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).


[Federal Register Volume 85, Number 59 (Thursday, March 26, 2020)]
[Notices]
[Pages 17134-17136]
[FR Doc No: 2020-06388]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-88457; File No. SR-GEMX-2020-07]

Self-Regulatory Organizations; Nasdaq GEMX, LLC; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change Related to the
Removal of Obsolete Listing Rules

March 23, 2020.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on March 10, 2020, Nasdaq GEMX, LLC (``GEMX'' or ``Exchange'') filed
with the Securities and Exchange Commission (``Commission'') the
proposed rule change as described in Items I and II below, which Items
have been prepared by the Exchange. The Commission is publishing this
notice to solicit comments on the proposed rule change from interested
persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend its Rules at Options 2, Options
Market Participants; Options 3, Section 2, Units of Trading and Meaning
of Premium Quotes and Orders; Options 3, Section 3, Minimum Trading
Increments; and Options 3, Section 15, Simple Order Risk Protections.
Additionally, the Exchange proposes to add new sections at General 9
and Options 4B and reserve those sections.
    The text of the proposed rule change is available on the Exchange's
website at http://nasdaqgemx.cchwallstreet.com/, at the principal
office of the Exchange, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend GEMX Rules at Options 2, Options
Market Participants; Options 3, Section 2, Units of Trading and Meaning
of Premium Quotes and Orders; Options 3, Section 3, Minimum Trading
Increments; and Options 3, Section 15, Simple Order Risk Protections.
Additionally, the Exchange proposes to add new sections at General 9
and Options 4B and reserve those sections. The various proposed changes
will be discussed below.
Mini Options
    The Exchange has not listed Mini Options in several years and is
proposing to delete Mini Options listing rules and other ancillary
trading rules related to the listing of Mini Options. The Exchange
notes that it has no open interest in Mini Options.
    Specifically, the Exchange proposes to amend the following GEMX
Rules related to Mini Options by deleting references to Mini Options
within these rules: Options 3, Section 2(c), Units of Trading and
Meaning of Premium Quotes and Orders; and Options 3, Section 3, Minimum
Trading Increments, at Supplementary Material .03. The Exchange also
proposes to re-letter (b) as (c).
Foreign Currency Index
    The Exchange removed \3\ prior GEMX Section 22, which was titled
``Rate-Modified Foreign Currency Options Rules'' and governed the
listing and trading of foreign currency options on GEMX. At this time,
the Exchange is removing a reference that is no longer necessary within
Options 3, Section 3, Minimum Trading Increments, at Supplementary
Material .02, because the product is not available to be listed on
GEMX.
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    \3\ See Securities Exchange Act Release No. 84791 (December 11,
2018), 83 FR 64611 (December 11, 2018) (SR-GEMX-2018-41) (Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Delete
GEMX Section 22 of the Rulebook).
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Rulebook Harmonization
    The Exchange recently harmonized its Rulebook in connection with
other Nasdaq affiliated markets. The Exchange proposes to reserve
sections General 9 and Options 4B and certain other rules \4\ within
the GEMX Rulebook to represent the presence of rules in similar
locations in other Nasdaq affiliated Rulebooks (e.g. Nasdaq Phlx LLC)
\5\. The addition of these reserved sections will align the various
Nasdaq affiliated market Rulebooks.
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    \4\ The Exchange proposes to reserve Options 2, Sections 11-14
and Options 6, Section 8-13.
    \5\ See Securities Exchange Act Release No. 88213 (February 14,
2020), 85 FR 9859 (February 20, 2020) (SR-Phlx-2020-03) (``Phlx
Rulebook Relocation Rule Change'').
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Other Non-Substantive Amendments
    The Exchange proposes to delete duplicative text within Options 3,
Section 15, Simple Order Risk Protections. Current Options 3, Section
15(c) appears in Section 15(a) and current Options 3, Section 15(d)
appears in Options 3, Section 15(a)(1)(C).
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act,\6\ in general, and furthers the objectives of Section
6(b)(5) of the Act,\7\ in particular, in that it is designed to promote
just and equitable principles of trade, to remove impediments to and
perfect the mechanism of a free and open market and a national market
system, and, in general to protect investors and the public interest.
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    \6\ 15 U.S.C. 78f(b).
    \7\ 15 U.S.C. 78f(b)(5).
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Mini Options
    The Exchange's proposal to removal references to the listing and
handling of Mini Options is consistent with the Act because Mini
Options have not been listed in several years and thereby removing the
references to the rules would render the rules more accurate and reduce
potential investor confusion. Also, the Exchange notes that it has no
open interest in Mini Options. In the event that the Exchange desires
to list Mini Options in the future, it would file a rule change with
the Commission to adopt rules to list Mini Options.
Foreign Currency Index
    The Exchange's proposal to remove rules and references to the
listing and handling of Foreign Currency Indexes is consistent with the
Act because the listing rules for these products have been removed.
Also, the Exchange notes that it has no open interest in Foreign
Currency Indexes. In the event that the Exchange desires to list
Foreign Currency Indexes in the future, it would file a rule change
with the Commission.
Rulebook Harmonization
    The Exchange's proposal to reserve new sections at General 9 and
Options 4B within the Rulebook is a non-substantive amendment which
aligns the numbering across Nasdaq affiliated Rulebooks to provide
market participants with an ability to more readily locate rules.
Other Non-Substantive Amendments
    The Exchange's proposal to remove duplicative text within Options
3, Section 15 is non-substantive and is intended to reduce investor
confusion.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act.
Mini Options
    The Exchange's proposal to removal references to the listing and
handling of Mini Options does not impose an undue burden on
competition. Mini Options have not been listed in several years. Also,
the Exchange notes that it has no open interest in Mini Options.
Foreign Currency Index
    The Exchange's proposal to removal references to the listing and
handling of Foreign Currency Indexes does not impose an undue burden on
competition. Foreign Currency Indexes have not been listed in several
years. Also, the Exchange notes that it has no open interest in Foreign
Currency Indexes.
Rulebook Harmonization
    The Exchange's proposal to add reserved sections General 9 and
Options 4B to the Rulebook is a non-substantive amendment which aligns
the numbering across Nasdaq affiliated Rulebooks to provide market
participants with an ability to more readily locate rules.
Other Non-Substantive Amendments
    The Exchange's proposal to remove duplicative text within Options
3, Section 15 is a non-substantive amendment.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    No written comments were either solicited or received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days from the date on

which it was filed, or such shorter time as the Commission may
designate, it has become effective pursuant to Section 19(b)(3)(A)(iii)
of the Act \8\ and subparagraph (f)(6) of Rule 19b-4 thereunder.\9\
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    \8\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \9\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)
requires the Exchange to give the Commission written notice of its
intent to file the proposed rule change, along with a brief
description and text of the proposed rule change, at least five
business days prior to the date of filing of the proposed rule
change, or such shorter time as designated by the Commission. The
Exchange has satisfied this requirement.
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    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings to
determine whether the proposed rule should be approved or disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-GEMX-2020-07 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number SR-GEMX-2020-07. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-GEMX-2020-07 and should be submitted on
or before April 16, 2020.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\10\
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    \10\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-06388 Filed 3-25-20; 8:45 am]
 BILLING CODE 8011-01-P