BEFORE
THE
UNITED
STATES
ENVIRONMENTAL
PROTECTION
AGENCY
IN
THE
MATTER
OF
)
)
Air
Quality
Designations
and
Classifications
)
for
the
Fine
Particles
(
PM­
2.5)
National
Air
)
Quality
Standards;
Final
Rule
)
)
[
RIN­
2060­
AM04]
and
)
Docket
No.
OAR
­
2003­
0061
)
Air
Quality
Designations
for
the
Fine
)
Particles
(
PM2.5)
National
Ambient
Air
)
Quality
Standards
­
Supplemental
Notice;
)
Final
Rule
 
Supplemental
Amendments
)

DYNEGY
MIDWEST
GENERATION,
INC.'
S
NOTICE
OF
SUBMISSION
OF
TYPOGRAPHICAL
CORRECTIONS
TO
PETITION
FOR
RECONSIDERATION
OF
EPA'S
PM­
2.5
NON­
ATTAINMENT
DESIGNATION
FOR
BALDWIN
TOWNSHIP,
ILLINOIS
On
June
13,
2005,
Dynegy
Midwest
Generation,
Inc.
("
DMG")
submitted
its
Petition
for
Reconsideration
(
Document
ID
OAR­
2003­
0061­
0721)
with
respect
to
specific
portions
of
the
Environmental
Protection
Agency's
("
EPA's")
final
rule
published
January
5,
2005,
70
Fed
Reg.

944,
as
modified
by
the
supplemental
notice
published
April
14,
2005,
70
Fed.
Reg.
19843.

Those
two
notices,
in
combination,
purported
to
designate
Baldwin
Township
as
a
nonattainment
area
for
PM2.5.

DMG's
Petition
for
Reconsideration
contained
two
typographical
errors
in
its
description
of
the
NOx
and
PM
emission
limits
found
on
page
6.
Specifically,
the
emission
limits
contained
incorrectly­
placed
decimal
points.
DMG
hereby
submits
a
corrected
Petition
for
Reconsideration
(
without
Exhibits).
2
Respectfully
submitted,

/
s/

Paul
E.
Gutermann
David
H.
Quigley
Charles
L.
Franklin
Akin
Gump
Strauss
Hauer
&
Feld
LLP
1333
New
Hampshire
Avenue,
N.
W.
Washington,
D.
C.
20036
(
202)
887­
4000
Counsel
for
Petitioner,
Dynegy
Midwest
Generation,
Inc.

August
10,
2005
BEFORE
THE
UNITED
STATES
ENVIRONMENTAL
PROTECTION
AGENCY
IN
THE
MATTER
OF
)
)
Air
Quality
Designations
and
Classifications
)
for
the
Fine
Particles
(
PM­
2.5)
National
Air
)
Quality
Standards;
Final
Rule
)
)
[
RIN­
2060­
AM04]
and
)
Docket
No.
OAR
­
2003­
0061
)
Air
Quality
Designations
for
the
Fine
)
Particles
(
PM2.5)
National
Ambient
Air
)
Quality
Standards
­
Supplemental
Notice;
)
Final
Rule
 
Supplemental
Amendments
)

PETITION
OF
DYNEGY
MIDWEST
GENERATION,
INC.
FOR
RECONSIDERATION
OF
EPA'S
PM­
2.5
NON­
ATTAINMENT
DESIGNATION
FOR
BALDWIN
TOWNSHIP,
ILLINOIS
Pursuant
to
Section
553
of
the
Administrative
Procedure
Act,
5
U.
S.
C.
§
553(
e),

Dynegy
Midwest
Generation,
Inc.
("
DMG")
respectfully
submits
this
Petition
for
Reconsideration
with
respect
to
specific
portions
of
the
Environmental
Protection
Agency's
("
EPA's")
final
rule
published
January
5,
2005,
70
Fed
Reg.
944,
as
modified
by
the
supplemental
notice
published
April
14,
2005,
70
Fed.
Reg.
19843.
These
two
notices,
in
combination,
purport
to
designate
Baldwin
Township
as
a
nonattainment
area
for
PM2.5.1
For
the
reasons
specified
below,
EPA
incorrectly
designates
Baldwin
Township
as
a
nonattainment
area
for
PM2.5
and
should
issue
a
revised
designation
finding
the
Township
to
be
in
attainment.
Such
a
revised
designation
is
warranted
based
upon
the
correct
application
of
EPA's
1
DMG
filed
a
Petition
for
Review
of
the
January
5
Rulemaking,
which
designated
Baldwin
Village
as
being
in
nonattainment,
in
both
the
7th
Circuit
and
the
District
of
Columbia
Circuit
Courts
of
Appeals
on
March
3,
2005.
By
Order
dated
May
26,
2005,
the
7th
Circuit
transferred
the
case
before
it
to
the
D.
C.
Circuit.
The
Supplemental
Notice
contained
a
"
technical
correction"
that
revised
the
nonattainment
designation
boundary
to
cover
Baldwin
Township
instead
of
Baldwin
Village.
70
Fed.
Reg.
19843,
19848.
For
the
reasons
contained
herein,
this
petition
seeks
reconsideration
of
the
nonattainment
designation
of
Baldwin
Township.
2
own
designation
guidance
(
both
as
published
and
as
applied
to
other
similarly
situated
counties)

and
is
supported
by
a
recent
Consent
Decree
between
EPA
and
DMG
that
materially
and
permanently
reduces
emissions
from
the
Township.
In
the
alternative,
DMG
respectfully
requests
that
EPA
issue
a
revised
designation
for
Baldwin
Township
as
unclassifiable
pending
completion
of
additional
analysis
of
transport
resulting
from
the
Township's
emissions.

I.
EPA'S
INITIAL
DESIGNATION
OF
BALDWIN
TOWNSHIP
AS
NONATTAINMENT
WARRANTS
REVIEW
AS
IT
RELIED
UPON
THE
APPLICATION
OF
NINE
CRITERIA
PUBLISHED
WITHOUT
NOTICE
OR
COMMENT
TO
INADEQUATE
AND
INCORRECT
DATA.

Under
the
Clean
Air
Act,
EPA
maintains
two
avenues
through
which
to
designate
an
area
as
nonattainment
for
a
specific
criteria
pollutant.
The
Agency
can
make
such
a
designation
based
on
either
(
1)
a
failure
of
the
area
itself
to
meet
the
applicable
NAAQS
standards;
or
(
2)
the
area's
contribution
to
ambient
air
quality
in
another
area
that
fails
to
meet
the
NAAQS.
2
In
this
case,

EPA
relies
upon
the
second
ground
to
support
designating
a
portion
of
Randolph
County
as
nonattainment
for
PM2.5.

In
so
doing,
EPA
ostensibly
relied
upon
nine
criteria
for
determining
whether
one
area
"
contributes"
to
nonattainment
in
nearby
areas:

1.
Emissions
in
areas
potentially
included
versus
excluded
from
the
nonattainment
area;

2.
Air
quality;

3.
Population
density
and
degree
of
urbanization;

4.
Traffic
and
commuting
patterns;

5.
Expected
growth
(
including
extent,
pattern
and
rate
of
growth);

6.
Meteorology
(
weather/
transport
patterns);

2
Id.
at
§
7407(
d)(
1)(
A).
3
7.
Geography/
topography
(
mountain
ranges
or
other
air
basin
boundaries);

8.
Jurisdictional
boundaries
(
e.
g.,
counties,
air
districts,
Reservations,
etc.);
and
9.
Level
of
control
of
emission
sources.
3
Despite
its
widespread
use
of
these
criteria,
EPA
has
never
undertaken
notice
and
comment
rulemaking
that
would
test
their
validity,
relying
merely
instead
on
several
guidance
documents.
Moreover,
EPA's
January
5,
2005,
rule
acknowledges
that
the
specific
weighting
of
these
factors
remains
a
black
box
to
which
only
EPA
holds
the
key.
4
In
short,
EPA
guidance
does
not
provide
any
reliable
indication
for
states,
regulated
parties,
or
reviewing
courts
of
how
the
Agency
applies
the
factors.
Not
surprisingly
then,
and
for
the
reasons
delineated
below,
EPA's
specific
application
of
the
factors
to
Baldwin
Township
appears
arbitrary,
capricious,
an
abuse
of
discretion
and
otherwise
not
in
accordance
with
law.

In
such
circumstances,
Section
553
of
the
Administrative
Procedure
Act
("
APA")

provides
that
"[
e]
ach
agency
shall
give
an
interested
person
the
right
to
petition
for
the
issuance,

amendment,
or
repeal
of
a
rule."
5
Pursuant
to
that
requirement:

EPA
is
required
to
give
reasoned
responses
to
all
significant
comments
in
a
rulemaking
proceeding.
This
requirement
is
all
the
more
urgent
when
an
agency
has
perforce
not
followed
usual
"
notice
and
comment"
rulemaking
procedures,
but
has
promulgated
"
final"
rules
without
a
prior
period
for
taking
comments
from
interested
parties.
6
EPA
is
required
to
provide
the
public
with
an
opportunity
for
public
comment
on
actions
it
takes
under
the
Clean
Air
Act
("
CAA"
or
the
"
Act")
such
as
those
at
issue
here.
Moreover,
to
make
3
See
EPA
Memorandum
dated
April
1,
2003
from
Jeffrey
Holmstead
to
Regional
Administrators,
Designations
for
the
Fine
Particle
National
Ambient
Air
Quality
Standards,
Attachment
2:
Guidance
on
Nonattainment
Area
Designations
for
PM2.5
("
Nonattainment
Boundary
Guidance"),
at
7
(
April
1,
2003),
available
at:
http://
www.
epa.
gov/
pmdesignations/
documents/
pm25_
desig_
guidance_
final.
pdf.

4
70
Fed.
Reg.
at
947­
948.

5
5
U.
S.
C.
§
553(
e).

6
PPG
Industries,
Inc.
v.
Costle,
630
F.
2d
462,
466
(
6th
Cir.,
1980)
(
internal
citations
omitted).
4
such
public
comment
meaningful,
EPA
must
not
only
review
such
comments,
but
it
also
must
act
on
data
provided
therein
in
revising
its
previously­
promulgated
rulemakings.
Absent
such
a
commitment,
the
review
process
would
be
an
empty
exercise.
7
As
DMG
shows
below,
EPA
cannot
designate
any
portion
of
Randolph
County
as
nonattainment
consistent
with
the
locallyapplicable
facts
and
EPA's
own
guidance,
and
so
must
revise
its
previously
promulgated
designation
of
the
Baldwin
Township.

II.
A
REVIEW
OF
EPA'S
INITIAL
NONATTAINMENT
DESIGNATION
SHOWS
RANDOLPH
COUNTY,
AND
THUS
BALDWIN
TOWNSHIP,
SHOULD
NOT
BE
INCLUDED
IN
THE
ST.
LOUIS
NONATTAINMENT
AREA.

A.
Federally­
Enforceable
Emissions
and
Emissions
Rates
Limits
Filed
by
EPA
and
DMG
Place
Baldwin
Township
in
Attainment,
and
It
Should
Be
Classified
as
Such.

Before
EPA
made
its
initial
nonattainment
designation,
DMG
presented
to
EPA
existing
data
showing
that
Randolph
County
(
or
Baldwin
Township)
was
not
a
contributing
area
under
EPA's
9­
factor
criteria,
largely
as
a
result
of,
among
other
factors,
a
90%
reduction
in
SO2
emissions
and
a
65%
reduction
in
NOx
emissions
from
Baldwin
Township
between
1999
and
2000.8
Viewing
the
emissions
data
as
a
whole,
EPA
conceded
that
the
"
the
Baldwin
plant
[
had]

recently
reduced
its
emissions
significantly"
and
that
emissions
from
Baldwin
were
only
"
moderately
high."
9
Nevertheless,
EPA
determined
that
Baldwin
Township
should
be
classified
7
Indeed,
EPA's
Supplemental
Notice
acknowledges
that
the
Agency
can
withdraw
its
initial
designation
and
issue
a
revised
initial
designation,
even
after
the
promulgation
of
the
rule,
where
EPA
determines,
as
the
result
of
additional
data
or
information
provided
through
a
petition
for
rehearing
filed
during
the
rulemaking
process,
that
there
may
be
grounds
for
revising
the
initial
designation.
See
70
Fed
Reg.
944,
969.

8
See
Letter
from
G.
Hickey,
DMG,
to
B.
Mathhur,
EPA,
Region
V
("
DMG
Comments")
(
Aug.
25,
2004)
(
Exhibit
A).
DMG
also
demonstrated,
citing
EPA's
own
data,
that
the
specific
species
of
pollutants
originating
from
Baldwin
Township
were
distinguishable
from
the
vast
majority
of
urban
excess
PM2.5
in
the
metropolitan
St.
Louis
area.
For
the
Agency's
reference,
DMG
has
enclosed
an
updated
version
of
this
analysis
using
2004
data
("
DMG
Updated
Comment
Analysis")(
Exhibit
B).

9
EPA,
Technical
Support
Document
for
State
and
Tribal
Air
Quality
Fine
Particle
("
PM2.5)
Designations,
("
TSD"),
at
6­
257
(
Dec.
2004).
Indeed,
EPA
had
given
credence
to
these
same
significant
reductions
in
its
5
as
nonattainment
despite
this
record,
largely
ignoring
the
nine
criteria
EPA
had
established
for
making
these
determinations,
because
DMG
"
did
not
indicate
whether
these
emission
reductions
are
enforceable
or
how
much
potential
exists
for
further
emission
reductions
at
this
facility
such
as
annual
operation
of
its
NOx
emission
controls."
10
Since
EPA's
initial
determination,
however,
both
seemingly
dispositive
(
from
EPA's
perspective)
criticisms
have
been
resolved
 
all
the
emissions
decreases
DMG
urged
EPA
to
consider,
along
with
further
systemwide
decreases,
are
now
embodied
in
a
federally­
enforceable
consent
decree
that
requires
DMG
to
seek
to
have
these
requirements
included
in
the
Title
V
permit
for
the
Baldwin
plant.
In
addition,
DMG
is
demonstrating
through
its
actions
its
commitment
to
continue
investment
in
state­
of­
the­
art
pollution
control
technology
at
Baldwin
and
its
other
energy
facilities.

On
May
27,
2005,
the
United
States
District
Court
for
the
Southern
District
of
Illinois
entered
a
consent
decree
between
DMG
and
the
United
States
that
makes
federally
enforceable
the
emission
limits
for
the
precursors
of
PM2.5
emitted
by
the
Baldwin
plant.
11
The
Consent
Decree
provides
for
extensive
emissions
rate
reductions
at
the
Baldwin
Energy
Complex
as
well
as
region­
wide
emissions
caps
applicable
to
the
Baldwin
Energy
Complex
and
other
DMG
power
facilities
in
Southern
Illinois.
12
In
entering
the
decree,
the
Court
specifically
found
that
it
determination
that
the
entirety
of
Randolph
County,
including
Baldwin
Township,
be
designated
attainment
for
8­
hour
ozone.
See
EPA,
Office
of
Air
Quality
Planning
and
Standards,
Technical
Support
for
State
and
Tribal
Air
Quality
Designations
and
Classifications,
at
3­
94
(
April
2004)
("
Randolph
County's
59,710
tpy
NOx
represents
the
county's
1999
base
year
inventory.
The
vast
majority
of
NOx
emissions
in
Randolph
County
come
from
the
Baldwin
power
plant,
which,
as
of
2001,
has
reduced
NOx
emissions
to
29,389
tpy
by
installing
controls.").

10
Id.

11
See
United
States
v.
Illinois
Power
Company,
No.
99­
833­
MJR,
Consent
Decree
("
Consent
Decree")
(
S.
D.
Il.,
lodged
March
7,
2005)
(
Exhibit
C).

12
DMG
operates
five
coal­
fired
power
plants
in
the
Southern
Illinois
area,
including
the
Baldwin
Energy
Complex
in
Randolph
County,
the
Havana
Generating
Station
in
Putman
County,
the
Hennepin
Generating
Station
6
"
serves
the
public
interest
in
achieving
substantial
environmental
benefits
and
amelioration
of
the
harmful
effects
of
air
pollution."
13
Some
of
the
primary
terms
of
the
decree
are
summarized
below:

 
SO2
Controls.
DMG
will
install
flue
gas
desulfurization
devices
("
FGDs")
on
the
three
Baldwin
Units
as
well
as
Unit
6
of
its
Havana
facility.
Together,
the
units
receiving
these
state­
of­
the­
art
controls
account
for
70
percent
of
DMG's
coal­
fired
system
capacity.
DMG
will
also
limit
SO2
emissions
from
its
other
six
units
so
as
to
maintain
a
30­
day
rolling
average
emission
rate
of
not
greater
than
1.2
lb/
mmBTU
SO2
on
each
unit.
Finally,
DMG
will
adhere
to
a
system­
wide
tonnage
cap
for
SO2
that
ratchets
down
over
time
and
will
surrender
certain
SO2
allowances
from
its
annual
allocation
under
the
Clean
Air
Act's
Title
IV
Acid
Rain
Program.
In
total,
DMG
has
committed
to
reduce
SO2
emissions
by
approximately
39,500
tons
per
year
from
2003
levels
on
a
system­
wide
basis.
14
 
NOX
Controls.
DMG
will
operate
selective
catalytic
reduction
devices
("
SCRs")
on
Baldwin
Units
1
and
2
on
a
year­
round
basis
and
ensure
that
the
Complex
as
a
whole
meets
an
emission
rate
of
.100
lbs/
mmBTU
(
the
emission
rate
that
corresponds
with
operation
of
SCR­
controlled
units).
By
2007,
DMG
will
also
trend
down
its
system­
wide
NOX
emissions
to
meet
system­
wide
caps
set
by
the
Consent
Decree
and
maintain
those
levels
thereafter.
In
total,
the
Government
has
estimated
that
the
enforceable
Consent
Decree
will
reduce
NOX
emissions
by
14,835
tons
per
year
from
2003
levels.

 
PM
Controls.
DMG
will
install
a
baghouse
on
all
three
Baldwin
Units
and
comply
with
strict
emissions
limits
of
.015
lb/
mmBTU
PM.
DMG
will
also
install
a
baghouse
at
its
Havana
Unit
6
and
make
additional
capital
improvements
at
other
facilities
in
its
Southern
Illinois
system
to
bring
PM
emission
levels
to
.030
lb/
mmBTU,
a
level
EPA
"
considers
to
be
a
good
level
of
control."
15
in
Vermillion
County,
and
the
Wood
River
Generating
Station
in
Madison
County.
Together,
these
facilities
provide
3,375
MW
of
production
capacity.
While
some
of
the
provisions
of
the
Consent
Decree
involve
potential
emissions
reductions
to
other
facilities
besides
the
Baldwin
Energy
Complex,
DMG
would
expect
that
even
these
investments
have
the
potential
to
improve
air
quality
in
St.
Clair
County
and
other
areas
of
the
St.
Louis
nonattainment
area
by
reducing
the
impact
of
regional
emissions.

13
United
States
v.
Illinois
Power
Company,
No.
99­
833­
MJR,
Memorandum
and
Order
(
S.
D.
Il.
May
27,
2005)
at
4­
5
(
Exhibit
D).

14
These
estimates
are
those
calculated
by
the
United
States
in
its
motion
to
enter
the
decree
filed
with
the
Court.

15
See
United
States
v.
Illinois
Power
Company,
No.
99­
833­
MJR,
U.
S.
Motion
for
Entry
of
Consent
Decree
(
S.
D.
Il.
filed
April
27,
2005),
at
8
(
Exhibit
E).
7
 
Supplemental
Environmental
Projects.
DMG
is
also
funding,
as
part
of
the
enforceable
consent
decree,
several
supplemental
environmental
projects
aimed
at
improving
energy
efficiency,
reducing
energy
demand,
or
reducing
fine
particulate
matter
within
the
St.
Louis
metropolitan
areas.

These
provisions
of
the
Consent
Decree
vitiate
completely
the
basis
on
which
EPA
determined
that
a
portion
of
Randolph
County
contributed
to
nonattainment
in
the
St.
Louis
metropolitan
area.
DMG's
commitment
to
make
major
investments
in
pollution
control
equipment
at
the
three
Baldwin
units
also
addresses
any
concern
EPA
may
have
had
that
DMG
may
not
yet
have
taken
best
efforts
to
minimize
its
emissions.
Given
this
fundamental
change
of
circumstances,
EPA
should
acknowledge
that
the
primary
basis
on
which
it
designated
Baldwin
Township
as
being
nonattainment
has
been
removed
and
that
the
St.
Louis
nonattainment
area
designation
should
be
revised
to
exclude
Baldwin
Township.

B.
Even
in
the
Absence
of
the
Federally­
Enforceable
Emissions
and
Emissions
Rate
Limits,
Application
of
the
Nine
Factors
Does
Not
Support
a
Nonattainment
Designation
for
Baldwin
Township.

1)
EPA
Applied
Only
Three
of
the
Nine
Factors,
and
Applied
Those
Factors
Incorrectly,
Resulting
in
an
Unlawful
Designation
of
Nonattainment
for
Baldwin
Township.

Even
assuming,
arguendo,
the
validity
of
the
nine
factors
put
forth
by
EPA
as
relevant
to
making
boundary
determinations,
EPA
cites
only
three
to
support
extending
the
Metro
East/
St.

Louis
nonattainment
area
boundary
to
include
portions
of
Randolph
County.
16
As
described
below,
however,
EPA's
analysis
of
even
these
factors
fails
to
support
its
designation
of
Nonattainment
for
the
Baldwin
Township,
and
EPA
should
now
revise
that
classification
to
"
Attainment."

16
These
include
EPA's
contentions
that:
1)
the
County's
emissions
were
"
moderately
high;"
2)
the
County's
emissions
were
"
located
where
winds
would
commonly
blow
the
emissions
toward
the
observed
violations;"
and
3)
the
State
failed
to
indicate
whether
DMG's
"
significant"
emissions
reductions
were
enforceable
or
whether
there
existed
potential
for
further
reductions
at
the
Baldwin
Energy
Complex.
Id.
8
The
first
factor
EPA
applied
(
Factor
1)
required
the
Agency
to
examine
"
emissions
in
areas
potentially
included
versus
excluded
from
the
nonattainment
area."
To
compare
the
impact
or
contribution
of
a
given
area's
emissions,
EPA
develops
a
standardized
number
referred
to
as
the
"
composite
emission
score"
or
weighted
emissions
score.
17
In
theory,
such
a
weighting
process
should
increase
the
consistency
and
rationality
of
EPA's
decisionmaking.
In
this
case,

however,
EPA's
determination
with
respect
to
Randolph
County
is
facially
inconsistent
with
determinations
made
in
many
other
counties
similarly
situated
adjacent
to
nonattainment
areas.

EPA's
inconsistency
in
its
analysis
renders
its
nonattainment
designation
invalid,
as
described
herein.

EPA
calculated
that
Randolph
County's
composite
emissions
score
was
8.9.18
In
the
case
of
Randolph
County,
EPA
determined
that
such
a
score
constituted
"
moderately
high
emissions"

adequate
to
"
contribute"
to
the
ambient
air
quality
in
the
St.
Louis
metropolitan
area
and
render
Randolph
County
a
nonattainment
area.
19
As
shown
in
Table
1
below,
however,
out
of
sixteen
other
counties
bordering
a
nonattainment
area,
EPA
declined
to
find
a
similar
"
contribution
"

despite
the
fact
that
eight
had
higher
composite
emissions
scores
than
Randolph
County.
EPA
designated
these
sixteen
counties,
all
of
which
included
a
power
plant,
as
attainment,
despite
the
fact
that
of
the
sixteen,
seven
released
more
SO2,
five
contributed
more
particulate
matter,
and
twelve
contributed
larger
quantities
of
organic
carbon
emissions
than
Randolph
County.
20
17
TSD
at
5­
1.

18
TSD
at
6­
258.

19
See
id.
at
6­
257.

20
Id.
The
inconsistency
of
Randolph
County's
nonattainment
designation
with
EPA's
designations
of
other
similarly
situated
Counties
is
not
limited
to
EPA's
treatment
of
emissions
data.
Of
the
sixteen
other
powerplant
containing
border
counties
listed
in
Table
1,
all
designated
as
attainment,
eight
had
larger
population
impacts,
fifteen
had
higher
projected
population
growth
patterns,
twelve
counties
had
higher
impacts
from
vehicle
miles
traveled,
and
six
had
higher
numbers
of
out­
of­
county
commuters.
Id.
9
Table
1
 
Comparison
of
Randolph
County
with
Other
Counties
Adjacent
or
Near
to
Nonattainment
Areas.
21
EPA
cannot
reasonably
implement
its
guidance
in
such
a
way
that
counties
with
similar
emissions
impacts
trigger
diametrically
opposite
contribution
determinations.
Such
inconsistency
is
particularly
problematic
where,
as
with
Randolph
County,
the
emissions
levels
and
impacts
are
the
primary
basis
by
which
EPA
supports
its
decision.

21
Data
drawn
from
EPA,
PM2.5
Designations
Data
Spreadsheet,
June
14,
2004,
Docket
No.
OAR­
2003­
0061­
524.
MSA/
Region
Design
Value
Emission
Score
SO2
PM2.5
NOx
Carbon
Pop./
Grpwth
Commu.
#/
Percent
VMT
Randolph
County,
IL
St.
Louis
12.4
8.9
23984
2677
33,023
559
33641
­
2%
2738
20%
278
Sangamon
County,
IL
St.
Louis
13.3
8.7
16411
3837
19,811
900
190630
+
6%
231
0%
1738
Montgomery
County,
IL
St.
Louis
No
monitor
7.6
38079
3133
18,254
625
30528
0%
610
5%
277
St.
Genevieve
County,
MO
St.
Louis
13.6
2.7
3666
1308
7315
255
487
+
3%
N/
A
1748
Daviess
County,
KY
Evansville
14.9
24.2
9134
2179
21627
666
91694
+
5%
1567/
4%
813
Webster
County,
KY
Evansville
20.8
N/
A
19021
2976
15934
551
14079
+
1%
1653/
27%
119
Preston
County,
WV
Marion
No
monitor
17.4
21864
1715
6528
465
29460
­
5%
177/
1%
294
Etowah
County,
AL
Birmingham
14.8
9.9
11,850
2193
8487
767
103105
+
4%
42636/
25%
1235
Carroll
County,
KY
Cincinnati­
Hamilton
No
monitor
10.3
53086
3547
26269
821
10223
12%
327
7%
213
Mason
County,
KY
Cincinnati­
Hamilton
No
monitor
7.0
38142
2316
16071
562
16916
0%
757
10%
178
Pulaski
County,
KY
Lexington
No
monitor
56.8
24156
2403
10996
732
57160
+
11%
429
2%
661
Cleveland
County,
NC
Hickory­
Morgantown­
Lexington
No
monitor
11
1261
1258
4875
585
97960
+
9%
1395
3%
1125
Rutherford,
County,
NC
Hickory­
Morgantown­
Lexington
No
monitor
17
30023
2332
12135
786
63287
+
8%
1327
5%
606
Jasper
County,
IN
Chicago­
Gary­
Lake
County
No
monitor
5.2
34435
2744
23020
668
30815
+
6%
3985
29%
722
La
Porte
County,
IN
Chicago­
Gary­
Lake
County
No
monitor
3.3
10974
2670
19681
826
110364
+
2%
7657
15%
1536
Kenosha
County,
WI
Chicago­
Gary­
Lake
County
11.9
5.4
33122
2209
27469
770
154433
­
1%
20506
28%
1228
Henderson
County,
KY
Evansville
14.8
10.7
6308
1518
8075
418
44995
+
3%
3794
18%
510
10
The
second
factor
EPA
applied
(
Factor
6)
required
the
Agency
to
examine
"
meteorology
(
weather/
transport
patterns)."
In
so
doing,
EPA
ignored
the
explicit,
region­
specific
counsel
of
the
State
of
Illinois,
which
advises
that
meteorological
factors
are
not
a
reliable
mechanism
for
designating
outlying
counties
for
purposes
of
classifying
the
Chicago
or
St.
Louis
metropolitan
areas.
22
Even
if
meteorology
in
the
area
were
a
reliable
tool,
however,
EPA
misapplies
it
with
respect
to
the
Baldwin
Township.

EPA
suggested
that
winds
"
commonly
blow"
toward
the
observed
violation
in
the
adjacent
St.
Clair
County,
situated
Northwest
of
the
facility,
in
making
its
nonattainment
designation.
23
Yet,
EPA's
own
analysis
demonstrates
that
for
both
St.
Clair
County
(
the
closest
nonattainment
monitor)
and
Randolph
County,
the
wind
is
no
more
likely
to
blow
towards
the
Northwest
than
it
is
to
blow
to
the
Southwest
or
Northeast.
24
EPA
measures
the
likelihood
of
the
wind
blowing
in
any
particular
direction
using
a
spread
of
ranges,
as
shown
in
Table
2.
For
Randolph
County,
EPA
estimated
that
the
likelihood
of
the
wind
blowing
into
any
given
quadrant
ranged
from
15%
to
29%.
Notwithstanding
the
relatively
small,
statistically
insignificant
probabilities,
EPA
concluded
that
these
data
sufficed
to
show
a
pattern.
As
shown
in
Table
2,
moreover,
EPA
failed
to
see
a
similar
pattern
(
and
thus
labeled
as
"
attainment")
the
nearby
air
shed
of
Chicago­
Northwest
Indiana
despite
the
much
higher
likelihood
of
wind
blowing
in
any
given
quadrant
(
ranging
from
17%
to
38%).
25
There,

22
State
of
Illinois
Submission
to
EPA
at
3.

23
See
TSD
at
6­
257.

24
See
id.
at
6­
260.

25
TSD
at
6­
268.
11
EPA
concluded
that
"[
t]
he
wind
data
presented
.
.
.
shows
no
dominant
wind
direction
for
Northwest
Indiana."
26
Table
2
­
Examples
of
EPA's
Inconsistent
Interpretation
of
Meteorological
Data
NW
SW
SE
NE
EPA's
Interpretation
of
the
Data
Randolph
County,
IL
28%
28%
29%
15%
"
Emissions
are
located
where
winds
would
commonly
blow
the
emissions
toward
the
observed
violations."
27
Lake
County,
IN
25%
38%
17%
19%
Porter
County,
IN
25%
38%
18%
19%
"
The
wind
data
presented
below
shows
no
dominant
wind
direction
for
Northwest
Indiana."
28
EPA's
interpretation
of
weather
data
for
Lake
and
Porter
Counties
cannot
be
reconciled
with
its
treatment
of
weather
data
in
Randolph
County.
If
anything,
based
on
the
wind
data
cited
by
EPA
for
the
designation
rule,
the
wind
patterns
in
and
around
Randolph
and
St.
Clair
County
show
less,
not
more,
of
a
dominant
wind
direction
than
do
the
wind
patterns
in
Northwest
Indiana.
Just
as
EPA
declined
to
draw
inferences
from
wind
patterns
in
Northwest
Indiana,
it
should
decline
to
do
so
in
the
St.
Louis
metropolitan
area.

The
third
and
final
factor
EPA
applied
(
Factor
9)
requires
the
Agency
to
examine
the
"
level
of
control
of
emission
sources."
Notwithstanding
the
significant
emissions
reductions
DMG
had
made
during
the
recent
past,
and
ignoring
the
federally­
enforceable
limits
described
above,
EPA
argued
in
designating
Baldwin
Township
as
nonattainment
that
the
Agency
lacked
evidence
as
to
whether
and
to
what
extent
further
emissions
control
reductions
were
possible
at
the
facility.
29
EPA's
reliance
on
this
factor
is
misplaced.
Even
before
EPA
and
DMG
entered
into
the
Consent
Decree,
DMG
had
made
dramatic
improvements
in
the
emissions
from
the
26
Id.
at
6­
263.

27
Id.
at
6­
257.

28
Id.
at
6­
263.

29
Id.
at
6­
257.
12
Baldwin
Energy
Complex,
including
investments
in
additional
pollution
control
technology
to
reduce
NOx
emissions.
30
Specifically,
during
the
final
quarter
of
1999
and
the
end
of
the
first
quarter
of
2000,
the
Baldwin
Energy
Complex
transitioned
from
high­
sulfur
coal
to
an
alternative
fuel,
Powder
River
Basin
("
PRB")
Coal.
DMG
also
installed
additional
equipment
for
the
control
of
nitrogen
oxides
emissions
at
the
facility,
including
Overfire
Air
systems
on
Baldwin
Units
1,
2,
and
3,
and
Selective
Catalytic
Reduction
("
SCR")
Systems
on
Baldwin
Units
1
and
2.
These
changes
led
to
significant
emissions
reductions
at
Baldwin
for
both
SO2
and
NOX.
31
EPA
itself
has
acknowledged
that
the
changes
had
produced
significant
reductions
in
these
pollutants.
32
This
acknowledgement
of
the
facility's
65­
90
percent
reduction
in
emissions
should
translate
to
a
finding
of
reduced
contribution
and
a
designation
of
attainment.
33
2)
Correctly
Applying
the
Remaining
Factors
Confirms
That
the
Proper
Designation
of
Baldwin
Township
Is
Attainment.

It
is
not
surprising
that
EPA's
justification
for
the
Randolph
County
designation
relied
so
heavily
on
only
three
of
EPA's
criteria.
A
balanced
application
of
all
nine
of
the
EPA's
criteria,

however,
shows
that
the
County's
partial
nonattainment
designation
should
be
revised
to
be
attainment.

30
See
Consent
Decree
at
3.

31
See
id.

32
Indeed,
if,
as
EPA
asserts,
the
Baldwin
Energy
Complex
was
contributing
significantly
to
PM2.5
NAAQS
violations,
the
ambient
monitors
in
the
supposedly
affected
areas
would
be
expected
to
show
analogous
reductions
in
PM2.5
as
a
result
of
the
"
significant
reductions"
Baldwin
had
made.
In
fact,
ambient
air
quality
monitors
within
St.
Clair
County
and
elsewhere
failed
to
register
any
significant
change
in
measured
PM­
related
pollutant
levels.
Similarly,
between
2000
and
2003,
during
a
period
when
emission
levels
for
PM
and
PM
precursors
at
the
Baldwin
Energy
Facility
remained
steady,
PM2.5
concentrations
steadily
fell
at
many
of
the
closest
monitors.
See
DMG
Comments
at
Attachment
2;
see
also
DMG
Updated
Comment
Analysis
at
3.

33
See
Consent
Decree
at
3.
Indeed,
EPA's
only
guidance
regarding
what
it
means
by
"
level
of
emission
control"
is
a
circular
reference
to
"[
t]
he
level
of
control
analysis
looks
at
the
emission
controls
currently
implemented
in
each
area."
TSD
at
5­
3.
13
i)
Air
Quality
Monitoring
Trends
in
Randolph
County
Place
It
Well
Below
the
NAAQS
and
the
Design
Values
of
Other
Counties
In
or
Around
the
St.
Louis
Metropolitan
Area.

"
Air
quality
in
potentially
included
versus
excluded
areas"
is
one
relevant
factor
cited
by
EPA.
34
EPA
measures
this
metric
using
each
area's
"
design
value,"
a
statistic
that
describes
the
air
quality
status
of
a
given
area
relative
to
the
level
of
the
NAAQS.
35
Design
values
above
15
indicate
that
the
3­
year
average
of
a
monitoring
site's
annual
mean
concentration
exceeds
the
15.0
µ
g/
m3
(
micrograms
per
cubic
meter)
NAAQS.
36
EPA
measured
the
design
value
for
the
Randolph
County
monitoring
site
as
12.4
µ
g/
m3,

well
below
the
15.0
µ
g/
m3
PM2.5
NAAQS
standard
and
the
design
values
of
other
areas
within
the
actual
St.
Louis
metropolitan
area.
37
The
Randolph
County
design
value
is
also
considerably
lower
than
that
of
the
two
attainment
counties
cited
by
EPA
that
are
near
or
adjacent
to
the
St.
Louis
SMA.
38
Not
only
has
Randolph
County
consistently
met
EPA's
NAAQS
for
PM2.5,

IEPA's
monitoring
site
in
Randolph
County
has
the
lowest
PM2.5
design
value
of
any
monitor
in
all
of
Illinois.
39
34
Nonattainment
Boundary
Guidance
at
7.

35
TSD
at
5­
1.
See
also
EPA,
Design
Values,
available
at
http://
www.
epa.
gov/
airtrends/
values.
html.

36
EPA,
Air
Quality
Data
Update,
2001­
2003
PM2.5
Air
Quality
Data
(
2/
1/
2005),
available
at
http://
www.
epa.
gov/
airtrends/
pdfs/
pm25aqupdate2005feb03.
pdf.

37
See
TSD
at
6­
258
(
citing
the
following
design
values
for
counties
within
the
2003
St.
Louis
SMSA:
Madison
­
17.5
µ
g/
m3;
St.
Clair
­
16.2
µ
g/
m3;
Jefferson
­
14.5
µ
g/
m3;
St.
Charles
­
14.3
µ
g/
m3;
St.
Louis
­
14.0
µ
g/
m3;
and
St.
Louis
(
City)
­
15.2
µ
g/
m3).

38
See
id
at
6­
259.
(
citing
the
Sangamon,
Illinois'
design
value
at
13.3
µ
g/
m3
and
St.
Genevieve,
Missouri's
design
value
at
13.6
µ
g/
m3.)
EPA
did
not
provide
design
values
for
Counties
that
do
not
contain
a
monitor,
and
more
generally
declined
to
offer
detailed
statistics
on
many
other
adjacent
counties,
despite,
in
some
cases,
the
presence
of
power
plants
therein.
See
id.
at
6­
257
("
Besides
Randolph
County,
Illinois
also
recommended
a
designation
of
unclassifiable
for
Jersey
County,
and
recommended
attainment
for
all
other
counties
in
the
state
that
are
not
part
of
the
recommended
Saint
Louis
or
Chicago
nonattainment
areas.
EPA
is
designating
as
attainment/
unclassifiable
all
counties
that
are
not
part
of
the
Saint
Louis
or
Chicago
nonattainment
areas.").
For
that
reason,
DMG
is
unable
to
provide
detailed
comparisons
with
other
similarly
situated
adjacent
counties
for
most
of
the
EPA's
nine
criteria.

39
See
EPA,
Air
Quality
Data
Update,
2001­
2003
PM2.5
Air
Quality
Data
(
2/
1//
2005).
14
ii)
The
Relative
Population
Density
and
Degree
of
Urbanization
in
Randolph
County
Are
Among
the
Lowest
in
the
Region.

The
third
factor
EPA
cites
in
its
guidance
is
population
and
urban
density
of
each
area.
40
EPA's
rationale
for
including
this
factor
is
that
"
Population
data
indicate
the
likelihood
of
population­
based
emissions
that
might
contribute
to
violations."
41
Randolph
County's
population
and
urban
density
are
well
below
those
of
the
other
counties
included
in
the
St.
Louis
metropolitan
area
and
below
other
adjacent
counties
designated
as
attainment
by
EPA.
In
fact,

of
the
counties
for
which
EPA
lists
population
data,
Randolph
County
is
lowest
on
both
counts.
42
iii)
Traffic
and
Commuting
Patterns
in
Randolph
County
Suggest
Unusually
Low
Miles
Traveled
and
Contribution
to
St.
Louis.

EPA's
fourth
factor
in
determining
an
area's
contribution
is
traffic
and
commuting
patterns.
43
In
support
of
this
factor,
EPA
explains
that:

The
traffic
and
commuting
analysis
looks
at
the
number
of
commuters
in
each
county
who
drive
to
another
county
within
the
metropolitan
area
("
Number"),
the
percent
of
total
commuters
in
each
county
who
commute
to
other
counties
within
the
metropolitan
area
("
percent"),
as
well
as
the
total
Vehicle
Miles
Traveled
(
VMT)
for
each
county
in
thousands
of
miles.
A
county
with
numerous
commuters
is
generally
an
integral
part
of
the
area
and
would
be
an
appropriate
part
of
the
domain
of
some
mobile
source
emission
control
strategies,
thus
warranting
inclusion
in
the
nonattainment
area.
44
Randolph
County
scores
well
below
the
counties
included
in
the
St.
Louis
metropolitan
area
and
below
other
adjacent
counties
designated
as
attainment
by
EPA.
Of
the
counties
for
which
EPA
lists
transportation
data,
Randolph
County
is
lowest
on
both
counts,
with
only
2,798
travelers
or
20
percent
of
the
County
commuting
to
other
counties
within
the
metropolitan
area
40
TSD
at
5­
2.

41
Id.

42
Id.
at
6­
258­
59.

43
Id.
at
5­
2.

44
Id.
15
for
a
total
of
278,000
vehicle
miles
traveled.
45
In
contrast,
the
county
with
the
next
lowest
figures
for
commuting
residents
is
Clinton
County,
Illinois,
designated
as
attainment,
with
more
than
twice
the
number
of
commuters
traveling
a
total
of
370,000
vehicle
miles
per
year.
46
A
more
notable
statistic
is
the
comparison
of
transportation
statistics
for
commuters
in
Randolph
versus
commuters
in
the
adjacent
St.
Clair
County,
Illinois.
St.
Clair
County
drivers
logged
over
2,850,000
vehicle
miles
traveled
during
the
sample
year,
more
than
10
times
the
number
logged
by
Randolph
County
commuters.
47
By
all
three
of
EPA's
measures
for
transportation
impacts,

Randolph
had
the
smallest,
or
next­
to­
smallest,
impacts
of
any
nearby
county
evaluated.
48
iv)
The
Growth
Projections
for
Randolph
County
Are
Among
the
Lowest
in
the
Region.

EPA
also
considers
the
impact
of
expected
growth
within
a
county
as
a
factor
in
determining
the
area's
future
impact
on
air
quality
levels.
49
The
expected
growth
factor
helps
identify
the
extent
to
which
future
sources
of
PM
fostered
by
increased
economic
activity
within
an
area
may
increase
its
PM2.5
impacts.
Of
the
13
areas
EPA
considered,
Randolph
County
had
the
third
lowest
expected
growth
estimate,
at
­
2
percent.
50
v)
EPA
Acknowledges
that
There
Are
No
Geographic
or
Topographical
Factors
that
Support
Designating
Randolph
County
as
Nonattainment
and
Ignores
Evidence
that
Randolph
County
Emissions
are
Not
Affecting
Adjacent
Areas.

45
Id.
at
6­
259.

46
Id.

47
Id.

48
See
id.

49
See
id.
at
5­
2.

50
See
id.
at
6­
260.
It
is
notable
that,
in
light
of
the
considerable
emissions
reductions
DMG
has
already
committed
to
under
the
new
Consent
Decree,
combined
with
the
various
additional
regulatory
restrictions
that
will
apply
to
the
Baldwin
Energy
Complex
during
the
next
decade
(
CAIR
Rule,
etc.),
there
is
nothing
to
suggest
that
the
Growth
in
Baldwin
Township
will
be
greater
than
the
pessimistic
projections
EPA
itself
has
already
accepted.
16
EPA's
geography/
topography
criterion
looks
at
physical
features
of
the
land
that
might
have
an
effect
on
the
airshed
and,
therefore,
on
the
distribution
of
particulate
matter
over
an
area.
51
EPA's
analysis
acknowledges
that
"
the
State
of
Illinois
has
no
features
that
significantly
influenced
EPA's
intended
nonattainment
areas."
52
At
worst
then,
it
appears
the
topography
has
no
effect
and
does
not
include
any
features
that
require
expanding
the
boundary.
To
the
contrary,
the
lack
of
an
impact
from
the
topography
argues
for
Baldwin
Township
sharing
the
same
attainment
status
as
nearby
monitoring
facilities.
While
it
goes
unmentioned
in
EPA's
analysis,
between
the
Baldwin
Township
and
the
St.
Clair
(
nonattainment)
monitoring
facility
is
a
second
monitoring
facility.
See
figure
1.
That
monitor,
identified
as
Swansea,
has
consistently
been
in
attainment
for
PM2.5
during
the
time
period
EPA
relies
upon
in
its
analysis.
That
monitor's
status
as
attainment,
combined
with
the
lack
of
any
topography
in
between
that
monitor
and
Baldwin
Township
that
would
influence
attainment,
offers
support
for
an
attainment
designation
at
Baldwin.

51
See
id
at
5­
2.

52
See
id.
at
6­
256.
17
Figure
1
­
Monitor
Locations
in
Relation
to
the
Baldwin
Energy
Facility
18
EPA
has
held
in
other
Counties
that,
in
making
contribution
determinations
for
the
purposes
of
setting
nonattainment
area
boundaries,
the
presence
of
an
attainment
monitor
between
a
source
and
the
nonattainment
area
provides
a
basis
for
discounting
the
source's
contribution.
53
Just
as
EPA
has
cited
such
intervening
attainment
monitors
to
dismiss
contribution
findings
in
other
adjacent
counties,
EPA
should
apply
its
policies
consistently
and
do
so
here
as
well.

vi)
Randolph
County
Falls
Outside
of
the
Jurisdictional
Boundaries
for
the
St.
Louis
Metropolitan
Area
under
OMB
Guidelines
and
EPA's
8­
Hour
Ozone
Nonattainment
Designation
Precedent.

Consistency
with
jurisdictional
boundaries
is
another
factor
EPA
purports
to
use
in
determining
whether
an
expansion
or
contraction
of
an
urban
nonattainment
area
might
be
appropriate.
Explaining
this
factor,
EPA's
Technical
Support
Document
states,
"[
t]
he
analysis
of
jurisdictional
boundaries
looks
at
the
planning
and
organizational
structure
of
an
area
to
determine
if
the
implementation
of
controls
in
a
potential
nonattainment
area
can
be
carried
out
in
a
cohesive
manner."
54
Absent
extenuating
circumstances,
EPA's
guidance
suggests
that:

The
metropolitan
area,
as
delineated
by
the
Office
of
Management
and
Budget
(
OMB),
provides
a
presumptive
definition
of
the
populated
area
associated
with
a
core
urban
area.
Accordingly,
EPA
believes
that
the
metropolitan
area
provides
a
presumptive
definition
of
the
source
area
that
contributes
to
a
PM2.5
nonattainment
problem.
For
this
reason,
EPA
believes
that
the
Metropolitan
Area
53
See,
e.
g.,
TSD
at
6­
224
(
stating,
in
support
of
an
attainment
designation
for
powerplant­
containing
counties
adjacent
to
the
Greensboro­
Winston­
Salem­
High
Point
nonattainment
area,
that
"
there
is
one
or
more
attaining
monitors
between
the
major
emissions
sources
in
these
counties
and
the
violating
monitor,
indicating
no
contribution."
(
emphasis
added));
Id.
at
6­
338
(
finding
Kenosha,
Wisconsin
to
be
in
attainment
despite
its
significant
emissions
levels
and
proximity
to
the
Chicago­
Gary­
Kenosha
nonattainment
area
where,
inter
alia
"[
a]
t
11.7
µ
g/
m3,
the
design
value
for
the
Kenosha
County
monitor
is
well
below
the
15
µ
g/
m3
standard,
as
is
the
design
value
for
Lake
County,
Illinois,
which
is
between
the
Kenosha
County
monitor
and
the
violating
monitor
in
Cook
County,
Illinois."

54
See
TSD
at
5­
3.
19
should
serve
as
the
presumptive
boundary
for
urban
PM2.5
NAAQS
nonattainment
areas."
55
EPA
failed
to
identify
any
jurisdictional
boundary
or
other
organizational
structure
that
would
make
any
portion
of
Randolph
County
a
logical
portion
of
the
nonattainment
area.

Randolph
County
is
not
part
of
the
St.
Louis
Metropolitan
Statistical
Area
under
either
the
1999
or
the
2003
OMB
definitions
and
neither
the
state
nor
EPA
identified
anything
about
the
planning
or
organizational
structure
of
Baldwin
Township
that
would
suggest
that
including
it
in
the
nonattainment
boundary
would
add
to
the
cohesion
of
the
area.
To
the
contrary,
the
recent
Consent
Decree
with
DMG
creates
a
much
more
logical
and
cohesive
planning
and
organization
link
between
Baldwin
Township
and
the
four
other
counties
containing
DMG
energy
facilities
throughout
Southern
Illinois,
three
of
which
are
excluded
from
the
nonattainment
area.

EPA's
inclusion
of
Baldwin
Township
in
the
St.
Louis
nonattainment
area
is
also
inconsistent
with
the
Agency's
designation
with
respect
to
the
8­
hour
ozone
nonattainment
designation.
EPA's
guidance
for
establishing
PM2.5
nonattainment
boundaries
notes
that:

Boundaries
used
for
implementation
of
the
8­
hour
ozone
standard
may
also
be
an
important
factor
in
determining
boundaries
for
PM2.5
nonattainment
areas.
Indeed,
there
are
many
areas
that
violate
both
the
8­
hour
ozone
and
the
PM2.5
standards,
and
States
and
Tribes
may
wish
the
nonattainment
boundaries
for
the
two
pollutants
to
be
identical
in
order
to
coordinate
air
quality
planning,
control
strategy
development,
and
the
implementation
of
the
transportation
conformity
program.
56
Nevertheless,
EPA
did
not
include
Randolph
County
as
part
of
the
8­
hour
ozone
nonattainment
area.
Rather,
EPA's
Technical
Support
Document
for
the
ozone
designations,
prepared
only
a
few
months
before
EPA's
PM2.5
designation
analysis,
highlights
EPA's
inconsistent
treatment
of
Randolph
County.
In
that
document,
EPA
states:

55
See
Designation
Boundary
Guidance
at
5.
20
Randolph
County
is
adjacent
to
the
St.
Louis
C/
MSA,
and
1­
hour
nonattainment
area,
located
to
the
southeast
of
the
C/
MSA.
The
monitor
in
Randolph
County
shows
a
2002
design
value
of
79
ppb.
The
population
of
the
county
is
small
when
compared
with
the
St.
Louis
C/
MSA
(
33,893
versus
2,698,687).
The
expected
population
growth
is
0.5%
through
2010.
VOC
emissions
from
the
county
are
small
compared
to
the
VOC
emissions
from
the
St.
Louis
C/
MSA
(
2,425
tpy
versus
156,100
tpy).
Although
it
is
a
larger
amount,
Randolph
County's
59,710
tpy
NOx
represents
the
county's
1999
base
year
inventory.
The
vast
majority
of
NOx
emissions
in
Randolph
County
come
from
the
Baldwin
power
plant,
which,
as
of
2001,
has
reduced
NOx
emissions
to
29,389
tpy
by
installing
controls.
Wind
rose
data
suggests
that
winds
come
primarily
from
the
south
and
southwest.
Based
on
the
data,
we
believe
Randolph
County
does
not
contribute
to
ozone
violations
in
St.
Louis.
57
EPA's
analyses
for
the
two
pollutants,
as
applied
to
Randolph
County,
are
fundamentally
at
odds
with
each
other.
The
solution
is
simple:
the
nonattainment
boundaries
for
PM2.5
should
be
consistent
with
the
nonattainment
boundaries
for
8­
hour
ozone.
It
should
not
include
Baldwin
Township.

In
summary,
upon
application
of
all
nine
factors,
EPA
should
designate
Baldwin
Township
as
attainment.
Such
a
designation
would
comport
with
EPA's
own
actions
in
similarly
situated
counties
around
the
country.
For
example,
in
response
to
a
comment
on
Kentucky's
proposed
attainment
classification
for
two
counties
adjacent
to
the
Cincinnati­
Hamilton
nonattainment
area,
EPA
ruled
"
the
adjacent
counties
of
Carroll
and
Mason
should
be
designated
attainment/
classifiable
[
sic]
for
the
PM2.5
standard,
although
they
have
significant
emissions
due
to
power
plants.
These
counties
have
relatively
low
populations,
low
population
growth,
and
low
VMT.
Further,
their
commuting
patterns
and
distance
from
the
violating
monitors
indicate
that
56
Id.
at
6
(
emphasis
added).

57
EPA,
Office
of
Air
Quality
Planning
and
Standards,
Technical
Support
for
State
and
Tribal
Air
Quality
Designations
and
Classifications
at
3­
94
(
April
2004)
.
21
these
counties
do
not
contribute
to
the
violations
in
the
area."
58
EPA
made
a
similar
determination
with
respect
to
Pulaski
County
adjacent
to
the
Louisville,
Kentucky
nonattainment
area.
Once
again,
despite
the
County's
weighted
composite
emission
score
of
56.8
(
six
times
the
emissions
score
EPA
assigned
to
Randolph
County),
EPA
determined
that
"
the
adjacent
County
of
Pulaski
should
be
designated
attainment/
unclassifiable
for
the
PM2.5
standard,
although
it
has
significant
emissions
due
to
a
power
plant.
This
county
has
relatively
low
population,
low
population
growth,
and
low
VMT.
Further,
the
commuting
patterns
and
distance
from
the
violating
monitors
indicate
that
this
county
does
not
contribute
to
the
violations
in
the
area."
59
Randolph
County
indisputably
has
a
small
population,
low
population
growth,
low
VMT,

and
modest
commuting
patterns.
While
Baldwin
Township
is
located
in
a
county
adjacent
to
St.

Clair
County,
which
registered
a
monitoring
violation,
the
violating
monitor
is
on
the
far
side
of
the
County
surrounded
by
other
industrial
sources
and
at
least
one
attainment
monitor
sits
directly
between
the
Baldwin
facility
and
the
violating
monitor.
Neither
the
state
nor
EPA
provided
data
suggesting
that
emissions
from
Baldwin
Township
would
be
any
more
likely
to
contribute
to
violations
in
St.
Clair
County
than
Carroll,
Mason,
or
Pulaski
Counties
were
with
respect
to
their
adjacent
nonattainment
areas.
To
the
contrary,
the
available
data
supports
only
the
conclusion
that
Baldwin
Township
is
not
likely
to
contribute
to
nonattainment
levels
in
the
St.
Louis
metropolitan
area.

58
See
RTC
at
4­
28.

59
See
RTC
at
4­
33.
22
3)
Even
if
EPA
Cannot,
Upon
Correct
Application
of
the
Nine
Factors,
Designate
Baldwin
Township
As
Attainment,
the
Proper
Designation
Must
Be
Unclassifiable,
not
Nonattainment.

DMG
shows
above
the
EPA
lacked
a
sufficient
basis
to
conclude,
for
the
purposes
of
an
initial
determination,
that
the
Agency
should
designate
Baldwin
Township
as
nonattainment.

Indeed,
DMG
further
shows
that
if
any
designation
is
appropriate
for
the
Township
at
this
time,

it
is
"
attainment."
If
EPA
disagrees
with
the
factual
background
provided
above,
however,

DMG
respectfully
requests
that
the
Agency
enter
an
initial
designation
of
"
unclassifiable."

While
the
CAA
requires
EPA
to
apply
a
specific
initial
designation
of
attainment
or
not
to
all
areas
following
promulgation
of
a
new
national
ambient
air
quality
standard
("
NAAQS"),

it
recognizes
that
in
some
cases,
neither
the
State
nor
EPA
may
have
the
data
necessary
to
make
such
a
determination.
60
In
such
circumstances,
the
Act
authorizes
States
and
EPA
to
consider
an
alternative
designation
of
"
unclassifiable"
for
"
any
area
that
cannot
be
classified
on
the
basis
of
available
information
as
meeting
or
not
meeting
the
national
primary
or
secondary
ambient
air
quality
standard
for
the
pollutant."
61
To
the
extent
that
EPA
believes
there
may
be
remaining
data
gaps
or
questions
that
prevent
the
Agency
from
designating
the
entire
County
as
attainment,
DMG
requests
that
EPA
initially
designate
Baldwin
Township
as
unclassifiable
out
of
an
abundance
of
caution
pending
development
of
a
factual
record
to
support
the
nonattainment
designation.
Such
an
initial
designation
will
avoid
the
additional
procedural
and
substantive
requirements
under
Section
107(
d)(
3)
of
the
Act
if
the
future
factual
development
convinced
EPA
to
change
its
designation
to
"
attainment."
Most
notably,
once
an
area
has
been
designated
either
"
attainment"
or
60
42
U.
S.
C.
§
7407(
d)(
1)(
A)­(
B).

61
Id.
at
§
7407(
d)(
1)(
A).
23
"
nonattainment,"
neither
the
State
nor
EPA
can
seek
redesignation
of
that
area
to
"
unclassifiable."
62
EPA
apparently
recognizes
the
benefits
of
an
initial
designation
of
"
unclassifiable,"
and
admits
in
the
preamble
to
the
rule
that
it
has,
in
some
cases,
designated
areas
as
unclassifiable
despite
the
actual
presence
of
violative
monitors
within
an
area.
If
DMG
did
not
convince
EPA
to
apply
an
attainment
designation,
it
urges
such
a
result
here.

In
conclusion,
and
for
the
reasons
cited
above,
DMG
respectfully
requests
that
EPA
withdraw
its
nonattainment
designation
for
Baldwin
Township
and
reissue
revised
initial
designation
finding
Baldwin
Township
to
be
an
attainment
area.
To
the
extent
that
EPA
continues
to
believe
that
there
may
be
uncertainties
about
the
impact
from
Baldwin
Township
or
the
Baldwin
Energy
Complex,
DMG
respectfully
requests
that,
consistent
with
the
State
of
Illinois
recommendation,
EPA
issue
a
revised
designation
for
Baldwin
Township
as
"
unclassifiable"
and
that
EPA
identify
the
additional
data
it
would
require
to
resolve
any
outstanding
questions
it
may
have
as
to
the
Township's
attainment
status.

Respectfully
submitted,

/
s/

Paul
E.
Gutermann
David
H.
Quigley
Charles
L.
Franklin
Akin
Gump
Strauss
Hauer
&
Feld
LLP
1333
New
Hampshire
Avenue,
N.
W.
Washington,
D.
C.
20036
(
202)
887­
4000
Counsel
for
Petitioner,
Dynegy
Midwest
Generation,
Inc.

June
13,
2005
62
Id.
at
§
7407(
d)(
3)(
E).
