ELECTRONIC FILING,

RECEIVED, CLERKS

OFFICE,

NOVEMBER

2,

2005

*

*

*

*

*

PCB 2006-059

*

*

*

*

*

BEFORE

TIlE ILLINOIS

I’OLLlJTION CONTROL

BOAR!)

MIDWEST GENERATION, LLC,

POWERTON GENERATING STATION,

)

Petitioner,

)

v.

)

PCB

________________

(Permit Appeal

—

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

100W.

Randolph

1021

North Grand Avenue, East

Suite

11-500

P.O.

Box

19276

Chicago, Illinois 60601

Springfield, Illinois

62794-9276

PLEASE

TAKE NOTICE that

I have today

filed with the

Office of the Clerk of the

Pollution control Board the original and nine copies ofthe

Appeal of CAAPP

Permit of

Midwest Generation,

LLC,

Powerton Generating Station

and the Appearances of Sheldon

A. Zahel, Kathleen

C.

Bassi,

Stephen

J.

Bonebrake, Joshua R. More,

and Kavita M.

Patel, copies

of which are herewith

served upon

you.

Kathleen C.

Bassi

Dated:

November

2, 2005

Sheldon

A. Zabel

Kathleen C. Bassi

Stephen

J.

Bonebrake

Joshua R, More

Kavita

M.

Pate 1

SCuFF

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

2,

2005

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*

PCB 2006-059

*

*

*

*

*

BEFORE

THE ILLINOIS POLLUTION

CONTROL BOAR!)

MEl) WEST GENERATION,

LLC,

POWERTON GENERATING

STATION,

)

Petitioner,

)

v.

)

PCB

___________

(Permit Appeal

—

ILLINOIS ENVIRONMENTAL

PROTECTION ACENCY,

)

Respondent.

)

APPEARANCE

1

hereby file my appearance in this proceeding,

on behalf of Midwest

Generation, LLC.

Powerton Generating Station.

~lecn~,Bassi~

Dated:

November

2, 2005

Sheldon A.

Zabel

Kathleen C, Bassi

Stephen 3. Bonebrake

Joshua R.

More

Kavita M.

Patel

SCHIFF 1-1ARDIN,

LLP

6600 Sears Tower

233

South Wacker

Drive

Chicago, Illinois

60606

312-258-5500

Fax:

312-258-5600

---

ELECTRONIC

FILING,

RECEIVED, CLERKS

OFFICE,

NOVEMBER

2,

2005

*

*

*

*

*

POB 2006-059

*

*

*

*

*

BEFORE

l’HE

ILLINOIS

POLLU’l’ION

CONTROL

MIDWEST GENERATION, LLC,

POWERTON

GENERATING

STATION,

Petitioner,

)

)

v.

)

PCB

__________

(Permit Appeal

—

ILLINOIS ENVIRONMENTAL

PROTECTION

AGENCY,

)

APPEARANCE

I hereby

file my

appearance in

this proceeding, on

behalf of Midwest Generation, LLC,

Powerton

Generating Station.

(1

.~

-

--

/Sxethen J,

Bonebrake

Dated:

November

2, 2005

Sheldon A.

Zabel

Kathleen C. Bassi

Stephen 3.

Bonebrake

Joshua R. More

Kavita M. Patel

SCI 11FF HARDIN, LLP

6600 Sears Tower

233

South Wacker Drive

Chicago, Illinois

60606

312-258-5500

Fax:

312-258-5600

---

ELECTRONIC

FILING,

RECEIVED, CLERKS

OFFICE,

NOVEMBER 2,

2005

*

*

*

*

*

PCB 2006-059

*

*

*

*

*

BEFORE

TilE ILLINOIS POLLUTION

CONTROL

MIDWEST

GENERATION, LLC,

POWERTON

GENERATING

STATION,

)

Petitioner,

)

v.

)

PCI)

______________

(Permit Appeal

—

PROTECTION AGENCY,

Respondent.

)

APPEARANCE

I

hereby file

my appearance

in this proceeding, on behalf of Midwest

Generation,

LLC.

Powerton Generating

Station.

Joshua R. More

Dated:

November 2, 2005

Sheldon

A.

Zahel

Kathleen C.

Bassi

Stephen

J. Bonebrake

Joshua R. More

Kavita M. Patel

SCHIFF HARDIN,

LLP

6600 Sears Tower

233

South Wacker

Drive

Chicago, Illinois

60606

312-258-5500

Fax:

312-258-5600

---

ELECTRONIC

FILING,

RECEIVED,

CLERK’S OFFICE,

NOVEMBER

2,

2005

*

*

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*

*

FOB 2006-059

*

*

*

*

*

BEFORE: TFIE ILLINOIS

POLLLTION CONTROL BOARD

MIDWEST

GENERATION, LLC,

)

POWERTON GENERATING STATION,

)

Petitioner,

)

)

PCI)

____________

)

(Permit Appeal

—

Air)

ILLINOIS

ENVIRONMENTAL

)

PROTECTION AGENCY,

Respondent.

)

APPEARANCE

I hereby tile

my appearance

in

this proceeding. on behalf of Midwest Generation.

LLC,

Powerton Generating Station.

~XbL~

Kavita

Ni.

Patel

Dated:

November 2, 2005

Sheldon

A.

Zabel

Kathleen C. Bassi

Stephen J.

Bonebrake

Joshua IC 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 2,

2005

2006 059

BEFORE

TIlE

ILLINOIS

POLLUTION

CONTROL

BOARD

MIDWEST GENERATION, LLC,

POWERTON GENERATING

Petitioner,

V

ILLINOIS ENVIRONMENTAL

Respondent.

)

)

)

)

PCI)

____________

(Permit Appeal

—

Air)

)

)

CERTIFICATE OF

SERVICE

1, the undersigned, certify that

I

have served the attached Appeal of

CAAPP Permit of

Midwest

Generation,

LLC, Powerlon

Generating Station and

Appearances

of Sheldon

A.

Zabel, Kathleen C. Bassi,

Stephen 1.

Bonebrake, Joshua

it. More,

aM K’avita M.

Patel,

by electronic delivery

upon the following

person:

Pollution Control

Board,

Attn:

Clerk

James R. Thompson Center

100 W. Randolph

Suite

11-500

Chicago, Illinois 60601

Kathleen C.

Bassi

Dated:

November

2, 2005

and by electronic and first class mail

upon

the

following person:

Division of Legal

Counsel

liii nois Environmental

Protection Agency

1 021

North

Grand Avenue, East

l’,O.

Box

19276

Springfield, Illinois

62794-9276

Sheldon A. Zabel

Kathleen

C. Bassi

Stephen J.

Bonebrake

Joshua

R. More

Kavita M.

Patel

SCHIFF HARDIN, 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

2,

2005

*

*

*

*

*

FOB

2006-059

*

*

*

*

*

BEFORE: TIlE

ILLINOIS POLLUTION CONTROL

BOAR!)

MIDWEST GENERATION, LLC,

POWERTON GENERATING STATION,

)

Petitioner,

)

)

V.

)

PCB

____________

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

Respondent.

APPEARANCE

I hereby

file my

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

Powerton Generating

Station.

7/2

I

~ I

~k~1//

___

Sheldon

A. Label

Dated:

November 2. 2005

Sheldon

A. Zabel

Kathleen C.

Bassi

Stephen A.

Bonebrake

Joshua

R.

More

Kavita

M. l’atel

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

2,

2005

*

*

*

*

*

FOB

2006-059

*

*

*

*

*

BEFORE THE ILLINOIS

POLLUTION

MIDWEST GENERATION, LLC,

POWERTON

GENERATING

STATION,

)

Petitioner,

)

)

V.

)

PCB

_____________

(Permit Appeal

—

Air)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

APPEAL OF

CAAPP

PERMIT

NOW

COMES

Petitioner,

MIDWEST

GENERAI’ION,

LLC. POWLiICFON

GENERATING STATION (‘Petitioner,” “Powerton,” or “Midwest

Generation”), pursuant to

Section

40.2

of the Illinois Environmental

Protection Act (“Act”)

(415 ILCS

5/40.2)

and 35

Ill.Adm,Code

§

105.300

ci

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:

I.

BACKGROUND

(35 !II.Adm.Code

§

105.304(a))

I.

On

November

iS,

1990, Congress amended

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

§~

7401-7671q)

and included in the amendments at Title V a requirement

for a national

operating permit program.

The Title V program was to 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

CAAI~P

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ELECTRONIC

FILING, RECEIVED,

CLERK’S OFFICE,

NOVEMBER 2,

2005

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permits

since at

least March 7.

995.

when the state

was granted interim approval of its CAAPP

(60

Fed.Reg.

12478).

Illinois’

Title

V program

is set forth at Section

39.5

of the Act, 35

lll.Adm.Code 201.Subpart

F, and

35

Ill.Adm.Code Part 270.

2.

The

Powcrton Generating Station (“Powerton” or

the “Station”), Agency ID.

NC).

17980 IAAA,

is an electric generating station owned by Midwest

Generation,

LLC,

and operated

by Midwest

Generation,

LLC

—

Powerton (ienerating Station,

The

Powerton electrical

generating

units

(“EGUs”) went online between

1972 and

1975.

The

Powetion Generating

Station

is located at

13082

East Manito Road, Pekin, ‘fazcwell County,

Illinois

61554-8587,

within the Chicago

ozone and PM2.5

nonattainment areas.

Powerton

is an intermediate load

plant and can generate approximately

1697 megawatts.

Midwest Generation employs

190

people

at the Powerton Generating

Station.

3.

Midwest

Generation operates

four coal-fired boilers and an

auxiliary boiler

at

Powcrton that have the

capability to

fire at various modes that

include the combination of coal,

natural

gas, andlor

fuel

oil

as their principal

fuels.

In addition,

the boilers

fire natural

gas

or fuel

oil

as auxiliary

fuel during startup and

for flame stabilization.

Certain alternative fuels, such

as

used oils generated on-site,

may be utilized

as well.

Powerton

also operates associated coal

handling,

coal

processing, and ash handling activities..

Finally, there is a 1500-gallon

gasoline

tank located at Powerton, to provide fuel

for Station vehicles,

4.

Powerton

is a major source subject to

Title V.

The EGUs at Powerton

are subject

to both of Illinois’ NOx reduction programs:

the

“0.25

averaging” program

at 35 Ill.Adm.Code

217.Subparts V and the

“NOx trading program”

or “NOx SIP call” at 35 Ill.Adm.Code

217.Suhpart \V.

Powerton

is subject to the

federal

Acid Rain Program at Title

IV

of the Clean

Air Act and

was issued a Phase II Acid Rain Permit on March

18, 2005.

Particulate matter

less

than

2.5

microns

in aerodynamic

diameter.

2

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ELECTRONIC

FILING,

RECEIVED, CLERK’S

OFF1CE,

NOVEMBER

2,

2005

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5.

Emissions of nitrogen

oxide (“NOx”) from

the

EGUs are

controlled

by low NOx

burners and overfire air,

Emissions of sulfur dioxide

(“SO2”) from

the EGUs arc

controlled by

limiting the

sulfur content of the fuel used for the boilers,

Likewise, Powerton

monitors and

limits

the sulfur content of the fuel

oil

used at the

station

in the boilers and turbines.

Particulate

niattcr

(“PM”) emissions

from the boilers are

controlled by

an electrostatic

precipitator (~ESP”).

PM emissions resulting from the milling of pyrites

are controlled

by a haghouse.

Fugitive

PM

emissions

from various other coal and ash handling activities

are controlled through baghouses,

enclosures, 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 tank are controlled by the use of a submerged loading pipe.

Additionally, bulk distributors of the gasoline stored in the tank deliver gasoline that complies

with the applicable Reid

vapor pressure

and are

required to comply with

Stage

I

vapor control

mechanisms

and

procedures, both by

rule and by contract.

6.

The Agency received

the original

CAAPP permit application for the Powerton

Station on

September 7.

1995, and assigned Application

No. 95090074.

Petitioner substantially

updated this application March 26, 2003,

September 19, 2003

and November 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

Powerton

Generating

Station, totaling

$1.6

million

since

1995.

Powerton’s

state operating

permits have continued in lull force and effect

since submittal of the CAAPP permit

application,

pursuant to Sections 9.1(f) and 39.5(4)(b) of the Act.

3

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ELECTRONIC

FILING,

RECEIVED, CLERKS

OFFICE,

NOVEMBER

2,

2005

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7.

The

Agency

issued a final

draft permit

for public review on June

4, 2003.

The

Agency

subsequently held a hearing on

the draft

permit on August21, 2003,

in the

City of

Chicago.

which representatives of Midwest Generation attended and presented

testimony.

Midwest

Generation tiled

written comments with

the

Agency regarding

the Powerton

draft

permit on September 24. 2003.2

The Agency

issued a proposed permit for the Powerton

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 of the Clean Air

Act.

Midwest

Generation,

nevertheless,

submitted comments

on November

19, 2003.

Subsequently,

in

December 2004, the Agency

issued a drali revised proposed permit lbr Petitioner’s and other

interested persons’ comments.

Midwest Generation

again commented.

~IheAgency issued a

second

draft revised proposed permit in July

2005 and allowed

the Petitioner and other interested

persons

10

days

to

comment.

At

the same time,

the Agency released

its preliminary

Responsiveness

Summary,

which was a draft of its response to comments, and invited comment

on that document

as well.

Midwest Generation submitted comments

on 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

understanding that the Agency had

every intention

to

issue the

permit at the end of USEPA’s review period.

Midwest Generation

has attached

the

appealed

permit to this

Petition.

However,

the draft andproposed

permits and

other documents referred

to herein

should be

included

in

the administrative record

ihat the-Ageneywi-H

file.

Other documents referred

to

in

this

Petition,

such

as cases

or Board

decisions,

are

easily

accessible.

In

the

interests of economy, then,

Midwest

Generation

is not attaching such

documents to this

Petition.

4

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ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

2,

2005

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PCB 2006-059

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S.

The final permit was, indeed,

issued on

September 29. 2005.~Although some of

Petitioner’s comments have been addressed

in the various iterations of the permit,

it still contains

terms

and conditions that are not acceptable to Petitioner, including conditions that

are contrary

to applicable law and conditions that first

appeared, at least in their final detail,

in the August

2005

proposed permit and

upon

which Petitioner did

not

have the opportunity to comment.

It is

for these reasons that Petitioner hereby appeals the permit.

l’his permit appeal

is timely

submitted within 35

days following issuance

of the

permit.

Petitioner requests that the Board

review the permit,

remand it

to

the

Agency, and order

the Agency to correct and reissue the

permit, without

further public proceeding, as

appropriate.

U.

EFFE(:TIVENEsS OF

PERMIT

9.

Pursuant to Section

10-65(b) of the Illinois Administrative Procedures

Act

(“APA”),

5

ILCS

00/10-65,

and the holding in

Borg-Warner Corp.

v.

Mauzy,

427 N.E. 2d 415

(Ill.App.Ct.

1981)

(“Borg-Warner”),

the

CAAPP permit issued by

the Agency to Midwest

Generation

for

the Powerton Generating

Station does not

become effective until

after a ruling by

the Board on the permit appeal

and,

in the event of a remand,

until

the Agency has issued the

permit consistent with the Board’s order.

Section

10-65(b)

provides that “when

a licensee

has

made timely and sufficient application for the renewal ofa

license or a new license with

reference to

any activity of a continuing nature, the existing

license

shall continue in

full force

and effect until the final agency

decision on

the application has been made unless a later date is

fixed by order of a reviewing court.”

5

ILCS

100/10-65(b).

The

Borg-Warner

court

found that

with

respect to an appealed environmental permit, the “final agency decision” is the final

decision

by the Board

in an

appeal, not the

issuance of the permit by the Agency.

Borg-Warner,

See

USEPA/Region

5’s Permits website at

hup://wwwepagov/reg~~n5/r/perm

is/il

En

him

9

“CAAPP permit

Records” 9

‘Midwest Generation

EME,

LLC” for the source

located at

13082

E. Manito

Road,

Pekin,

for the complete

“trail” of the milestone action dates for this permit.

S

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ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER 2,

2005

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427 N.E.

2d

415

at 422;

see

atco

ISP,

Inc.

v.

IL Environmental

Protection Agency,

989

WL

137356

(III.

Pollution

Control

3d.

1989);

Electric

EnergI~Inc.

v. lit

Pollution Control Ba’..

1985

WI.

21205 (Ill.

Pollution Control

Bd.

1985).

Therefore, pursuant to

the APA as

interpreted

by

Borg-Warner,

the entire permit

is not yet effective and

the existing permits for the facility

continue in effect.

10.

The Act provides at Sections 39.5(4)(b) and 9.1(f) of the Act

that the state

operating permit

continues in effect

until

issuance of the CAAPP permit.

Under

Borg-Warner,

the

C.AAPP permit does

not become effective until the

Board issues

its order

in

this appeal and

the

Agency has

reissued

the permit.

Therefore,

Midwest Generation currently has the

necessary

permits

to operate the

Powerton

Generating Station.

11.

In

the

alternative,

to avoid any question

as to the limitation

on the scope of the

effectiveness of the permit

under the

APA, Midwest

Generation requests that the Board exercise

its discretionary authority at 35

III.Adm.Code

§

105.304(b)

and

stay the entire permit.

Such a

stay

is necessary to protect Midwest Generation’s right

to appeal

and to avoid the imposition of

conditions before

it

is

able to exercise that right to appeal.

Further, compliance with the myriad

of new monitoring, inspection, recordkeeping, and reporting conditions that are in the CAAPP

permit will be extremely costly.

To

comply with conditions that are

inappropriate, as Midwest

Generation

alleges below, would cause irreparable

harm to Midwest Generation, including the

imposition of these unnecessary costs and the adverse effect

On

Midwest Generation’s right to

adequate review on appeal.

Midwest Generation has no adequate remedy at law other than this

appeal to the Board.

Midwest Generation

is likely to succeed on

the merits of its appeal, as the

Agency has included conditions that do

not reflect “applicable requirements,” as defined by Title

V.

and

has exceeded its authority to

impose conditions or the conditions are

arbitrary and

6

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ELECTRONIC FILING,

RECEIVED, CLERKS OFFICE,

NOVEMBER

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capricious.

Moreover,

the Board has

stayed the entirety of all

the CAAPP permits

that have been

appealed.

See

Bridgestone/Firestone

Off Road Tire Company

v.

IF/PA,

PCB

02-3

1

(November

1,

2001);

Lone Star Industrie~Inc.

v.

IF/PA,

PCB 03-94 (January

9, 2003);

Nielsen

&

Brainbridge,

L.L. C.

v.

JEPA,

PCB

03-98 (February

6, 2003);

Saint-Gobain Container~s;Inc.

v.

iF/PA,

PCB 04-

47 (November

6.

2003);

Champion Laboratories,

Inc.

v.

IF/PA,

PCB 04-65

(January 8, 2004);

Noveon,

Inc.

v,

iF/PA,

PCB 04-102

(January 22,

2004);

Alidwest Generation, LW— Collins

Generating Station

v.

IF/PA,

PC’B 04-1 08

(January 22,

2004); Board of Trustees of Eastern

Illinois

University

p.

IF/PA.

PCI) 04-110

(‘February 5, 2004~Ethyl Petroleum Additives,

Inc.,

v.

IF/PA,

PCB 04-113

(February 5, 2004);

Oasis industries,

Inc.

v.

IEPA,

PCB

04-116 (May 6,

2004).

The Board should continue to

follow this precedent.

12.

Finally, a large number of conditions included in

this CAAPP permit

are

appealed

here.

To require some conditions of the CAAPP

penflit to

remain in effect while the contested

conditions are

covered by

the old

state operating permits

creates an administrative environment

that would be, to say the least, very confusing.

Moreover, the Agency’s failure to provide a

statement of basis,

discussed below, renders the entire permit defective.

Therefore, Midwest

Generation requests

that the Board stay the

entire permit for these reasons.

13.

In sum, pursuant to

Section

10-65(b) of the APA and

Borg-Warner,

the

entirety of

the CAAPP permit does

not become effective until the completion of the

administrative process,

which occurs when the

Board has issued its final

i-thing on the appeal and the Agency has acted

on

any remand.

(For the sake of simplicity, hereafter

the effect of the APA will be referred to as

a “stay.”)

In

the alternative,

Midwest Generation requests that the

Board, consistent with its

grants of stay in other CAAPP permit appeals because of the pervasiveness of the conditions

appealed throughout the permit, to protect Midwest

Generation’s right to appeal and in the

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interests of administrative eluiciency, stay the

entire permit pursuant to its

discretionary authority

at 35

Ill.Adm.Code

§

105.304(h).

In addition, such a stay will minimize

the risk ofuirnecessary

litigation concerning the question

of a stay and expedite resolution of the

underlying stihstantive

issues.

The state

operating permits currently in effect

will

continue in effect throughout the

pendency of the appeal and

remand.

Therefore, the Station will remain subject

to the

terms and

conditions of those permits~ As the CAAPP permit cannot

impose new substantive conditions

upon a perniittee

(see

discussion below), emissions

limitations

are the same under both permits.

The enviromnent will

not

he

harmed by a stay

of the CAAPP permit.

III.

ISSUES ON APPEAL

(35 I!L.Adm.Code §~IO5.304(a)(2),

(3),

arid

(4))

14.

As a preliminary mutter,

the CAAPP

permits issued to the

Powerton Generating

Station

and 20 of the other coal-fired power plants

in the state

on

the

same date are very

similar

in

content.

The same langua~eappears in virtually

all

of the

permits, though

there are

subtle

variations to some

conditions to reflect the elements oluniqueness that are true at the stations.

For example, not

all stations have the same types of emissions units.

Some units in the state are

subject

to

New Source Performance

Standards (“NSPS”), perhaps New Source Review (“NSR”)

or Prevention of Significant

Deterioration (“PSD”),

or oilier state or

federal

programs,

while

others are

not.

Applicable requirements may differ because of geographic location.

As a result,

the appeals of these permits

filed with

the Board will

he equally as repetitious with elements of

uniqueness reflecting the stations.

Further, the

issues on appeal

span the gamut of simple

typographical errors to extremely complex questions of law.

Petitioner’s presentation in this

appeal

is by

issue per

wiit type,

identifying the permit conditions giving rise to the appeal and the

conditions related to them that would be affected,

should the

Board

grant Petitioner’s appeal.

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Petitioner appeals all

conditions related to the conditions giving rise to the appeal,

however,

whether such related conditions are expressly identified

or not below,

15.

The Act does not require a perrnittee to have participated in the

public process;

it

merely needs to object,

after issuance, to a term or condition in a permit in order to have standing

to appeal the permit issued to him.

See

Section 40.2(a)

of the

Act (the

applicant may appeal

while others need

to have participated in the public process).

However,

Midwest Generation, as

will he evidenced

by the administrative record, has actively participated to the extent allowed by

the Agency in the development of this permit.

In some instances., as discussed

in further detail

below, the

Agency did not provide Midwest Generation With a viable opportunity to comment,

leaving Midwest Generation with appeal as

its only alternative as

a means ofrecti~ving

inappropriate conditions.

These

issues arc properly before the Board in this proceeding.

16.

Section 39.5(7)(d)(ii) of the Act grants the Agency the authority to

“gapflll.”

“Gaplilling” is the inclusion

in

the permit of periodic monitoring requirements, where the

underlying applicable requirement does

not include them,

This

language faithfully reflects 40

CFR

§

70.6(a)(iii)(B), the subject of litigation

in

Appalachian Power

Company v

EPA.

208 F.id

1015 (D.C. Cir. 2000).

The court in

Appalachian Power

found that state authorities

are

precluded

from including provisions in permits requiring more frequent monitoring4 than is

required in the underlying applicable requirement unless the applicable requirement contained no

periodic testing or

monitoring, specified no frequency for testing or monitoring, or required only

a one-time

test.

Appalachian Power

at

1028.

17.

The

Appalachian Power

court also noted that “Title V does not impose

substantive new requirements” and that test methods

and the frequency

at which they are

required “are surely ‘substantive’ requirements;

they impose

duties and obligations on those

who

Note that testing

may

be

a type of

monitoring.

See

Section

39.5(7)(d)(ii) of the Act.

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are regulated.’’

Appalachian

Po~ier

at

1026—27.

(Quotation marks and citations

in original

omitted.)

thus, where the

permitting authority, here the Agency, becomes

over-enthusiastic in

its gaplilling,

it

is imposing new substantive requirements contrary to Title V.

18.

The

Agency, indeed,

has engaged in

gapihling.

as some

of the Board’s underlying

regulations do not provide specifically

for periodic monitoring.

(‘f,

35

Ill.Adm.Code

212.SubpartE.

However, the Agency has also engaged in over-enthusiastic

gapfihling

in some

instances,

as discussed in detail below.

These

actions are arbitrary and capricious and

are an

unlawful assumption of regulatory authority not granted by Section

39.5

of the

Act.

Moreover,

contrary to

Appalachian

Power,

they, by

their nature,

unlawfully constitute the imposition of

new substantive requirements.

Where Petitioner identifies inappropriate gapfilling as the basis

fir

its objection

to a term or condition of the permit,

Petitioner requests that the Board assume

this preceding

discussion of gapfilling as part of that discussion of the specific term or condition.

19.

In

a number of instances specifically identified

and discussed

below,

the Agency

has

failed

to provide required citations

to the applicable requirement.

“Applicable requirements”

are those substantive requirements that have been promulgated or approved by

LJSEPA pursuant

to the Clean Air Act which directly impose requirements upon a source, including those

requirements set forth in the statute or regulations that are part

of the

Illinois SIP.

Section

39.5(1).

General procedural-type requirements or

authorizations are not substantive “applicable

requirements” and are not sufficient basis for a substantive term

or condition in the permit.

20.

The Agency has cited generally to Sections 39.5(7)(a),

(b), (e), and (I) of the Act

or to

Section 4(b) of the

Act, but

it has not cited to the substantive applicable requirement that

serves as

the basis for the contested condition in the permit.

Only applicable requirements may

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be included

in

the permit,5 and the Agency is required

by Title

V to identify

its

basis for

inclusion ofa

permit condition (Section 39,5(7)(n)).

Ifihe Agency

cannot cite to

the applicable

requirement and the condition is not proper

gaptilling, the condition cannot be

included

in the

permit.

‘l’he

Agency has confused general

data- and inthrmation-gathering authority with

“applicable requirements.”

They are not the same.

Section 4(h) of the Act cannot he converted

into an applicable requirement merely because the Agency includes

it

as the

basis for

a

condition.

Failure to cite the applicable requirement

is grounds for the Board to

remand the term

or

condition to the Agency.

21.

Moreover, the Agency’s

assertion

in the

Responsiveness Summary that its general

statutory authority serves

as its authority to include conditions

necessary to “accomplish the

purposes of the Act” misstates what is actually in the

Act.

Responsiveness Sumniary. p.

15;

see

Section 39.5(7)(n).

Section 39.5(7)(a) says that the permit is to contain conditions

necessary to

“assure compliance with all applicable requirements.”

(Emphasis added.)

For the Agency

to

assume broader authority than that granted by the Act

is unlawful and arbitrary and capricious.

22.

Another general deficiency of the CAAPP

permitting process in Illinois is the

Agency’s refusal to develop and issue a formal

statement of basis for the permit’s

conditions.

This statement of basis

is to

explain

the permitting authority’s rationale for the terms and

conditions of the permit.

It is to explain why the Agency

made the decision it did, and it is to

provide the permittee the opportunity to challenge

the Agency’s rationale during the permit

development process or comment period.

Title

V requires the permitting

authority to

provide

such a statement of basis.

Section 39.5(7Xn) of the Act.

The Agency’s after-the-fact

conglomeration

of

the very short project summary produced at public notice, the permit,

and the

Responsiveness Summary are just not sufficient.

When the permittee and the public

are

5Appalachian Power,

208

F.3d

at

1026.

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questioning rationale

in comments, it

is evident that the Agency’s

view ofa

statement

olbasis is

not sufficient.

Further, the Responsiveness

Summary is prepared after

the fact;

it

is

not provided

during permit development.

Therefore,

it

cannot serve

as the statement ofbasis.

The

lack of a

viable statement of basis, denying the permittee notice of the Agency’s

decision-making

rationale and the opportunity to comment thereon,

makes the entire permit defective

and is, in

and of itself, a basis

for appeal

and remand of the

permit and stay of the entire

permit.

A.

Issuance and Effective Dates

(Cover

Page)

23.

The

Agency

issued the CAAPP permit that is the subject of this appeal

to

Midwest GcnerationfPowcrton

Generating Station

on

September 29, 2005,

at 7:18 p.m.

The

Agency notified Midwest Generation that the permits had been

issued through

emails sent to

Midwest Generation.

The email

indicated that the permits

were

available on USEPA’s website,

where Illinois’

permits are housed.

However, that was

not

the case.

Midwest Generation was

not able

to

locate the permits

on the website

that evening.

24.

The

issuance date

of the

permits becomes

important because that is also the date

that commences the computation of time for filing an appeal of the permit and for submitting

certain documents, according to language

in the permit,

to the

Agency.

IJSEPA’s website

identifies that date

as September

29,

2005.

If that date

is also the

effective date, many additional

deadlines

would be triggered, including the

expiration date

as well

as

the date by which certain

other documents must be submitted to the Agency.

More critical, however,

is the fact that once

the permit becomes

effective, Midwest Generation is obliged

to comply with it, regardless of

whether it has any recordkeeping 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,

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the

Agency issued

numerous versions oithe permit, and

it has changed considerably.

iheretbrc,

it

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 pernut on a website

is not “official” notification in

Illinois.

The company cannot be

deemed

to

“have” the

permit until the original, signed version

of the permit has been delivered.

Neither Illinois’

rules nor the Act have been amended to reflect

electronic delivery of permits.

Therefore,

until

the permit is officially delivered

to the company,

it should not be deemed effective.

Powerton’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.

Under ~1itieV,

not

only the Agency through the Attorney General, hut also USEPA and the general

public can bring

enforcement suits for violation

of the

least matter in Ihe

permit.

If the issuance date is the

effective date, this has the potential

for tremendous

consequences to the permittee 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 (cf

Condition

7.1.10-

2(a)),

for the third quarter of 2005, consisting of less than 30 hours of operation. The

requirement

to perform quarterly monitoring,

recordkecping, and reporting for a quarter that consists of less

than 30 hours of operation, assuming the permittee would even have compliance systems in

place so quickly after issuance of the permit, is

overly burdensome and would not benefit the

environment in any manner.

Therefore, the requirement

is arbitrary and capricious.

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28.

A more equitable and

legal

approach would he

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.

so that an appeal

can stay the permit until

the Board can

rule.

29.

Consistent with the

APA, the effective date of the permit, contested

herein,

is

stayed, and Midwest Generation requests that the

Board order the Agency to establish an

effective date

some period of time after the permittee

has received the permit following remand

and reissuance of the permit to allow the

permittee sufficient

time to implement

the systems

necessary to comply with all requirements in

this very complex permit.

B.

Overall Source Conditions

(Section 5)

(i)

Recordkeeping of and Reporting HAP Emissions

30.

The CAAPP permit

issued to the

Powerton Generating Station

requires Midwest

Generation

to keep

records of emissions of mercury, hydrogen

chloride, and hydrogen fluoride

—

all

FlAPs

—

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

~

(b), and

(e) of the

Act.

Citations merely to the general provisions of the Act do not create

an “applicable

requirement.”

3 1.

In

fact, there is

no applicable requirement that allows the Agency to require this

reeordkeeping and reporting.

There are no regulations that limit emissions of I-lAPs from

the

Powerton 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

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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 disctission 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(h) and its authority to gapfihl to assure

compliance with the permit with the limitation on

its authority

under Title

V

to include g~jy

“applicable requirements” in a Title

V

permit.

See

Appalachian Power.

Even by including only

recordkeeping and reporting of HAP emissions

in the permit, the

Agency has exceeded its

authority just as seriously as if it had included emissions limitations

for FlAPs in the permit.

Section 4(b) does not provide the authority to impose this condition in a CAAPP

permit.

32.

Further, the Agency’s own regulations, which are part of the approved program

or

SIT’ for its Title V program, preclude the Agency from

requiring the recordkeeping and reporting

of HAP

emissions that it has included at Conditions

5.6.1(a)

and (b)

and 5.7.2.

The Agency’s

Annual Emissions Reporting rules,

35 l(I.Adm,Code Part 254, which Condition

5.7.2

specifically

addresses, state as

follows:

Applicable Pollutants

for Annual

Emissions Reporting

Each Annual Emissions

Report shall

include applicable

information for all regulated air pollutants,

as defined in Section

39.5

of theAct

415

ILCS

5139.5,

exceptforthe following

b)

A hazardous air pollutant emitted

by an emission unit that

is not subject to a National Emissions Standard

for

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Hazardous Air

Pollutants (NESHAP) or maximum

achievable control

technology (MACI).

For purposes of

this subsection

(b),

emission units that are not required to

control or limit emissions hut

are

required to monitor, keep

records,

or undertake

other specific activities are

considered subject

to such regulation or requirement.

35 Ill.Adin.Code

§

254.120(h).

(Brackets in original; emphasis added.)

Power plants are not

subject

to any NESIIAPs

or MACF standards.

See 69

Fed.Reg.

15994 (March 29, 2005)

(USEPA ~thdraws

its listing of coal-fired

power plants under Section

112(e) 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

1-lAP emissions.

~l

heretbre, pursuant to

the provisions of

§

254.120(h) 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

56.1(a) and (h)

in toto

and Condition

5.7,2

as

it relates

to reporting emissions of

I lAPs

in the Annual

Emission Report,

contested herein, are

slayed, and Midwest Generation requests

that

the Board order the Agency to amend the permit

accordingly.

(ii)

Retention and Availability of Records

34.

Conditions

5.6.2(b) and (c) switch the

burden of copying records the

Agency

requests

from the Agency, as stated in Condition

5.6.2(a).

to the permittee.

While 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

or verbal requests for copies of records

will

generally occur at

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

18)

(emphasis added),

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.

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Moreover,

most of the electronic records are already available to the Agency through

its own or

USEPA’s databases, and where this is the ease, Midwest Generation should not be required to

again provide the data absent

its

loss

for some

unthreseen reason, and certainly should not to

have

to print out the information.

Fluiher,

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(h) 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 ofthe records

that are required by

Conditions 7.1,9, 7.2.9,

7.3.9, 7.4.9,

7.5.9, 7.6.9,

and 7.7.9.

However, upon rereading Condition

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 is unacceptable, as

the Agency does not have

the authority

to

oversee how Midwest Generation conducts

its internal methods of compliance.

There is no basis

in

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 in

doing

so.

Absent a statutory grant or the promulgation of reporting

formats through rulemaking,

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the Agency has

no authority to oversee the

development of recordkeeping or reporting formats.

The Agency has the authority

to require that certain information be reported but

cites

to no

authority,

because there is none,

to

support this condition.

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 V.

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 requirenients in the permit

in

order to

assure that they are

adequate.

However,

there is no regulatory or statutory basis

for the Agency to do this, and

it has cited

none.

Moreover,

if the

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

adequacy of

recordkeeping, then without

inherent knowledge of all

the details of any given

operation.

it

will

he 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

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 hears,

39.

Further.

if the

company is concerned with the adequacy of its planned

reeordkeeping,

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 be that by providing blank

recordkeeping forms to the Agency, absent a communication from the Agency that

they are

inadequate, enforcement against

the permittee

for inadequate recordkeeping

is barred,

so long as

the

forms are

filled out,

because they are

covered by

the permit shield.

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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,

as

granted at Section 40.2 of the

Act.

The Act allows permittees 35

days in which to appeal conditions of the permit to which it

objects.

The Agency’s requirement at Condition 5.6.2(d) that Midwest Generation submit blank

forms within

30 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 fully preserve

its rights.

Although the condition is stayed,

because the appeal

may not

he filed until 35 days after issuance, there could at least

be a question

as to whether 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,

hut

it

is improper to even create this uncertainty.

This

denies Midwest Generation due process

and so

is unconstitutional, unlawful, and arbitrary and capricious.

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 if the

Agency fails to

communicate any inadequacies it finds

in blank reeordkeeping forms submitted

to it, enforcement against Midwest Generation for inadequate records is barred, so long

as those

records were completed, as

a part of the permit shield.

C.

NOx

SIP Call

(Section

6.1)

42.

Condition 6.1.4(a)

says, “Beginning

in 2004, by November

30 of each year

While this is a true statement,

i.e.,

the NOx trading program in Illinois commenced in 2004, it is

inappropriate for the

Agency to include in the

permit a condition with a

retroactive

effect.

By

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including this past date

in an enforceable permit condition, the Agency has exposed Midwest

Generation to potential

enibreement under

this permit for acts

or omissions

that occurred prior

to

the efièctiveness of this permit.

It is unlawful

for the Agency to require retroactive compliance

with past requirements in a new permit condition.

Lake

Envit,

Inc.

v.

The State a/Illinois,

No.

98-CC-5179, 2001

WL 34677731,

at *8

(lll.Ct.C.

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.

his

language should he changed to refer to the

first ozone season occurring upon

effectiveness of the

permit, which,

for example,

ifthe permit appeal

is resolved hefore 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.

43.

For these reasons,

Condition 6.1.4(a)

is

stayed pursuant to

the APA, and Midwest

Generation requests that the

Board order the Agency

to amend

the language to avoid retroactive

compliance with past requirements.

0.

Boilers

(Section

7.1)

(1)

Opacity as

a

Surrogate for PM

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.

However, in the

iterations of the

permit

since

the publication of the October 2003 proposed permit, the Agency has developed an

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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 identifr the opacity measured at the

95111

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

rn~a

have

been an

exceedance

of the

PM limit without

regard for the realistic potcntiat Ibr a PM

exceedance.

These reporting

requirements

are quite onerous, particularly for the units that tested at the

lowest levels of PM

and opacity.

‘l’he

inclusion of these conditions exceeds

the scope of the

Agency’s authority to

gapfill and so are arbitrary and capricious and must be stricken from the

permit.

45.

‘l’he 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)(13), also

linked to Conditions 7.1.4(h) and

7.1.9(c)(ii); 7.1.10-1(a),

linked to

Condition 7.1.10-3(a); 7.1 .10-2(a)(i)(E),

linked to

Conditions

7,1 .9(c)(iii)(B)

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 exceedanees and speculation

as to the causes of the

exceedances;

7.1.1 0-2(d)(v)(1)), requiring a description of actions taken to reduce opacity and

PM exceedances and anticipated effect

on future exceedances; 7.1.l0-3(a)(ii),

requiring follow-

up reporting within

15 days after an

incident during which there may have been

a PM

exceedance based

upon this upper bound of opacity; and 7.1.12(h), relying

on continuous opacity

monitoring pursuant to Condition 7,1.8(a), PM testing to determine the upper bound of opacity,

and the recordkeeping conditions described above to demonstrate compliance with the PM

emissions limitation.

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46.

No one

can provide a reliable, exact

PM concentration level

anywhere in

the

United States today outside

of stack testing.

Obviously,

it

is

impossible to continuously test a

stack to determine a continuous level

of PM emissions,

and it

would be unreasonable

for the

Agency

or anyone else

to expect

such.

Pursuant to some of the consent decrees settling a

number of

USEPA’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

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 ease in which government or

citizens

suing under Section

304 of the Clean Air Act have relied

upon PM CEMS as the basis of

a case for PM violations.

.As a result, sources must rely

upon the continuity

or consistency of

conditions

that occurred during a successful

stack test

to provide reliable indications of PM

emissions

levels.

47.

1-listorically, opacity has never been used

as a reliable, quantitative surrogate for

PM emissions levels.

The Agency itself acknowledged

that opacity is not a reliable indicator of

PM concentrations.

See

Responsiveness

Summary, pp.

15-16, 42-44.~Midwest Generation

agrees with

the Agency that

increasing opacity may indicate that PM emissions are increasing,

6

Cf

¶

89 oF

the consent decree entered

in

(1.5

.v.

Illinois Power Company,

Civ. Action

No.

99-833-MJR

(S.D.

Ill.),

found in

the Agency’s administrative record of Dynegy

Midwest Generation’s (‘Dynegy”) appeals of its

permits,

filed

on

or about the same day as this appeal.

See

Administrative

Record.

‘The

Agencys requirement

that

Dynegy

rely on

uncertified PM

CEMS

is

included in

Dynegy’s appeals.

“Sening

a specific level of opacity that

is

deemed to be equivalent to

the applicable

PM emission

limit.

is

not possible on

a variety of levels

It would

also

be inevitable

that such

an action would

be flawed

as the

operation ofa

boiler may

change

over time

and the coal sapply

will

also

change, affecting the nature

and quantity of

the ash loading

to the ESP,

‘fhese type of changes cannot be

prohibited,

as

they

are inherent

in the routine

operation

of coal-fired power plants.

However,

such changes could

invalidate any pie-established opacity

value.”

Responsiveness Summary, p.

44.

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Nut this

is not always the case nor is a given opacity level

an

indicator ofa

given

PM

level at any

given time, let alone at different times.

Midwest

Generation’s current operating

permits require

triennial

PM

stack testing, to he performed within

120 days prior to expiration of the permit,

which has an expiration date three years

following issuance.

This

mequirenient comprises

periodic rnonitodng.

Relying on stack

testing and operational practices

is currently the

best and

most appropriate

approach to assuring compliance with PM emissions limitations.

Moreover, the

compliance method

for I’M

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 exeeedance of PM based upon opacity, opacity has been quantitatively tied to

PM conipliance.

Further, the opacity level

triggers

reporting that the opacity/PM

surrogate level

has been

exceeded and so there may have been an

exceedance of the PM level regardless of any

evidence

to the contrary.

For example, if the

opacity/PM surrogate level of.

say,

15

is

exceeded, this must be reported despite

the

fact that all

fields in the electrostatic precipitator

were on and operating, stack testing

indicated that the PM emissions

level at the

95th percentile

confidence interval is 0.04 lb/mmBtu/hr, and the

likelihood that there was an cxceedance of the

PM emissions

limitation of 0.1

lb/mmBtulhr 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 gapiilling authority aM is,

thus,

unlawful and arbitrary and

capricious.

Moreover, this unnecessary

reporting requirement

is a new substantive requirement,

according

to

Appalachian Power,

not allowed under Title

V.

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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 FSP

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 yen’ low

opacity and very

low PM emissions levels are

the units for which this additional

reporting will

be

most

frequently triggered.

For example,

stack

testing atone of Midwest Generation’s units

measured

PM

emissions of 0.008

lb/mmBtu and the opacity during the test at the

95th percentile

confidence

interval was

1.

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

of 2005, stating that the

unit

~

have exceeded the

PM.

Clearly, this condition will result in

overly burdensome reporting that serves no purpose.

As such, it exceeds the Agency’s authority

to gapfill,

is unlawful,

and is

arbitrary and capricious.

50.

Further, this condition effectively creates

a false low opacity limitation.

In

order

to avoid

the implication that there may have been an

exceedance of the PM limit, the opacity

limit becomes that level that is the upper bound at the 9S~percentile confidence interval in the

PM te5ting.

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

Appalachian Power.

51.

These conditions invite

sources to

perform stack testing

under operating

conditions that are less than normal, i.e.,to “detune” the

units, to push the

bounds of compliance

with the I’M limit

in order to avoid the unnecessary recordkeeping and reporting the conditions

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require, particularly

for the typically best operating units.

That

is,

to

identify more realistically

the

operating conditions

that would

result in eniissions

closer to the PM limit,~Midwest

Generation would have to perform

stack tests with

sonic elements of the ESP turned oft, even

though they would not

he turned off during 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 rccordkccping 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 he the antithesis of good air

pollution control practices,

yet this

is what the Agency

is essentially demanding with these

conditions.

Moreover,

arguably, sources could operate

at these detuncd levels

and still be

in

compliance with their

permits and the underlying regulations hut 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(7)(d)(ii) of the Act

according to the

Appalachian Power

court.

In fact, “periodic stack testing,” is the Agency’s own

phrase in Condition

7.1 .7(a)(iii) and is consistent with the

findings of

Appalachian Power.

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

Midwest

Generation’s

policy

is that the boilers be

operated

in

a compliant manner.

During

stack tests,

Midwest Generation has consistently

operated the boilers

in a normal

mode, meaning that all

pollution control

devices are operating,

the boiler

is operating at normal

and maximum load,

and

so

forth.

PM test

mesults typically

are nowhere near the

PM

limit.

PM

emissions

levels during

Powerton’s last stack

test

were

0.033 lb/mmBtu

for

Unit

5 and 0.011

lb/rumBa

for

Unit

6,

well

in compliance

with the PM

limitation..

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the incidents

cnn he 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 to

Condition

7.1.1 0-2(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.l.9(c)(ii) denies

Midwest Generation due process.

Condition

7.1 .9(c)(ii) requires that the

Iriecords

.

.

.

that identify the

upper bound of the 95

confidence

interval

(using a normal

distribution and

1

minute averages)

for

opacity

measurements

.

.

.

,

considering an hour of operation,

within which compliance with the

PM

limit

is assured,

with

supporting explanation and documentation

shall

be submitted

to the Illinois EPA

in accordance

with Condition

5.6.2(d).

55.

Obviously,

ifCondition 5.6.2(d) denies Midwest Generation due process,

Condition 7.1 .9(c)(ii) does

as well

for the same reasons.

Midwest Generation was

not

granted

the

opportunity to appeal the condition

before

it

was required to submit to

the Agency

information that Midwest Generation believes

is not

useful or reliable,

Midwest Generation is

particularly loathe to provide the Agency

with

this

information because

it believes

that the

information

will

be misconstrued and misused.

56.

Finally, Condition

7.1 .l0-2(d)(vi) requires Midwest Generation to submit a

glossary of ‘common technical

terms used

by

the Pcrmittee”

as part

of its reporting of

opacity/PM exceedance events.

If the terms are “common,”

it eludes Midwest

Generation as to

why, then, they require definition.

Moreover, this requirement does

not appear

anywhere else in

the permit.

If”common technical terms” do

not require definition in other contexts in this

permit, then surely they

do

not require definition in

this context.

This requirement should be

deleted from the

permit.

57.

Consistent with the APA, Conditions

7.1 ,9(c)(ii), 7.1.9(c)(iii)(B),

7.1.10-1(a),

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

7.1 .l0-2(d)(iv), 7.1 .10-2(d)(v).

7.1 .10-2(d)(v)(A),

7.1.1 O-2(d)(v)(B), 7.1.10-

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

7.1.1 0—2(d)(vi),

7.1.1 0—3(a)(ii).

and 7.1.12(h). 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 ofPM

Emissions

58.

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)(5), 7.1 .9(h)(ii)(D)(3), and

7.1.1

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

Compliance with

these conditions

is an

impossibility and,

therefore, the inclusion of these 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

opacity surrogate.

‘There is not a certified, credible, reliable alternative

to

stack testing to

measure PM emissions.

59.

Additionally, Condition

7.1.1 0-2(d)(iv)(A)(5) requires Midwest Generation to

identify “the

means by which the exceedanee

of

the PM emissions

limit

was indicated or

identified, 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

in

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 to determine there was an exceedance of the

PM limit.

Besides stack testing

or perhaps total shutdown of the BSP, there are

none.

60.

Consistent with the APA,

Conditions 7.1 .9(g)(i), 7.1.9(g)(ii)(C)(5),

7. 1.9(h)(ii)(D)(3), and 7.1. lO-2(d)(iv), specifically 7.1. lO-2(d)(iv)(A)(3) and (5), contested

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herein, are stayed. and Midwest Generation requests

that

the

Hoard order the Agency

to delete

these conditions from

the permit.

(iii)

PM

Testing

61.

Midwest Generation interprets the

language in Condition 7.l.7(a)(i)

to mean that

stack testing that occurs

afler December 31, 2003.

and before

March 29, 2006, satisfies the initial

testing requirement included in the permit.

However,

the

language is

not perfectly clear and

should be clarified.

62.

Ihe

Agency has included a requirement in the permit at Condition

7.1 .7(h)(iii)

that Midwest Generation perform testing

for PMIO condensibles.1° First, this requirement

is

beyond the scope of the Agency’s authority

to

include in a CAAPP permit, as

such testing

is not

an “applicable requirement,”

as discussed in detail below.

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)’~’tis not clear as

to the

timing of the reqtured testing,

largely

because Condition

7.1 .7(a)(i)

is not clear.

63.

With respect

to

the inclusion of the requirement for Method 202 testing at

Condition 7.l.7(b)(iii) at all

in a CAAPP permit, the Agency has exceeded its authority,

and the

requirement should be

removed from

the permit.

At the least, the requirement should he set

aside in a state-only portion of the

CAAPP permit, although

Midwest Generation believes its

inclusion

in any permit would be inappropriate because there is no regulatory requirement that

applies PM 10 limitations to the Powerton Generating

Station..

In response to

comments

on this

point, the Agency stated in the Responsiveness Summary

at page

18,

“The requirement for using

°

Condensjb/e

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, ‘hich

is

the preferred spelling

in the Wcbsters

dictionary.

See

35

lll.Adin.Code

§

212.108.

°

The asterisk

is

in

the permit.

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both Methods

5

and 202 is authorized

by Section

4(h) of the

Environmental

Protection Act.”

Midwest Generation does not question the Agency’s authority

to gather information.

Section

4(h) 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 thr the operation

of devices for

the

monitoring of environmental

quality:

415

ILCS

5/4(b).

Flowever, this authority does

not make testing for PMIO condensibles an

“applicable requirement” under Title V.

As discussed above, an “applicable requirement” is one

applicable to the permittee pursuant to a federal regulation or a SIP.

64.

Further, simply because

Method 202 is one of USEPA’s reference methods does

not make

it

an “applicable requirement” pursttant to Title

V,

as the Agency suggests in the

Responsiveness

Summary.

The

structure of the Board’s PM regulations establish the applicable

requirements for the Powerton Generating Station.

The Powerton

Generating Station

is subject

to the requirements of 35

Ill.Adm.Code 212.Suhpart E,

Particulate Matter Emissions from Fuel

Combustion Emission Units.

It is not and never has been located in a PM10 nonattainment

area.

2

The

Board’s PM regulations are

structured such that particular PMIO

requirements apply

to identified sources located

in the PMIO nonattainment areas.t3

No such requirements apply

now or have ever applied to the Powerton Generating Station.

65.

The measurement method for PM, referencing only Method

5

or derivatives of

MethodS,

is at 35

Ill.Adm.Code

§

212.110.

This section of the Board’s rules applies to the

2

In fact,

there are no more

PMIO nonattainment areas

in

thestate.

See 70 Fed.Reg. 55541

and 55545

(September

22,

2005),

redesignating to attainmentthe Mccook

and Lake Calumet nonattainment areas, respectively.

i3

Presumably,

these sources will

remain

subject to those

requirements as part of Illinois’

maintenance

plan.

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Powerton

Generating Station.

The measurement method for PM 10, on the other hand,

is found

at 35

lll.Adm.Code

§ 212.108,

Measurement Methods

for PM-lU Emissions and Condensible

PM-lU Emissions,

This

section references

both

Methods 5

and

202. among others.

Not subject

to PMIU limitations, the Powerton Generating Station

is

not subject

to

§

212,108. contrary

to the

Agency’s attempt

to

expand its

applicability

in the

Responsiveness Summary by stating,

“Signifleantly, the usc of Reference Method 202 is not limited

by geographic area

or regulatory

applicability.”

Responsiveness Summary, p.

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 PMI 0

condensibletesting when

the limitations applicable to the source

pursuant to 2l2.Subpart

E are

for only PM.

p~ PMIO.

Therefore,

there

is

no

basis

for the

Agency to require in the CAAPP permit,

which is limited

to

including ~j~v applicable

requirements and such

monitoring, reeordkeeping, and reporting that

are necessary to assure

compliance, that the Powerton

Generating Station

be tested

pursuant to

Method 202.

66.

The

Agency even concedes in the Responsiveness

Summary that Method

202 is

not

an applicable requirement:

The inclusion of this requirement in these CAAPP permits, which

relates to full and complete quantification of emissions, does not

alter the test measurements that are applicable for determining

comp,liance with PM emissions

standards and limitations,

which

generally do

not

include condensable sici

PM emissions,

In

addition, since condensable

sic

PM emissions are not subiect

to

emission standards.

Responsiveness Summary, p.

18.

(Emphasis

added.)

Further, the Agency says,

“Regulatorily,

only filterable114’ PM emissions

need to be measured,”

Responsiveness Summary, p.

18.

The

Agency attempts to justify inclusion of the requirement for testing

condensibles by

stating that

4

ic..

non-gaseous PM:

condetisibles

are gaseous.

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the data are needed

to

“assist in conducting assessments of the air quality

impacts of power

plants,

including the Illinois EPA’s development of an attainment

strategy for PM2 .5” or

by

stating that “the use of Reference Method 202

is not limited

by geographic area or regulatory

applicability.”

Responsiveness Summary, p.

18.

Under the Board’s rules,

it

is

limited to testing

for PM, and so, at least in Illinois, its

“regulatory applicability”

is,

indeed, limited.

These

attempted justifications do not convert testing

for condensibles into

an applicable requirement.

67.

While the Agency has a duty under Section 4(b) to gather data,

it must

be done in

compliance with Section 4(b).

Section

4(b),

however, does

not create or authorize the creation of

perniit conditions.

1’he Board’s rules serve

as the basis for permit conditions.

Therefore,

Midwest Generation does

dispute that requiring

such testing in the CAAPP permit is

appropriate.

In

fact,

it

is definitely not appropriate.

It is

unlawful and exceeds the Agency’s authority.

68.

The requirement for Method 202

testing niust be deleted from

the permit.

Consistent with the APA, Condition

7.1 .7(h)’~and the inclusion of Method

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 requirement for Method

202 testing from

the

permit.

(iv)

Measuring CO Concentrations

69.

The CAAPP permit issued to the Powerton Generating Station requires Midwest

Generation to conduct, as a work

practice, quarterly “combustion evaluations” that consist of

“diagnostic measurements of the concentration of COin the flue gas.”

See

Condition 7.1.6(a).

See also

Conditions 7.1.9(a)(vi) (related recordkeeping 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 to assure compliance with the underlying

standard,

is not required by the Board’s regulations, and, therefore,

exceeds the Agency’s

authority to gapflll,

Maintaining compliance with the CO

limitation has historically been a work

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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 Powerton’s

best interests

to

operate its

1~

oilers optimally

and because ambient

CO

levels are so low,15 compliance with the

CO limitation has been

accomplished through combustion optimization

techniques historically at

power plants.

There

is no reason

to change this practice at this point.

Ambient air quality is not

threatened,

and slack testing has demonstrated that emissions

of CO

at the Powerton

Generating

Station, at 5.3

ppm at UnitS

and

10.4

ppm

at Unit 6 during the latest stack lest, are significantly

below the standard of 200

ppm.

70.

In

the

case of

CO.

requiring the

Stations to purchase and install equipment to

monitor and record emissions ofa

pollutant that stack testing demonstrates they comply with

-~

by a comfortable margin

—

and for which the ambient air quality is in compliance by a huge

margin

is overly

burdensome and, therefore, arbitrary and capricious.

In order to comply with

the “work practice”16 of performing “diagnostic testing” that yields a concentration of CO,

Midwest Generation must purchase and install

or operate

some sort of monitoring devices.

One

of the Powerton units has CO duct monitors that could be

used to comply with this requirement.

The

other unit at the Powerton Generating Station, however, does

not have CO

duct monitoring

capability,

and neither unit has such

monitoring capability in the stack.

Therefore,

Midwest

IS

The highest one-hour

ambient measure of CO

in the state

in 2003 was

in

Peoria:

5.3

ppm; the highest

8-

hour ambient measure

in

the state was

in Maywood:

3.5

ppm.

Illinois Environmental

Protection Agency,

illinoLs

Annual Air Quality

Report

2003,

Table 87,

p.

57,

The one-hour standard

1s35

ppm,

and the 8-hour ambient

standard

is

9

ppm.

35

1ll.Adni.Code

§ 243.123.

Note:

The

illinois

AnnualAir Quality

Report 2003

is the latest

available data on

Illinois EPA’s

website

at www.eQa~iatc.il.us4

Air 4

Air Quality

Information 4

Annual Air

Quality

Report-) 2003

Annual

Report.

The 2004

report

is not yet available.

‘~

Midwest Generation questions how the requirement thai

the Agency has included

in Condition

7.I.6(a)

is

classified as

a “work practice.”

To derive

a concentration of CO emissions, Midwest Generation will have to

engage

in

monitoring or

testing

—

the work practicc of combustion

optimization

that hasbeen the standard

historically.

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Generation is effectively

required to purchase and inslall at

least one monitoring

device to

comply with this condition with no environmental purpose served,

7L

Furthermore, the Agency has thiled

to provide

any guidance as

to how to

pertbrm

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 he 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

conceniration of CO

in

the flue gas

can

be 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.

72.

In

addition, the permit requires at Conditions

7.1 .9~(i).7.1 .9(g)(ii)(C)(5), and

7.1.9(h)(iD(D)(3)17 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 utilize for the

quarterly diagnostic evaluations required by Condition

7.1.6(a) is a portable

CO

monitor.

So far

as

Petitioner knows, portable CO monitors are not

equipped with continuous

readout recordings.

Rather, they must be manually read.

What the

Agency

is effectively requiring through 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

CO

monitorduring startup,

which could take as

long as

24 hours, and during malfunctions and

breakdowns, which are

by their nature not predictable.

In the first ease (startup),

the requirement

is unreasonable

and overly burdensome and perhaps dangerous in some weather conditions; in

the second ease (malfunction and breakdown),

in addition to the same problems that are

~ Related conditions are 7.1.10-I (a)(iv) (reporting) and 7.1.12(d) (compliance procedures).

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applicable during startup,

it may he

impossible for Midwest Generation to comply with the

condition.

73.

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 how to 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 ofCO

in the

flue gas in

the manner specified in Condition 7.1.6(a).

74.

IJSEPA has not required similar conditions in the perniits issued to other power

plants in Region

5.

Therefore,

returning to the work practice of good combustion optimization to

maintain low

levels of CO emissions

is

approvable by IJSEPA and is appropriate

fbr CO

in the

permit issued to the Powerton Generating Station.

75.

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)(5), 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

HLAdm.Code 217.Subpart V

76.

The Agency

has included the

word

each

in Condition 7.1.4(f):

“The affected

boilers are ~gh

subject

to the following requirements

(Emphasis added.)

Because of the

structure and purpose of 35 lll.Adm.Code

21 7.Subpart V, which is the requirement that the NOx

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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 Powerton

Generating Station to average emissions among affected units

in

infinite combinations.

77.

Consistent with the APA, Conditions 7.1.4(f) and

7.1,4ffl(i)(A)

are

stayed, and

Midwest Generation requests that the Board order the Agency to delete

the word each from the

sentence quoted above in Condition 7.1.4(f) and to insert the word each

in

Condition

7.1 ,4ffl(i)(A) if the Board agrees that its

inclusion is necessary at all, as follows:

“The emissions

of NOx from a~

~th

afTected

(vi)

Startup Provisions

7S.

As is allowed by Illinois’ approved Title

V program,

CAAPP permits provide an

affirmative defense against enforcement actions brought against

a perniittee 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

l1l.Adm.Code 201

Subpart

1.

These provisions, at

§

201.265 refer back to

§ 201,149

with respect to the affirmative defense

available.

The rules nowhere limit the

length of time allowed for startup,

and the records and

reporting required by

§

201.263,

the provision

that the

Agency cited as the regulatory basis

for

Condition 7.1.9(g), do

not address startup at all; it

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

gapfihling and

are limited to what is necessary to assure compliance with emissions limits.

79.

Midwest Generation is

already required to provide information regarding when

startups occur and how long they last by Condition 7.I.9(g)(ii)(A).

Condition 7.l.9(g)(ii)(B)

requires some additional information relative to

startup.

Emissions of SO2, NON,

and opacity

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during startup are continuously monitored

by

the

CFMS;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 ihe Agency’s authority to gapfill.

Moreover, this “additional” information would serve

no purpose were

it to he required even after

the

36 hours typically required

for startup.

80.

Consistent with

the APA, Condition

7.l.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

lIl.Adm.Code

§

201.149 and the inapplicability of

§

201.263.

(vii)

Malfunction and Breakdown Provisions

81.

Illinois’

approved Title V program

allows the

Agency to grant sources the

authority to

operate during malfunction and breakdown, even though the source emits in excess

of

its limitations, upon certain showings by the permit applicant.

The authority

must be

expressed

in

the permit, and the Agency has

made such a grant of authority

to Midwest

Generation for the Powerton Generating Station.

This grant of authority serves only as an

affirmative defense in an enforcement action.

Generally see

Condition 7.1.3(c).

82.

Condition

7.1.1 0-3(a)(i) requires

that Midwest

Generation notify the Agency

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

exceedances.

As 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.

‘l’he

Agency has provided

no regulatory basis for reporting

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suppositions.

At the

very least, Midwest Generation should he 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 hreakdown, though

Midwest Generation does not believe

that even this is necessary, since the

Agency lacks a

regulatory basis for this requirement

in

the first place.

Reference to reliance on opacity

as

an

indicator of PM emissions should be

deleted.

The condition

as written exceeds the scope of the

Agency’s authority to gapfill

and so is

unlawful, arbitrary and capricious.

83.

Also

in Condition

7.I.I0-3(a)(i), the Agency has deleted the word

consecutive

as

a trigger for reporting opacity and potential PM cxceedances 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 on

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.

84.

The Agency has

provided

no 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 ofthe opacity limitation do

not necessarily comprise a

malfunctionlbreakdown “incident.”

On the other hand, a prolonged period of opacity

exceedance does possibly indicate a malfjnetionfbreakdown “incident.”

In the alternative,

Midwest Generation suggests that the Agency add a two-hour time frame during which these six

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or more six-minute opacity

averaging

periods could occur to be consistent

with the

next

condition, 7.1. 10-3(a)(ii),

Likewise,

a

timeframe

is

not included in Condition

7.1. lO-3(a)(ii),

which appears to refer

to the same ‘incident” that is addressed by Condition

7.1.1 0-3(a)(i).

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.

85.

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.i.10-3(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 to 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

86.

The Agency has

included at Conditions 7.1.5(a)(ii)-(iv) requirements that become

applicable when Powerton

uses a

fuel other than coal

as

its principal fuel.

Condition

7.1 .5(a)(ii)

identifies what constitutes

using an alternative

fuel

as the principal

fuel

and establishes emissions

limitations.

Condition

7.1 .5(a)(iii) also describes the conditions under which Powerton would be

considered to

be using an

alternative fuel

as

its principal fuel.

Condition 7,1.5(a)(iv) requires

notification to the Agency prior to Powerton’s use ofan

alternative fuel

as

its principal fuel.

87.

inclusions of these 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

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permits that

is

fairly consistent

not only among units

in a single permit but also among permits.’8

for the Agency to include specific

recordkeeping requirements

in the

compliance section creates

a disconnect and uncertainty

regarding where the permittee

is

to find out what

it

is supposed

to

do.

88.

Additionally, at Condition

7.1.11 (c)(ii). the Agency’s placement of the examples

of alternative fuels defines them as hazardous wastes.

The intent and purpose of the condition

is

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 he placed

immediately after “Alternative

fuels” with punctuation and other adjustments to

the language as

necessary, to clarify that the examples listed are

not hazardous wastes.

89.

For these reasons, Conditions

7,1 .5(a)(ii),

7.1 .S(a)(iii). 7.1.5(a)(iv), and

7.i,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(a)(ii)-(iv)

in more appropriate sections

of the permit

and to clarify Condition

7. I

.

I

I (c)(ii).

(ix)

Stack

Testing Requirements

90.

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

arc

or 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 on a daily basis.

Stack

testing provides a snapshot of operating conditions within

the

scope of the operational paradigm

“That

is, Condition

7_t.9

for all

types of emissions

units

in

this permit,

from

boilers to tanks, addresses

recordkeeping.

Likewise, condition

7.x.9

addresses reeordkeeping

in

all

of the CAAPP

permits

for EOIJs.

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set forth

in the permit at Condition

7.1.7(b) that

is representative ofnortnal

or

maximum

operating

conditions,

but using those setlings as

some type of monitoring device or parametric

compliance data would be inappropriate.

91.

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

92.

It appears from

various conditions in

the permit

that the Agency believes that

Powerton

is subject to NSPS monitoring and

reporting requirements

pursuant to the Acid Rain

Program.

Midwest Generations

review of the

applicable requirements

under

Acid Rain do

not

reveal

how the Agency arrived at this conclusion.

‘Ibis

is an example of how a statement of

basis

by the Agency would have been

very helpful.

The Acid Rain Program requires monitoring

and reporting pursuant to 40 CFR

Part 75.

Specifically, 40 CFR

§

75.21(b)

states that

continuous opacity monitoring shall

be conducted according to procedures set forth

in state

regulations where they exist.

Recordkeeping

is addressed at

§

75.57(1)

and reporting

at

§

75.65.

None of this references Part 60. NSPS.

93.

Arguably,

it

is odd that a perniittee would appeal a condition in a

permit

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,

it

must also

appeal Condition 7.1.5(b), which exempts Powerton from the

requirements of 35

III.Adm.Code 201.Subpart

L

based

upon the applicability of NSPS.

NSPS does

not apply to the

Powerton

Generating Station through the Acid

Rain Program, and so this condition

is

inappropriate.

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94.

Conditions

7,2.1 0-2(h)(i), 7.1. l0-2(c)(i), and

7.1 .lO-2(d)(i)

require Midwest

Generation to submit summary information on

the performance of the 502, NOx, and opacity

continuous monitoring

systems,

respectively, including

the inihrmation specified at 40

CFR

§

60:7(d).

Condition

7.1.1 0-2(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

40

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 to 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 .10-2(d)(iii), Midwest Generation

does not find a regulatory

link between

the NSI’S provisions of 40 CFR 60.7(c) and (d) and the

Acid Rain Program..

95.

Consistent

with the APA, Conditions

7.1.5(h), 7.1.1 0-2(b)(i),

7.1.1 0-2(c)(i),

7.1.10-2(d)(i), 7.1 .l0-2(d)(iii). and 7.

.10-2(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)

96.

The Board’s regulations at 35 JlLAdm.Code

§

212.123(b)

provide that a source

may exceed the 30

opacity limitation of~2 12.123(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

30

may

emit at such an opacity during the same 60-minute period.

Because

the opacity limit at

§

2 12.123(a)

is expressed

as six-minute averages pursuant to Method

9

(see

Condition

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7.1.1 2~)(i)),a source demonstrating compliance

with

§

212.123(h) must reprogram

its

COMS to

record

or

report opacity over a difftrent timefraine than would be required by demonstrating

compliance with

§

212.123(a) alone.

The Agency attempts to reflect these provisions

at

Condition 7.1.12(a),

providing

for compliance with

§

2

12.1 23(a) at Condition

7. 1.1 2(a)(i) and

separately addressing

§

212.123(b)

at Condition

7.1.1 2(a)(ii).

Additionally, the Agency requires

Midwest Generation to provide

it with

15

days’

notice prior to changing its procedures to

accommodate

§

2 12.123(b) at Condition

7.1 .12(a)Oi)(F).

These

conditions raise several

issues.

97.

First,

Condition

7.1. 12(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 perniittee

has already

accomplished the

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

recordkeeping and

data handling practices must be submitted

for Agency review.

98.

Second,

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

Condition

7.1. 12(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

15

days’ prior notice is so that the Agency can

review the source’s reeordkeeping and datatmndling

procedures, presumably to assure that they will comply with

the requirements implied by

§

2 12.123(b).

As with Condition

5.6.2(d), the risk lies with the permittee.

1f

during an

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inspection

or a review ofa quarterly

report, the Agency

finds that Midwest Generation has

not

complied with

§

2 l2.123(b)’s

implied data collection requirements,

then the

Agency

is

authorized by

the Act to take certain actions.

Midwest Generation

is quite capable of taking the

responsibility for the data capture and recordkecping necessary

for compliance with

§

212.123(b).

99.

Moreover, while

Condition 7.I.12(a)(ii)(E) says that the Agency

will review the

recordkeeping and data handling practices of the

source,

it

says nothing about

approving them

or

what the

Agency plans to do with the

review,

lhe

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

Crawfhrd Generating Station

is required

to operate

a COMS, all of the opacity readings

captured

by

the

COMS are recorded and available to the Agency.

The

Agency has had ample opportunity

to determine whether Crawford has complied with

§

212.123(b).

Midwest Generation’s

providing

15 days’

prior notice of its “change”

to accommodating

§

212.123(b) will not improve

the Agency’s ability to determine Crawford’s

compliance.

100.

Conditions 7.1.l0-3(a)(i)

and (ii) do not accommodate the

applicability of

§

212.123(b).

The Board’s regulations do not limit when

§

212.123(h) 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.

101.

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

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in the

first place,

should

he included

in the

proper sections of the

permit, such

as

7.1.9

for

recordkeeping and 7.1.10

for reporting

As

the Agency has adopted

a structure for the CAAPP

permits that is

fairly’ consistent

not

only

among units in a single permit but also among permits,

for the

Agency

to

include specific reeordkeeping requirements

in the compliance section

creates

a disconnect and uncertainty regarding where the permittee

is

to

find out what

he or she

is

supposed

to do.

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. if the

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(h).

E.

Coal Handling Equipment, Coal Processing Equipment, and

Fly Ash Equipment

(Sections

7.2,

7.3,

and

7.4)

(i)

Fly Ash Handling v.

Fly Ash Processing Operation

102,

No processing occurs within

the

fly ash

system.

It isa 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 Powerton Station are not a process,

they arc

not subject to the process weight rate rule at

§

212.321(a).

Section 212.321(a) is

not an

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applicable requirement under

‘Fitle V. since the fly ash operation

is not a process.

I’)

The process

weight rate rule is not a legitimate applicable

requirement and so is included in the permit

itnpermissibly.

Condition 7.4.4(c) and all other references

to the process rate weight

rule or

§

212.321(a). including in Section

tO of the permit, should he

deleted.

104.

Since the fly ash operation is not

a process, reference to

it

as

a process is

inappropriate.

The word

proce~ss

and its derivatives

in Section

7.4 of the pennit 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.X,

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, incuding

in Section

10, and

add Condition

7.4.5(b) identifying

§

212.321(a) as

a requirement that

is not applicable to Powerton.

(ii)

Water Sprays for Coal Processing Operations

106.

Midwest Generation employs water spraying as

another means of controlling

emissions from

the coal

processing operations.

These should be listed at Condition

7.3.1

as

well

as Condition 7.3.2.

For these reasons, Condition 7.3:!,

contested herein,

is stayed, and Midwest

Generation requests that the Board order the Agency to add water sprays to the description of the

emissions control practices

at the Powerton

Generating Station.

(iii)

Fugitive Emissions Limitations and Testing

107.

The Agency has applied the opacity limitations of

§

212.123

to sources of fugitive

emissions at the Powerton Generating

Station through Conditions 7.2.4(h),

7.3.4(b), and 7.4.4(b),

~Midwest Generation

does not

dispute

the Agency’s insislence that

fly ash

handling

is subject

to the

process

weight rate rule because

it

cannot comply;

in

fact,

Midwest

Generation complies

by

an

impressive margin.

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all referring

back to

Condition

5.2.2b).

Applying the opacity

limitations of~2 12.123

to sources

of fugitive emissions

is

improper and contrary

to the Board’s regulatory

structure covering PM

emissions,

In

its

response to

comments

to this effect, the Agency claims

that

In lothing in the State’s air pollution

control regulations states that

the

opacity

Ii nitation does

not

apply to Iligitive

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.

108.

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

§

2 12.123

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

lll.Adm.Code 212.Subpart K.

These

rules call for

fugitive emissions plans and specifically identify the types of sources that are

to be

covered by

these

plans.

Condition

5.2.3

echoes these requirements, and Condition

5.2.4 requires

the fugitive

emissions plan.

109.

The limitations for fugitive emissions are set

forth at

§

212.301.

It is a no-visible-

emissions standard,

as viewed

at the property

line of the source.

‘Ihe measurement methods for

opacity are set forth at

§

212.109, which requires application of Method

9 as

applied to

§

212.123.

It 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,

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leaving

no manner for monitoring opacity

from

fugitive

sources other than the method

set

lbrth

in

§

212.301.

‘Ibis 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 to

that

general nonapplieahility are set forth in

the regulations.

110.

As

§

212.107 specifically excludes the applicability of Method 9 to fugitive

emissions, the requirements of Condition 7.2.7(a), 7.3.7(r), and 7.4.7(a)

are clearly inappropriate

and do not reflect

applicable requirements.

Therefore,

they, along with Conditions 7.2.4(b),

7.3.4(b), and 7.4.4(b), must be deleted from the

permit.

Except for roadways and parking lots,

§

212.123

is not an applicable requirement for fugitive emissions sources and

the Agency’s

inclusion ofconditions

for

fugitive sources based

upon

§

212.123

and Method

9

is

unlawful.

To

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.

111.

The Agency also

requires stack tests of the haghouses at Conditions 7.2.70),

7.3.7(b), and 7.4.7(b).

PM stack testing would

be conducted in accordance with

Test Method

5.

However,

a part of complying

with Method

5

is complying

with Method

1, which establishes

the

physical parameters necessary to test.

Midwest Generation cannot comply with Method

I.

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.

112.

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(h),

and 7.4.12(a), all

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contested herein, arc

stayed, and Midwest (icncration requests that

the

Board order the Agency

to delete these conditions to the

extent that they require compliance with

§

212.123

and Method

9 or stack testing and, thereby, compliance with

Methods

I

and

5.

(iv)

Temporary

Fly Ash Storage “Facility”

113.

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

wordfiwi//~’is a building

or other

type of enclosure.

Midwest Generation objects

to the use of the

word

fiwiluty

without

clarilication 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 clarify

the condition appropriately.

(v)

Testing Requirements

for Coal Handling, Coal Processing, and

Fly Ash Handling

Operations

114.

Ihe

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

nunutes

“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 for testing

to be discontinued if the

first

12 minutes’

observations were both less

than

10.

In the second

draft revised proposed permit (July 2005), the Agency

inexplicably

reduced

the threshold

for discontinuation of the test to

5.

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115.

The Agency provided

no explanation for (1) treating fly ash

handling differently

from coat

handling in this regard

(see

Condition

7.2.7(a)(ii)20) or (2) reducing the

threshold from

10

to

59/s.

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

in

the threshold for discontinuing the opacity test

is arbitrary and capricious.

Condition 7.4.7(a)(ii)

is inextricably

entwined with 7.4.7(a), and so Midwest Generation must appeal

this underlying

condition as well.

116.

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 if the

conditions must remain in the permit the

Board

order the

Agency

to amend

Condition 7.4.7(a)(ii) to reflect the

I 0

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.

(vi)

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

Operations

117.

Conditions 7.2,8(a), 7.3.8(a), and 7.4.8(a)

contain inspection requirements

for the

coal handling, coal processing,

and fly ash handling operations, respectively.

In each case,

the

condition requires that “these

inspections shall be performed with personnel not directly

involved in the day-to-day

operation of the affected operations

The Agency provides no

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

in the

Responsiveness Summary

at page

19.

The Agency’s rationale is that the personnel performing

~°

“The duration of opacity

observations for each test

shall

be

at least 30

niinutes (five 6-minute

averages)

unless the

average opacities

for

the

first

12

minutes of observations

(two 6-minute

averages) are both

less than

10.0

percent.”

(Emphasis added.)

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the

inspection

should

he”’ fresh’’ and “‘independent’” of the daily operation,

but the Agency

does

not

tell us why being “fresh” and

“independent” are “appropriate” qualifications

for such an

inspector.

The Agency rationalizes that Method

22,

Le.,

observation for visible

emissions,

applies, and

so

the inspector need have no particular skill

set.

The opacity requirement

for these

operations

is not 0

or

no

visible emissions at the point of operation,

but rather at

the property

line.

Therefore, exactly

what the observer is supposed to look at is not

at all

clear.2’

118.

There is

no basis

in law or

practicality for this provision.

‘1~oidentify

in a CAAPP

permit condition who can

perform an

inspection

is overstepping the

Agency’s authority and

clearly exceeds any gapfllling authority that may somehow apply to these

observations of

fugitive dust.

‘ftc requirement must he stricken

from the permit.

119.

The Agency has included

in Conditions 7.2.8(b) and 7.3.8(b) that inspections of

coal handling and coal processing operations he

conducted every

15

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 as

efficiently and safely

as possible.

While the Agency certainly has

gapfilling

authority, the

gapfltling authority

is limited

to what

is necessary to ensure

compliance with permit conditions.

21

The

Agency’s

requirements

in

this condition

also underscore

Midwest Generation’s appeal of

the

conditions

applying

an opacity limitation

to

thgitive sources,

above at

Section

TI1.E.(iii).

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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.

120.

Moreover, the Agency does not provide a rationale as

to why the frequency of fly

ash handling inspections should he greater (more

frequent) than for the other operations.

121.

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,

it

is logical that these inspections should

be linked to boiler

outages.

Moreover, these operations are

inspected on monthly

or weekly bases pursuant to

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

so

any maintenance

issues

will be identified long

before the

15- or nine- month inspections.

122.

Conditions 7.2.8(h), 7.3.8(b). and 7.4.8(b) require detailed inspections of the coal

handling, coal processing, and fly ash handling operations both before

and after maintenance has

been performed.

The Agency has not provided a rationale for this requirement and has not cited

an applicable requirement for these conditions.

This

level of detail in

a CA.&PP permit

is

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

These

requirements should

be deleted from the

permit.

123.

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 be

inspected at least once during each calendar month.”

Since the first sentence of the condition

already states that these operations are to be inspected on a monthly basis, the last clause of the

condition appears superfluous.

However,

until the July 2005

draft revised proposed permit,

the

language in this clause was “that

all affected operations shall be inspected at least once during

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each calendar quarter.”

22

i’hc

Agency has provided

no explanation as to why

the

frequency of

the inspections has been increased.

124.

For these reasons,

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

corresponding recordkeeping 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

condhions that dictate who should

perform inspections of these operations,

to

delete the requirement contained

in these conditions

that Midwest Generation

inspect helbrc and after maintenance

and repair

activities.

Additionally, Conditions 7.2.8(h),

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.

(vii)

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

Handling Operations

125.

Condition 7.2.9(a)(i)(C) requires Midwest Generation to submit a list identi~’ing

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)Oi),

and so

has already been

identified in the

permit

itself.

To require Midwest Generation 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 be

deleted

from

the permit.

22

That is,

not

all

aspects of the coal handling operations

are required to

be

inspected during operation on a

monthly

basis.

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126.

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)Oi)

and

7.4.9(b)(ii), have

already been provided to the Agency

in

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(h)(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(h)(ii), 7.2.9(h)(iii),

7.3.9(h)(ii),

7.3.9(b)(iii), 7.4.9(b)(ii), and

7.4.9(b)(iii) should

be deleted

from the permit.

127.

Moreover, Conditions 7.2.9(h)(iii),

7.3.9(h)(iii), and 7.4.9(b)(iii) include reporting

requirements within

the rccordkceping requirements. contrary to

the overall

structure of the

permit.

Midwest Generation has

already objected to the inclusion of these conditions lbr other

reasons.

In any event, they should not appear

in

Condition

7.x.9.

128.

Conditions

7.2.9(d)(ii)(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(e)(ii)(E), respectively.

Such redundancy

is not

necessary.

Conditions 7.2.9(d)(ii)(B), 7.3.9(c)(ii)(B), and 7.4.9(c)(ii)(B)

should be deleted

from

the permit.

129.

Conditions 7.2.9(e)(ii), 7.2.9(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,

it

is not appropriate

hr

the

Agency

to

require reporting of the magnitude of PM emissions.

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