ELECTRONIC FILING,
RECEIVED, CLERKS
OFFICE,
NOVEMBER 3,
2005
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PCB 2006-063
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BEFORE
THE ILLINOIS
POLlUTION
CONTROL 130AM)
I)YNEGY MIDWEST GENERATION, INC.
(BALDWIN ENERGY COMPLEX),
Petitioner!
V
ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY,
Respondent.
)
)
)
)
)
I’CB
___________
(Permit Appeal
—
Air)
)
)
)
)
CERTiFICATE
OF SERVICE
I,
the undersigned,
certify that
I have
served the
attached Appeal
oICAAPP Permit
of
Dynegy Midwest Generation, Inc.
(Baldwin Energy Complex)
and Appearances
of Sheldon
A. Zabel, Kathleen C. Bassi,
Stephen
J.
Bonebrake, Joshua R. More,
and Kavita M.
l’atel,
by electronic
delivery upon the fbllowing
person:
Pollution Control
Board, Attn:
Clerk
James R. Thompson Center
100
W.
Randolph
Suite
11-500
Chicago, Illinois
60601
Kathleen
C. Bassi
Dated:
November
3, 2005
and by electronic
and first class mail upon
the
following person:
Division of Legal Counsel
Illinois Environmental
Protection Agency
1021
North Grand Avenue, East
P.O.
Box
19276
Springfield, Illinois
62794-9276
Sheldon A. Zabel
Kathleen
C.
Bassi
Stephen
J.
Bonebrake
Joshua R.
More
Kavita
M.
Pate!
SCHIFF HARDIN, LLP
6600
Sears Tower
233
South Wacker
Drive
Chicago,
Illinois
60606
312-258-5500
Fax:
312-258-5600
ELECTRONIC FILING,
RECEIVED, CLERK’S OFFICE,
NOVEMBER
3,
2005
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PCB 2006-063
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BEFORE
TIlE ILLINOIS POLLUTION CON’rROL
BOARJ)
)
)
)
DYNEGY
MIDWEST GENERATION, INC.
(BALDWIN ENERGY
COMPLEX),
Petitioner,
)
)
V.
)
PCB
)
(Permit Appeal
—
Air)
)
)
)
)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
APPEARANCE
I hereby
file my
appearance in this proceeding,
Generation,
Inc.
(Baldwin Energy Complex).
Sheldon A. Zahel
Kathleen C.
I3assi
Stephen
J. Boncbrake
Joshua R.
More
Kavita M.
Patel
SCHIFF
HARDIN, LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois
60606
312-258-5500
on behalf of Dynegy Midwest
Dated:
November
3. 2005
Fax:
312-258-5600
ELECTRONIC
F!LING,
RECEIVED,
CLERK’S OFFICE,
NOVEMBER
3,
2005
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2006-063
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BEFORE THE
ILLINOIS
POLLUTION
CONTROL
BOAR!)
DYNEGY
MIDWEST GENERATION, INC.
(BALDWIN
ENERGY COMPLEX),
)
Petitioner,
)
)
v.
)
PCI)
___________
(Permit Appeal
—
Air)
ILLINOIS
ENVIRONMENTAL
)
PROTEC1’ION AGENCY,
)
Respondent.
APPEARANCE
I hereby
file niy appearance in this proceeding, on
behalf of Dynegy Midwest
Generation, Inc. (Baldwin Energy Complex).
Kath een
C. Bassi
Dated:
November 3, 2005
Sheldon
A.
Zabel
Kathleen
C.
Bassi
Stephen J.
Bonebrake
Joshua R.
More
Kavita M.
Patel
SO-liFE HARDIN, LLP
6600
Sears Tower
233 South Wacker Drive
Chicago,
Illinois
60606
312-258-5500
Fax:
312-258-5600
ELECTRONIC
FILING,
RECEIVED, CLERK’S OFFICE,
NOVEMBER
3,
2005
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PCB 2006-063
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BEFORE
TITE ILLINOIS
POLLUTION CONTROL
BOAR!)
DYNEGY MIDWEST
(BALDWIN ENERGY
Petitioner,
V
GENERATION, INC.
)
COMPLEX),
)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
APPEARANCE
)
)
)
)
PCB
______________
(Permit Appeal
—
Air)
)
)
)
)
I
hereby file my appearance in
this proceeding,
Generation,
Inc. (Baldwin Energy
Complex).
Sheldon A.
Zabel
Kathleen C. Bassi
Stephen J,
Bonebrake
Joshua R.
More
Kavita M. Patel
SCHIFF HARDIN,
LLP
6600 Sears Tower
233
South
Wacker Drive
Chicago, Illinois
60606
312-258-5500
Fax:
312-258-5600
on behalf of Dynegy Midwest
Dated:
November
3, 2005
ELECTRONIC
FILING,
RECEIVED,
CLERKS
OFFICE,
NOVEMBER
3,
2005
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BEFORE
1~
lIE
ILLINOIS
POLLUTION CONTROL BOARD
DYNEGY MIDWEST GENERATION, INC.
)
(BALDWIN
ENERGY COMPLEX),
Petitioner,
)
)
v.
)
J’CII
_____________________
)
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
APPEARANCE
I hereby
file my appearance in this proceeding, on
behalfof Dynegy Midwest
Generation, Inc. (Baldwin Energy Complex).
/
~//
~
—~
~ytr2~cL_ il
___
//
JoshuaR.
More
Dated:
November
3, 2005
Sheldon
A.
Zabel
Kathleen
C. Bassi
Stephen
J, Bonebrake
Joshua R.
More
Kavita M. Patel
SCHIFF HARDIN, LLP
6600 Sears Tower
233
South
Wacker Drive
Chicago,
Illinois
60606
312-258-5500
Fax:
312-258-5600
ELECTRONIC
FILING,
RECEIVED, CLERK’S OFFICE,
NOVEMBER
3,
2005
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PCB 2006-063
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BEFORE THE
ILLINOIS POLLUTION
CONTROL
BOARI)
DYNEGY
MII)WEST GENERATION, INC.
(BALDWIN ENERGY COMPLEX),
)
)
Petitioner,
)
PCI)
___________
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
APPEARANCE
1 hereby
file my
appearance in this proceeding, on
behalf of Dynegy Midwest
Generation.
Inc.
(Baldwin
Energy Complex).
Kavita M.
Patel
Dated:
November
3,
2005
Sheldon A. Zabel
Kathleen
C.
Bassi
Stephen
J.
Bonebrake
Joshua R. More
Kavita M. Patel
SCHIFF
HARDIN, LLP
6600 Sears Tower
233
South Wacker Drive
Chicago, Illinois
60606
312-258-5500
Fax:
312-258-5600
ELECTRONIC
FILING,
RECEIVED,
CLERKS
OFFICE,
NOVEMBER 3,
2005
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PCB 2006-063
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BEFORE THE
ILLINOIS POLIJUI’ION
CONTROL HOARD
DYNEGY MIDWEST GENERATION, INC.
(BALDWIN ENERGY COMPLEX),
Petitioner,
)
)
v.
)
PCI)
________________
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
)
NOTICE
OF FILING
To:
Pollution Control
Board, Attn:
Clerk
Division of Legal Counsel
James R. Thompson Center
Illinois Environmental
Protection Agency
IOU
W. Randolph
1021
North Grand Avenue, East
Suite
11-500
P.O.
Box
19276
Chicago,
Illinois 60601
Springfield,
Illinois
62794-9276
PLEASE TAKE NOTICE that I
have today filed with the
Office of the Clerk of the
Pollution control Board the original
and nine copies
of the Appeal of CAAPP
Permit
of
Dynegy Midwest Generation,
Inc. (Baldwin Energy Complex) and the Appearances of
Sheldon
A.
Zahel, Kathleen C.
Bassi, Stephen
I.
Bonebrake, Joshua R. More,
and Kavita M.
Patel, copies of which are herewith served
upon
you.
Sassi
Dated:
November
3, 2005
Sheldon A. Zabel
Kathleen C.
Bassi
Stephen J. Bonebrake
Joshua R,
More
Kavita M. Patel
SCHIFF
IIARDIN, lIP
6600 Sears Tower
233
South
Wacker Drive
Chicago,
Illinois
60606
312-258-5500
Fax:
312-258-5600
ELECTRONIC FILING,
RECEIVED, CLERK’S OFFICE,
NOVEMBER
3,
2005
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PCB
2006-063
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BEFORE
THE
ILLINOIS POLLUTION
CONTROL
BOARD
DYNEGY MIDWEST GENERATION, INC.
)
(BALDWIN ENERGY COMPLEX)
)
)
Petitioner,
)
)
v.
)
PCB
___________
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
APPEAL OF CAAPP PERMIT
NO\V COMES Petitioner,
DYNEGY
MIDWEST GENERATION,
NC.
(Baldwin
Energy Complex)
(“Petitioner,” or
“DMG”),
pursuant to Section
40.2 of
the Illinois
Environmental
Protection Act (“Act”) (415
ILCS 5/40.2) and 35
Ill.Adm.Code
§
105.300
et seq.,
and requests a hearing before the Board to contest the permit issued to Petitioner on
September
29,
2005, under the Clean Air
Act Permit Program (“CAAPP” or ‘i’itle V”)
set
fbrth at
Section
39.5
of the Act (415
ILCS
5/39.5).
Although this appeal contests
many specific provisions of the
permit,
these specific provisions are so intertwined with the remaining provisions that
it would
be impractical to implement those remaining
provisions.
Therefore, DMG appeals the permit as
a whole.
In support
of its Petition, Petitioner states as
follows:
I.
BACKGROUND
(35
II1.Adm.Code §
11)5.304(a))
1.
On November
15,
1990,
Congress amended the Clean
Air Act (42 U.S.C.
§~
7401-7671q) and included in the amendments at Title V a requirement for
a national operating
permit program.
The Title V program was to he
implemented by states with
approved programs.
Illinois’ Title V program,
the CAAPP, was fully
and finally approved by the
U.S. Environmental
Protection Agency (“USEPA”) on
December 4, 2001
(66 Fed.Reg. 72946).
The
Illinois
ELECTRONIC
FILING,
RECEIVED, CLERK’S OFFICE,
NOVEMBER
3,
2005
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Environmental
Protection Agency- (“Agency”) has had
the authority to issue CAAPP
permits
since at least March 7,
1995.
when
the state was granted interim approval of its
CAAPP (60
Eed.Reg.
12478).
Illinois’ Title V program
is
set
forth at Section
39.5 of the Act. 35
IIl.Adm.Code 201.Suhpart
F, and
35
lll.Adni.Code
Part 270.
2.
The Baldwin
Energy Complex (“Baldwin”
or the “Station”). Agency
1.1).
No,
157851 AAA, is an electric generating station owned
and operated by DM0,
The Baldwin
electrical
generating units
(“EGUs”) went online between roughly 1969
and
1975.
The Station
is
located
at
f/I
Chessen
I.ane,
Alton, Madison
County, Illinois
62002.
DMG
employs
approximately
175
people at the Baldwin
Station.
3.
DMG operates three coal-fired boilers at Baldwin that have the capability to fire
at vanous modes that include coal
as their principal
fuels.
In addition. the boilers fire
oil
as
auxiliary
fuel during startup and for flame stabilization.
Certain alternative
fuels may be utilized
as well,
DMG also
operates one oil
fired boiler at
Baldwin used for building heating purposes
and to produce steam for
auxiliary support.
Baldwin
also operates
associated coal
handling, coal
processing, and ash handling equipment
and systems.
Finally, there is a 1,200-gallon capacity
gasoline tank located at Baldwin.
4.
Baldwin
is a major source subject to Title
V.
The three EGUs at Baldwin are
subject
to both of Illinois’
NOx reduction programs:
the “0.25
averaging” program at 35
IIl.Adm.Code 217.Subparts V and the “NOx
trading program” or “NOx
SIP call” at 35
Ill.Adm.Code 217.Subpart W.
Baldwin is subject to the
federal Acid Rain
Program at Title
IV of
the Clean Air Act and has been
issued a Phase
II Acid Rain Permit.
5.
Currently,
NOx emissions
from Boilers
I
and 2
are controlled
by overfire air and
selective catalytic
reduction, and NOx emissions from
Boiler 3
are controlled
by
low
NOx
-7-
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RECEIVED, CLERK’S OFFICE,
NOVEMBER
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2005
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burners
and overfire
air,
Emissions of SO2
from
the Boilers
1,
2 and
3
are controlled
by
limiting
the sulfur content of the
fuel used for the boilers.
PM
emissions
from
all three Boilers
are
controlled by
an electrostatic precipitator (“ESP”) with
a flue gas conditioning system.
Fugitive
PM emissions
from various coal and ash handling activities
are controlled
through
enclosures,
haghouses, covers,
and dust suppressants,
as necessary and appropriate.
Emissions of carbon
monoxide
(“CO”) are limited through
good combustion practices
in the boilers,
VOM
emissions
from
the gasoline storage tank
are controlled by
the use of a submerged
loading
pipe.
6.
The Agency received the original CAAPP permit application
for the
Station in
about September,
1995,
and assigned Application No.
95090026.
The CAAPP permit
application was timely
submitted and updated, and Petitioner requested
and was granted
an
application shield,
pursuant to Section 39.5(5)(h).
Petitioner has paid fees as
set
forth at Section
39.5(18) of the
Act since 2000
in
connection with
the CAAPP
permit
for the Station.
The
Station’s state operating permits have continued in fill
force and effect
since submittal of the
CAAPP permit
application, pursuant
to Sections 9.1(1) and 39.5(4)(b) of the Act.
7.
The Agency issued a draft permit for public review on June 25, 2003,
The
Agency subsequently held a hearing
on the draft permit in August 2003.
DMG
filed written
comments with the Agency regarding
the Baldwin draft permit.
8.
The Agency issued a proposed permit for the
Baldwin Station
in October, 2003,
This permit was not technically open for public comment,
as
it had been sent to USEPA
for
its
comment as required by Title
V.
Subsequently, in December 2004, the Agency issued a draft
revised proposed permit and requested comments of Petitioner and other interested persons.
DM0 has attached the appealed
permit to
this Petition.
however,
the draft
and proposed permits and
other
documents referred
to herein should be
included
in
the administrative
record that the Agency will ilk,
Other
documents referred
to
in this
Petition, such as
eases or
Board decisions, are
easily accessible.
In
the
interest of
economy,
then
DM0
is not attaching such
documents to this Petition.
-3-
ELECTRONIC FILING,
RECEIVED, CLERK’S OFFICE,
NOVEMBER
3,
2005
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DM0
again commented.
The
Agency issued
a second draft revised proposed permit
in July
2005
and allowed the
Petitioner and
other interested persons
10
days
to comment.
At the same
time,
the Agency released its
preliminary Responsiveness Summary, which was a draft of its
response
to comments,
and invited comment
on
that document
as well,
DMG
submitted
combined comments
on
this
version of the permit
for Baldwin and for
its four other generating
stations together, as well
as
on
the
preliminary Responsiveness Summary.
The Agency
submitted the revised proposed
permit
to USEPA
for
its 45-day
review
on
August
15.
2005.
‘ftc
Agency did
not seek
further comment on
the
permit
from
the Petitioner or other interested
persons,
and DMG has not submitted
any further comments, based
upon the understanding that
the Agency had every intention to issue the pen’nit at the end of USEPA’s review
period.
9.
The
final
permit
was,
indeed,
issued
on September
29,
2005,2
Although
some of
Petitioner’s comments have been addressed in
the various iterations of the permit.
it
still
contains
terms and conditions that
are not
acceptable to Petitioner,
including conditions that are contrary
to applicable
law and conditions that first appeared,
at least in their
final detail, in the
August
2005 proposed permit
and upon which Petitioner did
not
have the opportunity to
comment.
It is
for
these reasons that
Petitioner hereby appeals the permit.
This permit appeal is timely
submitted
within
35
days
following issuance of the permit.
Petitioner requests that
the
Board
review the permit, remand
it to the
Agency, and order the Agency
to correct and reissue the
permit, without further public
proceeding,
as appropriate.
2
See
USEPAIRe5ion 5’s
Permits
website
at
c
httpJ/www.epa.gov/re~ion5/air/permits/ilp,nline.htrn4
“CAAPP permit Records” 4
“Dynegy Midwest Generation Inc.”
for the source located at ~tl Chessen Lane,
Alton,
for the
complete “trail” of the
milestone action dates for this permit.
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ELECTRONIC
FILING,
RECEIVED,
CLERK’S OFFICE,
NOVEMBER
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2005
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11.
EFFECTIVENESS OF PERMIT
10.
Pursuant to Section
10.65(h) of the Illinois Administrative
Procedures Act
(“APA”),
5
ILCS
100/10-65, and the holding
in
Borg-\Varner Corp.
v. Mauzy.
427 N.E.
2d
415
(lll.App.Ct.
1981) (“Borg-Warner”),
the CAAPP permit issued
by
the Agency
to
the Station does
not become effective 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.
Section
10-
65(h) provides that “when a licensee has made
timely and sufficient application for the renewal
of a license or a‘new license
with reference to
any activity ofa
continuing nature, the existing
license shall
continue in full
force and
effect
until the final
agency decision on the application
has been made unless a later date is fixed by order of a reviewing court.”
5
ILCS 100/10-65(b).
‘Flie
Borg-Warner
court
found
that
with respect to
an appealed environmental permit, the “final
agency decision” is the final
decision by the Board
in an appeal, not
the issuance of the permit by
the Agency.
Borg-Warner,
427
N.E.
2d 415
at
422;
see also 1111’,
Inc.
v.
IL
Environmental
Protection Agency,
1989
WL
137356
(Ill. Pollution Control Bd.
1989);
Electric Energy,
Inc.
v.
IlL
Pollution ControlBd.,
1985
WL 21205
(Ill. Pollution Control
Bd.
1985).
l’herefore, pursuant
to
the APA
as interpreted by
Borg-Warner,
the entire permit is not
yet effective and the existing
permits for the facility continue in effect.
11.
The Act provides at Sections 39.5(4)(b) and 9.1(f) that the
state operating permit
continues
in
effect until issuance of the CAAPP permit.
Under
Borg-Warner,
the CAAPP permit
does not become effective until the Board issues its order on this appeal
and
the Agency has
reissued
the permit,
Therefore, DMG currently has
the necessary permits to operate the Station.
In the alternative, to
avoid any question
as to the limitation on the scope of the effectiveness of
the permit under the APA,
DMG requests that the Board exercise
its discretionary authority at
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35
1Il.Adm.Code
§
105.304(h) and
stay the entire
permit.
Such a stay
is necessary to protect
DMG’s
right to
appeal
and to
avoid the imposition of conditions that contradict or
are
cumulative of the conditions in
the pre-existing permits before
it
is able to exercise that right to
appeal.
Further, compliance with the
myriad
of new monitoring, inspection,
recordkeepmng,
and
reporting conditions that
are
in the CAAPP permit
will be extremely costly.
To comply
with
conditions
that
are inappropriate, as DMG alleges below, would
cause irreparable harm to DM0,
including the
imposition of these unnecessary costs and the adverse
effect
on DMO’s
right
to
adequate
review
on
appeal.
DMG
has no adequate remedy at law other than
this appeal
to
the
Board.
DMG is likely
to
succeed on the
merits of its appeal, as the Agency
has
included
conditions
that do
not
reflect
“applicable requirements,”
as defined by Title V.
and has exceeded
its
authority to impose permit conditions and has imposed pertnit conditions that are arbitrary
and capricious.
See Lone
Star Industries,
inc.
v.
IEPA,
PCB
03-94 (January 9, 2003);
Nielsen
&
Brainhridge,
L.L.C.’.
~cIEPA,
PCB 03-98 (February 6.
2003);
Saint-Gobain
Containers,
Inc.
y
IEPA,
PCB 04-47 (November 6.
2003);
Champion Laboratories,
inc.
v.
IEPA,
PCB
04-65
(January 8, 2004);
jVoveon,
Inc.
v.
IEPA,
PCB 04-102
(January 22, 2004);
Ethyl Petroleum
Addiiiv?~,Inc.,
v,
IEPA,
PCB
04-113 (February 5,2004);
Oasis industries,
Inc.
v.
JEPA,
PCB
04-116 (May 6,2004).
Moreover,
the Board has stayed
the entirety of all the CAAPP
permits
that have
been appealed.
Additionally see Bridgestone/Firestone 0/f Road
Tire Company
v.
JEPA,
PCB
02-31 (November
1, 2001);
Midwest Generation,
LLC— Collins Generating Station
v
IEPA,
PCB
04-108
(January 22, 2004);
Board of Tiustees of Eastern Illinois
University
v,
IEPA,
PCB 04-110 (February 5,2004).
The Board should continue to follow this precedent.
12.
Finally, a large number of conditions included in this CAAPP pennit are appealed
here,
To allow some conditions of the CAAPP permit to he effective while equivalent conditions
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*****PCB2006063*****
in
the old state operating permits remain
effective under Section
10-65(b) of the Illinois APA
would create
an administrative environment that would he,
to say the least,
very
confusing.
Moreover, the Agency’s failure to provide
a statement of basis, discussed below, renders the
entire
permit
defective.
Therefore,
DMG requests that the Board stay the entire permit for these
reasons.
13.
In
sum, pursuant to Section
10-65(h) of the APA
and
Borg-Warner,
the entirety of
the CAAPP permit does not beconie effective until the completion of the administrative process,
which occurs when the Board has issued its
final
ruling on the appeal
and the Agency has acted
on any remand.
(For the sake of simplicity, hereafter the effect of the
APA will be referred to as
a “stay”),
In
the alternative,
DM0 requests that the Board,
consistent with its
grants of stay
in
other CAAPP
permit
appeals,
because of the pervasiveness of the conditions
appealed
throughout
the permit,
to protect DMG’s
right to appeal
and in the interests of administrative
efficiency,
stay the effectiveness of the entire permit pursuant to its discretionary authority at 35
lll.Adm.Code
§
105.304(h).
In addition, such a stay will
minimize the
risk of unnecessary
litigation concerning the question of a stay and expedite resolution of the underlying substantive
issues.
‘l’he state operating permits currently in effect will
continue in effect throughout the
pendency of the appeal and remand.
Therefore,
the Station will
remain subject to the terms
and
conditions of those permits.
As the CAAPP permit
cannot impose new substantive conditions
upon a permittee
(see
discussion below),
emissions limitations are the
same under both permits.
The environment will
not be harmed by a stay of the CAAPP permit.
ilL
ISSUES ON APPEAL
(35
IILAdm.Code §~105.304(a)(2), (3),
and
(4))
14.
As a preliminary matter, the CAAPP permits
issued to the Baldwin Station
and 20
of the other coal-fired power plants in the state
on the same date are very similar in content.
‘ftc
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same language
appears in virtually
all
of the permits,
though there arc subtle
variations
to some
conditions to
reflect the elements of uniqueness that exists at the various stations.
For example,
not
all stations have
the same types of emissions units.
Some units in the state
are subject
to
New
Source Performance Standards
(“NSPS”), perhaps
New Source
Review (“NSR”) or
Prevention of Sipiificant
Deterioration (“PSD”). or other state
or
federal programs,.~while others
are not.
Applicable requirements may differ because of geographic location.
As a result,
the
appeals of these
permits
filed with the Board
will he repetitious with elements of uniqueness
reflecting
the various stations’
circumstances.
Further, the issues on
appeal
span the gamut of
simple
typographical errors
to extremely complex
questions of law.
Petitioner’s
presentation
in
this appeal is by issue per unit
type,
identifying the permit
conditions giving rise to the appeal
and the conditions related
to them that would be affected, should the Board graot
Petitioner’s
appeal.
Petitioner appeals all
conditions related to the conditions giving risc to the appeal,
however, whether or not
such related conditions are expressly identitied below.
15.
The Act does
not require a permittee to have participated
in the public
process:
the permittee merely needs to object
to a term
or condition in
a permit
in
order to have
standing
to appeal
the permit
issued
to him.
See
Section 40.2(a) of the Act (the
applicant may appeal
while others need to have participated in the public process).
However, DMG,
as will be
evidenced by the administrative record, has actively participated to the extent allowed by the
Agency in the
development of this permit.
In some instances,
as discussed in further detail
below, the Agency did not provide DM0 with a viable opportunity to
comment, leaving
DM0
with appeal as
its only alternative as a means of rectifying inappropriate conditions.
These issues
are properly before the Board in
this proceeding.
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16.
Section
39.5(7)(d)(ii)
of the
Act grants
the
Agency
limited
authority to “gaptill.”
“Gapfilling” is the inclusion
in
the permit of periodic monitoring requirements, where the
underlying
applicable
requirement
does nol
include them.
Section
39.7(7)(d)(ii)
faithfully
reflects
40
CFR
§
70.6(a)(iii)(B), the subject of litigation
in
Appalachian
Power
Company
v.
EPA,
208
F.3d
1015 (D.C.
Cir.
2000).
The court in
Appalachian
Power
found that state
authorities
are precluded
from including provisions
in permits requiring more frequent
monitoring3 than is required in the underlying
applicable
requirement
unless
the
applicable
requirement
contained no periodic testing or monitoring, specified
no frequency for the testing or
monitoring,
or required only a one-time test.
Appalachian
Power
at
1028.
17.
The
Appalachian
Power
court also noted
that “Title
V does not impose
substantive new requirements”
and that
test methods and the frequency at
which they are
required “are surely ‘substantive’
requirements; they impose duties
and obligations on those who
are regulated.”
Appalachian Power
at
1026-27.
(Quotation marks and citations
in original
omitted.)
Thus, where the permitting authority, here the Agency, becomes over-enthusiastic
in
its gapfilling,
it is imposing new substantive requirements
contrary to Title V.
18.
The Agency, indeed,
has engaged in
gapfilling, as
some of the Board’s underlying
regulations do not provide specifically for periodic monitoring.
CI’,
35
lll,Adm,Code
212.Subpart
E.
However,
the Agency has also engaged
in over-enthusiastic
gapfilling in some
instances,
as discussed in detail below.
These actions are arbitrary and capricious
and
are an
unlawfiul assumption of regulatory
authority not granted by
Section 39.5 of the Act.
Moreover,
contrary to
Appalachian
Power,
they,
by their nature, unlawifilly constitute the imposition
of
new substantive requirements.
Where Petitioner identifies inappropriate gapfilling as
the basis
Note that testing may
be a tpe
of monitoring.
See
Section 39.5(7)(d)(ii) of the Act.
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for its objection
to
a term
or
condition oI’Ue permit,
Petitioner requests
that the Board assume
this preceding discussion of gapfilling
as part
of that discussion of the specific term
or
condition.
19.
In a number of instances specifically identified
and
discussed below,
the Agency
has
failed
to provide required
citations to the applicable requirement.
“Applicable requirements”
are those substantive requirements that have been
promulgated or
approved by USEPA pursuant
to the Clean Air Act which directly impose requirements upon a source, including those
requirements set forth
in the statute or regulations that are part of the Illinois SIP,
Section
39.5(l).
General
procedural-type requirements or authorizations are not substantive “applicable
requirements” and are
not sufficient basis for a substantive term
or condition
in the permit.
20,
The Agency has cited generally to Sections 39.5(7)(a),
(b).
(e) and
(1) of the Act
or
to Section 4(b) oldie
Act, but
it has not cited to the substantive applicable requirement that
serves as the basis for the
contested condition
in the permit.
Only applicable requirements may
be included in the permit,4 and the Agency is required by Title V to identify
its basis for
inclusion of a permit condition (Section 39.5(7)(nfl.
If the Agency cannot
cite to the applicable
requirement and the condition
is not proper gapfihling, the
condition cannot be included in the
permit.
The Agency has confused general data- and information-gathering
authority with
“applicable requirements.”
They are not
the same.
Section
4(b)
of the Act cannot be converted
into
an applicable requirement merely because the Agency includes it
as the basis
for
a
condition.
Failure to cite the applicable requirement
is grounds for the Board to remand the term
or condition to the Agency.
In its discussion of gaptilling, the
Appalachian Power
court
notes that “TiUe V does
not
impose substantive
new
requirements.”
208
F.3d
at 1026.
(Internal quotation marks and citations omitted).
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21.
Moreover,
the Agency’s assertion in the Responsiveness
Summary that its general
statutory authority
serves as
its
authority to
include conditions necessary to “accomplish the
purposes
of the Act” misstates
what is actually in the Act.
Responsiveness
Summary, p.
15;
sec
Section 39.5(7)(n).
Section 39.5(7)(a)
says that the permit is
to contain conditions necessary to
“assure compliance with all applicable requirements.”
(Emphasis added.)
For the Agency to
assume broader authority than that
granted by the
Act is unlawftl
and arbitrary and capricious.
22.
Another general deficiency of the CAAPP permitting process in
Illinois
is the
Agency’s refusal to develop and issue a format statement
of basis for the permit’s conditions.
This
statement of basis is
to explain
the permitting
authority’s rationale for the terms
and
conditions of the permit.
It is to explain why the Agency made the decision
it did, and it
is to
provide the permittee the opportunity to
challenge the Agency’s rationale during
the permit
development process or comment period.
Title V requires the permitting authority to provide
such a statement of basis.
(Section 39.5(7)(n) of the Act.)
The Agency’s after-the-fact
conglomeration of the very short project summary produced at public notice, the permit,
and the
Responsiveness Summary are just not sufficient.
When the permittee
and the public
are
questioning rationale in comments,
it
is evident that the Agency’s
view of a statement of basis is
not sufficient.
Further, the Responsiveness
Summary is prepared after the fact; it
is not provided
during permit development.
Therefore, it cannot serve
as the statement
of basis.
The lack of a
viable statement
of basis, denying the permittee notice of the Agency’s decision-making
rationale and
the opportunity to
comment thereon, makes the entire permit defective and is,
in
and of itself,
a basis for appeal and remand of the permit and stay of the entire permit.
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A.
issuance and Effective
Dates
(Cover
Page)
23.
The Agency issued the CAAPP permit
that is
the subject of this
appeal
to
DMG
on September 29,
2005. at about 7:17 p.m.
The Agency
notified DMG that the permit had been
issued through emails sent to
DMG.
The email
indicated that the pennits were available on
USLiPA’s svehsite, where
Illinois’
permits are housed.
However,
that was
not
the
case.
DMG
was
not able
to locate the
pcnnits on
the website that
evening.
24.
The
issuance date of the permit becomes
important because that is also the
date
that
starts the clock
for
filing an appeal
and the date,
unless the permit
is
appealed,
by which
certain documents
must be
submitted
to the
Agency.
USEPA’s website identifies
that date as
September 29,
2005.
If that date is also
the effective
date, many additional
deadlines would
he
triggered, including the expiration date as well
as the date by
which certain
documents
must be
submitted to
the Agency.
More critical,
however, is the fact that once the permit
becomes
effective, DMG would
become
obligated
to comply
with
it (subject to the stay of the permit
as
discussed herein), regardless of whether
it had
necessary reeordkceping
systems in place, the
necessary additional
control
equipment
in place,
and so
forth.
It took the Agency over two
years
to issue the final permit.
Over that course of time,
the Agency issued numerous versions of the
permit,
and it has changed considerably.
Therefore,
it would
he unreasonable to
expect DMG to
have
anticipated the final permit to the degree necessary for it to have been in compliance
by
September
29, 2005.
25.
Moreover, publication of the permit on a website
is not “official” notification
in
fllinois.
The
Petitioner cannot be deemed to “have” the permit until the original, signed version
of the permit has been delivered.
Neither Illinois’
rules nor the Act have been
amended to reflect
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electronic delivery of permits, especially
by reference to
a third
party’s
website.
Therefore,
until
the permit
is officially delivered to a perniittee,
it should
not be deemed
effective.
26.
Prior to the advent of pervasive use of computers and reliance on the internet
for
communication, the Agency sent
permits to
sources through
the U.S.
Postal Service, just as this
CAAPP permit was delivered on October
3,
2005.
Neither the Act nor the regulations specify
when permits should become effective.
Prior to the advent of Title V, however,
sources were not
subject to
such
numerous and detailed permit conditions, nor
were they exposed to enforcement
from
so
many sides.
Under Title V, not only the Agency through the Attorney General, but also
USEPA and the general public can
bring enforcement suits
for violation of the least matter
in the
permit.
lfthe
issuance date is the effective date,
there is potential for tremendous adverse
consequences to the per nittee with extremely inequitable effect.
27.
If the effective date was
September
29,
2005, that
would also
create
an obligation
to perform quarterly
monitoring and to submit quarterly reports,
(cf
Condition 7.1.10-2(a)),
for
the third quarter of 2005.
The third
quarter reporting requirements would cover less than 30
hours of operation.
A requirement
to perform
quarterly monitoring, recordkecping, and
reporting for
a quarter that consists of less than
30 hours of operation,
assuming the permittee
would even have compliance systems in
place so quickly after issuance of the permit, is
overly
burdensome and would not benefit the environment
in any manner.
Therefore, the requirement
is arbitrary and capricious.
28.
A lawful, and more equitable approach, would be
for the Agency
to delay the
effective date of a final
permit after remand and reissuance for a period of time reasonably
sufficient
to allow sources to implement any new compliance systems necessarybecause of the
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terms of the permit.
At the very least,
the Agency
should delay the pennit effective date
until
the
time allowed by law for the source to
appeal
the
permit has expired.
29.
Consistent with the
APA, the effective date of the permit, contested
herein,
is
stayed, and DMG
requests that the Board
order the
Agency
to establish an effective date some
period
of time after
the permittee has received the permit
following remand and reissuance of the
permit, to allow the pennittee sufficient time to
implement the systems necessary to comply with
all requirements in this very complex permit.
B.
Overall Source
Conditions
(Section
5)
(i)
The Permit Improperly
Incorporates Consent Decree Requirements
30.
On
May
27, 2005, the United Slates
District Court
for the Southern
District of
Illinois entered a Consent Decree
in
the matter of the United States of America, etal. v. D~eny
Midwest Generation~ct
a!., Case No. 99-833-MJR (the “Consent Decree”).
The CAAPP Permit
refers
to the Consent Decree
as Attachment
7.
Under Paragraph
158 of the
Consent Decree,
DMG is required within
ISO days
after entry of the Consent
Decree (by November 23, 2005) to
amend any applicable Title V Permit Application, or
to apply for amendments of its
‘l’itle V
permits, to include a schedule for all
“Unit-specific performance,
operational, maintenance,
and
control technology requirements established by
the
Consent
Decree,,..”
in Condition 5.4(a).
the Agency purports to
incorporate such a schedule for the Baldwin Station through “Attachment
6
of this pen’nit.”
As noted in Condition 5.4(a), “Attachment 6”
is referred
10
in
the permit as the
“Schedule.”
Condition 5.4(a) of the permit requires that DMG
comply with the “requirements”
of the Schedule.
Further, under Section
157 of the Consent Decree, “any term or limit
established by or under this Consent Decree shall be
enforceable under this Consent
Decree
regardless of whether such term
has
or will become a part
ofa
Title V permit
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31.
Although
compliance with the
requirements set forth
in
the Schedule
is
already
required
by Condition 5.4(a) and the Consent Decree also remains enforceable by its terms,
many other sections of the permit also purport to require compliance with various requirements
set
forth on the Schedule.
See, g~g,,
Conditions 5.4(b),
5.7.3, 5.7.4, 7.1.6-1, 7.1.6-2(h), (c)
and
(d),
7.1.7(a)(iii), 7.1 .7(a)(v), 7.1.8(e), 7.1 .9—3(a)(iii),
7.1.9—I
(O~
7.1 .9—2(a)(i),
7.1.1 0—2(b)(iii)
and 7.1.l2(
)(ii). The references
to, and the characterizations and purported incorporation of
Schedule
or Consent Decree requirements
in multiple conditions results in duplicative and
potentially inconsistent obligations, unauthorized requirements, confusion
and ambiguity.
For
instance,
as noted in more detail elsewhere
in this Petition, Condition
7.1.1 2(b)(ii) of this permit
purports to implement particulate matter CEMS provisions ofthe Consent Decree hut,
in reality,
would if sustained,
create
an
entirely new and unauthorized obligation.
This defect in Condition
7.1.1 2(b)(ii), and similar defects in some other conditions that address or refer to the Consent
Decree, are separately addressed later in this petition.
Those specific challenges
illustrate the
many problems caused by
including specific conditions that refer
to or
otherwise attempt to
incorporate obligations or provisions from the Schedule
or Consent Decree, and highlight,
in
particular, why those conditions should be deleted
from the permit.
Making specific
challenges
to sonic conditions is, however,
not intended to imply that other conditions do
not suffer
from
similar defects, and should not
be construed
as a waiver of the request in this section of the
petition to
delete all conditions that refer to the Schedule
or Consent Decree, with the exception
of Condition
5.4(a).
32.
Given the language of the Consent Decree and nature of its requirements,
DM0
does
not object to Condition
5.4(a).
Inclusion of additional conditions in the permit, however,
including Conditions
5.4(b) (including
all of its subparts),
5.7.3
(including all
of its subparts),
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5.7,4,
7.1 .3(a)(ii),
7.
I .3(b)(ii)(13),
7.1 .3(c)(ii),
7.
I .4(h)(ii).
7.
1 .4(c),
7.
I .4(1)0 i),
7.
1
.6—1
(including
all
of its subparts).
7.1.6-2(b),
(c) and (d) (including all of their subparts),
7.1
7.1 ,7(a)(iii), 7.1 .7(a)(v),
7.1 .7(hRiii)(13),
7.1.8(e), 7.I.9-3(a)(iii), 7.1 .9-2(h)(v),
7.1 .9-3(c)(iii)(B),
7.1.1 O-2(c)(iv)
and 7.1.1 2(h)(ii), that
purport to
implement
or adopt requirements from
or
otherwise characterize or
refer to the Consent Decree
or Schedule, and
conditions that reference
or relate to such
conditions, is arbitrary and
capricious and unauthorized by
law (the “Additional
Consent
Decree Conditions”).
33.
For these reasons, Additional Consent Decree Conditions,
all
contested herein,
are
stayed
in this proceeding consistent
with the MA,
and DM0 requests that the Board order the
,Agency to delete these conditions and
all references
to these conditions
from the pennit.
This
stay will have no
effect
on the enforceability of the Consent Decree under
its own terms.
(ii)
The Permit Incorrectly Requires Compliance with Consent Decree
Requirements
that Do Not Accrue within
the Term
of the Permit.
34.
The permit in
various conditions
purports to specifically impose obligations with
respect
to matters that are not required under the Consent Decree prior to
the stated expiration
date of the permit,
September 29, 2010.
Atteinptingto impose in
this permit
requirements that
do
not
accrue until
after the termination date of this permit is arbitrary and capricious
and
unauthorized by
law.
For example,
Conditions 7.1.6-1(a),
(b) and (c)(ii)(B) address emission
limitations applicable
after the expiration of the
stated five-year term of the CAAPP permit.
35.
For these reasons,
conditions that address requirements under the Consent Decree
that arise after September
29, 2010,
including Condition
7.1.6-1 (a),(b) and (c)(ii)(B),
and all
conditions that reference or relate to these conditions, all
contested herein, are stayed consistent
with
the APA,
and DM0 requests
that the
Board order the Agency to delete these conditions and
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all references to these conditions
from the permit.
This
stay will
have no effect
on the
enforceability of the Consent Decree under
its own terms.
(iii)
The Schedule Misconstrues Some Consent Decree Requirements and Incorrectly
Requires Compliance with
Certain
Consent Decree Requirements that Are Not Unit
Specific.
36,
According to
Condition 5.4(a), the Schedule sets
forth “Unit-Specific
Performance, Operational, Maintenance, and Control Technology Requirements of the Consent
Decree that Apply
to the Baldwin
Station
and, according to the
Agency, the Schedule is
“included in this permit
pursuant to Paragraph
158 of the Consent Decree
The Schedule,
however,
includes requirements that are not unit-specific and mischaracterizes certain Consent
Decree requirements.
37.
Contrary to Condition
5.4(a) and the Consent Decree, Paragraphs
57, 58,
59,
60,
61, 62, 73,
74, 83,
87,
91, 92, 94, 95, 96,
98, 99,
119,
125,
157, and
183 of the Schedule impose
obligations on the
Station that are not
unit-specific.
In addition, Paragraphs 9!, 92, 94, 95 and
96 of the
Schedule attempt
to impose requirements that are not currently applicable to a Baldwin
unit and that might
not apply in the
fixture,
Paragraph
157
also misconstrues the Consent Decree
by purporting to make the Schedule enforceable under the Consent Decree.
Furthermore,
Paragraphs 42 and 44
do not accurately recite the language of the Consent Decree, creating
ambiguity and possibly additional
or inconsistent obligations.
Accordingly, these Paragraphs of
the Schedule are arbitrary and capricious and unauthorized by law.
38.
For these reasons,
Paragraphs 57, 58, 59,
60, 61, 62, 73, 74,
83,
87, 89,
91, 92, 94,
95,
96,
98,
99,
L19, 125,
157, and 183
ofthe Schedule,
all contested herein, are stayed
consistent
with the APA, and DM0
requests that the Board order the Agency
to delete
Paragraphs 57,
58,
59,
60, 61, 62, 73,
74, 91,
92, 94,
95, 96,
98,
99,
125,
157, and
183
from the Schedule and
all
references to these Paragraphs from the permit,
to revise Paragraphs 83,
87 and
119 to identify
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the
specific unit(s)
at the Baldwin
Station that the requirement
applies to
and to
correct the errors
contained in Paragraphs 42 and 44
by duplicating the language in the parallel provisions of the
Consent
Decree.
(iv)
Recordkeeping of and Reporting
FLAP Emissions
39.
The CAAPP permit issued to the
Station
requires
DMG
to
keep
records
of
emissions of mercury, hydrogen chloride,
and hydrogen
fluoride
~-
all HAPs
-.
and
to report those
emissions at Conditions
5.6.1
(a) and (b) (recordkeeping)
and
5.7.2
(reporting).
The Agency has
not a provided a proper statutory or regulatory basis for these requirements other than the general
provisions of Sections 4(b) and 39.5(7)(a),
(b),
and (c) of the Act.
Citations
merely to the
general provisions of the Act do not create
an
“applicable requirement.”
40.
In
fact, there is no applicable requirement
that allows the Agency to
require this
recordkeeping and reporting.
There are no regulations that limit emissions of RAPs
from the
Baldwin Power Station.
While
USEL’A has recently promulgated the Clean
Air Mercury Rule
(“CAMR”) (70 Fed.Reg.
28605 (May 18. 2005)),
Illinois has not
yet
developed
its
corresponding
regulations.
The Agency correctly
discussed this issue relative specifically to mercury in the
Responsiveness Summary
by pointing out that
it cannot
add substantive requirements through a
CAAPP
permit or through
its
oblique reference to
the CAMR.
See
Responsiveness
Summary in
the Administrative
Record, p.
21.
however,
the Agency was incorrect
in its discussion in the
Responsiveness Summary by stating that it
can rely upon Section 4(b)
as a basis for requiring
recordkeeping and reporting ofmercury emissions through the CAAPP permit.
The Agency has
confused its duty to gather data pursuant to Section 4(b) and its
authority to gapfill to assure
compliance with the permit with the limitation
on
its authority under Title V to
include
c?iiii
“applicable requirements”
in
a Title V permit,
Sec Appalachian
Power.
Even by including only
recordkeeping and reporting of HAP emissions
in the permit, the Agency has exceeded its
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authority just
as seriously as if it
had included emissions
limitations for flAPs
in the permit.
Section 4(b) does not provide the authority to impose this conditions in
a CAAPP permit.
41.
Further, the Agency’s own regulations,
which are part
of the approved program or
SIP for its Title
V program, preclude the
Agency from
requiring the recordkeeping and reporting
of HAP
emissions that
it has included at Conditions 5.6.1(a) and
(b) and 5.7.2.
The Agency’s
Annual
Emissions Reporting
rules,
35
Tll.Adm.Code Part 254, which Condition
5.7.2 specifically
addresses, state
as follows:
Applicable Pollutants for Annual
Emissions Reporting
Each
Annual
Emissions
Report
shall
include
applicable
information for
all
regulated
air
pollutants,
as
defined in
Section
39.5
of
the
Act
415
ILCS
5/39.5,
except
for
the
following
pollutants:
b)
A
hazardous
air pollutant emitted
by
an
emission
unit
that
is
not
subject
to
a
National
Emissions
Standard
for
Hazardous
Air
Pollutants
(NEST-lAP)
or
maximum
achievable
control
technology
(MACT).
For
purposes
of
this subsection
(b),
emission
units
that
are
not
required
to
control
or
limit emissions
but are required to monitor, keep
records,
or
undertake
other
specific
activities
are
considered
subject to
such regulation or
requirement.
35 Ill.Adm.Code
§
254.120(b).
(Brackets in original;
emphasis added.)
Power plants are not
subject to any
NESILAPs or
MACi’ standards.
See 69
FedReg.
15994 (March 29, 2005)
(USEPA withdraws its listing of coal-fired power plants
under
Section
112(c) of the Clean Air
Act).
The Agency has not cited any
other applicable requirement
that provides
it
with the
authority to require DM0
to keep records of and report HAP emissions.
Therefore,
pursuant to
the provisions of
§
254.120(b) of the Agency’s regulations, the Agency has no
regulatory basis
for requiring the reporting of HAPs emitted by coal-fired
power plants.
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42.
For these reasons, Conditions 5.6.1(a)
and
(h)
in
loin
and
Condition
5.7.2
as
it
relates to reporting emissions of HAPs in the Annual
Emission Report.
all contested herein, are
stayed consistent
with the
APA, and DM0
requests that the Board order
the Agency
to
amend
the permit to delete such conditions.
(v)
Retention and Availability
of Records
43.
Conditions
5.6.2(b) and (c) switch the burden
of copying records
the Agency
requests
from
the Agency,
as stated
in Condition
5.6.2(a), to
the permittee.
While DM0
generally does not object to providing the Agency records reasonably requested and isreassured
by the
Agency’s statement in the Responsiveness Summary that its
“on-site inspection of records
and written
or verbal requests
for copies of records
will generally occur
at reasonable times and
be
reasonable in
nature
and
scope” (Responsiveness Summary,
p.
18) (emphasis
added), DM0
may not
be
able
to
print and provide data within
the span of an
inspector’s visit
where the
records are
electronic
and include vast
amounts of data.
Moreover, most of the electronic
records are
already available to the
Agency through
its own or USEPA’s databases, and where
this is
the case,
DMG should not
be required to
again provide the
data absent
its
loss
for some
unforeseen reason,
and certainly should
not
to have
to
print out the information.
Further, DM0
is troubled by the qualifier
generally
that the Agency included in its statement.
It
implies that the
Agency may
not always choose reasonable
times, nature, and scope of these
requests.
44.
For these reasons, Conditions
5.6.2(b) and
(c),
all contested herein, are stayed
consistent with the APA, and DM0 requests that the Board order the Agency to amend them in a
manner to correct the deficiencies outlined
above.
(vi)
Duplicative Reporting
45.
Various provisions of the permit impose
obligations
to
submit
information to
the
Agency that DM0 already
submits electronically to government agencies
pursuant to
certain
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federal
and state requirements.
lnfonnation
submitted electronically
to the
1 ISEPA, br
instance,
is generally available to the Agency through USEPA’s
electronic
databases.
The requirement
to submit information to
the Agency that is
already available to the Agency electronically results
in duplicative obligations that are
burdensome and serve
no apparent purpose.
Therefore, the
requirement
is
arbitrary and capricious.
For
these reasons, all conditions that impose
obligations upon
DM0
to
submit information to the Agency that is available to the Agency
without such
submissions, are stayed
consistent with the
APA, and DMG
requests that
such
conditions be deleted from the permit.
(vii)
Submission
of Blank, Record Forms
to the Agency
46.
DMG
is unsure
as to what the Agency expects with respect
to
Condition
5.6.2(d).
See
Condition
5.6.2(d).
On
the one hand,
this condition may require submission of the records
that are required by Conditions 7.1.9-1. 7.1.9-2, 7.1.9-3, 7.1.9-4, 7,2.9, 7.3.9,
7.4.9,
7.5.9. and
7.6.9.
On the other hand, Condition 5.6.2(d) may require DM0
to submit blank copies of its
records, apparently so that the Agency can check them
for form
and type of content.
If this Tatter
interpretation is correct, there is no basis in law for such a requirement and it
must be deleted.
47.
Each company has the right
and responsibility to develop and implement internal
recordkeeping systems.
Even the most unsophisticated company has the right to
develop and
implement internal recordkeeping systems and bears the responsibility
for any insufficiencies
it
makes
in doing
so.
Absent
a statutory grant or the promulgation of reporting formats through
rulemaking, the Agency has no authority to oversee
the development of recordkeeping or
reporting formats,
The Agency has the authority to require that certain information be reported
but cites to no
authority, because there is none, to
support this condition.
48.
Nor does
the Agency provide a purpose for this condition
--
which serves as
an
excellent example of why a detailed statement-of-basis document should
accompany the CAAPP
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permits,
including the drafts,
as required by Title V.
One can merely a.sswne that the
Agency’s
purpose
for this condition is to review records that permittees plan to
keep in support of the
various recordkeeping requirements in the permit in
order to
assure that they are adequate.
However, there is no regulatory
or statutory basis
for the Agency
to
do this, and it
has cited none.
Moreover, if the Agency’s purpose
for requiring this submission is to determine the adequacy of
recordkeeping, then without inherent
knowledge of all
of the details of any given operation,
it
will be difficult for the Agency to determine the adequacy of recordkeeping for the
facility
through
an off-site review,
if the Agency
finds records that arc submitted during the prescribed
reporting periods inadequate, the
Agency has a remedy available to
it through the law.
It can
enforce against the company.
That
is the
risk that the company bears.
49.
Further, if the company is concerned with the adequacy of its planned
recordkeeping, it
can
ask the
Agency to provide
it some counsel.
Providing such counsel or
assistance is
a statutory fonction of the Agency.
Even then, however,
the Agency will qualify its
assistance in
order
to attempt to avoid reliance on
the part of the permittee should there be an
enforcement action brought.
An interpretation
of this condition could be that by providing blank
recordkeeping forms
to the
Agency, absent a communication from the Agency that
they are
inadequate, enforcement against the permittee for inadequate recordkeeping is barred, so long as
the forms
are filled out, because they are covered
by
the permit shield.
50.
Additionally, the Agency has violated DMG’s due process rights under the
Constitution by requiring submission of these documents before DM0 had the opportunity to
exercise
its right to appeal the condition,
as granted by the Act at Section
40.2.
The Act allows
permittees 35 days
in
which to
appeal
conditions of the permit to which
it objects.
The Agency’s
requirement at Condition
5.6.2(d) that DM0 submit blank
forms within 30 days of issuance of
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the
permit significantly undermines DMG’s right to appeal
—
and the effectiveness of that right
or
forces DM0
to violate the terms and conditions of the permit to frilly preserve its
rights.
Although the condition
is stayed, because the appeal may not he filed until
35
days
after
issuance,
there could at least be a question
as to whether
DM0 was in violation
from
the time the
report was due until the appeal was
filed.
DM0
submits that the stay relates back
to the date of
issuance.
Nevertheless,
it
is improper to even
create this uncertainty.
This denies DM0
due
process and so is unconstitutional, unlawthl,
and arbitrary and capricious.
51.
For these reasons, Condition
5.6.2(d), contested herein,
is stayed consistent with
the APA,
and DM0 requests
that the Board order the Agency to delete
it
from
the permit.
In the
alternative, DM0
requests that the Board interpret this condition such that if the Agency fails to
communicate any inadequacies it
finds
in
blank recordkeeping forms
submitted to it,
enforcement against
DM0 for inadequate records is barred, so long as those records were
completed, as part of the permit shield.
(viii)
Reporting
Concerning Certain Requirement of the
Consent Decree
52.
Conditions
5.7.3 and 5.7.4
purport to characterize and impose reporting
requirements associated
with the
Consent Decree.
These conditions impose requirements that
are not required by the Consent Decree
or any other applicable requirement, and the presence of
these conditions in addition to the related provisions of the Schedule and Consent Decree creates
ambiguity and unnecessary duplication of requirements.
For the reasons stated earlier, the
Schedule and Consent Decree requirements
are separately
enforceable.
Conditions
5.7.3
and
5.7.4 are arbitrary and capricious and unauthorized bylaw.
For these reasons,
Conditions
5.7.3
and
5.7.4,
contested herein,
are stayed consistent with the
APA,
and DM0 requests that the
Board order the Agency to delete these
conditions.
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C.
NOx
SIP Call
(Section
6.1)
53.
Condition 6.1.4(a) says,
“Beginning in 2004, by November30 of each year
While
this is a true statement,
i. cc,
the NOx
trading program in Illinois commenced
in
2004, it is
inappropriate
for
the Agency
to
include in the permit
a condition with a retroactive effect.
By
including this past date
in
an enforceable
permit
condition,
the
Agency
has exposed
DM0
to
potential enforcement under this
permit
for acts or omissions that occurred prior to the
effectiveness of this permit.
It
is unlawftil
for the
Agency
to require retroactive
compliance
with
past requirements
in a new permit condition,
Luiw EmIL, Inc.
v.
i/ic State oil/if nois,
No.
98—
CC-SI 79, 2001
WI. 34677731,
at
~8 (Ill. Ci.
CI.
May
29, 2001) (stating
“retroactive applications
are disfavored
in the law,
and
are not
ordinarily allowed
in the absence of language explicitly
so
providing.
The authoring agency of administrative regulations is
no
less subject to these settled
principles of statutory construction
than any other ann of government.”).
This language should
be changed to
refer to the first ozone season occurring upon
effectiveness of the permit, which,
for example,
if the permit appeal
is resolved before September 30,
2006,
would be the 2006
ozone season.
Rather than including a specific date,
DM0 suggests that the condition merely
refer to the
first ozone
season
during
which the permit
is effective.
54.
For these reasons,
Condition 6.1.4(a), contested herein,
is
stayed consistent with
the APA, and DM0 requests that the Board
order the Agency to amend
the language to
avoid
retroactive compliance with past requirements.
fl
Boilers
(Sections 7.1
and 75)
(i)
Opacity
as a Surrogate for
PM
55,
IJistorically, power
plants and
other types of industrial
facilities
have
demonstrated
compliance with emissions limitations
for PM through periodic stack tests and
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consistent application of good operating practices.
Prior to the development of the CAAPP
permits, opacity
was
primarily
a qualitative indicator of the possible need
for thrther
investigation of operating conditions or
even for the need of new stack testing.
However, the
Agency has developed
and imposed in Condition 7.I.9-3(a)(iii),
and related conditions, a
requirement that treats opacity as a quantitative surrogate for indicating exceedances of the PM
emissions limitation.
For the
first time
in the August 2005 proposed permit, the Agency required
Petitioner to
identify the opacity measured
at the
9511
percentile confidence interval of the
measurement of compliant PM emissions during the
last and other historical
stack tests as the
upper bound
opacity level that triggers
reporting of whether there ~y
have been
an exceedance
of the PM limit without regard for the realistic potential for a PM exceedance.
These reporting
requirements are quite onerous, particularly for the units that tested
at the lowest levels of PM
and
opacity.
Inclusion
of these
conditions exceeds the scope of the Agency’s authority to gapfill,
and so is arbitrary and capricious.
Condition
7.1 .9-3(a)(iii), and related conditions, must be
stricken from
the permit.
56.
‘The provisions requiring
the use of opacity as effectively a surrogate for PM are
found in Conditions
7.l.9-3(a)(iii),
linked to Conditions
7.1.4(b) and 7.1.6-1(b), which contains
the emissions limitation for
PM; 7.1.9-3(a)(iv),
also
linked to
Conditions 7.1.4-1(b) and 7.1.6-
1(b);
and
other related conditions, including 7.1.10-1(a)
and
its subparts; 7.1.1 O-2(a)(i)(E),
linked
to Conditions
7.l.9-3(a)(iv) and 7.1.9-3(a)(iii);
7.1.10-2(d) and its subparts; 7.1.10-3(a)(ii);
and
7.1.12(b),
relying
on continuous opacity monitoring pursuant to
Condition 7.1.8(a), PM testing
to
determine the upper bound of opacity,
and the recordkeeping conditions
described above to
demonstrate compliance with the PM emissions limitation.
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57.
No one ~‘anprovide a reliable, exact
PM
concentration
level anywhere
in the
United States today outside of stack testing.
Obviously,
it
is impossible to continuously test a
stack to determine a continuous level of PM emissions,
and
it would
be unreasonable
for the
Agency
or anyone
else
to expect such.
Pursuant to
the Consent Decree settling
USEPA’s
enforcement action against DM0 concerning the Baldwin Station, DM0
will
test
continuous
PM
monitoring devices
on thur of its coal-fired units.
Consent Decree, Paragraph 91.
The Consent
Decree does not require the use of these PM
CEMS to determine current PM emissions levels for
compliance purposes.
In
fact, the Consent Decree specifically prescribes
annual
stack testing
as
the method of determining the concentration of PM in
Paragraph 42.
PM
CEMS
are not yet
developed
to
the point of refinement where they should
be considered
credible evidence of PM
emissions levels;
DM0 is
not aware of any case
in
which government
or citizens suing tinder
Section 304 of the Clean
Air Act have even
relied upon PM CEMS as
the basis of a case
for
PM
violations.
As a result, sources must rely upon the continuity or
consistency of conditions that
occurred during
a successful
stack test to provide reliable indications of PM
emissions levels,
58.
Historically, opacity has never been used
as a reliable, quantitative surrogate
for
PM emissions
levels.
The Agency itself acknowledged that opacity is not a reliable indicator of
PM concentrations.
(See
Responsiveness Summar
,
pp.
15-16,
42-44).~ Increasing opacity may
indicate that PM emissions
are increasing, but this is not always
the ease nor is
a given opacity
an
indicator of a given PM level at any given time,
let alone at different times.
Relying on
stack
“Sletting
a specific level of opacity that
is
deemed equivalent
to
the applicable PM
emission
limit
...
is
not
possible on a variety of levels
...
It would
also be
inevitable
that such an action would
be flawed
as the
operation of a boiler may change over time and the coal supply
will
also change, affecting the
nature and
quantity of the ash loading
to
the
JHSP.
These
types of changes cannot he prohibited, as
they are inherent
in the
routine operation of coal-tired power plants.
However,
such
changes could invalidate any pre-esiablished
opacity value.”
Responsiveness Summary.
p. 44.
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testing
is
the best
and most appropriate approach
to assuring compliance
with I’M emissions
limitations,
59.
Despite the Agency’s
implications to the contrary in the Responsiveness
Summary
(see
Responsiveness Summary. pp. 42-44), the permit does make opacity a surrogate
for PM cotnpliance.
When
the Agency requires
even estimates of PM
levels or
guesses as
to
whether there is an exceedanee of PM based
upon opacity, opacity has been quantitatively tied to
PM compliance.
Further, the opacity level
triggers reporting
that the
opacity/PM surrogate level
has been exceeded
and so indicates that there pj~yhave been an
exceedance of the PM level
regardless of any evidence to the contrary.
For example, if the opacity/PM surrogate level of,
say,
15
is exceeded,
this must be reported despite the fact that
all
fields in the electrostatic
precipitator were on
and operating,
stack testing indicated that the PM emissions level
at the
95th
percentile
confidence interval is 0.04
lb/mmBtu/hr,
and the likelihood
that there was
an
exceedance of the PM emissions limitation of 0.1
lb/mmBtuThr is
extremely remote.
There
is no
legitimate purpose of such reporting.
It does not assure compliance with
the PM limit
and so
inclusion of these conditions exceeds the
Agency’s gapfilling authority and
is,
thus,
unlawftl and
arbitrary and capricious.
Moreover, this unnecessary reporting requirement
is a new substantive
requirement, according to
Appalachian
Power,
not allowed under Title V.
60.
Contrary to the Agency’s assertion in the Responsiveness Summary that opacity
provides a “robust means to distingtiish compliance operation of a coal-fired
boiler and its ESP
from
impaired operation” (Responsiveness
Summary, p.
43), relying upon opacity as
a surrogate
for PM emissions levels has
the result of penalizing the best-operating
units.
That
is, the units
for which the stack testing
resulted in very low opacity
arid
very
low PM emissions levels are
the
units for which this additional reporting will be most frequently triggered.
For example,
ifstack
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testing resulted in
PM emissions
of 0.02
lb/mmBtu and the opacity during
the test
at the
95(11
percentile confidence
interval was
2,
DMG
would be required to
submit reports stating that the
unit may have exceeded the
PM limit every time opacity
exceeds 2.
Clearly, this condition
will
result in overly burdensome reporting that serves no purpose.
As such,
it exceeds the
Agency’s authority to gapfill,
is
unlawftil, and is
arbitrary and capricious.
61.
Further, this condition effectively creates a false low opacity limitation,
In order
to avoid the implication
that there may have been an
exceedance of the
PM limit, the opacity
limit becomes that level that
is the upper bound at the
95th
percentile confidence interval in the
PM testing.
By including these conditions,
the Agency has created a new,
substantive
requirement without having complied with proper rulemaking procedures.
~Ihisis unlawthl
and
beyond the scope of the Agency’s authority under Section
39.5 of the
Act and ‘title V of the
Clean Air Act.
It also violates the provisions of Title
VII of the Act’
See
Appalachian
Power,
62.
Periodic stack
testing according
to paragraphs ~9 and
119 of the Consent
Decree
is sufficient
to assure compliance with the applicable PM limit and satisfy
the periodic
monitoring requirements of Section 39.5(7)(d)(ii) of the Act according to
the
Appalachian
Power
court,
In
fact, “periodic stack testing” is the Agency’s own phrase in
Condition
7.1 .7(a)(iii) and
is consistent with the findings of
Appalachian
Power.
63.
Conditions
7.1.1 O-2(d)(v)(C) and (D)
in particular are repetitious of Condition
7.1.1 0-2(d)(iv).
Both
require descriptions
of the same
incident and prognostications as to how
the incidents
can be prevented
in the future,
To the extent either condition is appropriate,
Condition 7.1.1 0-2(d)(iv),
is sufficient to address the Agency’s concern, although DM0 also
objects to Condition
7.1 .10-2(d)(iv) to the extent that
it requires
reporting related to the opacity
surrogate.
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64.
In
conjunction
with
its attempt to relate opacity to
PM, the
Agency requires in
Condition
7.1.1 0-2(d)(v)(A) and (B) detailed information regarding recurring and new causes of
opacity exceedances in a calendar quarter.
The requirements
are overly burdensome and the
Agency lacks authority to impose such requirements.
65.
As with Condition 5.6.2(d) discussed
above, Condition
7.1 .9-3(a)(iii) denies
DM0 due process.
Condition
7.1
.9-3(a)(iii)
requires that the
“Irlecords
.
.
.
that identify
the upper bound of the 95
confidence
interval
(using
a
normal
distribution
and
I
minute
averages)
for
opacity
measurements
.
,
.
,
considering
an
hour
of
operation,
within
which
compliance
with
the
PM
limit
is
assured,
with
supporting explanation
and documentation,
.
.
.
shall
be submitted
to the Illinois
EPA in accordance with Condition 5.6.2(d).”
66.
Obviously, if Condition
5.6.2(d)
denies DM0 due process,
Condition 7.1.9-
3(a)(iii)
does
as
well
for the same reasons.
DMG
was
not granted the opportunity
to appeal
the
condition before
it
was required to
submit to
the Agency information that
DM0 believes
is not
useful or reliable.
DM0
is particularly
loathe to provide the Agency with
this information
because it believes that the
infonnalion will be misconstrued and misused.
67.
Finally, Condition 7.l.I0-2(d)(vi) requires
DM0
to
submit
a glossary of
“common technical tenns
used by
the Permittee”
as
part of its reporting of opacity/PM
exceedance events.
If the terms are “common,” they do not require definition.
Moreover,
this
requirement does not appear anywhere else in the permit.
If “common technical terms” do not
require definition
in
other contexts in this permit,
then surely they do
not require
definition in
this context.
This requirement should be deleted from the permit.
68.
For these reasons, the conditions contested in this section, including Conditions
7.1 .9—3(a)(iii),
7.1 .9—3(a)(iv), 7.1.10-1(a), 7.1. 10—2(a)(i)(E), 7.1.10—2(d),
7.1.1 0—2(d)(v); 7.1.10-
2(d)(v)(A),
7.1.1 0-2(d)(v)(B),
7.1.1 0-2(d)(v)(C), 7.1. 10-2(d)(v)(D),
7.1.1 0-2(d)(vi), 7.1.10-
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3(a)(ii), and 7.1.12(h),
and
any other related conditions,
arc stayed
consistent
with thc APA. and
DM0 requests that the
Board order the Agency
to
delete these conditions,
(ii)
Reporting
the
Ma2nitude of
PM
Emissions
69.
The Agency requires
DM0
to determine and report the magnitude of PM
emissions during startup and operation
during malfunction and breakdown,
See Conditions
7,1 .9—4(a)(i),
7.1.9—4(a)(
i)(C)(5).
7.1.9-4(b)(ii)(E)(3).
and 7.1. 10—2(dXiv)(A)(3).
Compliance
with
these conditions is
not possible
and,
therefore, the inclusion
of these conditions in the
permit
is arbitrary and capricious.
DM0
does not have a means
for accurately measuring the
magnitude of PM emissions
at any time other than during stack testing
—
not even using
the
opacity surrogate.
There is not a certified, credible, reliable alternative
to
stack testing to
measure PM
emissions.
Although
a
PM
CEMS may be installed at the Station
under the
Consent
Decree, any such CEMS
has not been
certified
(and might not
he despite DMG’s good
faith
efforts)
and thus the permit should not
require or depend on the use of such a CEMS
to measure
PM emissions.
70.
Additionally,
Condition 7.l.10-2(d)(iv)(A)(
)
requires
DM0
to identify “the
means
by which the exceedance of
the PM emissions limit
was
indicated or identified, in
addition
to
continuous monitoring.”
This inaccurately implies that a PM
CEMS
is installed and
operating at Baldwin
or
that the installation and operation of a PM CEMS at a Baldwin unit
will
occur.
A PM CEMS may not be installed at Baldwin.
Even if a PM CEMS is installed at a
Baldwin unit,
any such CEMS
is not currently
an
authorized or required basis to determine
compliance, as described more fully elsewhere in this petition.
DM0 believes that this might
also be construed
to mean that
it must provide information relative to some means, such
as
opacity
—
which,
as discussed
in detail above,
DM0 believes
is an inappropriate and inaccurate
basis
for determining whether there are exceedances of the
PM
limit, let alone
the magnitude of
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any such
exceedance
-.
that DM0
relied upon
to determine any exceedance of the PM
limit.
Besides stack testing or perhaps total shutdown of the ESP, there are none.
This is a nonsensical
requirement.
71.
For these reasons, Conditions
7.1 .9-4(a)(i),
7.1 .9-4(a)(ii)(C)(5), 7.1.9-
4(b)(ii)(E)(3),
and 7.1.1 0-2(d)(iv), specifically 7.1.1 0-2(d)(iv)(A)(3) and
(5), all
contested herein,
are
stayed consistent with the APA,
and DM0 requests that the Board order the Agency to delete
these conditions from the permit.
(iii)
PM and CO Testing (Condition 71.7(a))
72.
A,s noted in Condition
7.1.7(a)(i),
the Consent Decree (and related Schedule)
impose annual and other periodic PM stack testing requirements.
See Schedule, Paragraphs 89
and
119.
Because the
Schedule imposes annual (subject to
frequency reduction if certain
conditions are satisfied) and other periodic PM stack testing requirements,
and compliance with
the Schedule is mandated by Condition 5.4(a),
as discussed
above,
there is no need
to
impose
alternative or additional PM stack
testing requirements
in Condition
7,1 .7(a)(i), (ii),
(iii), (v),
(vi)
and (vii) for Boilers 1,2 and 3.
The stack testing required by the Consent Decree is more
than
sufficient to satisfy any applicable monitoring requirement, and any additional,
alternative or
inconsistent stack test requirement
is unauthorized by law and arbitrary and capricious.
Further,
as discussed earlier in this petition, the addition of Conditions
7.l.7(a)(i), (iii) and (v), which
refer to and characterize requirements set
forth independently in the Schedule, creates ambiguity,
additional
and duplicative requirements and inconsistencies.
For these reasons, Conditions
7.1.7(a)(i), (ii), (iii), (v),
(vi) and (vii), to the extent the conditions relate to PM testing, and any
related conditions,
are contested herein and stayed consistent with the APA,
and DM0 requests
that the Board order the Agency
to delete Condition
7.1 .7(a)(.i), (ii),
(iii) and (v),
to delete the PM
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testing requirements
from Conditions
7.1
.7(aXvi)
and (vii) and to delete any other
conditions
that relate to or reference the PM testing set
forth
in
these conditions.
73,
In
addition, Condition 7.l.7(a)(vi)(A) provides that if the “standard
fuel” is
less
than 97
of’the fuel
supply in a quarter,
additional
testing is
required.
Condition
7.1 .7(a)ivi)(B)
provides that “such measurements” (presumably those tests required by Condition
7.1 .7(a)(vi)(A)),
shall
be made “while
firing the boiler
with at least
1.25 times the greatest
percentage of other materials in the
calendar quarter that triggered the
testing.”
This may not,
however, he possible, and imposing a condition that may not be achievable technically
and
practically
is unauthorized by law and arbitrary and capricious.
74.
For these
reasons,
Conditions
7.1 .7(a)(vi) and 7,! .7(a)(vi)(A) and (B).
contested
herein, are stayed consistent with the
APA. and DM0 requests
that the Board orderthe Agency
to revise these
conditions to address the deficiencies
identified above,
75.
DM0 interprets the language in Conditions
7.1 .7(a)(i)
and (a)(iv)
to mean that
testing that occurs
after January
1, 2005, and before December31,
2005 satisfies the initial
testing requirements included in
the permit for CO (as set
forth above,
DM0 believes that the
conditions in 7.1 .7(a)(i),
(ii), (iii), (v),
(vi) and (vii) relating to
PM should be
stricken). Flowever,
the language is not clear, in part because the CO testing timing is tied to the PM stack testing
timing, which in turn is tied to the Consent
Decree.
Even if these CO
testing conditions were
appropriately included in the permit,
which DM0 does not
concede, the
language of Conditions
7.1.7(a) should be revised to make clear that the initial CO
test will be required only at the time
when the initial PM stack test is required under
the Consent
Decree.
For these reasons,
Condition
7.1.7(a)(i) and (iv), contested herein,
are stayed consistent
with the APA, and DM0
requests that the Board order the Agency to
revise these conditions to address these deficiencies.
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(iv)
Other
PM Testing Matters
76.
The Agency has included a requirement
in
the permit at Conditions
7.1 .7(bXiii)
and,
possibly 7.5.7-1(b)(ii) (this Condition contains “including” language regarding test methods
that is unclear in light of7. I .7(b)(iii)’s indication that Method 202 testing
is
an appropriate
reference method;
accordingly, this petition will
treat 7,5.7-l(b)(ii)
as containing a condensible
testing requirement without
conceding that
it does)
that DM0 perform testing for
PM JO
condensibles.6
First, this requirement
is beyond the scope
of the Agency’s
authority to include
in
a CAAPP permit, as such testing
is not
an “applicable requirement,” as discussed
in
detail below.
77.
With respect to thc inclusion of the requirement
for Method
202
testing at
Conditions
7.1 ,7(b)(ifl)
and 7.5.7-I (b)(ii), the Agency has exceeded its
authority and the
requirements should be removed
from the
permit.
The inclusion of Method 202
testing
requirements is inappropriate because there
is no regulatory requirement that
applies I’M
10
limitations
to
the Baldwin Station,
In response to
comments
on
this point, the Agency stated
in
the
Responsiveness
Summary
at page
18,
“The requirement
for using both Methods
5
and 202
is
authorized by
Section
4(b) of the Environmental
Protection Act.”
DM0 does not question the
Agency’s
authority to gather
information.
Section 4(b) of the Act says,
The
Agency
shall
have
the
duty
to
collect
and
disseminate
such
information,
acquire
such
technical
data,
and
conduct
such
experiments
as
may be
required
to
carry
out
the
purposes
of this
Act,
including
ascertainment
of
the
quantity
and
nature
of
discharges from
any contaminant source and data on
those sources,
and
to
operate
and
arrange
for
the
operation
of devices
for
the
monitoring of environmental quality.
&
Condensibie
is the
Board’s
spelling
in
the
regulations and
in scientific publications, thus
our spelling of it
here
despite
the Agency’s chosen spelling
in the permit, which is
the preferred spelling in the Webster’s dictionary.
See
35
1ll.Adrn,Code
§
212.108.
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415 !LCS
5/4(b).
However,
this authority does
not make testing
for PMIO
condensibles
an
“applicable requirement” under Title V.
As discussed
above,
an
“applicable requirement”
is one
applicable to the perinittee pursuant to
a federal regulation
or a SIP.
78.
Further, just because Method 202 is one of USEPA’s reference methods does not
make
it
an
“applicable requirement” pursuant to Title V, as
the Agency suggests
in the
Responsiveness Summary.
The
structure of the Board’s PM regulations establish the applicable
requirements for the Baldwin
Station.
The Baldwin Station
is subject
to the requirements of 35
Ell.Adm.Code
2l2.Suhpart E.
Particulate Matter Emissions
from
Fuel
Combustion Emission
Units.
It is not and never has been located in a PMIO nonattainment area.’
The
Board’s PM
regulations
are structured such that particular PM
JO requirements
apply to identified sources
located
in the PMIO nonattainment areas.8
No such requirements apply now or have ever
applied to
the Baldwin Station,
79.
The measurement method for PM, referencing only Method
5
or derivatives
of
MethodS,
is at
35
III.Adin.Code
§
212.110.
This
section of the Board’s rules
applies to the
Baldwin Station.
The measurement method for PM10, on the other hand, is found at 35
lll.Adm.Code
§
212.108. Measurement Methods for PM-IO
Emissions
and Condensible PM-lU
Emissions.
This section references both Methods
5 and 202,
among others.
Not subject to
PMIO limitations, the Baldwin Station
is not
subject
to
§
2 12.108,
contrary to the
Agency’s
attempt
to
expand its applicability in the Responsiveness Summary by stating,
“Significantly, the
use of Reference Method 202 is not limited
by geographic area or regulatory applicability.”
Responsiveness
Summary,
p.
18.
‘I’his is certainly a true
statement ifone is performing a test of
In
fact, there are
no
more PMiti nonanainment areas
in the state.
Sep70
Fed.Reg. 5554! and 55545
(September
22,
2005),
redesignating to attainment the McCook
and Lake Calurnet nonauainment areas,
respectively.
Presumably, these sources will
remain subject
to
those requirements as part of Illinois’
maintenance plan.
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condcnsiblcs.
However,
this statement does not expand the requirements of~212,llOto include
PMIO
condensible testing when the limitations applicable
to
the source pursuant to 2l2.Subpart
E are for
only PM, not PM 10.
Therefore,
there
is no basis for the Agency
to
require
in the
CAAPP permit,
that the Baldwin
Station he tested pursuant
to Method 202.
80.
The Agency even concedes
in the Responsiveness Summary that Method 202 is
not
an
applicable
requirement:
The inclusion
of this requirement
in
these
C’AAPP
permits,
which
relates
to fill
and
complete
quantification ol emissions,
does
not
alter
the
test
measurements
that
are
applicable
for
determining
compliance
with
PM
emissions
standards
and
limitations,
which
generally
do
not
include
condensable
sic
PM
emissions.
In
addition,
since
condensable
sic
PM
emissions
are
not
subject
to
emission standards....
Responsiveness
Summary, p.
18.
(Emphasis added.)
Further,
the Agency
says, “Regulatorily,
only filterable191
PM emissions need to be measured.”
Responsiveness
Sutnmary, p.
18.
The
Agency attempts
to justify
inclusion of the requirement
for testing condensibles by stating
that
the data are
needed to “assist in conducting assessments of the air quality
itnpacts of power
plants,
including the
Illinois
EPA’s development of an attainment strategy for PM2.5” or by
stating that “the use of Reference Method 202 is not limited
by geographic area
or regulatory
applicability.”
Responsiveness Summary, p.
18.
Under the Board’s rules, it is limited to testing
for
PM, and so, at least in Illinois, its “regulatory
applicability” is, indeed,
limited,
These
attempted justifications do not convert testing
for condensibles into
an
applicable requirement.
81.
While the Agency has
a duty under Section 4(b) to gather data, it
must be done in
compliance with Section
4(b).
Section 4(b), however, does
not create or authorize the creation of
permit conditions.
The Board’s rules serve
as the basis for permit
conditions.
Therefore,
DMCJ
I.e., non-gaseous PM; condensibles are gaseous.
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does dispute that rcqdring
such
testing
in
the CAAPP permit
is appropriate.
In
fact,
it
is
definitely not appropriate.
It is unlawfiul
and exceeds the Agency’s
authority.
82.
For these reasons, Conditions 7.1.7(b), and the inclusion
of Method 202
in
Conditions
7.1 .7(b)(iii)
and 7.5.7(h)
(to the extent this condition includes Method 202),
all
contested herein,
are stayed consistent with the APA, and
DMG requests that the Board order the
Agency to delele the requirement for Method 202
testing from the
permit.
(v)
Measuring CO Concentrations
83.
The CAAPP permit issued to the Station requires
DMG to
conduct, as a work
practice,
quarterly “combustion evaluations” that consist of “diagnostic
measurements of the
concentration of CO in the flue gas.”
See
Conditions 7.1.6-2(a)
and 7.5.6(a).
See
also
Conditions
7,1 .9-1(f)(ii) and
7.1.12(d),
7.5.9(a)(iii) and 7.5.12(d) (related recordkeeping and
compliance procedure requirements) and any conditions imposing related reporting
requirements.
Tneluding these provisions
in the permit is not
necessary to assure compliance
with the underlying standard,
is not required by the Board’s regulations, and. therefore, exceeds
the Agency’s authority to
gapfill.
Maintaining compliance with the CO
limitation has
historically been a work practice, thus its inclusion
in the work practice condition of the permit.
Sophisticated control systems
are programmed to maintain boilers in an
optimal operating mode,
which serves to minimize CO
emissions.
One can speculate that because it
is
in DMG’s best
interests
to operate its boilers optimally and because ambient CO levels
are so low,’0 compliance
with
the CO limitation has been accomplished through combustion optimization techniques
mu
The highest
one-hour ambient measure of CO
in the state in 2003
was in Peoria:
5.3 ppm;
the highest 8-hour
ambient measure in the state was in
Maywood:
3.5
ppm.
Illinois Environmental Protection Agency,
Illinois
Annual Air Quality Report
2003,
Table 87,
p.
57,
The one-hour standard
is
35
ppm, and the 8-hour ambient
standard is
9 ppm.
35
lll.Adm.Code
§
243.123.
Note:
lie
Illinois AnnualAir Quality
Report 2003
is the latest
available data on Illinois
EPA’s
website at www,epa.state.ii,,us
4
Air-)
AirQuality
Information 4
Annual
Air
Quality
Report 4
2003 Annual
Report.
The 2004
report is not
yet available.
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historically
at power plants.
There is
no reason to change this practice at this point.
.Anibient air
quality is not threatened, and
emissions of CO at the Station
are signiheantly below the
standard
of 200 ppm.
84.
Under these circumstances, requiring Stations
to purchase
and install equipment
to monitor
and
record emissions ofCO
is
overly burdensome and,
therefore, arbitrary and
capricious.
In order
to comply with the “work practice”t’
of perfonning “diagnostic testing” that
yields a concen tration of CO, DM6 must purchase
and install or operate some sort of monitoring
devices with no
environmental
purpose served.
85.
Furthermore, the Agency has failed
to provide any guidance as to how to perform
diagnostic measurements of the concentration of CO
in
the flue
gas.
It is DMG’s
understanding
that a sample
can he
extracted from any point in the
furnace or stack using a probe.
This
sample
can
then be preconditioned (removal of water or particles,
dilution with air)
and analyzed.
The
way
in which the sample is preconditioned and analyzed, however,
varies.
Given the lack
of
guidance and the variability
in the way the concentration of CO
in
the flue gas can
he measured,
the data generated
is not sufficient to assure
compliance with the CO
limit and is,
therefore,
arbitrary and capricious.
Stack testing,
on the other hand, does yield data sufficient to assure
compliance with the CO limit.
86.
In
addition, the permit requires at Conditions
7.1 .9-4(a)(i),
7.1
.9-4(a)(ii)(C)(5),
and 7.1.9-4(b)(ii)(E)(3),’2 7.5.9(d)(i), 7.5.9(d)(ii)(C)(3) and 7.5.9(e)(ii)(D)(3), that DM6 provide
estimates of the magnitude of CO emitted during startup and operation during malfunction and
DM6 questions
how the requirement that the Agency has included in
Condition
7.1.6-2(a) is classified as a
‘work practice.”
To derive
a coricentratioti
of CO
emissions, DM6 will
have to
engage
in
monitoring or testing
farmore
than the work
practice of combustion
optimization that has been the historical
standard.
2
Corresponding conditions appear to
include
7.1.10- l(a)(v) (reporting) and 7.1.12(d) (compliance procedures).
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breakdown.
One monitoring device that DMG could
utilize for the quarterly diagnostic
evaluations required by
Conditions 7.1.6-2(a) and 7.5.6(a)
is a portable
CO monitor.
So
far
as
Petitioner knows.,
portable
CO monitors are not equipped with continuous readout recordings.
Rather,
they must be manually read.
What the Agency
is effectively requiring through these
rccordkeeping provisions is that someone continually read portable
CO monitors,
when used for
compliance,
during startup,
and during malfunctions
and breakdowns, which are by their nature
not predictable.
In the first ease (startup),
the requirement
is
unreasonable and overly
burdensotne and perhaps dangerous
in some weather conditions,.:
in the second
case’(inalfunetion
and breakdown),
in addition to the same problems that are applicable during startup,
it may he
impossible for DM6
to comply
with the condition.
87.
The requirement
to perIbrin diagnostic
measurements ofthe concentration of CO
in the
flue gas is arbitrary and capricious
because the Agency
has failed
to provide any guidance
as
to how to perform the diagnostic measurements.
DM6
can only speculate as to how to
develop and implement a formula and protocol
liar perfiarming diagnostic measurements of the
concentration ofCO in the flue gas in the manner specified in Condition
716-2(a).
88.
USEPA has not required similar conditions in the permits issued to other power
plants in RegionS.
Therefore, returning to the work practice of good combustion optimization to
maintain low levels of CO
emissions
is approvahle by
USEPA and is
appropriate for CO in the
permit issued
to the Station.
89.
For these reasons,
Conditions 7.1.6-2(a),
7.1 .9-I(f)(ii), 7.1 .9-4(a)(,i),
7.1.9-
4(a)(ii)(C)(4), 7.1 .9-4(b)(ii)(E)(3), 7.1.10-1 (a)(v),
7.5.6(a), 7.5.9(a), 7.5.9(d)(i),
7.5.9(d)(ii)(C)(3), 7.5.9(c)(ii)(E)(3),
and Conditions
7.1.12(d) and 7.5.12(d) to the extent the
Conditions
require the quarterly diagnostic measurements and estimates of CO emissions during
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startup and inal function/breakdown,
and
any other related conditions,
all
contested herein, are
stayed
consistent with the APA, and DM6 requests that the Board order the Agency
to
amend
Condition 7.1.6-2(a) and these other conditions,
as appropriate, to
reflect a requirement
for work
practices optimizing boiler operation, to delete the
requirement
for estimating the magnitude of
CO emitted during startup and malfunction
and breakdown,
and to amend the
corresponding
recordkeeping. reporting, and compliance procedures accordingly.
(vi)
Reporting
Requirements Under
Condition
7,1.10-1(a) and Related Conditions
90.
Condition
7.1.10-1(a) (including all subparts) requires “prompt reporting”
with
respect to certain events identified
in this condition.
This
condition,
in
turn, cites
to
many other
conditions,
and many other conditions
refer to
this Condition 7.1.10-1(a).
Based upon its
review
of the parallel provision in
the four Title
V permits
issued for
its
four other generating stations,
which are
also being appealed contemporaneously herewith. Condition 7.1.10-1(a) and related
conditions differ substantially among the five permits.
91.
The Agency has
failed
to
provide any support
for or
explanation concerning these
substantial differences.
The differences, ifthe conditions are sustained,
would create confusion
and ambiguity, and would increase
the cost and effort necessary to comply with the permits.
There is no legitimate reason for these differences, which are
arbitrary and capricious.
92.
For these reasons, Condition 7.1.10-1(a) and related conditions
(including
conditions that reference Condition
7.1.10-1(a)), are contested herein and stayed consistent with
the APA.
DMG requests that the Board order the Agency to
revise such conditions
to correct the
deficiencies set forth above,
including,
as appropriate,
by making the parallel provisions among
the DM0 Title V permits consistent.
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(vii)
Applicability
of 35
lll.Adm.Code 2l7.Subpart V
93.
the Agency has included
the word
each
in Conditions 7.1.4(f):
“The affected
boilers are each subject to the following requirements
(Emphasis
added.)
I3ecause of the
structure and purpose of 35 1ll.Adm.Code
21 7.Subpart
V,
which is the requirement
that the NOx
emissions rate from certain coal-tired power plants during the
ozone season average
no
more
than
0.25 lb/mmBtu
across the
state, DM6 submits that the
use of the word
each
in this sentence
is
misplaced and confusing, given the
option available to the Baldwin Station to average
emissions among affected
units in infinite combinations.
94.
For these reasons,
Conditions 7.1.4(1)
and
7.1 .4(f)(i)(A), all
contested herein, are
stayed
consistent
with
the APA. and DM6 requests that the Board order the Agency to delete the
word
each
from
the sentence quoted above
in Condition 7.1.4(f) and to insert
the word
each
in
Condition
7.1 .4(f)(i)(A) if the Board determines that its inclusion is necessary at all, as follows
for Condition
7.1 .4(f)(i)(A):
“The emissions of NOx
from each affected
boiler
(viii)
Startup Provisions
95.
As is allowed by Illinois’
approved Title V program, CAAPP
permits provide an
affirmative defense against enforcement actions brought against a pennittee for emissions
exceeding an
emissions limitation during startup.
In
the
issued version of the permit, the Agency
imposed additional recordkeeping obligations
for Boilers 1,2, and 3 ifthe startup period exceeds
eight hours under Condition
7.1 .9-4(a)(ii)(C),’3
Similarly, Condition
7.5.9(d)(ii)(C)
imposed
additional recordkeeping for the heating boiler if the startup period exceeds thirty minutes.
The
Agency provided
no support for its recordkeeping requirements, and
no
explanation for the
period of time that would trigger the additional recordkeeping obligation.
Moreover, the
~
DM0 had
no input
into the
length c’f time
that triggered
the additional
recomdkeeping and reporting othe’.tt,arixo
provide
the total
length of time necessary
fom a cold startup.
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timeframes are
so
short that
it
is
illogical
to
include the provision
for “additional”
recordkeeping, as the reeordkeeping will he required for virtually every startup.
96.
The provisions
itt
the Board’s rules
allowing for operation of a CAAPP
source
during startup are located
at 35
lll.Adm.Code 20
Subpart
1.
These provisions, at
§
201.265
refer back to
§
201.149 with respect
to the affirmative defense available.
The rules nowhere
limit the length of time allowed
for startup,
and the records
and reporting required
by
§
201.263
and Sections 39.5(7)(a) and (e) of the Act, the provisions that the Agency cited
as the regulatory
basis for Conditions 7.1.9-4(a) and 7.5.9(d), do not address startup at all;
§
201.263
is limited in
its scope
to records and reports required for operation during malfunction and breakdown where
there are excess
emissions.
Therefore, one must
conclude that the records that the Agency
requires here would
he considered gapfmlling
and are limited
to
what
is necessary
to assure
compliance with emissions limits.
97.
Requiring the additional
recordkeeping if startups
exceed the specified periods
does
not provide any additional
information necessary to assure compliance with the permit
and
so
cannot be characterized as
gaptilling.
DM0 is already required to provide intbrniation
regarding when startups occur and how long they last by Conditions
7.1 .9-4(a)(ii)(A) and
7.5,9(d)(ii)(A).
Emissions of SO2, NOx,
and opacity during startup of Boilers
1, 2
and 3
are
continuously monitored by the CEMS/COMS.
DM0 has already established that the magnitude
of emissions of PM and CO
cannot be reliably provided
(sea
above).
The additional
information
that the Agency requires in Conditions 7.1.9-4(a)(ii)(C) and 7.5.9(d)(ii)(C) does nothing to
assure compliance with the emissions limitations, which is the purpose of the permit in the
first
place, and so exceeds the Agency’s authority to gapfill.
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98.
For these
reasons, Conditions
7.1 .9-4(a)(ii)(C) and 7.5.9(d)(ii)(C). contested
herein,
are stayed
consistent with the APA,
and DM0
requests that the Board order the Agency
to
delete the
conditions, consistent
with the
startup provisions of 35
Ill.Adm,Code
§
201.349 and
the inapplicability of*
201.263,
(ix)
Malfunction and Breakdown
Provisions
99.
Illinois’ approved Title V program
allows the Agency to grant sources the
authority
to operate during malfunction
and
breakdown, even though the
source emits in excess
of its limitations,
upon certain showings by
the
permit applicant.
The authority must be
expressed
in the permit, and the Agency has made such
a grant of authority to DM0
for the
Baldwin Stalion.
This grant of authority provides an affirmative defense in
an enforcement
action.
Genet-ally
see Conditions 7.1.3(c) and
7.5.3(c).
100.
Conditions 7.1.1 0-3(a)(i) and 7.5.1 0(c)(i)
require that
DM0 notify the Agency
“immediately” if it operates during malffinction and breakdown and there could
be PM
exceedances, and Condition
7.5.1 0(c)(i) also requires such reporting ifopacity limits may have
been exceeded.
Likewise, Condition 7.!. 10-3(a)(ii) imposes
additional reporting obligations if
the “PM emission standard may have been exceeded.” The Agency is
demanding that DM0
notify it of the mere ~2nQsiti.on that there have been PM or opacity exceedances.
The Agency
has provided
no regulatory basis for reporting suppositions.
At the very
least, DM0
should he
panted
the opportunity to investigate whether operating conditions are such
that support
or
negate the likelihood that there may have been PM or opacity emissions exceedances.
DM0
does
not believe that even
this is necessary,
since the Agency lacks a regulatory basis for this
requirement in the first place.
Reference to reliance on opacity as
an indicator of PM
emissions
should be deleted.
The condition
as written exceeds the scope of the Agency’s authority to
gaptill
and
so is unlawful, arbitrary and
capricious.
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101.
Also in Conditions
7.1.1 0-3(a)(i)
and
7.5.1 0(cXi). the Agency has deleted the
word
consecutive
as a trigger for reporting opacity
and potential PM exccedanees during an
incident in
the final version
of the permit.
Versions prior to
the
July 2005 version include that
word.
Its deletion completely changes the scope and applicability
of the condition,
Please see
DMO’s comments
on each version of the pcrmit in the Agency Record.
As the series of
comments demonstrates, it
was
not
until the draft revised
proposed permit issued
in July 2005
that the Agency had deleted the concept of consecutive 6-minute averages of opacity from this
condition.
In the December 2004 version of the permit, the
word
consecutive
had been replaced
with
in
a row,
but the concept
is
the same.
102.
The Agency has provided
no explanation
for this change.
As the actual
opacity
excecdancc could alone comprise the “incident,” DM0 believes that
it
is more appropriate to
retain the word
consecutive
in the condition (or
add it back in
to the
condition).
Random,
intermittent exceedances of the opacity limitation do
not necessarily comprise a
malfunction/breakdown “incident.”
On the other hand,
a prolonged
period of opacity
cxeeedance does possibly indicate a malfltnctionibreakdown “incident.”
The trigger
for
opacity
reporting under Condition
7.5.1 0(c)(ii)
is not specified,
but
such reporting appears
to be triggered
when
“immediate” reporting
is required under 7.5.lO(c)(i).
Condition 7.5.lO(c)(ii) therefore
suffers from the same defect and the Agency has not explained or supported
the trigger for
additional
reporting under this condition.
The timeftame for additional opacity reporting under
Condition 7.1.10-3(a~(ii)also
has not been explained or
supported by
the Agency and the
timeframe is unreasonable.
The triggers
for additional reporting
under Conditions 7.5.1 0(e)(ii)
and 7.1 .10-3(a)(ii) are arbitrary and capricious.
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103.
Additionally,
Condition 7,l.10-3(a)(i) requires reporting ifopacity exceeded the
limit for “five or more
6-minute averaging periods.”
The next sentence in the condition
says,
“(Otherwise,
.
.
.
for no
more than five 6-minute averaging
periods
The
language is
inconsistent.
The way the condition is written, the pennittee cannot
tell
whether five six-minute
averaging periods
of excess opacity readings
does
or
does not require reporting.
Condition
7.5.1 0(c)t,i)
clearly requires reporting oniy when there are
five or more averaging period
cxeeedances.
The
language of Condition
7.l.lO-3(a)(i)
should be amended to
remove the
inconsistency,
and to ensure a consistent trigger for reporting
opacity exeeedances across all
applicable operations
for the
reasons discussed elsewhcre.
104.
For these reasons, Conditions
7.1.1 0-3(a)(i) and (ii) and 7.5.1 0(c)(i)
and (ii),
contested herein,
are stayed consistent
with
the APA, and DM0 requests that the
Board order the
Agency to make appropriate revisions in these conditions to correct
the deficiencies referenced
above, including by deleting reporting requirements
for possible exceedances and including
appropriate triggers for reporting of actual
exceedances.
(x)
Alternative Fuels Requirements
105.
The Agency has included at Conditions 7.1.5(a)(ii)-(iv)
requirements that become
applicable
when Baldwin Station uses a fuel other than coal
as its principal fuel.
Condition
7.1 .5(a)(ii) identifies what constitutes using an alternative
fuel
as the principal
fuel
and
establishes emissions limitations.
Condition 7.1.5(a)(iii) also
describes the
conditions under
which the Station would be considered to be using an alternative fuel
as
its principal fuel.
Condition
7. l.5(a)(iv) requires notification to the Agency prior to the Station’s use ofan
alternative
fuel
as its principal
fuel.
106.
Inclusions of these types of requirements in Condition 7.1.5, the condition
addressing non-applicability of requirements,
is
organizationally misaligued under
the permit
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structure adopted by
the
Agency.
These provisions should be included
in the proper sections of
the permit,
such
as 7.1.4
for emissions
limitations
and 7.1.10-3
for notifications.
In the
alternative, they should
he in Condition 7.1.11(e),
operational
flexibility, where the
Agency
already has a provision addressing alternative
fuels.
As the Agency has adopted a structure
for
the CAAPP permits that is fairly consistent
not
only
among units in a single permit but also
among permits,~4for the
Agency
to
include specific recordkeeping requirements in the
compliance section creates a disconnect and uncertainty regarding
where the permittee is to find
out
what he or
she is supposed to do.
107.
Additionally, at Condition
7.1.1 l(c)(ii), the Agency’s placement of the examples
of alternative
fuels seems
to define them
as hazardous wastes.
The intent and purpose of the
condition is to ensure
that these alternative fuels are not classified as a waste
or hazardous
wastes.
The
last
phrase of the condition,
beginning with “such
as petroleum
coke, tire derived
fuel...,”
should he placed
immediately after “Alternative fuels” with punctuation and other
adjustments to the language as necessary,
to
clarify that the examples listed are not hazardous
wastes and are not considered to he a waste.
108.
For these reasons, Conditions 7. l.5(a)(ii),
7.1 .5(a)(iii),
7.1 .5(a)(iv), and
7.1.11 (c)(ii),
all contested herein, arc stayed consistent with the
APA, and DM0 requests that the
Board order the Agency
to place Conditions
7.1 .5(a)(ii)-(iv) in more appropriate sections of the
permit and to clarify Condition 7.1.11(c)(ii).
~
l’hai
is,
Condition
7.x.9
for
all
lypes
of
emissions
units
in
this permit, from boilers to tanks,
addresses
recordkeeping.
Likewise,
condition
7.x.9
addresses recordkeeping
in
all
of the CAAPPperinits
for
EGUs.
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(xi)
Control Plans, Operating Logs and Reporting Requirements Related to
the
Schedule
109.
As discussed
above, the permit contains
a number of conditions that expressly’ or
implicitly characterize, refer to or attempt
to implement
provisions of the Schedule (which
reflects provisions
from the Consent Decree).
in
addition to and without limiting the reasons set
forth earlier
in this petition
for
deleting such provisions,
the
conditions identified
in this section
of this petition
also should be deleted for the reasons set
forth below.
110.
Conditions
7.1 .6—2(b)(iii), 7.! .6-2(c)(iv),
7.1 .f-2(d)(iii), 7.1.9-2(b), and
7.1 .9-4(c)
require
DM0
to develop,
implement, maintain
and submit procedures, practices and related
records
for the control
of NOx, 502
and PM emissions,
defined in the permit as “control
plans.”
The Agency, however,
does
not
have the authority
to require DM0
to develop,
implement,
maintain and submit “control
plans”
fbr NOx
and S02,
and their inclusion
is arbitrary and
capricious.
With
respect
to
PM,
the Consent Decree already requires
ESP optimization plans.
Adding another PM control
plan requirement
is unnecessary and could result in additional
and
inconsistent obligations.
Accordingly, the requirements concerning PM
controls plans are
arbitrary and
capricious
and unauthorized by
law.
Ill.
For these reasons, Conditions
7.1 .6-2(b)(iii),
7.1 .6-2(c)(iv),
7.1 .6-2(dXiii),
7.1.9-
2(h),
and
7.1.9-4(e),
all
contested
herein,
are stayed consistent
with the APA, and DM0
requests
that the Board order the Agency to delete these conditions and all references to these conditions
from the permit.
112.
Condition 7.1.9-2(a)(i) requires
DM0 to maintain operating logs with respect
to
“operating procedures related to control
equipment that are
required to be or
are otherwise
implemented pursuant to
Conditions 7.1.6-2(b), (c) and (d).”
Condition 7.1.9-1(0(i) also
requires
operating logs with
respect to
actions required under Conditions
7.
1.6-2(b), (c)
and (d).
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Conditions
7.1 .6-2(b)(c) and
(d),
in
turn,
require compliance with and purport
to
characterize
various provisions in the Schedule relating to 502, NOx
and PM emissions and the
‘control
plans” that,
as described above,
should be deleted
from the permit.
113.
Neither the Consent
Decree nor any other applicable requirement authorizes
or
imposes
the duplicative obligations set forth in Conditions
7.! .9-2(a)(i)
and 7.1.9-1(0(i), and
Conditions 7.1,6-2(h),
(e) and (d) characterize and describe various requirements of the Consent
Decree,
which is improper and unnecessary
for the reasons set forth earlier in
this petition.
114.
For these reasons, Conditions
7.1 .6-2(b), (c) and
(d),
7.1 .9-1 ffl(i) and 7.
I
.9-
2(a)(i), all
contested herein,
are stayed consistent with the APA, and DM0 requests that the
Board order the Agency to delete these conditions and
all references to these conditions from the
permit.
115.
Condition
7.1.1 0-2(h)(iii),
(c)(iii) and (d)(iv)
impose reporting requirements with
respect to
compliance with
the S02, NOx and
PM, respectively, emission
limits and
requirements set
forth in 7.1.6-1, which in
turn reflects certain emission limits and requirements
from the Consent Decree.
The reporting requirements set
forth
in
Conditions 7.1.1 0-2(b)(iii),
(e)(iii)
and (d)(iv) exceed reporting requirements set forth
in the Consent
Decree, and the
reporting requirements set forth
in such conditions are not otherwise authorized or required by
law.
In addition
as set forth above, 7.1.6-1
is redundant with
the Schedule requirements and
imposes requirements after the expiration date of the pennit.
116.
For these reasons, Conditions 7.1.6-1
and 7.1.I0-2(b)(iii), (c)(iii) and (d)(iv), all
contested herein,
are stayed
consistent with the APA,
and DM0 requests that the Board order the
Agency
to delete these conditions and all
references
to these conditions
from the permit.
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(xii)
Testing Requirements
117.
Conditions
7.1.7(e) and
7.5.7-I (h)(v) identifies detailed information that is to be
included
in
certain test reports. including target levels and settings.
To the extent that these
requirements are or
can
he viewed
as enforceable operational
requirements or parametric
monitoring
conditions,
DM0 contests
these conditions,
Operation of an electric generating
station depends
upon
many variables-- ambient air temperature, cooling water supply
temperature,
fuel supply,
equipment variations, and
so
forth
—
such that different settings are
used
on
a daily basis.
Using those settings
as some
type of monitoring device or parametric
compliance
data would be inappropriate.
For these reasons,
Conditions 7.1.7(e) and
7.5.7-
1(b)(v),
all
contested herein, are stayed consistent
with the
APA, and DMG requests
that
the
Board order the Agency
to delete
or revise these conditions
to correct
these deficiencies.
(xiii)
Monitoring and Reporting Pursuant to NSPS
118.
It
appears from
various conditions in the permit that the Agency believes that
Baldwin Station
is subject
to
NSPS monitoring and reporting requirements pursuant to the Acid
Rain Program.
DM0’s review of the applicable requirements under the Acid
Rain
Program does
not reveal how the Agency
arrived at this conclusion.
This is an
example of how a statement of
basis by the Agency would
have been
very helpful.
The
Acid Rain Program requires monitoring
and reporting pursuant to 40 CFR Part
75.
Specifically,
40
CFR
§
75.21(b)
states that
continuous opacity monitoring shall be conducted
according to procedures set
forth
in state
regulations where they exist.
Recordkeeping is addressed at
§
75.57(f)
and reporting at
§
75.65.
None of this references Part 60, NSPS.
119.
Arguably,
it
is odd that a permittee would appeal a condition in
a permit that
states that regulatory provisions are not applicable.
However, consistent with DMCi’s analysis of
the Acid
Rain requirements,
the permit,
and the Board’s regulations, it must
also appeal
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Condition
7.1.5(b), which purpom’ls to exempt Baldwin Station
from the
requirements of 35
llI.Adm.Code 201.Subpart L based upon the applicability of NSPS.
NSPS does
not
apply to the
Station through the Acid Rain
Program, and
so this condition
is inappropriate.
120.
Conditions 7.1.l0-2(b)(i),
7.1.l0-2(c)(i) and 7.l.l0-2(d)(i) require DM0 to
submit summary information
on the performance of the
502, NOx, and opacity monitoring
systems. including the
information specified at 40 CFR
§
60.7(d).
Condition
7.!. lO-2(d)(iii), in
the “Note,” refers,
also, to NSPS
§~
60,7(e) and (d).
The information required at
§
60.7(d)
is
inconsistent with the information required by
40 CFR Part
75, which sets
forth the federal
reporting requirements applicable to boilers that are affected units
under the Acid Rain program.
Section
60.7(d) Is nut
an “applicable requirement,” as the boilers at the
Station are
not subject
to
the
NSPS.
For DM0
to comply with these
conditions would entail reprogramming or
purchasing and deploying additional
software for the computerized CEMS,
effectively resulting
in the imposition of additional
substantive requirements through the CAAPP
pennit beyond the
limitations of gapfllling.
Moreover, contrary to Condition
7.1 .10-2(d)Oii),
DM0 does
not find a
regulatory
link
between the NSPS
provisions of 40
CFR 60.7(e) and (d) and the Acid Rain
Program.
121.
For these
reasons, conditions contested in this section, including Conditions
7.1.5(b), 7.1.10-2(b)(i),
7.1.l0-2(c)(i), 7.1. lO-2(d)(i),
7.1 ,l0-2(d)(iii),
and the
“Note” to 7.1.10-
2(d)(iii), are stayed consistent with the APA, and DM0 requests that
the Board order the Agency
to delete all references to NSPS
and 40 CFR 60.7(c) and (d).
(xiv)
Opacity Compliance Pursuant to
~ 212.123(b)
122,
The Board’s regulations at 35
I11.Adm.Code
§
212.123(b) provide that a source
may exceed the 30
opacity limitation of~212.123(a) for an
aggregate of eight minutes
in a 60-
minute period but
no more than three times in a 24-hour period.
Additionally,
no other unit
at
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the source located within
a
1.000—foot radius from
the unit
whose emissions exceed
30
may
emit at such
an opacity
during the
same 60-minute period.
Because the opacity limit at
§
212.123(a)
is expressed as
six-minute averages pursuant to Method
9
(see
Condition
7.1. 12(a)(i)), a source demonstrating compliance with
§
212.123(b)
must reprogram its COMS
to
record opacity over a different timeframe than would be required by
demonstrating compliance
with
§
212.123(a)
alone.
The
Agency attempts to reflect theseprovisions
at Condition 7.1.12(a),
providing for compliance with
§
212.123(a) at Condition 7.l.12(a~(i)and separately addressing
§
212.123(b) at Condition
7.1.1 2(a)(ii).
Additionally, the
Agency requires
DM0
to provide
it with
15
days’
notice prior to changing its procedures
to
accommodate
§
212.123(b) at Condition
7.1.1 2(a)(ii)(E).
These conditions raise several issues.
123.
First, Condition 7.1.! 2(a)(ii)
assumes that accommodating the “different”
compliance requirements of~2 12.123(b), as compared
to
§
212.123(a), is a change
in operating
practices.
In
fact,
it
is not.
Arguably,
then, DM0 has nothing to report
to the Agency pursuant
to Condition
7.1.1 2(a)(ii)(E). because no change
is occurring.
124.
Second,
as with DMG’s objection to Condition 5.6.2(d),
Condition
7.1.1
2(a)(ii)(E)
is an
intrusion
by government into
the
operational
practices of a source beyond
the scope of government’s
authority to so
intrude.
The Agency states that the purpose of the
15
days’ prior notice
is so that
the Agency can review the source’s recordkeeping and data handling
procedures, presumably to assure that
they will comply with the requirements implied by
§
212.123(b).
This is an
unwarranted and unauthorized extension of the Agency’s authority.
125.
Moreover, while Condition 7.1.12(a)(ii)(E) says that
the Agency will review
the
recordkeeping and data handling practices of the
source,
it says nothing about approval
of them
or what the Agency plans
to do with the review.
The Agency has
not explained
a purpose for the
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requirement in a statement-of-basis document
or in its
Responsiveness Summary or shown how
this open-ended condition assures compliance with the applicable requirement.
Because the
Baldwin
Station
is required to operate
a COMS,
all of the opacity readings captured by the
COMS are recorded and
available to the Agency.
The
Agency has had ample opportunity
to
determine whether the Station has complied
with
§
212.123(b).
DM0’s providing
15
days’ prior
notice of its “change” to accommodating
§
212.123(h)
will
not
improve the Agency’s ability to
determine the Station’s compliance.
126.
Conditions
7.1.1 0-3(a)(i) and
(ii) do
not accommodate the
applicability of
§
212.123(b).
The
Board’s regulations donot limitwhen
§
212.123(b)
may apply
beyond eight
minutes per 60 minutes three times per
24 hours.
Theretbre,
any limitation on opacity must
consider or accommodate
the applicability of
§
212.123(b)
and not assume or imply that the only
applicable opacity limitation is 30.
127.
Finally, inclusion ofrecordkeeping
and notification requirements relating to
§
212.123(b) in the compliance section of the permit is organizationally misaligued under the
permit structure adopted by
the Agency.
‘l’hese provisions, to the extent that they are appropriate
in the first place, should be included in the proper sections of the permit,
such as
7.1.9 for
recordkeeping and 7.1.10 for reporting.
As the Agency has adopted a structure for the CAAPP
permits that is fairly consistent not only among units in
a
single permit but also among permits,
for the Agency to
include specific reeordkeeping requirements
in the compliance section creates
a disconnect and uncertainty regarding where the permittee is
to
find out what he or she is
supposed to do.
128.
For these reasons,
Condition 7.1.12(a)(ii), contested
herein,
is
stayed consistent
with the APA, and DM0 requests that the Board order the Agency to delete the condition from
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the
permit.
Additionally. Conditions 7.1.1 0-3(a)(i) and (ii),
all
contested herein, are stayed
consistent with the APA, and, ifthe Board does not order the Agency to delete these
conditions
from
the permit pursuant to other requests raised
io this appeal,
DM0 requesis
that the Board
order the Agency
to
amend these conditions
to reflect the applicability of §
212.123(h).
(xv)
Establishment of PM CEMs
as a Compliance Method
129.
As discussed
above,
the pennit contains a number of conditions that expressly or
implicitly characterize, refer to or attempt to implement provisions of the Schedule
(which
reflects provisions
from
the Consent Decree).
In addition
to and without limiting
the reasons set
forth earlier
in
this petition for deleting such provisions, the condition identified
in
this section of
this petition
also should be deleted for the reasons set
forth below.
130.
Pursuant to Paragraph 93 of the Consent
Decree, DM0 may install
a PM
CEMs at
a
unit at the Baldwin Station.
While somewhat ambiguous, Condition 7.I.12(b)(ii) of the Permit
appears
to identify any such PM CEMs
as the,
or at least
a, method to he used to determine
compliance with the particulate matter emission limits identified
in Condition
7.1. 12(b)(i) of the
Permit.
131.
The compliance determination condition set
forth
in Condition
7.1.1 2(b)(ii) is
arbitrary and capricious,
assumes inaccurate facts and is
unauthorized by
law,
Among other
things, neither the Consent Decree
nor any other applicable requirement imposes
or authorizes
an
obligation to determine
compliance by use of any such PM CEMs.
in addition,
under the
schedule set
forth in Paragraph
93 of the Consent Decree,
such a PM CEM maybe installed and
operated
after December31, 2012, or after the term of the Permit expires.
Further, under
Paragraph 95 of the Consent Decree, DM0
is not required to operate any installed PM CEMs for
more than two years under certain circumstances.
Condition 7.l.l2(h)(i) incorrectly implies,
however, that any PM CEM
installed at a unit
at the Baldwin Power
Station would be operated
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and used
for compliance purposes during the entire
term of the Permit.
Finally, this condition
incorrectly implies that any installed CEMS may be used
to determine compliance even when
any such PM CEMS
is not
certified, including prior to any certification,
132.
For
these reasons,
Conditions
7.1. 12(h)(i)
and (ii),
all contested herein, are stayed
consistent with the APA, and DM0 requests
that the Board order the Agency to delete
Condition
7.1 .1 2(b)(ii).
E.
Coal Handling
Equipment, Coal Processing Equipment, and Fly Ash Equipment
(Sections
7.2,
7,3,
and 7.4)
(I)
Fly Ash Handling v. Fly Ash Processing Operation
133.
No processing occurs within the
fly
ash system.
It
is a handling and storage
operation the same as
coal handling and storage.
134.
Because the
tly ash
operations at the Baldwin
Station are not a process, they arc
not subject
to
the process weight rate nile at
§
212.321(a).
Section 212.321(a) is not
an
applicable requirement under Title V, since the
fly ash operation
is not a process.
The process
weight rate rule is not
a
legitimate applicable requirement and so
is included in the permit
impermissibly.
135.
Since the fly ash operation
is not a process,
reference to
it
as
a process is
inappropriate.
The word
process
and its derivatives
in Section 7.4 of the permit should he
changed to
operation
and
its appropriate derivatives or,
in one instance,
to
handled,
to
ensure
that there is no
confusion
as to the applicability
of
§
212.321(a).
136.
For these reasons,
Conditions
7.4.3, 7.4.4,
7.4,6,
7.4.7,
7.4.8,
7.4.9,
7.4.10, and
7.4.11, all
contested herein, are stayed consistent
with the APA, and DMG requests that the
Board order the Agency
to delete
Conditions
7.4.4(c),
7.4.9(b)(ii),
and all other references to the
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process weight rate rule,
including in
Section
10.
and
add to Condition
7.4.5 a statement
identifying
§
212.321(a)
as a requirement
that is not applicable
to the Station.
(ii)
Fugitive Emissions
Limitations and Testing
137,
The Agency has applied the opacity limitations of
§
212.123 to
sources of ifigitive
emissions at the Slation
through Conditions
7.2.4(h), 7.3.4(h), and
7.4.4(h),
all referring back to
Condition
5.2.2(b).
Applying the opacity
limitations of
§
212.123 to
sources of fugitive
emissions
is
improper and contrary
to the Board’s regulatory structure covering
PM
emissions.
in its response to comments
to this effect, the
Agency claims that
njothing
in
the
State’s air
pollution control
regulations states
that
the
opacity
hrnitation
does
not
apply
to
fugitive
emission
units,
The
regulations
at
issue
broadly
apply
to
‘emission
units.’
Moreover,
while not applicable
to these power plants~,elsewhere in
the State’s air pollution control
regulations,
opacity limitations
are
specifically
set
for
fugitive
particulate
matter
emissions
at marine
terminals, roadways, parking lots and storage piles.
Responsiveness Summary,
p.41.
138.
That
the Agency had to
specifically establish fugitive emissions limitations for
such sources is a strong indication that the regulatory structure did not apply the opacity
limitations of~212.123
to fugitive sources.
Fugitive emissions are distinctly different in
nature
from point source emissions, in that
point source emissions are emitted through a stack,
while
fugitive emissions
are not emitted through some discrete point.
Therefore,
fugitive emissions
are
addressed separately in the Board’s rule at
35
1l1.Adm.Code 212.Subpart K.
These rules call for
fugitive emissions plans and specifically
identify the types of sources that are to be covered by
these
plans.
139.
The limitations for fugitive emissions are set
forth at
§
212.301.
It is a no-visible-
emissions standard,
as viewed at the property line of the
source.
The measurement methods
for
opacity are set forth at
§
212.109, which requires application of Method
9 as applied to
§
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212.123.
it
includes specific provisions lhr reading the opacity of roadways and parking areas.
1-lowever,
§
212.107, the
measurement method
for visible emissions,
says, “This
Subpart shall
not apply to
Section 212.301 of this Part.”
Therefore,
with the exception of roadways
and
parking lots, the Agency is precluded
from
applying Method
9
monitoring to fugitive
emissions,
leaving no manner for monitoring opacity from
fugitive sources other Ihan
the method set forth
in
§
212.301.
This reinforces
the discussion ahove regarding
the structure of Part 212 and that
§
2 12.123
does
not apply to sources of fugitive emissions
other
than where specific exceptions to
that general
nonapplicability are set forth in the regulations.
140.
As
§
212,107 specifically excludes the applicability of Method
9 to
fttgitivc
emissions, the requirements of Condition 7.2.7(a), 7.3.7(a), and 7.4.7(a) are clearly inappropriate
and do
not
reflect applicable requirements.
Therefore, they,
along with Conditions 7.2.4(b),
7.3.4(h), and 7.4.4(b), must be deleted from
the permit.
Except for roadways
and parking lots,
§
212.123 is not
an
applicable requirement for fugitive emissions sources and the Agency’s
inclusion of conditions
for fugitive sources based upon
§
212.123
and Method
9 is unlawful.
To
the
extent that
Conditions 7.2.12(a), 7.3.12(a),
and
7.4.12(a) rely on Method
9
for
demonstrations of compliance, they, too,
are unlawful.
141.
The Agency also
requires stack tests
at Conditions
7.3.7(b) and 7.4.7(b).
PM
stack testing would be conducted in accordance with Test Method
S.
However, a part
of
complying with Method
S
is complying with
Method
1, which establishes the physical
parameters necessary to test.
DMG
cannot comply with Method
1
as applied
at the Station
in
the
manner required by the permit.
The stacks and vents for such sources as baghouses and wetting
systems are narrow
and not
structurally built to
accommodate testing ports and platforms
for
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stack testing.
The inspections,
monitoring,
and rccordkeeptng requirements are sufficient to
assure compliance.
These conditions should be deleted
from the pennit.
142.
For these reasons,
conditions contested in this section, including Conditions
7.2.4(b),
7.2.7(a), 7.2,12(a),
7.3.4(b), 7.3.7(a), 7.3.7(h).
7.3.12(a), 7.4.3(b),
7.4.7(a). 7.4.7(b),
7.2.12(a), 7.3.12(a) and 7.4.12(a), are stayed consistent with the AP~\,
and DM0 requests that
the Board order the Agency
to delete these conditions to the extent that they require compliance
with
§
2 12.123
and
Method
9,
or
stack testing and, thereby,
compliance with Methods
I
and
S.
(iii)
Testing Requirements for Coal Handling, Coal Processing, and Fly Ash
Handling
Operations
143.
The
CAAPP permit provides at Condition 7.4.7(a)(ii) that DMG conduct the
opacity testing required at Condition
7.4.7(a)(i) fur a period of at
least 30
minutes “unless the
average opacities
l’or the first
12
minutes of ohservation (two six-minute
averages)
are both less
than 5.0
percent.”
~l’heoriginal
draft and proposed permits (June 2003
and
October 2003,
respectively) contained
no testing requirement for
fly ash
handling.
This testing requirement
first appeared
in the
draft revised
proposed permit of December 2004,
and at that time allowed
for testing to he discontinued
if the
first
12
minutes’ observations were both
less
than
10.
In
the second draft revised proposed permit (July
2005),
the Agency inexplicably reduced the
threshold for discontinuation of the test to
5.
144.
The Agency provided
no explanation for (1) treating fly ash handling differently
from coal
handling in
this regard
(see
Condition 7.2.7(a)(ii)iS) or (2) reducing the threshold
from
I O
to
5.
Because the Agency has not provided
an explanation for this change at the time that
the change was made to provide DM0 with the opportunity, at worst, to try to understand the
he
durationof opacity observations
or each
tesi shall
he ai
least 30
minutes
(five 6-minute averages)
unless
the average opacities for the first
12
minutes of observations
(two
six-minute averages)
are both
less
than iS~L9
percent.”
(Emphasis added.)
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Agency’s rationale or
to comment on
the
change. the inclusion of this change in
the threshold for
discontinuing the opacity test
is arbitrary and capricious.
Condition
7.4.7(a)(ii) is inextricably
entwined with 7.4.7(a), and so DM0 must appeal
this underlying condition as well.
145.
For these
reasons, Condition 7.4.7(a)
(including 7.4.7(a)(ii)),
which is contested
herein,
is stayed consistent with the APA, and without conceding by
its appeal that
these
conditions are
appropriate, DM0 requests that ifthe condition is not deleted, the Board order the
Agency to amend
Condition
7.4.7
to, among other things, reflect
the 10
threshold,
rather than
the 5
threshold, for discontinuation of the opacity test,
although DM0
specifically does not
concede that Method 9 measurements
arc appropriate in the
first place.
(iv)
Inspection Requirements for Coal Handling, Coal Processing, and Fly Ash Handling
Operations
146.
Conditions
7.2.8(a), 7.3.8(a), and
7.4.8(a)
contain inspection requirements
for the
coal handling,
coal processing,
and
fly ash handling operations,
respectively.
In each case, the
condition requires that “these
inspections
shall be performed with personnel
not directly
involved in the day-to
sic
day operation of the
affected
activities.
The Agency provides
no basis for this requirement other than a discussion,
after the
permit has been issued,
in the
Responsiveness Summary at page
19.
The
Agency’s rationale is that the personnel
performing
the inspection should
be “fresh”
and “independent”
of the daily operation,
but
the
Agency
does not tell
us why being “fresh”
and “independent” are “appropriate” qualifications for such
an
inspector.
The Agency rationalizes that Method 22,
i.e.,
observation for visible emissions,
applies, and so
the inspector need have
no particular skill set.
The opacity requirement
for these
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operations is not 0
or
no visible emissions at the
point of operation.
but rather
at the property
line,
Therefore, exactly what the observer is
supposed to
look at
is not at all
clear.tt
147.
There is no basis in
law or practicality for this provision.
1~oidenti~’in a CAAPP
permit condition
who can
perform
this type ofan inspection
is overstepping the Agency’s
authority and clearly exceeds any gapfilling authority that may somehow
apply to
these
observations of fi~gitive
dust.
The requirement must be stricken from
the permit.
148.
The Agency has included in
Conditions 7.2.8(b) and 7.3.8(b) that inspections of
coal
handling and coal processing operations be conducted
every
IS months
while the process is
not operating.
Condition
7.4.8(b)
contains a corresponding requirement for fly ash handling,
but
on
a nine-month frequency.
The Agency has
not made
it
clear in
a statement of basis or even the
Responsiveness Summary why these particular
frequencies
for inspections are appropriate.
Essentially,
the Agency is dictating an outage schedule, as these processcs
are
intricately
linked
to the operation of the boilers.
In
any given area of the
station, station personnel
are constantly
alert
to any “abnormal” operations during the course oithe
day.
Although these
are not
formal
inspections, they are
informal inspections and action
is taken
to address any “abnormalities”
observed as quickly
as possible.
It
is DMG’s best interest
to run its
operations as efficiently and
safely as possible.
While the
Agency certainly has some gapfilling authority, this authority is
limited to
what is
necessary to ensure compliance with permit conditions.
See Appalachian
Power.
It is not clear at all how these frequencies of inspections accomplish
that
end.
Rather,
it
appears that these conditions are administrative compliance traps
for work that is done as part of
the normal activities
at the station.
The Agency’s
requirements
in this condition
also underscore
Dynegy Midwest Generation’s
appeal of the
conditions
applying
an opacity
limitation
to
fugitive sources, above
at
~
Section
lll.E.(ii).
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149.
Moreover,
the Agency does
not
provide a rationale
as
to why
the
frequency of fly
ash handling inspections
should be ~eater
(more
frequent) than for the other processes.
150.
The contested permit conditions referenced above
required that these
activities
must be inspected
every
15
or
9 months,
as
the ease may be,
while they are not
in operation.
They typically would
not operate during
an entire outage of the boiler.
The Agency. without
authority,
is effectively dictating a boiler outage
schedule through these
conditions.
151,
Conditions 7.2.8(b),
7.3.8(b), and 7.4.8(b) require detailed inspections of the coal
handling,
coal processing,
and
fly ash handling operations both before
and after maintenance has
been performed.
The Agency has
not provided
a rationale
fbr this requirement and has
not
cited
an
applicable requirement for these conditions.
This level of detail in a CAAPP permit is
unnecessary and inappropriate and exceeds the Agency’s
authority to gapulll.
These
requirements
should be deleted from
the permit.
152.
Condition 7.2.8(a) requires inspections of the coal handling and
coal processing
operations on
a
monthly basis and provides “that all affected
operations that are
in routine
service shall be inspected
at least once during each calendar month.”
Since the first sentence of
the condition already states that these operations are to be inspected
on a monthly basis,
the last
clause of the condition appears
superfluous.
However, until
the July 2005 draft revised proposed
permit, the language in this clause was
“that all affected
operations shall be
inspected at least
once during each
calendar quarter.”
7
The Agency has provided
no explanation as to why the
frequency of the inspections has been increased and the corresponding reeordkeeping conditions,
7.2.9(d), made more onerous.
17
That is,
not
all
aspects of the coal handling and coal processing operations are required to be inspectedduring
operationon
a monthly
basis.
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153.
Forthesc reasons, Conditions
7.2.8(a), 7.3.8(a), and 7.4J~(a).
which are contested
herein, are stayed consistent \vith the APA, and DMG requests that the Board order the
Agency
to delete those provisions of these conditions
that dictate who
should perform
inspections of
these
operations, to
delete the requirement
contained in these conditions
that DMG inspect
hethre and after maintenance and repair activities.
Additionally.
Conditions 7.2.8(b),
7.3.8(b).
and 7.4.8(b),
all contested herein,
are stayed consistent
with the APA. and
DMG requests that the
Board order the Agency to alter the
frequency of the inspections to
correspond to
boiler outages.
(v)
Recordkceping ReQuiremelits
for Coal handling, Coal Processing, and
Fly Ash
Handling Operations
154.
The demonstrations confirniing that the
established
control measures
assure
compliance with emissions limitations, required at Conditions 7.2.9(bXii),
7.3.9(h)(ii) and
7.4.9(b)(ii), have
already been provided
to
the Agency
in
the construction
and CAAPP
pennit
applications.
These conditions are
unnecessarily redundant,
and resubmitting the demonstrations
pursuant to Conditions 7.2,9(b)(iii), 7.3.9(h)(iii), and 7.4.9(b)(iii) serves no compliance purpose.
Also, Conditions 7.2.9(b)(iii), 7.3.9(h)(iii),
and 7.4.9(b)(iii) rely upon Condition 5.6.2(d),
contested herein.
Conditions
7.2.9(b)(ii),
72.9(b)(iii), 7.3.9(b)(ii),
7.3.9(b)(iii).
7.4.9(h)(ii),
and
7.4.9(h)(iii) should he deleted
from the permit.
155.
Moreover,
Conditions 7.2.9(b)(iii), 7.3.9(b)(iii), and 7.4.9(b)(iii) include reporting
requirements
within the recordkeeping requirements, contrary to the overall structure of the
permit.
DM0
has already objected
to the inclusion of these conditions for other
reasons.
In any
event,
they should not appear
in Condition
7.x.9.
156.
Conditions 7.2.9(d)(ii)(B), 7.3.9(c)(ii)(B),
and
7.4.9(e)(ii)(B) are redundant to
7.2.9(d)(ii)(E),
7.3.9(c)(ii)(E),
and 7.4.9(c)(ii)(E), respectively.
Such redundancy is not
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necessary.
Conditions 7,2.9(d)(ii)(B),
7.3,9(
)(ii)(
).
and
7.4.9(c)(ii)(B)
should he deleted
from
the permit.
157.
Conditions
7.2.9(e)(ii), 7.2.9(e)(vii), 7.3.9(e)(ii),
7.3.9(e)(vii), 7.4.9(d)(ii), and
7.4.9(d)(vii) require DM0
to provide the magnitude of PM emissions during an
incident where
the coal handling operation continues
without the use of control
measures.
DM0 has
established
that
it has no
means
to measure PM emissions from any process on
a
continuing basis.
Therefore,
it is not appropriate for the Agency
to require reporting of the magnitude of PM
emissions.
Though
it may seem to he a small difference,
it
is a difference with distinction to say
that what DM0 should he required to report
is its
estimate ofthe magnitude of PM emissions, if
it must report
at all.
158.
The Agency uses the word
process
in Condition
7.2.Qffl(ii) rather than
operation,
~perhaps because use of
operation
at this point
would be repetitious.
While this may
seem a very minor point,
it
is a point with a distinction.
The word
process,
as the Board can see
in Section 7.4 of the permit relative to the fly ash handling operation,
can be
a buzzword that
implicates the
applicability of the process weight rate nile.
DM0
wants there to be no possibility
that anyone can incorrectly
construe coal handling as a process subject to the process weight rate
rule.
159.
The Agency provided
no rationale
and still provides no authority
for its inclusion
of Conditions 7.2.9(d)(i)(B) and 7.3.9(c)(i)(B), observations of coal tines, and Condition
7.4.9(e)@~(B),
observations of accumulations of fly ash in the vicinity of the operation.
The
Agency did address these conditions after the
fact
in the Responsiveness Summary, but did
not
‘~
“Records
for each
incident when operation of an affected prgc~scontinued during
malfunction
or breakdown.
(Emphasisadded.)
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provide an
acceptable rationale as
to why the
provisions arc even there.
The Agency says,
with
respect
to the observation of conditions,
as follows:
Likewise,
the
identification
of
accumulations
of
lines
in
the
vicinity of a process does
not
require technical
training.
It
merely
requires that an individual
be able to identify accumulations of coal
dust
or
other
material.
This
is
also
an
action
that
could
be
performed
by a memher of the general public.
Moreover,
this
is
a
reasonable requirement
for the plants
for which
it
is
being applied,
which
are
required
to
iniplement
operating pro~amsto
minimize
emissions
of fugitive
dust.
At
such
plants,
accumulations ol fines
can
potentially
contribute
to
emissions
of
fugitive
dust,
as
they
could become airborne in the wind.
Responsiveness Sumnian’, p.
19.
The heart of the matter
lies
in the next-to-last sentence:
‘‘plants
.
.
.
which are required
to implement operation programs
to minimize emissions of
fugitive dust.”
This is accomplished
through other means
under
35
lll.Adm.Code
§
212.309.
160.
Observing
accumulations of fly ash
or tines is not
an applicable
requirement;
therefore,
their inclusion
in the permit violates Title
V and
Appalachian
Power
by imposing new
substantive requirements upon the pernnttec through
the
Title V permit.
Additionally, requiring
such observations
cannot reasonably he included under gapfilling, as they are not necessary to
assure compliance with the permit.
161.
Given that the fly ash system results in
few emissions, rarely breaks down,
and
is
a closed system,
there is
no apparent justification for the trigger for additional reeordkeeping
when operating during malfunction/breakdown being only one hour in
Condition 7.4.9(e)(ii)(E)
compared to the two hours allowed
for coal handling (Condition
7.2.9(D(ii)(E)) and coal
processing (Condition 7.3.9(f)(ii)(E)).
The Agency has provided
no
rationale for this difference.
Moreover,
in earlier versions
of the
permit, this time trigger was two hours.
See
the June 2003
draft permit and the October 2003
proposed permit.
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162.
For
these reasons, all
of the conditions contested in this section, including
Conditions 7.2.9(b)(ii),
7.2,9(b)(iii),
7.2.9(d)(i)(B),
7.2.9(d)(ii)(B), 7.2.9(e)(ii),
7.2.9(e)(vii),
7.2.9(fXii)
(including (f)(ii)(E)),
7.3.9(h)(ii),
7.3.9(h)(iii). 7.3.9(
)(i)(B),
7.3.9(c)(ii)(B),
7.3.9(e)(ii),
7.3.9(e)(vii), 7.3.9(t)(ii)(E),
(7.4,9(h)(ii),
7.4.9(b)(iii), 7.4.9(c)(i)(B), 7.4.9(c)(ii)(B),
7.4.9(d)(ii), 7.4.9(d)(vii),
and 7.4.9(e)(ii)(E), are stayed consistent
with the APA, and DMG
requests that the Board order the Agency
to
delete or revise each of these
conditions to address
the deficiencies set
forth
above.
(vi)
Reporting Requirements for Coal iIandlin~,Coal Processing, and Fly
Ash Handling
Operations
163.
Conditions 7.2.10(a)Øi), 7.3.l0(a)(ii),
and 7.4. l0(a)(ii) require
notification to the
Agency for operation of support operations that were not
in
compliance with the applicable work
practices of Conditions 7.2.6(a), 7.3.6(a), and 7.4.6(a), respectively, for more than
12 hours or
four hours with respect to ash handling regardless of whether there were excess emissions.
Conditions 7.2.6(a), 7.3.6(a), and 7.4.6(a) identify the measures that DM0 employs to control
fugitive
emissions at the Baldwin
Station.
‘There are
frequently
12- or four-hour periods when
the control
measures are not applied because it
is not necessary that they be applied
or
it
is
dangerous to apply them.
These conditions
should be amended to reflect notification of excess
emissions and not
of failure to apply work practice control
measures within the past 12
or four
hours.
DM0 notes also, consistent with the discussion below, that the Agency has provided
no
explanation as
to why ash handling in
Condition
7.4.1 0(a)(ii) has only
a thur-hour
window while
coal
handling and processing have a 12-hour window.
164.
Conditions 7.2.1 0(b)(i)(A),
7.3.1 0(b)(i)(A),
and 7.4.1 0(b)(i)(A) require reporting
when the opacity limitation may have been
exceeded.
That a limitation p~yhave been exceeded
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does not rise to the level
of an
octual exceedance.
It is beyond
the scope of the Agency’s
authority to require reporting of suppositions of exceedances.
165.
Additionally, in these
same conditions (i.e., 7.2.lO(h)(i)(A),
7.3.lO(h)(i)(A), and
7.4.I0(b)(i)(A), the Agency requires reporting ifopacity exceeded the limit
for “live or more 6-
minute averaging periods”
(“thur or more” for ash handling).
The next sentence in
the
Conditions 7.2.I0(b)(i)(A)
and 7.3. lO(b)(i)(A) say. “(Otherwise,
.
.
.
for no more
than five
6-
minute averaging periods...)”
The
ash
handling provision
says “no more than three”
(Condition 7.4. 10(b)(iXA)).
The language in Condition
7.4. l0(b)(i)(A)
is internally consistent;
however,
the language in
Conditions 7.2.l0(b)(i)(A) and 7.3.l0(b)(i)(A) is
not.
The
way
these
two conditions
are
written,
the permictee
cannot tell whether
five six-minute averaging periods of
excess opacity readings
do
or
do
not
require reporting.
In
older versions of the permit, five
six-
minute averaging periods did
not trigger reporting.
In
fact,
the August 2005
proposed versions
of the pennit is the first time that five six-minute averages triggered reporting.
The conditions
should be amended
to claritS’
that excess opacity reporting
in
Conditions 7.2. l0(b)(i)(A) and
7.3.1 0(h)(i)(A) is triggered after five six-minute averaging periods and, as discussed below, that
these averaging periods should be consecutive or occur within
some reasonable outside
timefi-ame and not just randomly.
166.
As
is the case with other permit conditions
for the fly ash handling operations, the
reporting requirements during malfunction/breakdown at Condition
7.4.1 0(b)(i)(A) for this
support operation are different from those for the coal handling and coal processilrgrorperations.
DM0 must notify the Agency immediately for each incident in which opacity of the fly ash
operations exceeds the limitation for four
or more
six-minute averaging periods, while for coal
handling and coal
processing,
such notification is required
apparently
(see
discussion above)
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only after five six-minute averaging periods.
~Si-e
Conditions 7.2.l0(b)(i)(A) and 7.3.lO(h)(i)(A).
The Agency has provided
no basis for these diffurences or
for why it changed the immediate
reporting requirement for ash handling from
five six-minute
averaging periods,
as
in
the October
2003 proposed permit,
to the
four six-minute averaging periods.
Additionally, thc Agency has
deleted the time frame during which these
opacity exceedances occur
in this provision~in all
three sections
—
7.2.lO(b)(i)(A), 7.3.10(b)(i)(A), and
7,4.1 0(b)(i)(A).
Cf,
the October 2003
proposed permit.
The lack of a timeframe for these operations has the same problems as
discussed
above regarding the boilers.
The trigger for reporting excess
opacity for all three of
these operations should be the same timeframe.
The Agency has provided
no justification as
to
why they should he different, and given
the complexities of the pennitting requirements
generally, having these reporting tiincframes different adds another and an unnecessary layer of
potential violation trips for the perrnittee.
No environmental purpose
is served by having them
different.
167.
The Agency requires
at Conditions 7.2.1 0(b)(ii)(C),
7.3.1 0(b)(ii)(C),
and
7,4.1 0(b)(ii)(C) that
DM0 aggregate the duration of all incidents during the preceding calendar
quarter when the operations
continued during malfunction/breakdown with excess emissions.
DM0 is already required
at Conditions 7.2.l0(b)(ii)(A), 7.3.10(b)(ii)(A), and 7.4.lO(b)(ii)(A) to
provide the duration of each incident.
It
is not at all apparent
to DM0
why the Agency needs
this additional particular bit of data.
The Agency has not identified any applicable requirement
that serves
as the basis for this provision other than the general
reporting provisions of Section
39.5
of the Act,
It is
not apparent that this requirement serves any legitimate gapfilling purpose.
For these reasons, these conditions
should he deleted
from the
permit.
9
That
is,
that the averaging periods are consecutive or occur within
sonic timeframe,
such
as two
hours.
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168.
Conditions
7.2, l0(h)(ii)(D),
7.3.1 0(h)(ii)(D), and
7.4. l0(b)(ii)(D)
require
reporting that there were no incidents of malfunction/breakdown, and so no excess emissions,
in
the quarterly report.
Reporting requirements for the support operations during
malfunction/breakdown
should be limited
to
reporting excess emissions and should not
be
required ifthere are no excess emissions,
169.
For
these reasons, all
of the conditions contested in this section, including
Conditions
7.2. l0(a)(ii),
7.2.10(
)(i)(A),
7.2. l0(h)(ii)(C), 7.2.10(bXii)(D),
7.3.10(a)(ii),
7.3.l0(b)(i)(A),
7.3.10(b)(ii)(C), 7.3.! 0(b)(ii)(D),
7.4. lO(a)(ii),
7.4. l0(b)(i)(A),
7.4.10(b)(ii)(C),
and
7.4. lO(b)(ii)(D),
are
stayed consistent with the APA,
and DM0
requests that the Board order
the Agency
to
address and correct
the deficiencies identified
above, including by taking
action to
limit Conditions 7.2. l0(a)(ii), 7.3.10(
)(ii),
and 7.4. l0(a)(ii) to notification when there are excess
emissions rather than when control measures have not been
applied for
a 12-hourperiod
or four-
hour period in the case of ash handling; to add a timeframe for opacity exceedanees occurring
during operation during malfunction/breakdown for immediate reporting to the Agency in
Conditions 7.2.10(b)(i)(A),
7.3.10(b)(i)(A),
and 7.4.10(b)(i)(A);
to change the number of six-
minute averaging periods to six and to
delete the requirement for reporting suppositions of
excess opacity in
Conditions
7.2.1 0(b)(i)(A), 7.3.1 0(b)(i)(A),
and 7.4. lO(h)(i)(A); to delete
Conditions 7.2.1 O(b)(ii)(C),
7.3. 10(h)(ii)(C),
7.4.1 0(b)(ii)(C).
F.
Maintenance and Repair Logs
(Sections
7.1, 7.2,
7.3,
7.4)
170.
The permit includes requirements that DM0 maintain maintenance and repair
logs
for each of the permitted operations.
However,
the requirements associated with these logs
differ among
the various operations,
which adds to the complexity of the permit unnecessarily.
Specifically, Conditions
7.1 .9-2(a)(ii), 7.2.9(a)(ii),
7.3.9(a)(ii), and 7.4.9(a)(ii) require logs for
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each
control device or for the pennitted equipment without regard to
excess emissions
or
malfunction/breakdown.
Conditions
7.1.9-4(b)(i), 7.2.9(0(i), 7.3.9(0(i).
and 7.4.9(e)(i) require,
or appear
to require, logs
for components of operations related to
excess emissions
during
nialfljnction/breakdown.
Conditions
7.2.9(d)(i)(C), 7.3.9(c)(i)(C),
and 7.4.9(c)(i)(C) require
descriptions of recommended repairs and maintenance, a review of previously recommended
repair and maintenancc, apparently
addressing the status of the completion of such repair or
maintenance.
Conditions 7.2.9(d)(ii)(B)-(E),
7.3.9(e)(ii)(B)-(E),
and 7.4.9(c)(ii)(B)-(E)
go
even
further to require DM0
to record the observed condition
of the equipment and a summary of
the
maintenance and repair that has been or will
be performed on
that equipment, a description of the
maintenance or repair that resulted
from the inspection,
and a summary of the inspector’s
opinion of the ability of the equipment to effectively and reliably control
emissions.
171.
Each section
of the permit should he consistent on the
recordkeeping
requirements for maintenance and repair of emission units and
their respective pollution control
equipment.
Consistency should be maintained across
the permit for maintenance and repair
logs
whereby records are required only if any emission
unit, operation, process or air pollution control
equipment has
a malfunction and breakdown with excess
emissions.
172.
Conditions
7.2.9(d)(i)(D),
7.3.9(e)(i)(D) and 7.4.9(c)(i)(D) require
“a
summary
of the observed implementation
or status of actual
control measures, as compared
to the
established control measures.”
DM0
does
not understand what this means,
These conditions are
ambiguous, without clear meaning, and should be deleted from
the permit.
173.
These requirements exceed
the limitations
on the Agency’s authority to gapfill.
The purposes of maintaining equipment are multifold, including optimization of operation as
well as
for environmental purposes.
The scope of the Agency’s concern is compliance with
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environmental limitations and that is the scope
that should apply to recordkeeping.
The
maintenance
logs required in
this permit should he consistently limited to logs of repairs
correcting mechanical
problems that caused excess emissions.
174.
For these reasons, all of the conditions contested in this section, including
Conditions 7.1.9-2(a)(ii),
7.2.9(dXi)(C),
7.2.9(
)(i)(D),
7.2.9(d)(iiXB)—(E)
7.3.9(c)(i)(C),
7.3.9(c)(i)(D), 7.3,9(c)(ii)(B)-(E),
7.4.9(c)(i)(C). 7.4.9(c)(i)(D), and 7.4.9(c)(ii)(B)-(E),
are
stayed
consistent with the APA,
and DM0
requests that the
Board order the
Agency to delete
these conditions
from
the permit.
C.
Distillate Fuel Oil
Fired Boiler
(Section 7.5)
175.
Condition
7.5.7-l(a)(i)
requires DM0 to determine the
opacity of the exhaust
from this boiler using method
9 on an armual basis,
unless
the boiler operated
for “less than
25
hours in
the calendar year.”
Although unclear, this seems to mean that DM0 should determine
whether annual
testing is required in
a given year based
on whether the boiler has operated 25 or
more hours in that given year, which of course may not
he known until the end of the calendar
year.
For
the first test,
the Condition
seems to
require testing within
the first
100 hours
of boiler
operation after
the
permit’s effective date, regardless of the hours of operation in any given year.
Condition 7.5.7-l(a)(i)(B) requires an opacity
test
within
forty-five days of a request by
the
Agency
or
the next date of boiler operation,
“whichever is later.”
Under Condition
7.5.7-
l(a)(iii), DM0 is
to provide seven days
advance notice of “the date and time of the testing.”
Similarly,
Condition 7.5.7-1(b)(i) provides that PM and CO must
be tested within ninety days of
a request by the Agency. Under Condition 7.5.7-1(b)(iv), DM0
is
to provide notice thirty days
prior to such a PM
or CO test.
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176.
Conditions 7.5.7-l(a)(i)
and (iii), and 7.5.7(b)(i)
and (iv),
are arbitrary and
capricious.
The boiler in
question operates only intermittently, and specific periods when it will
operate are often driven
by extrinsic conditions,
such
as weather or emergency outages, that are
not predictable.
Accordingly. DM0 may not he able
to provide notice seven or thirty
days in
advance of testing,
which can only
occur while the boiler is operating.
Similarly, DM0
may not
know in any given year ifthe boiler will
operate more than
25 hours
at the time when
the boiler
maybe called on to operate,
and so
it would be difficult to detennine whether and when testing
would be required.
Furthermore, by requiring testing upon written request for a boiler that
operates only intermittently, the request could in effect dictate when the boiler operates.
The
Agency has failed to explain
the bases for
these conditions.
The conditions are vague,
ambiguous and not practical or feasible.
For these reasons, Conditions
7.5.7-1(a)(i) and (a)(iii),
and 7.5-7-1(b)(i) and (iv),
all
contested herein,
are stayed consistent with the APA,
and DM0
requests that the
Board order the Agency to correct the deficiencies described above by, among
other things,
eliminating the requirements to provide notice seven
and thirty days
in
advance of
testing.
177.
The Agency has
imposed inconsistent obligations and requirements
with respect
to
emission testing requirements for heating and auxiliary boilers at issue in the five Title V
permits issued to DM0, which include the Baldwin permit and the
four other Title V permits
issued to DM0 contemporaneously with the Baldwin permit.
All four of those other permits
also
are
being appealed contemporaneously herewith.
The Agency has
failed to provide any
explanation for such different requirements among the permits.
The different emission testing
requirements for heating and auxiliary boilers, ifsustained, would
impose additional
and
unnecessary expense upon DM0 to comply and is arbitrary and capricious.
Accordingly,
all
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requirements
and provisions
in Condition
7.5.7-1
of
the
Baldwin permit relating to
emissions
testing are contested herein
and are stayed consistent
with the APA,
and DM0
requests that the
Board order the Agency
to
revise such
conditions as appropriate to be consistent
among the fivc
Title V pennits issued
to DM0.
H.
Casoline Storage Tank
(Section
7.6)
(i)
Tank Requirements
178.
Refiners and suppliers of gasoline have certain requirements
under 35
1ll.Admn.Code
§
215.583.
DM0
is not
a “supplier” of gasoline as the term is used
in
§
215.583;
rather,
DM0
is a consumer olgasoline.
The reference to
§
215.122(h)
and
21 5.583(a)( I) as
applicable standards in Condition
7.6.4
or other conditions should
be deleted to the extent this
implies that they impose any sampling, analyses
or inspection requirements upon DM0.
Such
obligations of this regulation are not “applicable requirements”
for DM0.
179.
For these reasons,
consistent with the APA, Conditions
7.6.4 contested herein,
is
stayed,
and DM0
requests that the Board order the Agency
to revise Condition 7.6.4 and related
conditions to
address the
deficiencies set forth above.
(ii)
Inspection Requirements
180.
The
Board’s regulations
for gasoline distribution are sufficient to
assure
compliance.
Therefore,
the Agency’s inclusion of permit conditions specifying inspections of
various components
of the gasoline storage tank operation exceeds its
authority to
gapflll.
These
requirements are at Condition 7.6.8.
Certainly, there is no regulatory basis for requiring any
annual inspections within the two-month timeframe included in Condition
7.6.8.
In
addition, the
Agency has provided
no explanation for that selected tinieframe, and the titneframe is arbitrary
and capricious.
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181.
Therefore, consistent
with the APA, Condition
7.6.8 and the corresponding
recordkeeping condition, 7.6.9(h)(i), are contested herein,
are stayed
consistent with
the APA,
and DM0
requests that the
Board order the Agency to delete these conditions
from the
permit.
I.
Testing Protocol Requirements
(Sections
7.1,
7.3,
7.4
and
7.5)
182.
The permit contains testing protocol requirements
in
Sections 7.1,
7.3,
7.4 and
7.5
that unnecessarily repeat the requirements set forth
at Condition
8.6.2.
Condition 8.6.2,
a
General Permit Condition, provides that specific
conditions within
Section 7
may supersede
the
provisions of Condition
8.6.2.
Where the conditions in Section
7
do not
supersede Condition
8.6.2 hut merely repeat it, those
conditions in Section 7 should he deleted.
Included
as they are,
they potentially expose the permittee to allegations of violations based
upon multiple conditions
when those conditions are mere redundancies.
lhis
is inequitable, it is arbitrary and capricious
and such conditions in Section
7
should be deleted from the permit.
More specifically,
Conditions
7.1 .7(c)(i),
7.3.7(b)(iii), 7.4.7(b)(iii)
and 7.5.7-l(b)(iii)
repeat the requirement that
test plans he submitted to the Agency at least 60 days prior to testing.
This 60-day submittal
requirement
is part of Condition
8.6.2.
183.
Conditions 7.1.7(e),
7.3.7(b)(v),
7.4.7(b)(v) and 7.5.7-1(h)(v), require information
in
the test report that
is the same as the information required by Condition 8.6.3.
To the extent
that the information required by the conditions in Section 7 repeat the requirements of Condition
8.6.3, they should be deleted.
184.
For these reasons, Conditions 7.1.7(c)(i), 7.1.7(e), 7.3,7(b)(iii),
7.3.7(b)(v),
7.4.7(b)(iii),
7.4.7(b)(v), 7.5.7-1(b)(iii),
7.5.7-l(b)(v) and all other conditions that repeat the
requirements of Conditions 8.6.2
or 8.6.3, all contested herein,
are
stayed pursuant to
the APA,
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and DM0 requests that the Board order the
Agency to delete all conditions
that repeat the
requirements of Conditions
8.6.2
or 8.6.3.
,J.
Typographic
and Factual Errors
(All Sections)
(I)
General Typographic and Factual Errors
185.
The permit contains
numerous conditions
that are factually inaccurate, reference
the wrong condition
or a condition that does
not exist or otherwise contain errors.
These
mistakes arid
errors create confusion and
ambiguity,
and result
in
uncertainty regarding how
certain conditions are to
be implemented
and interpreted.
186.
The following
conditions contain the
following errors:
(I) Condition
1.3
incorrectly lists as
the operator
“Rick Dieriex/Director-Operations Environmental
Compliance”;
(2) Condition
7.1 .6-l(c)(ii)(B) incorrectly states the emission rate from
Paragraph
54
of the
Schedule;
(3) Condition 7.1.6-I (c)(iv)
inaccurately identifies the relevant CEMS
as a “N0x2
CEMS”; (4) in Condition 7.l.7(a)(iv)(B),
the references
to “prcccding RATA” or language of
similar import are
in
error;
(5) in
Conditions
7.l.9-2(a)(i) and (ii),
references to “(1)” and “(2)”
should be to “(A)”
and “(B)”;
(6) the 30-day
rolling average S02 emission rate cited in
Condition
7.1 .9-3(b)(ii)(D) does
not apply to
the Baldwin Station; (7) Condition
7.1.10-
2(a)(i)(E) cites
to
Condition
7.1 .9-3(a)(ii)(C), but there
is no Condition
7.1 .9-3(a)(ii)(C) in the
permit;
(8) Conditions 7.1.1 0-4(a)(ii)(A)( I) and (B)(l)
cite to Condition
7.1.1 0-2(e)(ii)(B), but
there is
no Condition
7.1.1 O-2(e)(ii)(B)
in the permit; (9) Condition
7.2.1 0(b)Qi)(A)
should be
reformatted to
include (A)(I), (2) and (3); (10) there are
two conditions 7.3.9(f) in the permit,
and the second should be changed to 7.3.9(g); (11) Condition
7.3.lO(b)(ii)(A) should be
reformatted to include (A)(1),
(2) and (3);
(12)
“Fly Ash Loadout” to railcars was incorrectly
omitted
from Condition 7.4.2; (13) Condition 7.5.9(a)(iv)
incorrectly references Condition
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7.5.6(a)(i); (14) Condition
7.5,9(b) incorrectly references Condition 7.7.4(c). which does
not
exist in this permit; (IS) Condition 7.5.10(a)(ii)
incorrectly references Condition
7.7.4(a), which
does not exist in this permit;
(16) Condition 7.510(a) has two subsections
“(ii)”;
(17) Condition
7.5. l0(a)(iii)(B) incorrectly references Condition
7.7.10,
which
does not exist in this permit;
(18)
Condition
7.1.9—I (a)(ii) incorrectly refers
to
“conversion factors”
rather than the calculations
used by DM0
to determine
the hourly heat
input
to the boiler; (19) Condition
7.1 .6-2(c)(iii)(C)
incorrectly cites to Condition
7.1 .6(e)(i), which does not exist in
this permit;
(20) Condition
7.1 .9-3(a)(iv) incorrectly cites to Condition 7.1.6(h),
which does
not exist in this permit;
(21)
Condition
7.1.1 0-2(d)(iii)(G) incorrectly
cites to
Condition
7.1 .9(h)(ii), which
does
not
exist in
this permit;
(22) Condition 7.1.12(d) incorrectly cites
to Condition 7.1.9-47.1, which does
not
exist in this permit; and (23) Condition
7.5.9(I) incorrectly cites to Condition
7.5.7(a), which
does
not
exist in this permit.
187.
For these reasons, all of the conditions contested
in
this section, including
Conditions
7.1 .6-l(c)(ii)(B).
7.1.6—l(c)(iv). 7.1 .7(a)(iv)(B), 7.1 .9-2(a)(i),
7.1 .9—2(a)(ii),
7.1.9-
3(~b)(ii)(D),
7.1.1 0-2(a)(i)(E),
7.1.1 0—4(a)(ii)(A)(l),
7.1 .10—4(a)(ii)(B)(l
),
7.2.10(h)(ii)(A),
7.3.9(f), 7.3. I0(b)(ii)(A),
7.4.2, 7.410(b)(ii)(A),
7.S.9(a)(iv), 7.5.9(b),
7.5.10(a)(ii),
7.5.10(a),
7.5.l0(a)(iii)(B) and 7.L9-l(aXii), are stayed consistent with the
APA, and DM0 requests that
the Board order the Agency to correct these errors.
(ii)
Capacity Ratings
188.
The permit incorrectly lists the megawatt
generating capacity
or rating in
Conditions
4.0, 7.1.1, 7.1.2
with respect
to
Boilers
1, 2
and
3.
This information is unnecessary in
the permit and creates conthsion
and ambiguity.
Furthermore, similar Conditions contained in at
least some other Title V permits issued to other facilities in Illinois
do
not list generating
capacity or ratings.
There is no reason or authority to include megawatt capacity or rating
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inforniation,
and inclusion of this information could be
improperly construed as
imposing sonic
form
of limit.
189.
For these
reasons, Conditions, 4.0, 7.1.1
and 7.1.2, all contested
herein, are stayed
consistent
with
the
APA,
and
DM0
requests
that
the
Board
order
the
Agency
to
delete
the
references to megawatt capacity or rating.
K.
Standard
Permit Conditions
(Section 9)
190.
DM0
is concerned with the scope of the
term
“authorized representative” in
Condition
9.3, regarding Agency surveillance.
At times,
the Agency
or USEPA may employ
contractors who would
he
their authorized
representatives to perform
tasks that could require
them
to
enter onto DMG’s property.
Such representatives, whether
they
‘are
the Agency’s
or
USEPA’s employees or contractors,
must be subject
to the limitations imposed by applicable
Confidential
Business Information (“Cal”) claims and by
DM0’s health and safety rules.
DM0
believes that this condition needs to make it clear that
DMG’s
CBI and health and safety
requirements
are limitations
on surveillance,
191.
For these reasons.
Condition
9.3, contested herein,
is stayed pursuant to
the
APA,
and DM0 requests that
the
Board
order the
Agency to clarify the limitations
on surveillance
in
the condition as
set forth
above.
WHEREFORE,
for the reasons set forth herein,
Petitioner DM0 requests a hearing
before the Board to contest
the
decisions contained in the CAAPP permit issued
to Petitioner on
or
about September 29, 2005.
The conditions contested herein,
as well
as any other related
conditions that the Board deternunes
appropriate, are stayed pursuant
to the APA or, in addition,
pursuant to Petitioner’s
request that the Board stay the entire permit.
DMG’s state operation
permit
issued for the Baldwin Station will
continue in
full force and effect,
and the environment
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~villnot he harmed by
this stay.
Moreover,
Petitioner requests that the Board remand the permit
to the Agency and order
it
to appropriately revise conditions contested
herein and any other
related conditions and to reissue the CAAPP permit.
Respectfully submitted,
DYNEGY MID WEST GENERATION.
NC.
By
One of Its Attorneys
Dated:
November
3, 2005
Sheldon
A. Zahe!
Kathleen C.
Bassi
Stephen
J.
Bonebrake
Joshua R.
More
Kavita M.
Patel
SCHIFF HARDIN, LLP
6600 Scars Tower
233 South Wacker Drive
Chicago, Illinois
60606
Telephone:
312-258-5500
Facsimile:
312-258-5600
CEO
3171624
-75-
