)(B)(ii) explicitly provides that the EPA can make modifications to designation recommendations for an area "or portions thereof," and under section 107(d)(1)(B)(iv) a designation remains in effect for an area "or portion thereof" until the EPA redesignates it.

Designation activities for federallyrecognized tribal governments are covered under the authoritv ofsection 301(d) ofthe CAA. This provision ofthe CAA authorizes the EPA to treat eligible tribes in a similarmanner as states. Pursuant to section 301 (d)(Z), the EPA promulgated regulations. kno·wn as the Tribal Authority Rule (TAR). on February 12. 1999. 63 FR 7254, codified at 40 cFR part 49. Thatrule specifies those provisions ofthe CAA for ·which it is appropriate to treat tribes in a similar manner as states. Underthe TAR, tribes may choose to develop and implement their ovm CAA programs, but are not required to do so. The TAR also establishes procedures and criteria by ·which tribes mayrequest from the EPA a determination ofeligibility for such treatment. The designations process contained in section 107(d) of the CAA is included among those provisions determined to be appropriate bv the EPA for treatment oftribes inthe s8.me manner as states. Under the TAR, tribes generally are not subject to the same submission schedules imposed by the CAA on states. As authorizedby the TAR, tribes may seek eligibilityto · submit designationrecommendations to the EPA. In addition, CAA section 301(d)(4) gives the EPA discretionary authority, in cases w·here it determines that treatment oftribes as identical to states is "inappropriate or administratively infeasible,'' to provide for direct administration byregulation to achieve the appropriate purpose.

To date, six t.riDes have applied under the TAR for eligibility to submitits o·wn recommendations under section 107(d). Nonetheless, the EPA invited all tribes to submit recommendations concerning designations for the 201 0 S02 NAAQS. The EPA v.rorked V•.'ith the tribes that

2Thisview was confirmed in CatClwb(l Caunlyv. EPA, 571 F.3d 20 (DC Cir. 2009). requested an opportunity to submH designationrecommendations. Tribes were provided an opportunity to submit their m..vn recommendations and supporting documentation and could also comment on state recommendations and the EPA modifications.

Designation recommendations and supporting documentation**"~Nere** submitted by most states and several tribes to the EPA byjune 3, 2011. After receiving these recommendations, and after revie·wing and evaluating each recommendation, the EPA provided a response to the states and tribes on February 7, 2013,3 In these letter responses, we indicated v.rhether the EPA intended to make modifications to the initial state or tribal recommendations and explained the EPA's reasons for making any such modifications. Forthe majority ofthe areas, the EPA agreed \'\'ith the state's recommendedboundary. TheEPA requested that states and tribes respond to any proposedEPA modificationsby April8, 2013. TheEPA received comments from some states suggesting changes to the EPA's proposed modifications and providing additional information. TheEPA evaluated these comments, and all ofthe timely supporting technical informatfon provided. As a result. and based on that input and analysis, some ofthe final designations reflect further modifications to the initial state recommendations. The state and tribal letters, including the initial recommendations, the EPA's February 2013 responses to those letters, any modifications. and the subsequent state comment letters, are in the docket for this action.

Although notrequiredby section 107(d) ofthe CAA, the EPA also provided an opportunity for members of thepublic to comment on the EPA's February 2013 response letters. In order to gather additional information for the EPA to considerbefore making final designations, the EPA published a notice on February 15.2013 (78 FR 1124) which invited the public to comment on the EPA's intended designations. In the notice, the EPA stated that public comments mustbe received on or before March 18, 2013. The EPA received several requests from stakeholders for additional time to prepare their comments. Some ofthe requesters noted that the original 30-day comment period ·was insufficientlime to

:lAs indicated in the February 2013 letters, the EPA is not yet prepared to designate any areas in Indian cmmtrv. The EPA intends to address the designations for these areas in separate future actions.

# Electronic Filing- Recived, Clerk's Office : 10/0712013 FMili'lfl:**~?t~foifi\r**a!. 

### IMlQI.IIl.lt1131i/M.IJnday, A

## J;o\llilflt**9~&/gij~ ancP!'t~at:fulns**  review the EPA's responses to states' and tribes' recommended designations and to compile meaningful responses due to the complexity ofthe issues impacting certain m·eas. Taking that into consideration. the EPA extended the public comment period to AprilS. 2013. State and tribal initial recommendations and the EPA's responses. including modifications, 1·\'ere posted on a publically accessible Web site (http:// Wl-t'lv.epa.gov/so2designalions). Timely comments from the public and the EPA's responses to significant comments are in the docket for this action. VI. What guidance did the EPA issue and how did the EPA apply the statutoryrequirements and applicable guidance to determine area designations and boundaries?

In the notice ofproposed rulemaking for the revised 802 NAAQS (74 FR 64810; December 8. 2009).lhe EPA issuedproposed guidance on its approach to implementingthe standard, including its approach to initial area designations. TheEPA solicited comment on that guidance and, in the notice offinal rulemaking (i5 FR 35520; June 22. 2010), provided further guidance concerning implementation of the standard and hO\v to identif'v nonattainment areas and bound.aries for the SO, NAAQS. Subsequently, on March 24, 2011. the EPA provided additional designations guidance to assist states tvith making their recommendations for area designations and boundaries. 4 In that guidance, the EPA recommended that monitoring data from the most recent three consecutive years be used to identify a violation of the S0 2 NAAQS. This is appropriate because the form ofthe S02 NAAQS is calculated as a 3-year average ofthe 99th percentile ofthe yearly distribution of 1-hour daily maximum 

### so:! concentrations (specifically the most recent 3 consecutive years).s TheEPA is basing these initial fiilal designations on monitored 

### so:! concentrations from Federal Reference Method and Federal Equivalent Method monitors that are sited and operated in accordance \Vith 40 CFR Parts 50 and 58. The EPA notes that data from 2008-2010 were the most recent data available to slates and tribes \Vhen they made their recommendations to the EPA in June 2011. Accordingly,

4 See, "Area Designations for the 2010 Revised Primary SulfurDioxide National Ambient Air Quality Standards," memorandum Lo Regional Air Division Directors, Regions 1-X. from Stephen D. Page, dated ?\{arch 24,2011.

5This notice refers to monitoring data for "calendar vears 2009-2011" which includes data from Janua'ry 2009 through December 2011. although the determination of\vhether an area violates the standard •vas based on 2009-2011 data, the EPA considered state recommendations and data from 2008-2010, as appropriate, in determiningboundaries for nonattainment areas.

In the guidance, the EPA slated that the perimeter ofa county containing a violating monitor would be the initial presumptiveboundary for nonattainment areas, but also stated that the state, tribe and/or the EPA could conduct additional area-specific analyses that couldjustify establishing either a larger or smaller area. The EPA indicated that the following factors should be considered in an analysis of ·whetherto exclude portions ofa county and v·:hether to include additional nearby areas outside the county as part ofthe designated nonattainment area: (1) Air quality data; (2) emissionsrelated data; (3) meteorology: (4) geography/topography; and (5) jurisdictionalboundaries. as well as other available data. States and tribes may identify and evaluate otherrelevant factors or circumstances specific to a particular area.

Most states and several tribes submitted their designations recommendations in June 2011. In each case, the EPA revie·wed the state recommendations and, where appropriate, the EPA accepted the state's recommendations. Hovvever, ,;.,.rhere the EPA determined that changes '"''ere necessary to a state's initial recommendation, we conveyed those preliminary determinations-to the state in February 2013, and have worked 'i.Vith states to further revie•v appropriate boundaries. VII. What air quality data has the EPA used?

The final S02 designations contained in this action are based upon violations ofthe NAAQS determined by air quality monitoring data from calendaryears 2009-2011, except where it\Vas necessary or appropriate to use a different three-year period. The form of the standard requires a calculation of monitoring values from 3 consecutive years. The 1-hour primary standard is violated at an ambient air quality monitoring site when the 3-year average ofthe annual 99th percentile ofthe daily maximum 1-houraverage concentrations exceeds 75 ppb. as determined in accordance with appendix T of40 CFR part 50. For comparison to the level ofthe standard, ambient air quality shall be measured by a reference method based on appendix A or A-1, orby a Federal Equivalent Method designated in accordance with 40 CFR pari 53. VIII. How do designations affect Indian Country?

All counties, partial counties or Air Quality Control Regions listed in the tables within lhe regulatory text are designated as indicated. Forthe first round ofS02 designations. the EPA is only designating certain nonattainment areas shown to be violating the NAAQS based on monitored data. There are no areas in Indian Countrybeing designated nonattainment at this time. All remaining areas, including areas of Indian Country, for \·Vhich the EPA is not yet prepaJ.·ed to issue final designations will be addressed in a subsequent round ofdesignations. IX. \\There canI find information forming the basisfor this rule and exchanges between the EPA, States and tribes related to this rule?

Information providing the basis for this action are provided in several technical support documents (TSDs), a response to comments document (RTC) and other information inthe docket. TbeTSDs. RTC, applicableEPA's guidance memoranda, copies of correspondence regarding this process bet\'l'een the EPA and the states, tribes and other parties, are available for review at the EPA Docket Centerlisted above in the ADDRESSES section ofthis document and on the agency's 

### so:! Designations ·web site at http:// W11·'1V.epa.gov/so2designations. Areaspecific questions can be addressed to the EPA Regional Offices. X. Statutory and Executive Order Reviews

Upon promulgation ofa new or revised NAAQS, the CAA requires the EPA to designate areas as attaining or not attaining the NAAQS. The CAA then specifies requirements for areas based on whether such areas are attaining or not attaining the NAAQS. In this final rule, the EPA assigns designations to selected areas as required. A. Executit'e Order 12866:Regulatory Planning andRel'iewandExecutive Order 13563:ImprovingRegulation and RegulatoryReview

This action responds to the CAA requirement to promulgate air quality designations after promulgation ofa new or revised NAAQS. This type of action is exempt from reviewunder Executive Orders 12866 (58 FR 51735. October 4, 1993) and 13563 (67 FR 3821. january 21, 2011).

# Elactronic Filing

-Racivad. Clark's Offica: 10/0712013**F&l~: Re}i>lt~~Wol.**  111P,Qi.J&JEJJ§ti/M1,nday,**Ati;oiJfll>ltPiUG!?&~ ancf'R~at4'0lns**  (8 

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### ========~==~====~~~======~======= 47196 B. Pape1work ReductionAct

This action does not impose an information collection burden under the provisions ofthe PapenvorkReduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). This action responds to the requirement to promulgate air quality designations after promulgation ofa new or revised NAAQS. This requirement is prescribed in the CAA section 107 oftitle 1. This action does not establish any ne\v information collection aparl from that alreadyrequiredby law. C. RegulatoryFlexibilityAct

This final rule is not subject to the Regulatory FlexibilityAct (RFA), ·which generally requires an agency to prepare a regulatory flexibility analysis for any rule that v.•ill have a significant economic impact on a substantial number ofsmall entities. The RFA applies only to rules subject to noticeand-comment rulemaking requirements under the Administrative Procedure Act (APA) or any other statute. This action is not subjectto notice-and-comment requirements under the APA or any other statute because the action is not subject to the APA. CAA section 107(d)(2)(B) does notrequire the EPA to issue a notice ofproposed rulemaking before issuing this final action. D. Unfunded l>1andates Reform Act

This action contains no federal mandate under the provisions ofTitle II ofthe Unfunded Mandates Reform Act of1995 (UMRA), 2 U.S.C.1531-1538 for slate, local ortribal governments or the private sector. The action imposes no enforceable dutv on any state. local or tribal governme-nts ortiH'! private sector. Therefore, this action is not subject to therequirements ofsections 202 and 205 ofthe UMRA.

This action is also not subject to the requirements of section 203 ofUMRA because it contains no regulatory requirements that might significantly or uniquely affect small govermnents. It does not create any additional requirements beyOnd those ofthe CAA and SO, NAAQS (40 CFR 50.17); therefore. no UNLRA analysis is needed. This action establishes nonattainment designations for certain areas ofthe country for the 2010 SO, NAAQS. The CAA requires states to develop plans. including control measures, based on the designatim;s for areas \Vithin the state.

The EPA believes that anv ne•v controls imposed as a result ofthis action will not cost in the aggregate $100 mi11ion or more annually. Thus. this federal action will riot impose mandates that \Vill require expenditures of$100 million or more in the aggregate in any 1 year. E. Executi\'e OJ'der 13132:Federalism

This final action does not have federalism implications. It \Vill not have substantial direct effects on the states, on therelationship between the national government and the states or on the distribution ofpower and responsibilities among the various levels ofgovernment. as specified in Executive Order 13132. The CAA establishes the process whereby states take primary responsibility in developing plans to meet the**so~** NAAQS in areas designated nonattainmentby this action. This action will not modify the relationship ofthe stales and the EPA for purposes of developing programs to attain and maintain the**SO~** NAAQS. Thus, Executive Order 13132 does not apply to this action. F.**Executi~'e** OJ'der 13175: Consultation and Coordination With Indian TTibal Governments

This action does not have tribal implications, as specified in Executive Order 13175 (55 FR 67249, November 9, 2000). This action concerns the designation ofcertain areas as nonattainment for the 2010**so~** NAAQS, butno areas ofIndian Country are being designated by this action. Because this action does not have tribal implications, Executive Order 13175 does not apply.

AlthoughExecutive Order 13175 does not apply to this rule, the EPA communicated with tribal leaders and environmental staffregarding the designations process. TheEPA also sent individualized letters to all federallv recognized tribes to explain the

.. designation process for the 2010 502 NAAQS, to providetheEPA designations guidance, and to offer consultation with the EPA. TheEPA provided further information to tribes through presentations at the National Tribal Fon1m and through participation in National Tribal Air Association conference calls. TheEPA also sent individualized letters to all federally recognized tribes that submitted recommendations to the EPA about the EPA's intended designations for the 502 standards and offered tribal leaders the opportunity for consultation. These communications provided opportunities for tribes to voice concerns to the EPA about the general designations process for the 2010 S02 NAAQS, as well as concerns specific to a tribe, and informed the EPA about key tribal concerns regarding designations as the rule •vas under development. G. Executive Order 13045:Protection of Children From Environmental Health and SafetyRisks

The action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not an economically significantregulatory action as defined in Executive Order 12866. \1Vhile not subject to the Executive Order. this final action maybe especiallyimportant for asthmatics, including asthmatic children, living in 502 nonattainment areas because respiratory effects in asthmatics are among the most sensitive health endpoints for S02 exposure. Because asthmatic children are considered a sensitive population. the EPA evaluated the potential health effects of exposure to 502 pollution among asthmatic children as part ofthe EPA's prior action establishing the 2010 SO, NAAQS. These effects and the size ofthe population affected are summarized in the EPA's final S02 NAAQS n1les. Seehttp:!ltVH'w.epa.gov/ ttn/naaqs/standards/so2/frl 20100622.pdf. H. Executive Order 13211:Actions That SignificantlyAffectEnergy Supply, Distribution. OJ' Use

This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)). because it is not a significant regulatory action underExecutive Order 12866. I. National Technology Tmnsferand AdFancemenlAct (NTTAA]

Section 12(d) ofthe NTTAA of1995. PublicLaw 104-113, section 12(d) (15 U.S.C. 272 note) directs the EPA to use voluntcu_.v consensus standards (VC5) in its regul3.tory activities unless to do so \vould be inconsistent·with applicable law or othen

...rise impracticable. VC5 are technical standru·ds (e.g., materials specifications, test methods, sampling procedures andbusiness practices) that are developed or adopted by VCS bodies. The NTTAA directs the EPA to provide Congress, through OiviB, explanations when the agency decides not to use available and applicable VCS.

This action does not involve technical standards. Therefore, the EPA did not considerthe use ofany VC5. f. Executive Order 12898: Federal Actions To AddressEnvironmental Justice in MinorityPopulations and Lmv-Income Populations

Executive Order 12898 (59 FR 7629 (Feb. 16. 1994)) establishes federal executive policy on environmental justice. Its main provision directs

# Electronic Filing

-Recived. Clerk's Office: 10/0712013**F&iiJM!:~?t@J;l.Biol. ~Q\!b\lE!®li/M~nday,** **A~oiJ!ilP59:l&IG.'l~ ancP~~at~s**  federal agencies, to the greatest extent practicable and permitted byla\V, to make environmentaljustice part oftheir mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects oftheir programs, policies and activities on minority populations and lo·w-income populations in the U.S.

The CAA requires that the EPA designate as nonaltainrnent '·any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the national primary or secondary ambient air quality standard for the pollutant." By designating as nonattainment areas t'l'here available information indicate a violation ofthe 2010 S0 2 NAAQS or a contribution to a nearbyviolation, this action protects all those residing, working, attending school. or othenvise present in those areas regardless of minority or economic status.

The EPA has determined that this final rule 'INill not have disproportionately high and adverse human health or environmental effects on minority orlow-income populations because it increases the level of environmental protection for all affected populations vdthout having any disproportionately high and adverse human health or environmental effects on any population, including any minority orlmv-income population. K. CongressionalReviewAct

The Congressional Review Act, 5 U.S.C. 801 et seq., as addedbythe Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy ofthe n1le. to each House ofthe Congress and to the Comptroller General ofthe U.S. The EPA vvill submit a report containingthis action and other required information to the U.S. Senate, the U.S. House ofRepresentatives and the Comptroller General ofthe U.S. prior to publication ofthe rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a "majorrule" as defined by 5 U.S.C. 804(2). This rule will be eiTective October4, 2013. L. Judicial Review

Section 307(b)(1) ofthe CAA indicates v.•hich Federal Courts ofAppeal have venue for petitions ofrevie·H' offinal actions bv the EPA. This section provides:in part, that petitionsfor revie·w must be filed in the Court of Appeals for the District ofColumbia Circuit: (i) \'\Then the agency action consists of "nationally applicable regulations promulgated, or final actions taken, hv the Administrator," or (ii) when sUch action is locally or regionally applicable, if "such action is based on a determination ofnationwide scope or effect and ifin taking such action the Administrator finds and publishes that such action is based on such a determination."

This final action designating areas for the 2010 SO, NAAQS is "nationally applicable" ·within the meaning of section 307(b)(1). This final action establishes designations for areas across the U.S. for the 2010 S02 NAAQS. At the core ofthis final action is the EPA's interpretation ofthe definition of nonattainmentunder section 107(d)(1) ofthe CAA, and its application ofthat interpretation to areas across the country. For the same reasons. the Administrator also is determining that the final designations are ofnatiom,vide scope and effect for the purposes of section 307(b)(1). This is particularly appropriate because, in the report on the 1977 Amendments that revised section 307(b)(1) ofthe CAA, Congress noted that the Administrator's determination that an action is of "nationwide scope or effect" would be appropriate for any action that has a scope or effectbeyond a single judicial circuit. H.R. Rep. No. 95-294 at 323, 324. reprinted in 1977 U.S.C.C.A.N. 1402-03. Here. the scope and effect ofthis final action extends to numerous judicial circuits since the designations apply to areas across the country. In these circumstances, section 307(b)(1) and its legislative history calls for the Administrator to find the action to be of "nationwide scope or effect" and for venue to be in the DC Circuit.

Thus, any petitions for review offinal designations mustbe filed in the Court ofAppeals for the District ofColumbia Circuit within 60 days from the date final action is published in the Federal Register. List ofSubjects in 40 CFR Part 81

Environmental protection. Air po11ution controL National parks, \Vilderness areas.

Dated: July 25, 2013. Gina McCarthy, EPA Administrator.

For the reasons set forth in the preamble, 40 CFR part 81 is amended as follo·ws: PART 51-DESIGNATIONS OF AREAS FOR AIR QUALITY PLANNING PURPOSES

• 1. The authoritycitation for part81 continues to read as follovvs:

Authority: 42 U.S.C. 7401, et seq, Subpart C-Section 107 Attainment Status Designations §81.301 [Amended] • 2. Section 81.301 is amendedby revising the table heading for ''Alabama-SulfurDioxide'' to read "Alabama-1971 SulfurDioxide NAAQS (Primary and Secondary)". §81.302 [Amended]
• 3. Section 81.302 is amendedby revising the table heading for "AlaskaS02" to read "Alaska-1971 Sulfur Dioxide NAAQS (Primary and Secondary)".
• 4. Seclion 81.303 is amended as follmvs: 11 a. By revising the tableheading for "Arizona-S02 " to read "Arizona1971 SulfurDioxide NAAQS (Primarv and Secondary)"; and**~** • b. Byadding a nev ..,table entitled "Arizona-2010 SulfurDioxide NAAQS (Primary)'' following the ne\vly designated table "Arizona-1971 Sulfur Dioxide NAAQS (Primary and Secondary)" to read as follm:\rs: § 81.303 Arizona. " 

### " 

### • ARtZONA-2010 SULFUR DIOXIDE NAAQS (PRIMARY) Designated area Hayden, AZ,

.................................................................................................................................................. Gila County (part) The portions of Gila County that are bounded by: T4S, R14E; T4S, R15E; T4S, R16E; T5S,

R15E; TSS, R16E Pinal County (part) Designation Date Type 10-4-13 Nonattainment.47198 

# Electronic Filing- Recived, Clerk's Office: 10/0712013**FJdil,liln~~$l~l'>Wol.** 

### llW,QIJIJ.lEl§!i**/lvi~nday,** Atfgillil£1**59!2&1!}4~ ancP~Ii\!tllat?dns**  

### (10 of 

### 25)
ARIZONA-2010 SULFUR DIOXIDE NAAQS (PRIMARY)-Continued Designation Designated area Date Type The portions of Pinal County that are bounded by: T4S, A14E; T4S, R15E; T4S, R16E; T5S,

R14E;T5S, R15E;T5S, R16E;T6S, R14E;T6S, R15E;T6S, R16E Miami, AZ 1

.................................................................................................................................................. 10-4-13 Nonattainment. Gila County {part) The portions of Gi!a County that are bounded by: T2N, R14E; T2N, R15E; T1N, R13E; T1N,

R14E; T1N, R15E; T1S, R14E; T1S, R141/2E; T1S, R15E
1 Excludes Indian country located in each area, if any, unless otherwise specified. * * * • 

### • §81.304 [Amended]
• 5. Section 81.304 is amendedby revising the table heading for "Arkansas-802" to read "Arkansas1971 Sulfur Dioxide NAAQS (Primary and Secondary)". §81.305 [Amended] B 6. Section 81.305 is amendedby revising the table heading for "California-S02 " to read '"California1971 Sulfur Dioxide NAAQS (Primary and Secondary}". §81.306 [Amended] B 7. Section 81.306 is amendedbv revising the table heading for · "Colorado-802'' to read "Colorado1971 Sulfur Dioxide NAAQS (Primary and Secondary)''. §81.307 [Amended] B 8. Section 81.307 is amendedbv revising the table heading for · "Connecticut-SO/' to read ;<Connecticut-1971 SulfurDioxide NAAQS (Primary and Secondary)". § 81.308 [Amended]
a 9. Section 81.308 is amendedby revising the table heading for ·'Delaware-S02 '' to read ''Delmvare1971 SulfurDioxideNAAQS (Primary and Secondary)". §81.309 [Amended]
• 10. Section 81.309 is amendedbv revising the table heading for "Di;trict ofColumbia-S02 '' to read "District of Columbia-1971 SulfurDioxide NAAQS (Primary and Secondary)".
B 11. Section 81.310 is amended as follows: a a. By revisingthetableheading for ''Florida-S02'' to read ''Florida-1971 SulfurDioxide NAAQS (Primary and Secondary}"; and a b. By adding anewtable entitled "Fiorida-2010 Sulfur Dioxide NAAQS (Primary)" following the newly designated table "Florida-1971 Sulfur Dioxide NAAQS (Primary and Secondary)" to read as follov.·s: § 81.310 Florida. * * 

### ' *
FLORIDA-2010 SULFUR DIOXIDE NAAQS (PRIMARY) Designated area Designation Date Type Hillsborough County, FL 1

....... 10-4-13 Nonattainment. Hillsborough County (part) That portion of Hillsborough County encompassed by the polygon with the vertices using Universal Traverse Mercator (UTM) coordinates in UTM zone 17 with datum NAD83 as follows: {1) vertices-UTM Easting (m) 35881, UTM Northing 3076066; (2) vertices-UTM Easting (m) 355673, UTM Northing 3079275; (3} UTM Eas1ing (m) 360300, UTM Northing 3086380; (4) vertices-UTM Easting (m) 366850, UTM Northing 3086692; (5) vertices-UTM Easling (m) 368364, UTM Northing 3083760; and (6) vertices-UTM Easting (m} 365708, UTM Northing 3079121 Nassau County, FL 1

....................................................................................................................................... 1D-4-13 Nonattainment. Nassau County, (part) That portion of Nassau County encompassing the circular boundary with the center being UTM

Easting 455530 meters, UTM Northing 3391737 meters, UTM zone 17, using the NAD83 datum (the location of the violating ambient monitor) and the radius being 2.4 kilometers
1 Excludes Indian country located in each area, if any, unless otherwise specified. * * * • * §81.311 [Amended]
• 12. Section 81.311 is amendedby revising the table heading for "Georgia-S02" to read ''Georgia-1971 SulfurDioxide NAAQS (Primary and Secondary}", §81.312 [Amended]
• 13. Section 81.312 is amendedby revising the table heading for "HawaiiS02" to read "Ha\vaii-1971 Sulfur Dioxide NAAQS {Primary and Secondary}", §81.313 [Amended]
a 14. Section 81.313 is amendedby revising the table heading for "IdahoS01' to read "ldaho-1971 Sulfur Dioxide NAAQS (Primary and Secondary)". · B 15. Section 81.314 is amended as follmNs: a a. Byrevisingthetableheading for "Illinois-S02" to read "Illinois-1971 Sulfur Dioxide NAAQS (Primary and Secondary)''; and • b. By adding a new table entitled "IIIinois-2010 Sulfur Dioxide NAAQS

# Electronic Filing

-Recived, Clerk's Office: 10/0712013 F&ii'!,lllr**~?t~J;>.Blol.** 

### \i1P,Q\i8.1Et®li**f:}yi~nday,** 

### A.fgil@£1**5}l;!{fl§ij~ ancP~~at~s**  {Primary)" follov.ring the newly designated table "Illinois-1971 Sulfur Dioxide NAAQS (Primary and Secondary)" to read as f0llm'\!s: § 81.314 Illinois. * * * * ILLINOI5-2010 SULFUR DIOXIDE NAAQS (PRIMARY) Designation Designated area Date Type Lemont, IL 1

................................................................................................................................................... 10-4-13 Nonattainment. Cook County (part) Lemont Township Will County (part) DuPage Township and Lockport Township Pekin, IL 1

............................................................................. Tazewell County (part) Cincinnati Township and Pekin Township Peoria County {part) Hollis Township 1 Excludes Indian country located in each area, 1f any, unless otherwise specified. 

### ' 

### • ' * B16.Section81.315isarnendedas follows: a a. Byrevisingthe tableheadingfor ''Indiana-S0 2 " to read ''Indiana-1971 SulfurDioxide NAAQS (Primary and Secondary)"; and Db. By adding a ne1-v table entilled "Indiana-2010 SulfurDioxide NAAQS (Primary)'' follo\ving the ne\vly designated table "Indiana-19i1 Sulfur 1G-4-i3 Nonattainment.

Dioxide NAAQS (Primarv and Secondary)" to read as fdllmvs: § 81.315 Indiana. * * * * *
INDIANA-2010 SULFUR DIOXIDE NAAQS (PRIMARY) Designated area Indianapolis, IN 1 .•.•••...,•• ,.,.,.,•••••••••••..•.••.••••.••••••••••••., . .,., Marion County (part) Wayne Township, Center Township, Perry Township Morgan County, IN 1

.............,..,................ .,..., .....,... Morgan County {part) Clay Township, Washington Township Southwest Indiana, IN 1

................ . .......•..•••.•••.•••.,••.••••••.•.•••.,.,.....,., .. .,..... .,....................... Daviess County (part) Veale Township Pike County (part) Washington Township Designation Date Type 10-4-13 Nonattainment.
10-4-13 Nonattainment.
10-4-13 Nonattainment.

Terre Haute, IN 1

..................................................................................................................................... 1G-4-13 Nonattainment. Vigo County (part) Fayette Township, Harrison Township 1 Excludes Indian country located in each area, 1f any, unless otherwise specified. 

### ' ' * B17.Section81.316isamendedas follows: a a. Byrevising the tableheadingfor "Iowa-S02'' to read ''Imva-1971 SulfurDioxide NAAQS (Primary and Second8l·y)"; and a b. By addinga new table entitled "lowa-2010 SulfurDioxide NAAQS {Primary)" following the nev.rly designated table "Iowa-1971 Sulfur Dioxide NAAQS (Primary and Secondary)" to read as follows: §81.316 Iowa. * * * * *
IOWA-2010 SULFUR DIOXIDE NAAQS (PRIMARY)

Designated area Muscatine, !A1

.............,.. .,.............................. Muscatine County (part) Sections 1-3, 10-15, 22-27, 34-36 of T77N, R3W {Lake Township) Sections 1-3, 10-iS, 22-27, 34-36 of T76N, R3W {Seventy-six Township) T77N, R2W (Bloomington Township). T76N, R2W (Fruitland Township) All sections except 1, 12, 13, 24, 25, 36 of T77N, R1W (Sweetland Township)
1 Excludes lnd1an country located m each area, if any, unless otherwise spec1f1ed. Designation Date Type 10-4-13 Nonattainment.

# Electronic Filing- Recived, Clerk's Office: 10/0712013
47200**FMi~~lr ~S't\li"Wol.**  

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* * * * §81.317 [Amended] B18.Section81.317isamendedby revising the table heading for "KansasS02" to read "Kansas-1971 Sulfur Dioxide NAAQS (Primary and Secondary)". a 19. Section 81.318 is amended as follo-ws: • a. Byrevising the tableheadingfor ''Kentucky-S02" to read "Kentucky1971 SulfurDioxide NAAQS (Primary and Secondarv)"; and NAAQS (Primary)" following the nev.·ly designated table "Kentucky-1971 SulfurDioxide NAAQS (Primary and Secondary)" to read as follmvs: §81.318 Kentucky. 11 b. By adding anew table entitled "Kentucky-2010 SulfurDioxide * *
KENTUCKY-201 0 SULFUR DIOXIDE NAAQS (PRIMARY) Designated area Campbell-Clermont Counties, KY-OH 1

..................................... Campbell County (part) That portion of Campbell County which lies south and west of the Ohio River described as fol·

lows: Beginning at geographic coordinates 38.9735 North Latitude, 84.3017 West Longitude (NAD 1983) on the edge of the Ohio River running southwesterly to KY Highway 1566; thence continuing running southwesterly along KY Highway 1566 to KY Highway 9 (AA Highway); thence running north westerly along KY Highway 9 (AA Highway) from Hwy 1566 to Interstate 275; thence running northeasterly along Interstate 275 to Highway 2345 (John's Hill Road), Hwy 2345 to US-27, US-27 to 1-275, 1-275 to the Ohio River; thence running southeasterly along the Ohio River from Interstate 275 to geographic coordinates 38.9735 North Latitude, 84.3017 West Longitude (NAD 1983) Jefferson County, KY 1

.................................................................................................................................. Jefferson County (part) That portion of Jefferson County compassed by the polygon with the vertices using Universal

Traverse Mercator (UTM) coordinates in UTM zone 16 with datum NAD83 as follows: (1) Ethan Allen Way extended to the Ohio River at UTM Easting (m) 595738, UTM Northing

4214086 and Dixie Highway (US60 and US31 W) at UTM Easting (m) 59751, UTM Northing 4212946; (2) Along Dixie Highway from UTM Easting (m) 597515, UTM Northing 4212946 to UTM Easting

(m) 595859, UTM Northing 421 0678; (3) Near the adjacent property lines of Louisville Gas and Electric-Mill Creek Electric Generating Station and Kosmos Cement where they join Dixie Highway at UTM Easting (m) 595859, UTM Northing 4210678 and the Ohio River at UTM Easting (m) 595326, UTM Northing 4211014; (4) Along the Ohio River from UTM Easting (m) 595326, UTM Northing 4211014 to UTM Easting

(m) 595738, UTM Northing 4214086 1 Excludes Indian country located in each area, if any, unless otherwise specified. * *

Designation Date Type 10-4-13 Nonattainment.

10-4-13 Nonattainment.

* * * * a 20. Section 81.319 is amended as follows: 1971 SulfurDioxide NAAQS (Primary and Secondarv)"; and • b. By adding a ne\\' table entitled "Louisiana-2010 SulfurDioxide NAAQS (Primary)" follo·wing the nev ..rly designated table "Louisiana-1971 SulfurDioxide NAAQS (Primary and Secondary)" to read as follm.vs:

a a. Byrevising thetable headingfor ''Louisiana-S02 '' to read ''Louisiana- § 81.319 Louisiana. * * * *
LOUISIANA-201 0 SULFUR DIOXIDE NAAQS (PRIMARY) Designated area
St. Bernard Parish, LA 1

................................................................................ St. Bernard Parish
1 Excludes lnd1an country located 1n each area, 1f any, unless otherw1se specified. * * * * * §81.320 [Amended]
• 21. Section 81.320 is amendedby revising the table heading for "Maine

### so;· to read "Maine-1971 Sulfur Dioxide NAAQS (Primary and Secondary)", · §81.321 [Amended]
• 22. Section 81.321 is amended bv revising the table heading for ¥ "Maryland-S02" to read "Maryland1971 SulfurDioxide NAAQS (Primary and Secondary)". Designation Date Type 10-4-13 Nonattainment.

§ 81.322 [Amended]
• 23. Section 81.322 is amendedby revising the table heading for "Massachusetts-S02 '' to read "Massachusetts-1971 SulfurDioxide NAAQS (Primary and Secondary)''.
• 24. Section 81.323 is amended as follows:

# Electronic Filing

-Recived, Clerk's Office: 10/0712013**FMi!,1ilni~!?t~JiiAr**a!. 

### I11P,QIJ1iDEll§ti/MJ.nday, A**~oi,l§p**

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a a. Byrevising the table headingfor '':tvfichigan-802 '' lo read ''Michigan1971 SulfurDioxide NAAQS (Primary and Secondary)"; and 11 b. By adding a new table entitled "Michigan-2010 SulfurDioxide NAAQS (Primary)'' following the ne'\vly designated table "Michigan-1971 SulfurDioxide NAAQS (Primary and Secondary)"' to read as follov,:s: §81.323 Michigan. * * MICHIGAN-2010 SULFUR DIOXIDE NAAQS (PRIMARY) Designation Designated area Date Type Detroit, Ml 1 Wayne County (part)

............... .................................................................................. . 10-4-13 Nonattainment. The area bounded on the east by the Michigan-Ontario border, on the south by the Wayne CountyMonroe County border, on the west by Interstate 75 north to Southfield Road, Southfield Road to Interstate 94, and Interstate 94 north to Michigan Avenue, and on the north by Michigan Avenue to Woodward Avenue and a line on Woodward Avenue extended to the Michigan-Ontario border
1 Excludes lnd1an country located in each area, 1f any, unless otherwise specified. * * * * § 81.324 [Amended]
a 25. Section 81.324is amendedby revising the table heading for "Minnesota-SO:!" to read "Minnesota-1971 SulfurDioxide NAAQS (Primaryand Secondary)". § 81.325 [Amended) a 26. Section 81.325 is amendedbv revising the table heading for**~** ''Mississippi-SO:!" to read "Mississippi-1971 SulfurDioxide NAAQS (Primary and Secondary)'". a 27. Section 81.326 is amended as follmvs: a a. By revising thetableheading for ''Missouri-SO:!'' to read ''Missouri1971 SulfurDioxide NAAQS (Primary and Secondary)"; and a b. By adding a nevv table entitled ''Missouri-2010 SulfurDioxide NAAQS (Primary)" follm.•• .ring the nevdy designated table "Missouri-1971 SulfurDioxide NAAQS (Primary and Secondary)'' to read as follows:· § 81.326 Missouri. * * * * MISSOURI-2010 SULFUR DIOXIDE NAAQS (PRIMARY) Designated area
Jackson County, MO 1 Jackson County (part)

............................................................................................. The portion of Jackson County bounded by 1-70/1-670 and the Missouri River to the north; and, to

the west of 1-435 to the state line separating Missouri and Kansas Jefferson County, M01 Jefferson County (part)

............................................................................................ That portion within Jefferson County described by connecting the following four sets of UTM coordinates moving in a clockwise manner:

(Herculaneum USGS Quadrangle) 718360.283 4250477.056 729301.869 4250718.415 729704.134 4236840.30 718762.547 4236558.715 (Festus USGS Quadrangle) 718762.547 4236558.715 729704.134 4236840.30 730066.171 4223042.637 719124.585 4222680.6 (Selma USGS Quadrangle) 729704.134 4236840.30 730428.209 4236840.3 741047.984 4223283.996 730066.171 4223042.637 (Valmeyer USGS Quadrangle) 729301.869 4250718.415 731474.096 4250798.868 730428.209 4236840.3 729704.134 4236840.30
1 Excludes lnd1an country located m each area, 1f any, unless otherwise specified. Designation Date Type 1 0-4-13 Nonattainment.
10--4-13 Nonattainment.

* * * * • 28. Section 81.327 is amended as follmvs: 1971 SulfurDioxide NAAQS (Primary and Secondary)"; and • b. By adding a ne"v table entitled "Montana-2010 SulfurDioxide NAAQS (Primary)" follmving the newly designated table "Montana-1971 SulfurDioxide NAAQS (Primary and Secondary)" to read as follmvs:
a a. By revising the tableheadingfor "Montana-S02 " to read ''Montana- § 81.327 Montana. * * * *47202 

# Electronic Filing- Recived, Clerk's Office: 10/0712013**F&ii!.>un~~?tll~Aiol. f71P,q~jbl:JEil31i** **/M~nday,** 

## AJ';a\l@fl**tP;J{:Ggij~ ancP!Ui\~lliatfO!ns**  MONTANA-2010 SULFUR DIOXIDE NAAQS (PRIMARY) Designated area Billings, MP Yellowstone County (part)

....................... ,. .................................................................................. The area originates at the point defined as the southwest corner of Section 11, Township 1S,

Range 26E. From that point the boundary proceeds north along the western section line of Section 11 to the point of intersection with the midline of Interstate Highway 90. From that point the boundary follows the midline of Interstate Highway 90, across the Yellowstone River, to the point where the highway midline intersects the northern boundary of Section 35, Township iN, Range 26E. From that point the boundary proceeds east along the northern section line of Sections 35 and 36 to the point where Old US 87/Hardin Road leaves the section line and turns southeast. The boundary follows the midline of Old US 87/Hardin Road southeast to the point where the road intersects the western boundary of the SE i of the SE :t of Section 31, Township 1N, Range 27E. From that point the boundary proceeds south along the 1 section line to the southern boundary of Township 1N, then east to the northeast corner of Section 5, Township 1S, Range 27E. The boundary then proceeds south along the eastern section line of sections 5 and 8 to the southeast corner of Section 8, Township 1S. Range 27E, where it turns west and follows the south section line of Sections 8 and 7, Township iS, Range 27E; and Sections 12 and 11, Township 1 S, Range 26E, back to the point of origin 1 Excludes lnd1an country located 1n each area, 1f any, unless otherwise spec1f1ed. Designation Date Type
10-4-13 Nonattainment.

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* * * § 81.328 [Amended] • 29. Section 81.328 is amendedbv revising the table heading for

- ''Nebraska-S02 '' to read ''Nebraska1971 SulfurDioxide NAAQS (Primary and Secondary)". S0 2 ., to read "Nevada-1971 Sulfur Dioxide NAAQS (Primary and Secondary)". • 31. Section 81.330 is amended as follov.,rs: • a. Byrevising thetableheadingfor "Ne•v Hampshire-S02 " to read "Nev

.., Hampshire-19i1 SulfurDioxide NAAQS (Primary and Secondary)''; and • b. By adding anew table entitled "Ne\v Hampshire-2010 SulfurDioxide NAAQS (Primary)" following the newly designated table "NewHampshire19i1 SulfurDioxide NAAQS (Primarv and Secondary)'' to read as follows: v

• 30. Section 81.329 is amendedby revising the table heading for ·'Nevada- §81.330 New Hampshire_ * * * *
NEW HAMPSHIRE-2010 SULFUR DIOXIDE NAAQS (PRIMARY) Designated area
Central New Hampshire, NH 1 Hillsborough County (part)

..................................................................................................... Goffstown Town Merrimack County (part) Designation Date Type
10-4-13 Nonattainmenl.
Allenstown Town, Bow Town, Chichester Town, Dunbarton Town, Epsom Town, Hooksett Town,

Loudon Town, Pembroke Town, Pittsfield Town, City of Concord Rockingham County {part) Candia Town, Deerfield Town, Northwood Town
1 Excludes lnd1an country located m each area, 1f any, unless otherwise spec1f1ed. * * 

### • ' * §81.331 [Amended]
a 32. Section 81.331 is amendedby revising the table heading for "Ne\v Jersey-S0 2 " to read ''New Jersey-1971 SulfurDioxide NAAQS (Primary and Secondary)". §81.332 [Amended]
a 33. Section81.332 is amendedby revising the table heading for "Ne\v Mexico-S0 2 " to read "Nev,r Mexico1971 SulfurDioxideNAAQS (Primary and Secondary)". § 81.333 [Amended]
a 34. Section 81.333 is amendedby revising the table heading for "Ne'N York-80 2 " to read "NewYork-1971 SulfurDioxide NAAQS (Primary and Secondary)". § 81.334 [Amended]
• 35. Section 81.334 is amendedby revising the table heading for "North Carolina-S02" to read "North Carolina-1971 SulfurDioxide NAAQS (Primary and Secondary)''. §81.335 [Amended] a 36. Section 81.335 is amendedby revising the table heading for "North Dakota-SO/' to read "North Dakota1971 SulfurDioxide NAAQS (Primary and Secondary)". · • 37. Section 81.336 is amended as follows: a a. Byrevisingthe tableheadingfor "Ohio-SO," to read "Ohio-1971 SulfurDioxide NAAQS (Primary and Secondarv)"; and

- • b. By adding anevv table entitled "Ohio-2010 SulfurDioxide NAAQS (Primary)'' following the newly designated table "Ohio-1971 Sulfur Dioxide NAAQS (Primary and Secondary)'' to read as follows: §81.336 Ohio. 

### • *

## EIBctronic Filing
- RBcivBd, CIBrk's OfficB: 

# 10/0712013 F.\clilfitJ:

## Helt2tlli'Arol. 

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## J;,oiJ!Bfl5**9!2{jq~ij~ ancP!t~lhtfuins**  OHID-2010 SULFUR DIOXIDE NAAQS (PRIMARY)

Designated area Campbell-Clermont Counties, KY-OH 1 Clermont County (part) ..................

. Lake County, OH 1 Lake County

...................................... ............................................ Muskingum River, OH 1

................................................................................. Morgan County (part) Center Township Washington County {part) Waterford Township Steubenville OH-WV1 Jefferson County (part)

........... ................................................... .............................................. Cross Creek Township, Steubenville Township, Warren Township, Wells Township, Steubenville

City
1 Excludes Indian country located in each area, if any, unless otherwise specified. Designation Date Type
10-4-13 Nonattainment. 10-4-13 Nonattainment. 1o-4-13 Nonattainment.

10-4-13 Nonattainment.

* * * § 81.337 [Amended]
• 38. Section 81.337 is amendedby revising the table heading for "Oklahoma-So;· to read "Oklahoma1971 SulfurDioxide NAAQS (Primary and Secondary)". § 81.338 [Amended] • 39. Section 81.338 is amended bv revising the table heading for "OregonSO:!'' to read "Oregon-1971 Sulfur Dioxide NAAQS {Primary and Secondary)''. · • 40. Section 81.339 is amended as follows: "Pennsvlvania-1971 SulfurDioxide N1\AQS (Primary and Secondary)"; and • b. By adding ane·w table entitled "Pennsvlvania-2010 SulfurDioxide NAAQS (Primary)'' fo11m.ving the newly designated table "Pennsylvania-1971 SulfurDioxide NAAQS (Primary and Secondary)"' to read as follows:
B a. Byrevising thetableheadingfor "Pennsylvania-SO:!" to read §81.339 Pennsylvania. * * PENNSYLVANIA-201 0 SULFUR DiOXIDE NAAQS (PRIMARY)

Allegheny, PA 1 Allegheny County (part)

........................ The area consisting of: Borough of Braddock Borough of Dravosburg Borough of East McKeesport Borough of East Pittsburgh Borough of Elizabeth Borough of Glassport Borough of Jefferson Hills Borough of Uberty Borough of Lincoln Borough of North Braddock Borough of Pleasant Hills Borough of Port Vue Borough of Versailles Borough of Wall Borough of West Elizabeth Borough of West Mifflin City of Clairton City of Duquesne City of McKeesport Elizabeth Township Forward Township North Versailles Township Beaver, PA 1 Designated area

Beaver County (part)

............................................................................................................................... Area consisting of Industry Borough, Shippingport Borough, Midland Borough, Brighton Township, Potter Township and Vanport Township Indiana, PA,

.................................................................................................................................................... Indiana County Armstrong County (part) Area consisting of Plumcreek Township, South Bend Township, and Elderton Borough Warren, PA 1 * *

Designation Date Type
10-4-13 Nonattainment.

10-4-13 NonaUainment.
10-4-13 Nonattainment.

# Eh=Jctronic Filing- Recived, Clerk's Office: 10/0712013
47204 

### FMil,ji(j:**~1/tlli'Aia!.** 

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### Atf;oillilP**5PillJ4~ij~ ancP~flglllat?Oins**  

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PENNSYLVANIA-2010 SULFUR DIOXIDE NAAQS (PRIMARY)-Continued Designated area Designation Date Type Warren County (part)

....................................., ......................................................................................... 10-4-13 Nonattainment Area consisting of Conewango Township, Glade Township, Pleasant Township, and the City of

Warren 1 Excludes Indian country located in each area, if any, unless otherwise specified.


### • 

### • * § 81.340 [Amended] • 41. Section 81.340 is amendedby revising the table heading for "Rhode Island-S0 2 " to read "Rhode Island1971 SulfurDioxide NAAQS (Primary and Secondary)". § 81.341 [Amended] • 42. Section 81.341 is amendedbv revising the table heading for**"So~th** Caro1ina-S02 " to read "South Carolina-1971 SulfurDioxide NAAQS (Primary and Secondary)". § 81.342 [Amended] 11 43. Section 81.342 is amendedby revising the table heading for "South Dakola-S02 " lo read "South Dakola1971 SulfurDioxide NA/\.QS (Primary and Secondary)''. 11 44. Section 81.343 is amended as follmvs: 11 a. Byrevising the tableheadingfor "Tennessee-S02 " to read "Tennessee-1971 SulfurDioxide NAAQS (Primary and Secondary)"; and B b. Byaddinga nev ..r table entitled "Tennessee-2010 SulfurDioxide NAAQS (Primary)" follo\ving the ne\vly designated table "Tennessee-1971 SulfurDioxide NAAQS [Primary and Secondary)" to read as follO\vs: § 61.343 Tennessee.

TENNESSEE-2010 SULFUR DIOXIDE NAAQS (PRIMARY) Designation Designated area Date Type Sullivan County, TN 1 Sullivan County {part)

.............................................................................................................................. 10-4-13 Nonattainment. That portion of Sullivan County encompassing a circle having its center at the 8-253 power

house coordinates 36.5186 N; 82.5350 Wand having a 3·ki!ometer radius 1 Excludes !nd1an country located in each area, 1f any, unless otherwise specified.


### • * 

### • * * § 81.344 [Amended]
• 45. Section 81.344 is amendedby revising the table heading for "TexasS02" to read ''Texas-1971 Sulfur Dioxide NAAQS (Primary and Secondary)". §81.345 [Amended]
• 46. Section 81.345 is amendedby revising the table heading for "UtahSOi' lo read "Utah-1971 Sulfur Dioxide NAAQS (Primary and Secondary)". § 81.346 [Amended] 11 47. Section 81.346 is amendedbv revising the table heading for · "Vermont-S02 " to read "Vermont1971 SulfurDioxide NAAQS (Primary and Secondary)". § 81.347 [Amended] 11 48. Section 81.347 is amendedbv revising the table heading for · "Virginia-802 " to read "Virginia1971 SulfurDioxide NAi\QS (Primary and Secondary)". §81.348 [Amended] 11 49. Section 81.348 is amendedbv revising the table heading for · "'"'ashington-S02" to read "'"'ashington-1971 SulfurDioxide NAAQS (Primary and Secondary)'". • 50. Section 81.349 is amended as follm'\•s: 11 a. Byrevising thetableheadingfor ''V\lest Virginia-S02 '' to read ''VIJest Virginia-1971 SulfurDioxide NAAQS (Primary and Secondary)"; and 11 b. By addinga new table entitled "\Vest Virginia-2010 Sulfur Dioxide NAAQS (Primary)" following the newly designated table ''VVest Virginia-1971 SulfurDioxide NAAQS (Primary and Secondary)" to read as follO\vs: §61.349 West Virginia. 

### • * * * 

### • WEST VIRGINIA-2010 SULFUR DIOXIDE NAAQS (PRIMARY) Designated area Steubenville, OH-WV 1 Brooke County (part)

................................................................................................................ Area bounded by the Cross Creek Tax District Marshall, WV 1 Marshall County (part)

............................................................................................................................. Area consisting of Clay Tax district, Franklin Tax District, and Washington Tax District
1 Excludes Indian country located in each area, 1f any, unless otherwise spec1f1ed. Designation Date Type
10-4-13 Nonattainment.

10-4-13 Nonattainment.

# Electronic Filing- Recived, Clerk's Office: 10/07/2013 FMil,>i!'t:**~?t\li'i,&;ol.** 

### 111P,Q\Jb\1EJ.I31i/lv!Jmday, A

### '-FgiJfll£!5**9!2ifl\?ij~ ancPR~at:fulns**  

## imJs>f 25)
* * 11 51. Section 81.350 is amended as follows: 11 a. By revisingthe table headingfor**"V~'isconsin-80 "**  to read '''Wisconsin-1971 SulfurDioxide NAAQS (Primary and Secondary)''; and a b. By adding a ne'IN table entitled "''Visconsin-2010 Sulfur Dioxide NAAQS (Primary)" following the ne•vly designated table ''\Visconsin-1971 SulfurDioxide NAAQS (Primary and Secondary)'' to read as follO\vs: §81.350 Wisconsin.

WISCONSIN-2010 SULFUR DIOXIDE NAAQS (PRIMARY) Designated area Rhinelander, WP Oneida County {part)

................................................................................................................. City of Rhinelander, Crescent Town, Newbold Town, Pine Lake Town, and Pelican Town 1 Excludes Indian country located in each area, If any, unless otherwise spec1f1ed.


### • • • * §81.351 [Amended]
• 52. Section 81.351 is amendedby revising the table heading for "\-\Tvominu-SQ2 " to read "\Vvoming197.1**Sulf~r** Dioxide NAAQS ['Primary and Secondary)". §81.352 [Amended]
a 53. Section 81.352 is amendedby revising the table heading for "American Samoa-S02" to read "American Samoa-1971 SulfurDioxide NAAQS (Primary and Secondary)"'. § 81.353 [Amended]
• 54. Section 81.353 is amendedby revising the table heading for "GuamS02" to read "Guam-1971 Sulfur Dioxide NAAQS (Primary and Secondary)"'. § 81.354 [Amended]
a 55. Section 81.354 is amendedby revising the table heading for "Northern Mariana Islands-S02" to read "Northern Mariana Islands-1971 SulfurDioxide NAAQS {Primary and Secondary)". §81.355 [Amended]
a 56. Section 81.355 is amended by revising the table heading for "Puerto Rico-SOz" to read "Puerto Rico-1971 SulfurDioxide NAAQS (Primary and Secondary)". · §81.356 [Amended]
a 57. Section 81.356 is amendedby revising the table heading for "Virgin Islands-S0 2 " to read "Virgin Islands1971 SulfurDioxide NAAQS (Primary and Secondary)". [FR Doe. 2013-18fl35 Filed 8-2-13:8:45 am] BILUNG CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 300 [EPA-HQ-SFUND-200()-()003; FRL 9842-71 National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Direct Deletion of the Imperial Refining Company Superfund Site AGENCY: EnvironmentalProtection Agency. ACTION: Direct final rule. SUMMARY: TheEnvironmental Protection Agency {EPA) Region 6 is publishing a direct final Notice ofDeletion ofthe Imperial Refining Co. Superfund Site located in Ardmore, Carter County, Oklahoma, from the National Priorities List (NPL). The NPL, promulgated pursuant to section 105 ofthe Comprehensive Environmental Response, Compensation. and Liability Acl (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP}. This direct final deletion is being published byEPA with the concurrence ofthe State of Oklahoma. through the Oklahoma Department ofEnvironmental Quality (ODEQJ, because EPA has determined that all appropriate response actions under CERCLA, other than operation, maintenance, and five-year reviews havebeen completed. Hov·.rever, this deletion does not preclude future actions under Superfund. DATES: This direct final deletion is effective September 19. 2013 unless EPA receives adverse comments by September4, 2013. Ifadverse comments are received, EPA will publish a timely v ..,ithdrm

....ral ofthe direct final deletion in the Federal Register informing the public that the deletion will not take effect. Designation Date Type
1 0-4-13 Nonattainment.

ADDRESSES: Submityour comments, identifiedbvDocket ID No. EPA-HQSFUND-2000-0003. by one ofthe following methods: ·

• http:! !ww11'.regulations.gov:Follow internet on-line instructions for submittino comments.



### • Ema/l BrianV'll. :t'vfueller, mueller.brian@epa.gov.

• Fax: 214-665-6660. • j\tfail: BrianVV. Mueller; U.S. EnvironmentalProtection Agency, Region 6; Superfund Division {6SF-RA): 1445 Ross Avenue. Suite 1200:Dallas, Texas 75202-7167.

• Hand delhen.r: U.S. Environmental Protection Agenc)•. Region 6; 1445 Ross Avenue, Suite 700; Dallas, Texas 75202- 2733; Contact: Brian \V. Mueller {214) 665-7167. Such deliveries are onlv accepted during the Docket's nonrial hours ofoperation, and special arrangements should be made for deliveries ofboxed information.

Instructions:Direct your comments to Docket ID No. EPA-HQ-AFUND-2000- 0003. EPA·s policy is that all comments received ·will be included in the public docket '\Vithout change and maybe made available online athttp:// Wl1'1v.regulations.gmr, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information {CBI) or other information whose disclosure is restricted by statute. Do not submit information that)'ou consider to be CBI or othenvise protected through http:! I t1'11'1v.regulations.gov or email. The http:/lwH-'W.regulations.govV\leb site is an "anonymous access'' system, '\vhich means EPA '"'ill not know your identity or contact information unless you provide it in the body ofyour comment. Ifyou send an email comment directly to EPA ·without going through http:// www.regulations.gov, your email address will be automatically captured and included as part ofthe comment that is placed in the public docket and

# Electronic Filing - Recived, Clerk's Office: 10/0712013 Case: 13-295C9lRCUD 11

QcRuUmLeEn2 

### t:61. 1-1 Filed: 09/05/2013 Pages: 21

- DISCLOSURE STATEMEJ\.Tf (18 of 25) 

### Appellate CourtNo:------ ShortCaption: AmerenEnergy Resources Generating Companvv. U.S. Environmental Protection A encv eta!.

To enablethejudgesto determine whetherrecusal is necessary or appropriate, an attorney for a nongoven1illental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. 

### App. P. 26.1.

The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosurestatementmust befiled within21 daysofdocketing oruponthe filing ofa motion,response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to retlect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable 

### if this form. is used. [x] PLEASE CHECK I-IERE IF ANY INFORMATION ON THIS FORM IS 

### NeW OR REVISED Al\lD INDICATE WHICH INFORMATION IS NEW OR REVISED. (1) 

### The fullname ofeverypartythat the attorneyrepresents in the case 

### (ifthe partyis a CO!j)Oration, you mustprovidethe corporate disclosureiriJormationrequiredbyFed. R. 

### App. P 26.1 by completingitem#3):

. · AmerenEnergy Resources GeneratingCompany ("AERG")



### (2) Thenamesofall law firms whosepartners or associateshaveappearedfor thepartyin the case (including proceedil:tgs**i~1** 

### the district courtorbefore an admimstrativeagency) or are expected to appearfor the party 111 

### th1s court: SchiffHardin Ll.P

.



### (3) If

### thepartyor amicus is a corporation: i) 

### Identify all itsparentcorporations,ifany; and

AmerenEnergy Resources Company LLC ("AER"). Ameren Corporation is the parentof AER. 

### ii) list anypubliclyheld companythat owns 10% ormoreofthe party's or amicus' stock: AmerenCorporation is a publiclyheld company and O\H\S 100% ofthe membership interests in AER.

# c~' q
. , . Attorney's Signature:

## ·~~'vv~..._____, Date: September5.2013 Attorney's Prjnted Name: .1·'-'.l\>l1i"'ch'"a"'e'-l Szch"'o"w-'"alo;te"-r------------------------
Please indicate ifyou are Counsel ofRecord for the above listed parties pursuant to Circuit Rule 3(d). Yes _£ No
Address: SchiffHnrdin LLP 233 S. Wacker Dr. Ste. 6600

## EIBctronic Filing- RBcivBd, CIBrk's OfficB: 

# 10/07/2013**~c~h~ic~·g~o~5Lfstl ~~6r~$~3_-2_9_5_9** ___ D_o_c_u_m_e_n_t:_1_-1

______ F_il_e_d_:o_9_1o_5_1_20_1_3

____

### P_ag~e-s_:_2_1____

### ~(19of25) Phone Number:**_c(~'-''1=.~2)_:25""8"'·5""56!1..1**________ Fax Number: (312)**258~5600** E-lvfail Address: mshowalter@schiffhardin.com



### -2-

# Electronic Filing- Recived, Clerk's Office: 10/07/2013 Case: 13-2959 Document: 1-1 Filed: 09/05/2013 Pages: 21



### TN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT 

### AMERENENERGY RESOURCES GENERATING COMPAl\lY, Petitioner,
V. 

### U.S. ENVIRONMENTAL PROTECTION AGENCY and GINA MCCARTHY, ADMii'JISTRATOR, Respondents. Case No.

------

CERTIFICATE OF SERVICE 

### Ihereby certify that the foregoing Petition for Judicial Review and Rule 26.1 Statementhavebeenserved by first-class U.S. mail postageprepaidon this 5th day of September, 2013, uponeach ofthe following:
U.S. Environmental Protection Agency Correspondence Control Unit Office ofGeneral Counsel (2311) 1200 Pennsylvania Avenue, NW Washington, DC 20460 EricH. Holder,

## Jr. Attorney General U.S. DepartmentofJustice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 Lisa Bonnett Director IllinoisEnvironmental Protection Agency 1021 North Grand Avenue East Springfield, Illinois 62794-9276 Gina McCarthy Administrator (4101M) 

### U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460 The Honorable Pat Quinn Governor oflllinois 207 StateHouse Springfield, Illinois 62706
Julie Armitage Chief, Bureau ofAir lllinois Environmental Protection Agency 1021 North Grand AvenueEast Springfield, lllinois 62794-9276 (20 of 25)

# Electronic Filing - Recived. Clerk's Office: 10/0712013 Case: 13-2959 Document: 1-1

Alec Messina Executive Director Illinois Environmental Regulatory Group 215 

### East Adams Street Springfield, IL 62701

CH2\13489241.1

-2- 

### Filed: 09/05/2013 Pages: 21

. I 

## J. Mtchael Showalter 

### (21 of 

### 25)

# Electronic Filing

-Recived. Clerk's Office: 10/07/2013 Case: 13-2959 Document: 1-2 Filed: 09/05/2013 Pages: 2



### UNITED STATES COURT OF APPEALS FORTHE SEVENTH CIRCUIT

EverettMcKinleyDirksenUnitedStatesCourthouse Room 2722- 219 S. Dearborn Street Chicago, Il!inois 60604

September5, 2013 NOTICE OF CASE OPENING Office ofthe Clerk Phone: (312) 435-3850 www.ca7.uscourts.go\'

AMERENENERGY RESOURCES GENERATING COJ\1PANY, Petitioner No.: 13-2959 v. ENVIRONMENTAL PROTECTION AGENCY, etal., Respondents

.. 

## . Originating Case Information: • . Agency CaseNo: EPA-HQ-OAR-2012-0233 Environmental ProtectionAdministration Clerk/Agency Rep null Envirorunental Protection Agency Case date filed: 09/05/2013 Case type: ag/rvw Fee status: Due

The above-captioned appealhas been docketed in the United States CourtofAppeals for the Seventh Circuit.

Deadlines: Appea!No.
13-2959

13-2959 An1erenenergy Resources Generating Company

Environ1nental Protection Agency Document DueDate

Fee Due 09/19/2013

Agency record due 10/15/2013 (22 of 25)

# Electronic Filing- Recived. Clerk's Office: 10/0712013 Case: 

### 13-2959 Document: 

### 1-2 Filed: 09/05/2013 Pages: 2

13-2959 Gina McCarthy Agency record due 10/15/2013

NOTE:This notice is issued to counsel ofrecord, in h1rtherance of the re\·ised Circuit Rule 3(d), to providenecessary information regarding this appeal. Please verify this notice for accuracy. Counsel are encouraged to provide a fax and/or e-mail address to the court. Ifany corrections arenecessary, please indicate those corrections on this notice and return it to the Clerk's Office vl'ithin ten ('JO) days. THIS NOTICE SHALL NOT ACT AS A SUBSTITUTE FORMOTIONS FOR NON-INVOLVEMENT I SUBSTITUTION OF COUNSEL. COUNSEL ARE STILL REQUIRED TO FILE THE APPROPRIATE MOTIONS. Important Scheduling Notice! Noticesofhearing for particular appeals are mailed shortly before the date oforal argument. Criminal appeals are scheduled shortly after the filing of the appellant's mainbrief; civil appeals after the filing ofthe appellee'sbrief. Ifyou foresee that you 1-vill beunavailable during a period in which yourparticular appeal mightbe scheduled, please write the clerk advising him ofthe time period and the reason for such unavailability. Session data is located at http://www.ca7.uscourts.gov/cal/calendar.pdf. Once an appeal is formally scheduled for a certain date, itis very difficult to have the setting changed. See Circuit Rule 34(e).

form name: c7_Docket_Notice(form ID: 108) 

### (23 of 

### 25)

# Electronic Filing

-Recived, Clerk's Office: 10/07/2013 Case: 13-2959 

### Document: 1-3 Filed: 09/05/2013 Pages: 1



### UNITED STATES COURT OF APPEALS FORTHE SEVENTH CIRCUIT

EverettMcKinleyDirksenUnitedStatesCourthouse Room :;:722 * ::!19 5. Dearborn Street Chicago, Illinois 60604

September 5, 2013 

### AGENCY PETITION FOR REVIEW CASE OPENING COVER LETTER Office ofthe Clerk Phone: (312) 435-5850 www.ca7.uscourts.gov

AMERENENERGY RESOURCES GENERATING COMPANY, Petitioner No.: 13-2959 v. ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents Originating Caseinforrnation: 

## .... 

# .. .·•.·· ·. . . .··· . Agency Case No: EPA-HQ-OAR-2012-0233 Environmental Protection Administration .···

A petitionfor review of an order ofthe Environmental Protection Administration has been filed this dayin this courtin the above entitled cause, and a copy of said petition is herewith served upon you.

CC:

AviGarbow BharatMathur James Michael Showalter

form name: c7_Agency _PetRev _Cover Letter(form ID: 184) (24 

### of 25)

# Electronic Filing- Recived, Clerk's Office: 10/07/2013 Case: 13-2959 Document: 1-4 Filed: 09/05/2013 Pages: 1



### UNITED STATES COURT OF APPEALS FORTHE SEVENTH CIRCUIT

EverettMcKinleyDirksenUnitl>d StalesCourthouse Room :!712 • 119 S. Dearborn Street Chicago, Illinois 60604

AGENCY CIRCUIT RULE 3(b) FEE NOTICE September 5, 2013 Office ofthe Clerk Phone: (312) 435·5850 www.ca7.uscourls.goY

AMERENENERGY RESOURCES GENERATING COMPANY, Petitioner
No.: 13-2959 v. ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents OriginatingCase Information: ' 

## .... 

# ',,

...

### , . .·

### ..·. 

# .. ·

# ..... ·.
. ·· .·. 

# .. .. / 

# . Agency Case No: EPA-HQ-OAR-2012-0233 Environmental Protection Administration 

# .·'

CircuitRule 3(b) empowers the clerk to dismiss a petition for review ifthe docket fee is not paid within fourteen (14) days ofthe docketing ofthe petition for review. Tl1is petition for review was docketed and the fee has notbeen paid as ofSeptember5, 2013. Dependingon your situation, you should:

1. Paythe required $450.00 docketingfee to the Clerk ofthe CourtofAppeals. 2. File a motion to proceed on appeal in forma pauperiswith the Courtof Appeals. An original and three (3) copies ofthatmotion, with proofof service on your opponent, is required. This motion mustbe supported by an affidavit in the form of a sworn statement listing the assets and income of the petitioner(s). See Form 4 ofthe

### Appendix ofForms to the Federal Rules of Appellate Procedure.

Ifone ofthe above stated actions is nottaken, the petition for review will be dismissed.

form name; c7_Agency _Fee_Letter(fonn ID: 185) (25 of 25)