BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
APPEARANCE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
APPEARANCE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
APPEARANCE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Petitioner,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
Respondent.

APPEAL OF CONSTRUCTION PERMIT FOR THE INSTALLATION OF
ACTIVATED CARBON INJECTION SYSTEMS AND
REQUEST FOR PARTIAL STAY OF THE PERMIT

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MIDWEST GENERATION, LLC

)

POWERTON GENERATING STATION,

)

Petitioner,

)

PCB 08-

)

(Permit Appeal

Air)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

Respondent.

)

NOTICE OF FILING

To:

John Therriault, Assistant Clerk

Illinois Environmental Protection Agency

Illinois Pollution Control Board

Division of Legal Counsel

James R. Thompson Center

102 1 North Grand Avenue, East

Suite 1 1-500

P.O. Box 19276

100 West Randolph

Springfield, Illinois 62794-9276

Chicago, Illinois 6060 1

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

Clerk of the Pollution Control Board

APPEAL OF CONSTRUCTION PERMIT FOR THE

INSTALLATION OF ACTIVATED CARBON INJECTION SYSTEMS AND REQUEST

FOR PARTIAL STAY OF THE PERMIT

and APPEARANCES OF SHELDON A.

ZABEL, KATHLEEN C. BASSI, and STEPHEN

J. BONEBRAKE, copies of which are

herewith

~erved-upon youd

Dated: September 5,2007

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

Sheldon A. Zabel

Kathleen C. Bassi

Stephen

J. Bonebrake

SCHIFF

HARDIN, LLP

6600 Sears Tower

233 South Wacker Drive

Chicago, Illinois 60606

3 12-258-5500

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MIDWEST GENERATION, LLC

)

POWERTON GENERATING STATION,

)

Petitioner,

)

PCB 08-

)

(Permit Appeal

Air)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

APPEARANCE

I, Kathleen C. Bassi, hereby file my appearance in this proceeding on behalf of Petitioner,

Midwest Generation, LLC

Powerton Generating Station.

Schiff

Hardin LLP

6600 Sears Tower

233 South Wacker Drive

Chicago, Illinois 60606

3 12-258-5500

kbassi@,schiffhardin.com

Dated: September 5,2007

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MIDWEST GENERATION, LLC

)

POWERTON GENERATING STATION,

)

Petitioner,

)

PCB 08-

)

(Permit Appeal

Air)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

Respondent.

)

APPEARANCE

I, Stephen J. Bonebrake, hereby file my appearance in this proceeding on behalf of

Petitioner, Midwest Generation,

LLC

Powerton Generating Station.

Schiff

Hardin LLP

6600 Sears Tower

233 South Wacker Drive

Chicago, Illinois 60606

3 12-258-5500

sbonebrake@,schiffhardin.com

Dated: September 5,2007

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MIDWEST GENERATION, LLC

)

POWERTON GENERATING STATION,

)

Petitioner,

)

PCB 08-

)

(Permit Appeal

Air)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

APPEARANCE

I, Sheldon A. Zabel, hereby file my appearance in this proceeding on behalf of Petitioner,

Midwest Generation, LLC

Powerton Generating Station.

7

//L/& 

Sheldon A. Zabel

Schiff Hardin LLP

6600 Sears Tower

233 South Wacker Drive

Chicago, Illinois 60606

3 12-258-5500

Dated: September 5,2007

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MIDWEST GENERATION, LLC

)

POWERTON GENERATING STATION,

)

Petitioner,

)

PCB 08-

)

(Permit Appeal

Air)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

Respondent.

APPEAL OF CONSTRUCTION PERMIT FOR THE INSTALLATION OF

ACTIVATED CARBON INJECTION SYSTEMS AND

REQUEST FOR PARTIAL STAY OF THE PERMIT

NOW COMES Petitioner, MIDWEST GENERATION, LLC

POWERTON

GENERATING STATION ("Petitioner" or "Midwest Generation"), pursuant to Section 40(a)(l)

of the Illinois Environmental Protection Act ("Act") (41 5 ILCS 5/40(a)(l)) and 35 111.Adm.Code

105.200 et

seq.,

and requests a hearing before the Board to contest the decisions contained in

the construction

issued to Petitioner on August 8,2007, pursuant to Section

39(a) of the

Act (4 15 ILCS

5/39(a)) and 35 111.Adm.Code

20 1.142 ("the construction permit") and attached

hereto as Exhibit 1. 3 5

111.Adm.Code

5 5

105.2 10(a) and (b). Petitioner received the construction

permit on August 13,2007.

See Exhibit 1. Pursuant to Section 39(a) of the Act and 35

111.Adm.Code

105.206(a), this Petition is timely filed with the Board. In support of its Petition

to appeal the first paragraph of the permit and Conditions

1 (a), 1 (b)(ii), 2(a), 2(a) Note, 4, 5

(except for Conditions

5(b)(ii) and 5(d)), and 6, Petitioner states as follows:

Application

No.

070600

12.

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

I. BACKGROUND

(35 111.Adm.Code

105.304(a))

The

Powerton Generating Station ("Powerton" or the "Station"), Agency I.D. No.

179801AAA, is an electric generating station owned by Midwest Generation, LLC, and operated

by Midwest Generation, LLC

Powerton Generating Station. The Powerton electrical

generating units ("EGUs") went online between 1972 and 1975. The

Powerton Generating

Station is located at 13082 East Manito Road, Pekin, Tazewell County, Illinois 61 554-8587,

within the Chicago ozone and

~~2.5~

nonattainment areas. Powerton is an intermediate load

plant and can generate approximately 1697 megawatts. Midwest Generation employs 190

people at the

Powerton Generating Station.

Midwest Generation operates four coal-fired boilers and an auxiliary boiler at

Powerton that have the capability to fire at various modes that include the combination of coal,

natural gas,

andlor fuel oil as their principal fuels. In addition, the boilers fire natural gas or fuel

oil as auxiliary fuel during startup and for flame stabilization. Certain alternative fuels, such as

used oils generated on-site, may be utilized as well.

Powerton also operates associated coal

handling, coal processing, and ash handling activities. Finally, there is a 1500-gallon gasoline

tank located at Powerton, to provide fuel for Station vehicles.

Relevant to this appeal, particulate matter ("PM") emissions from the boilers are

controlled by an electrostatic precipitator ("ESP"). The

Powerton Station also emits sulfur

dioxide, carbon monoxide, nitrogen oxides, and minimal amounts of volatile organic

compounds, all controlled pursuant to applicable requirements. Emissions of these pollutants are

not an issue in this appeal.

Particulate matter less than 2.5 microns in aerodynamic diameter.

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

Powerton is a major source subject to the Clean Air Act Permitting Program

("CAAPP"). 4 1 5 ILCS

5/3 9.5. The Illinois Environmental Protection Agency ("Agency")

issued a CAAPP permit to Midwest Generation for

Powerton on September 29,2005.

Subsequently, on November 2,2005, Midwest Generation timely appealed the CAAPP permit

for

Powerton at PCB 06-059. The Board accepted the appeal for hearing on November 17,2005.

On February 16,2006, the Board found that, pursuant to Section

10-65(b) of the Administrative

Procedure Act (5 ILCS

100/10-65(b)) ("APA") and the holding in Borg- Warner Corp. v. Mauzy,

427 N.E. 2d 415 (111.App.Ct. 1981), the CAAPP permit is stayed, upon appeal, as a matter of

law. Order, Midwest Generation,

LLC, Powerton Generating Station v. Illinois Environmental

Protection Agency, PCB 06-059 (February

16,2006), p. 2.

On March 14,2006, the Agency submitted a proposed rulemaking to the Board,

"In the Matter Of: Proposed New 35

111.Adm.Code 225 Control of Emissions from Large

Combustion Sources," docketed at R06-25 ("the mercury rule"). The Board adopted this rule on

December 21,2006. The mercury rule includes some provisions in Subpart A of Part 225 and all

of Subpart B of Part 225.

On May 22,2006, the Agency submitted a proposed rulemaking to the Board, "In

the Matter of: Proposed New CAIR

SO2, CAIR NOx Annual and CAIR NOx Ozone Season

Trading Programs, 35

111.Adm.Code 225, Control of Emissions from Large Combustion Sources,

Subparts A, C, D, and E," docketed at R06-26 ("CAIR"). On January 5,2007, the Agency and

Midwest Generation filed a joint comment in this rulemaking describing an agreement they

reached regarding mercury control and purporting to set forth the substance of their agreement to

add Subpart

F to Part 225 ("Subpart F").~ R06-26, PC

9. Subsequently, on January 10,2007,

Note that the Board's website docket does not include substantive, regulatory language for Subpart F at

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

the Agency and Midwest Generation filed a joint comment providing the regulatory language for

Subpart F, including amendments to that language. R06-26, PC

On April 19,2007, the

Board proceeded to First Notice on the CAIR, including Subpart F. On June 25,2007, Midwest

Generation submitted comments on the First Notice CAIR, including requested revisions to

Subpart

F. R06-26, PC

14. On July 26,2007, the Board ordered the rule to Second Notice,

including Subpart F with minor amendments. R06-26, Board Order (July 26,2007). However,

these rules were not adopted as of the date of issuance of the construction permit; they were not

adopted until August 23,2007, approximately two weeks after the permit was issued.

Prior to final adoption of Subpart F, there were no requirements pursuant to

Subpart

F that are applicable to Midwest Generation. Pursuant to 35 111.Adm.Code

225.240(b)(l), Midwest Generation must certify compliance of its mercury monitoring system

by January 1,2009, and it must comply with the mercury emission reduction standards by July 1,

2009 (35

111.Adm.Code

225.230(a)(l)). If Midwest Generation chooses to opt in to Subpart F,

it must notify the Agency of its intention by December 3 1,2007. R06-26, Board Order, p. 130,

225.610.

The Agency received Midwest Generation's application for the construction

permit on June 4, 2007. Midwest Generation required the construction permit so that it could

install the equipment necessary to store activated carbon and to inject the activated carbon into

the emissions streams of Powerton's Units 5 and 6 boilers. The construction permit contains

conditions that Midwest Generation believes are incomplete, exceed the scope of the Agency's

authority, or are otherwise inappropriate, as detailed

infa.

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

11. EFFECTIVENESS OF THE CONSTRUCTION PERMIT AND

REQUEST FOR PARTIAL STAY

Pursuant to Section

10-65(b) of the Illinois Administrative Procedures Act

("APA"), 5 ILCS

10011 0-65, and the holding in

Borg- Warner Corp.,

the construction permit

issued by the Agency to

Powerton is not effective by operation of law until after a ruling by the

Board on the permit appeal and, in the event of a remand, until the Agency has issued the permit

consistent with the Board's order.

See

Order,

Midwest Generation, LLC, Powerton Generating

Station v. Illinois Environmental Protection Agency,

PCB 06-059 (February 26,2006) ("Order

2"). Historically, the Board has granted partial stays in permit appeals where a petitioner has so

requested.

C.f

Order 2 at p. 8, fn 3;

Midwest Generation, LLC, Will County Generating Station

v. Illinois Environmental Protection Agency,

PCB 06-1 56 (July 20,2006) (granted stay of the

effectiveness of contested conditions of a construction permit);

Dynegy Midwest Generation, Inc.

(Vermilion Power Station), v. Illinois Environmental Protection Agency,

PCB 06- 1 94 (October

19,2006) (granted stay "of the portions of the permit Dynegy contests");

Hartford Working

Group v. Illinois Environmental Protection Agency,

PCB 05-74 (November 18,2004) (granted

stay of the effectiveness of Special Condition 2.0 of an air construction permit);

Community

Landfill Company and City

ofMorris v. Illinois Environmental Protection Agency,

PCB 01 -48

and 01 -49 (Consolidated) (October 19,2000) (granted stay of effectiveness of challenged

conditions for two permits of two parcels of the landfill);

Allied Tube

Conduit Corp. v. Illinois

Environmental Protection Agency,

PCB 96-1 08 (December 7, 1995) (granted stay of the

effectiveness of Conditions

4(a), 5(a), and 7(a) of an air permit).

10.

Midwest Generation will suffer irreparable harm and the environment will not

receive the benefit of the pollution control facilitated by the activated carbon injection ("ACI")

system if Midwest Generation is not allowed to construct and operate the ACI systems for Units

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

5 and 6 at the Powerton Generating Station. Midwest Generation's request for stay of the

contested language would provide the necessary and appropriate authorizations to install and

operate the ACI equipment in a manner to protect the environment while allowing Midwest

Generation to pursue its rights of appeal under Section

40(a) of the Act.

1 1.

Midwest Generation requests in this instance that the Board exercise its inherent

discretionary authority to grant a partial stay of the construction permit, staying only Conditions

or portions of Conditions

l(b)(ii), 2(a), 2(a) Note, 4, 5(a), 5(b), 5(b)(i), 5(c), and 6 as indicated in

Exhibit

2. In the alternative, if the Board believes that it must stay the entirety of an appealed

condition rather than only portions of the conditions where so indicated in Exhibit 2, Midwest

Generation requests that the entirety of each of the conditions listed above in this paragraph.

111. ISSUES ON APPEAL

(35 111.Adm.Code

§§

105.210(c))

12.

The issues on appeal fall into several categories. The description of the scope of

the permit is incomplete with regard to failure of the permit to explicitly describe the activated

carbon storage and handling systems that are part of the request for the construction permit. The

scope of the requirements included in some conditions is inappropriate because they exceed the

scope of the application for the permit. The Agency appears to confuse the scope of this

construction permit with the requirement of a source subject to the mercury rule to apply for an

amendment to its CAAPP permit to incorporate the applicable requirements of the mercury rule.

A third category of issues is the timing of requirements contained in some of the conditions of

the permit. The permit requires instantaneous compliance even though Midwest Generation is

under no obligation to operate the ACI systems unless it opts in to the Combined Pollutant

Standards of Subpart

F of Part 225, which this permit does not and cannot require it to do.

Another category of issues relates to the actual requirements contained in the conditions; that is,

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

Midwest Generation objects to the inclusion of the requirement at all rather than merely

requesting that the Agency clarify or refine the condition. The final category of issue on appeal

is relative to CAAPP permitting.

The Description of the Scope of the Permit Is Incomplete

First Paragraph and

Condition

l(a).

13.

The description of the scope of the permit contained in the first paragraph of the

permit and

I Condition 1 is insufficient because it does not include the activated carbon handling

and storage systems, though subsequent language in the permit implies that they are included

within the authorization to construct. That is, these paragraphs announce that the permit is

construction permit ("Permit is hereby granted to the above-designated Permittee to

CONSTRUCT.

. . ."

(Exhibit 1, first paragraph)). Then the first paragraph describes what the

Permittee is authorized to construct: "equipment consisting of a sorbent injection system."

Exhibit 1, first paragraph. Additionally, Condition 1 (a) provides information regarding what the

permit authorizes the Permittee to construct: "This Permit authorizes construction of sorbent

injection systems for each of the existing coal-fired boilers for Units

5 and 6.

. . ."

Exhibit 1,

Condition 1 (a).

14.

However, these descriptions do not clearly define the full scope of what Midwest

Generation seeks to install and operate. It is unclear whether the

ACI systems as described in the

permit include the activated carbon storage and handling systems. The Agency acknowledges

the storage and handling systems in Condition 1 (b), where it refers to the "storage and handling

of sorbent

for

the sorbent injection systems." Condition

(b)(ii). (Emphasis added.) That these

are "for" the sorbent injection system implicitly acknowledges that the storage and handling

systems are ancillary to the sorbent injection systems. The inclusion of an emissions limitation

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

at Condition l(b)(ii) implies that the Agency intends the construction permit to include

construction of the storage and handling systems as well as the sorbent injection systems.

15.

One could argue that the activated carbon storage and handling systems are

included in the "sorbent injection

system[s]," as it would be impossible for Midwest Generation

to inject sorbent without the storage and handling systems. On the basis of that interpretation

and the implications of the language in Condition

1 (b)(ii), Midwest Generation will proceed with

construction and operation of the storage and handling systems ancillary to the sorbent injection

systems but requests that the Board require the Agency to clarify either that the "sorbent

injection

system[s]" include the storage and handling systems or to specifically add reference to

the storage and handling systems to the permit.

16.

Although Midwest Generation hereby appeals the first paragraph and Condition

1 (a) of the permit, Midwest Generation does not seek a stay of any portion of the first paragraph

or Condition 1 (a) of the permit.

The Agency Has Inappropriately Included Conditions Whose Only Purposes Is to

Effectuate the

Mercury Rule

Conditions 2(a), 2(a) Note, 4(a), 5(a), and 5(c).

17.

The Agency has included a number of conditions that bear no direct relationship

to the construction and operation of ACI systems. Specifically, Condition

2(a) requires

compliance with the mercury emissions limitations of Part 225, Subpart

B or F; Condition 4(a)

requires compliance with "all applicable requirements of 35 IAC Part 225"; Condition 5(a)

requires Midwest Generation to maintain records relative to the mercury content of the coal

supply; and Condition

5(c) requires records regarding mercury emissions. There are no

applicable requirements relevant to this permit that authorize the Agency to include these

conditions in this permit. Subpart

B requires a source subject to the mercury rule to submit an

application to modify its CAAPP permit to include the requirements applicable to the mercury

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

rule; it does not provide for implementation of the mercury rule through a construction permit.

See 35 111.Adm.Code fj 225.220.

18.

The purpose of this permit is to authorize the construction and operation of the

ACI systems and the related storage and handling systems. While use of these systems will

allow Midwest Generation to reduce its mercury emissions, use of ACI systems is not required

by the mercury rule; it is required by Subpart

F. However, the applicability of Subpart F is

dependent upon Midwest Generation formally notifying the Agency that it intends to comply

with the mercury limits pursuant to Subpart

F. The Agency notes that the "Permittee expects

that it will comply with

. . .

Subpart F.

. . ."

Condition 2(a) Note. Midwest Generation has not

formally notified the Agency of its. Moreover, at the time that this permit was issued, there was

not yet an applicable basis for Midwest Generation to notify the Agency of its intentions,

because Subpart

F had not been adopted by the Board. Subpart F was adopted by the Board on

August 23,2007, approximately two weeks after the permit was issued.

19.

The installation and operation of ACI systems do not, in and of themselves,

require the imposition of mercury limitations. Therefore, the inclusion of mercury limitations in

Condition

2(a) is inappropriate and arbitrary and capricious and should be deleted from the

permit. Midwest Generation requests that Condition

2(a) be stayed, as set forth in Exhibit 2,

during the pendency of this appeal.

20.

Likewise, the requirement of Condition

2(a) Note that Midwest Generation

comply with the provisions of Subpart

F are beyond the scope of the Agency's authority relative

to this permit. Construction and installation of ACI systems do not trigger the applicability of

either Subpart

B or Subpart F. Condition 2(a) Note is arbitrary and capricious, and Midwest

Generation request that the Board order the Agency to delete it from the permit. Midwest

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

Generation requests that the Board stay the effectiveness of Condition 2(a) Note, as set forth in

Exhibit 2, during the pendency of this appeal.

21.

Condition

4(a) is also an expansion of the scope of a simple construction permit

authorizing the installation of ACI systems. From that request, the Agency leapt to requiring that

Midwest Generation comply with all applicable requirements of Part 225 related to monitoring

mercury emissions. Monitoring mercury emissions is not directly related to constructing and

operating ACI systems. That is, the construction and operation of an ACI system does not

necessarily lead to a requirement to monitor mercury emissions. Rather, that requirement is a

function of implementation of the mercury rule. Condition

4(a) is inappropriate and arbitrary

and capricious and should be deleted from the permit. Midwest Generation requests that the

Board stay the effectiveness of Condition

4(a), as set forth in Exhibit 2, during the pendency of

this appeal.

22.

Condition

5(a) exceeds the Agency's authority. Condition 5(a) requires the

Permittee to maintain records regarding the amounts of mercury in its coal supply. Even if

Midwest Generation were to concede that monitoring mercury emissions were appropriate, the

broad, general requirement stated in Condition

5(a) for Midwest Generation to sample its coal

supply for mercury content and keep records thereof is inappropriate and arbitrary and capricious

because measuring mercury in the coal supply is required under the mercury rule

only if the

Permittee chooses to demonstrate compliance pursuant to Section

225.230(a)(l)(B), the

requirement for a 90% reduction from input mercury. If the Permittee chooses to comply with

Section

225.230(a)(l)(A), on the other hand, there is no requirement in the mercury rule that the

Permittee monitor the mercury content of its coal supply.

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

23.

Additionally, the phrase "current coal supply" in Condition

5(a)(ii) is ambiguous.

It could refer to the supply of coal at the Station at the time the permit is issued. The level of

mercury in the supply of coal at the

Powerton Station on August 8,2007, is irrelevant in terms of

compliance with the mercury rule emissions limits. In the alternative, it could refer to some

other period of time, though what that period of time is is not apparent.

24.

Condition

5(a) is arbitrary and capricious, exceeds the scope of the Agency's

authority, and should be deleted from the permit. If the Board determines that Condition

5(a)

should remain in the permit, then Midwest Generation requests that the Board order the Agency

to include qualifying language in Condition

5(a) that restricts the applicability of the condition to

only those times that the Permittee relies on Section

225.230(a)(l)(B) to comply with the

emissions limitations of the mercury rule. Midwest Generation requests that the Board stay the

effectiveness of Condition

5 (a), as set forth in Exhibit 2, during the pendency of this appeal.

25.

Condition

5(c)(i) requires maintenance of "all applicable records required by 35

IAC Part 225, by the dates specified in the rules, related of [SIC] monitoring mercury emissions."

As discussed above, construction and installation of an ACI system does not trigger a

requirement to comply with the mercury rule. Condition

5(c)(i) is arbitrary and capricious and

should be deleted from the permit. Midwest Generation requests that the Board stay Condition

5(c)(i), as set forth in Exhibit 2, during the pendency of this appeal.

26.

Condition

5(c)(ii) is particularly unacceptable. Here the Agency requires the

Permittee to "maintain records of any mercury emission data collected for the affected boilers"

"[dluring the period before the Permittee is required to conduct monitoring for mercury

emissions

. . .

pursuant to 35 IAC Part 225." Exhibit 1, Condition S(c)(ii). (Emphasis added.)

There is

authority for the Agency to require such monitoring and recordkeeping. Requesting

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

such information through a permit is inappropriate. There is no provision in the Act or any of

the applicable regulations that authorizes the Agency to include conditions in permits merely to

aid the Agency in gathering data not otherwise required. Condition

5(c)(ii) is arbitrary and

capricious, not based upon any applicable requirements, and beyond the scope of the Agency's

authority to require. It should be deleted from the permit, and Midwest Generation requests that

the Board stay the effectiveness of Condition

5(c)(ii), as set forth in Exhibit 2, during the

pendency of this appeal.

The Agency Has Inappropriately Failed to Include Language Specifying

Compliance Dates for Certain Conditions Consistent with Applicable Requirements

First Paragraph of Condition 5(b) and Condition 5(b)(i).

27.

The ultimate purpose of the ACI systems that Midwest Generation seeks to install

is to reduce emissions of mercury from

Powerton Units 5 and 6. In order to comply with the

deadlines contained in the mercury rule, Midwest Generation must begin the process of

installation, shakedown, and testing prior to the compliance date. Because of the number of ACI

systems that must be installed across Midwest Generation's fleet and because of the timing of

planned outages, Midwest Generation must proceed now, nearly two years prior to the

compliance date of July 1,2009

225.230(a)(l))

or even before final adoption of Subpart F,

which establishes a July 2008 compliance date for Midwest Generation

should it choose to opt

in to the provisions of Subpart F.

28.

Nevertheless, the dates by which sources must comply with the requirements of

either the mercury rule or Subpart F are established by the rules. A source cannot be required by

a permit to comply with an emissions limitation or other requirements prior to the compliance

dates established in the relevant rule. Yet the Agency attempts through this permit to require

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

compliance with mercury provisions prior to the dates in the rules, apparently simply because

Midwest Generation has sought to install and operate the ACI systems.

29.

Condition 5(b)(i) requires Midwest Generation to maintain records regarding the

sorbent being used, the settings for the sorbent injection rate, and each period of time when both

the boilers and sorbent injection were being used. As discussed above, the use of sorbent is

required by the mercury rule only if Midwest Generation opts in to Subpart F, and notification of

its intentions in that regard are not due until the end of this year. To the extent that Subpart

F is

the applicable requirement underlying Condition

5(b)(i), the provisions of this condition are

premature absent qualifying language tying the requirements to Subpart

F. Midwest Generation

understand and expects that the Agency would require records and reporting of sorbent use as

they relate to emissions of PM. However, Condition

5(b)(i) is more specific than that by

requiring, for example, the brand of the sorbent used, which is a function of Subpart F.

30.

Moreover, a phrase in Condition 5(b)(i) addresses records for the period of time

when the ACI systems are not operated. Nothing requires that Midwest Generation operate the

ACI systems unless and until it notifies the Agency that it is opting in to Subpart F. Until that

time, there is no applicable requirement that underlies this condition.

Therefore, the condition is arbitrary and capricious because there is no underlying

applicable requirement for it. The last phrase of Condition

5(b)(i), "and each period of time

when an affected boiler was in operation without the system being operated with explanation,

e.g., the boiler was being fired on natural gas," should be deleted from the permit.

32.

The first paragraph of Condition

5(b) and Condition 5(b)(i) are arbitrary and

capricious and should be deleted from the permit. Midwest Generation requests that the Board

order the Agency to delete the first paragraph of Condition

5(b) and Condition 5(b)(i). Midwest

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

Generation requests that the Board stay the effectiveness of the first paragraph of Condition 5(b)

and of Condition 5(b)(i), as set forth in Exhibit 2, during the pendency of this appeal.

The Requirements of Some Conditions Are Not Acceptable

Conditions l(b)(ii),

4(b),

and 5(b)(i).

33.

Condition 1

(a)(ii) establishes a PM emissions limitation of 0.44 tonslyear from

the activated carbon storage and handling systems. There will be two activated storage and

handling systems constructed and operated pursuant to this permit, one for each unit. The

language of the condition states that the limitation of 0.44

tons/year applies to both systems, yet

in other permits that the Agency has issued for ACI systems, this limitation has applied to single

storage and handling systems.

C.J,

Appeal of Construction Permit, Exhibit 1, Condition 1 (b)(ii)

PCB 08-01 8 (August 23,2007) (Midwest GeneratiodFisk Generating Station), incorporated by

reference herein for the limited purpose of demonstrating the inconsistency in emissions

limitations applicable to ACI storage and handling systems. The Fisk permit is for a single ACI

system connected to

a single boiler. There will be one activated carbon and storage and handling

system for the Fisk ACI system, and yet the PM emissions limitation for Powerton, with two

storage and handling systems, is the same as the one for Fisk: 0.44 tonslyear.

34.

Midwest Generation requests that the Board order the Agency to classify the

emissions from the activated carbon storage and handling system as insignificant in Condition

l(b)(ii). The Agency provided that the storage and handling of sorbent is an insignificant

activity in the construction permit issued to Dynegy Midwest Generation's Havana Power

Station.

See Appeal of Construction Permit, Exhibit 1, Condition 1.1 (b)(ii), PCB 07- 1 15

(August 22,2007)

(DynegyIHavana Power Station), incorporated by reference herein for the

limited purposes of demonstrating inconsistency in treatment of emissions limitations for ACI

storage and handling systems.

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

35.

Additionally, Condition

1 (b)(ii) requires the Permittee to comply with "all

applicable requirements of 35 111.Adm.Code Part 212 that apply to the storage and handling of

sorbent." (Condition

l(b)(ii)). Part 212 does not address the storage and handling of sorbent.

36.

For the reasons set forth above, Midwest Generation requests that the last two

sentences of Condition

l(b)(ii) be deleted from the permit as they are arbitrary and capricious.

Further, Midwest Generation requests that they be stayed, as set forth in Exhibit

2, during the

pendency of this appeal.

37.

Conditions

4(b) and 5(b)(i) suggest that the Agency misunderstands the manner in

which Midwest Generation will control the amount of activated carbon that will be injected into

the flue gas. Injection of the activated carbon into the flue gas will be computerized. The

computer will monitor appropriate parameters and will calculate and cause to be injected the

appropriate amount of activated carbon on an on-going basis. There are no manual controls of

the carbon injection rates and no remote control of the carbon injection rates from the control

room, as implied by Condition

4(b). The "setting," required by Condition 5(b)(i), is the 5

lblmacf or whatever the applicable regulation requires. For these reasons, Conditions 4(b) and

5(b)(i) are inappropriate and should be deleted from the permit. Midwest Generation requests

that the Board order the Agency to delete Conditions

4(b) and 5(b)(i) and that it stay these

conditions, as set forth in Exhibit 2, during the pendency of this appeal.

Midwest Generation Objects to the Inclusion of Deviation Reporting

Condition 6.

Condition 6 requires deviation reporting. Deviation reporting is a function of

CAAPP permitting.

See 4 15 ILCS 5/39.5(7)(f)(ii). It is not a requirement found in the

permitting requirements of Section 39 of the Act (41 5 ILCS 5/39) or the construction permitting

regulations of 35

111.Adm.Code Part 201, the provisions of the Act and regulations under which

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

this permit was issued. While the pertinent provisions of this construction permit will eventually

be rolled in to Powerton's CAAPP permit, the construction permitting rules do not provide for

deviation reporting prior to inclusion of the pertinent provisions in the CAAPP permit. Although

this construction permit will, indeed, serve as an operating permit for the ACI systems until such

time as the pertinent provisions are transferred to the CAAPP permit, this construction permit is

not a CAAPP permit. It is not subject to any of the CAAPP requirements for permitting.

Midwest Generation acknowledges that some of the permitting procedures applicable under Part

201 may be the same or similar to some of the CAAPP permitting procedures. However, such

similarities or overlaps do not imply that Part 201 permitting is the same as CAAPP permitting in

terms of the types of requirements that can be included in the Part 201 permits.

39.

The Agency has exceeded the scope of its authority under the Act and the

applicable regulations by requiring deviation reporting in this construction permit. For these

reasons, Midwest Generation requests that the Board order the Agency to delete Condition 6

from the permit and that it stay the effectiveness of Condition 6, as set forth in Exhibit 2, during

the pendency of this appeal.

WHEREFORE, for the reasons set forth above, Midwest Generation appeals the first

paragraph of the permit and Conditions

l(a), l(b)(ii), 2(a), 2(a) Note, 4, 5 (except for Conditions

S(b)(ii) and 5(d)), and 6 of the construction permit issued August 8,2007, for the Powerton

Generating Station. Additionally, Midwest Generation requests that the Board stay all or the

portions of Conditions

l(b)(ii), 2(a), 2(a) Note, 4, 5(a), 5(b), 5(b)(i), 5(c), and 6, as set forth in

Exhibit 2. Midwest Generation will comply with relevant monitoring, recordkeeping, and

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

reporting requirements of Part 225, Subpart B andlor Subpart F, as applicable, at the time they

become applicable, during the pendency of this appeal.

Respectfully submitted,

MIDWEST GENERATION, LLC

POWERTON GENERATING STATION

by:

Dated: September 5,2007

SCHIFF

HARDIN, LLP

Sheldon A. Zabel

Kathleen C. Bassi

Stephen

J. Bonebrake

6600 Sears Tower

233 South Wacker Drive

Chicago, Illinois 60606

3 12-258-5500

Fax: 3 12-258-2600

kbassi@,schiffhardin.com

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

EXHIBIT LIST

Exhibit No.

Construction Permit issued to the Powerton Generating Station August 8,2007

Powerton Construction Permit, redlined to indicate the specific language

Midwest Generation requests be stayed

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

Rot)

R. BI.AC;OJEVIC~-~,

GOVERNOR

DOU(.;L.AS

SCO-r~,

~)IRECTOR

CONSTRUCTION PERMIT 

PERMITTEE 

Midwest Generation 

EME, 

LLC

-,.

Powereon 

Attn: Andrea Crapisi 

440

South LaSalXc Street, Suite 3500 

Generating 

Station 

Chicago, Illinois 

60605

Application 

A-licant 

No.: 

Designation 

07060012

Date 

I.D. No.: 

Received: 

179801AAa

June 4, 2007 

Subject: Sorbcnt Injection Systems for Units 5 and 6 

Date Issued: August 

2007

Location: Powerton Generating Station, 13082 East Manito Road, Pekin 

Permit 

is hereby granted to the above-designated Permittee to CONSTRUCT 

equipment consisting of a sorbent injection system to control mercury 

emissions for 

each of the Unit 

5

and 6 boilers, as described in the above 

referenced application. This Permit 

is subject to standard conditions 

attached hereto and the following special 

condition(s): 

la, This Permit authorizes construction of sorbent injection systems for 

each of khe existing coal-fired boilers for Units 5 and 6 (affected 

boilers), The new sorbent injection systems would control mercury 

emissions 

by injecting sorbent, 

i.e.,

halogenated activated carbon, 

into the 

flue gas from these existing coal-fired boilers prior to the 

electrostatic precipitators 

(ESPs)

for each affected boiler. 

b.

i. This permit is issued based on this project being an emissions 

control project, whose purpose and effect will be to reduce 

emissions 

of mercury from the existing coal-fired boilers and 

which will not significantly increase emissions of other 

PSD

pollutants. As such, the terms and conditions of the existing 

perm3.t~ will continue to govern emissions and operation 

of

the

boilers except 

as specifically indicated, 

ii. This permit 

issued based on negligible particulate matter 

(PM)

emissions from the storage and handling of sorbent for the 

sorbent injection systems.. 

For this purpose emi,ssi.ons shall not 

exceed 

0.44 tons/ycar. However, the Permittee shall comply with 

all applicable requirements 

of 35 Ill. Adm. Code Part 212 that 

apply to 

the

storage and handling of sorbent. 

c. This permit does 

not authorize any rnodiflcations to the affected 

bailers 

or generating units, which would increase capacity or potential 

emissions. 

2a. The Permittee shall cornply with applicable emission standards and 

requirements related to mercury emissions for the affected 

boilers 

pursuant to 35 

IAC Part

225, 

Subpart B

and/or Subpart F, by the 

applicable dates specified by 

these

rul.es. 

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

Page 2 

Note: The 

Permittee expects that it will comply with certain provisions 

of

35

IAC

Part 225, Subpart F, which is still proposed, as an alternative 

to compliance with 

35 IAC Part 225, Subpart B. If the Permittee elects 

to comply with 

35 XAC Part 225, Subpart F, certain provisions of subpart 

3

would not be applicable, and the provisions of Subpart F would set the 

dates when certain other requirements do become applicable. 

b. This permit does not affect the authorizations in existing operating 

permits for the affected boilers, pursuant to 

35 IAC 201.149, 201.161 

and 201.262, that allow the Permittee: 

i.

To operate an affected boiler in violation of certain state 

emission standards during startup 

of the boiler 

or

the terms and 

conditions that accompanied such authorization. 

ii.

TO continue to operate an affected boiler in violation of certain 

state emission standards during malfunction or breakdown of the 

boiler, including control devices and ancillary systems, or the 

terms 

and conditions that accompanied such authorization. 

3. At all times, the Permittee shall, to the extent practicable, maintain 

and operate the sorbent injection systems including storage and 

handling of sorbent, in a manner consistent with good 

air pollution 

control practice 

for minimizing emissions from the existing coal-fired 

boilers and the source. 

4a. The Permittee shall comply with all applicable requirements of 35 

IAC

Part 225, by the dates specified in the xules, related to monitoring of 

mercury emissions from 

the affected boilers. 

b.

If the sorbent injection systems can be adjusted remotely by personnel 

in the control room, the Permittee shall install, operate, and maintain 

instrumentation for measuring rate of sorbent injection for each 

affected boiler with 

the status of the system. 

5a. The Permittee shall maintain following records for the coal supply fox 

the affected 

boilers: 

i. Applicable records required by 35 IAC Part 225, by the dates 

specified in the rules, related 

to sampling and analysis of the 

coal supply to the affected boilers for 

its mercury content. 

ii.

Records of mercury and heat content of the current coal supply to 

the affected boilers, with supporting data 

fox the associated 

sampling and analysis methodology, so as to have representative 

data for the mercury content 

of the coal supply. 

b.

The Permittee shall maintain the following records for the sorbent 

injection system on each affected boiler: 

i.

operating log or other records for the system that, at a 

minimum, identify 

the sorbent that is being used, the setting($) 

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

Page 3 

for sorbent injection rate and each period of time when an affected 

boiler was 

in

operation without the system being operated with 

explanation, 

e.g., 

the boiler was being fired on natural gas. 

ii. Maintenance and repair log or other records for the system that, 

at a minimum, list the activities performed, with date and 

description. 

c.

The Permittee shall maintain following records related to mercury 

emissions Erom the affected boilers: 

i. All applicable records required by 

35

IAC Part 225, by the dates 

specified 

ii~

the rules, related 

of

monitoring mercu3.y ernf.ssions. 

ii.

During the period before the Permittee is required to conduct 

monitoring for the mercury emissions of the affected boilers 

pursuant to 

35 IAC Part 

225, 

the Permittee shall maintain records 

of any mercury emission data collected for the affected boilers, 

including emissions or control efficiency with identification 

and

description of the mode of operation. 

d. The Permittee shall retain all records required by this permit at the 

source for at least 

5 years Erom the date of entry and these records 

shall be readily accessible to the Illinois 

EPA for inspection and 

copying upon request. 

6.

If

'there is any deviation from the requirements of this permit, the 

Permittee shall submit 

a

report to the Illinois EPA within 30 days 

after the deviation or 

such other time period specified in the current 

CAAPP permit issued for the source. The report shall include a 

description of the deviation, a copy of relevant records, and measures 

to reduce emissions and future occurrences. 

7. The Permittee shall notify the Illinois EPA when sorbent injection 

systems 

on affected boilers start operating. 

8. The Illinois 

EPA

has determined that chis project, as described in the 

application, will not constitute a modification of the 

boiler under the 

federal New Source Performance Standards, 40 CPR 60, as the project has 

the primary function 

of

reducing emissions and therefore is not 

considered a modification pursuant to 40 CFR 60.14te) (5). 

9. Two copies of required reports and notifications shall be sent to the 

Illinois EPA's 

Compliance Section at the following address unless 

otherwise indicated: 

Illinois Environmental protection Agency 

Division 

of Air Pollution Control 

Compliance Section 

(#40)

P.O. Box 19276 

Springfield, Illinois 62794-9276 

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

Page

and one copy shall be sent to the Illinois EPAfs regional office at the 

following address unless otherwise indicated: 

11linoi.s Environmental Protection Agency/Regional Office 

~ivision of Air Pollution Control 

5415 North University Avenue 

Peoria, ~llinois 61614 

10.

The affected boilers may be opkrated with sorbent injection systems 

pursuant to this construction permit until an operating permit becomes 

effective that addresses 

operation of these boilers with these 

systems. 

If you have any questions on this permit, please call Kunj Patel at 

217/782-2113. 

Acting Manager, Permit Section 

Division of 

Air Pollution Control 

cc: Region 2 

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

STATE OF ILLINOIS

ENV1RONMENTAL PROTECTtON

AGENCY

DlVlStON OF

AIR

POLLUTION CONTROL

P.

0.

BOX 19506

SPRINGFIELD, ILLINOIS 62794-9506

STANDARD CONDHTlOl\d6S FOR CON$T&UCT3EON/DEVELOPMENT BERMITS

ISSUED

BY

TI333 ILLINOIS ENVIRONMENTAL PROTECTZON AGENCY

July

1, 1985 

The

Illinois Environmenta.1 Protection

Act

(Illinois

Revised Statutes, Chapter

111-112, 

Section 1039) authorizbs

the

Environmental Protection Agency to impose conditions on permits which

it,

issues.

The

1.

Unless

following

this

condi.tions

permit has

are

been

applicable

extended

unless

or it

has

susperseded

been

yoideed

by special

by

newly

condition(s1.

issued

permit, this permit

will expire

one

year

from the date of issuance, ulileas a continuous program

construction

development on this project has

started by such Lime.

2. The construction

development covered by this permit shall be done in compliance with applicable provisions of

the Illinois Environmental Protection

Act;

and

Regulations

adopted

by the

Xllirlois

Pollution

Control 

Board.

There shall

be

no deviations from the approved plans and specifications unless a written

request

for modification,

along with

plans

and specifications as

required,

shall

have

been submitted to

the

A.gency

and

a supplemental

written perm.it issued.

4. The per~:n..it;i;ee hall allow

a.n.y

duly authorized agent of the Agency

upoil

the presentation of credentials,

reasonable times:

enter the pcrn~iktee's property where actual. or potential effluent, emission or noise

sources 

are located

wh.ese a.ny

activity

be conducted pursuant

this

permit,

b.

to have access to and

to

copy any records required

be

kept

under

the terms

and

conditions

this permit,

t.c.

inspect, including during any hours

operation of

eq?aipr:nent

constructed or operated under

this

permit,

such equ.ipmeni; and

any

equipment

required

Go be lcept, used, operated, calibrated and maintained under this

permit,

obtain

enter and

and

utilize

remove

any

samples

photographic,

of any discharge

recording,

testing,

emissions

monitoring

of pollutants,

or other

and

equipment for the

purpose of

greservix~g,

testing, mortitoring, or recording a.ny activity, d.ischa.rge, or emission authorized by this permit.

The

shall

issuance

n.ot

this

considered

permit:

in any

manner 

affecting the title of the premises upon which the

permitbd

facilities

are

be located,

does not release

the

permittee from

any

liability for damage to person or property caused by or

resulting from

the constru.ction, maintenance, or operation

of

the proposed facilities,

does not release the permittee from compliance with other

applicable

statutes

and

regulations of the

United

States, of the

State

Illinois, or with

applicable

local laws, 01:dinances and regulations,

532-0226

does

not take

inlo

consi6eraration or

attest to

the structural stability

of any units

or parts of the project, and

APC 166 Rev. 5/99

Printed

on

Recycled Paper

090005

-,-..---.C-..-..-."-.-

------

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *

in no

manner 

implies or

sugg.ge8b

that the Agency (or its officers, agenta or employeee) assumes any liability,

directly or indirectly, for any loss due

damage, inatallation, maintenance, or operation of the proposed

equipment or facility.

6. a.

Unless a joint constructi~n/operation permit has been issued,

permit for operation shall be obtained from

the Agency before the equipment covered

by

this permit

placed into operation.

b.

For purposes of

shakedown 

and testing, unlesa otherwise specified

by a 

special permit

condition,

the equip-

ment covered under this permit may

operated for a period not to

exceed

thirty (30)

days.

7.

The Agency may file a complaint

with

the

Board for modification.,

suspension 

or revocation of a permit:

upon discovery that

the

permit application contained misrepresentations, misinformation or

false

statements

or that all relevant facts were not disclosed, or

b.

upon finding that any standard or special conditions have been violated, or

upon

any

violations of the Environmental Protection Act or any regulation effective tl~ereunder as a result of'

the construction or development authorized by this permit.

Electronic Filing, Received, Clerk's Office, September 6, 2007

* * * * * PCB 2008-023 * * * * *