MIDWEST GENERATION, LLC,WILL COUNTY GENERATING STATION,
APPEARANCE
ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY, )
APPEARANCE
CERTIFICATE OF SERVICE
Respondent. )
APPEARANCE
Respondent. )
APPEAL OF CAAPP PERMIT

ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

2005

PCB 2006-060

BEFORE

TIlE ILLINOIS

POLLUTION

CONi’ROl.~HOARD

MIDWEST GENERATION, LLC,

WILL COUNTY GENERATING

STATION,

)

Petitioner,

)

PC13

__________________

(Permit

Appeal

—

Air)

ILLINOIS

ENVIRONMENTAL

PRO~TECi’ION

AGENCY,

)

Respondent.

)

NOTICE OF FILING

To:

Pollution Control Board, Atm:

Clerk

Division of Legal Counsel

James R.

‘lThompson Center

Illinois

Environmental

Protection Agency

100W.

Randolph

1021

North Grand Avenue, East

Suite

11-500

P.O.

Box

19276

Chicago,

I Uinois 60601

Springfield, Illinois

62794-9276

PLEASE TAKE NOTICE that I

have today

filed with the

Office of the

Clerk of the

Pollution control

Board the original and nine copies of the Appeal of

CAAPP Pernilt

Midwest Generation,

LLC,

Will County Generating Station and the Appearances of

Sheldon A.

Zabel, Kathleen

C, Bassi, Stephen

Bonebrake, Joshua

More,

and Kavita M.

Patel, copies of which are herewith served upon

you.

athleen

C. Bassi

Dated:

November 2,

2005

Sheldon A.

Zabel

Kathleen C.

Bassi

Stephen

3. Bonebrake

Joshua R.

Kavita M. Pate!

SCHIFF HARDIN, LLP

6600 Sears Tower

233

South Wacker

Drive

Chicago,

illinois

60606

312-258-5500

Fax:

312-258-5600

ELECTRONIC

FILING,

RECEIVED,

CLERKS OFFICE,

NOVEMBER

2005

FOB 2006-060

BEFORE THE ILLINOIS POLLUTION CONTROL

HOARI)

MIDWEST GENERATION, LLC,

WILL

COUNTY

GENERATING STATiON,

Petitioner,

)

PCB

____________

(Permit Appeal

—

Air)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

APPEARANCE

thereby

file my

appearance in this proceeding, on behalf olMidwest

Generation, 1ff.

Will County Generating Station.

Kathleen

Bassi

Dated:

November 2, 2005

Sheldon

A. Zahel

Kathleen C. Bassi

Stephen

J. Bonebrake

Joshua R.

Kavita M. Patel

SCuFF

I IARDIN, LLP

6600

Sears Tower

233

South Wacker Drive

Chicago, Illinois

60606

312-258-5500

Fax:

312-258-5600

ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

2005

FOB 2006-060

BEFORE TIlE

ILLINOIS POLItTION

CONTROL BOAR!)

MIDWEST GENERATION,

LLC,

WILL COUNTY GENERATING

S’I’ATION,

)

Petitioner,

)

PCB

____________

(Permit Appeal

—

Air)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

Respondent.

)

APPEARANCE

hereby

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

LLC,

Will County Generating

Station.

tepI~’i1iJ. Bonchrakc

/1’

Dated:

November

2, 2005

Sheldon

Zabel

Kathleen C.

Bassi

Stephen

J. Bonebrake

Joshua IC More

Kavita

M. Patel

SCHIFF

HARDIN, L1,P

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

POB 2006-060

BEFORE

TIlE

ILLINOIS

POLLUI’ION CONTROL

BOARI)

MIDWEST GENERATION,

LI4C,

WILL

COUNTY GENERATING STATION,

)

Petitioner,

)

PCB

_______________

)

(Permit Appeal

—

Air)

ILLINOIS ENVIRONMENTAL

)

PRO1’ECTION

AGENCY,

)

Respondent.

APPEARANCE

Ihereby

file

appearance in this proceeding, on behalf of Midwest

Generation.

LLC,

Will County Generating

Station.

/•-c

Joshua

Dated:

November

2, 2005

Sheldon

Zabel

Kathleen C. Bassi

Stephen

J. Bonebrake

Joshua

R. More

Kavita M.

Patel

SCHIFF HARDIN, LLP

6600

Sears Tower

233

South

Wacker Drive

Chicago, Illinois

60606

312-258-5500

Fax:

312-258-5600

ELECTRONIC FILING,

RECEIVED,

CLERK’S OFFICE,

NOVEMBER

2005

POB 2006-060

BEFORE i’IIE:

ILLINOIS POLLUTION

CONTROL BOARI)

MIDWEST GENERATiON, LLC,

WILL COUNTY

GENERATING STATION,

)

Petitioner,

PCB

____________

(Permit

Appeal

—

Air)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

Respondent.

)

APPEARANCE

I hereby

file my

appearance in this

proceeding. on behalfof Midwest Generation.

LLC.

Will

County

Generating Station.

c.1L;

K.avita

Patel

Dated:

November 2, 2005

Sheldon

Zabel

Kathleen C. Bassi

Stephen J.

Bonebrake

Joshua It More

Kavita M.

Patel

SCI 11FF

HARDIN,

LLP

6600 Seats Tower

233

South \Vaeker Drive

Chicago, Illinois

60606

312-258-5500

Fax:

312-258-5600

ELECTRONIC

FILING,

RECEIVED, CLERKS

OFFICE,

NOVEMBER

2005

POB 2006-060

BEFORE THE

ILLINOIS POLLUTION

CONTROL

BOARI)

MII)WEST GENERATION, LLC,

WILL COUNTY GENERATING

STATION,

Petitioner

ILLINOIS

ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB

___________

(Permit Appeal

—

Air)

)

CERTIFICATE

SERVICE

I. the undersigned, certify that I have

served the

attached Appeal of CAAPP Permit of

Midwest

Generation, LLC,

Will

County

Generating Station

and

Appearances of

Sheldon

Zabel, Kathleen

Bassi,

Stephen

J. Bonebrake, Joshua R.

More, and Kavita M. Patci,

by electronic

delivery upon the following

person:

Pollution Control Board,

Attn:

Clerk

James R. Thompson Center

100W.

Randolph

Suite

11-500

Chicago,

Illinois 60601

th een

Bassi

Dated:

November

2, 2005

and

by electronic

and first class mail upon

the following

person:

Division of Legal Counsel

Illinois Environmental Protection Agency

1021

North Grand

Avenue, East

P.O.

Box

19276

Springfield, Illinois

62794-9276

Sheldon

Zabcl

Kathleen

Bassi

Stephen I Bonebrake

Joshua R.

Kavita M.

Patel

SCI-IIFF HARDIN,

6600

Sears

1ower

233 South Wacker

Chicago,

Illinois

312-258-5500

Fax:

312.258-5600

LLP

Drive

60606

ELECTRONIC

FILING,

RECEIVED,

CLERKS OFFICE,

NOVEMBER

2005

P08 2006-060

BEFORE

TIlE

ILLINOIS POLLUTION CONTROL BOARD

MIDWEST

GENERATION, LLC,

)

WILL COUNTY

GENERATING

STATION,

Petitioner,

)

PCB

—

(Permit Appeal

Air)

ILLINOIS

ENVIRONMENTAL

PROTECTION AGENCY,

)

Respondent.

)

APPEARANCE

hereby tile

my appearance in this proceeding,

on behalf of Midwest Generation, LLC,

Will

(:‘ounty

Generating Station.

Sheldon

A. Zab4~”

Dated:

November 2,

2005

Sheldon

A. Zabel

Kathleen

Bassi

Stephen A. Bonebrake

Joshua R. More

Kavita M.

Patel

SCFIIFF

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

2005

PCB

2006-060

BEFORE

THE ILLINOIS

POLLUTION

CONTROL BOARI)

MIDWEST GENERATION, LLC,

WILL COUNTY

GENERATING

STATION,

)

Petitioner,

)

PCB

___________

)

(Permit

Appeal

—

Air)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

APPEAL

CAAPP PERMIT

NOW COMES Petitioner,

MIDWEST GENERATION, LLC, WILL

COUNTY

GENERATING STATION (“Petitioner,” “Will County,”

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

et seq..

and requests a hearing before

the Board to contest the decisions

contained in the permit issued to

Petitioneron

September 29,

2005,

under

the Clean

Air Act

Permit Program (“CAAPP” or “Title

V”) set forth at Section

39.5

ofthe Act (415 JLCS

5/39.5),

support of its Petition, Petitioner states as follows:

BACKGROUND

(35 III.Adm.Code

105.304(a))

November 15,

1990, Congress amended the Clean Air

Act (42 U.S.C.

§~

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

operating permit program.

The Title V program was

to be implemented by

states with approved

programs.

Illinois’

Title V program, the CAAPP, was ftilly and finally approved by the U.S.

Environmental Protection

Agency (“USEPA’) on December

4, 2001

(66 Fed.Reg.

72946).

The

ELECTRONIC

FILING,

RECEIVED,

CLERK’S OFFICE,

NOVEMBER

2005

PCB 2006-060

Illinois

Environmental

Protection Agency

(“Agency’’) has had

the authority to

issue CAAPP

permits since at

least March 7,

1995, when the

state

was granted interim

approval

its CAAPP

(60

Fed.Reg.

12478).

Illinois’

Title V

program

is set Rrth

Section 39.5 of the

Act,

l1l.Adm.Code

201

Subpart

F, and 35

Fll.Adm.Codc

‘art

270.

The

Will

County Generating Station (“Will

Counts’’

the ‘‘Station”),

Agency

ID.

No.

19781 OAAK,

is an

electric generating station owned

by Midwest Generation, tiC,

and

operated

by Midwest Generation,

LLC

—

Will

County Generating Station.

The

Will

County

electrical generating

units (“EGU5”) went online

between

1955

and

1963.

The

Will County

Generating Station

is located at 529 East

35~Road, Romeoville,

Will County, Illinois

60446—

1538, within the Chicago ozone and

PM2.5’

nonattainment areas.

Will

County

is an

intermediate load plant and

can generate approximately

1100

megawatts.

Midwest Generation

employs

190 people at the Will

County Generating Station.

Midwest Generation operates four

coal-fired boilers at Will

County that have

the

capability to

fire at various modes

(hat include the combination

of coal,

\petroleuni coke, and/or

fuel

oil as their principal fuels.

In addition, the boilers

fire fuel

oil as

auxiliary

fuel during

startup mid br

flame stabilization,

Certain alternative fuels, such as

used oils generated on-site,

may he

utilized as

well.

Will County

also operates associated

coal handling,

coal processing,

and ash handling activities.

In addition to the boilers, there is

a 1,500-gallon gasoline

tank

located at Will

County, to provide fuel for

Station vehicles.

Will County

is a major source

subject to Title

Will County

is subject to the

Emissions Reduction Market System (ERMS) but has limited

its emissions of volatile organic

compounds (“VOC”)

less than

tons per ozone season and so is not required to

hold and

Particulate matter less than

2.5

microns

aerodynamic diameter,

.2-

ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

2005

PCB 2006-060

surrender allotment trading

units (ATUs).

The

GUs

Will County

are subject

to both of

Illinois’

NOx reduction programs:

the “0.25

averaging” program at 35

Ill.Admn.Code

217.Suhparts

V and the “NOx trading program” or “NOx

SIP call” at 35

Ill.Adm.Code

217.Suhpart W.

Will

County is subject

the federal

Acid

Rain Program at Title IV of the

Clean

Air Act and

was issued a Phase

Acid Rain Pennit

on March

18, 2005.

Emissions of nitrogen oxides (“NOx”) from the Boilers

and 2 are controlled

overfire air

and from

Boilers 3 and 4 by overiire air and low

NOx

burners.

Emissions of sulfur

dioxide

(“SO2”)

from the

EGUs are controlled by

limiting the sulfur content of the fuel

used fir

the

boilers.

Likewise,

Will

County monitors and limits

the

sulfur content of the

fuel

oil

used at

the

station in the boilers.

Particulate matter (“PM”) emissions front the

boilers are controlled by

an electrostatic precipitator (“ESP”).

Fugitive PM emissions from various coal and ash handling

activities are controlled through

enclosures, covers, dust suppressants,

water sprays, and

baghouses 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

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

rule

and by

contract.

The Agency received the original CAAPP permit application for the

Will

County

Station

September

1995, and assigned Application No.

95090080.

Petitioner updated this

application on March 26, 2003, May 23, 2003, and October 12,

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 fhrth at Section

ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

2005

FOB 2006-060

39.5(1

of the

Act since submitting

the application

lbr

a CAAPP permit

for the

Will County

Generating

Station, totaling 51.6

million

since

1995.

Will

County’s

state operating permits

have

continued

full

ffirce

and effect since submittal of the

CAAPP

permit application,

pursuant

Section

9.1(f)

of the Act.

The Agency

issued a final draft

permit for public review on June

2003

Fhe

Agency subsequently held a hearing on

the draft pennit

August

25, 2003,

the City of

Romeoville. which representatives of

Midwest

Generation

attended

and presented

testimony.

Midwest

Generation

filed written comments

with

the Agency regarding

the Will

County draft

permit

on September

24, 2003.2

The Agency

issued a proposed permit

for the

Will

County

Station

on October

6, 2003.

Although this

permit

was not technically open

for public

comment,

it had been sent

USEPA

for its comment

as required by Title

~.7

of the Clean Air Act,

Midwest Generation, nevertheless, submitted comments on November

19, 2003.

Subsequently,

in December 2004,

the Agency

issued

a draft

revised proposed permit for Petitioner’s

and other

interested

persons’ comments.

Midwest

Generation

again commented.

The Agency

issued

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

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

2005.

The Agency submitted the revised proposed

permit

USEPA for its 45-day review on August

15, 2005.

The Agency did not seek further

Midwest Generation has

attached the

appealed

permit

this Petition.

Flowever,

the

draft

and propose4.pemiits

and other documents referred to herein should

included

the

administrative record

that

the

Agcncy

will

file.

other documents must

submitted to the Agency.

critical, however,

the fact that once

the permit becomes effective. Midwest Generation

is obliged

to comply

with it, regardless of

whether

it has any reeordkeeping systems

in place. any additional control equipment that might

be necessary, new compliance requirements, and

so forth.

It took

the Agency over

two years to

issue

the

final permit; the first draft permit was

issued June 4,

2003.

Over that course of time.

the Agency

issued numerous versions of the permit,

and it has changed considerably.

Therefore,

is unreasonable

to expect Midwest Generation

to have

anticipated the

final permit

to the degree

necessary for it

to have been

in compliance by

7:18 p.m.

on September 29, 2005.

25.

Moreover, publication of the permit on a website is not “official”

notification in

Illinois.

The company

cannot 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.

Crawford’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, sottrces have not been subject to such numerous and

detailed permit conditions and exposed to enforcement from so many sides.

Under

Title V, not

only the Agency through the Attorney

General, but also USEPA and the general public can bring

enforcement suits for violation of the least matter in the permit.

If the issuance date is the

effective date, this has the potential for tremendous consequences

to the permittee and is

extremely inequitable.

-13-

ELECTRONIC

FILING,

RECEIVED,

CLERK’S OFFICE,

NOVEMBER

2005

PCB 2006-060

27.

Ii Uc ciThetive date of the permit

September 29.

2003, this also would create

obligation

to perform quarterly monitoring and

to submit quarterly reporis

(cf.

Condition

7.110-

2(a)), for the third quarter of 2005, consisting of less than

30 hours of operation.

The

requirement

to perform

quarterly monitoring,

reeordkecping. and reporting

for a quarter that

consists of less than 3t)

hours of operation, assuming the permittee would even have compliance

systems in place

quickly after issuance

of the permit. is overly burdensome and would not

benefit the

environment

in any manner.

lherefore,

the requirement

is arbitrary and capricious.

28.

A more equitable and

legal approach would

for the Agency to delay the

effective date ofa

final

permit for a period of time reasonably suflicient for sources to implement

any new

compliance systems necessary because of the terms oithe 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 oithe

permit, contested

herein,

stayed, and Midwest Generation requests that the

Board order the Agency

establish an

effective date some period of time a~erthe perniittee has received

the permit following

remand

and rcissuance of the permit to allow the pcrmittee

sufficient time to

implement the systems

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

Overall Source Conditions

(Section

(i)

Recordkeeping of and Reporting HAP Emissions

30.

The CAAPP permit issued to the Will

County Generating Station requires

Midwest Generation to keep records of emissions of mercury, hydrogen chloride, and hydrogen

fluoride--all

HAPs

--and to

report those emissions at Conditions 5.6.1(a) and (b)

(reeordkeeping) and 5.7.2

(reporting).

l’he

Agency has not provided a proper statutory or

.14-

ELECTRONIC

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OFFICE,

NOVEMBER

2005

FOB 2006-060

regulatory basis for these requirements other than

the general

provisions of Sections

4(b) and

39.5(7)(a).

(h), and (e) of the

Act.

Citations merely to

the general provisions of the Act do not

create

an “applicable

requirement.”

31.

fact, there is no applicable requirement that allows the Agency

require

this

rccordkeeping

and reporting.

There are

no regulations that limit emissions of IIAPs

from

the

Will County Generating Station.

While USEPA

has recently promulgated the Clean

Air

Mercury Rule (“CAMR”)

(70 Fed.Reg. 28605

(May

18, 2005)). Illinois

has not

yet developed

its

corresponding regulations.

The Agency correctly discussed this issue relative specifically

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

the Administrative

Record, p.

21.

However, the Agency

was

incorrect in its discussion in the Responsiveness Summary

by stating

that it

can rely upon

Section

4(h),

the authority for the Agency to gather information, as a basis for requiring

recordkecping and reporting of mercury emissions

through the CAAPP permit.

The Agency has

confused its authority to

gather data pursuant to Section 4(b) and its

authority to gapfill

to assure

compliance with the permit with the limitation

its authority under Title

V to include

21111

“applicable requirements”

in a Title V permit.

See Appalachian Power.

Even by including only

recordkeeping and reporting of I-lAP emissions in the permit, the Agency has exceeded its

authorityjust as seriously as if it had included emissions limitations for HAPs

in the permit.

Section

4(b) does not provide the authority to impose this condition in aCAAPP

permit.

32.

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

SIP

for its Title V program,

preclude the Agency from requiring the recordkecping and reporting

of HAP emissions

that

it has included at Conditions

5.6.1(a)

and (b) and 5.72.

The Agency’s

-15-

ELECTRONIC

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CLERK’S OFFICE,

NOVEMBER

2005

FOB 2006-060

Annual Emissions

Reporting rules.

lll.Adm.Code Part 254.

which

Condition

5.7.2 specifically

addresses, state as

follows:

Applicable Pollutants

ihr Annual

Emissions

Reporting

Each Annual

Emissions

Report shall include applicable

information for all regulated air pollutants,

defined in

Section

39.5

of the Act 415

ILCS

exeep

for the following

pollutants:

*4*

A hazardous air pollutant emitted

an emission unit that

is not subject to

a National Emissions Standard for

1-lazardoims Air Pollutants

(NEST TAP) or maximum

achievable control

technology (MACI).

For purposes

this subsection (h),

emission units that are

not required to

control

or limit emissions

but are

required to monitor, keep

records,

or undertake other specific activities are

considered subject to such regulation or requirement.

lll.Adm.Code

254.120(b).

(Brackets

original; emphasis added.)

Power plants are not

subject

to any NESFIAPs or MACT standards.

See

69 Fcd.Reg.

15994

(March 29, 2005)

(USEPA withdraws its

listing of coal-fired

power plants under Section

112(c) of the

Clean Air

Act).

The Agency has not cited any other applicable

requirement that provides it with the

authority to require

Midwest Generation to keep records of and report

I lAP emissions.

Therefore, pursuant to the provisions of

254.120(b) of the Agency’s regulations, the Agency

has no regulatory basis for requiring the

reporting of HAPs emitted

by coal-fired power

plants.

33.

Consistent with the APA, Conditions

5.6.1(a) and (b)

in Iota

and Condition

5.7.2

it relates

to reporting emissions of HAPs in the Annual Emission Report, contested herein,

are

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

accordingly.

-16-

ELECTRONIC

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RECEIVED, CLERK’S OFFICE,

NOVEMBER 2,

2005

POB 2006-060

(ii)

Retention and Availability

of Records

34.

Conditions 5.6.2(h)

and (c) switch the burden of copying

records the Agency

requests

front the Agency. as

stated

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 he able to print and provide data within the span

an inspector’s visit where the records arc electronic and include vast amounts of data.

Moreover, most of the

electronic records are already available to the Agency through its own or

USEPA’s

databases, and where this is the case,

Midwest Generation should not be required to

again provide the data absent

its

loss for some unforeseen

reason,

and certainly should not to

have to print out

the information.

Further, Midwest Generation

is troubled by the qualifier

generally

that the Agency included in its

statement.

It implies that the Agency may not

always

choose reasonable times, nature,

and scope of these requests.

35.

Consistent with the APA, Conditions

5.6.2(b) and (c), contested herein, are

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

manner to correct the deficiencies outlined

above.

(iii)

Submission of Blank Record Forms to the Agency

36.

Midwest Generation may be confused

as to what the Agency expects with respect

Condition 5.6.2(d).

See

Condition 5.6.2(d).

Midwest Generation’s first interpretation

of this

condition was that the Agency was

requiring submission of the records that are

required by

Conditions 7.1.9,

7.2.9, 7.3.9, 7.4.9.

and 7.5.9.

However, upon rereading Condition 5.6.2(d),

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ELECTRONIC

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2005

PCB 2006-060

Midwest

Generation has come

helievc that through

tIns 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,

the Agency does not have

the authority to oversee

how Midwest Generation

condoels

its

internal

methods ofconiplianee.

There

basis in

law

for such a requirement

and

must he deleted.

37.

Each company has the

right and responsibility to

develop and implement internal

rccordkeeping systems.

Even the

most unsophisticated company

has the right to develop and

implement internal recordkeeping systems

and

bears the responsibility for any insufficiencies

doing

so.

Absent a statutory grant or the promulgation of reporting formats

through ruTemaking,

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,

support this condition.

38.

Nor

does the Agency provide

a purpose for this condition

—

which serves as

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 pennittees plan to

keep in support olthe

various

recordkeeping requirements

in the permit in order to assure that they are adequate.

However,

there is no regulatory

or statutory basis for the Agency to do this, and it has cited none.

Moreover, if the Agency’s purpose for requiring this submission is

determine the adequacy of

recordkeeping, then without inherent knowledge of all the details of any given operation,

will

be difficult for the Agency

detern-tinc the

adequacy of recordkccping

for the

facility through

an off-site

review.

If the Agency

finds

records

that are submitted

during

the prescribed reporting

T 8-

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OFFICE,

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2005

PCB 2006-060

periods

inadeqtiate, the Agency

has a remedy available to

it through the

law.

It can

entbrce

against the company.

That

is the risk that the company

bears.

39.

Further, ifthe company

is concerned

with the adequacy of its

planned

recordkeeping, it can ask the

Agency to provide it

some counsel.

Providing such counsel or

assistance is a statutory function of the Agency.

Fven then,

however, the Agency will qualify

its

assistance in order to attempt

to avoid reliance on the part of the permittee

should there be an

enforcement action brought.

An interpretation of this condition could he that by providing

blank

rccordkeeping

forms to the Agency, absent a communication

from

the Agency

that they are

inadequate,

enforcement against

the perrnittce for inadequate recordkeeping is harred, so long as

the

forms are

fiTTed

out, because they arc covered by the permit shield.

40.

Additionally, the Agency has

violated Midwest Generation’s due process rights

under

the Constitution by requiring submission of these documents

before Midwest Generation

had the opportunity to exercise

its

right to appeal the condition,

granted by the Act at Section

40.2.

The Act allows permittees

days

in which to appeal conditions of the permit to which it

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

forms within

days

of issuance of the permit significantly undermines Midwest Generation’s

right to appeal

—

and the effectiveness of that right

—

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

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

is improper

to even

create this uncertainty.

‘his

denies Midwest Generation due process

and so is unconstitutiona’, unlawful, and arbitrary and capricious.

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ELECTRONIC

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2, 2005

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41.

Consistent with the

AI’A. Condition

5,6.2(d). contested

herein,

is stayed, and

Midwest Generation requests that the

Board order the Agency to delete

from

the permit.

In the

alternative,

Midwest Generation

requests that the

Board

interpret this condition

such that ifthe

Agency

fails to communicate any inadeqtiacies

finds in blank recordkeeping

forms submitted

it, enforcement against

Midwest Generation

for

inadequate records is barred,

long as those

records were completed, as a part

of the permit shield.

NOx SIP Call

(Section 6.!)

42.

Condition

6.1.4(a)

says, “Beginning in 2004. by November30 of each year.

While this is a true

statement.

i.e..

the NOx trading program

in Illinois commenced

2004. it is

inappropriate

for

the Agency

include in

the permit a condition

with a retroactive effect.

including

this past date

in an enforceable permit condition,

the Agency has exposed

Midwest

Generation to potential

enforcement under this permit for acts

or omissions that

occurred prior

the effectiveness of this

permit.

is unla~-tuIhr

the Agency

require retroactive

compliance

with past requirements in a new permit condition.

Lake

Envil.,

Inc.

The State ofIllinois,

No.

98-CC-5179. 2001

WI. 34677731,

at *8

(lll.Ct.Cl. May 29, 2001) (stating “retroactive

applications are disfovored

in the

law, and are not ordinarily allowed

in the absence of language

explicitly so

providing.

The authoring agency of administrative regulations is no less

subject to

these settled

principles of statutory construction than any other arm

of government.”)

This

language should be changed

to refer to the first ozone season occurring upon effectiveness of the

permit,

which, for example, if the permit appeal

is resolved before September 30, 2006, would

the 2006 ozone

season.

Rather than including a specific

date, Midwest

Generation suggests that

the

condition merely refer to the

first ozone

season during which the permit is effective.

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2005

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2006-060

43.

For these

reasons, Condition

1 .4(a)

is stayed

ptirsuant to

the APA, and Midwest

Generation requests that

the Board order the

Agency

to amend the

language to avoid retroactive

compliance with past requirements.

1Y.

BOILERS

(Section

7.1)

Opacity as a Surrogate. for PM

44.

Historically, power

plants and other types

of industry have

demonstrated

compliance with emissions limitations

for

PI\1 through

periodic stack tests and consistent

application of good operating practices.

Prior to the development of the

CAAPP permits, opacity

was ~~rimari1y

a qualitative indicator of

Llw possible need for further investigation of operating

conditions or even

for the need of new

stack testing.

l-lowcver, in the iterations of the permit

since the

publication of the October

2003 proposed permit. the Agency has

developed

approach

in which opacity serves as a quantitative surrogate for indicating exceedances of the

emissions limitation.

For the

first time in

the August

2005 proposed

permit, the Agency

required Petitioner to

identify the

opacity measured

at the

95th

percentile confidence interval of

the measurement of compliant PM emissions during the

last and other historical

stack tests as the

upper bound opacity level that triggers reporting of whether there

m~i

have been an

exceedancc

of the PM limit without regard for the realistic potential for a PM exeeedance.

These reporting

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

lowest levels of PM

and opacity.

The inclusion of these conditions exceeds the scope of the Agency’s

authority

gapfill

and so are

arbitrary and capricious and must he stricken from the permit.

45.

The provisions requiring the use of opacity as

effectively a surrogate for PM

are

found in Conditions 7.1 ,9(c)(ii),

linked to Condition 7,1.4(h), which contains

the emissions

limitation for PM;

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

linked to Conditions 7.1.4(b)

and

7.1 .9(c)(ii); 7.1.10-1(a),

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ELECTRONIC

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2005

PCB 2006-060

linked

Condition

0—3(a):

0—2(a)(i)(F),

inked to Conditions

1 .9(c)(iii)(B) and

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

7.1. lO-2(d)(v) generally; 7.1.l0-2(d)(v)(C), requiring an explanation of the presumed

number and magnitude of opacity and

PM exceedances and speculation as

to the causes of the

exceedances;

7.1 .lO-2(d)(v)(D), requiring a description of actions taken

to reduce opacity and

PM exceedances and anticipated effect

future exccedances:

7.1.1 0-3(a)(ii), requiring follow-

up reporting within

days after

incident during which there may have been aPM

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),

testing to

determine the

upper bound of opacity,

and

the. recordkeeping conditions described above

to demonstrate compliance with the

I’M

emissions

limitation.

46.

No one can provide

a reliable, exact PM concentration

level anywhere

the

United States today oulside of stack

testing.

Obviously,

is impossible to continuously test a

stack to determine

a continuous

level

of PM emissions, and it

would be unreasonable

for the

Agency

anyone else to expect

such.

Pursuant to snine of the consent decrees settling

number of USFPA’s

enforcement actions against coal-fired power generators, some companies,

including one

in Illinois, arc 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 he

considered credible

evidence of PM emissions levels; at least, we are not aware of any case in which government or

citizens suing under

Section

304

of the Clean Air

Act have relied upon PM CEMS as

the basis of

of the consent decree

cntcred

in L’S.

Illinois

Power

CompcuQ.’,

Civ.

Action No.

99-833-MJR

(S.t).

Ill.),

found

the Agency’s

administrative record of Dynegy

Midwest Gencration’s

(“Dynegy”) appeals of its

permits,

filed

or about the same day as this

appeal.

See

Administrative

Record.

The Agency’s

requirement that l)ynegy rely

on uncertified PM

GEMS

included

D~negy’s

appeals.

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ELECTRONIC

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2005

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a case

for

violations.

As a rcsttlt.

sotirces must

rely upon

the continuity or consistency

conditions that occurred during a successful

stack test

to provide reliable indications of P~v1

emissions levels.

47.

1-listorically, opacity has never

been used

a reliable, quantitative sunogate

for

PM emissions levels.

The

Agency itself acknowledged that opacity

is not a reliable indicator of

PM concentrations.

Sec Responsiveness Summary, pp.

15-16.

42-44.~Midwest Generation

agrees with the

Agency that

increasing opacity

may indicate

that PM emissions are increasing,

but this

is not always the

case nor

is a given opacity level an indicator of a given PM

level

at any

given time,

let alone at ditibrent

times.

Midwest

Generation’s current operating permits

require

triennial PM

stack testing, to be performed within

120 days

prior to expiration of the permit,

which has an expiration date three years following issuance,

This requirement

comprises

periodic

monitoring,

Relying on

stack testing

and operational practices

currently the best and

most appropriate approach to assuring compliance with

PM emissions limitations.

Moreover, the

compliance method

for PM emissions limitations in the NSPS

is only

through stack testing,

not

through

opacity as a surrogate

for PM.

48.

Despite the Agency’s

implications to

the contrary in the Responsiveness

Summary

(see

Responsiveness

Summary, pp.

42-44),

the permit does make opacity a surrogate

for PM compliance.

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

whether there is an exceedance of PM based

upon opacity, opacity has been quantitatively

tied to

PM compliance.

Further,

the opacity level

triggers reporting that the opacity/PM

surrogate level

“Setting

a specific level of opacity that is

deemed to

be equivalent to the applicable

PM emission

limit

not possible

on a variety of levels

would

also be

inevitable

that such

an action would

be flawed

the

operation ofa

boiler may

change overtime and the coal supply will

also change, affecting the

nature and

quantity

of the ash loading

to the ESP.

l’hese type of changes cannot be prohibited,

as they

are inherent

the

moutine operation of coal-fired powem plants.

However,

such

changes could invalidate any pre-established

opacity value.”

Responsiveness Summary, p.

44.

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ELECTRONIC

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2005

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has been

exceeded and

so there ~

have heeti an

exceedance of the

level

regardless of any

evidence to the contrary.

For example,

if the opacity/PM surrogate level

of,

say,

exceeded, this must be reported despite

the fact that all

fields in the

electrostatic precipitator

were

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 exccedance of the

emissions limitation ofo.l

lh/mrnl3ttilhr is

extremely

low.

‘Ihe purpose of such reporting

eludes Petitioner.

It does not assure compliance with the PM liniit and so inclusion of these

conditions exceeds the

Agency’s gapfilling

authority and

is,

thus,

unlawful

and arbitrary and

capricious.

Moreover, this unnecessary reporting requirement is a new substantive requirement,

according to

Appalachian

Poner,

not allowed under

litle

49.

Contrary to the

Agency’s

assertion

in the Responsiveness Summary that

opacity

provides a “robust

means

distinguish compliance operation of a coal-fired

boiler and its

ESP

from impaired operation”

(Responsiveness Summary, p. 43), the robtistness

is actually perverse.

Relying upon opacity as

a surrogate for PM emissions levels has the perverse result of penalizing

the best-operating units,

That

is, the units for

which the stack testing resulted in

very low

opacity and very low PM emissions levels are the

units for which this additional reporting will

most frequently

triggered.

For example, stack

testing at one of Midwest Generation’s units

measured PM emissions of 0.008

lb/mmBtu and

the opacity during the test at the

95°’

percentile

confidence interval was

‘his

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

~jj~y

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 gaplill, is

unlawful, and is

arbitrary and capricious.

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ELECTRONIC

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2005

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50.

Further, this condition effectively creates

false

low

opacity limitation.

order

to avoid the

implication

that there may have

been an exceedance of the

PM limit, the opacity

limit becomes that level

that is the

upper bound at

the

95~1percentile

confidence

interval

the

PM testing.

By including these conditions, the Agency

has created a new,

substantive

requirement without having complied with proper rulemaking procedures.

‘Ihis

is unlawful

and

beyond the scope of the

Agency’s authority under Section

39.5 ofthe

Act and Title

V ol’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,

push the hounds of compliance

with the PM limit in order to avoid the unnecessary recordkeeping and reporting the conditions

require, particularly for

the typically best operating units.

That

is, to identi~’

realistically

the operating conditions that would result in emissions closer

to the PM limit.9 Midwest

Generation would have to perform stack tests

with some elements

of the

ESP

turned ofL even

though they would not

be turned off during normal

operation.

‘I’esting

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 arhitrary

and capricious

recordkeeping and

reporting requirements included in

these conditions, such stack testing is called for,

despite

the

fact

that the

results of such tests will not reflect normal operation of the boilers.

This is

counter-

intuitive,

and it took Midwest Generation quite some time to grasp that this

is, at least indirectly,

what these conditions call for.

It is so counter-intuitive as

to be the antithesis of good air

Midwest

Generation’s policy

is that the boilers

be operated in

a compliant manner.

Puring stack tests,

Midwest

Ge.nemation

has consistently operated the boilers

a normal

mode,

meaning that

all pollution

control

devices

are operating,

the boiler

is operating

normal

and maximum

load,

and

forth.

test results

typically are

nowhere near the

limit.

emissions levels

during Will

County’s

last stack

tests were

0.008

lbs/mmBtu

for Unit

1,0,013

lbs/mml3tu

for Unit2, 0.075

lhslmrnHtu

for Unit 3, and 0.019 lbs/mmHtu

fom Unit4,

well in

compliance with

the PM

limitation.

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2005

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pollution control

practices,

et this

is what

the Agency

is essentially’ demanding with these

conditions,

Moreover, arguably, sources could operate at these detuned levels

and still he in

compliance with their permits

and the

underlying regulations but emit more pollutants

into the

atmosphere than they typically do now.

This

result illustrates

the perversity of the condition.

52.

Periodic

stack

testing and good operational

practices

fill Ihe

gap.

Periodic

stack

testing according

the schedule in

Condition 7.l.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.

hi fact,

“periodic stack testing”

is the Agency’s own

phrase in Condition

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

is consistent with the findings of

Appalachian

Power,

53.

Conditions 7.1.1 0-2(d)(v)(C) and (D)

in particular

are

repetitious of Condition

7.1.1 0-2(d)(iv).

i3oth require

descriptions of the same incident and prognostications as

to how

the incidents

can

prevented in

the future.

One such

requirement, Condition 7.l.lO-2(d)(iv),

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

“records

that identify the upper

bound of the

confidence

interval

(using a normal

distribution and

minute averages) for

opacity measurements

onsidering

an hour of operation,

within

which compliance with

the

PM limiq is assured, with

supporting explanation and documentation.

shall be submitted

the Illinois EPA in accordance with Condition 5.6.2(d).”

Obviously, ifCondition

5.6,2(d)

denies Midwest Generation

due process,

Condition 7.1.9(c)(ii)

does

well for the

same reasons.

Midwest Generation was

not granted the opportunity to

appeal

the condition before

was required to

submit to

the Agency information that Midwest

Generation

believes

is not useful or reliable.

Midwest Generation

is particularly loathe to

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ELECTRONIC

FILING,

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2005

POB 2006-060

provide

the Agency with

this information because

it believes that the

information

will

misconstrued and misused.

55.

l”inally,

Condition

7.1 .1O-2(d)(vi)

requires Midwest Generation to

submit

glossary of “common technical terms used

the

Perrnittee”

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”comnion technical

terms” do

not require definition in

other contexts in this

permit, then surely they

not require

definition in this context.

This requirement should be

deleted

from

the permit.

56.

Consistent with the APA,

Conditions

7.1 .9(c)(ii), 7.1 .9(c)(iii)(B), 7.1.10-1(a).

7.1 .l0-2(a)(i)(E), 7.1.1 0-2(d)(iv),

7.1.1 0-2(d)(v),

7.1.1 0-2(d)(v)(A), 7.1.1 0-2(d)(v)(13),

7.1.10-

2(d)(v)(C),

7,1. 10-2(d)(v)(D). 7.1,1 0-2(d)(vi),

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

contested herein,

and any other related conditions that the Board finds apptopriate are

stayed, and Midwest

Generation requests that the Board order the Agency

to delete these

conditions,

(ii)

Reporting the Magnitude of PM

Emissions

57.

Somewhat consistent with its

direction for PM, or, charitably, arguably

so, the

Agency also

requires Midwest Generation to determine and report

Ihe

magnitude of PM

emissions during startup and operation during malfunction and breakdown.

See Conditions

7.1

.9(g)(i),

7.1 .9(g)(ii)(C)(5), 7.1 .9(h)(ii)(D)(3), and 7.1. 10-2(d)(iv)(A)(3).

Compliance with

these conditions is an impossibility

and. therefore, the inclusion 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

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2005

PCB 2006-060

opacity surrogate.

‘l’here

not a certified. credible. reliable alternative

to stack testing

measure PM emissions.

58.

Additionally, Condition

7.1, 10-2(

)(iv)(A)(’S) requires Midwest Generation to

identify “the

means

by which the

excecdance

the

emissions limit

was indicated

identified,

in addition

to the level of opacity.’

Midwest Generation believes that this means that

must

provide information relative to any other means,

besides opacity

—

which, as

discussed

detail

above.

Midwest Generation

believes

is an inappropriate and inaccurate basis for

determining whether there are exeeedanees of

the

limit,

let alone the magnitude of any such

exeeedance

—

that Midwest Generation relied

upon

10 determine (here was an exeeedance of

the

limit.

Besides stack testing or perhaps total shutdown of the

ESP, there

are

none.

59.

Consistent with the A1~A.Conditions

7.1 .9(g)(i),

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

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

and7.l .10-2(

)(iv). specifically 7.1.1

0-2(

)(iv)(A)(3) and

(5),

contested

herein,

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

these conditions

from

the permit.

(iii)

PM Testing

60.

Midwest Generation interprets the

language in

Condition 7.1 .7(a)(i)

to mean that

stack testing that occurs after December31, 2003,

and before

September 29, 2006,

satisfies the

initial

testing requirement included

in the permit.

1-lowever,

the language is not

perfectly clear,

and should be clarified.

61.

The Agency has included a requirement in the

permit at Condition

7.1.7(b)(iii)

that Midwest Generation perform testing for PM 10 eondensibles.’° First, this requirement is

‘°

Condeusthie

is the Board’s

spelling

the regulations and

in scientific publications, thus

ourspelling ofit here

despite the Agency’s chosen spelling

the permit, which

is the preferred spelling

the

webster’s dictionary.

See

lIl.Adm.Code

212.108.

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ELECTRONIC

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2005

PCB 2006-060

beyond the scope of the

Agency’s authority to

include

a CAAPP permit,

as such testing

is not

“applicable requirement,” as discussed

in detail

below,

Second, even if the condition

were

appropriately

included in the permit, which Midwest Generation

does

not

any means

concede,

the language of Condition

7.1 .7(b)*

is not

clear as

the

timing of the required testing, largely

because Condition

7.1 .7(a)(i)

is not clear.

62.

With respect

to the inclusion of the

requirement for Method

202 testing

Condition

7.1 .7(b)(iii) at all

a CAAPP permit, the Agency has

exceeded

its authority and the

requirement should he removed

from

the permit.

the

least, the requirement should

be set

aside

state-only portion of the CAA1~P

permit,

although Midwest Generation

believes

its

inclusion

in any permit would he

inappropriate because there is no

regulatory requirement that

applies

PM 10 limitations to the Will County Generating Station.

In response

to comments

this point,

the Agency stated

the Responsiveness Summary at page

18, “The requirement for

using both Methods

and 202 is authorized by

Section 4(b) of the Environmental Protection

Aet.’

Midwest Generation does not question the

Agency’s authority to gather

information.

Section

4(b) of the Act says,

‘l’he

Agency shall have the duty to collect and disseminate such

information, acquire

such technical data,

and conduct such

experiments as

may be required to carry out the purposes of this

Act, including ascertainment of the quantity and nature of

discharges

from any contaminant source

and data on those sources,

and

to operate and arrange for the operation of devices for the

monitoring of environmental quality.

415

ILCS

5/4(b).

However, this authority

does

not

make testing for PM1O condensibles an

“applicable requirement”

under Title V.

As discussed above, an “applicable requirement”

is one

applicable to the pcrinittee pursuant to a federal regulation or a

SIP.

The asterisk is

in the permit.

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63.

Further. simply because Method

202

is one of USEPA’s

rcierenee methods does

not

make it

an “applicable requirement” pursuant to Title V.

the Agency

suggests

the

Responsiveness Summary.

Ihe

structure of the 13oard’s

PM regulations establish the applicable

requirements for the

Will

County

Generating Station.

The

Will

County Generating Station is

subject

the requirements of 35

Ill.Adrrt.Code

21 2Suhpart

F, Particulate Matter

Emissions

from

Fuel

Combustion Emission Units,

It is not

and never has been

located in

a PMI 0

nonattainment

area.

The

Hoard’s I’M

regulations

are structured such that particular PM

requirements

apply to identified sources located

in the

PMIO nonattainment areas. ~

No such

requirements

apply now or have ever applied to the

Will County Generating

Station.

64.

The measurement method

(hr

PM,

referencing only

Method

5 or derivatives

ol’

Method

is at 35

I1l.Adm.Code

212.110-

‘fhis section of the Board’s

rules applies

to the Will

County Generating Station.

The measurement method for PMIO, on the other hand, is found at

lll.Adm.Code

212.108,

Measurement Methods for PM-b

Emissions

and Condensihle

PM-

Emissions.

This section

references both Methods Sand

202, among others,

Not

subject to

l’MlO

limitations, the Will

County

Generating Station is nol

subject

212.108, contrary to the

Agency’s attempt to expand its applicability

in the

Responsiveness Summary by stating,

“Significantly, the use of Reference Method

202 is not limited

by geographic area

or regulatory

applicability.”

Responsiveness Summary, p.

18.

This is certainly a true statement if one is

performing a test of condensihles.

Flowever,

this statement does

not expand the requirements of

212.110

to include PM 10 eondensible testing when the limitations applicable to the source

pursuant

to 2l2.Subpart E are for only PM, not PMIO.

Therefore, there is no

basis for the

feet,

thereare

PMIO

nonanainment areas

in the state.

See

70 FedReg.

55541

and

55545

(September

22, 2005), redesignating to

attainment the MeCook

and

Lake

Calumnet nonattainment

areas, respectively.

Presumably, these sources will

remain subject

tn those requirements as pan of Illinois’

maintenance plan.

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Agency to require

the CAAPP

permit, which

is limited

to including

only applicable

requirements and such monitoring,

reeordkeeping, and reporting that

are necessary to assure

compliance, that the Will

County Generating

Station

he tested

pursuant to Method

202.

65.

The

Agency even concedes

in the

Responsiveness

Summary

that Method 202 is

not

an applicable requirement:

‘l’he inclusion

of this requirement in these CAAPP

permits. which

relates to full and complete quantification of emissions.

4cjes not

alter the test measurements that are_applicable for determining

compliance with PM emissions standards and li~j~tions

which

generally_do not include cqpdcnsable

sic

I’M emissions.

addition, since condensable

sic’

emissions are not

suhiectlo

emission standards.

Responsiveness Summary. p.

18.

(Emphasis added.)

Further,

the

Agency

says, “Regulatorily.

only filterable1141

PM emissions need to be

measured,”

Responsiveness Summary,

18.

lhe

Agency attempts to justify inclusion

of the

requirement for testing condensibles by stating that

the data are needed

to “assist in

conducting assessments of the air quality impacts of power

plants,

including the Illinois EPA’s development of an

attainment strategy

for PM2.5” or

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,

is limited

to testing

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

“regulatory applicability” is,

indeed, limited,

These

attempted justifications do

not convert testing for condensibles into

an applicable requirement.

66.

While the Agency has a duty under

Section 4(b) to

gather data,

it must be

done in

compliance with

Section 4(b).

Section

4(b),

however, does

not create

authorize the creation

permit conditions.

~l’heBoard’s rules

serve

as the basis for permit conditions.

‘l’herefore,

‘~

Le..

non-gaseous PM; condensibles are gaseous.

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Midwest Generation

does dispute that requiring such testing

in the

CAM’!’ permit is appropriate.

fact,

is definitely not appropriate.

is unlawful

and exceeds the

Agency’s authority.

67.

The requirement for Method

202

testing must he deleted

from the permit.

Consistent with the APi~,

Condition

7.1.7(b) 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 (:oncentrations

68.

The

CAAPP permit

issued to the

Will

County Generating Station requires

Midwest Generation

to conduct, as a work

practice, quarterly

‘combustion evaluations” that

consist of “diagnostic

measurements of the

concentration of CO

in the

flue gas.”

See

Condition

7.1.6(a).

See

also

Conditions

7.1 .9(n)(vi) (related

recordkeeping requirement). 7.1 .bO-l(a)(iv)

(related reporting requirement), anti 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

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 Will County’s

best interests to operate its boilers optimally and because ambient CO levels are

so low,’5

compliance with the CO limitation has been accomplished through combustion optimization

(.S

The highest one-hour

ambient

measure

ofCO

the state

2003

was

Peoria:

5.3

ppm; the highe.st&~ur

ambient

measure in

the state

was

in Maywood:

3.5

ppm.

Illinois

Fnvironmeatat Protection

Agency,

Illinois

Annual Air

Quality Report 2003,

Table

37,

57.

‘the one-hour standard

is 35

ppm,

and

the 8-hour

ambient

standard is

9 ppm.

lll,Adrn,Code

243.123.

Note:

The

Illinois Annual Air

Qhiality Report 2003

is the latest

available data

Illinois

EPA’s

website at

www.epa.state.iLus

Air-)

Air Quality Information 3

Annual Air

Quality

Report 3

2003

Annual

Report.

The 2004

report

is not yet available.

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2005

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techniques historically at power plants.

‘here

is no

reason

to change this practice at this point.

Ambient air quality is

not threatened,

and stack testing has demonstrated

that emissions

of CO

all of the Midwest Genenttion stations

that have recently been

tested are significantly below the

standard of 200 ppm.

69.

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

monitor and record emissions of a pollutant that stack testing demonstrates they comply with

—

by a comfortable

margin-

and

for which the ambient air quality

in compliance by

a huge

margin

overly burdensome and, therefore, arbitrary and capricious.

In order to comply with

the “work

practice”’6 of performing “diagnostic testing” that yields a concentration of CO.

Midwest Generation must purchase and install or operate

some sort of monitoring devices.

‘I’he

units at the Will County Generating

Station. do

not

have CO duct monitoring capability, and

neither unit has

such monitoring capability in the stack,

‘!‘herefore,

Midwest Generation is

effectively required to purchase and install monitoring devices to comply with this condition

with no environmental purpose served,

70.

Furthermore, the

Agency has failed to provide

any guidance

as to how to perform

diagnostic measurements of the concentration of CO in the

flue

gas.

It is Midwest Generations’

understanding that

a sample can

be extracted from any point

in the furnace or stack

using a

probe.

This sample can then be preconditioned (removal of water or particles, dilution with air)

and analyzed.

The way in which the sample

is preconditioned and analyzed, however, varies.

Given the lack

of guidance and the variability

in the way the concentration of CO in

the flue gas

can be measured,

the data generated is not sufficient to assure compliance with the CO limit and

Midwest

Generation questions how

the

requirement

that the

Agency

has included

Condition 7.1.6(a)

classified as

a ‘work

practice.”

To derive a

concentration of CO emissions, Midwest Generation will

have

engage in

monitoring or testing

—

the

work

practice of combustion

optimi7~ltionthat has been the standard

historically.

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is.

therefore, arbitrary and capricious.

Stack testing,

the other hand, does yield data

sufficient

to assure compliance with the CO

limit,

71,

In addition, the permit requires at Conditions

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

7.1 ,9(h)(ii)(

))(3)’’

that Midwest Generation provide estimates of the magnitude ofCO emitted

during

startup and operation during

malfunction and breakdown.

The monitoring device that

Midwest Generation

would utilize for the quarterly diagnostic evaluations required by

C.ondition

7.1.6(a)

is a portable

monitor.

So far as Petitioner knows, portable

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.! .9(g)(ii)(C)(5), and 7.1.9(h)(ii)(D)(3)

is that someone continually read

the portable

monitor during startup, which could take

as long as

hours,

and daring malfunctions and

breakdowns, which are by their nature

not predictable.

In the first

case (startup),

the requirement

is unreasonable and overly

burdensome and perhaps dangerous in some weather conditions;

the second

ease (malfunction and breakdown), in addition

to the same problems that are

applicable during startup,

it may be

impossible for Midwest

Generation to comply

with

the

condition.

72.

The

requirement to

perform

diagnostic measurements of the concentration of CO

in the flue gas is arbitrary and capricious

because the Agency has failed

to provide any guidance

as to 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 of CO in the flue

gas in the manner specified

in Condition 7.1.6(a).

“

Related conditions

are 7.1, lO-1(a)(iv)

(reporting) and 7,1.12(d) (compliance

procedures),

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73.

USEI’A has

not required similar conditions in the

permits

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 USEPA and is appropriate

for CO in the

permit

issued to the

Will

County

Generating Station.

74.

Consistent with the

APA,

Conditions

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

7.1

.9(g)(i).

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

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

7.1

.lO-1(a)(iv),

and 7.1.12(d)

the extent that Condition

7.1.12(d)

requires the quarterly diagnostic rneasurenients and estimates

emissions during

startup and malfunction/breakdown, 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 dtuing startup

and malfunction and breakdown, and to amend

the corresponding reeordkeeping, reporting, and

compliance procedures accordingly.

Applicability of

IIl.Adm.Code 217.Subpart

75.

‘fhe Agency has included the word

each

in Condition

7.1.4(1):

“The affected

boilers are each subject to the following

requirements

(Emphasis

added.)

Because of the

structure and purpose of 35 Ill.Adm,Code

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

NOx

emissions rate from certain coal-fired power plants during

the ozone season average

than 0.25

lb/mmfltu 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 Will

County

Generating Station to average emissions among affected units in infinite

combinations.

76.

Consistent with the

APA, Conditions

7.1.4(1) and 7.1 .4(f)(i)(A) are stayed, and

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

each from the

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ELECTRONIC

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2005

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sentence quoted above

in (‘ondition

7.1.4(f)

and

to insert the word each

Condition

l.4(f)(i)(A) if the

Board agrees that its inclusion

necessary at all, as

follows:

“The emissions

of NOx from an each affected boiler.

(vi)

Startup

Provisions

77.

is allowed by

Illinois’

approved Title

V program, CAAPP

permits provide

affirmative defense against enforcement actions brought against

permittee

for emissions

exceeding an emissions

limitation

during startup.

‘he

provisions

in the Board’s rules allowing

for operation of a CAAPP source during

startup are located

lll.Adm.Code 20l.Subpart

l’hese provisions,

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

201.263,

the provision that the Agency cited as the regulatory

basis

for

Condition

7.1.9(g), do

not address startup at all;

is limited

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.

78.

Midwest Generation is already required to

provide

information regarding when

startups occur and how long they last

Condition

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

Condition

7.1 .9(g)(ii)(B)

requires some

additional

information relative

to startup.

Emissions of SO2, NOx, and opacity

during startup are

continuously monitored

the CEMS/COMS.

Midwest Generation has

already

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

(see

above).

‘ftc additional

information that the Agency requires

in Condition

7.1 .9(g)(ii)(C) after a

six-hour period does nothing

to assure compliance

with the emissions

limitations, which is the

purpose of the

permit in the

first place, and so exceeds the Agency’s authority to

gapfill.

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Moreover, this “additional” information would serve

no purpose

were it

to he

required even

after

the

20 hours typical for startup.

79.

Consistent with the i\PA. Condition

7.1 .9(g)(ii)(C), contested herein.

is stayed,

and Midwest

Generation requests that the

Hoard

order the Agency to delete the

condition,

consistent

with the

startup provisions of 35

lll.Adni.Code

201.149 and the inapplicability of

201.263.

(vii)

Malfunction

and Breakdown Provisions

80.

Illinois’ approved Title V program allows

the Agency to grant sources the

authority to operate during

malfunction and breakdown, even though the source emits in excess

of its limitations, upon certain showings

by the permit applicant.

The authority must

expressed

in the permit,

and the Agency

has made stich a grant of authority to Midwest

Generation

for the Will

County

Generating Station.

This grant of authority

serves only as

affirmative defense in an enforcement action.

Generallvsee

Condition 7.1.3(c).

SI.

Condition

7.1. I0-3(a)(i) requires that

Midwest Generation notify the

Agency

“immediately” if it operates during malfunction

and breakdown

and there ~ld

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 noti~’

it of the mere ~ppg~jtion

that there

have been

PM exceedances.

The

Agency has provided no regulatory basis for reporting

suppositions.

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

investigate whether operating conditions are

such that support

or negate the likelihood that there

may have been PM emissions excecdances during the malfunction and breakdown,

Ihough

Midwest Generation does not believe that even this is necessary,

since the Agency

lacks a

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ELECTRONIC

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2005

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regulatory basis

for this requiremeni

the first place.

Reference to

reliance on

opacity as

indicator of PM emissions should be deleted.

The condition

as written exceeds the scope of the

Agency’s authority to gapfihl

and

so is unlawful, arbitrary

and capricious.

82.

Also

in Condition

7.1.1 0-3(a)(i).

the Agency

has deleted the word

consecutive

a trigger for reporting opacity and

potential PM

exceedances during

an “incident”

in the final

version of the permit.

Versions

prior to the

July

2005

version

include

that word.

Its deletion

completely changes the scope and applicability of the condition.

Please see

Midwest

Generations

comments

on each version of the permit in the Agency Record.

As the series of

comments demonstrates,

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

the same.

83.

Ihe 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

retain the word

consecutive

in the

condition

(or add

it back

in to

the condition).

Random, intermittent exceedances of the opacity limitation do not necessarily comprise a

malfunction/breakdown “incident.”

On the other hand,

a prolonged period

of opacity

exceedanee does possibly indicate a malfunction/breakdown

“incident.”

In the alternative,

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

or more six-minute opacity

averaging periods could occur to

be consistent with the next

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

Likewise, a timeframe is not included in Condition

7.1.1 0-3(a)(ii),

which appears to refer

to the

same “incident” that is addressed by Condition

7.1. 10-3(a)(i).

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ELECTRONIC

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2005

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Midwest Generation

suggests that the Agency qualify

the

length of time

during which the

opacity standard may have

been exceeded

for two

or more hours to 24

hours.

84.

Consistent with the

APA,

Condition

7.1.1 0-3(aXi).

contested

herein,

is stayed, and

Midwest Generation requests

that the Board order the

Agency

delete

from

the

permit as

relates to

PM.

Consistent with

the

;IPA,

Condition

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

herein, and

Midwest Generation requests that the Board order the

Agency to remove the

reference to PM

emissions and to insert a timeframe to span

the six-minute

opacity averaging periods to make

them consecutive or,

in the alternative, to require that they occur within a two-hour block.

(viii)

Alternative

Fuels Requirements

85.

The Agency has included

at Conditions

7.1.5(b)(ii)-(iv) requirements

that become

applicable when

Will County uses a fuel other than coal

its principal

fuel.

Condition

7.l.5(b)(ii) identifies what constitutes using an alternative fuel

as the

principal fuel

and

establishes

emissions limitations,

Condition

7.1 .5(b)(iii) also describes the

conditions under

which

Will County

would

he considered to be using an alternative fuel

as its principal fuel.

Condition

7.1.5(b)(iv) requires notification to the

Agency prior to Will County’s use ofan

alternative

fuel as its

principal fuel.

86.

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

Condition 7.1.11(c),

operational flexibility, where the Agency already has

provision addressing alternative fuels.

As the Agency has adopted a structure

for the CAAPP

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2005

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permits

that

fairly

consistent

not only among units

in a single permit but also among permits,

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.

87.

Additionally,

at Condition

7.1.1

1(c)(ii). the Agency’s placement of the

examples

of alternative fuels

defines them

hazardoLls wastes.

The

intent and purpose of the

condition

are

to ensure that these alternative

fuels are

not classified as hazardous wastes.

The

last phrase

of the condition,

beginning with “such

as petroleum

coke, tire derived fuel

should be

placed

immediately after “Alternative

fuels” with

punctuation and other adjustnients to the language

necessary, to clarify

that the examples

listed

are

not hazardous

wastes.

88.

For these reasons, Conditions

7.1

.5(h)(ii),

7.1

.5(b)(iii).

7.1 .5(hXiv). and

7.1.11

(c)(ii)

are

stayed

pursuant to

the

APA, and

Midwest Generation requests

that the Board

order the

Agency to place Conditions

7.l.5(h)(ii)-(iv)

more appropriate sections of the permit

and to

clarify Condition

7.1.11

(e)(ii).

(ix)

Stack Testing Requirements

89.

Conditions

7.1.7(e) identifies detailed information

that is

included in

the

stack

test reports,

including

target

levels and settings.

To the extent that these requirements are

or can

he viewed as

enforceable

operational requirements or parametric

monitoring conditions,

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

‘~

That is,

Condition ?.x.9

for all types

of emissions

units

in this

permit,

from

boilers

to tanks, addresses

recordkeeping.

Likewise, condition 7x9

addresses recordkeeping

all of the CAAPP permits

for EGtJs.

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te~1ing

provides a snapshot of operating conditions witiiin

the

~copeof the

operational

paradigm

set

forth in the permit

at Condition 7.1.7(h) that is

representative of normal

maximum

operating conditions, hut

using those settings

‘as some type of monitoring device or parametric

conipliance data would

be inappropriate.

(x)

Monitoring

and Reporting

Pursuant

to NSI’S

90.

It appears

from various conditions in the permit

that the Agency

believes that Will

County

subject to NSPS monitoring and reporting requiremcnts pursuant to the ,Acid

Rain

Program.

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

not

reveal how the Agency arrived at this conclusion.

This

is an example

of how a statement of

basis

the Agency would have been very helpful.

li~eAcid

Rain Program requires monitoring

and reporting pursuant to 40 CFR Part 75.

Specifically, 40 (JFR

7521(h)

states that

continuous opacity monitoring shall

be conducted according

procedures set

forth in state

regulations where they exist.

Rccordkceping is addressed at

75.57(t) and reporting at

75.65.

None of this references Part 60,

NSPS.

91.

Arguably,

odd that

a permittee 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

pennit, and the Board’s regulations, it

must also appeal Condition 7.1.5(c), which exempts Will County from the requirements of 35

Ill.Adm.Code 201.Subpart L based upon the applicability ofNSPS.

NSPS does not apply to the

Will County Generating Station through the Acid Rain Program, and so this condition

inappropriate.

92.

Conditions 7.1.10-2(h)(i), 7.1.l0-2(c)(i), and 7.l.l0-2(d)(i) require Midwest

Generation

to submit summary information on the performance of the SO2,

NOx, and opacity

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continuous

monitoring systems, respectively, including the

information specified at 40

CFR

60.7(d).

Condhion

7.1 .lO-2(d)(iii)

Note refers, also, to

NSPS

§~

60.7(c) and (d).

The

infonnation required at

6t).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)

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

mid

deploying additional software for the computerized CEMS. effectively

resulting

in the imposition of additional suhstantive requirements through

the CAAPP permit

beyond the

limitations ofgapfilling.

Moreover, contrary

to Condition

7.1.1 0—2(d)(iii), Midwest Generation

does

not

find

a regulatory

link between the

NSPS

provisions of 40 CFR 60.7(c)

and (d) and the

Acid Rain Program.

93.

Consistent with the APA, Conditions 7.1.5(h).

7.1. l0-2(bXi). 7.1. l0-2(c)(i),

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

Note, contested herein. are stayed, and

Midwest Generation requests

that the

Board order the Agency

to delete

reference to 40 (‘1k

60.7(d).

(xi)

Opacity Compliance Pursuant to

212.123(b)

94.

The

Board’s regulations at 35

lll.Adm.Code

212.123(h) provide that a source

may exceed the 30

opacity

limitation of

212.123(a) for an aggregate of eight nunutes 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

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

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

212.123(b) must reprogram

its COMS to

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record opacity over a difl’erent timeftanie

than would he reqtnred 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

212.123(a) at Condition

7.1.1 2(a)(i) and separately

addressing

212.123(h) at Condition

7.1.l2(a)(ii).

Additionally,

the Agency requires Midwest Generation

provide it with

days’ notice prior

to changing

its procedures to accommodate

2 12.123(h)

at Condition

7.1.1 2(a)(ii)(F).

These conditions

raise several

issues.

95.

First, Condition 7.1. 12(a)(ii) assumes that accommodating

the “ditlbrent’

compliance requirements of

212.123(h), as compared

212.123(a), is a change in operating

practices.

In fact,

is not.

Midwest Generation has been capturing

opacity data

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

the Agency pursuant to

Condition 7.l.12(a)(ii)(E),

because no change

is oceuning.

However,

Midwest Generation suspects that Agency assumes

that

it has not

made this so-called change

yet.

Midwest Generation requests clarification horn

the Board that such reporting is not required

where the permittee has already accomplished the

“change” in

data capture prior to issuance

of the CAAPP permit and that no recordkeeping and

data handling practices must be submitted fbr Agency review.

96.

Second,

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

7.1.l2(a)(ii)(E)

is an attempt by the Agency to insert itself into the operational practices of a

source beyond the scope of its authority to do

so.

The

Agency states that the

purpose of the

days’ prior notice is

so that the Agency can

reviewthe source’s reeordkeeping and data handling

procedures, presumably to assure that they will comply with the requirements implied by

212.123(b).

As with Condition 5.6.2(d),

the risk lies with the permittee.

If. during an

inspection or

a review of a quarterly report, the Agency finds that Midwest Generation has not

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complied with

212.1 23(h)s

mplied data collection

requirements, then the Agency is

authorized

the Act to

take certain actions.

Midwest Generation

is quite capable of taking the

responsibility

tbr the

data capture and recordkeeping necessary

for compliance

with

212,123(b).

97.

Moreover,

while Condition

7.1.1 2(a)(ii)(E) says that the

Agency will

review the

recordkeeping and data handling practices of the

source,

it says nothing

about approving them

what the Agency

plans to do with the review.

ftc Agency has not explained a purpose of the

requirement

in a statement of basis

document or

its Responsiveness

Summary or shown how

this open-ended condition assures compliance with

the applicable requirement.

Because the

Will

County Generating Station

is required to operate a COMS, all

of the opacity readings captured

the COMS are recorded and available

to the Agency.

The

Agency

has had

ample opportunity

to determine whether Will County

has complied with

212.123(b).

Midwest

Generation’s

providing

days’

prior notice of its “change” to accommodating

212.123(b)

will

not improve

the Agency’s

ability to determine

Will County’s

compliance.

98.

Conditions 7.1.1 0-3(a)(i) and (ii)

not accommodate the applicability of

212.123(b).

‘Ihe Board’s regulations do not limit when

212.123(b)

may apply beyond eight

minutes per

60 minutes three times per

24 hours.

Therefore, any limitation on opacity must

consideroraccommodatcthe applicability of~212.123(b) and

not assume or imnplydhattheonly

applicable opacity limitation

is 30.

99.

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,

the extent that they are appropriate

in the first place, should

he included

in the proper

sections of the pernut,

such as 7.1.9

for

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recordkeeping and

7.1

.1(1

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 hut

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.

100.

Consistent with the APA,

Condition

7.1.1 2(a)(ii), contested herein,

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

delete

these conditions

from

the permit pursuant to other requests

raised in this appeal, Midwest Generation requests that the

Board order the Agency to amend these

conditions to reflect the applicability of~212

123(b).

Coal Handling Equipment,

Coal Processing Equipment, and liv Ash Equipment

(Sections

7.2, 7.3,

and

7.4)

(i)

Barge

Unloading and Loading

101,

Midwest Generation employs barge unloading and loading as

another tneans

transferring coal

Barge loading should be listed at Condition

7.2.2 after “barge unloading”.

For

these reasons, Condition 7.2.2, contested herein,

is. stayed, and Midwest Generation requests that

the Board order the Agency

to add barge loading to the description of the

coal receiving

operations at the

Will

County Generating Station.

(ii)

Fly Ash Handling v. Fly Ash Processing Operation

102.

No processing occurs within the fly ash system.

It is a handling and storage

operation the same as

coal handling and storage.

The Agency

recognizes in Condition

7.4.5 that

the NSPS

for Nonmetallic Mineral Processing Plants does

not

apply “because there is

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eqtitpnicnt

used

crush or grind ash’’

‘Ibis

underscores Midwest Generatiomis

point

that the

fly

ash handling system is

not a process.

103.

Because the

fly ash operations at the

Will County

Station are not a process, they

are not subject

to the process weight rate rule at

212.321(a).

Section

212321(a)

is not

applicable

requirement under Title V.

since the

fly

ash operation

is not a process.

“

I’he process

weight tate

rule

not a legitimate applicable requirement

and so

is included

the

permit

impermissibly.

Condition

7.4.4(c) and all

other references to the

process rate weight rule

212.32 1(a),

including in

Section

It)

of the permit,

should be deleted,

104.

Since the

fly ash operation is

not a process, reference to

as a process is

inappropriate.

The word

process

and its derivatives in Section

7.4 of the

permit should he

changed to

opera/ion

and

its appropriate

derivatives or,

in one instance,

hand/ed.

to ensure

that there

is no confusion

the applicability

212.321(a).

1(35.

Consistent with the

APA. the Conditions 7.4.3, 7.44,

7.4.6, 7.4.7, 7.4.8.

7.4.9.

7.4.10, and

7.4.11, all

of which

are contested

herein, are stayed,

and Midwest Generation

requests that the

Board order the Agency to delete the Conditions

7.4.4(c),

7.4.9(h)(ii), and all

other

references

to the process weight rate rule,

including in

Section

10, and add Condition

7.4.5(b)

identi lying

212.321(a) as a requirement that

is not applicable to Will

County.

(iii)

Fugitive

Emissions Limitations

and Testing

106.

‘Ihe Agency has applied the opacity limitations of

212.123

to sources of fugitive

emissions at the Will

County Generating Station through Conditions

7.2.4(b), 7.3.4(b), and

7.4.4(b), all

referring back to Condition 5,2.2(b).

Applying the opacity limitations of~2 12.123

Midwest Generation

does

not

dispute

the Agency’s

insistence

that

fly ash handling

is subject to

the process

weight rate mie because it cannot

comnply;

fact, Midwest Generation complies by

impressive margin.

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to sources of fugitive emissions

is improper and contrary

to the

Board’s regulatory structure

covering PM emissions.

In its response to comments

to this effect, the Agency

claims that:

njothing

in the

State’s air pollution control

regulations states

that

the opacity limitation does not

apply- to

fugitive emission units.

The regulations at issue

broadly

apply to

‘emission units.’

Moreover, while not applicable to these power

plants, elsewhere in

the

State’s air pollution control

regulations. opacity limitations

are

specifically set

for fugitive particulate matter emissions at marine

terminals, roadways, parking

lots and storage piles.

Responsiveness Summary, p.41.

107.

‘l’hat 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

fugitive sources,

Fugitive emissions are

distinctly different in nature

from point

source emissions.

in that point source emissions arc emitted through a stack,

while

fugitive emissions are not emitted through some discrete point.

Therefore,

fugitive emissions are

addressed

separately in the

Board’s rule at 35

Ill.Adm,Code 212.Suhpart

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.

108.

The

limitations for fugitive emissions are set forth at

212.301.

It is a no-visible-

emissions standard,

viewed at the

property line of the source.

The measurement methods for

opacity are set forth at

2 12.109, which requires application of Method

9 as

applied to

2 12.123.

includes specific provisions for reading the

opacity of roadways

and parking areas.

However,

212.107, the measurement method for visible emissions, says, “l’his

Subpart shall

not apply to

Section 212.301 of this Part.”

Therefore,

with the exception ofroadways

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 forth

212.301.

This

reinforces the discussion

above

regarding

the structure of Part

212 and that

212.123

does not apply to

sources of fugitive

emissions other than where

specific exceptions to

that general nonapplicahility are set

forth in the regulations.

109.

212.107 specifically

excludes the

applicability of Method

9 to

fugitive

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

are clearly inappropriate

and do

not reflect

applicable requirements.

Therefore, they, along with Conditions

7.2.4(b),

7.3.4(b), and 7.4.4(h), must

he deleted

from

the permit.

Except

for roadways and parking lots,

212.123

not

applicable requirement

for ftgitive emissions sources and the Agency’s

inclusion of conditions

for fugitive

sources based

upon

212.123

and

Method

9 is

unlawful.

the extenl that Condition

7.2.12(a), 7.3.12(a).

and 7.4.12(a) rely on Method

for demonstrations

of compliance, it, too,

is unlawful.

110.

The Agency

also requires stack

tests of the haghouses at Conditions 7.2.7(b),

7.3.7(b). and 7.4.7(h).

PM stack testing would he conducted in accordance

with Test Method

However,

a part of complying with MethodS

is complying with

Method

1, which establishes the

physical parameters necessary to test.

Midwest Generation cannot comply with Method

The

stacks and vents for such

sources as

small baghouses and wetting systems are

narrow and not

structurally built to accommodate testing ports and platforms

for stack testing.

The PM

emissions for these types of emissions units are ver

small.

The inspections, monitoring, and

recordkeeping requirements are sufficient to assure compliance.

These conditions should

deleted

from the permit.

Ill.

For these reasons,

consistent with the APA, Conditions 7.2.4(b).

7.2.7(a), 7.2.7(b)

7.2.12(a), 7.3.4(b), 7.3.7(a), 7.3.7(b), 7.3.12(a), 7.4.3(h),

7.4.7(a), 7.4.7(b), and 7.4.12(a), all

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contested herein. are

stayed. and Midwest Generation requests that the

Board order the Agency

delete these conditions to the extent that they require compliance with

2l2.l23

and Method

9 or

stack testing and, thereby. compliance with Methods

and

(iv)

Temporary

Fly

Ash

Storage “Facility”

112.

Condition

7.4.3(h)(iii) refers

to a storage

“facility” for temporary

storage of fly

ash should that become necessary.

The

implication of the wordft;c///~v

is a building

or other

type of enclosure.

Midwest Generation objects

to the use of the

word

futility

without

clarification that

it includes temporary

storage in

piles on the ground.

For this reason,

consistent

with the APA,

Condition 7.4.3(h)(iii), contested herein,

stayed, and Midwest Generation

requests that the

Board order the

Agency to clari~’

the

condition appropriately.

(v)

Testing Requirements

for

Coal

handling, Coal Processing, and

Fly

Ash Handling

Operations

113.

The

final permit

provides at Condition 7.4.7(a)(ii) that Midwest Generation

conduct the opacity testing reqtnred

at Condition 7.4.7(a)(i) for a period of at least

30 minutes

“unless the average opacities

for the first

minutes of observation (two six-minute averages)

are both less than 5.0 percent. ~‘~1’he

original drali

and proposed permits (June

2003 and October

2003, respectively) contained no testing requirement for fly ash handling.

This testing

requirement first appeared

in the draft revised proposed permit of December 2004, and at that

time allowed for testing to he discontinued ifthe first

12 minutes’

observations were both less

than

10.

In the second draft revised

proposed permit (July

2005),

the Agency inexplicably

reduced the threshold for discontinuation of the test to 5.

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114.

lhe Agency

provided

no explanation

fOr (1) treating fly

ash handling

di lièrentlv

from coal handling in this regard (see Condition

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

from

to 5.

Because the

Agency has not

provided

an explanation

for this change at the time that

the change was made to provide Midwest Generation with the opportunity, at

worst, to try

understand the Agency’s rationale or to comment

the

change,

the inclusion of this change

the threshold

for discontinuing the

opacity test

arbitrary and capricious.

Condition

7.4.7(a)(ii)

inextricably entwined with

7.4.7(a), and so Midwest Generation must

appeal

this underlying

condition as

well.

115.

For

these reasons, Condition 7.4.7(a), which

is again contested

herein,

is stayed,

and, without conceding its appeal

of these conditions as to their appropriateness at

all,

stated

above, Midwest

Generation requests that ifthe conditions must remain in the

permit the Board

order the Agency

amend Condition 7.4.7(a)(ii)

to reflect

the

threshold,

rather

than the 5

threshold,

for discontinuation of the

opacity test, although Midwest Generation specifically does

not concede that

Method

measurements are

appropriate

the first place.

(vi)

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

Operations

116.

Conditions

7.2.8(a). 7.3.8(a), and 7.4.8(a) contain inspection

requirements for the

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

respectively.

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,

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

minutes

(five 6-minute

averages) unless

the average

opacities

for

the first

minutes of observations

(two

6-minute

averages) are both

less than

0.0

percent.”

(Emphasis

added.)

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the inspection should

he “~fresh’”and “independent”’ of the daily

operation, hut

the Agency

does not tell us why being “fresh” and “independent” are “appropriate” qualifications

for such

inspector.

The Agency rationalizes

that

Method

22,

i.e.,

observation for visible emissions.

applies, and

so the inspector need have

no particular skill

set.

The opacity

requirement for these

operations

is not

or no

visible emissions at the point of operation, hut rather at the property

line.

Therefore, exactly what the observer is supposed to look at

is not at all

clear.2’

117.

There is no basis

law

or practicality for this provision.

To identify

a CAAPP

permit condition

who can

perform an

inspection

is overstepping the Agency’s authority and

clearly exceeds any gapfilling authority that may somehow apply to these observations of

fugitive dust.

The requirement must be stricken from the permit.

118.

The Agency has included

Conditions

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

coal handling and coal processing operations be conducted even’

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 Summaiy 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

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

gapfilling authority is

limited

to what is

necessary to ensure compliance with permit conditions.

The

Agency’s requirements

in this

condition also

underscore

Midwest Generation’s

appeal of the conditions

applying an opacity

limitation to fugitive

sources, above

Section

llI.J(iii).

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Scc

Appalachian

Power.

It is

n a clear at

all how these frequencies of inspections accomplish

that end.

Rather,

it appears that these conditions are administrative compliance traps for work

that

is done as part of the normal

activities

at the

station.

119.

Moreover,

the

Agency

does

not provide a rationale as to why

the

frequency of fly

ash handling inspections should

he greater (more

frequent) than for the other operations.

120.

As these operations must be

inspected when they are not operating,

and as they

would

not operate during an outage

of the

boiler,

is not necessary for the Agency

to dictate

the

I’requency of the operations.

Rather,

is logical that these inspections should he

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

he identified long

before

the

15- or

nine-month inspections.

121.

Conditions 7.2.8(h),

7.3.8(b),

and

7.4.8(h) 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 CAAPP permit

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

These

requirements should be deleted

from

the permit.

122.

Condition 7.2.8(a) requires inspections of the coal handling operations on a

monthly basis and provides “that all affected operations that are in routine

service shall 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 peritut, the

language in

this clause

was “that all affected operations shall be

inspected at least once during

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each calendar quarter.’

The Agency

has provided

no explanation as

to why

the

frequency of

the inspections has been

increased.

123.

For these reasons, Conditions 7.2.8(a). 7.3.8(a), and 7.4.8(a), and

the

corresponding recordkeeping conditions,

7.2.9(d),

7.3.9(c), and 7.4.9(c).

all

of which

are

contested herein. arc stayed consistent with the AI1A, and Midwest

Generation requests that

the

Board order the Agency to delete those provisions of these conditions that dictate who should

perform inspections of these

operations, to delete

the requirement contained

in these conditions

that Midwest

Generation inspect before and after maintenance

and repair activities.

Additionally, Conditions 7.2.8(h),

7.3.8(b), and 7.4.8(h), contested herein,

are stayed

pursuant to

the

APA, and Midwest Generation requests that the Board order the

Agency

alter the

frequency of the inspections to correspond to boiler outages.

(vii)

Recordkeeping Requirements for Coal Handling, Coal Processing, and

Fly Ash

Handling Operations

124.

The demonstrations confirming that the

established control measures assure

compliance with emissions

limitations,

required

at Conditions 7.2.9(h)(ii),

7.3.9(h)(ii) and

7.4.9(b)(ii). have already been provided to the

Agency

the construction and CAAPP permit

applications.

These conditions

are unnecessarily redundant, and resubmitting the demonstrations

pursuant to Conditions 7.2.9(b)(iii),

7.3.9(b)(iii),

and 7.4.9(b)(iii) serves no compliance purpose.

Also, Conditions

7.2.9(b)(iii),

7.3.9(b)(iii), and 7.4.9(b)(iii) rely upon Condition

5.6.2(d),

contested herein.

Conditions 7.2.9(b)(ii), 7.2.9(b)(iii), 7.3.9(b)(ii), 7.3.9(b)(iii).

7.4.9(h)(ii), and

7.4.9(b)(iii) should be deleted

from the permit.

That

is,

not all

aspects of the

coal handling operations are required to he

inspected during operation

monthly

basis.

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125.

Moreover,

Conditions 7.2.9(h)(iii),

7.3. 9(h)(iii), and 7.4.9(h)(iii) include

reporting

requirements within

the recordkeeping requirements, contrary to the overall structure of the

permit.

Midwest Generation

has already objected

to the inclusion of these conditions for other

reasons.

In any event,

they should not appear

in Condition

7.x.9,

126.

Conditions 7.2.9(d)(ii)(13).

7.3.9(d)(ii)(l

and 7.4.9(

)(ii)(B) are

redundant of

7.2.9(d)(ii)(E),

7.3.9(d)(ii)(Ii), and 7.4.9(c)(ii)(h), respectively.

Such

redundancy

is not

necessary.

Conditions

7.2.9(d)(ii)(B), 7.3.Q(d)(ii)(B),

and 7.4.9(c)(ii)(B) should he

deleted from

the permit.

127.

(2ondition 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 ofPM

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.

~1herefore,it

is not

appropriate

for the

Agency to require reporting of the magnitude of PM emissions.

128.

The

Agency uses the

word

process

Condition 7.2.9(f~ii)rather than

operation,23

perhaps because use of

operation

at this point would he repetitious.

While this may

seem a very minor point,

is a point with a distinction.

The word

process,

the

I3oard can

see

in Section 7.4 of the permit relative to the

fly ash handling operation,

can be

a buzzword

that

implicates the applicability of the process weight rate rule.

Midwest

Generation wants there to

be no possibility

that anyone can construe coal handling as

a process subject

to the process

weight rate rule.

Therefore,

Midwest

Generation has repeatedly requested that the Agency

substitute

operaiion

or some

synonym for

process

in this context.

‘Records for

each incident

when

operation of an affected process

continued during

malfunction

or breakdown,

(Emphasis added.)

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129.

The

Agency provided

rationale

and still

provides no authority

For

its

inclusion

of Conditions 7.2.9(

)(i)(B) and 7.3.9(c)(i)(B).

observations of coal tines, and Condition

7.4.9(c)(i)(B), observations of accumulations of fly ash

in the vicinity

of the operation.

The

Agency did

address these

conditions after

the

thct in

the Responsiveness Summary, hut

did not

provide

an acceptable rationale as

to why the provisions are even there.

The Agency says,

with

respect to the accumulation of

fines,

as follows:

Likewise, the

identification of accumulations of fines

in the

vicinity oF a process does not require technical

training.

It merely

requires that an individual

be able to

identify accumulations

of coal

dust or other

material.

This is also an

action that could he

perfonned by a member of the general public.

Moreover, this is a

reasonable

requirement for the plants

for which

is being applied,

which are

required to implement operating

programs to minimize

emissions of fugitive dust.

such plants, accumulations of tines

can potentially contribute to emissions of fugitive

dust,

they

could become airborne in the wind.

Responsiveness Summary,

19.

The heart of the

matter lies

in the next-to-last sentence:

‘plants

hich are required

to implement

operation programs to minimize

emissions of

fugitive dust,”

This is accomplished through fugitive dust plans, required at 35 lll.Adm.Code

212.309 and ConditionS

The elements of fugitive dust plans are

set forth at

212.3 10 and

not include

observations of accumulations of fines or

fly ash.

In fact,

nothing in

the Board’s

rules addresses observing the accumulation of fines or

fly

ash.

130.

Observing

accumulations of fines and fly ash are not applicable requirements;

therefore, their inclusion in the permit violates Title V and

Appalachian Power

by imposing new

substantive requirements upon the permittee through the Title

V permit.

Additionally, observing

accumulations of fines and fly ash cannot reasonably be included under gapfilling, as they are

not necessary to

assure compliance with the permit.

The assurance of compliance with the

fugitive

dust requirements rests within the adequacy of the

fugitive dust plan, which must he

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suhniitted

to the Agency br

its review. pursuant to

I 2.309(a), and periodically

updated,

pursuant to

212.312.

If the permittee does

not comply

with

its fugitive dust plan or

the Agency

finds that

the fugitive dust plan is not adequate. there are procedures

and remedies available to

the Agency to address the

issue.

However, those

remedies and procedures

do not fall

within the

scope of gaptilling

to the extent that the Agency

can require

by permit what must be

included

the

fugitive dust plan beyond

the specifications of

the regulation.

Likewise,

the Agency cannot

supplement

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

131.

Given that the

fly

ash system results in few emissions,

rarely

breaks down, and

a closed system,

there is

no apparent justification

For

the

trigger for additional

recordkeeping

when operating during malfunction/breakdown being only one hour

in Condition

7.4.9(e)(ii)(E)

compared

to the two hours allowed for coal

handling (Condition 7.2.9(fl(iiXE))

and coal

processing (Condition 7.3.9(t~ii)(E)).The Agency has provided

no rationale for this difference.

Moreover,

earlier versions of the permit. this time trigger was two hours.

See

the June 2003

drah permit and the October 2003

proposed permit.

132.

For these reasons, Conditions,

7.2.9(b)(ii).

7.2.9(b)(iii), 7.2.9(d)(i)(B),

7.2.9(d)(ii)(B), 7.2.9(e)(ii),

7,2.9(e)(vii), 7.2.9(f)(ii),

7.3.9(h)(ii). 7.3.9(b)(iii),

7.3.9(d)(i)(B),

7.3.9(d)(ii)(l3), 7.4.9(c)(ii)(B), 7.4.9(d)(ii), 7.4.9(d)(vii). 7.3 .9(d)(i)(B), 7.3.9(d)(ii)(B) and

7.4.9(c)(ii)(B), 7.3.9(e)(ii),

7.3.9(e)(vii). 7.4.9(b)(ii), 7.4.9(b)(iii), 7.4.9(c)(iXB), and

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

consistent with the

APA,

and Midwest Generation

requests that the Board order the Agency to delete Conditions, 7.2.9(h)(ii),

7.2.9(b)(iii),

7.2.9(d)(i)(B), 7.2.9(d)(i)(B),

7.3.9(b)(ii), 7.3.9(b)(iii),

7.4.9(b)(ii),

7.4.9(b)(iii), and

7.4.9(c)(i)(B); add the concept

of estimating the magnitude of PM emissions

to Condition

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7.2.9(e)(ii); substitute

the

word

opera/ian

for

the

word

process

Condition

7.2.9(~lXi

i); and

change one hour to two hours in

Condition

7.4.9(c)(ii)(E).

(viii)

Reporting Requirements for

Coal

Handling,

Coal Processing, and

Fly Ash Handling

Operations

133.

Conditions

7.2.1 0(a)(ii), 7.3.1 0(a)(ii), and

7.4.

1 0(a)(ii) require notitication to

the

Agency for operation of support operations that were not

in compliance with the applicable work

practices

of Conditions

7.2.6(a),

7.3.6(a), and 7.4.6(a). respectively, for more

than

12 hours or

four hours with respect to ash handling

regardless of whether there were excess emissions.

Conditions 7.2.6(a), 7.3.6(a), and 7.4.6(a) identi~’

the

measures that Midwest Generation

employs to control fugitive emissions at the Will

County Generating Station,

Implementation of

these measures

is set forth in

the fugitive dust plan required

by Condition

5.2.4 and

212.309

hut not

addressed in Conditions

7.2.6.

7.3.6, or 7.4.6.

The Agency’s

concern

here in

Conditions

7.2.1 0(a)(ii), 7.3.1 0(a)(ii), and 7.4.1 0(a)(ii) should be

with excess emissions and not

with

whether control measures are

implemented within

the past

12 or four hours,

as the

fugitive dust

plan does not require

implementation of those control measures continuously.

‘There are

frequently

12-

or four-hour periods when the control measures are not applied because it is not

necessary that they be applied or it is

dangerous to apply them.

These

conditions should be

amended to reflect notification of excess emissions and not of failure to apply work practice

control measures within

the past

12 or four hours.

Midwest Generation notes that the Agency

has provided

no explanation as to why ash handling in Condition

7.4.l0(a)(ii) has only a four-

hour window while coal handling and processing have a 12-hour window.

134.

Conditions 7.2.1 0(b)(i)(A), 7.3.1 0(b)(i)(A), and 7.4.1 0(b)(i)(A) require reporting

when the

opacity limitation ~

have been

exceeded.

That a liniitation ~jgy have been

exceeded

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does

not rise to

the

level

of an

actual

exceedance.

Midwesi

Generation

believes

is beyond

the

scope of the

Agency’s authority to require reporting of suppositions of exceedances,

135.

Additionally,

in these same conditions

(Le..

7.2. lO(h)(i)(A), 7.3.10(h)(i)(A)),

and

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

the Agency requires

reporting if’opacity exceeded

the limit

for “five or

more 6-

minute averaging periods” (“four or more” for ash

handling).

‘he

next sentence

in the

condition

says, “(Otherwise

more than live 6—minute

averaging periods

The ash

handling provision says “no more than three” (Condition 7.4.1 0(b)(i)(A)).

The

language in

Condition

7.4.l0(b)(iXA)

internally consistent; however, the language in

Conditions

7.2. l0(h)(i)(A) and 7.3. lO(b)(i)(A)

is not.

‘he

way these two conditions are

~Titten,

the

permittee cannot

tell whether five

six-minute averaging periods of excess opacity readings

do or

do not require reporting.

In older versions of the permit. five six-minute

averaging periods did

not trigger reporting.

fhct,

the August 2005

proposed versions of the permit is the first time

that

five six-minute averages triggered

reporting.

The conditions should he amended to cIariI~r

that excess opacity reporting in Conditions 7.2.lO(b)(i)(A) and 7.3.lO(h)(i)(’A)

is triggered

after

five six-minute averaging periods and, as discussed below,

that these averaging periods should

consecutive or occur within some reasonable outside timeframe and not just randomly.

136.

As is the case with other permit conditions for the

fly ash handling operations,

the

reporting requirements during malfunetionlhreakdown at Condition 7.4.1 0(b)(i)(A) for this

support

operation are

different from those

for the

coal handling and coal processing operations,

Midwest Generation must notit~’

the Agency immediately for each incident in which opacity of

the fly ash operations exceeds the limitation for four

or more six-minute averaging periods, while

for coal handling and coal processing, such notification is required apparently

(see

discussion

With

rio

the

parentheses

in the

condition.

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ahove) only alter five six-minute averaging periods.

See

Conditions

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

7.3.10(b)(i)(A).

The Agency has provided

basis for these differences

or for why it changed

the immediate

reporting requirement for ash handling

from five six-minute averaging periods,

in the October 2003

proposed permit, to

the

four six-minute averaging periods.

Additionally, the

Agency has deleted the time frame

during which these opacity exceedances occur in

this

provision25

in all three sections—-

7.2. lO(h)(i)(A),

7.3.1 0(h)(i)(A),

and 7.4.1 0(b)(i)(A).

Cf.’, the

October 2003

proposed permit.

The lack of a timeframe for these operations has

the same

problems as discussed above regarding the boilers.

The trigger for reporting excess opacity

for

all

three of these operations should

he the same timeframe.

The

Agency has

provided

justification as

why they should be different, and given the complexities of the

permitting

requirements generally,

having these

reporting timeframes different adds another and an

unnecessary layer of potential

violation trips for

the pcrmittec.

No environmental purpose is

served by

having them different.

137.

The Agency

requires at Conditions

7.2.lO(hXii)(C), 7.3.l0(b)(ii)(C). and

7.4.1 0(b)(ii)(C) that Midwest Generation aggregate the duration of all incidents during the

preceding calendar quarter when the operations continued

during malfunctionlbreakdown with

excess emissions.

Midwest Generation is already required

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

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

to provide the duration of each incident.

It is not at

all

apparent to Midwest Generation why the Agency

needs this additional particular bit of data.

The

Agency has not identified any applicable requirement that serves as the basis

for this provision

other than the general reporting provisions of Section

39.5

of the Act.

It is not apparent that this

That

is,

that the averaging periods

are consecutive

or occur within some timeframe,

such

two hours.

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requirement serves any

legitimate

gaptilling purpose.

For these reasons,

these conditions

should

he deleted

from the

permit.

138.

Conditions 7.2.10(bXii)(D),

7.3. l0(h)(ii)(D), and 7.4.

0(h)(ii)(D) require

reporting

that there were no incidents of malfunction/breakdown, and so no excess emissions, in

the

quarterly report.

The provisions

in Section

7.1.

0_226

require

reporting only if there are

excess emissions, and Condition

7.1.10-3.

which addresses malfunction/breakdown

specifically,

requires

only notification and only of excess emissions.

Reporting requirements

for the

support

operations during

malfunction/breakdown should

be limited

to reporting

excess emissions and

should not

he required if there

are no excess emissions.

139.

For these reasons,

Conditions

7.2. lO(a)(ii),

7.2. lO(b)(i)(.

7.2.! 0(b)(ii)(C),

7.2.10(h)(iiXD), 7.3.1 0(a)(ii), 7.3.10(h)(i)(A), 7.3.l0(h)(ii)(C),

7.3.10(b)(ii)(D). 7.4.10(a)(ii),

7.4.1

0(b)(i)(A), 7.4. l0(b)(ii)(C), and 7.4.1 0(b)(ii)(D), all contested herein,

are stayed

pursuant to

the APA. and Midwest Generation requests

that the

Board order the Agency

qualify that

Conditions 7.2.l0(a)(ii), 7.3.lO(a)(ii), and 7.4.10(a)(ii) are limited

notification when there are

excess emissions rather than when control

measures have not

been applied

for a 12-hour period

or four-hour period in the case of ash handling; to add atimeframe

l’or opacity exceedances

occun’ing during operation during malfunction/breakdown

for immediate reporting to the

Agency in

Conditions 7.2.10(b)(i)(A), 7.3.10(b)(i)(A),

and 7.4.10(b)(i)(A);

to change the number

of six-minute averaging periods

to six and to delete the requirement for reporting suppositions of

excess opacity in Conditions 7.2.10(b)(i)(A), 7.3.1O(b)(i)(A), and 7.4.l0(b)(i)(A); to

delete

Conditions 7.2.10(b)(ii)(C),

7.3. lO(b)(ii)(C). and

7.4. 10(b)(ii)(C).

Conditions 7.!. IO-2(b)(iii),

(cXiii),

(d)(iii).

and (d)(iv).

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(ix)

Work Practices

for Coal Processing Equipment

140.

Condition

7.3.6(b) imposes

limitations

PM emissions from Breaker Building

Baghouse (BFI-S).

However,

the breaker building at Will County has two baghouses, BH-5

and

BH-6. that received construction permits

October 25,

1996 (Permit No.

960900

3) and

December

15,

1999 (Permit

No.

99020105), respectively.

In addition, according to

Permit No.

96090013, the PM emissions limit for Breaker Building Baghouse (BH-5) is 0,53

pounds/hour

and 2.31

tons/year, and according to the

Permit Nos.

73030969 and 99020105, the PM emissions

limit for Breaker Building Baghouse (Bil-6)

is 0.21

pounds/year and 0.93

tons/year.

141.

For these reasons,

Condition

7.3.6(b) is staved

pursuant to the APA, and Midwest

Generation requests that the Board order the Agency to change

Condition 7.3.6(b) to accurately

reflect the PM emission limitations

set forth in Permits 96090013,

73030969 and 99020105.

Gasoline

Storage Tank

(Section

7.5)

(I)

Gasoline Sampling and Analysis Requirements

142.

While gasoline sampling standards and methods are included in

IIl,Adm.Codc

218.585, there is

not a requirement in that section that dispensers or users

(Ic.,

consumer)

the gasoline perform such sampling.

The sampling

at gasoline stations is typically

performed by

the Department of Agriculture’s Weights and Measures group, and they provide the stickers

that

one sees

on gasoline pumps certifying that

the gasoline meets standards for octane,

Reid vapor

pressure

(“RVP”),

and so forth.

Section 218.585

requires

refiners and suppliers of gasoline to

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

are the parties

who are

required to perform the requisite sampling pursuant to the standards and methods

included in

218.585.

Midwest Generation is not a “supplier” of gasoline as

the tenn is

used

218.585; rather,

Midwest Generation is a consumer of gasoline.

While it

is incumbent upon

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Midwest Generation to

ensure that the gasoline in

their storage tanks

complies with RVP

limitations,

the proper statement

from Midwest

Generation’s supplier of the gasoline’s

compliance is sufficient under

218.585

for compliance with this

regulation.

The regulation is

not, strictly, an “applicable requirement”

Midwest Generation, and the Condition

7.5.7(a)

should he

stricken from the

permit.

Recordkeeping

requirements are sufficient

to ensure

compliance

with the

R\TP

limitations

that

are applicable

a consumer such

as Midwest

Generation, at Condition

7.5.12(b).

143.

For these reasons,

consistent with

the.4P4,

Conditions 7.5.7(a) and 7.5.12(b).

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

to delete Condition

7.5.7(a) and to delete

reference to sampling

gasoline as a means of

demonstrating compliance in

Condition 7.5.12(b).

Also,

note that the

Agency’s citations to

the

regulations

are

inconect.

(ii)

Inspection Requirements

144.

The Board’s regulations for gasoline distribution are sufficient to assure

compliance.

Therefore,

the Agency’s inclusion of permit conditions specifying

inspections of

various components of the

gasoline storage tank operation exceeds

its authority to gapfill.

These

requirements are at Condition 7.5.8(a).

Certainly, there is no regulatory basis for requiring any

inspections within

the two-month

timeframe included

in Condition 7.5.8(a).

145.

Therefore, consistent with the APA, Condition

7.5.8(a) and the corresponding

reeordkeeping condition, 7.5.9(b)(v), contested

herein, are stayed, and Midwest Generation

requests that the Board order the Agency to delete

these conditions

from the permit.

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(iii)

Recordkeeping Requirements

146.

Conditions 7.5.9(b)(iii) and 7.5.9(d)

are redundant.

Both

require records of the

RVP of the gasoline

in the tank.

Midwest Generation requests that the

Board order

the Agency

to delete Condition

7.5.9(h)(iii) from the permit.

As a contested

condition. Condition

7.5.9(b)~)

stayed pursuant to the APA.

Maintenance and Repair Lops

(Sections

7.1, 7.2,

7.3,

7.4)

147.

The permit

includes requirements that Midwest Generation maintain maintenance

and repair logs

for each

of the permitted

operations.

However, the requirements associated with

these logs differ among the various operations,

which

adds to the complexity of the permit

unnecessarily.

Speciicallv,

Conditions 7.1.9(b)(i), 72.9(a)(

i), 7.3.9(a~ii).and 7.4.9(a)(ii),

require logs for each control device or for the

permitted equipment without

regard to excess

emissions or

malfunctionfbreakdown.

Conditions

7.l.9(li)(i). 7.2.9(1)0), 7.39(e)(i),

and

7.4.9(e)(i) require logs for components of operations related to excess emissions during

malfimctionlbreakdown.

Conditions 7.2.9(d)(i)(C), 7.3.9(c)(i)(C), and 7,4.9(c)(i)(C) require

descriptions of recommended repairs and maintenance, a review of previously recommended

repair and maintenance,

apparently addressing the status of the

completion of such repair or

maintenance.

Conditions 7,2.9(d)(ii)(B)-(F), 7.3.9(e)(ii)(B)-(F),

and 7.4.9(e)(ii)(B)-(F)

go even

further to require Midwest Generation to record the observed condition of the equipment and a

summary of the maintenance and repair that has been or will he performed on that equipment, a

description of the maintenance or repair that resulted from the inspection, and a summary of the

inspector’s

opinion of the ability ofthe

equipment to effectively and reliably control

emissions.

148.

Each section of the permit should be consistent

on the recordkeeping

requirements for maintenance and repair of emission units and their respective

pollution control

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equipment.

Consistency should

he maintained across

the

permit for maintenance and repair

logs

whereby records are

required only if any emission unit, operation, process or air pollution control

equipment has a malfunction and hreakdo~vnwith

excess emissions.

149.

Conditions

72.9(d)(i)(D),

7.3.9(c)(i)(D) and 7.4.9(c)(i)(D) require

“al

summary

of the observed implementation

or status of actual

control

measures, as compared

to the

established control

measures.”

Midwest Generation

does not

understand what this means.

These

conditions arc ambiguous. without clear meaning, and should

be deleted from the permit.

ISO.

These requirements exceed the limitations

the Agency’s authority to gapfill.

The purposes

of maintaining equipment are

multifold, including optimization of operation as

well

for environmental purposes.

The

scope of the Agency’s

concern is compliance

with

environmental

limitations

and

that is the scope

that should apply to recordkecping.

The

maintenance logs

required in

this permit should

be consistently limited to logs of repairs

correcting mechanical problems

that caused excess emissions.

151.

For these reasons, Conditions

7.1 .9(b)(i),

7.2.9(a)(ii), 7.2.9(dXi)(C),

7.2.9(d)(i)(D),

7.2.9(d)(ii)(B)-(E).

7.3.9(a)(ii), 7.3.9(c)(i)(C).

7.3.9(c)(i)(D),

7.3.9(c)(ii)(B)—(E),

7.4.9(a)(ii), 7.4.9(c)(i)(C),

7.4.9(e)(i)(D), and 7.4.9(c)(ii)(B)-(E), all contested herein, are

stayed

consistent with the APA, and Midwest Generation

requests that the Board order the Agency to

delete these conditions.

Testing Protocol Requirements

(Sections

7.1,

7.2, 7.3,7.4)

152.

The permit contains testing protocol requirements in

Section 7.1,

7.2, 7.3

and 7.4

that unnecessarily repeat the requirements set forth at Condition 8.6.2.

Condition 8.6.2. a

General

Permit Condition, provides that specific conditions within

Section

7 may supersede the

provisions of Condition 8.6.2.

Where the conditions in

Section 7 do

not

supersede Condition

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8.6.2

but

merely repeat it, those conditions in

Section

should be deleted.

Included

as they are,

they potentially expose the permittee

to allegations ofviolations

based upon multiple conditions,

when those conditions

are mere redundancies.

Ihis

is inequitable.

It is arbitrary and capricious

and

such conditions

in Section

should he deleted

from the

permit.

153.

More specifically,

Conditions

7.1 .7(e)(i), 7.2.7(bXiii),

7.3.7(b)(iii), and

7.4.7(b)(iii)

repeat the

requirement that test plans be submitted

to the Agency at least

60 days

prior to testing.

This 60-day

submittal requirement is part of Condition

8.6.2

as well.

Condition

7.1.7(e), on the other hand, properly references Condition

8.6.3

and requires additional

information in the

test report without repeating Condition

8.6.3.

I lowever, Conditions

7.2.7(b)(v),

7.3.7(b)(v),

and 7.47(b)(v)

require information in the test report that

is the same as

the

information required

by Condition 8.6.3.

To the

extent that the information required

by the

conditions

in Section

7 repeat the requirements of Condition

8.6.3, they should

be deleted.

154.

For these reasons, Conditions

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

7.3.7(b~iii),

7.37(h)(v),

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

are stayed pursuant to

the APA, and

Midwest Generation

requests that the Board order the Agency to delete

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

7.3.7(b)(iii),

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

7.3.7(b)(v), and 7.4.7(bXv)

such that they do not repeat the requirements of Condition

8.6.3.

Standard

Permit Conditions

(Section

155.

Midwest Generation is concerned with the scope

of the term “authorized

representative”

in Condition 9.3, regarding Agency surveillance.

At times, the Agency

USEPA may employ contractors who would be their authorized representatives to perform tasks

that could require them to enter onto Midwest Generation’s property.

Such representatives,

whether they are the Agency’s

or USEPA’s

employees or contractors, must be

subject

to the

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limitations

imposed by applicable Confidential

Business

lnfbrmation (“CBI”)

claims and

Midwest Generation’s health and safety rules.

Midwest Generation believes that this condition

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

requirements are

limitations

survei I lance.

156.

For these reasons, Condition 9.3, contested

herein, is stayed pursuant to the APA,

and Midwest Generation requests that the Board order the Agency

clarify the limitations on

surveillance

in the condition as set forth above.

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WIl l-RFOR

for the

reasons set

tbrffi

herein, Petitioner

NI idwest Generation requests a

hearing before the

Board to contest

the decisions contained

in the CAAPP permit issued

Petitioner on September 29. 2005,

for the

Will

County Generating Station.

The

permit contested

herein

is not effective pursuant to Section

10-65 of the Administrative Procedures

Act

ILCS

100/10-65).

In the alternative,

to avoid potential

confusion

and uncertainty described

earlier and

expedite the review

process, Petitioner

requests that the Board exercise

its discretionary

authority to stay

the entire permit.

Midwest Generation’s state operating permit issued for the

Will County

Generating Station will continue in

frill

force

and effect, and the environment

will

not

be harmed by this stay.

Further, Petitioner requests that the

Board remand the permit to the

Agency and

order

it to appropriately revise conditions

contested herein and any other provision

the validity or applicability of which will

affected by

the deletion or change

in the

provisions

challenged herein and to reissue the CAAPP permit.

Respectfully submitted.

MIDWEST GENERATION,

l,LC,

WILl,

COUNTY

GENERATING STATION

by:

~ne

of Its Attorneys

Dated:

November

2, 2005

Sheldon

Zabel

Kathleen C. Bassi

Stephen

Boncbrake

Joshua R. More

Kavita M. Patel

5011FF

HARDIN,

LLP

6600 Sears Tower

233

South Waeker Drive

Chicago,

Illinois

60606

312-258-5500

Fax:

312-258-5600

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