MIDWEST GENERATION, LLC,JOLIET GENERATING STATION,
ILLINOIS ENVIRONMENTAL

Respondent. )
APPEAL OF CAAPP PERMIT

ELECTRONIC

FILING,

RECEIVED,

CLERK’S OFFICE,

NOVEMBER 2,

2005

PCB

2006-058

BEFORE THE ILLINOIS

POLLUTION CONTROL BOARD

MiDWEST GENERATION, LLC,

)

JOLIET GENERATING

STATION,

)

Petitioner

)

P03

____________

)

(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

100

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! have

today filed

with

the

Office

of the

Clerk

the

Pollution control Board the original

and

nine copies

the

Appeal

CAAPP

Permit

Midwest Generation, LLC,

Joliet Generating Station

and

the Appearances of

Sheldon A.

Zabel,

Kathleen

Bassi,

Stephen

Bonebrake,

Joshua It

More, and Kavita M. Patel, copies of

which are herewith

served

upon

you.

Kathleen C.

Bassi

Dated:

November

2, 2005

Sheldon

Zabel

Kathleen C.

Bassi

Stephen

J. Bonebrake

Joshua R.

Kavita M. Patel

SCHIFF HARDIN, EL?

6600

Sears Tower

233

South Wacker Drive

Chicago,

ilLinois

60606

312-258-5500

Fax:

312-258-5600

ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER 2,

2005

PCB 2006-058

BEFORE

THE ILLINOIS

POLLUTION CONTROL

BOARD

MIDWEST

GENERATION, LLC,

JOLIET GENERATING STATION,

)

Petitioner,

)

PCB

_______________

(Permit Appeal

—

Air)

ILLINOIS

ENVIRONMENT

PROTECTION AGENCY,

)

Respondent.

)

APPEARANCE

Thereby

tile

my appearance in this proceeding,

on behalfof Midwest Generation.

LLC.

Joliet Generating Station.

Kathleen C. Bassi

Dated:

November

2, 2005

Sheldon

A. Zabel

Kathleen

Bassi

Stephen J.

Bonebrake

Joshua K. 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

2005

PCB 2006-058

BEFORE

11-1K

ILLINOIS

POLLUTION

CONTROL BOARD

MIDWEST GENERATION,

LLC,

.IOLIET GENERATING

STATION,

)

Petitioner,

)

PCB_

)

(Permit

Appeal

—

Air)

ILLINOIS

ENVIRONMENTAL

)

PROTECTION

AGENCY,

)

Respondent.

)

APPEARANCE

thereby file my appearance in this proceeding, on

behalf of Midwest Generation,

LLC,

Joliet Generating

Station.

~Vph~n

.1. Bonebrake

(//

Dated:

November

2, 2005

Sheldon

Zabel

Kathleen C. Bassi

Stephen

J. Bonebrake

Joshua R. More

Kavita M. Patel

SCHIEF

I-IARDIN,

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

2005

PCB 2006-058

BEFORE THE

ILLINOIS

POLLUTION CONTROL I3OARI)

MIDWEST GENERATION,

LIAC,

.JOLIET GENERATING STATION,

)

Petitioner,

)

PCB

____________

(Permit

Appeal

—

Air)

ILLINOIS ENVIRONMENTAL

PROTECTION

AGENCY,

)

Respondent.

)

APPEARANCE

I hereby file my

appearance in this proceeding, on behalfof Midwest Generation,

LLC,

Joliet Generating Station.

__Th

/~~y/z

- -t~-

Joshua R.

Dated:

November

2, 2005

Sheldon

Zabel

Kathleen C. Bassi

Stephen

Bonebrake

Joshua R.

Kavita M. Patel

SCHIFF

1-TARDIN, LLP

6600 Sears Tower

233

South Waeker Drive

Chicago, Illinois

60606

312-258-5500

Fax:

312-258-5600

ELECTRONIC

FILING,

RECEIVED,

CLERK’S OFFICE,

NOVEMBER

2005

PCB

2006-058

BEFORE TIlE

ILLINOIS POLLUTION

CONTROL BOAR!)

MIDWEST GENERATION,

LLC,

JOLIET

GENERATING STATION,

)

Petitioner,

)

PCB

____________

(Permit Appeal

—

Air)

ILLINOIS ENVIRONMENTAL

)

PROTECTION

AGENCY,

)

Respondent.

APPEARANCE

hereby file my appearance in this proceeding, on behalf of Midwest Generation, LLC,

Joliet Generating Station.

Kavita M.

Patel

Dated:

November

2, 2005

Sheldon A.

Zabel

Kathleen C.

Bassi

Stephen

J. Bonebrake

Joshua It.

Kavita

M. Patel

SCHIFF HARDIN, LLP

6600 Sears Tower

233

South Wacker Drive

Chicago, Illinois

60606

3 T2-258-5500

Fax:

312-258-5600

ELECTRONIC

FILING,

RECEIVED, CLERKS OFFICE,

NOVEMBER 2,

2005

PCB 2006-058

BEFORE THE

ILLINOIS POLLUTION CONTROL

BOAR!)

MIDWEST GENERATION, IJLC,

JOLIET

GENERATING STATION,

Petitioner,

ILLINOIS

ENViRONMENTAL

PROTECTION

AGENCY,

Respondent.

)

PCB

____________

(Permit Appeal

—

Air)

)

CERTIFICATE

SERVICE

the undersigned, certi~rthat! have served

the attached Appeal oICAAPP Permit of

Midwest

Generation, LLC, Joliet Generating Station and Appearances of Sheldon

Zahel,

Kathleen C.

Bassi, Stephen

J. Bonebrake,

Joshua It.

More,

and Kavita M.

Pate!,

electronic delivery

upon the

following

person:

Pollution Control Board,

Attn:

Clerk

James R.

Thompson Center

100 W.

Randolph

Suite

11-500

Chicago, Illinois

60601

~een~.assi

Dated:

November 2,

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

Zabel

Kathleen

Bassi

Stephen

Bonebrake

Joshua

Kavita M. Pate!

SCHIFF HARDIN,

LLP

6600 Sears

lower

233

South Wacker

Drive

Chicago,

Illinois

60606

312-258-5500

Fax:

312-258-5600

ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER 2,

2005

POB

2006-058

BEFORE THE

ILLINOIS

POLLUTION

CONTROL1 BOARD

MII)WEST GENERATION,

LLC,

JOLIET

GENERATING

STATION,

)

Petitioner,

)

PCH

___________

(Permit Appeal

—

Air)

ILLINOIS ENVIRONMENTAL

PROTECTION

AGENCY,

)

Respondent.

APPEARANCE

hereby file my appearance

in this proceeding, on behalf of Midwest Generation, LLC,

Joliet

Generating Station.

Sheldon

Zabel

Dated:

November

2, 2005

Sheldon

Zabel

Kathleen

Bassi

Stephen A. Boncbrake

Joshua R.

Kavita M.

Patel

SCHIFF FIARDIN, 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

2005

PCB

2006-058

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MIDWEST GENERATION, LLC,

JOLIET GENERATING STATION,

)

Petitioner,

)

PCB

___________

)

(Permit Appeal

—

Air)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

Respondent.

)

APPEAL

OF CAAPP PERMIT

NOW COMES Petitioner, MIDWEST GENERATION, LII’., .IOLIET GENERATING

STATION

(“Petitioner,” “Joliet,” or “Midwest

Generation”), pursuant to Section 40.2 of the

Illinois Environmental Protection Act (“Act”)

(415

ILCS

5140.2)

and

Ill.Adm.Code

105.300

seq.,

and requests a hearing before

the Board to contest the decisions

contained in the permit

issued to Petitioner

on September

29, 2005, under

the

Clean Air Act Permit Program (“CAAPP”

or “Title V”)

set forth at Section

39.5 of the Act (415

ILCS 5/39.5).

In support of its Petition,

Petitioner states as

follows:

BACKGROUND

(35

ltl.Adrn.Code

105.304(a))

On November 15,

1990, Congress amended

the Clean Air Act (42 U.S.C.

§~

740 1-7671q) and included in the amendments at Title V a requirement for a national

operating permit program.

The Title V program was

to be 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 Environmental Protection Agency (“Agency”) has had the authority to issue CAAPP

ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

2005

PCB

2006-058

permits since at

least March

1995, when

the state

was granted interim approval of its CAAPP

(60 Fed.lteg.

12478).

Illinois’

Title V program

is set

forth

Section 3~.5of the

Act,

IIl.Adm.Code 20l.Subpart F, and 35

IIl.Adm.Code

‘art 270.

The

Jolict Generating Station (“Joliet” or the “Station”),

Agency ID. No.

197809AA0, is an electric

generating station

owned by Midwest Generation,

LLC, and operated

Midwest

Generation, LLC

—

Joliet Generating Station.

The Joliet electrical generating units

(“EGUs”) went online between

1959 and

1966.

The Joliet Generating

Station

is located at

1800

Channahon

Road, Joliet,

Will County,

Illinois

60436,

within the Chicago ozone and PM2.5t

nonattaitirnent areas.

Joliet is an intermediate load plant and can generate approxiniately

1460

megawatts.

Midwest Generation employs 240

people at the Joliet Generating Station.

Midwest Generation operates

five coal-fired boilers at jolict that have the

capability

fire at various modes that include the

combination of coal,

natural gas, and/or

fuel

oil as their principal fuels.

In addition, the boilers lire natural gas or

hid

oil

as auxiliary

fuel

during

startup and for flame stabilization,

Certain

alternative

fuels, such

as used oils generated

on-site, may be utilized

well.

Joliet also operates associated coal

handling, coal processing,

and ash handling activities.

In addition

the boilers, Joliet operates 5 distillate oil-fired internal

combustion

engines to provide electricity for on-site power needs

on an emergency or standby

basis.

Finally, there two

1,500-gallon gasoline tanks located at Joliet,

to provide

fuel for

Station

vehicles.

Joliet is a major source subject to Title V.

Joliet is subject to the

Emissions

Reduction Market System (ERMS) but has limited its emissions of VOC to less than

tons per

ozone

season and so is not required to hold and surrender allotment trading units (ATUs).

The

Particulate

matter less

than

2.5

microns

in aerodynamic diameter.

ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

2005

PCB 2006-058

EGUs at Joliet are subject to both of Illinois’ NOx

reduction programs:

the

“0.25 averaging”

program at 35

IlI.Adm,Code 21 7.Suhparts V and the

“NOx trading program” or “NOx

SIP call”

at 35

TII.Adm.Codc

21 7.Subpart W.

Joliet is subject to the federal

Acid Rain Program at Title IV

of the Clean Air Act and was

issued a Phase!! Acid

Rain Permit

on March

18,2005.

Emissions of nitrogen oxides (“NOx”) from Boiler

are controlled by overfire

air,

and NOx emissions from

Boilers 71,

72,

81, and

82 are controlled

by low NOx

burners and

overfire air.

Emissions of sulfur dioxide (“SO~”)from

the EGUs are controlled by

limiting the

sulfur content of the fuel

used

for the boilers.

Likewise, Joliet monitors and limits the sulfur

content of the fuel oil

used at the station

in the boilers.

Particulate matter (“PM”) emissions from

the boilers are controlled by

an electrostatic precipitator (“ESP”).

Fugitive

PM emissions from

various coal and ash

handling activities are controlled through, enclosures, baghouses, covers,

dust suppressants, and water sprays, as

necessary and appropriate.

Emissions of carbon

monoxide (“CO”) are limited through good combustion practices in the boilers.

VOC

emissions

from the gasoline storage tanks are controlled by the use

of submerged loading

pipes.

Additionally, bulk distributors of the

gasoline stored in

the tanks deliver gasoline that complies

with the applicable Reid vapor pressure and arc required to comply with

Stage

I vapor control

mechanisms and procedures, both by rule and by contract.

The Agency received

the original CAAPP permit application for the Joliet Station

on September

1995,

and assigned ApplicationNo. 95090046.

Petitioner substantially updated

this application on

September

19, 2002,

March 26, 2003, and May 24,2005.

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 submitting the application for a CAAPP

permit for the Joliet

-3-

ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

2005

PCB

2006-058

Generating Station totaling $1.6

million since

1995.

Joliet’s state operating

permits have

continued in frill force

and

effect since submittal of the CAAPP

permit application, pursuant to

Section 9.1(f) of the Act.

The Agency issued a

final

draft permit for public review on

June 4, 2003.

‘he

Agency

subsequently held a hearing on the draft

permit on August 25, 2003, in the City of Joliet,

which representatives of Midwest

Generation attended and presented testimony.

Midwest

Generation

filed

wTitten comments

with

the Agency

regarding

the

Joliet draft

permit on

September 24, 2003.2

‘ftc Agency issued a proposed permit for the Joliet Station on

October 6,

2003.

Although this permit was not technically open for public comment, as

it had been sent to

USEPA

for its

comment as required by

Title V,

Midwest Generation,

nevertheless, submitted

comments

on November

19, 2003.

Subsequently,

in Deccmber

2004,

the Agency

issued a draft

revised proposed permit for Petitioner’s and other interested persons’

comments.

Midwest

Generation again

commented.

‘l’he Agency issued a second draft revised proposed permit

in July

2005

and allowed the Petitioner and other interested

persons

10 days to comment.

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.

Midwest Generation

submitted comments

this version of the

permits proposed for

all six of its generating stations

together and on

the preliminary Responsiveness Summary on

August

1, 2005.

The Agency

submitted the revised

proposed permit to

USEPA for its

45-day review on August

15, 2005.

The

Agency did not seek further comment on

the permit from the Petitioner or other interested

persons, and Midwest Generation has not submitted any further comments,

based

upon the

Midwest Generation has attached

the

appealed

permit

to this Petition.

However,

the

draft and

proposed

permits

and

other documents must be

submitted to the Agency.

More critical, however,

is the fact that once

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ELECTRONIC

FILING,

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NOVEMBER

2005

PCB 2006-058

the permit becomes effective, Midwest

Generation is obliged to comply

with it, regardless of

whether

it has any reeordkeeping systems in place, any additional control equipment that might

be necessary, new compliance requirements, and so forth.

it took

the Agency over

two

years to

issue the final permit; the first draft permit was issued June 4,2003.

Over that course of time,

the

Agency issued

numerous versions of the permit, and it has changed considerably.

Therefore,

is unreasonable

to expect Midwest Generation

to have anticipated the

final

permit to

the degree

necessary for it

to have been in compliance

by 7:18 p.m. on September 29, 2005.

25.

Moreover, publication of the permit on a website is

not “official” notification in

Illinois,

The

company cannot

he 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

electronic delivery of permits,

Therefore,

until the permit is officially delivered

to the company,

it should not he deemed effective.

Joliet’s

CAAPP

permit was officially

delivered

via the U.S.

Postal Service on

October 3, 2005.

26.

Neither the Act nor the regulations specify when permits should

become effective.

Prior to the advent of Title V,

however, sources have not been

subject

to such numerous and

detailed permit conditions

and exposed

to enforcement

from

so many sides,

tinder

~I’itleV, 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.

If the issuance

date

is the

effective date, this has the

potential

for tremendous

consequences to the perinittee

and is

extremely inequitable.

27.

If the effective date of the permit is September 29, 2005, this also would create an

obligation to perform quarterly monitoring and to submit quarterly reports (ef

Condition

7.1. 10-

2(a)), for the third quarter of

2005,

consisting of less than 30 hours of operation.

The

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ELECTRONIC

FILING,

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CLERK’S OFFICE,

NOVEMBER

2005

PCB 2006-058

requirement to perform quarterly monitoring,

reeordkeeping, and reporting for a quarter that

consists of less than 30 hours of operation,

assuming

the permittee would even have compliance

systems in place

quickly after issuance of the permit,

is overly

burdensome and would not

benefit the environment in any manner.

Therefore, the requirenient is arbitrary and capricious.

28.

A more equitable

and legal

approach would be for

the Agency to delay the

effective date of a final permit

for a period of time reasonably sufficient for sources to implement

any new compliance systems necessary because of the terms of the permit or at least until the

time for the

source to appeal

the permit has

expired,

that an appeal

can stay the permit until

the Board can rule.

29.

Consistent with the

A’A,

the effective date of the permit,

contested herein,

stayed,

and Midwest Generation requests that the Board order the Agency

to establish an

effective date some period of time after the permiuee

has received the

permit following remand

and reissuance of the perinit to allow the permittee sufficient time to implement the systems

necessary to comply with all requirements in this very complex permit.

Overall Source Conditions

(Section 5)

(i)

Recordkeeping of and Reporting

HAP Emissions

30.

The

CAAPP permit issued to the Joliet Generating

Station requires Midwest

Generation 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 (e) of the

Act.

Citations merely to the

general provisions of the Act do

not

create

“applicable

requirement.”

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ELECTRONIC

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RECEIVED, CLERK’S OFFICE,

NOVEMBER

2005

PCB 2006-058

3!.

fact, there is no applicable requirement that allows the Agency

to require this

recordkeeping and reporting.

There are no regulations that limit emissions of HAPs from the

Joliet Generating

Station.

While USEPA 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(h),

the authority

for the

Agency to gather information,

as a basis

for requiring recordkeeping and reporting of mercury

emissions through the CAAPP permit.

The Agency has confused its

authority 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

piii.y “applicable requirements” in a Title

permit.

See Appalachian Power.

Even by

including only recordkeeping and reporting

of HAP

emissions in the

permit, the Agency has exceeded its

authorityjust as

seriously as if it had

included emissions limitations for HAPs in the permit.

Section 4(b) does not provide the

authority to

impose this condition in a CAAPP permit.

32.

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 reeordkeeping 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 IIl.Adm.Code Part 254, which Condition

5.7.2

specifically

addresses, state

as follows:

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ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

2005

PCB 2006-058

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 followillg

A hazardous air pollutant emitted

by an emission unit that

is not

subject

a National Emissions Standard

for

Hazardous Air Pollutants (NESHAP) 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.

lll.Adm.Code

254.120(b).

(Brackets

original; emphasis added.)

Power plants are

not subject to

any NESHAPs or MACT standards.

See

69 Fed.Reg.

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 Midwest Generation 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.

33.

Consistent with the APA, Conditions

5.6.1(a)

and (b)

in tow

and Condition 5.7.2

it relates to

reporting emissions of HAPs

in the Annual

Emission Report, contested herein, are

stayed, and Midwest Generation requests that the Board order the Agency to amend the

permit

accordingly.

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ELECTRONIC

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NOVEMBER

2005

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(ii)

Retention and

Availability of Records

34.

Conditions 5.6.2(b) and (e)

switch the burden of copying

records the Agency

requests from

the Agency, as

stated

in Condition

5.6.2(a),

the permittee.

While Midwest

Generation generally does not object to

providing the Agency records reasonably requested

and

is reassured by

the Agency’s statement

in the

Responsiveness Summary

that its “on-site

inspection

of records and written

verbal requests for copies of records will g~~çralloccur at

reasonable times and be reasonable in nature and scope” (Responsiveness Summary,

18)

(emphasis added), Midwest Generation 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, Midwest

Generation 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, Midwest Generation 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.

35.

Consistent with the APA, Conditions 5.6.2(b) and (c), contested herein, are

stayed, and Midwest Generation

requests that the Board order the Agency to amend them in a

manner to correct the deficiencies outlined above.

(iii)

Submission of Blank, Record

Forms to the

Agency

36.

Midwest Generation may be confused as

to what the

Agency expects with respect

to Condition

5.6.2(d).

See

Condition 5.6.2(d).

Midwest Generation’s first

interpretation of this

condition was that

the Agency was requiring submission of the records that

are required by

Conditions 7.1.9, 7.2.9,

7.3.9, 7.4.9, 7.5.9, and 7.6.9.

However, upon rereading Condition

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5.6.2(d). Midwest Generation has

come to believe

that through this condition,

the Agency is

requiring Midwest Generation to submit blank copies of its records, apparently

so that the

Agency can check

them

for

form and type of content.

If this latter is the correct interpretation of

this condition, the condition unacceptable, as the Agency

does

not have the authority to

oversee

how Midwest Generation conducts

its internal

methods ofcoinpliance.

There is no

basis

law

for such

a requirement and

it must be deleted.

37.

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

doing

so.

Absent a statutory grant or the promulgation of reporting formats through rulemaking,

the Agency has no atithority

to oversee the development of reeordkeeping 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.

38.

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

permits, including the drafts,

as required by Title

One can assume 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,

ifthe Agency’s purpose for requiring this submission is to determine the adequacy of

recordkeeping, then without

inherent knowledge of all the details of any given operation,

will

difficult

for the

Agency to

determine the adequacy of recordkeeping for the facility

through

an off-site review.

if the Agency finds records that are

submitted during the prescribed reporting

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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.

39.

Further, ifthe 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

function 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 he 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.

40.

Additionally, the

Agency has violated Midwest Generation’s due process rights

under the

Constitution by requiring submission of these documents before Midwest Generation

had the

opportunity to exercise

its right to appeal

the condition,

granted by

the Act at Section

40.2

of the Act,

The Act allows permittees

days

in which to appeal

conditions of the permit

to which it objects.

The Agency’s requirement at Condition

5.6.2(d) that Midwest Generation

submit blank forms within

days of issuance of the permit significantly undermines

Midwest

Generation’s right to appeal

—

and the effectiveness of that right

or forces Midwest Generation

to violate the terms

and conditions of the

permit to

frilly preserve its rights.

Although the

condition

is stayed, because the appeal may not be filed until

35 days after issuance, there could

at least be a question as to whether Midwest Generation was in violation from the time the

report

was due until the appeal was filed.

Midwest Generation submits that the stay relates back to the

date of issuance, but

it is improper to even create this uncertainty.

This denies Midwest

Generation due process and so

is unconstitutional, unlawful, and arbitrary and capricious.

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41,

Consistent with the

APA, Condition

5.6.2(d). contested herein, is stayed,

and

Midwest Generation requests

that the Board order the Agency to delete

it from the permit.

In the

alternative, Midwest Generation requests that the Board interpret this condition such that ifthe

Agency fails to communicate

any inadequacies

it finds in blank recordkeeping forms submitted

it. enforcement against Midwest

Generation for

inadequate records

is barred,

long as those

records

were completed as part of the permit shield.

NOx

SIP

Call

(Section 6.1)

42.

Condition 6.1.4(a) says, “Beginning in 2004, by November30 of each year.

While this is a true statement,

i.e..

the NOx

trading program

Illinois commenced

2004, it

inappropriate

for the Agency

include in the permit

a condition

with a retroactive effect.

including this past date

in an enforceable permit condition, the Agency

has exposed

Midwest

Generation

to potential

enforcement under this permit for acts

omissions that occurred prior to

the

effectiveness of this permit.

is unlawful for the Agency

require retroactive compliance

with past requirements

in a new permit condition.

Lake

Envit,

Inc.

The

State

qf Illinois,

No.

98-CC-5179,

2001

WL 34677731, at

(lll.Ct.C1.

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 arm

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, Midwest Generation suggests that

the condition

merely refer to the first ozone

season during which the permit

is effective.

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43.

For these reasons, Condition

6.1.4(a)

stayed pursuant to the AP\,

and Midwest

Generation

requests that the Board order the Agency to amend

the language to avoid retroactive

compliance with past requirements.

Boilers

(Section

7.1)

(I)

Opacity as

a Surrogate for

44.

Historically, power plants and other types of industry have demonstrated

compliance with emissions limitations for PM through periodic stack tests and 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 further investigation of operating

conditions or even

for the

need of new stack testing.

Ffowever,

in the iterations of the permit

since the publication of the October 2003

proposed permit,

the Agency

has developed an

approach in which opacity

serves 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 identif~j

the opacity measured at the

95th

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 exceedancc.

These reporting

requirements are quite onerous, particularly for the

units that

tested at the lowest levels of PM

and opacity.

The inclusion of these conditions

exceeds the scope of the Agency’s authority to

gapfihl and so are arbitrary and capricious and must be stricken from the permit.

45.

The provisions requiring the use of opacity as effectively a surrogate for PM are

found in Conditions 7.1.9(c)(ii), linked to Condition 7.1.4(b), which contains the emissions

limitation for PM; 7.1 .9(c)(iii)(B), also linked

to Conditions 7.1.4(b) and 7.1.9(c)(ii); 7.1.10-1(a),

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linked

to Condition

7.1.10—3(a);

7.1.1 0-2(a)(i)(fl,

linked to Conditions

7.1 .9(c)(iii)(13) and

7.1 .9(c)(ii); 7.1.1 0-2(d)(v) generally; 7.1.1 0-2(d)(v)(C), requiring

an explanation of the presumed

number and magnitude of opacity and PM exceedances and speculation

as to the causes of the

exeeedances;

7.l.10-2(d)(v)(D), requiring a description ofaetions taken

to reduce

opacity and

PM exceedances and anticipated effect

future

exceedances;

7.1.1 0-3(a)(ii),

requiring follow-

up reporting within

days after

incident during which there may have

been a PM

exceedance based upon this upper bound of opacity;

and 7.1.12(h), relying

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

emissions limitation.

46.

No one can provide

a reliable, exact

PM concentration level anywhere in the

United States

today outside of stack testing.

Obviously, it

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 some of the consent decrees settling a

number of LISEPA’s

enforcement actions against coal-fired power generators, some

companies,

including one in Illinois, are testing

continuous PM monitoring devices.6

None of these

companies, according to their consent decrees,

is required to rely

on these PM continuous

emissions monitoring systems (“CEMS”) to determine

their current PM emissions

levels.7

The

PM CEMS are not

yet at a point of refinement where they can

even be

considered credible

evidence of PM emissions levels;

at least, we

are not aware of any case in which government or

citizens suing under Section

304 of the

Clean Air Act have relied upon PM CEMS

the basis of

~ 89

of the consent decree

entered

US.

ill/no/s Power Company,

Civ. Action

No. 99-833-MW (5.1).

ill.) found

in the Agency’s administrative record

Dynegy Midwest

Generation’s (“Dynegy’) appeals of its

permits,

filed on

or about

the same

day

as this

appeal..

See

Administrative

Record.

The Agency’s

requirement that Dynegy rely on

uncertified

PM CEMS

included

Dynegy’s appeals.

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a case for

PM violations.

As a result,

sources must rely

upon the continuity

or consistency

conditions that occurred during

a successthl stack

test to provide reliable indications of PM

emissions levels.

47.

Historically, opacity

has never been used

as a reliable, quantitative surrogate

for

PM emissions levels.

The Agency itself acknowledged that opacity

is nota reliable indicator of

PM concentrations.

See

Responsiveness

Summary,

pp.

15-16, 42-44.~Midwest

Generation

agrees with

the Agency that increasing opacity may indicate that PM emissions are increasing,

but this is not always the case nor is a given opacity level an indicator of a given PM

level

at any

given time, let

alone at different times.

Midwest Generation’s current operating permits require

triennial

stack testing,

to be performed within

120 days prior to

expiration of the permit,

which has an expiration date three years following

issuance,

This requirement comprises

periodic monitoring.

Relying on

stack testing and operational practices

currently the best and

most appropriate approach to assuring compliance with PM emissions limitations.

Moreover,

the

compliance method for PM emissions limitations

in the NSPS

is only through stack testing, not

through opacity

as a surrogate for

PM.

48.

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 compliance.

When the Agency requires even estimates of PM levels or guesses as to

whether there is an exceedance 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

“Setting

a specific level

of opacity

that

deemed

to be equivalent to the

applicahle

emission

limit

not possible on

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, affccting thc nature and

quantity of the ash loading to the ESP.

These

type of changes cannot be

prohibited,

as they are inherent

the

routine operation of coal-fired power plants.

However,

such changes could invalidate any

pre-established

opacity value.”

Responsiveness

Summary, p.

44.

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has been exceeded and so there ~

have

been an

exceedanec of the

level regardless of any

evidence

to the

contrary.

For example,

ifthe opacity/PM surrogate level

of, say,

exceeded, this must he 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

lh/mrnBtu/hr is

extremely low.

The purpose of such reporting

eludes Petitioner.

It does

not assure compliance with the PM limit and so inclusion of these

conditions

exceeds the

Agency’s gapfilling authority and

is,

thus, unlawful

and arbitrary and

capricious.

Moreover, this umiecessary reporting requirement is anew substantive

requirement,

according

Appalachian Power,

not

allowed under Title V.

49.

Contrary to the Agency’s assertion

in the

Responsiveness Summary that opacity

provides a “robust means

to distinguish compliance operation of a coal-fired boiler and

its ESP

from impaired operation” (Responsiveness Summary, p. 43), the robustness is actually perverse.

Relying upon opacity as

a surrogate for PM emissions levels has the perverse

result of penalizing

the best-operating units,

That

is,

the units for which the stack testing resulted

in very

low

opacity and very low PM emissions levels are the units for which this additional reporting will

most frequently triggered.

For example, stack

testing at one of Midwest Generation’s units

measured PM emissions of 0.008

lb/mmBtu and the opacity during the test at the 95°’percentile

confidence interval was

This condition in the permit would require Midwest Generation to

submit a report for every operating hour for the quarter, over 2,180 reports for the third quarter

2005,

stating that the unit ~

have exceeded the PM.

Clearly, this condition will

result in

overly burdensome reporting that serves no purpose.

As such,

exceeds the Agency’s

authority

to gapfill, is unlawful, and is arbitrary

and capricious.

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50.

Further, this condition eftèctively creates a false

low opacity limitation.

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 95°’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.

This is unlawful 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 Appalachiati Power.

51.

These conditions invite

sources to perform stack testing under operating

conditions that

are less than normal,

Le.,

to “detune” the units, to push the bounds of compliance

with the PM limit in order to avoid the

unnecessary recordkeeping and reporting the

conditions

require, particularly

for the typically best operating units.

That

is,

to identify more realistically

the operating conditions

that would result in emissions closer

to the PM limit,9 Midwest

Generation would have

to perform

stack tests with some elements of the FSP turned off, even

though they would not be turned offduring normal operation.

Testing

in a manner that

generates

results close to the PM limit may result in opacity that exceeds the

opacity

limit.

Nevertheless,

in order to avoid the unnecessary

and clearly arbitrary and capricious recordkeeping and

reporting requirements included in these conditions,

such stack

testing

is called for, despite the

fact that the results of such tests will

not reflect normal operation of the boilers.

This is counter-

intuitive, and it took Midwest Generation quite some time to grasp that this is, at least indirectly,

what these conditions call for.

It is so counter-intuitive as to be the

antithesis of good air

pollution control practices, yet this is what the

Agency

is essentially demanding with these

Midwest Generation’s

policy

that the boilers be operated

a compliant manner.

During

stack

tesis, Midwest

Generation has consistently operated the boilers

a noniial mode,

meaning that all

pollution

control devices

are operating, the boiler is operating at normal and maximum

load, and so forth.

test results typically

are

nowhere

near the

limit,

emissions levels during Joliet’s

last stack tests were

at 0.067

lb/mmbtu

for

tjnit 6, 0.075

lb/mmBtu

for Unit?, and 0.049

lbsfmmBtu for

Unit

well

in compliance

with

the PM

limitation.

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conditions.

Moreover. arguably.

sources could operate at these detuned levels and still he

compliance with their permits

and the

underlying regulations but emit more pollutants

into the

atmosphere than they typically do now.

This result illustrates the perversity of the condition.

52.

Periodic stack testing

and good operational practices

fill the

gap.

Periodic

stack

testing according to the schedule in

Condition

7.1 .7(a)(iii) is

sufficient to assure compliance with

the PM limit and satisfy the periodic monitoring requirements of Section 39.5(

)(d)(ii) of the

Act

according to the

Appalachian Power

court.

fact, “periodic stack testing”

is the Agency’s own

phrase in

Condition 7.l.7(a)(iii) and is

consistent with the

findings of

Appalachian Power.

53.

Conditions

7.1.1 0-2(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.

One such

requirement, Condition

7.1.1 0-2(d)(iv), is

sufficient to address the Agency’s concern, although Midwest Generation also objects

Condition 7.l.1O-2(d)(iv) to the extent that

it requires reporting related to the opacity surrogate.

54.

As with Condition

5,6.2(d) discussed above, Condition

7.1 .9(e)(ii) denies

Midwest Generation due process.

Condition

7.1.9(c)(ii) requires that the

“records.

that identif~’the upper bound of the

confidence

interval

(using a normal distribution and

minute averages)

for

opacity measurements.

,considering

an hour of operation,

within which compliance with the

limit

is assured, with

supporting explanation and documentation

hull be submitted

to the

Illinois EPA in accordance with Condition

5.6.2(d).”

Obviously, if Condition 5.6.2(d)

denies Midwest Generation due process,

Condition 7.l.9(c)(ii)

does

as well for the same reasons.

Midwest Generation was not granted the opportunity to

appeal

the condition before

was required to submit to the Agency information that Midwest

Generation believes

is not useful or reliable.

Midwest Generation

is particularly loathe to

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provide the Agency with this information because it believes that the information will

misconstrued and misused.

55.

Finally, Condition

7.1.l0-2(d)(vi) requires

Midwest Generation to submit

glossary of “common

technical

terms used

by the Permittee”

as part of its

reporting of

opacity/PM excecdance events.

If the terms are “common,”

eludes Midwest Generation as

why, then. they require definition.

Moreover, this requirement does not appear

anywhere else

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.

56.

Consistent with the APA, Conditions 7.1 .9(e)(ii),

7.1 .9(c)(iii)(B),

7.1.10-1(a),

7.1 .lO-2(a)(i)(E), 7.I.10-2(d)(iv), 7.1.10-2(d)(v),

7.1 .l0-2(d)(vi), 7.1.10-2(d)(v)(A), 7.1.10-

2(d)(v)(B), 7.1.1 0-2(d)(v)(C),

7.1.1 O-2(d)(v)(D),

7.1.1 0-3(a)(ii), and 7.1.12(b), contested herein,

and any other

related conditions that the

Board

finds appropriate

are stayed, and Midwest

Generation requests that the Board order the Agency to delete these conditions.

(ii)

Reporting the

Magnitude of

Emissions

57.

Somewhat consistent with its

direction for PM, or, charitably, arguably so, the

Agency also requires Midwest Generation to determine and report the magnitude of PM

emissions during startup and operation during malfunction and breakdown.

See

Conditions

7.1.9(g)(i),

7.l.9(g)(ii’)(C)(S), 7.1.9(h)(ii)(D)(3), and 7.1.10-2(d)(iv)(A)(3).

Compliance

with

these conditions is an impossibility and, therefore,

the inclusion ofthese

conditions in the permit

is arbitrary and capricious.

Midwest Generation does not have a means for measuring the

magnitude of PM emissions at any time other than during

stack testing

—

not even using the

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opacity surrogate.

There

is not a certified,

credible, reliable alternative

to stack

testing

measure PM

emissions,

58.

Additionally, Condition 7.l.lO-2(

)(iv)(A)(5) requires

Midwest Generation to

identify “qhe

means

by which the

exceedance

of the PM emissions limit

was

indicated or

identilied, in addition to the

level of opacity.”

Midwest Generation believes that this means that

it must provide

information relative to

any other means,

besides opacity

—

which, as discussed

detail above,

Midwest Generation believes is an inappropriate

and inaccurate basis

for

determining whether there are exceedances of the PM limit,

let alone the magnitude of any such

exceedance —that Midwest Generation

relied upon

detennine there was

an exceedance of the

limit.

Besides

stack testing

or perhaps total

shutdown of the

ESP, there are

none.

59.

Consistent with the APA, Conditions

7.1 .9(g)(i),

7.1 .9(g)(ii)(C)(5),

7.1 .9(h)(ii)(D)(3), and7.1 .1 0-2(d)(iv), specifically

7.1.1 0-2(d)(iv)(A)(3)

and (5), contested

herein,

are stayed,

and Midwest

Generation requests that

the Board order the Agency to delete

these

conditions from

the permit.

(iii)

PM Testing

60.

Midwest Generation interprets the

language in Condition 7.1 .7(a)(i) to mean that

stack testing that occurs after December

31, 2003, and before September 29, 2006, satisfies the

initial testing requirement included in the permit.

Ilowever, the language

is not perfectly clear

and should be clarified.

61.

The Agency has included a requirement in the permit at Condition 7.1.7(b)(iii)

that

Midwest Generation perform testing for PM1O condensibles.’° First, this requirement

Condensible

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

1ll.Adm.Code

212.108.

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beyond the scope of the Agency’s

authority to

include in a CAAPP

permit, as such testing

not

an “applicable requirement,” as discussed

in detail

below.

Second, even ifthe condition

were

appropriately included in the permit, which Midwest Generation does

not

by any means concede,

the language of Condition

7.1.7(b) is not clear as

to the timing of the required testing,

largely

because Condition

7.l.7(a)(i) is not clear.

62.

With respect to the

inclusion of the requirement for Method 202 testing

Condition 7.1 .7(b)(iii)

at all in a CAAPP permit,

the Agency

has exceeded its authority, and the

requirement should he

removed from the permit.

the least, the requirement should be set

aside in a state-only portion of the CAAPP permit, although Midwest Generation believes its

inclusion in any permit would he inappropriate because there is no regulatory requirement

that

applies PMIO limitations to the

Joliet Generating Station.

In response to comments

on this point,

the Agency

stated in the Responsiveness

Summary at page

8, “the requirement for using both

Methods

5 and 202 is authorized by

Section 4(b) of the Environmental Protection Act.”

Midwest

Generation 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.

415

ILCS

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”

one applicable to the permittee pursuant to a federal regulation or

a SIP.

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63.

Further,

simply because Method 202

is one of USEPA’s reference methods does

not make it

an “applicable requirement”

pursuant to Title V,

the Agency

suggests in the

Responsiveness

Summary.

The

stnicture of the Board’s PM regulations establish the applicable

requirements

for the

Joliet Generating Station.

l’he Joliet Generating Station is subject

to the

requirements of 35

llI.Adm.Code 2l2.Subpart

E. Particulate

Matter Emissions

from

Fuel

Combustion Emission Units.

It is not and never has been located in a PMIO nonattainment

area.1’

The Board’s

PM regulations are

structured such that particular

PM1O requirements apply

identified sources located

in the PMIO nonattainment areas.’2

No such requirements apply

now or have ever applied to the Joliet Generating

Station.

64.

The measurement method for

PM, referencing

only Method

5 or derivatives of

MethodS,

at 35 Ill.Adm.Code

212.110.

This seetiou of the Board’s rules applies to the

Joliet

Generating Station.

‘l’he measurement method

for

PM 10, on

the other hand,

is found at

lll.Adm.Code

212.108,

Measurement Methods for

PM-b

Emissions and CondensiblePM-lO

Emissions.

‘his

section references both Methods

and 202, among others.

Not subject to

PM 10

limitations, the

Joliet Generating

Station

is not

subject to

212.108, contrary to the

Agency’s

attempt to expand its applicability

the Responsiveness Summary by

stating,

“Significantly, the use of Reference Method 202

is not limited by geographic area

regulatory

applicability.”

Responsiveness

Summary,

18.

This

is certainly a true statement ifone is

performing a test of condensibles.

However, this

statement does

not

expand the requirements of

212.110 to include

PMIO eondensible testing when the limitations applicable to the source

pursuant to 212.Subpart

E are for only

PM, not

PM1O.

Therefore,

there is

no basis for the

En fact, there are

no more

PMIO nonattainment areas

the state.

See

FedReg.

55541

and

55545

(September

22, 2005),

redesignating to attainment the McCook and Lake Calumet nonattainment

areas, respectively.

Presumably, these sources will remain sub ject to

those requirements as part of Illinois’ maintenance plan.

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Agency

to require

in the

CAAPP permit,

which is limited to including ~

applicable

requirements and such monitoring,

recordkeeping, and reporting that are

necessary to assure

compliance, that the Joliet Generating

Station

tested

pursuant to Method

202.

65.

The Agency

even concedes

in the Responsiveness

Summary that Method 202

not an applicable

requirement:

The inclusion of

this requirement in these CAAPP permits, which

relates

to hill and complete quantification

of emissions, does not

alter the tenmeasurements

that are applicable

for

determining

compliance

with PM emissions standards and limitations, which

g~ai1do

not

include condensable sic

PM emissions.

addition, since

condensable

sic

emissions are

not subject to

emission standards.

Responsiveness

Summary,

18.

(Emphasis added.)

Further, the Agency

says,

“Regulatorily, only filterable113’ PM emissions need to be measured.”

Responsiveness Summary,

18.

The Agency attempts

to justify inclusion of the requirement for

testing condensibles

stating that the data

are needed to “assist in conducting assessments ofthe

air quality

impacts of

power plants, including the

Illinois EPA’s development of an attainment strategy for PM2.5”

stating that “the

use of Reference Method 202 is

not limited

geographic

area or regulatory

applicability.”

Responsiveness Summary, p.

18.

Underthe 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.

66.

While the Agency has a duty

under Section 4(b)

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,

lie.,

non-gaseous PM; condensibles

are gaseous.

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Midwest

Generation does

dispute that

requiring such testing in the CAAPP permit

is appropriate.

fact,

is definitely

not appropriate.

It is unlawful

and exceeds the Agency’s authority.

67.

The

requirement for Method 202 testing must be deleted from the permit.

Consistent with the APA, Condition 7.1.7(b) and the inclusion olMethod 202

in Condition

7.1.7(b)(iii),

contested herein.

are stayed, and Midwest

Generation requests that

the

Board order

the Agency to delete the

rcqu rement for Method 202

testing from the permit.

(iv)

Measuring

CO Concentrations

68.

The CAAPP

permit

issued

to the Joliet Generating

Station requires

Midwest

Generation

to conduct,

as a work practice, quarterly “combustion evaluations” that consist of

“diagnostic measurements of the concentration of CO

the flue gas.”

See

Condition 7.1.6(a).

See also

Conditions 7.l.9(a)(vi) (related reeordkeeping requirement), 7.1.10-1(a)(iv) (related

reporting requirement),

and 7.1 .12(d) (related compliance procedure requirement).

Including

these provisions in the permit is not necessary

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

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 Joliet’s best interests

to operate

its boilers optimally

and

because ambient CO levels are

low,’4 compliance

with the CO

limitation has been accomplished through combustion optimization techniques historically at

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 Protectinn

Agency,

Illinois

AnnualAfr

Quality Report

2003,

Table

B7,

57.

The one-hour standard

is 35

ppm,

and

the 8-hour ambient

standard is

ppm.

ltl.Adm.Code

243.

t23.

Note:

The

Illinois Annual Air Quality Report 2003

is the

latest

available

data on

Iltinois EPA’s

website at www.epa.state.il.us 4

Air 3

Air Qnality Information 3

Annual

Air

Quality

Report

2003

Annual Report.

‘the 2004

report

is not yet

available.

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power plants.

There is no reason to change this practice

at this point.

Ambient uir quality is not

threatened, and stack testing has demonstrated that emissions of CO at the Joliet Generating

Station

arc significantly below the standard of 200 ppm.

For example, during the last stack test

for Units 6 and 8, the CO emissions averaged

6.7 ppm and

36 ppm respectively.

69.

In the case of CO, requiring the Stations to purchase and install equipment to

monitor and record emissions of a pollutant that stack testing

demonstrates they comply

with

—

by a comfortable margin

—

and for which the ambient

air quality is in compliance

a huge

margin

is overly burdensome and, therefore,

arbitrary and capricious.

In order to comply

with

the “work practice”5 of performing “diagnostic

testing” that yields a concentration ofCO,

Midwest Generation

must purchase and

install or operate some

sort of monitoring

devices.

One

of the Joliet units has CO duct monitors that could be

used to comply with this requirement,

The

other units at the Joliet Generating Station, however, do not have CO duct monitoring capability,

and neither unit has such

monitoring capability in the stack.

Therefore, Midwest Generation

effectively

required to purchase

and install at least one monitoring

devices to comply with this

condition with no environmental purpose served.

70.

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 Midwest Generation’s

understanding that a sample can be 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

‘~

Midwest Generation questions how the

requirement that the

Agency

has included

in Condition

7,1.6(a) is

classified as

a “work practice.”

To derive

concentration ol’ CO emissions, Midwest

Generation will have

engage in monitoring

or testing—the work practice of combustion

optimization

that has been the

standard

historically.

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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.

71.

In addition,

the permit requires

at Conditions 7.1

.9(g)(i),

7.1 .9(

)(iiXC)(5),

and

7.l.9(h)(ii)(D)(3)’6 that

Midwest Generation provide estimates of the magnitude

of CO emitted

during startup and operation during malfunction

and breakdown.

The monitoring

device that

Midwest Generation

would utihze for the quarterly diagnostic evaluations required

by Condition

7.1.6(a)

is a portable

monitor.

So far

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 the recordkeeping provisions of Conditions

7.1 .9(g)(i),

7.1

.9(g)(ii)(C)(5),

and 7.1 .9(h)(ii)(D)(3) is that someone continually read the portable

monitor during startup, which could take

long as

36 hours, and during malfunctions and

breakdowns, which

are

by their nature not predictable.

the first case

(startup). the requirement

is unreasonable and overly

burdensome and perhaps

dangerous in some weather

conditions;

the second case (malfunction and breakdown), in addition to the

same problems

that

are

applicable during startup, it may

be impossible for Midwest Generation to comply with the

condition.

72.

The requirement to perform diagnostic measurements of the concentration of CO

in the

flue gas is arbitrary

and capricious

because the Agency

has failed to provide any guidance

as to howto perform the diagnostic measurements.

Midwest Generation

can only speculate

as to

how to develop and implement a formula

and

protocol

for performing diagnostic measurements

of the concentration of CO in the flue

gas in the manner specified in Condition 7.1.6(a).

‘~

k&ated conditions are

7.1.10-1

(a)(iv)

(reporting)

and

7.1.12(d) (compliance procedures).

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73.

USEPA has not required similar conditions in the permits issued to other power

plants in Region

Therefore, returning

to the work practice of good

combustion optimization to

maintain low levels of CO emissions

is approvable

by USEI’A

and

is appropriate

for CO

in the

permit issued

to the Joiiet Generating Station.

74.

Consistent with the APA,

Conditions 7.1.6(a), 7.1 .9(a)(vi),

7.1.9(g)(i),

7.1.9(g)(ii)(C)(S),

7.1 .9(h)(ii)(D)(3), 7.1.10-1

(a)(iv).

and 7.1.12(d) to

the extent that Condition

7.1.12(d) requires the quarterly diagnostic

measurements and estimates of

CO emissions during

startup and malfunctionlbreakdown, contested herein, and any other related conditions

that the

Board finds appropriate

are

stayed, and Midwest Generation requests that the

Board order the

Agency to amend Condition

7.1.6(a) 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.

(v)

Applicability

of 35 IlI.Adm.Codc 217.Subpart

75.

The

Agency has included the word

each

in Condition 7.1.4W:

“The affected

boilers

are

each subject to the following requirements

(Emphasis added.)

Because of the

structure and purpose of 35

ll1.Adm.Code 21 7.Subpart V, which is the

requirement that the NOx

emissions rate

from certain coal-fired power plants during the ozone season average

no more

than 0.25

lb/mmBtu across the state, Midwest Generation

submits that the use of the

word

each

in this sentence is misplaced and confusing, given the option available to the Joliet Generating

Station to average emissions among affected units in infinite

combinations.

76.

Consistent with the APA, Conditions 7.1.4(f) and 7.l.4ffl(i)(A) are stayed,

and

Midwest Generation requests that the Board order the Agency to delete the word

each

from

the

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sentence quoted above

in Condition

7.1.4(1) and to insert

the

word

each

Condition

7.1

~fflW(~)

if (he

Board agrees

that its

inclusion

is necessary at all, as

fbllows:

“The emissions

of NOx from an

each

affected boiler

(vi)

Startup Provisions

77.

is allowed by Illinois’

approved Title

program,

CAAPP

permits provide an

affirmative defense against enforcement actions brought against apermittee

for emissions

exceeding an emissions limitation during startup.

The provisions in the Board’s rules allowing

for operation of a CAAPP source during

startup are located at

35 1lI.Adm.Code 20l.Subpart

These provisions, at

201.265

refer back

201.149

with respect to the affirmative defense

available.

The

rules nowhere limit

thc length of time allowed for startup, and the records

and

reporting required by

201.263, the

provision

that the Agency cited as the regulatory basis for

Condition

7.1.9(g), do not address startup at all;

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 are the result of

gapfilling and

are

limited

to what is

necessary to assure compliance with emissions limits.

78.

Midwest Generation is already required to provide information regarding when

startups occur

and

how long they last

by Condition

7.1 .9(g)(ii)(A).

Condition

7.1.9(g)(ii)(B)

requires some additional information relative to startup.

Emissions of SO2, NOx,

and

opacity

during startup

are

continuously monitored

by the CEMS/COMS.

Midwest Generation has

already established that the magnitude of emissions of PM and CO cannot be provided

(see

above).

The additional

information that the Agency requires

in Condition

7. 1.9(g)(ii)(C) after a

six-hour period 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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Moreover, this “additional” information svould serve no

purpose were

it to he required

even

after

the

24 hours typically required for startup.

79.

Consistent with the APA, Condition

7. I .9(g)(ii)(C), contested

herein,

is stayed,

and

Midwest Generation requests that the Board order the

Agency to delete the condition,

consistent with the startup provisions of 35 lll.Adm.Code

201.149

and

the inapplicability of

201.263.

(vii)

Malfunction and Breakdown Provisions

80.

Illinois’ approved Title

V program allows the Agency to grant sources the

authority to operate during malfunction and breakdown, even though

the source emits

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 Midwest

Generation for the

Joliet Generating Station.

This grant of authority serves only

as an

affirmative defense in an enforcement action.

Generally see

Condition

7.1.3(c).

81.

Condition 7.l.l0-3(a)(i) requires that Midwest Generation notify

the Agency

“immediately” if it operates during malfunction and breakdown and there could be PM

exceedances.

Midwest Generation has pointed

out above, there is currently no proven or

certified methodology for measuring PM emissions other than through stack testing.

Therefore,

the Agency is demanding that Midwest

Generation notify

it of the mere supposition that there

have been PM exceedances.

The Agency has provided no regulatory basis for reporting

suppositions.

At the very least, Midwest Generation should be granted the opportunity to

investigate whether operating conditions are such that support or negate the likelihood that there

may have been PM emissions exceedances during the malfunction and breakdown, though

Midwest Generation does not believe that even this is necessary, since the Agency

lacks a

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regulalory basis

for this requirement

in the first

place.

Reference to reliance on opacity as

indicator of PM emissions

should be deleted,

The condition

as written exceeds the scope of the

Agency’s authority to gapfill and so

is unlawful, arbitrary

and

capricious.

82.

Also

in Condition

7.l.10-3(a)(i), the

Agency has

deleted the word

consecutive

a trigger

for reporting opacity and potential PM exceedances 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

Midwest

Generation’s comments

each version of the permit 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 six-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.

83.

The

Agency has provided

explanation for this change.

As the actual opacity

exceedanee could alone comprise

the “incident.” Midwest

Generation 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

exeeedance does possibly indicate a malfunetionfbreakdown “incident.”

the alternative,

Midwest Generation suggests that the Agency

add a two-hour timeframe during which these six

or more six-minute opacity

averaging periods could occur to be consistent with the next

condition,

7.l.lO-3(a)(ii).

Likewise, a timeframe is not included in

Condition 7.l.10-3(a)(ii),

which appears to refer to the same “incident” that is addressed by Condition

7.1.1 0-3(a)(i).

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Midwest Generation suggests that the Agency qualify

the length of time during

which the

opacity standard may have been exceeded for two or more hours to 24

hours.

84.

Consistent with the

APA, Condition

7.1.1 0-3(a)(i), contested

herein,

is stayed,

and Midwest Generation requests that the Board order

the Agency to

delete it

from the permit as

it relates

to PM.

Consistent with the APA,

Condition 7.1.1 0-3(a)(ii), contested herein,

and

Midwest Generation requests that the Board order the Agency

to remove the reference to PM

emissions and to

insert a timeframe

span

the six six-minute opacity averaging periods to make

them consecutive or, in the alternative, to require

that they occur within a two-hour block.

(viii)

Alternative

Fuels Requirements

85.

The Agency has included at Conditions 7.I.5(a)(ii)-(iv) requirements that become

applicable

when Joliet uses a

luel other than coal as its principal

ftiel.

Condition

7.1 .5(a)(ii)

identifies what constitutes using an

alternative fuel

the

principal

fuel

and establishes

emissions

limitations.

Condition

7.1 .5(a)(iii) also describes

the conditions under which Joliet would

considered to be using an alternative

fuel

as its principal

ffiel.

Condition

7.1 .5(a)(iv) requires

notification to

the Agency prior to Joliet’s use of an alternative fUel as its principal fuel.

86.

Inclusions ofthese

types of requirements in Condition 7.1.5, the

condition

addressing non-applicability of requirements, is organizationally misaligned under the permit

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 for notifications.

In the alternative,

they should

be in Condition

7.1.11(c), 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,’7

“

That is,

Condition

7.x.9

for

all

types

of emissions units

this

permit,

from

boilers

to tanks,

addresses

recordkeeping.

Likewise, condition

7.x.9

addresses

recordkeeping in

all

of the

CAAPP permits

for EGUs.

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for the Agency to include

specific recordkeeping requirements in the compliance section creates

a disconnect and uncertainly regarding where the

permittee

is to find out

what

is supposed to

do.

87.

Additionally,

at Condition

7.1.1 l(c)(H),

the Agency’s placement of the examples

of alternative fuels

defines them

as hazardous wastes.

The intent

and

purpose ofthe condition

to ensure

that these alternative

fuels are not classified

as hazardous wastes~. ‘The last

phrase of

the condition, beginning

with

“such as

petroleum coke, tire derived fuel...,”

should be 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.

88.

For these reasons, Conditions

7.1 .5(a)(ii),

7.1 .5(a)(iii), 7.1 .5(a)(iv), and

7.1.11 (c)(ii) are

stayed pursuant to the APA, and Midwest

Generation requests that the

Board

order the Agency to place Conditions 7.1 .5( )(ii)-(iv)

in more appropriate

sections of the permit

and

to clarify Condition

7.1.11 (c)(ii).

(ix)

Stack Testing Requirements

89.

Condition 7.1.7(e)

identifies detailed information that is to be included in the

stack test reports, including target levels and settings.

To the extent that these

requirements are

can be viewed as enforceable operational requirements

or parametric monitoring

conditions,

Midwest Generation contests this condition.

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

a daily basis.

Stack

testing provides a snapshot of operating conditions within the scope of the operational paradigm

set forth in the permit at Condition

7.1 .7(b) that is representative of normal or maximum

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operating conditions. but using those settings as

some type of monitoring device or parametric

compliance

data would be inappropriate.

90.

Consistent with the APA,

Condition 7.1.7(e), contested herein,

is stayed,

and

Midwest Generation requests that the

Board order

the Agency

to delete the condition from the

permit.

(x)

Monitoring

and Reporting Pursuant to NSPS

91.

It appears from various conditions in the permit that the Agency believes that

Joliet is subject to NSPS monitoring and reporting requirements pursuant to

the Acid

Rain

Program.

Midwest Generation’s review of the applicable requirements under Acid Rain do 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

75.2 1(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(1)

and reporting at

75.65.

None of this references Part 60.

NSPS.

92.

Arguably,

it is odd that a permittee would appeal a condition in apermit

that

states that regulatory provisions

are

not applicable.

However, consistent with

Midwest

Generation’s analysis of the Acid Rain requirements, the permit,

and

the

Board’s regulations,

must also appeal Condition

7.1.5(b), which exempts Joliet from the requirements of 35

lll.Adm.Code 201 .Subpart L based upon the applicability of NSPS.

NSPS does not apply to the

Jolict Generating Station through the Acid Rain Program, and so this condition is inappropriate.

93.

Conditions 7.1.10-2(b)(i), 7.l.10-2(c)(i) and 7.1.lO-2(d)(i) require

Midwest

Generation to submit summary information on

the

performance of the SO2, NOx,

and

opacity

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continuous monitoring

systems, respectively, including the

information specified at 40

CFR

60.7(d).

Condition

7.l.l0-2(d)(iii) Note refers, also, to NSPS

§~

60.7(c)

and (d).

The

information required at

60.7(d)

is inconsistent with the information required by

CFR Part

75. which are the federal

reporting

requirements applicable to Midwest Generation’s boilers.

Section 60.7(d)

is not an

“applicable requirement,” as

the boilers are not subject

the NSPS.

For Midwest Generation 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

permit beyond the

limitations of gapfilling.

Moreover, contrary to Condition

7.1 .lO-2(d)(iii), Midwest Generation

does not find a regulatory link between the NSPS provisions of 40 CFR 60.7(c) and (d)

and

the

Acid Rain

Program..

94.

Consistent with the APA, Conditions

7.1.5(b),

7.1. 10-2(h)(i),

7.1.1 0-2(c)(i),

7.1. 10-2(d)(i),

7.1 .10-2(d)(iii), and 7.1.1 0-2(d)(iii)

Note, contested herein, are stayed, and

Midwest Generation requests that the Board order the Agency

to delete reference to 40

CFR

60.7(d).

(xi)

Opacity Compliance Pursuant to

212.123(b)

95.

The

Board’s regulations at 35

lll.Adm.Code

2 12.123(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

the source located within a

1,000-foot radius from the

unit

whose emissions exceed

may

emit at such an opacity during the

same

60-minute period.

Because

the opacity limit at

2 12.123(a) is expressed

six-minute averages pursuant to Method

(see

Condition

7.l.l2ea)(i)), a source demonstrating compliance with

212.123(b)

must reprogram its COMS to

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record

or report

opacity over a different timeframe than would

be required by demonstrating

compliance with

212.123(a) alone.

The Agency

attempts to reflect thcse provisions at

Condition

7.1.12(a), providing for compliance with

212.123(a) at Condition

7.1.1 2(a)(i)

and

separately

addressing

212.123(b) at Condition

7.1 .12(a)(ii).

Additionally,

the

Agency requires

Midwest Generation to provide

it with

15 days’ notice prior to changing its procedures to

accommodate

212.123(b) at Condition

7.1. 12(a)(ii)(E).

These conditions raise

several issues.

96.

First, Condition

7.1.1 2(a)(ii) assumes that accommodating the “different”

compliance requirements of

212.123(b),

as compared to

212.123(a),

is a change in operating

practices.

In fact,

it is not. Midwest Generation has been capturing opacity data in compliance

with

212.123(b)

for a number of months as of the issuance

date of the permit.

Arguably, then,

Midwest Generation has nothing to report to the Agency pursuant to

Condition

7.1 .1 2(a)(ii)(E),

because no change is occurring.

However,

Midwest Generation suspects that Agency assumes

that

it has not made this so-called change yet.

Midwest Generation requests clarification

from

the Board that such reporting

is not required where the permittee

has

already accomplished the

“change” in data capture prior to issuance of the CAAPP permit and that no recordkeeping

and

data handling practices must he submitted for Agency review.

97.

Second,

as with Midwest Generation’s objection to Condition 5.6.2(d), Condition

7.1.1 2(a)(ii)(E) is an attempt

by the Agency to insert itself into the operational practices of a

source beyond the scope of its authority to do

so.

The Agency states that the purpose of the

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).

As with Condition

5.6.2(d),

the risk lies with the permittec.

If, during an

inspection

or a review of a quarterly

report, the Agency finds that Midwest Generation

has not

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complied with

212.1 23(b)’s implied

data collection requirements, then the Agency

authorized by the Act to take certain actions.

Midwest Generation is quite capable of taking the

responsibility

for the data capture and recordkeeping necessary for compliance with

2 12.123(b).

98.

Moreover, while Condition 7.1.12(a)(ii)(E)

says that the Agency

will review

the

reeordkeeping and data handling practices of the source,

it says nothing about approving tlietnnr

what the

Agency plans to do with

the review.

The Agency has not explained a purpose of the

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

Joliet Generating

Station is required to operate

a COMS, all of the

opacity readings captured

the COMS

are

recorded and available to the

Agency.

The Agency has had ample opportunity to

determine whether Joliet has complied with

212.123(b),

Midwest Generation’s providing

days’

prior notice of its “change” to accommodating

2 12.123(b) will not improve the Agency’s

ability to determine Joliet’s compliance.

99.

Conditions

7.1.10-3(a)(i) and (ii) do

not accommodate the applicability of

212.123(h).

The Board’s regulations do not limit when

212.123(b) may apply beyond eight

minutes per

60 minutes three times per 24

hours.

Therefore,

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.

100.

Finally, inclusion of recordkeeping

and

notification requirements relating to

212.123(b) in the compliance section of the permit is organizationally

misaligned under the

permit

structure adopted by the Agency.

These 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

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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 recordkeeping requirements

the compliance section creates

a disconnect and uncertainty regarding where the permittee is to find out what he or she

supposed to do,

101.

Consistent with the

APA, Condition

7.1 .12(a)(ii), contested herein, is stayed, and

Midwest Generation requests that the Board order the Agency to delete the condition from the

permit.

Additionally, consistent with the APA, Conditions

7.1.1 0-3(a)(i) and (ii), contested

herein, are stayed, and, ifthe Board does not order the Agency to delete these conditions

from

the permit pursuant to other requests raised in this appeal.

Midwest Generation requests that the

Board order the Agency to amend these conditions

to reflect the applicability of~212.123(b).

Coal Handling Equipment, Coal

Processing Equipment, and Fly Ash Equipment

(Sections

7.2, 7.3, and

7.4)

(i)

Fly Ash Handling

Fly Ash Processing

Operation

102.

processing occurs within the

fly

ash system.

It is

a handling and

storage

operation the same as

coal handling and storage.

The Agency recognizes

in Condition

7.4.5

that

the NSPS for Nonmetallic Mineral Processing Plants does not apply “because there is no

equipment used to

crush

or grind ash.”

This underscores

Midwest Generation’s point that the

fly

ash handling system is

not a process.

103.

Because the fly ash operations at the Joliet Station

are not a process, they are

not

subject to the process weight rate

rule 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.’5

The process weight

rate

rule

is not a legitimate

applicable requirement and so is included in the permit

Midwest Generation

does not dispute the

Agency’s insistence

that

fly ash handling

is subject to the process

weight rate

rule because

cannot comply;

fact, Midwest Generation complies

by an

impressive

margin.

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impermissibly.

Condition 7.4.4(c) and all other

references

to the process rate weight

rule or

212.321(a), including

in Section

10 of the permit,

should be deleted.

104.

Since the

fly

ash

operation is not a process, reference

as a process is

inappropriate.

The word

process

and its derivatives

Section

7.4 of the permit should be

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).

105.

Consistent with the APA, the 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 of which are

contested herein, are stayed, and Midwest

Generation

requests that the Board order the

Agency to delete the

Conditions 7.4.4(c), 7.4.9(b)(ii), and

all

other references

to the process weight rate rule, including in Section

10, and add Condition

7.4.5(b)

identifying

2 12.321(a) as a requirement

that is not applicable

to Joliet.

(ii)

Fugitive Emissions Limitations and Testing

106.

The

Agency has applied the opacity

limitations of~2 12.123 to

sources of fugitive

emissions at the Joliet Generating Station through Conditions

7.2.4(b), 7.3.4(b), and 7.4.4(b),

all

referring back to Condition

5.2.2(b).

Applying the opacity limitations of

2l2. 123 to sources of

ftgitive 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

niothing

in the

State’s air pollution control regulations states that

the opacity limitation 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.

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107.

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

I 2.123

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 Ill,Adm.Code 212.Subpart K.

These rules call for

fugitive emissions plans and specifically identi1~’

the types of sources that are to he covered

these plans.

Condition

5.2.3 echoes these requirements, and Condition

5.2.4

requires the fugitive

emissions plan.

108.

The limitations for

fugitive emissions are set

forth

212.30!.

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

2 12.123.

includes specific provisions

for reading the opacity

of roadways

and parking areas,

However,

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 than the method set forth

212.301.

This reinforces the discussion above

regarding the structure of Part 212

and that

212.123

does not apply to sources of fugitive emissions other than where specific exceptions

that general

nonapplicability

are set forth in the regulations.

109.

§ 212.107

specifically excludes the applicability of Method 9 to fugitive

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),

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7.3.4(b), and 7.44(h), must he

deleted

from

the permit.

Except for roadways and parking

lots,

2 12.123

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.

the extent that Condition

7.2.12(a), 7.3.12(a),

and

7.4.12(a) rely

on Method

9 for demonstrations

of compliance,

it,

too, is unlawful.

110.

The Agency also

requires stack tests of the

haghouses at Conditions 7.2.7(h),

7.3.7(b), and 7.4.7(b).

PM stack testing would be

conducted

in accordance

with Test Method

However, a part of complying

with Method

is complying

with Method

I, which establishes the

physical parameters

necessary to test.

Midwest

Generation cannot comply

with Method

The

stacks and vents

for such sources as small baghouses and wetting systems are

narrow and not

structurally built to accommodate testing

ports and platforms for stack testing.

The PM

emissions for these types of emissions units are very small.

The inspections,

monitoring, and

recordkeeping requirements are

sufficient to assure compliance.

These conditions should be

deleted from the permit.

Ill.

For these reasons, consistent

with the APA, Conditions

7.2.4(b), 7.2.7(a), 7.2.7(b)

7.2.12(a), 7.3.4(b), 7.3.7(a),

7.3.7(b), 7.3.12(a),

7.4.3(b), 7.4.7(a), 7.4.7(b),

and 7.4.12(a),

all

contested

herein, are stayed, and Midwest Generation 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 5.

(iii)

Temporary Fly Ash Storage “Facility”

112.

Condition 7.4.3(b)(iii) refers to

a storage “facility” for temporary storage of fly

ash should that become necessary.

The implication of the word

facility

a building or

other

type of enclosure.

Midwest Generation objects to the

use of the

word

facility

without

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clarification that

it includes temporary storage in

piles on the ground.

For this reason,

consistent

with the

APA, Condition 7.4.3(b)(iii), contested herein,

is stayed,

and Midwest Generation

requests

that the Board order the Agency

to clarilS’ the condition appropriately.

(iv)

Testing Requirements for Coal Handling, Coal Processing, and

Fly Ash Handling

Operations

113.

The

final permit provides at Condition

7.4.7(a)(ii) that

Midwest Generation

conduct the opacity

testing required at Condition

7.4.7(a)(i)

for a period of at least

30 niinutes

“unless the average opacities

for the first

12 minutes of observation (two six-minute averages)

are both less than 5.0 percent.”

The original 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 tbr testing to be discontinued

ifthe 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

114.

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)

19)

or (2) reducing the threshold

from

to 5.

Because the

Agency has not provided an explanation for this change at the time that

the change

was made to provide Midwest Generation with the opportunity, at worst, to try to

understand the Agency’s rationale or

to comment on

the change, the inclusion of this change

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 Midwest Generation must appeal this underlying

condition

as well.

‘~

“The duration of

opacity

observations for each

test shall

at least 30 minutes (five 6-minute

averages)

unless

the

average opacities for

the first

minutes of observations

(two

6-minute averages) are both

less than

10.0

percent.”

(Emphasis added.)

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115.

For these

reasons, Condition

7.4.7(a), which is again contested herein, is stayed,

and, without conceding

its appeal of these

conditions as

to their appropriateness at all,

as stated

above,

Midwest Generation requests that ifthe

conditions must

remain in the permit the Board

order the Agency

amend Condition 7.4.7(a)(ii) to reflect the

threshold, rather than the 5

threshold, for discontinuation of the opacity test, although

Midwest Generation specifically does

not concede that Method

9 measurements are appropriate in the first place.

(v)

Inspection Requirements for Coal Handling, Coal Processing, and Fly Ash Handling

Operations

116.

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.

each case,

the

condition requires that “Itihese inspections shall

be performed

with personnel

not directly

involved

the day-to-day operation of the affected operations

Agency provides no

hasis

for this requirement other than a discussion, after the permit has been

issued,

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

why being “fresh”

and “independent” are “appropriate” qualifications for such

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

operations is not 0

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.20

117.

There is no

basis

law or practicality for this provision.

To identify

a CAAPP

permit condition who can

perform an inspection

is overstepping the Agency’s

authority and

The Agency’s requirements

in this condition also underscore Midwest Generation’s

appeal

uf the conditions

applying

opacity limitation to fugitive sources, above at Section

lIl.E.(ii).

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clearly exceeds

any

gapfilling authority that may somehow apply to these

observations of

fugitive dust.

The requirement

must be stricken from the permit.

118.

The

Agency has included in Conditions 7.2.8(b) and 7.3.8(b) that inspections

coal handling and

coal processing operations be conducted

every

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 creating

an outage

schedule,

as these processes 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 of the

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 Midwest Generation’s best interest to run its operations

efficiently and safely

as possible.

While the Agency certainly has

gapfulling authority,

the

gapfilling 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.

119.

Moreover, the Agency does not provide a rationale as

to why the frequency of fly

ash handling inspections should be greater (more

frequent) than for the other operations.

120.

As these operations must be inspected when they are not operating, and as they

would not operate during an outage of the boiler, it is not necessary

for the Agency to dictate the

frequency of the operations.

Rather,

is logical that these inspections should

be linked to boiler

outages.

Moreover,

these operations are inspected on

monthly or weekly bases pursuant to

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Conditions 7.2.8(a), 7.3.8(a), and 7.4.8(a), and so any maintenance

issues will

identified long

before the

or nine month inspections.

121.

Conditions

7.2.8(b),

7.3.8(h). 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 for this requirement and has not cited

an applicable

requirement

for these conditions.

This level of detail

a CAAPP permit

unnecessary and inappropriate and exceeds the Agency’s authority to gaptill.

These

requirements should be

deleted

from the permit.

122.

Condition 7.2.8(a)

requires

inspections of the

coal handling operations on a

monthly basis

and provides “that all

affected operations that are in routine service shall

inspected at least once during

each calendar month.”

Since the first sentence of the condition

already states that these operations are to he 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.”2’

The Agency

has provided

no explanation as to why the frequency of

the inspections has been increased.

123.

For these reasons,

Conditions 7.2.8(a), 7.3.8(a), and 7.4.8(a),

and the

corresponding reeordkceping conditions,

7.2.9(d), 7.3.9(c), and 7.4.9(c), all

of which

are

contested herein,

are stayed consistent

with the APA.

and

Midwest Generation 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 Midwest Generation inspect before

and after maintenance and repair

activities.

That

is,

not all

aspects of

the

coal handling

operations are required

inspected during operatioo:on

monthly basis.

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Additionally, Conditions 7.2.8(b), 7.3.8(b), and 7.4.8(b), contested herein,

are stayed pursuant to

the

APA, and Midwest Generation requests that the

Board order the Agency

to alter the

frequency of the inspections to

correspond to boiler outages.

(vi)

Reeordkeeping Requirements for Coal Handling, Coal Processing, and Fly Ash

Handling Operations

124.

Condition

7.2.9(a)(i)(C)

requires Midwest Generation

to submit

a list identifying

coal conveying

equipment considered an “affected facility” for purposes

ofNSPS,

Such a

list

was

included in the application, and that should suffice.

Moreover,

the

equipment

in question is

subject to the NSPS identified in Condition 7.2.3(a)(ii), and so has already

been identified in the

permil itself

To require Midwest (leneration

to create a second list is redundant and not

necessary to

ensure compliance with emissions limitations.

The equipment has

been permitted

historically.

Moreover,

the

condition requires submission of this list pursuant to Condition

5.6.2(d), which is addressed earlier in this Petition.

Condition 7,2,9(a)(i)(C) should

deleted

from the permit.

125.

Likewise,

the demonstrations confirming that the established control

measures

assure compliance with emissions limitations, required at Conditions 7.2.9(b)(ii), 7.3.9(h)(ii)

and

7.4.9(b)(ii), have already been provided

to the Agency

the construction and CAAPP permit

applications.

These conditions are unnecessarily redundant, and resubmitting the demonstrations

pursuant to Conditions 7.2.9(b)(iii), 7.3.9(b)(iii),

and 7.4.9(b)(iii) serves no compliance

purpose.

Also, Conditions 7.2.9(b)(iii), 7.3.9(b)(iii),

and 7.4.9(b)(iii) rely

upon Condition 5.6.2(d),

contested herein.

Conditions 7.2.9(b)(ii), 7.2.9(b)(iii),

7.3.9(b)(ii), 7.3.9(b)Øii), 7,4.9(b)(ii), and

7.4.9(b)(iii) should be deleted from the permit.

126.

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

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permit.

Midwest Generation has already objected

to the inclusion

of these conditions

for other

reasons.

In any event, they should not appear in Condition

7.x.9.

127.

Conditions 7.2.9(dxii)(B), 7.3,9(c)(ii)(B), and 7.4.9(c)(ii)(B) are redundant of

7.2.9(d)(ii)(E),

7.3.9(c)(ii)(E), and 7.4.9(c)(ii)(E). respectively.

Such redundancy

is not

necessary.

Conditions 7.2.9(d)(ii)(B), 7.3.9(e)(ii)(B), and 7.4.9(e)(ii)(B) should be deleted from

the permit.

128.

Conditions 7.2.9(e)(ii). 72.9(e)(vii),

7.3.9(d)(ii), 7.3.9(d)(vii),

7.4.9(d)(ii), and

7.4.9(d)(vii) require Midwest Generation to

provide the magnitude

of PM

emissions during an

incident where the coal handling operation

continues without the

use of control measures.

Midwest Generation

has established that

it has no

means

to measure

exact PM emissions from

any process on

a continuing basis.

The Agency understands this.

Therefore,

is not appropriate

for the

Agency

to require reporting of the magnitude of PM emissions.

129.

The Agency

uses the word

process

in Condition 7.2.9(I)(ii)

rather than

operaaon,22

perhaps because use of

operation

at this point would he repetitious~ While this may

seem a very minor point, it is a point with

distinction.

The word

process,

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 rule.

Midwest Generation wants

there to

be no possibility that anyone can construe coal handling as a process subject to the process

weight rate rule.

Therefore,

Midwest Generation has repeatedly requested that the

Agency

substitute

operation

or some synonym for

process

in this context.

130.

The Agency provided no

rationale and still provides no authority for its inclusion

of Conditions 7.2.9(d)(i)(B) and 7.2.9(d)(i)(B), observations of coal

fines, and Condition

~“Records

for each

incident when operation of an

affected

process continued during malfunction

or breakdown.

(Emphasis added.)

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7.4.9(cyi)(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

provide an acceptable

rationale as

to why the provisions are even there.

The

Agency says, with

respect to the accumulation of fines,

follows:

Likewise, the identification of accumulations of fines 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

performed by a member of the general public.

Moreover,

this is a

reasonable

requirement for the

plants for which

it is

being applied,

which are

required to implement operating programs to minimize

emissions

of fugitive dust.

At such plants, accumulations of fines

can

potentially contribute to emissions of fugitive dust,

as they

could become airborne in the wind.

Responsiveness Summary, 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 fugitive dust plans, required at 35 Ill.Adm.Code

212.309 and Condition 5.2.4.

‘the elements of fugitive dust plans are set forth

212.310 and

do not include observations of accumulations of fines or

fly ash.

In fact,

nothing in the Board’s

rules addresses observing the accumulation

of fines or

fly

ash.

Observing accumulations of fines and fly

ash are

not applicable requirements;

therefore, their inclusion in the permit violates ‘title V and

Appalachian Power

imposing new

substantive requirements upon the permittee through the Title V permit.

Additionally,

observing

accumulations of fines

and fly ash cannot reasonably

be included under gapfilling, as they are

not necessary to assure compliance with the permit.

The assurance of compliance with the

fugitive dust requirements rests within the adequacy of the fugitive

dust plan,

which must be

submitted to the Agency for

its review, pursuant to

212.309(a), and periodically updated,

pursuant to

212.312.

If the permittee does not comply with its

fugitive dust plan or

the Agency

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finds that the fugitive

dust plan

not adequate, there arc pioeedures

and remedies available to

the Agency to address the issue.

However, those

remedies and

procedures

not fall within

the

scope of gapfihling to the extent that the Agency can require

by permit what must

be included in

the fugitive dust plan beyond

the specifications oithe regulation.

Likewise,

the

Agency cannot

supplement the fugitive dust plan, the regulatory control plan, through the permit.

132.

Given that the fly ash

system results in

few emissions, rarely breaks

down,

and is

a closed system, there

is no apparent

justification

fbr the trigger for additional rccordkceping

when operating during malfunction/breakdown being only one hour

in Condition

7.49(e)(ii)(E)

compared

the two hours allowed for coal handLing (Condition

7.2.9(f)(ii)(E)) and coal

processing (Condition 7.3.9(e)(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.

133.

For these reasons. Conditions 7.2.9(a)(i)(C), 7.2.9(b)(ii). 7,2.9(b)(iii), 7.2.9(e)(ii),

7.2.9(e)(vii), 7.2.9ffl(ii), 7.3.9(b)(ii),

7.3.9(b)(iii), 7.3.9(c)(ii)(B),

73.9@)(ii), 7.3.9(.d)(iLXB),

7.3.9(d)(vii). 7.4.9(b)(ii), 7.4.9(b)(iii), 7.4.9(c)(i)(B),

7.4.9(d)(ii), 7.4.9(d)(ii)(B), 7.4.9(d)(vii),

and 7.4.9(e)(ii)(E), all contested herein, are stayed consistent

with the APA, and Midwest

Generation requests

that the

Board order the Agency

to delete

Conditions 7.2.9(a)(i)(C),

7.2.9(b)(ii), 7,2.9(b)(iii), 7,2.9(d)(ii)(B), 7.3.9(b)(ii),

7.3.9(b)(iii), 7.3.9(d)(ii)(B), 7.4.9(b)(ii),

7.4.9(b)(iii), 7,4.9(c)(i)(B), and 7.4.9(d)(ii)(B); add the concept of estimating the magnitude of

PM emissions to Condition 7.2.9(e)(ii), 7.3.9(e)(vii), 7.3.9(d)(ii), 7.3.9(d)(v88), 7.4.9(d)(ii),

and

7.4.9(d)(vii); substitute the word

operation

for the word

process

in Condition 7.2.9(f)(ii); and

change one hour to two hours in Condition 7,4.9(e)(ii)(E).

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2005

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(vii)

Reporting Requirements

for Coal Handling, Coal Processing, and

Fly Ash Handling

Operations

134.

Conditions

7.2.1 0(a)(ii),

7.3.1 0(a)(ii), and

7.4.1 0(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

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 Midwest Generation

employs

control fugitive emissions at the Joliet Generating Station.

Implementation of these

measures is set forth in the fugitive dust plan required by

Condition

5.2.4 and

212.309 but

not

addressed in Conditions 7.2.6,

7.3.6, or

7.4.6,

The Agency’s

concern here in Conditions

7.2.1 0(a)(ii),

7.3.1 0(a)(ii), and

7.4.1 0(a)(ii) should he with

excess emissions and not wilh

whether control measures are implemented within

the past

or four hours, as the fugitive dust

plan does not require implementation of those control measures continuously.

There are

frequently

12- or four-hour periods when the control measures arc

not applied because it is not

necessary that they be

applied or it is dangerous lo

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

or four hours.

Midwest Generation notes also that the

Agency has provided no explanation

to why ash handling in Condition 7.4.lO(a)(ii) has

only a

four-hour window while coal handling and

processing have a

12-hour window,

135.

Conditions 7.2.lO(b)(i)(A), 7.3.lO(b)(i)(A),

and 7.4.l0(b)(i)(A) require reporting

when the opacity limitation p~yhave been exceeded.

That a limitation ~

have been exceeded

does not rise to the level

of an actual exceedance.

Midwest Generation believes

is beyond the

scope of the Agency’s authority to require reporting of suppositions of exceedanees.

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136.

Additionally,

these same conditions

(i.e.,

7.2.1 0(b)(i)(A),

7.3. lO(b)(i)(A)), and

7.4.l 0(b)(i)(A), the .Agency requires

reporting if opacity exceeded the limit for “five or more 6-

minute averaging periods”

(“four or more”

for ash handling).

‘l’he next sentence in the condition

says,

“(Otherwise,

for no more than

five 6-minute averaging periods

‘The ash

handling

provision says “no more than three” (Condition 7.4.lO(b)(i)(A)),

‘he

language in

Condition

7.4.l0(h)(i)(A) is internally

consistent; however, the language

in Conditions

7.2.1 0(h)(i)(A) and

7.3.1 0(b)(i)(A)

is not.

way these

two conditions are written, the

permittcc 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.

fIwt, the August 2005

proposed versions of the permit is

the first time

that five six-minute averages

triggered reporting.

The conditions

should be amended to clarify

that excess opacity reporting

in Conditions 7.2.1 0(b)(i)(A) and 7.3.1 0(b)(i)(A) is triggered after

five six-minute averaging periods and, as

discussed

below, that these averaging

periods should

he consecutive or occur within some reasonable outside

timeframe and

not just randomly.

137.

is the ease with other pennit

conditions for the

fly

ash handling operations, the

reporting requirements during malfunction/breakdown at Condition

7.4.1 0(h)(i)(A) !br

this

support operation are

different from those

for the coal handling and

coal processing operations.

Midwest Generation 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) only after five six-minute averaging periods.

See

Conditions 7.2. 10(b)(i)(A)

and

7.3.l0(b)(i)(A).

The Agency

has provided

no basis

for these differences or

for why it changed

With

rio close to the parentheses

in the condition.

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2005

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the

immediate reporting requirement for ash handling

from live six-minute averaging periods, as

in the

October 2003 proposed permit, to the four six-minute averaging periods.

Additionally, the

Agency has

deleted the time frame during which these opacity exceedances occur in this

provision24 in

all three sections

—

7.2.10(h)(i)(A),

7.3. lO(b)(i)(A), and 7.4.10(b)(i)(A).

(f,

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 be different, and given the complexities of the permitting

requirements generally, having these reporting timeframes

different adds another and an

unnecessary layer of potential violation trips for the permittee.

No environmental purpose is

served by

having them different.

138.

The Agency requires at Conditions

7.2.lO(b)(ii)(C),

7.3J0(h)(ii)(C),

and

7.4.1O(b)(ii)(C) that Midwest Generation aggregate the duration of all

incidents during the

preceding calendar quarter when the operations continued during malfunction/breakdown with

excess emissions.

Midwest Generation is already

required at Conditions

7.2.1 0(b)(ii)(A),

7.3.10(b)(ii)(A), and 7.4.10(b)(ii)(A)

to provide the duration of each incident.

It is not at all

apparent to Midwest Generation 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 gapfllling purpose.

For these reasons, these conditions should

be deleted

from the permit.

That is,

that

the

averaging periods are consecutive or occur within

some tirnefrarne,

such as two

hours.

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139.

Conditions 7.2. I0(h)(ii)(D),

7.3.1 0(h)(ii)(D), and

7.4. lO(b)(ii)(D) require

reporting that there were no incidents ofmaIfijnetion/breakdowi~,

and so no excess emissions,

the quarterly report.

The provisions in

Section 7.l.l0~225require reporting

only if there are

excess

emissions, and Condition 7.1.10-3, which addresses malfunction/breakdown

specifically,

requires only notification and

only of excess emissions.

Reporting requirements for the

support

operations during malfunction/breakdown should be

limited to reporting excess enussions and

should not be required if there are no

excess emissions.

140.

For these reasons, Conditions

7.2.1 0(a)(ii), 7.2.1 0(b)(iXA),

7.2.1 0(h)(ii)(C),

7.2, I0(b)(ii)(D),

7.3.10(a)(ii), 7.3.10(h)(i)(A),

7.3.

0(b)(ii)(C), 7.3.lO(b)(ii)(D), 7.4.I0(a)(ii),

7.4.l0(h)(i)(A),

7.4.10(b)(ii)(C), and 7.4.10(b)(ii)(D),

all contested

herein, are stayed pursuantto

the APA, and Midwest Generation requests that the

Board

order the Agency to qualify that

Conditions 7.2.10(a)(ii), 7,3.lO(a)(ii), and

7.4. lO(a)(ii) are limited to notification when there are

excess emissions rather than when control

measures have

not been applied for a 12-hour period

four-hour period in the ease of ash handling; to add a timefrarne for opacity exceedances

occurring during operation during malfunction/breakdown for immediate reporting

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 7.2.1O(b)(J)(A), 7.3.lO(b)(i)(A),

and 7.4.lO(b)(i)(A);

to delete

Conditions 7.2.1 0(b)(ii)(C), 7.3. l0(b)(ii)(C), 7.4.1 0(h)(ii)(C).

Conditions

7.1.

I0-2(b)(iii),

(c)(iii),

(d)(iii),

and

(d)(iv).

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ELECTRONIC FILING,

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2005

PCB 2006-058

Gasoline Storage

Tank

(Section

7.5)

(I)

Gasoline Sampling and Analysis

Requirements

141.

While gasoline sampling

standards and methods are included in

Il1.Adm.Code

218.585, there is not a requirement in that section that

dispensers or

users

(i.e.,

consumer) of

the gasoline perform such sampling.

The sampling at gasoline stations

is typically performed by

the Department of Agriculture’s Weights and Measures

group, and they provide the

stickers that

one sees on

gasoline

pumps

certifying that the gasoline meets

standards for octane, Reid vapor

pressure (“RYP”), and so forth.

Section 218.585 requires refiners and suppliers of gasoline to

state that the gasoline that they supply complies with RVP requirements.

~çy

are the

parties

who

are required

to perform

the requisite sampling pursuant to the standards and methods

included

21&585.

Midwest Generation is nota “supplier” of gasoline as the term is used in

218.585; rather,

Midwest Generation is a consumer of gasoline.

While it is incumbent upon

Midwest Generation to ensure

that the gasoline in their storage ranks complies with RVP

limitations, the proper statement from Midwest Generation’s supplier of the gasoline’s

compliance is sufficient under

218.585

for compliance with

this regulation.

The

regulation is

not, strictly, an “applicable requirement” for Midwest Generation, and the Condition 7.5.7(a)

should be stricken from the permit.

Recordkeeping requirements are

sufficient to ensure

compliance with the RVP limitations that are applicable to a consumer such as Midwest

Generation, at Condition

75.12(b).

142.

For these reasons, consistent with the APA, Conditions

7.5.7(a)

and

7.5.12(b),

contested herein, are stayed, and Midwest Generation requests that the Board order the Agency

to delete Condition 7.5.7(a) and to delete reference to sampling gasoline as a means of

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demonstrating compliance in Condition 7.5.12(h).

Also,

note that the

Agency’s citations

to the

regulations are incorrect.

(ii)

Inspection Requirements

143.

The

Board’s regulations for gasoline distribution are sufficient

to assure

compliance.

Therefore, the Agency’s inclusion of pemiit conditions specifying inspections of

various components oithe

gasoline storage tank operation exceeds its authority to gapfill.

These

requirements are

at Condition 7.5.8(a).

Certainly, there is no regulatory basis for requiring any

inspections within

the two-month timeframe included in Condition 7.5.8(a).

144.

Therefore, consistent with the APA,

Condition

7.5.8(a) and the corresponding

recordkeeping condition, 75.9(h)(v),

contested herein, arc stayed, and Midwest Generation

requests

that the Board order the

Agency to delete these conditions from the permit.

(iii)

Recordkeeping Requirements

145.

Conditions

7.5.9(b)(iii) and 7.5.9(d) are

redundant.

Both require

records of the

RVP of the gasoline in the tank.

Midwest Generation

requests that the

Board order the

Agency

to delete Condition

7.5.9(b)(iii) from the

permit.

As a contested condition,

Condition

7.5.9(b)(iii) is stayed pursuant to

the APA.

EnMines

(Section

7.6)

(I)

Observations During Startup

146.

As with Conditions

7.2.8(a), 7.3,8(a), and 7.4.8(a) the Agency has specified in

Condition 7.6.6(b)(i)

which of Midwest Generation’s personnel may perform the task identified

in the condition:

“.

shall

be formally observed by operating personnel for the engine or a

member of the Permittee’s environmental staff

Who performs the task

is not something

that the Agency can prescribe.

The Agency already requires that persons

who perform

certain

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2005

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tests,

such

as a Method 9 reading of opacity,

he certified to do

so.

The requirement

that the

personnel performing an

opacity observation, as in Condition

7.6.6(h)(i), he certified to do so

implicit in the requirement that the opacity reading be

“formal,” implying that

it should be

performed pursuant to Method

The

Agency has no basis

for spelling out which of Midwest

Generation’s personnel

may perform required activities.

If Midwest

Generation chooses, the

persons performing this observation may not be its

own engine operator or members of its

environmental

staff, yet the

observations would be

valid.

147.

There is no

applicable requirement that specifies that the engine operator or the

environmental staff must be the personnel who observe

opacity and operation of the engines.

Specifically

identi lying which personnel may perform these

activities is not within the scope of

gapfilling, as

is not necessary to ensure compliance with the permit.

Therefore, this

requirement

is arbitrary and capricious and should be stricken from the permit.

148.

For these reasons, Condition

7.6.6(b)(i), contested herein, is stayed pursuant to the

APA, and Midwest Generation requests that the Board order the

Agency to delete the

phrase “by

operating personnel for the turbine or a member of Pcrmittee’s environmental staff’

from this

condition.

(ii)

Observations

of Excess Opacity

149.

Condition

7.6.1 0(a)(i)(A) requires reporting when the

opacity limitation

rn&~y

have been exceeded.

That a limitation ~p~yhave been exceeded does not rise to the

level of an

actual exceedance.

Midwest Generation believes

is beyond the

scope of the Agency’s

authority to require reporting of suppositions of exceedances.

150.

Also in Condition

7.6.1 0(a)(i)(A), the Agency has deleted the word

consecutive

a trigger for reporting opacity and potential

PM exceedances during an “incident” in the final

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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

Midwest

Generation’s comments

each version of the permit 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 six-minute averages of opacity

from this

condition.

the

December 2004 version of the permit,

the word

consecutive

had been replaced

with

in a row,

but

the concept

is the same.

151.

For these reasons, Condition

7.6.1 0(a)(i)(A), contested herein,

stayed, and

Midwest Generation requests

that the Board order the Agency to delete the

concept of requiring

Midwest Generation to report

mere suppositions and to add a timeframe during which excess

opacity was observed before reporting

is triggered.

(iii)

Fuel SO2

Data

152.

The basis for determining compliance with the

SO2 limitation provided in

Condition 7.6.12(b)

is IJSEPA’s default emissions

factors, which are to be used only when better

data

is not available.

The condition should allow Midwest Generation to rely

such better

data,

including characteristics of the

fuel determined through

sampling and analysis to calculate

SO2

emissions,

as sampling and analysis will produce better

data.

153.

For these reasons, Condition 7.6.12(b),

contested herein,

is stayed pursuant to the

APA, and Midwest Generation requests that the

Board order the Agency to amend

the condition

to provide for the necessary flexibility for Midwest Generation to rely

on better data than default

emissions factors.

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NOVEMBER 2,

2005

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Maintenance and Repair Logs

(Sections

7.1, 71,

7.3,

7.4 7.5,

7.6)

154.

The permit includes requirements that Midwest Generation maintain

maintenance

and repair logs for each of the permitted operations.

llowever, 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(h)(i), 7.2.9(a)(ii),

7,3.9(a)(ii),

7.4.9(a)(ii), and

7.6.9(a)Oi) require logs for each control device

for the permitted equipment without regard to

excess emissions or malfunction/breakdown.

Conditions 7.1.9(h)(i), 7.2.9W(i),

7.3.9(e)(i), and

7.4.9(e)(i)

require logs for components of operations related to excess emissions during

malfunction/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 maintenance, apparently

addressing the status of the completion of such repair or

maintenance.

Conditions 7.2.9(d)(ii)(B)-(E),

7,3.9(c)(ii)(B)-(E), and 7.4.9(c)(ii)(B)-(E)

go even

further to

require Midwest Generation 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.

Each section of the permit should be 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 ifany emission unit, operation, process or air pollution control

equipment has a malfunction and breakdown with

excess emissions.

155.

Conditions 7.2.9(d)(i)(D), 7.3.9(c)(i)(D) and 7.4.9(c)(i)(D) require “al

summary

of the observed implementation

or status

of actual control measures, as compared to the

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ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

2, 2005

FOB

2006-058

established control

measures.”

Midwest Generation does not understand

what tins means.

These

conditions are ambiguous,

without

clear meaning, and should be deleted from the permit.

156.

These requirements exceed the

limitations

on the Agency’s authority to gapfill.

The purposes of maintaining equipment are

multifold, including optimization of operation

well as

for environmental

purposes.

The

scope of the Agency’s concern is compliance with

environmental limitations

and that is the scope that should apply to reeordkecping.

The

maintenance logs required in this permit

should be consistently

limited

to logs of repairs

correcting mechanical problems that caused excess emissions.

157.

For

these reasons, Conditions

7.1 .9(b)(i), 7.2.9(a)(ii), 7.2.9(d)(i)(C),

7.2.9(d)(i)(D),

7.2.9(d)(ii)(B)-(E), 7.3.9(a)(ii),

7.3.9(c)(i)(C), 7.3.9(c)(i)(D), 7.3.9(c)(ii)(B)-(E~,

7.4.9(a)(ii),

7.4.9(c)(i)(C), 7.4.9(c)(i)(D).

7.4.9(c)(ii)(

)-(F), and 7.6.9(a)(ii) all

contested herein,

are

stayed consistent with the AI~A,and

Midwest

Generation requests that the Board order the

Agency to delete

these conditions.

Testin2 Protocol Requirements

(Sections 7.1, 72,7.3,7.4)

158.

The pennit contains testing protocol

requirements in Section 7.1, 7.2,

and 7.4

that uniiecessarily 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? do not supersede Condition

8,6.2

but merely repeat it, those conditions in Section

7 should be deleted.

Included as they are,

they potentially expose the permittee to allegations of violations based upon multiple conditions,

when those conditions are mere redundancies.

This is inequitable.

It is arbitrary and capricious

and such conditions in

Section 7 should be deleted

from the permit.

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ELECTRONIC

FILING,

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OFFICE,

NOVEMBER 2,

2005

FOB 2006-058

159.

More specifically,

Conditions 7.l.7(c)(i), 7.2.7(b)(iii), 7.3.7(b)(iii),

and

7.4.7(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

well,

Condition

7.1.7(e), on the other hand, properly

references Condition

8.6.3 and requires additional

information in the test report without repeating

Condition 8.6.3.

However, Conditions

7.2.7(b)(v). 7.3.7(b)(v),

and 7.4.7(h)(v) require information in the test report

that is the same as

the information required by Condition

8.6.3.

‘l’o

the extent that the information required by the

conditions in Section 7

repeat the requirements of Condition 8.6.3, they should

be deleted.

160.

For these reasons, Conditions

7.1 .7(c)(i), 7.2.7(b)(iii), 7.2.7(b)(v).

7.3,7(b)(iii),

7.3.7(h)(v), 7.4.7(h)(iii),

and 7.4.7(b)(v), contested herein,

are stayed pursuant to the APA, and

Midwest Generation requests that the Board order the Agency to delete Conditions 7.1 .7(c)(i),

7.2.7(h)(iii), 7.3.7(b)(iii),

and 7.4.7(b)(iii) and to amend Conditions 7.2.7(b)(v),

7.3.7(b)(v),

and

7.4.7(b)(v)

such that they do

not repeat the requirements of Condition 8.6.3.

Standard Permit Conditions

(Section

161.

Midwest Generation 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 be their authorized representatives to perform tasks

that could require them to enter onto Midwest Generation’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 (“CBI”) claims and by

Midwest Generation’s health and safety rules.

Midwest Generation believes that this condition

needs to make it clear that Midwest Generation’s CBI and health and safety requirements

are

limitations

surveillance.

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ELECTRONIC

FILING,

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NOVEMBER

2005

FOB 2006-058

162.

For these reasons,

Condition ~.3, contested herein,

is stayed pursuant to the APA,

and Midwest Generation requests that the Board order

the Agency to clarify the

limitations

surveillance in the condition

set forth above.

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ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

2005

FOB 2006-058

WHEREFORE, for the reasons set

foi-th

herein, Petitioner

Midwest Generation requests a

hearing before the Board to contest the decisions contained in the

CAAPP permit issued to

Petitioner on

September 29, 2005, for the Joliet Generating Station.

The permit contested

herein

is not effective pursuant to Section

10-65 of the Administrative Procedures Act

ILCS

100/10-

65).

In the alternative, to avoid potential confusion and uncertainty described earlier, and to

expedite the review process, Petitioner requests that the Board exercise

its

discretionary authority

to stay

the entire permit.

Midwest Generation’s state operating permit issued for the Joliet

Generating Station will

continue in full

force and effect,

and the environment will not be harmed

by this stay.

Further, Petitioner requests that the Board remand the permit to the Agency and

order

it to appropriately revise conditions

contested

herein and any other provision the

validity or

applicability of which will be affected by

the deletion or

change in the provisions challenged

herein and to reissue the CAAPP permit.

Respectfully submitted,

MIDWEST GENERATION, LLC,

JoLIETGE:::G~’1ON

___

Dated:

November 2, 2005

Sheldon A. Zabel

Kathleen C. Bassi

Stephen A.

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

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