ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

2,

2005

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PCB 2006-56

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MIDWEST GENERATION, LLC,

)

CRAWFORD GENERATING

STATION,

)

)

Petitioner,

)

)

)

PCI)

____________

)

(Permit Appeal

—

ILLINOIS

ENVIRONMENTAL

PROTECTION AGENCY,

)

)

Respondent.

NOTICE OF FILING

To:

Pollution Control Board, Ann:

Clerk

Division of Legal Counsel

James R.

Thompson Center

Illinois Environmental

Protection Agency

100

W. Randolph

1021

North Grand Avenue, East

Suite U-500

P.O.

Box

19276

Chicago, Illinois 60601

Springfield, Illinois

62794-9276

PLEASE TAKE NOTICE that

I have today filed with the

Office of the Clerk of the

Pollution control Board the original and nine copies

of the

Appeal of CAAPP Permit

of

Midwest Generation, LLC,

Crawford

Generating

Staüon

and the Appearances of Sheldon

A. Zabel, Kathleen

C.

Bassi, Stephen

J. Bonebrake, Joshua R.

More,

and Kavita M. Patel, copies

of which are

herewith served upon

you.

Kathleen C. Bassi

Dated:

November

2, 2005

Sheldon

A. Zabel

Kathleen C.

Bassi

Stephen

J. Bonebrake

Joshua R. More

Kavita M. Patel

SCHIFF HARDIN, LLP

6600 Sears Tower

233

South Wacker Drive

Chicago, Illinois

60606

312-258-5500

Fax:

312-258-5600

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NOVEMBER

2,

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BEFORE THE ILLINOIS POLLUTION

MIDWEST GENERATION, LLC,

CRAWFORD GENERATING STATION,

)

)

Petitioner,

)

v.

)

PCB

___________

(Permit Appeal

—

Air)

PROTECTION AGENCY,

)

)

Respondent.

)

APPEARANCE

I hereby file my appearance

in this proceeding,

on behalfof Midwest Generation, LLC,

Crawford Generating Station.

Kathleen C.

Bassi

Dated:

November 2, 2005

Sheldon

A.

Zabel

Kathleen C. Bassi

Stephen

J. Bonebrake

Joshua R.

More

Kavita M.

PateI

SCHIFF IIARDIN, LLP

6600 Sears Tower

233

South Wacker Drive

Chicago, Illinois

60606

312-258-5500

Fax:

312-258-5600

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ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER 2,

2005

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BEFORE TIlE

ILLINOIS POLLUTION

CONTROL

MIDWEST GENERATION, LLC,

CRAWFORD GENERATIN(; STATION,

)

Petitioner,

)

)

v.

)

PCI)

____________

)

(Permit Appeal

—

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

APPEARANCE

I

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

Crawford Generating

Station.

Dated:

November

2, 2005

Sheldon

A.

Zabel

Kathleen C.

Bassi

Stephen

J. Bonebrake

Joshua

IC More

Kavita M. Patel

SCHIFF

HARDIN, LLP

6600 Sears Tower

233

South Wacker Drive

Chicago, Illinois

60606

312-258-5500

Fax:

312-258-5600

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ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

2,

2005

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PCB 2006-56

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MIDWEST GENERATION, LLC,

)

CRAWFORD GENERATING STATION,

)

Petitioner,

)

)

V.

)

PCI)

_______________

(Permit Appeal

—

Air)

ILLINOIS ENVIRONMENTAL

)

PROTECTION

AGENCY,

)

)

Respondent.

)

APPEARANCE

I

hereby file my

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

Crawford Generating Station.

~

)~-~

Joshua

R. More

Dated:

November

2, 2005

Sheldon

A.

Zabel

Kathleen C.

Bassi

Stephen

J. Bonebrake

Joshua R.

More

Kavita M. Patel

SCH1FF HARDIN, LLP

6600 Sears Tower

233

South Wacker Drive

Chicago, Illinois

60606

312-258-5500

Fax:

312-258-5600

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ELECTRONIC

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CLERK’S OFFICE,

NOVEMBER

2,

2005

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FCB 2006-56

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*

*

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BEFORE

THE ILLINOIS POLLUTION

CONTROL BOARD

MIDWEST GENERATION, LLC,

)

CRAWFORD GENERATING

STATION,

)

)

Petitioner,

)

)

v.

)

PCB

____________

(Permit Appeal

—

Air)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

)

APPEARAN CE

1 hereby file my

appearance in this proceeding, on

behalfof Midwest Generation, LLC,

Crawford Generating Station.

~

Kavita M. Patel

Dated:

November

2, 2005

Sheldon A. Zabel

Kathleen C. Bassi

Stephen

J. Bonebrake

Joshua R. More

Kavita M. Patel

SCHIFF HARDIN, LLP

6600 Sears Tower

233

South Waeker Drive

Chicago, Illinois

60606

312-258-5500

Fax:

312-258-5600

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ELECTRONIC

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RECEIVED, CLERK’S OFFICE,

NOVEMBER

2,

2005

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BEFORE

THE ILLINOIS POLLUTION

MIDWEST GENERATION, LLC,

CRAWFORD GENERATING

Petitioner,

V.

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

)

)

)

)

)

PCB

____________

)

(Permit Appeal

—

Air)

)

)

)

)

CERTIFICATE

OF SERVICE

I, the

undersigned, certi~’that I have served the attached Appeal

of CAAPP Permit of

Midwest Generation, LLC, Crawford Generating Station and

Appearances

of Sheldon A.

Zabel, Kathleen

C.

Bassi, Stephen

J. Bonebrake, Joshua R.

More, and Kavita M.

Patel,

by electric delivery upon the

following

person:

Pollution Control Board, Ann:

Clerk

James R. Thompson Center

100W. Randolph

Suite

11-500

Chicago, Illinois 60601

at

leen

C.

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

A. Zabel

Kathleen

C.

l3assi

Stephen

.1.

Bonebrake

Joshua

R.

More

Kavita M. Patel

SCHIFF

I-IAROIN,

LLP

6600

Sears Tower

233 South Wacker

Drive

Chicago, Illinois

60606

312-258-5500

Fax:

312-258-5600

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ELECTRONIC

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RECEIVED,

CLERK’S OFFICE,

NOVEMBER

2,

2005

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BEFORE

TUE ILLINOIS

POLLUTION

MIDWEST

GENERATION, LLC,

Petitioner,

V.

)

)

)

)

)

)

PCI)

)

(Permit Appeal

—

Air)

APPEARANCE

I hereby file my appearance in

Crawford

Generating Station.

Sheldon A. Zabel

Kathleen C. Bassi

Stephen

A.

Bonebrake

Joshua R.

More

Kavita M. Pate!

SCHIFF HARDIN, LLP

6600

Sears Tower

233

South Wacker Drive

Chicago, Illinois

60606

312-258-5500

this proceeding,

on behalf of Midwest Generation, LLC,

)

)

)

)

Dated:

November

2, 2005

Fax:

312-258-5600

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ELECTRONIC FILING,

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NOVEMBER 2,

2005

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PCB 2006-56

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BEFORE THE ILLINOIS POLLUTION

MIDWEST GENERATION, LLC,

)

CRAWFORD GENERATING

STATION,

)

Petitioner,

)

)

V.

)

PCB

_______________

)

(Permit

Appeal

—

Air)

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

APPEAL OF CAAPP PERMIT

NOW COMES Petitioner, MIDWEST GENERATION, LLC, CRAWFORD

GENERATING STATION (“Petitioner,” “Crawford,” or “Midwest Generation”), pursuant to

Section 40.2 of the Illinois Environmental

Protection Act (“Act”) (415

1LCS 5/40.2) arid

35

Ill.Adm.Code

§

105.300 ci

seq.,

and requests a hearing before the Board to contest the decisions

contained in the

permit issued to Petitioner on

September 29, 2005, under the

Clean Air Act

Permit Program (“CAAPP” or “Title V”)

set forth at Section 39.5

of the Act (415

ILCS

5/39.5).

In support of its Petition, Petitioner states as follows:

I.

BACKGROUND

(35 Ill.Adm.Code

§ 105.304(a))

I.

On November

15,

1990,

Congress amended

the Clean AirAct (42 U.S.C.

§~

7401-7671q) and included in the amendments at Title V a requirement for a national operating

permit program.

The Title

V programi

was to be implemented by

states with

approved programs.

Illinois’ Title V program, the CAAPP, was fully and finally approved by the

U.S. Environmental

Protection Agency (“USEPA”) on

December 4, 2001

(66 Fed.Reg. 72946).

The Illinois

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*****pCB200656*****

Environmental Protection Agency

(“Agency”) has

had the

authority to issue CAAPP permits

since at least March 7,

1 995, when the state was granted interim approval of its CAAPP (60

FedReg.

12478).

Illinois’

Title V program is set forth at Section

39.5

of the Act, 35

Ill.Adm.Code 201.Subpart F, and 35 lll.Adm,Code

Part

270.

2.

The

Crawford Generating Station (“Crawford” or the

“Station”), Agency

1.1). No.

031 600AIN. is an electric generating station owned by Midwest Generation, IC,

and operated

by

Midwest Generation, LLC

—

Crawford

Generating Station.

The Crawford electrical

generating

units

(“EGUs”) went online

between

1958 and

1960.

The Crawford Generating

Station

is

located at 3501

South Pulaski Road, Chicago, Cook County, Illinois

60623-4987,

within the

Chicago ozone and

PM2.5’

nonattainment areas.

Crawford is an

intermediate load

plant and can generate approximately 580 megawalts.

Midwest Generation employs

108 people

at the

Crawford Generating

Station.

3.

Midwest Generation operates two coal-fired boilers at Crawford

that have the

capability to fire at various modes that include the combination of coal, natural gas, and/or

fuel

oil as

their principal fuels.

In addition, the boilers fire natural gas or thel

oil

as

auxiliary fuel

during startup and for flame stabilization.

Certain alternative fuels,

such as

used oils generated

on-site, may be utilized

as well.

Crawford

also operates associated coal handling, coal

processing, and ash handling activities.

In addition to

the boilers, Crawford

operates

12 distillate

oil-fired internal combustion engines to start

12 gas- and oil-fired turbines, used during peak

demand periods.

Finally, there is a 550-gallon gasoline tank located

at Crawford, to provide

fuel

for Station vehicles.

Particulate matter

less than 2.5

microns

in

aerodynamic diameter.

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4.

Crawford

is a major source subject to

Title V.

Crawford is subject to the

Emissions Reduction

Market System (ERMS) but has limited

its

emissions of volatile organic

compounds (“VOC”)

to less than

15

tons per ozone season and so is not required to hold and

surrender allotment trading units (ATUs).

The EGUs at Crawford are subject to both. of Illinois’

NOx reduction programs:

the “0.25 averaging” program at 35

fll.Adm.Code

21 7.Subparts V and

the “NOx trading program” or “NOx SIP call” at 35

Ill,Adm.C’ode 2I7.Subpart W.

Crawford is

subject

to the federal Acid Rain Program at Title IV of the

Clean Air Act and was issued a Phase

II Acid

Rain Permit on

March 18,

2005.

5.

Emissions

ofnitrogen oxides (“NOx”)

from the

EGUs are controlled

by low NOx

burners and overfire air.

Emissions of sulfur dioxide

(“SO2”) from the EGUs are controlled by

limiting the sulfur content of the

fuel used for the

boilers.

Likewise,

Crawford monitors and

limits the sulfur content of the fuel

oil used at the station

in the boilers and turbines.

Particulate

matter (“PM”) emissions from the boilers are controlled by

an electrostatic

precipitator (“ESP”).

PM emissions resulting from the milling of pyrites are controlled by

a baghouse.

Fugitive PM

emissions from various other coal and ash handling activities are controlled through baghouses,

enclosures, covers, dust suppressants,

and

water sprays, as necessary and appropriate.

Emissions

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

VOC

emissions from the

gasoline storage tank are controlled by

the

use of a submerged loading pipe.

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

with the applicable Reid vapor pressure

and are required to comply with Stage I vapor control

mechanisms and procedures, both by rule and by contract.

6.

The Agency received the original CAAPP permit application for the Crawford

Station

on September 7,

1995, and assigned Application No. 95090076.

Petitioner substantially

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updated this application

February 26, 2003,

March 26, 2003, and August 2, 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) of the Act.

Petitioner has

paid fees as

set

forth at Section 39.5(18) of the

Act since submitting

the

application for a CAAPP permit for the

Crawford

Generating Station, totaling $1.6

million since

1995,

Crawford’s state operating

permits have continued in full force and effect

since submittal of the CAAPP permit application,

pursuant to Sections

9.1W) and

39.5(4)(b)

of the Act.

7.

The

Agency issued

a final draft permit

for public

review on June 4, 2003.

The

Agency subsequently held a hearing on the draft permit on August

12, 2003, in the City of

Chicago, which representatives of Midwest Generation attended and presented testimony.

Midwest Generation filed written comments with the Agency regarding the Crawford draft

permit on

September 24, 2003.2

The Agency issued a proposed permit for the

Crawford Station

on

October 6, 2003.

Although this permit was not technically open

for public comment, as it had

been sent to USEPA for its comment as required by Title V of the Clean Air Act, Midwest

Generation, nevertheless,

submitted comments

on November

19, 2003.

Subsequently, in

December 2004,

the Agency issued a draft revised proposed permit for Petitioner’s and other

interested persons’ comments.

Midwest Generation again commented.

The Agency issued a

second draft revised proposed permit in July 2005

and allowed the Petitioner and other interested

persons

10 days to

comment.

At the same time, the Agency released

its preliminary

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

on that document as well.

Midwest Generation submitted comments on this version of the

2

Midwest Generation has attached the appealed permit

to this Petition.

However, the draft and proposed.

permits

and other documents referred to herein

should bc

included

in

the administrative record that.t.heAgertcy.wktl

file.

Other docwi~ents

referred to

in this Petition,

such as cases or Board decisions, are easily accessible,

in

the

interestsof economy,

then,

Midwest Generation

is not attaching

such

documents to this Petition,

-4-

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permits

proposed for all six of its generating stations together and

on the preliminary

Responsiveness Summary on August 1, 2005.

The Agency

submitted the revised proposed

permit to USEPA for its 45-day reviewon August

15, 2005,

The Agency did not seek further

comment on the permit from the Petitioner or other interested persons, and Midwest Generation

has not submitted any further comments, based upon the understanding that the Agency had

every intention to issue the permit at the end of USEPA’s review period.

8.

The final permit was, indeed, issued

on September 29, 2005.~Although some of

Petitioner’s comments have been addressed in the various iterations of the permit,

it still contains

terms

and conditions that are

not acceptable to Petitioner, including conditions that are

contrary

to applicable law and conditions that

first appeared, at least

in their final

detail, in the August

2005 proposed permit and upon which Petitioner

did not have the opportunity to comment.

It is

for these reasons that Petitioner hereby appeals the permit.

This permit appeal is timely

submitted within

35 days following issuance of the permit.

Petitioner requests that the Board

review the permit, remand it

to the

Agency, and order

the Agency to correct and reissue the

permit, without timber public proceeding,

as appropriate.

II.

EFFECTIVENESS OF

PERMIT

9.

Pursuant to Section

10-65(b) of the Illinois Administrative

Procedures Act

(“APA”),

5

JLCS

100/10-65, and the holding in

Borg-Warner Corp. v

Marcy,

427 N.E.

2d 415

(Ill.App.Ct.

1981)

(“Borg-Warner”),

the CAAPP permit issued by the Agency to Midwest

Generation for the Crawford Generating Station does not become effective until after a ruling by

the Board on

the

permit appeal and,

in the event of a remand, until the Agency has issued the

See

USEPA/Region 5’s Permits

website

at

http://www.epa.gov/reuioii5~ir~its/il~ine.

htm 4

“CAAPP permit

Records” 4

“Midwest Generation EME, LLC” for the source located at 3501

South

Pulaski

Road, Chicago,

for the complete “trail” of the milestone action dates

for this

permit.

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permit consistent with the Board’s order.

Section

10-65(b) provides that “when a licensee has

made

timely and sufficient application for the renewal of a license or a new license with

reference to any activity of a continuing nature, the existing license shall continue in full

force

and effect until the final

agency decision on the application has been made unless a later date is

fixed by order of a reviewing court.”

5

ILCS

100/10-65(h).

The

Borg-Warner

court found that

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

is the final

decision by

the Board in an appeal, not the issuance

of the permit by the Agency.

Borg-Warner,

427 N.E. 2d 415 at 422; see

also IRE,

Inc.

v.

IL Environmental Protection

Agency,

1989 WL

137356

(III.

Pollution Control Rd.

1989);

Electric Energy,

Inc.

v.

Ill.

Pollution Control Bd.,

1985

WL 21205 (Ill. Pollution Control Bd.

1985).

Therefore, pursuant to

the APA

as interpreted by

Borg-Warner,

the

entire permit is not

yet effective and the existing permits for the facility

continue in effect.

10.

The Act provides at Sections

39.5(4)(b)

and 9.1(f) of the Act that the state

operating permit continues in effect

until issuance of the CAAPP permit.

Under

Borg-Warner,

the CAAPP permit does not become effective until the Board issues

its order on

this appeal and

the Agency has reissued the permit.

Therefore, Midwest Generation currently has the necessary

permits to operate the Crawford Generating Station.

11.

In the alternative, to avoid any question as to the limitation on the scope of the

effectiveness of the permit under the APA, Midwest Generation requests that the Board exercise

its discretionary authority at 35

Ill.Adm.Code

§

105.304(b) and stay the entire permit.

Such a

stay is necessary to protect Midwest Generation’s right to appeal

and to avoid theiniposition of

conditions before

it is able

to exercise that right to appeal.

Further, compliance with the

myriad

of new monitoring, inspection, recordkeeping, and reporting conditions that

are in the

CAAPP

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permit will he extremely costly.

To comply with conditions

that are

inappropriate,

as

Midwest

Generation alleges below,

would cause irreparable harm to Midwest Generation,

including

the

imposition of these unnecessary costs and the adverse effect on Midwest Generation’s right to

adequate review on

appeal.

Midwest Generation has

no adequate remedy at law other than this

appeal to

the Board.

Midwest Generation is likely to succeed on the merits of its appeal, as the

Agency has included conditions that do not reflect “applicable

requirements,”

as defined by Title

V, and has exceeded

its authority to impose conditions

or the

conditions arc arbitrary and

capricious.

Moreover, the

Board has stayed the entirety of all the CAAPP

permits that have been

appealed.

See Bridgestone/Firestone OffRoad Tire Company

v.

JEPA,

PCB 02-31

(November

1,

200

1);

Lone Star Industries,

Inc.

v.

IEPA,

PCB 03-94 (January 9,2003); N/elsen &

Brainhridge,

L.L.C.

v.

IEPI4,

PCB 03-98 (February 6,

2003);

Saint-Gobain Containers,

Inc.

v.

JEPA,

PCB

04-

47 (November 6,

2003);

Champion Laboratories,

Inc.

v,

IEPA,

PCB

04-65

(January 8, 2004);

Noveon,

Inc.

v. IEPA,

PCB 04-102 (January 22, 2004);

Midwest Generation, LLC —Collins

Generating Station

v.

IEPA,

PCB 04-108

(January 22, 2004);

Board ofTrustees of Eastern

Illinois University

v.

IEPA,

PCB 04-110 (February

5,

2004);

Ethyl Petroleum Additives,

Inc~,

v.

1EPA,

PCB

04-113 (February

5,2004);

Oasis Industries, Inc

v.

IEPA,

PCB 04-1

16(May 6,

2004).

The Board should continue to follow this precedent.

12.

Finally, a large number of conditions included in this CAAPP permit are appealed

here.

To require some conditions of the CAAPP permit to remain in effect while the contested

conditions are covered by the old

state operating permits creates an administrative environment

that

would be, to say the least, very confusing.

Moreover, the Agency’s failure to provide a

statement of basis, discussed below, renders the entire permit defective.

Therefore, Midwest

Generation requests that the Board stay the entire permit for these reasons.

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13.

In sum, pursuant to Section

10-65(b)

of the APA and

Borg- Warner,

the entirety of

the

CAAPP

permit does not become effective until

the completion of the administrative process,

which occurs when the Board has issued its final ruling

on the appeal andthe

Agency has

acted

on any remand.

(For the sake of simplicity, hereafter the effect of the APA

will be referred to as

a “stay.”)

In the alternative, Midwest Generation requests that the Board, consistent with its

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

appealed throughout the permit, to protect Midwest Generation’s right to appeal and in the

interests of administrative efficiency, stay the entire permit pursuant to

its discretionary authority

at 35

Ill.Adm.Code

§

105.304(b).

In addition, such a stay will minimize the risk of unnecessary

litigation concerning the question of a stay and expedite resolution of the underlying substantive

issues.

The state operating permits currently in effect will

continue in effect throughout the

pendency

of the appeal and remand.

Therefore, the Station will remain subject

to

the terms and

conditions of those permits.

As the CAAPP

permit cannot impose new substantive conditions

upon a permittee

(see

discussion below), emissions limitations are the same

under both permits.

The environment will

not be harmed by a stay of the CAAPP permit.

IL.

ISSUES ON APPEAL

(35

JlI.Adm.Code

§~

105.304(a)(2),

(3),

and

(4))

14.

As a preliminary

matter, the CAAPP permits

issued to the Crawford Generating

Station and 20 of the other coal-fired power plants in the

state

on

the

same date are very similar

in content.

The same language appears in virtually all of the permits, though there are subtle

variations to some conditions to reflect the elements of uniqueness that are true at the stations.

For example, not all

stations have the same types of emissions units.

Some units in the state are

subject to New Source Performance

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

or Prevention of Significant Deterioration (“PSD”),

or other state or federal programs, while

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others are

not.

Applicable requirements may differ

because of geographic location.

As a result,

the appeals of these permits filed with the

Board will

be

equally as

repetitious with elements of

uniqueness reflecting the stations.

Further, the issues on appeal

span the

gamut of simple

typographical errors to extremely complex questions

of law.

Petitioner’s presentation in

this

appeal is by issue

per unit type,

identifying the permit conditions giving rise to the appeal and the

conditions related to them that would be affected, should the Board grant Petitioner’s appeal.

Petitioner appeals all conditions related

to the conditions giving rise

to the appeal, however,

whether such related conditions are expressly identified or not below.

15.

The

Act does

not require apermittee to have participated in the public process;

it

merely needs to object,

after issuance, to a term or condition

in a permit in order to have standing

to appeal the permit issued to him.

See

Section

40.2(a) of the Act (the

applicant may appeal

while others need to have participated in the public process). However, Midwest

Generation, as

will be evidenced by the

administrative record, has actively participated to the extent allowed by

the Agency in the development of this permit.

In

some instances, as discussed

in further detail

below, the Agency did not provide Midwest Generation with a viable opportunity to comment,

leaving Midwest Generation with appeal as its only alternative as ameans

of rectifying

inappropriate conditions.

These issues are properly before the Board in this proceeding.

16.

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

authority to “gapfill.”

“Gapfilling” is the inclusion in the permit of periodic monitoring requirements, where the

underlying applicable requirement does not include them.

This language faithfully reflects 40

CFR

§

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

Appalachian Power Company

v.

EPA,

208 F.3d

1015 (D.C. Cir. 2000).

The court in

Appalachian Power

found that state authorities are

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precluded

from including provisions in permits requiring more frequent monitoring4 than is

required

in the underlying applicable requirement unless the applicable requirement contained

no

periodic testing or monitoring,

specified no frequency for testing or monitoring, or required only

a one-time test.

Appalachian Power

at

1028.

17.

The

Appalachian Power

court also noted that “Title V does not imposc

substantive new requirements” and that test methods

and the frequency at which they are

required “are surely ‘substantive’ requirements; they impose duties and obligations on those who

are regulated.”

Appalachian Power

at

1026-27.

(Quotation marks and citations in original

omitted.)

Thus, where the permitting authority, here

the Agency, becomes over-enthusiastic in

its gapfilling,

it

is imposing new substantive requirements

contrary to Title V.

18.

The Agency, indeed, has engaged in gapfilling, as

some of the Board’s underlying

regulations do not provide specifically for periodic monitoring.

C.J,

35

Ill.Adm.Code

2l2.Subpart

E.

However,

the Agency has

also engaged in over-enthusiastic gapfilling in some

instances,

as discussed in detail below.

These actions are arbitrary and capricious

and

are an

unlawful assumption of regulatory authority not granted by Section

39.5 of the

Act.

Moreover,

contrary to

Appalachian Power,

they, by their nature, unlawfully constitute the

imposition of

new substantive requirements.

Where Petitioner identifies inappropriate gapfilling

as the basis

for its objection to a term

or condition of the permit, Petitioner requests that the Board assume

this preceding discussion of gapfilling as part of that discussion of the

specific term

or condition.

19.

In

a number of instances specifically

identified and discussed below, the Agency

has failed to provide

required citations to the applicable requirement.

“Applicable requirements”

are those substantive requirements that have been promulgated or approved by USEPA pursuant

Note

that

testing may

be a type of monitoring.

See

Section

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

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

requirements set forth

in the statute or regulations

that are

part of the

Illinois

SIP.

Section

39.5(1).

General

proceduraL-type requirements

or authorizations

are not substantive “applicable

requirements” and are not sufficient basis for a substantive term or condition in the permit.

20.

The Agency has cited generally to Sections

39.5(7)(a), (b), (e), and (t) of the Act

or to Section 4(b) of the Act, but it has not cited to the substantive

applicable requirement that

serves as the basis for the contested condition in

the permit.

Only

applicable requirements may

be included in the permit? and the Agency is required by Title V to

identify its basis for

inclusion of a permit condition (Section 39.5(7)(n)).

If the Agency cannot cite to the applicable

requirement and the condition is not proper gapfilling, the

condition cannot be included in the

permit.

The Agency has confused

general data- and information-gathering authority with

“applicable requirements.”

They are

not the same.

Section 4(b) of the

Act cannot he convened

into an applicable requirement merely because the

Agency includes it

as the basis for a

condition.

Failure to cite the

applicable requirement is grounds for the Board to remand the term

or condition

to the

Agency.

21.

Moreover, the Agency’s assertion

in the Responsiveness Summary that its general

statutory authority

serves as its authority

to include conditions necessary to “accomplish the

purposes of the Act” misstates what is actually in the Act.

Responsiveness Summary,

p.

15;

see

Section 39.5(7)(n).

Section

39.5(7)(a)

says that the permit is to contain conditions necessary to

“assure compliance with all applicable requirements.”

(Emphasis added.)

For the Agency to

assume broader authority than that granted by the Act is unlawful and arbitrary and capricious.

Appalachian Power,

208

F.3d at

1026.

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22.

Another general deficiency of the

CAAPP permitting process in Illinois

is

the

Agency’s rethsal to develop and issue a formal statement of basis for the permit’s conditions.

This statement of basis is to explain the permitting authority’s rationale for the terms and

conditions of the permit.

It is to explain why the Agency made the decision it

did, and it is to

provide the permittee the opportunity to challenge the Agency’s rationale during the permit

development process or comment period.

Title V requires the permitting authority to provide

such a statement of basis.

Section 39.5(7)(n) of the Act.

The Agency’s after-the-fact

conglomeration

of the very

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

Responsiveness Summary

are just not sufficient.

When

the permittee and the public

are

questioning

rationale in comments,

it is evident that the Agency’s view of a statement of basis

is

not sufficient.

Further, the Responsiveness

Summary is prepared after

the

fact;

it is not provided

during permit development.

Therefore, it cannot serve as

the statement

of basis.

The lack of a

viable statement

of basis, denying the permittee notice of the Agency’s decision-making

rationale and the opportunity

to comment thereon, makes the entire permit defective and is,

in

and of itself,

a basis for appeal and remand of the permit and stay of the entire permit.

A.

issuance

and Effective Dates

(Cover Page)

23.

The

Agency issued the CAAPP permit that is the subject of this appeal to

Midwest Generation/Crawford Generating

Station on

September 29, 2005, at 7:18

p.m.

The

Agency notified Midwest Generation that the permits had been issued through emails sent to

Midwest Generation.

The emails indicated that the permits were available on USEPA’s website,

where Illinois’

permits are housed.

However, that was not the case.

Midwest Generation was

not able to locate the permits

on

the

website that evening.

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24.

The

issuance date of the permits becomes important because that is also the date

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

certain documents, according

to language in the permit,

to the Agency.

USEPA’s website

identifies that date

as September 29, 2005.

If that date is also the effective date, many additional

deadlines would be triggered, including the expiration date as well as the date by which certain

other documents must be submitted to the Agency.

More critical,

however, is the fact

that once

the permit becomes effective, Midwest Generation

is obliged

to comply with

it, regardless of

whether

it has any 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,

thc

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

Therefore,

it is unreasonable to expect Midwest Generation to have anticipated the

final permit to the degree

necessary for

it to have

been in compliance by 7:18 p.m. on

September 29, 2005.

25.

Moreover,

publication of the 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, sources 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

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enforcement suits for violation of the least matter

in the

permit.

Ifthe issuance date

is

the

effective date, this has the

potential for tremendous consequences to the permittee and is

extremely inequitable.

27.

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

obligation to perform quarterly monitoring and to

submit quarterly reports

(cf

Condition

7.1. 10-

2(a)), for the

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

The

requirement to perform quarterly monitoring, recordkeeping, and reporting for a quarter that

consists of less than 30 hours of operation,

assuming the permittee would even have

compliance

systems

in place so quickly after issuance

of the permit, is overly burdensome and would not

benefit the

environment in

any

manner.

Therefore, the

requirement is arbitrary

and capricious.

28.

A more equitable and legal approach would be for

the Agency to delay the

effective date of a final permit for a period of time reasonably sufficient for sources

to implement

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

time for the source to appeal the permit has expired,

so that an appeal can stay the permit until

the Board can rule.

29.

Consistent with the APA, the

effective date of the permit, contested herein, is

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

effective date some period oftime after the permittee has received the

permit following remand

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

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

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8.

Overall Source

Conditions

(Section 5)

(i)

Recordkeeping of and Reporting HAP Emissions

30.

The CAAPP permit issued

to the Crawford Generating Station

requires Midwest

Generation to keep records

of emissions of mercury, hydrogen chloride, and hydrogen fluoride

—

all

FlAPs

—

and to

report those emissions at Conditions 5.6.1(a)

and (b) (rccordkeeping) and

5.7.2

(reporting).

The

Agency has not provided a proper

statutory or regulatory basis for these

requirements other than the general provisions of Sections 4(b) and 395(7)(a), (b), and

(e) of the

Act.

Citations merely to the general provisions of the Act

do not create an “applicable

requirement.”

3 I.

In fact, there is no applicable requirement that allows the Agency to require this

recordkeeping and reporting

There are no regulations

that limit

emissions of I-lAPs from

the

Crawford Generating

Station.

While USEPA has

recently promulgated the Clean Air Mercury

Rule (“CAMR”) (70 Fed.Reg. 28605

(May 18,2005)), Illinois has not yet developed its

corresponding regulations.

The

Agency correctly discussed this issue relative specifically to

mercury

in the Responsiveness Summary by

pointing out that

it cannot add substantive

requirements through a CAAPP

permit or through

its oblique reference to the CAMR.

See

Responsiveness Summary

in the Administrative

Record, p. 21.

However, the Agency was

incorrect in its

discussion in the Responsiveness Summary by stating

that it can rely

upon

Section

4(b), the authority for the Agency to gather information, as a basis for requiring

recordkeeping and reporting of mercury emissions through the CAAPP permit.

The Agency has

confused its authority to gather data pursuant to

Section 4(b) and

its authority to gapfill to assure

compliance with the permit with the limitation on its authority under Title V to include

cmJ~

“applicable requirements” in a Title V permit.

See Appalachian Power.

Even by including only

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reeordkeeping and reporting of HAP emissions in the permit, the Agency has exceeded

its

authority just as

seriously as if it had included emissions limitations for HAPs in the permit,

Section 4(b) does not provide the authority

to impose this condition in a CAAPP

permit.

32.

Further, the Agency’s own regulations,

which are part of the approved program or

SIP for

its Title V program, preclude the Agency

&om requiring the reeordkeeping and reporting

of HAP emissions that

it has included at Conditions 5.6.1(a) and (b) and

5.7.2.

The Agency’s

Annual Emissions

Reporting rules,

35 lll.Adm.Code Part 254, which Condition

5,7.2

specifically

addresses,

state as

follows:

Applicable Pollutants for Annual

Emissions Reporting

Each Annual

Emissions Report shall include

applicable

information for all regulated air pollutants, as defined in Section

39.5

of the Act 415

ILCS

5/39.~1,

except

for the followiflg

pollutants:

b)

A hazardous

air pollutant

emitted

by an emission unit that

is not subject to a National Emissions Standard for

Hazardous Air Pollutants (NESHAP) or maximum

achievable control

technology (MACT).

For purposes of

this subsection

(b), emission units

that are not

required to

control or limit emissions but are

required to monitor, keep

records, or undertake other specific

activities are

considered subject

to such regulation

or requirement.

35

Ill.Adm.Code

§

254.120(b).

(Brackets in original; emphasis added.)

Power plants

are

not

subject to any NESHAPs

or

MACT standards.

See

69 Fed.Reg.

15994 (March 29, 2005)

(USEPA withdraws its

listing of coal-fired power plants under Section

112(c) of the Clean

Air

Act).

The Agency

has not cited any other

applicable requirement that provides it with the

authority to require Midwest Generationto keep

records of and report HAP emissions.

Therefore,

pursuant to the provisions of

§

254.120(b) ofthe

Agency’s regulations, the

Agency

has

no regulatory basis for requiring the reporting of HAPs emitted by coal-fired power plants.

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33.

Consistent

with the APA,

Conditions 5.6.1(a) and (b)

in tow

and Condition

5.7.2

as

it relates to reporting emissions of MAPs in the Annual Emission Report, contested

herein, are

stayed, and Midwest Generation requests that the Board order the

Agency to amend the permit

accordingly.

(ii)

Retention

and Availability of Records

34.

Conditions 5.6.2(b) and (c) switch the burden of copying records the Agency

requests from tile Agency, as stated

in Condition 5.6.2(a), to the permittee.

While Midwest

Generation generally does not object to

providing the Agency records reasonably requested

arid

is reassured by the Agency’s statement in the Responsiveness Summary that

its “on-site

inspection of records and ~itten

or verbal requests for copies of records will g~ncrallyoccur at

reasonable times and be reasonable

in nature and scope” (Responsiveness Summary, p.

18)

(emphasis added), Midwest Generation may not be able to print and provide data within the span

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

Moreover, most of the electronic records are already available to

the Agency through its own or

(SEPA’s

databases, and where this is the ease, 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, arc

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

manner to correct the deficiencies outlined above.

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(iii)

Submission of Blank Record

Forms to the Agency

36.

Midwest Generation may be confused

as to what the Agency expects with respect

to Condition 5.6.2(d).

See

Condition

5.6.2(d).

Midwest Generation’s first interpretation of this

condition

was that the Agency was requiring submission of the records that are required by

Conditions 7.1.9,

7.2.9, 7.3.9,

7.4.9,

7.5.9, 76.9,

and 7.7.9.

However, upon rereading

Condition

5.6.2(d),

Midwest Generation has come to believe that through this condition,

the Agency

is

requiring Midwest Generation to submit blank copies of its records,

apparently so that the

Agency can check them

for form and type of content.

If this latter is the correct interpretation of

this condition,

the condition is i~macceptabIe,as the Agency does not have

the authority to

oversee how Midwest Generation conducts its internal methods of compliance.

There is no basis

in law for such a requirement and

it must be deleted.

37.

Each company has the right and responsibility to develop and implement internal

recordkeeping systems.

Even the most unsophisticated company has

the right to develop and

implement internal recordkeeping systems and bears the responsibility for any insufficieneics in

doing

so.

Absent a statutory

grant or the promulgation of reporting formats

through rulemaking,

the Agency has

no authority to oversee the

development of recordkeeping or reporting formats.

The Agency has the authority to require that certain information be reported but cites to no

authority, because there is none, to support this condition.

38.

Nor does the Agency provide a purpose for this condition

—

which serves as

an

excellent example of why a detailed statement-of-basis document should accompany

the CAAPP

permits, including the drafts,

as required by Title

V.

One can assume that the Agency’s

purpose

for this condition

is

to review records that permittees plan to keep in support of the various

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

However,

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there is no regulatory

or statutory basis

for the Agency to do this,

and it has cited none.

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

adequacy of

recordkeeping, then without inherent

knowledge of all

the details of any given

operation,

it

will

be difficult for the Agency to

determine the adequacy of recordkeeping for the facility through

an off-site review.

If the Agency finds records that are submitted during the prescribed

reporting

periods inadequate, the Agency has a remedy available to

it through the law.

It can enforce

against

the

company.

That is the risk that the

company bears.

39,

Further,

if the

company is concerned with the adequacy of its planned

recordkeeping, it

can ask the Agency to provide it

some counsel.

Providing such counsel

or

assistance is a statutory function of the Agency.

Even

then, however,

the Agency will qualify

its

assistance in order to attempt

to

avoid reliance on the part of the permittee should there be an

enforcement action brought.

An interpretation of this condition could be

that by providing blank

recordkeeping forms to the Agency, absent a communication

from the Agency

that they are

inadequate, enforcement against the permittec for inadequate recordkeeping is barred, so long as

the forms are filled out, because they are covered by the permit shield.

40.

Additionally, the Agency has violated Midwest Generation’s due process rights

under

the Constitution by requiring submission of these documents before Midwest Generation

had the opportunity to exercise

its right to appeal the condition,

as granted by the Act at Section

40.2 of the Act.

The Act allows permittees

35

days in which to appeal conditions of the permit

to which it objects.

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

submit blank forms within

30 days of issuance of the permit significantly undermines Midwest

Generation’s right to appeal

—

and the effectiveness of that right

—

or forces Midwest Generation

to violate the terms and conditions of the permit to fully preserve its rights.

Although the

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condition

is stayed, because the

appeal may

not

he filed

until

35

days after issuance, there could

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

was

due until

the appeal

was filed.

Midwest Generation submits that the stay relates back

to the

date of issuance, but

it is improper to even

create this uncertainty.

This denies Midwest

Generation due process and so is unconstitutional, unlawful, and arbitrary and capricious.

41.

Consistent with the APA, Condition

5.6.2(d),

contested herein, is stayed, and

Midwest Generation requests that the Board order the Agency to delete

it

from the permit.

In the

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

Agency

fails to

communicate any inadequacies it finds in blank recordkeeping forms submitted

to it, enforcement against Midwest Generation for inadequate records

is barred, so long as

those

records were completed, as

a part

of the

permit shield.

C.

NOx

SIP Call

(Section

6.1)

42.

Condition 6.1.4(a)

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

While this is atrue statement,

i.e.,

the NOx trading program

in

Illinois commenced in 2004, it

is

inappropriate for the Agency to include in the permit a condition with a retroactive effect.

By

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 to

the effectiveness of this permit.

It is unlawful for the Agency to require retroactive compliance

with past requirements in a new permit condition.

Lake Envtl.,

Inc.

v

The State of Illinois,

No.

98-CC-S 179,

2001

WL 34677731, at

8 (Ill.Ct.Cl. May 29, 2001)

(stating “retroactive

applications are disfavored in the law, and are not ordinarily

allowed in the absence of language

explicitly so

providing.

The authoring agency of administrative regulations is

no less subject to

these settled principles

of statutory construction than any other arm of government.”)

This

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language

should be changed to refer to the

first ozone season occurring upon effectiveness of the

permit, which,

for example, ifthe permit appeal

is resolved before September 30,

2006, would be

the

2006 ozone season.

Rather than including a specific date, Midwest Generation suggests

that

the condition merely refer to the first ozone season during which the permit is effective.

43.

For these reasons, Condition 6.1.4(a)

is stayed pursuant to the APA, and Midwest

Generation requests that the Board order the Agency to amend the language to avoid retroactive

compliance with past requirements.

D.

Boilers

(Section 7.1)

(I)

Opacity

as a Surrogate

for

PM

44~

Historically, power plants

and other types of industry have demonstrated

compliance with emissions limitations for PM through periodic stack

tests and consistent

application of good operating practices.

Prior to the development of the CAAPP permits,

opacity

was priniarily a qualitative indicator of the possible need for further investigation of operating

conditions or even for the need of new stack testing.

However, in the iterations of the permit

since the publication of the October 2003

proposed permit, the Agency has developed an

approach in which opacity serves as aquantitative surrogate for indicating exceedances of the

PM emissions limitation.

For the first time in the August 2005 proposed permit, the

Agency

required Petitioner to identify the opacity measured at the

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

~

have been an exceedance

of the PM limit without regard forthe realistic potential for a PM exceedance.

These reporting

requirements are quite

onerous, particularly for the units that tested at the

lowest levels of PM

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and opacity.

The inclusion of these

conditions exceeds the scope of the Agency’s authority to

gapfill and so

are

arbitrary and capricious and must be

stricken

from

the permit.

45.

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

are

found

in Conditions 7.1 .9(c)(ii), linked to Condition 7.1.4(b), which contains the emissions

limitation for

PM; 7.1,9(c)(iii)(B),

also linked to Conditions 7.1.4(b)

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

7.1.10-1(a),

linked to Condition 7.1.10-3(a); 7.l.l0-2(a)(i)(E),

linked to Conditions 7.l.9(c)(iii)(B)

and

7.1 .9(c)(ii); 7.1.1 0-2(d)(v) generally; 7.1.1 0-2(d)(v)(C), requiring an explanation of the presumed

number and magnitude of opacity and PM exceedances and speculation

as to the causes of the

exceedances;

7.1.

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

PM exceedances and anticipated effect

on

future exceedances;

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

up reporting within

15

days after an incident during which there may have been

a PM

exceedance based upon this upper bound of opacity; and 7.1.12(b), relying

on continuous opacity

monitoring pursuant to Condition

7.1.8(a), PM testing to determine the upper bound of opacity,

and

the recordkeeping conditions

described above

to demonstrate compliance with the PM

emissions limitation.

46.

No one

can

provide a reliable,

exact PM concentratjon level anywhere in the

United States

today outside of stack testing.

Obviously,

it is impossible to continuously test a

stack

to determine a continuous

level of PM emissions,

and it would be unreasonable

for the

Agency or

anyone else

to expect

such.

Pursuant to some of the consent decrees settling a

number of USEPA’s enforcement actions against coal-fired power generators,

some companies,

including one in Illinois,

are

testing continuous PM monitoring devices.6

None of these

6

Cf

¶

89

of

the consent decree entered

in

US.

v.

Illinois

Power Company,

Civ.

Action No.

99-833-MJR

(S.D.

III.)

found in

the

Agency’s administrative record

of Dynegy Midwest

Generation’s

(“Dynegy”) appealsofits

permits,

filed on

or aboutthe same dayas this appeal.

See

Administrative Record,

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companies, according

to their consent decrees. is required

to rely

on these PM continuous

emissions monitoring systems (“CEMS”) to determine their current PM emissions levels.7

The

PM CEMS are not yet at a point of refinement

where they can even

be considered

credible

evidence of PM emissions

levels; at least, we

are

not aware of any case in which government or

citizens suing under

Section 304 of the Clean Air Act have relied upon PM CEMS as

the basis of

a case for

PM violations.

As a result, sources must rely upon the continuity or consistency of

conditions that occurred during a successftl

stack test to

provide reliable indications of PM

emissions levels.

47.

Historically, opacity has never been used

as a reliable,

quantitative surrogate for

PM emissions levels.

The Agency itself acknowledged that opacity

is not a reliable indicator of

PM concentrations.

See

Responsiveness Summary, pp.

15-16, 42-44.~Midwest Generation

agrees with the Agency that increasing

opacity may indicate that PM emissions

are

increasing,

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

any

given time, let alone at different times.

Midwest Generation’s current operating

permits require

triennial 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 is currently the best

and

most appropriate approach to assuring compliance with PM emissions limitations.

Moreover,

the

The Agency’s

requirement that

Dynegy

rely

on

uncertified

PM

CEMS

is

included

in Dynegy’s

appeals.

“Settirig

a specific

level

of opacity that

is deemed to

be

equivalent to

the

applicable

PM

emission

limit

is

not possible

on

a

variety

of levels,

.

,

.

It

would

also

be

inevitable that

such

an

action would

be

flawed

as the

operation of a boiler

may change over time and the coal

supply

will

also change, affecting the nature

and quantity

of

the

ash

loading to

the ESP.

These typeof changes cannot be

prohibited, as

they

are inherent in the routine operation

of

coal~tiredpower

plants.

However,

such

changes

could

invalidate

any

pre-established

opacity

value.”

ResponsivenessSummary,

p. 44.

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compliance method for PM emissions limitations

in the

NSPS

is only through stack testing, not

through opacity

as a surrogate for PM.

48.

Despite the Agency’s implications to the contrary in the Responsiveness

Summary

(see

Responsiveness Summary, pp. 42-44), the permit does make opacity a surrogate

for PM compliance.

When the Agency requires even

estimates of PM levels or

guesses as

to

whether there is an exceedance of PM

based upon opacity, opacity has been quantitatively tied to

PM compliance.

Further,

the opacity

level triggers reporting that the opacity/PM

surrogate level

has

been exceeded and so there

may

have been

an exceedance of the PM level regardless of any

evidence to the contrary.

For example, if the opacity/PM

surrogate level of,

say,

15

is

exceeded, this must he reported despite the fact that

all

fields

in the electrostatic precipitator

were on

and

operating,

stack testing indicated that the PM emissions

level at the

95th

percentile

confidence interval

is 0.04

lh/mmBtulhr, and the

likelihood that there was an exceedance of the

PM emissions limitation of 0.1

lb/mmBtulhr is extremely

low.

The purpose of such reporting

eludes Petitioner.

It does not assure compliance with the PM limit

and

so

inclusion of these

conditions exceeds the Agency’s

gapfilling

authority

and

is, thus, unlawful

and

arbitrary

and

capricious.

Moreover, this unnecessary reporting requirement is

a new substantive requirement,

according

to

Appalachian Power,

not allowed under Title

V.

49.

Contrary to the Agency’s assertion in the Responsiveness Summary that opacity

provides a“robust means to distinguish compliance operation of a coal-fired boiler and its ESP

from impaired operation” (Responsiveness Summary, p.

43), the robustness

is actually perverse.

Relying upon opacity as a surrogate for PM emissions levels

has

the perverse result

ofpenalizing

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 be

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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

95th

percentile

confidence interval was

1.

This condition in the permit would require

Midwest Generation to

submit a report for every operating hour for the

quarter, over 2,180 reports for the third quarter

of 2005, stating that the

unit

~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 gapuill,

is unlawful, and is arbitrary

and

capricious.

50.

Further,

this condition effectively creates a false low opacity limitation.

In order

to avoid the implication that there may have been

an exceedance of the PM limit, the opacity

limit becomes that level that is the upper bound at the

95th

percentile confidence interval in the

PM testing.

By including these conditions, the Agency has created a new, substantive

requirement without having complied with proper rulemaking procedures.

This is unlawful

and

beyond the scope of the Agency’s authority under Section

39.5 of the Act and Title V of the

Clean

Air Act.

It also violates the provisions of Title VII of the Act.

See Appalachian Power.

51.

These conditions

invite sources to perform stack testing under operating

conditions that

are

less than normal, /.e., to “detune” the units, to push the bounds of compliance

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

require, particularly for the typically best operating units.

That

is, to identiI~’

more realistically

the operating conditions that would result in emissions closer to the PM

limit,9 Midwest

Generation would

have to perform stack tests with some elements of the ESP turned off, even

Midwest

Generation’s policy

is that the boilers

be operated

in a compliant manner.

During

stack tests,

Midwest Generation

has consistently operated

theboilers

in a normal

mode, meaning that all

pollution control

devices

are operating, the boiler

is operating

at normal and maximum

load, and so forth.

PM test results typically

are

nowhere near the

PM

limit.

PM emissions

levels during Crawford’s

last stack tests were at

0.057

lb/mmBtu

for

Unit 7 and 0.069

IbfmmBtu at Unit

8,well

in compliance

with the PM

limitation.

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though they would not

he turned off during normal operation.

‘l’esting in a manner that generates

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

Nevertheless,

in order to

avoid the unnecessary and clearly arbitrary and capricious recordkeeping and

reporting requirements included in these conditions,

such stack testing is called

for, despite the

fact that the results of such tests will

not reflect normal operation of the boilers.

This is counter-

intuitive, and it

took Midwest Generation

quite some time to grasp that this is, at least indirectly,

what these conditions call

for.

It is so counter-intuitive as to

be the antithesis of good air

pollution control practices, yet this is what the Agency is essentially

demanding with these

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 the gap.

Periodic stack

testing according to the

schedule in Condition

7.1.7(a)(iii) is sufficient to assure

compliance with

the PM limit and satisfy the periodic monitoring requirements of Section

39.5(7)(d)(ii)

of the Act

according to the

Appalachian Power

court.

In fact,

“periodic stack testing” is the Agency’s own

phrase in Condition

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

with the findings

ofAppalachian Power.

53.

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

are repetitious of Condition

7.1.1 0-2(d)(iv).

Both require descriptions of the same incident and prognostications as

to how

the incidents can be prevented in the

future.

One such requirement, Condition

7.1.1 0-2(d)(iv),

is

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

objects to

Condition

7.1.1 0-2(d)(iv) to the extent that

it requires reporting relatedto the opacity

surrogate.

54.

As with Condition

5.6.2(d) discussed above, Condition

7.1 .9(c)(ii) denies

Midwest Generation

due process.

Condition

7.1.9(c)(ii) requires that the

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records.

.

.

that

identify the upper bound of the 95

confidence

interval (using a normal distribution and

1

minute averages) for

opacity measurements

.

.

.

,

considering an hour of operation,

within which compliance with

the

PM limit:

is assured,

with

supporting explanation

and documentation.

.

,

.

shall be submitted

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

Obviously, if Condition 5.6.2(d)

denies Midwest Generation due process,

Condition

7. l.9(c)(ii)

does

as well for the

same reasons.

Midwest Generation was

not granted the opportunity to

appeal

the condition

before

it was required to submit to the Agency information that

Midwest

Generation believes is not useful or reliable.

Midwest Generation is particularly loathe to

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

he

misconstrued

and misused.

55.

Finally, Condition

7.1.1 0-2(d)(vi) requires Midwest Generation to submit a

glossary of “common technical terms used by the Permittee”

as part of its reporting of

opacity/PM exceedance events.

If the terms are “common,” it eludes Midwest Generation as to

why,

then, they require

definition,

Moreover, this requirement does not appear anywhere

else in

the permit.

If “common technical terms” do not require definition in other contexts in this

permit,

then surely they do

not require definition in this context.

This requirement should be

deleted from the permit.

56.

Consistent with the APA, Conditions

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

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

7.1 .10-2(d)Qv), 7.1 .10-2(d)(v), 7.1 .1O-2(d)(v)(A),

7.1 .10-2(d)(v)(B), 7.1.10-

2(d)(v)(C),

7.1.10-2(d)(v)(D), 7.1.10-2(d)(vi), 7.1.10-3(a)(ii), and 7.1.12(b),

contested herein,

and any other related conditions that the Board finds appropriate

are

stayed,

and Midwest

Generation requests that the Board order the Agency to

delete these

conditions.

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

Compliance with

these

conditions is an

impossibility and, therefore,

the inclusion of these conditions

in the permit

is arbitrary and capricious.

Midwest Generation does not have a means for measuring the

magnitude of PM emissions at any time other than during stack

testing

—

not even using

the

opacity surrogate.

There is not a certified, credible, reliable alternative to stack testing

to

measure

PM emissions.

58.

Additionally,

Condition

7.1. l0-2(d)(iv)(A)(5) requires Midwest Generation to

identify “tjhe

means

by which the exceedance of

the PM emissions limit

was

indicated or

identified,

in addition to the level

of opacity.”

Midwest Generation believes that this means that

it

must provide information relative to any other means, besides opacity

—

which, as discussed

in

detail above, Midwest Generation believes is an inappropriate and inaccurate basis for

determining whether there are exceedances of the PM limit, let alone the

magnitude of any such

exceedance

—

that Midwest Generation relied upon

to determine there was an exceedance of the

PM limit.

Besides stack testing or perhaps total shutdown of the ESP, there are none.

59.

Consistent with the APA, Conditions

7.1 .9(g)(i),

7.1.9(g)(ii)(C)(5),

7.l.9(h)(ii)(D)(3), and 7.I.10-2(d)(iv), specifically 7.l.l0-2(d)(iv)(A)(3) and (5), contested

herein, are stayed, and Midwest Generation requests that the

Board order the Agency to delete

these conditions from

the permit.

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(iii)

PM

Testing

60.

Midwest Generation interpret.s the language in Condition 7.1.7(a)(i) to mean that

stack testing that occurs after December

31,

2003, and before March 29, 2006, satisfies the initial

testing requirement included in the permit.

However, the language is not perfectly clear and

should

be clarified.

61.

~1’he

Agency has included a requirement

in the permit at Condition

7.1 .7(b)(iii)

that Midwest Generation perform testing for PM1O

condensibles.’° First, this requirement

is

beyond the scope of the Agency’s authority to include

in a CAAPP permit, as

such testing is not

an “applicable requirement,” as

discussed in detail

below.

Second, even if the

condition were

appropriately included in the permit, which Midwest Generation does not

by any means concede,

the language of Condition

7.1.7(b)~”is not clear as to the liming 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 at

Condition

7.1 .7(b)(iii) at all

in a CAAPP permit, the Agency has exceeded its

authority, and the

requirement should be removed from the permit.

At the least, the requirement should he set

aside in a state-only portion of the CAAPP permit, although

Midwest Generation believes its

inclusion in any permit would be inappropriate because there is no

regulatory

requirement

that

applies

PM1O limitations to the Crawford

Generating Station,.

In response to comments on this

point, the Agency stated in the Responsiveness Summary at page

18, “The requirement for using

both Methods

5

and 202 is authorized by Section 4(b) of the Environmental Protection Act.”

°Ccndensib/e

is the

Board’s spelling

in

the regulations

and

in scientific publications,

thus

our

spelling

of it

here

despite

the

Agency’s

chosen spelling in

the

permit,

which

is

the preferred spelling in the

Webster’s dictionary.

See

35

fll,Adm.Code

§

212,108.

‘‘The asterisk

is

in thepermit.

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Midwest Generation does not question

the Agency’s authority to gather

information.

Section

4(b) of the

Act says,

The Agency shall have the duty to collect and disseminate such

information, acquire

such technical data,

and conduct such

experiments as may be required to carry out the purposes of this

Act, including ascertainment of the quantity

and nature of

discharges from any contaminant source and data on those sources,

and to operate

and arrange for the operation of devices for the

monitoring of environmental quality.

415

ILCS 5/4(b).

However, this authority does not make testing for PM 10 condensibles an

“applicable

requirement” under Title V.

As discussed above,

an “applicable requirement” is one

applicable to the

permittee pursuant to a federal regulation or a SIP.

63.

Further, simply because Method 202 is one of USEPA’s

reference methods does

not make it

an

“applicable requirement” pursuant to Title V, as

the

Agency suggests

in the

Responsiveness Summary.

The structure of the Board’s PM regulations establish the applicable

requirements for the Crawford Generating Station.

‘l’he Crawford Generating Station is subject

to the requirements of35 Il1.Adm.Code

2 12.Subpart E,

Particulate Matter

Emissions from Fuel

Combustion Emission Units.

It is not and never has

been located in a PMI 0 nonattainment

area.12

The

Board’s PM regulations are

structured such that particular PM1O requirements apply

to identified sources located in the PMIO

nonattainment areas.13

No such requirements apply

now or have ever applied to the Crawford Generating Station.

64.

The measurement method for PM, referencing only Method

5

or derivatives of

Method

5, is at 35

Ill.Adm,Code

§

212.110.

This section of the Board’s rules applies to

the

Crawford Generating Station.

The measurement method for PM10, on the other hand, is found

12

In

fact,

there

are

no

more

PMIO

nonattainment

areas

in

the state.

See

70

Fed.Reg. 5554!

and 55545

(September 22, 2005),

redesignating to attainment the Mccook

and Lake Calumet

nonattainment areas, respectively.

°

Presumahly,

these sources will

remain subject

to those requirements as part of Uhinois’

maintenance

plan.

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at

35

III.Adrn.Code

§

212.108, Measurement

Methods for PM-lU Emissions and Conder1siblc

PM-b

Emissions.

~l’hissection references both Methods

5 and 202, among others.

Not subject

to PMIO limitations, the Crawford Generating Station

is not subject to

§

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 condensibtes.

However, this statement does not expand the requirements of

§

212.110 to

include PM1O condensible testing when the

limitations applicable to

the source

pursuant to

212.Subpart E are for only PM,

~

PMIO.

Therefore, there is no

basis for the

Agency to require

in the CAAPP permit, which is

limited to including Qpjy applicable

requirements

and such monitoring,

recordkeeping, and reporting that are necessary to assure

compliance, that the Crawford Generating

Station be tested pursuant to

Method 202.

65.

‘fhe Agency even concedes

in the Responsiveness Summary that Method 202

is

not an applicable requirement:

The inclusion of this requirement in these CAAPP permits, which

relates

to fill and complete quantification of emissions,

does not

alter

the test measurements that

are applicable

for determining

g~rnpliancewith PM emissions standards and limitations, which

gç~era1lv

do not include condensable

sic

PM emissions.

In

addition, since condensable sic

PM emissions are not subject to

emission standards.

Responsiveness Summary, p.

18.

(Emphasis added.)

Further, the Agency says, “Regulatorily,

only filterablet141 PM emissions need to be measured.”

Responsiveness Summary, p.

18.

The

Agency attempts to justif5’ inclusion of the requirement for testing condensibles by stating

that

14

Le.,

non-gaseous PM; condensibles are

gaseous.

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the

data are needed to “assist in conducting assessments of the air quality impacts of power

plants, including the Illinois EPA’s development of an attainment strategy for PM2.5”

or

by

stating that “the use of Reference Method 202 is not limited

by geographic area

or regulatory

applicability.”

Responsiveness Summary, p.

18.

Under the Board’s rules, it is

limited to testing

for PM, and so, at least in Illinois, its “regulatory applicability” is, indeed,

limited.

These

attempted justifications do

not convert testing for condensibles into

an applicable requirement.

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

or authorize the creation of

permit conditions.

The Board’s rules serve

as the basis for permit conditions.

Therefore,

Midwest Generation does dispute that requiring such testing in the CAAPP permit is appropriate.

In fact,

it

is definitely not appropriate.

It is unlawful and exceeds the Agency’s authority.

67.

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

Consistent with the APA,

Condition 7.!.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

Concentrations

68.

The CAAPP

pennit issued to the Crawford 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.

b .9(a)(vi) (related rccordkeeping requirement), 7.1.10-1 (a)(iv) (related

reporting requirement), and 7.1.12(d) (related compliance procedure requirement).

bneluding

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

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authority to gapfill.

Maintaining compliance with the CO limitation has historically been a work

practice,

thus its inclusion in the work practice condition of the permit.

Sophisticated control

systems are programmed to maintain boilers

in an optimal operating mode,

which serves to

minimize CO emissions.

One can speculate that because it

is in Crawford’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 oplimization techniques historically at

power plants.

There 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 at the Crawford Generating

Station, at 29.2

ppm at Unit

7 and 45.8 ppm at Unit 8 during the latest stack test, 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 is in compliance by a huge

margin is overly burdensome and, therefore, arbitrary and capricious.

In order to comply with

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

Midwest Generation must purchase and install or operate

some sort of monitoring devices.

One

of the Crawford units has CO duct monitors that could be used to comply with this requirement.

The other unit at the Crawford Generating Station, however, does not have CO duct monitoring

15

The highest one-hour ambient

measure of CO

in the

state

in 2003

was in Peoria:

5.3

ppm; the highest 8-

hour ambient measure

in the state was

in Maywood:

3.5

ppm.

Illinois

Environmental Protection Agency,

IllEnois

Annual Air Qua?fey Report 2003,

Table

37,

p. 57.

The one-hour standard

is

35

ppm, and the 8-hour ambient

standard

is

9 ppm.

35

Ill.Adm.Code

§

243.I23.

Note:

The

Illinois Annual Air Quality

Report 2003

is the

latest

available

data on Illinois

EPA’s

websile at ~y~~pn.stateIl.us

-*

Air

-*

Air Quality

Information

-*

Annual Air

Quality

Report

-*

2003

Annual

Report.

The

2004

report is

not yet

available.

II

Midwest Generation questions

how

the requirement

that

the Agency

has included in Condition

7.1.6(a)

is

classified as

a

“work practice.”

To

derive

a

concentration of

CO

emissions,

Midwest Generation will

have to

engage

in

monitoring

or testing

—

the work practice

of

combustion optimization that

has

been

the

standard

historically.

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capability,

and neither unit has such monitoring capability

in the stack.

Therefore,

Midwest

Generation is effectively required to purchase

and install at least one monitoring device to

comply with this condition

with no environmental purpose served.

70.

Furthermore, the Agency has failed to provide

any guidance as to how to perform

diagnostic measurements of the concentration of CO in the

flue

gas.

It is Midwest Generation’s

understanding that a sample

can

be extracted

from any point

in the furnace or stack using a

probe.

This sample

can then be preconditioned (removal of water or particles,

dilution with

air)

and analyzed.

The way in which the sample

is preconditioned

and

analyzed, however, varies.

Given the lack of guidance and the variability in the way the

concentration of CO in the flue gas

can

he measured, the

data generated is not sufficient to

assure compliance with the CO limit and

is, therefore,

arbitrary and capricious.

Stack testing,

on the other hand, does yield data sufficient

to assure

compliance with the CO

limit.

71.

In addition, the permit requires

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

7.1 .9(h)(ii)(D)(3)’7 that Midwest Generation provide estimates of the

magnitude of CO emitted

during startup and operation during

malfunction and breakdown.

The monitoring device that

Midwest Generation would utilize for the quarterly diagnostic evaluations

required by

Condition

7.1.6(a) is a portable

CO monitor.

So far

as Petitioner knows, portable CO monitors

are

not

equipped with continuous readout recordings.

Rather, they must be manually read.

What the

Agency is effectively requiring through the recordkeeping provisions of Conditions 7.1 .9(g)(i),

7.1 .9(g)(ii)(C)(5), and 7.1.9(h)(ii)(D)(3)

is that someone continually read

the portable CO

monitor during startup, which could take as

long as

26

hours, and during malfunctions

and

breakdowns, which

are

by their nature not predictable.

In the first case (startup), the requirement

“

Related conditions

are 7.1.10-I

(a)(iv) (reporting)

and

7.1.12(d)

(compliance

proccdurcs).

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

in

the second case (malfunction and breakdown), in addition to the same problems that are

applicable during startup, it

may be impossible for Midwest Generation to comply with

the

condition,

72.

The requirement to perform diagnostic measurements of the concentration of CO

in

the flue gas is arbitrary and capricious because the Agency has

failed to provide any guidance

as to 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).

73.

USEPA 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 Crawford Generating Station.

74.

Consistent with the APA,

Conditions 7.1.6(a), 7.1.9(a)(vi),

7.1 .9(g)(i),

7.l.9(g)(ii)(C)(5), 7.1.9(h)(ii)(D)(3), 7.1.10-l(a)(iv), and 7.1.12(d) to the extent that Condition

7.1.12(d) requires

the

quarterly diagnostic measurements and estimates of CO emissions during

startup and malfunction/breakdown, contested herein,

and any other related conditions

that the

Board finds appropriate are stayed, and Midwest Generationrequests that the Board order the

Agency to amend Condition 7.1.6(a) to reflect a requirement for work practices optimizing boiler

operation, to delete the requirement for estimating the magnitude of CO emitted during startup

and malfunction and breakdown, and to amend the corresponding recordkeeping, reporting, and

compliance procedures accordingly.

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(v)

Applicability of 35 1ll.Adm.Code 217.Subpart V

75.

The Agency has

included the

word

each

in Condition 7.1.4(1)•:’~Theaffected

boilers

are ~çh

subject to the following requirements.

.

.

.“

(Emphasis added.)

Because of the

structure and purpose of 35

1ll.Adm.Code 2l7.Subpart V,

which is the requirement that the NOx

emissions rate from certain coal-fired power plants during the ozone season average no more

than 0.25

lh/mmBtu across the state, Midwest Generation submits that the

use of the word

each

in this sentence is misplaced and confusing, given the

option available to the Crawford

Generating

Station to average emissions among affected units in infinite combinations.

76.

Consistent with the APA, Conditions 7.1.4(f) 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

sentence quoted above in Condition

7.1.4(1)

and to insert the word each in Condition

7.1 .4(f)(i)(A) if the Board agrees that its inclusion

is necessary at all,

as follows:

“The emissions

of NOx from an each affected boiler

(vi)

Startup Provisions

77.

As is allowed by Illinois’ approved Title V program, CAAPP

permits provide

an affirmative

defense against enforcement actions brought against a permittee for emissions

exceeding an emissions limitation during startup.

The provisions in the Board’s rules

allowing

for operation of a CAAPP source during startup

are located

at 35

Ill.Adm.Code 20l.Subpart

I.

These provisions,

at

§

201.265 refer back to

§

201.149 with respect to the affirmative defense

available.

The rules nowhere limitthe length of time allowed for startup, and the records and

reporting required by

§

201.263, the provision that the Agency cited as

the regulatory basis for

Condition

7.1.9(g), do

not address startup at all;

it

is limited

in its scope

to records and reports

required for operation during malfunction and breakdown where there are excess emissions.

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Therefore, one must conclude that the records that the

Agency requires here are the result

of’

gapfilling and are limited to what is necessary to assure compliance with emissions

limits.

78.

Midwest Generation is already required to provide

information regarding

when

startups occur and how long they last by Condition

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

Condition

7.1.9(g)(ii)(B)

requires some additional

information relative to startup.

Emissions of SO2, NOx,

and opacity

during startup are

continuously monitored by the CEMS/COMS.

Midwest

Generation has

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

be provided

(see

above).

The additional information that the Agency

requires in Condition 7.l.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.

Moreover, this “additional” information would serve

no purpose were

it to be

required even

after the 26 hours typical

for startup.

79.

Consistent with the APA, Condition

7.1.9(g)(ii)(C), contested

herein, is stayed,

and Midwest Generation requests that the

Board order the Agency to delete the condition,

consistent with the startup provisions of 35

Ill.Adm.Code

§

20 1.149 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 be

expressed in the permit, and the Agency has made such

a grant of authority to Midwest

Generation for the Crawford Generating

Station.

This grant of authority serves

only as an

affirmative defense in an enforcement action.

Generally see

Condition 7.1.3(c).

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81.

Condition

7.1.1 0-3(a)(i) requires that Midwest Generation notify the Agency

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

PM

exceedances.

As Midwest Generation has pointed

out above, there is currently no

proven or

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

Therefore,

the Agency is demanding that Midwest Generation notif~’

it of the mere supposition that there

have been PM exceedances.

The Agency has provided

no regulatory basis for reporting

suppositions.

At

the very

least, Midwest Generation should be granted the opportunity

to

investigate whether operating conditions are such that support

or negate the likelihood that there

may have

been PM emissions exceedances during the malfunction and breakdown,

though

Midwest

Generation does not believe that even this is necessary,

since the Agency

lacks a

regulatory basis

for this requirement in the

first place.

Reference to reliance on opacity as

an

indicator

of PM emissions should he deleted.

The condition as written exceeds the

scope of the

Agency’s authority to

gaplill 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

as

a trigger

for reporting opacity and potential PM exceedances during an “incident”

in the final

version of the permit.

Versions prior to the July 2005 version include that word.

Its deletion

completely changes the scope

and applicability of the condition.

Please see

Midwest

Generation’s comments

on each version

of the permit

in the Agency

Record.

As the series of

comments demonstrates,

it was not until the draft revised proposed permit issued in

July 2005

that the Agency had deleted the

concept of consecutive six-minute averages of opacity from this

condition.

In the December 2004

version of the permit, the word

consecutive

had been replaced

with

in a row,

but the concept

is the same.

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83.

The Agency has provided

no explanation for this change.

As the actual

opacity

exceedance could alone comprise

the “incident,” Midwest Generation believes that

it

is more

appropriate to retain the word

consecutive

in the condition

(or add it back in to the condition).

Random, intermittent exceedanccs of the opacity

limitation do not necessarily comprise a

malfunction/breakdown “incident.”

On the other hand,

a prolonged period of opacity

exceedance 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. lO-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

7.1.1 0-3(a)(i).

Midwest Generation suggests that the Agency qualify the

length of time during which the

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

hours.

84.

Consistent with the APA, Condition 7.1.lO-3(a)(i), contested herein,

is stayed,

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

it from the permit as

it relates to PM.

Consistent with the APA,

Condition

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

and

Midwest Generation requests that the Boardorder the Agency to remove

the reference to PM

emissions and to insert a timeframe to span the six

six-minute opacity averaging periods to make

them consecutive or, in the alternative, to require that they occur within a two-hour block,

(viii)

Alternative Fuels Requirements

85.

The Agency has included at Conditions

7.1.5(a)(ii)-(iv) requirements that become

applicable when Crawford uses a fuel

other than coal as its principal fuel.

Condition

7.1 .5(a)(ii)

identifies what constitutes using an alternative fuel

as the principal

fuel and establishes emissions

limitations.

Condition

7.1,5(a)(iii) also describes the conditions under which Crawford would be

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considered

to be

using an alternative fuel

as

its principal fuel.

Condition 7.l.5(a)(iv) requires

notification to the Agency prior to Crawford’s

use of an 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 in Condition

7.1.11(c), operational

flexibility, where the Agency already has a

provision addressing alternative fuels.

As

the Agency has adopted a structure for the CAAPP

permits that is fairly consistent

not only among units in

a single permit

but also

among permits,’8

for the Agency to include specific recordkeeping requirements in the compliance section creates

a disconnect and uncertainty regarding where the permittee

is to find out what it

is supposed to

do.

87.

Additionally,

at Condition

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

of alternative fuels defines them

as hazardous wastes.

The intent and purpose of the

condition

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 adjustments

to the language

as

necessary, to clarify that the examples listed arc

not hazardous wastes.

88.

For these reasons, Conditions

7.1 .5(a)(ii),

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

7.1.11 (c)(ii) are

stayed pursuant to the APA,

and Midwest Generation requests that

tbe Board

IS

That

is,

Condition 7.x.9

for

all

types of emissions

units

in

this

permit, from boilers

to

tanks,

addresses

recordkeeping.

Likewise,

condition

7.x.9

addresses recordkeeping

in

all

of t1~eCAAPP

permits for

EGUs.

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order

the Agency to place Conditions

7.1.5(a)(ii)-(iv)

in

more

appropriate sections of the permit

and to clarify Condition 7.1.11 (c)(ii).

(ix)

Stack

Testing Requirements

89.

Condition

7.1 .7(e) identifies detailed information that is to be included in the

stack test reports, including target levels and settings.

To the extent that these requirements are

or

can be viewed

as enforceable operational requirements or parametric monitoring conditions,

Midwest Generation contests this condition.

Operation of an electric

generating station depends

upon many variables

—

ambient air temperature, cooling water supply temperature, fuel supply,

equipment variations, and so

forth

—

such that different settings are used on a daily basis.

Stack

testing provides a snapshotof operating conditions within the scope of the

operational paradigm

set forth in the permit at Condition

7.1.7(b) that is representative of normal

or maximum

operating conditions,

but using those settings as some type of monitoring device or parametric

compliance data

wouLd be inappropriate.

90.

Consistent with the APA, Condition 7.1.7(e), contested herein, is stayed, and

Midwest Generation requests

that the Board order the Agency to delete the condition from the

permit.

(x)

Monitoring

and Reporting Pursuant to NSPS

91.

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

Crawford is subject to NSPS monitoring and reporting requirements pursuant to the Acid Rain

Program.

Midwest Generation’s review of the applicable requirements under Acid Rain do not

reveal how the Agency arrived at this conclusion.

This is an example of how a statement of

basis by the Agency would have been very helpful

The Acid Rain Program requires monitoring

and reporting pursuant to 40 CFR Part 75.

Specifically, 40

CFR

§

75.21(b)

states

that

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continuous opacity monitoring shall be conducted according to procedures

set forth in state

regulations where they exist.

Recordkeeping

is addressed at

§

75.57(j) and reporting at

§

75.65.

None of this references

Part

60, NSPS.

92.

Arguably, it

is odd that a permittee would appeal a condition in a permit that

states

that regulatory provisions are not applicable.

However, consistent with Midwest

Generation’s analysis of the Acid Rain requirements, the permit, and the Board’s regulations, it

must also appeal Condition 7.1.5(b), which exempts Crawford from

the requirements of 35

IlL.Adm.Code 201.Subpart L based

upon the applicability of NSPS.

NSPS does not apply

to the

Crawford

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

is

inappropriate.

93.

Conditions 7.1.1 0-2(b)(i), 7.1.1 O-2(c)(i), and 7.1.1 0-2(d)(i) require Midwest

Generation

to submit summary information on the performance of the 502, NOx,

and opacity

continuous monitoring systems, respectively, including the information specified at 40 CFR

§

60.7(d).

Condition 7,1.10-2(d)(iii) Note refers,

also, to NSPS

§~

60.7(c) and

(d).

The

information required at

§

60.7(d) is inconsistent with the information required by

40 CFR Part

75, which are the federal reporting requirements applicable to Midwest Generation’s boilers.

Section 60.7(d) is not

an “applicable requirement,” as the boilers are

not subject to the NSPS.

For Midwest Generation to comply with these conditions would entail reprogramming or

purchasing and deploying additional software

for the computerized CEMS, effectively resulting

in the imposition of additional substantive requirements through the CAAPP permit beyond the

limitations of gapfilling.

Moreover, contrary to Condition

7.1.1 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.

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94.

Consistent with the APA, Conditions 7.1.5(b), 7.1.1 0-2(b)(i), 7.1.1 0-2(e)(i),

7,l.10-2(d)(i),

7.1.10-2(d)(iii), and

7.1 .10-2(d)(iii) Note, contested herein, are stayed, and

Midwest Generation requests that the Board order the Agency to delete reference to 40

CFR

60.7(d).

(xi)

Opacity Compliance Pursuant

to

§

212.123(b)

95.

The Board’s regulations at 35

Ill.Adm.Code

§

212.123(b) provide that a source

may exceed the 30

opacity limitation of

§

212.123(a) for

an aggregate of eight minutes in a 60-

minute period but no more

than three times in a 24-hour period.

Additionally, no other unit at

the source located

within a 1,000-foot radius from the unit whose emissions exceed 30

may

emit at such an opacity during the same

60-minute period.

Because the opacity limit at

§

2 12.123(a) is expressed as

six-minute averages pursuant to Method 9

(see

Condition

7.l.12(a)(i)),

a source demonstrating compliance with

§

212.123(b) must reprogram

its COMS

to

record or report opacity over a different timeframe than would be required by demonstrating

compliance with

§

212.123(a) alone.

The Agency

attempts to reflect these provisions at

Condition 7.1.12(a), providing for compliance with

§

212.123(a) at Condition 7.1.12(a)(i) and

separately addressing

§

212.123(b) at Condition

7.1.1 2(a)(ii).

Additionally,

the Agency requires

Midwest Generationto provide

it with

15

days’ notice prior to changing

its procedures to

accommodate

§

212.123(b)

at Condition

7,1.12(a)(ii)(E).

These conditions raise several issues.

96.

First, Condition

7.1.1 2(a)(ii) assumes that accommodating the

“different”

compliance requirements of

§

212.123(b), as compared to

§

212.123(a), is a change in operating

practices.

In fact, it is not.

Midwest Generation has been capturing opacity data in compliance

with

§

2 12.123(b) for a number of months as ofthe issuance date of the permit.

Arguably, then,

Midwest Generation has nothing to report to

the Agency pursuant to Condition

7.1.1 2(a)(ii)(E),

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because no change

is

occurring.

However, Midwest Generation suspects that Agency assumes

that

it has not made this so-called change yet.

Midwest Generation requests clarification from

the Board that such reporting

is not required

where the permittee has already accomplished the

“change” in data capture prior to issuance

of the CAAPP permit and that no

recordkeeping and

data handling practices

must be submitted for Agency review.

97.

Second,

as with Midwest Generation’s objection to Condition

5.6.2(d), Condition

7,1. 12(a)(ii)(E) is an attempt by the Agency to insert itself into the operational practices of a

source beyond the

scope

of its authority to do so.

The Agency states that the purpose of the

IS

days’ prior notice is

so that the

Agency can review the source’s recordkeeping and data handling

procedures,

presumably to assure that they

will comply with the requirements

implied by

§

212.123(b).

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

If, during an inspection

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

with

§

212.1 23(b)’s implied

data collection requirements, then the Agency

is authorized by the

Act

to take certain actions.

Midwest Generation

is quite capable of taking the responsibility for

the data capture

and recordkeeping necessary

for compliance with

§

2 12.123(b).

98.

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

says that the Agency will review the

recordkeeping and data handling practices of the source,

it says nothing about approving them or

what the Agency plans to do

with the review.

The Agency has not explained a purpose of the

requirement in a statement of basis document or in its Responsiveness

Summary or shown how

this open-ended condition assures compliance with the applicable requirement.

Because the

Crawford Generating Station is required to operate a COMS, all

of the opacity readings captured

by the COMS are recorded and available to the Agency.

‘l’he Agency has had ample opportunity

to determine whether

Crawford has complied with

§

212.123(b).

Midwest Generation’s

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providing

15 days’

prior notice of its “change” to accommodating

§

212.123(b)

will not improve

the Agency’s ability to

determine Crawford’s compliance.

99.

Conditions 7.1.1 0-3(a)(i) and (ii) do not accommodate the applicability of

§

212.123(b).

The Board’s regulations do not limit when

§

212.123(b) may apply beyond eight

minutes per

60 minutes three times per

24

hours.

Therefore, any limitation on opacity must

consider

or accommodate the applicability of

§

212.123(b) and not assume or imply that the

only

applicable

opacity limitation is 30.

100.

Finally, inclusion of recordkeeping and notification

requirements relating to

§

212.123(b) in the compliance section

of the permit is

organizationally misaligned under the

permit structure adopted

by the

Agency.

These provisions,

to the extent that they are

appropriate

in the first place, should be included in the proper sections of the permit, such

as

7.1.9 for

recordkeeping and 7.1 .10 for reporting.

As the Agency has adopted a structure for the CAAPP

permits that is fairly consistent not only among units in a single permit but also among permits,

for the Agency to

include specific recordkeeping requirements 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.

101.

Consistent with the APA, Condition

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

and

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

permit.

Additionally, consistent with the APA, Conditions

7.1 .1 0-3(a)(i) and (ii), contested

herein, are

stayed, and, if the Board does not order the Agency to delete these conditions

from

the permit pursuant to other requests raised

in this appeal, Midwest Generation requests that the

Board order the Agency to amend these conditions to reflect the applicability of

§

212.123(b).

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E.

Coal Handling Equipment, Coal Processing Equipment, and Fly Ash Equipment

(Sections

7.2, 7.3,

and 7.4)

(i)

Fly Ash

Handling

v.

Fly Ash Processing Operation

102,

No

processing occurs within

the fly ash

system.

It is ahandling

and storage

operation the same as coal handling and storage.

The Agency recognizes in Condition

7.4.5

that

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

equipment used to crush or grind ash.”

This underscores Midwest Generation’s point that the

fly

ash handling system is not a process.

103.

Because the fly

ash operations at the

Crawford Station are not a process, they are

not subject

to

the process weight rate nile at

§

212.321(a).

Section 212.321(a)

is not an

applicable requirement under Title V, since the fly ash operation is not a process.

9

The process

weight rate rule is not a legitimate applicable requirement and so is

included in the permit

impermissibly.

Condition

7.4.4(c) and

all other references

to the process rate weight rule or

§

212.321(n),

including in Section

10 of the permit,

should be deleted.

1 04.

Since the fly ash operation is not a process, reference to it as a process is

inappropriate.

The word

process

and

its derivatives in Section

7.4 of the permit should be

changed to

operation

and

its appropriate derivatives or, in one instance, to

handled,

to ensure

that

there is no confusion as to the applicability of~212.321(a).

105.

Consistent with the

APA, the Conditions 7.4.3,

7.4.4, 7.4.6, 7.4.7, 7.4.8,

7.4.9,

7.4.10, and 7.4.11, all of which are contested herein,

are stayed,

and Midwest Generation

requests that the Board order the Agency to delete the

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

‘~

Midwest

Generation

does

not

dispute

the

Agency’s

insistence

that

fly

ash

handling

is

subject

to

the

process weight rate rule because

it cannot comply;

in fact, Midwest

Generation

complies

by

an

impressivemargin.

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other references to the process weight rate rule, including

in Section

10, and add Condition

7.4.5(b) identifying

§

212.321(a) as

a requirement that

is not applicable

to

Crawford.

(ii)

Water Sprays for Coal Processing Operations

106.

Midwest Generation

employs water spraying as

another means of controlling

emissions from the coal processing operations.

These should be listed at Condition

7.3.1

as well

as Condition 7.3.2.

For these reasons, Condition 7.3.1, contested herein,

is stayed, and Midwest

Generation requests that the Board order the Agency to add water

sprays to the description of the

emissions control practices at the Crawford

Generating Station.

(iii)

Fugitive Emissions Limitations

and

Testing

107.

The Agency

has applied the opacity limitations of~212.123 to sources of fugitive

emissions at the Crawford 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

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

n)othing

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.

108.

That the Agency had to specifically

establish fugitive

emissions limitations for

such sources is a strong indication that the regulatory structure did

not apply the opacity

limitations of

§

212.123 to fugitive sources.

Fugitive emissions are distinctly different in nature

from point source emissions, in that point source emissions

are emitted through a stack, while

fugitive emissions are not emitted thsough some discrete point.

Therefore,

fugitive

emissions are

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addressed separately in the Board’s rule

at 35 llLAdm.Code 2l2.Subpart

K.

These rules call

for

fugitive emissions

plans and specifically identify the types of sources that are to be

covered by

these

plans.

Condition

5.2.3 echoes these requirements, and Condition

5.2.4 requires the

fugitive

emissions plan.

109.

The

limitations

for fugitive emissions

arc set forth at

§

2 12.301.

It is a no-visible-

emissions standard,

as

viewed at the property line of the

source.

The measurement methods

for

opacity are

set forth

at

§

212.109, which requires application of Method 9 as

applied to

§

212.123.

It includes specific provisions for reading the opacity

of roadways and parking areas.

However,

§

212.107, the measurement

method for visible emissions,

says, “This Subpart

shall

not apply to

Section 212.301 of this

Part.”

Therefore,

with the exception of roadways

and

parking

lots, the Agency is precluded from applying Method

9 monitoring

to fugitive emissions,

Icaving no manner for monitoring opacity from fugitive

sources other than the method

set forth

in

§

212.30!,

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 nonapplicability are set forth in the regulations.

110.

As

§

212.107 specifically excludes the applicability of Method

9 to fugitive

emissions,

the requirements of Condition 7.2.7(a), 7.3.7(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(b),

must be deleted

from the permit.

Except for roadways and parking lots,

§

212.123 is not an applicable requirement for fugitive emissions sources and the Agency’s

inclusion of conditions for fugitive sources based upon

§

212.123

and Method

9

is unlawful.

‘To

the extent that Condition

7.2.12(a), 7.3.12(a), and 7.4.12(a) rely

on Method

9 for demonstrations

of compliance, it, too, is unlawful.

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Ill.

The Agency also requires stack tests of the baghouses at Conditions

7.2.7(b),

7.3.7(b), and 7.4.7(b).

PM stack testing would be

conducted in accordance with

lest Method

5.

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

1.

The

stacks and vents for such sources as small baghouses and wetting systems

are narrow and not

structurally built to accommodate testing ports

and platforms for stack testing.

The PM

emissions for these types of emissions units are very small.

The inspections,

monitoring, and

recordkeeping requirements

are sufficient to assure

compliance.

These conditions should be

deleted from the permit.

112.

For these reasons,

consistent with the APA, Conditions 7.2.4(b),

7.2.7(a), 7.2.7(b)

7.2.12(a), 7.3.4(b),

7.3.7(a), 7.3.7(b), 7.3.12(a), 7.4.3(b), 7.4.7(a), 7.4.7(b),

and 7.4.12(a), all

contested herein, are

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

to delete these conditions

to the extent that they require compliance with

§

212.123

and Method

9 or stack testing and, thereby, compliance with

Methods

I

and

5.

(iv)

Temporary Fly Ash Storage “Facility”

113.

Condition 7.4.3(b)(iii) refers to a storage “facility” for temporary storage of tly

ash

should that become necessary.

The

implication of the word

facility

is a building or other

type of enclosure.

Midwest

Generation objects to the use of the wordjácility without

clarification that

it

includes temporary storage in piles on the ground.

For this reason, consistent

with the APA, Condition 7.4.3(b)(iii), contested herein, is stayed, and Midwest Generation

requests that the Board order the Agency to clarify the condition appropriately.

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(v)

Testing Requirements for Coal Handling, Coal Processing, and Fly

Ash

Handling

Operations

114.

The

final permit provides at

Condition 7.4,7(a)(ii) that Midwest Generation

conduct the opacity testing

required at Condition 7.4.7(a)(i)

for a period of at least

30 minutes

“unless

the average opacities for the first 12 minutes of observation (two six-minute averages)

are both less than

5.0

percent.”

The original draft and proposed permits (June 2003

and October

2003,

respectively) contained no testing requirement for fly

ash handling.

This testing

requirement first appeared in the draft revised

proposed permit of December 2004, and at that

time allowed for testing

to be discontinued

if the

first

12

minutes’ observations were both less

than

10.

In

the second

draft revised proposed permit (July 2005), the Agency inexplicably

reduced the threshold for discontinuation of the test to

5.

115.

The Agency provided

no

explanation for (I) treating

fly

ash handling differently

from coal handling in this regard

(see

Condition

7.2.7(a)(ii)20)

or (2)

reducing the threshold from

10

to 5.

Because the Agency has not provided

an

explanation for this change at the time that

the change was made to provide

Midwest Generation with the

opportunity, at worst, to try to

understand the Agency’s rationale or

to

comment on the change, the inclusion of this change

in

the threshold for discontinuing the opacity test is

arbitrary and capricious.

Condition 7.4.7(a)(ii)

is inextricably entwined with 7.4.7(a), and so

Midwest Generation must appeal this underlying

condition as

well.

116.

For these reasons,

Condition 7.4.7(a), which

is again contested herein,

is

stayed,

and, without conceding its appeal of these conditions

as

to

their appropriateness at at!, as stated

above, Midwest Generation requests that if the conditions must remain in the permit the Board

20

‘The

duration

of opacity

observations for

each

test shall beat least

30

minutes (five 6-minute

averages)

unless the

average

opacities

for

the first

12

minutes of observations (two

6-minute

averages)

are

both

less

thanIO.0

percent.”

(Emphasis

added.)

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

10

threshold, rather than the

5

threshold, for discontinuation of the opacity test, although Midwest Generation specifically does

not concede that Method

9 measurements

are appropriate in the first

place..

(vi)

Inspection Requirements

for Coal Handling, Coal Processing, and Fly Ash Handling

Operations

117.

Conditions

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

inspection requirements for the

coal handling,

coal processing, and fly ash handling operations, respectively.

In each case, the

condition requires that “these

inspections shall be performed with personnel

not directly

involved in the day-to-day

operation of the affected operations

“

The Agency

provides no

basis for this requirement other than a discussion,

after the permit has

been issued, in the

Responsiveness Summary at page

19.

The Agency’s rationale is that the personnel performing

the inspection should be “fresh”

and “independent”

of the daily

operation, but the Agency

does not

tell us why being “fresh” and “independent”

are “appropriate” qualifications

for such

an

inspector.

The Agency rationalizes that Method 22,

i.e.,

observation for visible emissions,

applies, and so the inspector need have no particular

skill set.

The opacity requirement

for these

operations is not 0

or no

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

line.

Therefore,

exactly what the observer is supposed to look at is not at all

clear.2’

118.

There is no basis in law or practicality for this provision.

To identify in a CAAPP

permit condition who can perform an inspection

is overstepping the Agency’s

authority and

clearly exceeds any gapftlling authority that may somehow apply to

these observations of

fugitive dust.

The requirement must be stricken from the permit.

21

The

Agency’s

requirements

in

this

condition

also

underscore

Midwest

Generation’s

appeal

of

the

conditionsapplying an

opacity limitation to fugitive

sources,

above at

Section

l11,E.(iii).

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119.

The Agency has

included in Conditions

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

coal handling and coal

processing operations be conducted every

15 months while the

process is

not operating.

Condition

7.4.8(h) contains a corresponding requirement for

Ily ash handling, but

on a nine-month frequency.

The Agency has not made it clear

in a statement

of basis

or even the

Responsiveness

Summary why these particular frequencies for inspections are appropriate.

Essentially, the Agency

is

creating an outage schedule, as

these processes are intricately linked

to

the operation of the boilers.

In any given area of the station, station

personnel are constantly

alert to any “abnormal” operations during the

course of the day.

Although

these are not formal

inspections, they are informal inspections and action is

taken to address

any

“abnormalities”

observed as quickly

as possible.

It is Midwest Generation’s best interest to run its operations as

efficiently and safely

as possible.

While the Agency certainly

has gapfilling authority,

the

gapfilling authority is limited to what is necessary

to ensure compliance with permit conditions.

See Appalachian Power.

It is not clear at all how these frequencies of inspections

accomplish

that end.

Rather,

it appears that these conditions

are administrative compliance traps fur work

that is done as

part of the normal

activities at the

station.

120.

Moreover, the Agency does

not provide a rationale as to why

the

frequency of fly

ash handling inspections should be greater (more frequent) than

for the other operations.

121.

As these operations must be

inspected when they are not operating,

and as they

would not operate during an outage of the boiler,

it is not necessary for the Agency

to dictate the

frequency of the

operations.

Rather, it is logical that these inspections should be

linked to boiler

outages.

Moreover, these operations are inspected on monthly or weekly bases pursuantto

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

any

maintenance issues will be

identified long

before the

15-

or nine-month inspections.

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122.

Conditions

7.2.8(b),

7.3.8(b), and 7.4.8(b) require detailed inspections of the

coal

handling, coal processing,

and fly ash

handling operations both before and after maintenance has

been performed.

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

not cited

an applicable requirement for these conditions.

This level of detail in a CAAPP permit is

unnecessary and inappropriate and exceeds the Agency’s

authority to gapfill.

These

requirements

should be deleted from the permit.

123.

Condition

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

a

monthly basis and provides “that all

affected operations that are in routine

service shall be

inspected at least once during each calendar month.”

Since the first sentence of the condition

already stales that these operations are to

be inspected on

a monthly basis, the last clause of the

condition appears superfluous.

Ilowever, until the July 2005

draft revised proposed permit, the

language in this clause was “that

all affected operations shall

be inspected at least once during

each calendar quarter.”22

The Agency has provided

no explanation as to why the frequency of

the inspections has been increased.

124.

For these reasons,

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

corresponding recordkeeping conditions, 7.2.9(d), 7.3.9(c), and 7.4.9(c),

all of which are

contested herein, are stayed consistent with the APA, and Midwest Generation requests that the

Board order the Agency

to delete those provisions of these 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(b), 7.3.8(b),

and 7.4.8(b), contested herein, are stayed

pursuant to

22

That

is,

not

all

aspects of

the

coal

handling

operations

are required to be

inspected during operation on

a

monthly basis.

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the

APA. and Midwest Generation requests that the Board order the Agency to alter the

frequency of the inspections to correspond to boiler

outages.

(vii)

Recordkecping

Requirements for Coal

Handling, Coal Processing, and Fly Ash

Handling Operations

125.

Condition 7.2.9(a)(i)(C)

requires Midwest Generation to

submit a list identifying

coal conveying equipment considered an “affected facility” for purposes ofNSPS.

Such a list

was

included

in the application, and that

should suffice.

Moreover, the

equipment in question

is

subject to the

NSPS identified

in Condition 7.2,3(a)(ii), and so has already

been identified in the

pernut

itself.

To

require Midwest Generation to create

a second list is redundant and

not

necessary to

ensure compliance with

emissions limitations.

The equipment

has been permitted

lustorically.

Moreover, the condition requires submission of this list pursuant to Condition

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

Condition 7,2.9(a)(i)(C)

should be deleted

from the permit.

126.

Likewise,

the demonstrations confirming that

the established control measures

assure compliance with emissions lintitations, required at Conditions 7.2.9(b)(ii),

7,3.9(b)(ii).

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

provided to the Agency

in the construction and CAAPP

permit applications.

These conditions

are

unnecessarily redundant, and resubmitting the

demonstrations pursuant to Conditions 7.2,9(b)(iii), 7.3.9(b)(iii),

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

127.

Moreover,

Conditions 7.2.9(b)(iii),

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

reporting

requirements within the

recordkeeping requirements, contrary to

the overall structure ofthe

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permit.

Midwest

Generation has already objected to the inclusion of these conditions for other

reasons.

In any event, they should not appear

in Condition

7.x.9.

128.

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

and 7.4.9(c)(ii)(B) are redundant of

7. 2.9(d)(ii)(E), 7.3.9(c)(ii)(E),

and 7.4. 9(c)(ii)(E), respectively.

Such redundancy

is not

necessary.

Conditions

7.2.9(d)(ii)(B),

7.3.9(c)(ii)(B), and 7.4.9(c)(ii)(B) should

be deleted

from

the permit.

129.

Conditions 7.2.9(e)(ii), 7.2,9(c)(vii), 7.3,9(d)Oi), 7.3,9(d)(vii), 7.4.9(d)(ii), and

7.4.9(d)(vii) require

Midwest Generation to provide the magnitude of PM emissions during an

incident where the coal handling operation continues without the use of control measures.

Midwest Generation has established that

it has no means to measure exact PM emissions from

any process on a continuing basis.

The Agency understands this.

Therefore,

it is not appropriate

for the Agency to require reporting of the magnitude of PM emissions.

130.

The Agency

uses the word

process

in

Condition 7,2.9(f)(ii) rather than

operation,23

perhaps because

use of

operation

at this point would be repetitious.

While this may

seem a very minor point, it is

a point with a distinction.

The word

process,

as the Board can see

in Section 7.4 of the permit relative to the fly ash handling operation, can be a buzzword that

implicates the applicability of the process weight rate rule.

Midwest Generation wants there to

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

the process

weight rate rule.

Therefore, Midwest Generation has repeatedly requested that the Agency

substitute

operation

or some synonym for

process

in this context.

131.

The Agency provided

no rationale and still provides no

authority for its inclusion

of Condition 7.4.9(c)(i)(B), observations of accumulations of fly ash in the vicinity of the

23

“Records

for

each

incident

when operation

of

an

affected

process

continued

during malfunction

or

breakdown

(Emphasis added,)

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operation.

The Agency did address this condition after

the fact in the

Responsiveness Summary,

but

did not provide an acceptable rationale as to why the

provision is 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 be

performed by

a member of the general public.

Moreover, this is a

reasonable requirement for

the plants for which it is being applied,

which

are

required to implement operating programs to minimize

emissions of fugitive

dust.

At such plants, accumulations of fines

can potentially contribute to emissions of fugitive dust,

as they

could become airborne in the wind.

Responsiveness

Summary, p.

19.

The heart of the mailer lies

in the next-to-last sentence:

“plants.

.

-

which are required to implement

operation programs to minimize emissions of

fugitive dust.”

This is accomplished through fugitive dust plans, required at 35

Ill.Adm,Code

§

212.309 and Condition

5.2.4.

The

elements of fugitive dust plans are set forth at

§

212.310 and

do

not include

observations of accumulations of fines.

In fact, nothing in the Board’s rules

addresses

observing the

accumulation of fines.

132.

Observing accumulations of fines is not an applicable requirement; therefore, its

inclusion in the permit violates

Title V and

Appalachian Power

by imposing a new substantive

requirement upon the permittee through the Title V permit.

Additionally,

observing

accumulations of fines cannot reasonably be

included under gapfihling, as

it is not necessary to

assure compliance with the permit.

The assurance of compliance with the fugitive dust

requirements rests within

the adequacy of the fugitive dust plan, which must be submitted to the

Agency for its review, pursuant to

§

212.309(a), and periodically updated, pursuant to

§

212.312.

If the permittee does not comply with its fugitive dust plan or the

Agency finds

that the fugitive

dust plan is

not adequate, there are procedures and remedies available to the Agency to address

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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 in 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.

133.

Given that the

fly ash system results in

few emissions,

rarely breaks down, and is

a closed system, there is no apparentjustification 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(f)(ii)(E))

and coal

processing (Condition 7.3.9(e)(ii)(E)).

The Agency has provided

no rationale for this difference.

Moreover,

in earlier versions ofthe permit, this time trigger was two hours,

See

the June 2003

draft permit and the October 2003 proposed permit.

134.

For these reasons, Conditions 7.2.9(a)(3)(C), 7.2.9(h)(ii), 7.2.9(b)(iii),

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

7.29(e)(vii),

7.2.9(fJ(ii), 7.3.9(b)(ii),

7.3.9(b)(iii),

7.3.9(c)Oi)(,B),

7.3.9(c)(ii)(E),

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

7.4.9(c)(ii)(B),

7.4.9(c)(ii)(E), 7.4.9(d)(ii), 7.4.9(d)(vii), and 7.4.9(e)(ii)(E),

all contested herein, are stayed

consistent with the APA,

and

Midwest Generation requests that the

Board order the

Agency to

delete Conditions

7.2.9(a)(i)(C),

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

7.2.9(d)(ii)(B),

9,2.9(e)Qi), 7.3.9(b)(ii),

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

7.3.9(d)(ii)(B), 7.3.9(d)(vii), 9.3.9(e)(vii), 7.4.9(b)(ii), 7.4.9(b)(iii).

7.4.9(c)(i)(B), 7.4.9(d)(ii),

7.4.9(d)(ii)(B), and 7,4.9(d)(vii); substitute the word

operation

for the

word

process

in Condition 7.2.9(f)(ii); and change one hour to two hours in Condition

7.4.9(e)(ii)(E).

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(viii)

Reporting Requirements for Coal

Handling, Coal Processing, and

Fly Ash Handling

Operations

135.

Conditions

7.2.lO(a)(ii), 7.3,lO(a)(ii), and 7.4.I0(a)(ii) require

notification to the

Agency for operation of support operations that were not in compliance with the applicable work

practices of Conditions 7.2.6(a), 7.3.6(a), and 7.4.6(a), respectively, for more than

12 hours or

four hours with respect

to ash handling regardless of whether there were

excess emissions.

Conditions 7.2.6(a), 7.3.6(a), and 7.4.6(a) identi~the measures that Midwest Generation

employs to control fugitive emissions at the Crawford

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), 7.3.10(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 also that the

Agency has provided

no explanation

as

to

why ash handling in Condition 7.4.10(a)(ii) has only a

four-hour window while coal handling and processing have a

12-hour window.

136.

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

7.3.1 0(b)(i)(A), and 7.4.1 0(b)(i)(A) require

reporting

when the opacity limitation may have been exceeded.

That a limitation

j~y

have been exceeded

does not rise to the level of an actual exceedance.

Midwest Generation believes

it is beyond the

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

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137.

Additionally, in these same conditions

(i.e.,

7.2. l0(b)(i)(A), 7.3.10(b)(i)(A)), and

7.4,10(b)(i)(A),

the Agency requires reporting

ifopacity exceeded the limit for “five or more 6-

minute averaging periods” (“four or more” for ash handling).

The next sentence in the condition

says, “(Otherwise,

-.

.

for no

more than five 6-minute averaging periods

24

The ash

handling provision says “no more than three” (Condition 7.4.1 O(b)(~(A)).The language

in

Condition 7.4.l0(b)(i)(A)

is internally consistent; however, the language in Conditions

7.2.10(b)(i)(A) and 7.3.10(b)(i)(A) is not,

The way these two conditions

are written, the

permittec cannot tell

whether five six-minute averaging periods of excess opacity readings do

or

do not require reporting.

In older versions of the permit, five

six-minute averaging periods did

not trigger reporting.

In fact, the August 2005 proposed versions of the permit is the first time

that five six-minute averages triggered reporting.

The conditions should be amended to clarify

that excess opacity reporting in Conditions 7.2.10(b)(i)(A) and 7,3.10(b)(i)(A) is triggered after

five six~minute

averaging

periods and, as discussed below, that these averaging periods should

be consecutive or occur within

some reasonable outside timeframe and not just randomly.

138.

As

is the case with other permit conditions for the fly ash handling operations, the

reporting requirements

during malfunctionlbreakdown at Condition 7.4.10(b)(i)(A) for this

support operation are

different from those

forthe coal handling and coal processing operations.

Midwest Generation must notify the

Agency immediately

for each incident in which opacity of

the fly ash operations exceeds the limitation

for four

or more six-minute averaging

periods, while

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

(see

discussion

above) only after five six-minute averaging periods.

See

Conditions

7.2.lO(b)(i)(A) and

24

With

no

close to the parentheses in the condition.

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7.3. I 0(b)(i)(A).

The Agency has

provided no

basis for these differences or

for why it changed

the immediate reporting requirement for ash handling from five six-minute

averaging periods,

as

in the October 2003

proposed permit,

to the

four six-minute averaging periods.

Additionally, the

Agency has deleted the time frame during which these opacity cxecedances occur in this

provision25

in all three sections

—

7.2.10(b)(i)(A), 7.3.l0(b)(i)(A), and 7.4.lO(b)(i)(A).

Cf.

the

Octoher 2003 proposed

permit.

~l’helack of a timcframe for these operations has

the same

problems as discussed above

regarding the boilers,

The trigger for reporting excess opacity for

all

three of these operations should be the same timeframe.

The

Agency has provided

no

justification

as to why they should

be different,

and given the complexities of the permitting

requirements

generally, having these reporting

timeframes different adds another and an

unnecessary layer of potential

violation trips for the permittee.

No environmental purpose

is

served

by having them different.

139.

The Agency requires

at Conditions

7.2.lO(b)(ii)(C), 7.3.i0(b)(ii)(C), and

7.4.l0(b)(ii)(C) that Midwest Generation aggregate the

duration of all incidents during the

preceding calendar quarter when the operations continued during malftmnctionlbreakdown with

excess emissions.

Midwest Generation is already required at Conditions 7.2.10(b)(ii)(A),

7,3.I0(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

25

That

is,

that

the

averaging periods are

consecutive

or occur within

some

timeframe,

such as

two hours.

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requirement serves any legitimate gapfihling purpose.

For these reasons, these conditions should

be deleted from the permit.

140.

Conditions 7.2.l0(b)(ii)(D), 7.3.10(b)(ii)(D), and 7.4A0(b)(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 .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

be required ifthere are no excess emissions.

141.

For these reasons,

Conditions 7.2.1 0(a)(ii),

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

7.2.10(b)(ii)(D), 7.3. lO(a)(ii), 7.3.l0(b)(i)(A), 7.3. l0(b)(ii)(C), 7.3. l0(b)(ii)(D), 7.4,1 0(a)(ii),

7.4.I0(b)(i)(A), 7.4.10(b)(ii)(C), and 7.4.10(b)(ii)(D), all contested herein, are stayed pursuant to

the APA, and Midwest Generation requests that the Board order the Agency to qualify

that

Conditions 7.2.10(a)(ii), 7.3.lO(a)(ii), and 7.4.10(a)(ii) are limited to notification when there are

excess emissions rather than when control measures have

not been applied for

a 12-hour period

or four-hour period in the case of ash handling; to add a timeframe for opacity exceedances

occurring during operation during malfunction/breakdown for immediate reporting to the

Agency in Conditions 7.2. 10(b)(i)(A),

7.3.1 0(b)(i)(A), and

7.4.1 0(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),

7.3.1 O(b)(i)(A), and 7.4.1 0(b)(i)(A); to delete

Conditions 7.2.1 0(b)(ii)(C),

7.3.1 0(b)(ii)(C),

7.4.1 0(b)(ii)(C).

26

Conditions

7.1. l0-2(b)(iii), (c)(iii), (d)(iii),

and

(dxiv).

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F.

Gasoline Stora2e Tank

(Section 7.5)

(i)

Gasoline

Sampling and Analysis

Requirements

142.

While

gasoline sampling standards

and methods

are included in 35

1l1,Adm.Code

§

218.585, there is not

a requirement

in that section that dispensers

or users (i.e., consumer) of

the gasoline perform

such sampling.

The sampling at gasoline stations is

typically performed by

the Department of Agriculture’s Weights and

Measures group,

and they provide the stickers that

one sees on gasoline pumps certifying that the gasoline meets standards for octane, Reid vapor

pressure (“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.

Ih~i

are

the parties

who are requited to perform the

requisite sampling pursuant to the standards and methods

included in

§

2 18.585.

Midwest Generation is not a “supplier” of gasoline as the term

is

used in

§

218.585; rather, Midwest Generation is a consumer ofgasoline.

While it

is incumbent upon

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” for Midwest Generation, and

the Condition 7.5.7(a)

should be stricken from

the permit.

Recordkeeping requirements are sufficient to ensure

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

Generation, at Condition

7.5.12(b).

143.

For these reasons, consistent with the APA, Conditions 7.5.7(a) and 7.5.12(b),

contested herein, are stayed, and Midwest Generation requests that the

Board order the Agency

to delete

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

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demonstrating compliance in Condition

7.5.12(b).

Also, note that the Agency’s citations to the

regulations are incorrect.

(ii)

Inspection

Requirements

144.

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

compliance.

Therefore, the Agency’s inclusion of permit conditions speci~’inginspections 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)(iii),

contested herein, are stayed, and Midwest Generation

requests that the Board order the Agency

to delete these conditions from the permit.

(iii)

Recordkeeping Requirements

146.

Conditions 7.5.9(b)(i) and 7.5.9(d) are redundant.

Both require records

of the

RYP of the gasoline

in the tank.