BEFORE THE POLLUTION

OF THE STATE OF ILLINOIS

CLERK’S

OFFICE

THE CITY OF SPRINGFIELD,

)

NOV

032005

a municipal corporation,

)

STATE OF

ILLINOIS

Petitioner,

)

ri

Ol~k~6n

Control Board

)

PCB

c.-’

v.

)

(Permit Appeal

—

Air)

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

.

)

NOTICE OF FILING

To:

Dorothy M. Gunn

Robert P. Messina

Clerk of the Board

Chief Legal Counsel

Illinois Pollution Control

Board

Illinois Environmental Protection Agency

100 West Randolph

1021

North Grand Avenue East

Suite

11-500

P.O. Box

19276

Chicago, IL 60601

Springfield, IL 62794-9276

Please take notice that on November 3,

2005, we filed with the

Office ofthe Clerk ofthe

Illinois Pollution Control Board, an original

and

S

copies ofthe following:

PETITION FOR

HEARING TO REVIEW CLEAN AIR ACT PERMIT PROGRAM PERMIT!SSIJANCE

AND MOTION FOR LEAVE TO WAIVE REQUIREMENT TO SUBMIT AN

ORIGINAL AND NINE COPIES,

copies of which

are

served upon you.

Respectfully submitted,

THE CITY OF

SPRINGFIELD,

a municipal corporation

By

~

rt½LJç)

ne of its Atto

eys

Dated:

November 3, 2005

Cynthia A. Faur

Mary A. Gade

Elizabeth

A. Leifel

Sonnenschein Nath & Rosenthal

LLP

8000

Sears Tower

Chicago, Illinois

60606

(312) 876-8000

11961772

THIS

FILING IS BEING

SUBMIYFED ON RECYCLED PAPER

---

BEFORE THE POLLUTION CONTROL BOARD

OF THE

STATE OF ILLINOIS

THE CITY OF SPRINGFIELD,

)

a municipal

cOrPorati~~EvEo

)

CLERKS OFF

Petitioner,

)

NOV

U~

2005

)

PCB

~

-

OF tLLtNO~S

)

(Permit Appeal

—

Air)

STATE

IBoard

)

ILLINOIS ENVROMEN*AL

PROTECTION AGENCY,

)

)

Respondent.

)

MOTION FOR LEAVE TO WAIVE

REQUIREMENT TO SUBMIT

AN ORIGINAL AND NINE COPIES

The Cityof Springfield owns

and

operates an electric generation

and

transmission

company commonly

known

as City Water, Light

& Power (“CWLP”).

The City of Springfield,

hereinafter referred to

as CWLP, by its attorneys, Cynthia A. Faur,

Mary

A. Gade,

Elizabeth A.

Leifel, and

Sonnenschein Nath & Rosenthal LLP, hereby requests

leave ofthe Illinois Pollution

Control Board (the

“Board”) to waive the requirement to submit an original and nine copies of its

Petition for Hearing to Review Clean Air Act Permit Program Permit Issuance (“Petition”) and

supporting documents.

In support ofthis motion, CWLP states as follows:

I.

In accordance with 35 Ill. Admin. Code

§

101.320(h), all

documents filed with the

Board must be filed with a signed original and nine duplicate copies (10 total).

To this instance,

CWLP’s Petition and supporting Exhibits

are

voluminous.

Submitting

10 copies ofthe Petition

and

its Exhibits

would unduly burden the Board’s files and use an extraordinary

amount

of

paper.

---

2.

Moreover, ten copies ofthe Petition and supporting documents may be

unnecessary, and accordingly, would only place an undue administrative burden on the Board.

3.

Therefore, CWLP requests that the Board

accept one original and five copies each

of the Petition and Exhibits.

WHEREFORE,

CWLP respectfully requests the Board to waive the requirement to

submit an original and nine copies ofthe Petition and Exhibits and

allow CWLP to file

an

original and five copies of these documents.

Respectfully submitted,

THE CITY OF

SPRINGFIELD,

a municipal corporation

-

(

\

ne of its Attorneys

Dated:

November 3, 2005

Cynthia A. Faur

Mary A. Gade

Elizabeth A.

Leifel

Sonnenschein Nath & Rosenthal LLP

8000

Sears Tower

Chicago, Illinois

60606

(312) 876-8000

11961769

ThIS

FILING IS BEING SUBMITrEI) ON RECYCLED PAPER

-2-

---

BEFORE THE POLLUTION

CONTROL BOARD

OF THE STATE OF ILLINOIS

THE CITY OF SPRINGFIELD,

)

a

municipal corporation

)

)

Petitioner,

)

)

PCB

___________

v.

)

(Permit Appeal

—

Air)

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

)

PETITION FOR HEARING TO REVIEW CLEAN AIR ACT PERMIT

PROGRAM PERMIT ISSUANCE

The City of Springfield owns and operates an electric generation and transmission

utility commonly known as City Water,

Light

& Power (“CWLP”).

The

City of

Springfield, hereinafter referred to as CWLP, by its attorneys, Cynthia A.

Faur, Mary A.

Gade, Elizabeth A.

Leifel, and Sonnenschein Nath

& Rosenthal LLP,

hereby petitions the

Illinois Pollution Control

Board (the “Board”)

for hearing to review certain provisions of

the Clean Air Act Permit Program

(“CAAPP” or “Title V”) permit issued

by the

Illinois

Environmental Protection Agency (the “Agency”) on

September 29, 2005 (the

“Permit”).’

This Permit is being appealed pursuant to

§

40.2

ofthe Illinois

Environmental Protection Act (“Act”), 415

ILCS

5/40.2,

and 35

Ill. Admin.

Code

§

105.102.

In addition to filing this Petition, CWLP has filed today a Motion for Stay of

its CAAPP Permit.

In the alternative, CWLP requests that the Board stay the

conditions

A

copy ofthe Permit

is attached as Exhibit

A.

---

of its Permit that

are

being contested in this Petition.

In support of its Petition, CWLP

states as follows:

BACKGROUND

1.

CWLP operates the Dallman and Lakeside Generating Stations, as well as

a water purification plant, at 3100 Stevenson Drive, Springfield, Illinois.

At this facility,

CWLP generates electricity and

potable water for the residents and businesses located in

and around Springfield, Illinois.

CWLP serves approximately 68,000 electric retail

customers.

It also provides full requirements

wholesale electric service to the Villages of

Chatham and Riverton for distribution by their own electric distribution systems.

2.

CWLP employs approximately

186 persons at the Dallman and Lakeside

Stations and

an additional

19 persons at the water purifications plant.

The three facilities

are staffed 24

hours per day,

seven days per week.

3.

The Dailman Station is comprised of three coal-fired units (Units

31,

32,

and 33) and has a total electric generating capacity of 352 MW.

Each unit consists of a

cyclone boiler, except for Daliman Unit 33, which is tangentially-fired.

All the

boilers

provide steam to

a separate turbine generator.

These units were placed

into service

in

1968,

1972, and

1978, respectively.

4.

The

Lakeside Station has two

generating units which

are also cyclone

coal-fired units (Units

7 and 8) with

a total electric generating capacity of 76 MW.

These

units were

placed into service

in

1959 and

1964, respectively.

-2-

---

5.

CWLP burns coal obtained from the Viper Coal

Company in Elkhart,

Illinois.

CWLP’s contract with Viper Coal began in

1980, and

the first coal shipment to

CWLP was made in late

1981.

The Dallman and Lakeside Stations currently consume

approximately

1,136,000 tons of Illinois coal per year.

6.

All units at both generating stations are equipped with electrostatic

precipitators (ESP5) for particulate removal.

Units

31-33 at the DalIman Station are

equipped with flue gas desulfurization systems (also referred to as “wet scrubbers” or

“FGDs”).

The wet scrubbers produce a byproduct of commercial-grade synthetic

gypsum.

These three units are also equipped with selective catalytic reduction systems

(“SCR”) for control of nitrogen oxide (“NOx”) emissions during the ozone season.

7.

On September

7,

1995, CWLP

submitted to the Agency its application for

an initial Title V permit

in accordance with 415

ILCS

5/39.5 and 35

Ill. Admin. Code

Part 270.

8.

On June 9,

2003, the Agency provided CWLP with a draft CAAPP permit

for the Dallman and Lakeside Stations.

This draft CAAPP permit was published for

public comment

on June 28, 2003.

On September 29, 2003, CWLP provided the Agency

with its comments on the draft permit ofJune 9,

2003.2

No public hearing was held to

discuss CWLP’s

draft permit.

2

A

copy of CWLP’s comments on the

June

9,2003 draft permit are attached

as Exhibit

B.

-3-

---

9.

The Agency issued the first proposed permit for CWLP on October 6,

2003.

This proposed permit

was reviewed by the

United States

Environmental Protection

Agency (“U.S. EPA”).

U.S. EPA did not object to the proposed permit.

10.

Although U.S.

EPA did not object to CWLP’s proposed permit,

due to

proceedings held in connection with another power company’s CAAPP permit,

the

Agency further revised CWLP’s permit.

On December

18, 2004, the Agency

provided

CWLP and interested members ofthe public with a further revised draft permit.

CWLP

provided comments on this version of its draft permit on January

17, 2005.~

11.

The draft permit was revised by the Agency in July 2005.

Once again,

CWLP and interested members ofthe public

were provided an opportunity to review and

comment on the

draft document.

CWLP

submitted comments

on the July 2005 version

ofthe

draft permit on August

1, 2005.~

12.

The Agency then further revised the July 2005 draft and submitted the

newdraft permit, which became essentially, the second “proposed” permit, to U.S. EPA

in August 2005 for U.S. EPA’s 45-day review.

The Agency did not solicit comments

from CWLP and

interested members ofthe public on this second “proposed” permit.

13.

On September 29,

2005, the Agency issued the final Permit to CWLP’s

Dallman and Lakeside Stations, as well as a Responsiveness Summary addressing

all

A

copy of

these comments

is

attached as Exhibit C.

A

COPY of these comments is attached as

Exhibit D.

-4-

---

coal-fired power plants in the state for which CAAPP permits were issued.5

The final

Permit integrated some ofthe comments

CWLP provided to the Agency throughout the

permit process.

Several ofCWLP’s comments, however,

were not integrated into the

Permit.

Several permit conditions in the issued Permit

are inconsistent with applicable

state law and regulations, and

CWLP is appealing those conditions for the reasons

outlined below.

14.

This Permit is timely appealed within 35

days ofpermit issuance.

See

415

ILCS

5/40.2; 35

III. Admin. Code

§

105.102.

CWLP requests that the Board review the

Permit, remand it to the Agency, and order the Agency to correct

and reissue the Permit

without further public proceedings, as appropriate.

INADEQUACY OF THE STATEMENT OF BASIS

15.

Under Illinois

law, the Agency

is required to prepare “a statement that

sets

forth the factual and legal basis for the draft CAAPP permit conditions,

including

references to applicable statutory and regulatory provisions.”

415

ILCS

5/39.5(8)(b).

In

its

Responsiveness Summary, the Agency claims that “each CAAPP permit, together

with the initial project summary, adequately describe the coal fired power plant and

address operational flexibility, the permit shield, applicable and non-applicable

provisions, monitoring and Title I requirements.”

See

Responsiveness Summary at p.

14.

Additionally, the Agency claims that the Responsiveness Summary supports the terms

and conditions ofthe

Permit.

Id.

A

separate Responsiveness Summary was not prepared for CWLP’s Permit,

despite the fact that CWLP

differs

from

other power plants in the State due to its size,

location and other factors.

A

copy of the

Responsiveness Summary is

attached

as Exhibit

E.

-5-

---

16.

CWLP does not believe that the Statement of Basis provided with its

Permit sufficiently sets forth the basis for the conditions

in the

Permit.

As evidenced by

this Petition,

CWLP does not understand the Agency’s basis

for the inclusion of

numerous permit conditions.

CWLP consistently commented on many ofthese

provisions throughout the draft permit process.

To the extent that

the Agency had

provided a sufficient

statement ofbasis for the permit as required by

§

39.5(8)(b) of the

Act,

CWLP may have been able to better understand the permit conditions prior to

issuance of a final permit.

CWLP also notes that the Responsiveness Summary cannot be

considered

part

ofthe

Statement of Basis as it was not provided as part ofthe permit

package initially sent for public comment.

While CWLP does not believe that the failure

of the Agency to prepare an adequate Statement ofBasis has resulted in an invalid

permit, it does believe that some ofthe

confusion concerning the conditions in the issued

permit could have been avoided if the

Agency had provided an adequate Statement of

Basis.6

AGENCY’S

UNLAWFUL “GAP-FILLING”

PRACTICES

17.

Before

addressing the conditions that

it contests in detail,

CWLP believes

that

a general discussion

is needed ofthe Agency’s unlawful practice ofincluding

as

permit conditions certain monitoring, testing, recordkeeping

and reporting requirements

that

are

not otherwise required under applicable law or regulation or necessary to ensure

compliance

with applicable requirements.

6

Similarly,

CWLP

believes that some

confusion regarding the

final

permit conditions could

have been

avoided if a Responsiveness Summary had been prepared for its

individual permit.

-6-

---

18.

CAAPP permits must contain emission

limitations and standards and other

enforceable terms and conditions that are required to accomplish the purposes and

provisions ofthe Act and to

assure compliance with all

applicable requirements.

415

ILCS 5/39.5(a).

Section 39.5(7)(b) ofthe Act provides that the

Agency “shall include

among such conditions applicable monitoring, reporting, record keeping and compliance

certification requirements as authorized by paragraphs d,

e, and f ofthis subsection that

the Agency deems necessary to assure compliance with the Clean Air Act, the

regulations

promulgated thereunder,

this Act and applicable Board regulations.” 415 ILCS

5/39.5(7)(b).

19.

Subsections (d), (e),

and (f) of

§

39.5(7) contain specific

requirements for

monitoring, recordkeeping and reporting terms, respectively.

With regard

to monitoring

and testing,

§

39.5(7)(d) ofthe Act states that

the permit shall:

i)

Incorporate and identify all applicable emissions monitoring

and

analysis procedures or test methods required under the Clean Air Act,

regulations promulgated thereunder, this Act, and applicable Board

regulations,

including any procedures and methods promulgated by U.S.

EPA pursuant to Section 504(b) or Section

114 (a)(3) of the Clean Air

Act.

ii)

Where the applicable requirement does not require periodic testing

or instrumental or noninstrumental monitoring (which may consist of

recordkeeping designed to serve as monitoring), require periodic

monitoring sufficient to yield reliable data from the

relevant time period

that

is representative ofthe source’s compliance with the permit, as

reported pursuant to paragraph (1) ofthis subsection. The

Agency may

determine that recordkeeping requirements are sufficient

to meet the

requirements ofthis subparagraph.

iii)

As necessary, specify requirements concerning the

use,

maintenance, and when appropriate, installation of monitoring equipment

or methods.

415

ILCS

5/39.5(7)(d).

-7-

---

20.

The recordkeeping provisions of

§

39.5(7)(e) generally provide

that the

permit

shall incorporate and identify all

applicable recordkeeping requirements arrd

require records ofmonitoring

information.

See

415

ILCS

5/39.5(7)(e).

‘the reporting

requirements

similarly provide that the permit shall

incorporate and identify all

applicable reporting requirements and require the submittal ofreports for any required

monitoring at least every 6 months and prompt reports of deviations.

See

415 ILCS

5/39.S(7)(f).

21.

As discussed in detail in this Petition, the Agency has overstepped the

bounds ofits statutory authority throughout CWLP’s Permit by imposing unlawful

monitoring, testing, recordkeeping and reporting conditions.

The purpose of the CAAPP

permit is to identi!5’

all

applicable requirements and to

include any periodic monitoring,

which

includes the

periodic testing,

recordkeeping and/or reporting requirements,

necessary to

ensure compliance with applicable requirements.

Where an applicable

state

or federal requirement does not include

a specific monitoring method, or frequency for

conducting specified monitoring, like

a periodic stack testing requirement, the Agency

is

authorized, pursuant to

§~

39.5(7)(b) and (d) to

include “periodic monitoring” as

necessary to determine compliance with the permit terms.

See

415 ILCS

5/39.5(7)(d).

This requirement, which mirrors the federal periodic monitoring rule found at 40

C.F.R.

§

70.6(a)(iii)(B), is referred to as “gap-filling.”

22.

While

§~

39.5(7)(b)

and (d) of the Act allow the Agency to fill certain

gaps in the

regulations by proposing additional monitoring requirements, the scope ofthe

Agency’s authority under the Illinois CAAPP program and the federal

Title V program is

not without bounds.

The bounds of this authority was discussed in the

federal court case,

-8-

---

Appalachian Power Co.

v.

EnvtL

Prot. Agency,

208

F.3d 1015

(D.C.

Cir. 2000).~The

court in

Appalachian Power Co.

found that state permitting authorities, including the

Agency,

may not require in Title V permits that sources conduct more frequent

monitoring of emissions than is provided in the applicable

state or federal standard,

unless the standard requires no periodic testing at all, specifies no testing frequency, or

requires only

a one-time test.

Id.

at 1028.

The court further noted that nothing in EPA’s

regulatory history for the periodic monitoring rule provided “State authorities a roving

commission

to pore over existing State and

Federal standards, to decide which are

deficient and to use the

permit system to amend, supplement, alter or expand the extent

and frequency of testing already provided.”

Id.

at

1026.

23.

Throughout CWLP’s Permit, the Agency has inserted “monitoring”

requirements that are not required by applicable regulations.

Some ofthese requirements,

like periodic stack testing for PM, CO, S02 and NOx are lawful exercises of its gap-

filling authority.

The Agency, however, has included additional

“monitoring” or

compliance requirements that are not required by applicable regulations and are not

necessary to ensure compliance with applicable

requirements because other lawful permit

terms already fulfill that function.

Examples of where the Agency has exceeded its gap-

filling authority include the use ofopacity readings as

a surrogate for PM compliance,

and the requirement to conduct “combustion evaluations” for CO compliance.8

See

Appalachian Power

Co.

concerns the scope of the periodic monitoring requirements ofthe

federal Title

v

regulations

found at 40 C.F.R.

§

70.6(aXiii)(B), but since the basis for the monitoring provisions contained

in 415

ILCS 5/39.5(7)(d) was

40 C.F.R.

§

70.6(a)(iii)(B), the

case is relevant to this

matter.

A copy of this

case

is attached

as Exhibit

F.

These examples are discussed

in detail in this Petition.

See

Paragraphs

70-75 (discussing

Conditions 7.1.6

and 7.2.6) and

86-93 (discussing

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

and 7.2.9(c)(ii)),

infra.

-9-

---

Conditions 7.1 .9(c)(ii), 7.2.9(c)(ii), 7.1.6, and 7.2.6.

CWLP does not understand the basis

for these conditions.

Based on the evidence discussed in this Petition,

CWLP can only

assume that the

Agency has deemed the Board’s rules deficient in these instances and

has

unilaterally expanded and supplemented them in CWLP’s Permit without proposing to

the

Board revisions to existing rules.

Such actions are beyond the Agency’s authority.

See

5 ILCS

100/5-40 (setting forth the proper procedures for amending a regulation).

24.

In addition to imposing “monitoring” requirements in excess ofits

authority under

the Act, the Agency has also included certain recordkeeping and

reporting requirements related to

these monitoring

requirements that are

similarly

unlawful.

These requirements are discussed in detail in this Petition.

25.

Given the number ofinstances

in CWLP’s Permit where the Agency has

exceeded

its lawful

gap-filling authority,

CWLP requests that the Board incorporate

CWLP’s

objection to the Agency’s use ofits

gap-filling authority as set forth above into

those sections ofthe

Petition where CWLP

identifies unlawful gap-filling as a basis for

contesting a permit condition.

PERMIT CONDITIONS APPEALED

26.

As noted above, CWLP operates five boilers at its Dallman and Lakeside

Generating Stations.

These five

boilers have been divided

into two

separate sections in

the CAAPP permit based on the applicability ofthe New Source Performance Standards

(“NSPS”) for Steam

Electric Generating Units (40 C.F.R. 60.40

ci seq.).

In addition,

CWLP has coal handling, coal processing, fly ash handling and limestone and gypsum

handling operations.

CWLP also has at its generating stations engines used for the start-

-10-

---

up of the boilers and gasoline storage tanks.

Many of the conditions appealed

in this

Petition are common across several different emission units.

Where issues under appeal

are common

to certain units, CWLP has grouped its comments on these conditions.

As a

general matter, comments are addressed by

unit type and permit condition, though some

comments are addressed

by issue where numerous conditions are involved.

In certain

instances, CWLP has objected to permit conditions because the conditions refer to or

require compliance

with other contested conditions.

Where this occurs, CWLP has raised

its objections to these

conditions in its discussion ofthe conditions to which

CWLP

principally objects.

27.

CWLP notes that

it may not have commented specifically on certain

contested conditions during the comment periods for the various draft permits.

The Act,

however, does not require a permittee

to have

participated in the public comment process

in order to appeal.

See

415

ILCS 5/40.2(a).

To the extent allowed

by the Agency,

CWLP was an active participant in the public comment process.

There are, however,

conditions in the Permit that,

in the context ofthe overall final permit, CWLP has only

recently come to conclude are unacceptable.

CWLP, therefore, may not have commented

previously on

all these conditions.

In other instances, contested

conditions were included

in later drafts of the CAAPP permit upon which CWLP did not have an adequate

opportunity to submit comments, or even to review hilly.

This Petition is the only means

available to CWLP to address inappropriate conditions.

Accordingly, while CWLP may

not have commented previously on all the contested

conditions, the

issues appealed are

appropriately before the Board.

—11—

---

I.

EFFECTIVE DATE OF

PERMIT

28.

As noted in Paragraph

13, the Permit was issued on September 29, 2005.

Within the Permit itself, however, no date is specified as the effective date.

According to

the

U.S.

EPA’s website, the date of issuance, September 29,

2005, is also the effective

date.9

29.

The Agency sent an email to P.J.

Becker, ofCWLP’s Environmental,

Health and Safety Office, at 7:18 p.m. on September 29, 2005, which

informed CWLP of

the issuance of its Permit.

See,

Affidavit of William Murray (“Murray

Affidavit”),

attached as Exhibit H.

Since Mr.

Becker was out of the office from September 20, 2005,

until October 3,

2005, CWLP

did not receive the email

until October 3, 2005.

Id.

CWLP

believes a mailed copy ofthe Permit was delivered to the City of Springfield Department

of Public Works on Monday, October 3,2005.

Id.

Based upon these facts, CWLP

caimot be deemed to have received notice ofthe

Permit until October 3, 2005, at the

earliest.

30.

Many permit conditions, including recordkeeping and reporting

requirements, are dependent upon the effective date ofthe Permit.

Given the numerous

iterations of the Permit over the previous

2 years, CWLP could not be certain what

conditions would be included in the final Permit.

For example, the August 2005 version

ofthe Permit contained numerous revisions from the draft permit provided by the Agency

in July

2005.10

Given this uncertain atmosphere and the fact that CWLP received a

A

print-out from

U.S. EPA’s

website

is attached hereto as

Exhibit ci.

‘°

A document setting

forth the differences

between the July 2005

permit and the August 2005

draft

is

attached

hereto as

Exhibit

1.

-12-

---

revised draft permit more than a year after U.S. EPA review ofCWLP’s first proposed

permit, CWLP could not have anticipated the type ofrecordkeeping system necessary to

comply with the Permit’s conditions until

it actually received the

final, issued

Permit.

31.

Once the Permit

became effective, CWLP became obligated to comply

with its terms.

Because CWLP could not have anticipated its obligations under the

Permit before it was received, it would

be unreasonable for the Board to consider

September 29, 2005, the date of issuance, as the effective date.

At

a minimum, equity

requires that CWLP be given a reasonable period of time following the issuance ofthe

Permit to review the permit conditions and implement required operational changes,

including changes to recordkeeping systems.

CWLP believes that

a reasonable time

period

to implement any such changes would

be at least 60 days from the date of

issuance.

32.

Additionally, CWLP objects to the effective date

to the

extent that such

date has resulted in

a violation ofCWLP’s right to due process.

As discussed in further

detail below, certain contested conditions of the Permit require CWLP to submit certain

records to

the Agency within 30 days of the effective date ofthe Permit.

Pursuant to

§

40.2(a) ofthe Act and 35

Ill. Admin.

Code

§

105.302(e), CWLP has

35 days to appeal

the inclusion of certain conditions in its permit.

To the extent the Permit requires the

submittal of information prior to the appeal deadline, CWLP’s right to appeal

and request

a

stay ofcertain conditions is prejudiced.

See infra

Paragraph 48.

For all

the above

reasons, CWLP requests that the Board

find that the date of issuance

is not the effective

date and remand the Permit to the Agency for revision of the date.

-13-

---

II.

SECTION

5:

GENERAL PERMIT CONDITIONS

A.

Conditions 5.6.1(a),

5.6.1(b),

and

5.7.2:

RecordkeepinglReporting of

HAP

Emissions

33.

CWLP is appealing Conditions 5.6.1(a), 5.6.1(b), and 5.7.2, which contain

requirements for record retention and submission.

Specifically, Condition 5.6.1(a)

requires CWLP to maintain “records

of annual emissions from the emission units that

are covered by Section

7 (Unit Specific Conditions) ofthis permit, including emissions of

mercury, hydrogen chloride, and hydrogen fluoride, to prepare

its Annual Emissions

Report.”

Condition 5.6.1(b) contains procedures for estimating mercury emissions for

annual reporting purposes.

Condition 5.7.2 provides that “the

annual emissions report

required pursuant to

Condition 9.7 shall

contain emissions information for the previous

calendar year including

information for emissions ofmercury, hydrogen chloride,

hydrogen fluoride, and other hazardous air pollutants (“HAP5”), as specified by

35

III.

Admin. Code Part 254.”

34.

CWLP objects to these conditions

to the extent that they require the

inclusion of certain HAPs in the annual emissions reports submitted for the

DalIman and

Lakeside Stations.

Under 35

Ill. Admin.

Code

§

254.120,

annual emissions

reports are

not required to include HAPs if the source is not subject to a National Emissions

Standard for Hazardous

Air Pollutants

(“NESHAP5”) or maximum achievable control

technology (“MACT”) standards.

None of CWLP’s units are subject to MACT

standards.

See

69 Fed.

Reg.

15,994 (March 29,

2005) (withdrawing U.S. EPA’s listing of

coal-fired power plants from facilities subjectto

MACT standards).

-14-

---

35.

Additionally, there are no applicable requirements that

would allow the

Agency to require recordkeeping and reporting ofmercury emissions.

While U.S.

EPA

has recently promulgated the Clean Air Mercury Rule (“CAMR”),

see

70

Fed.

Reg.

28,605 (May

18, 2005), Illinois has not yet promulgated any corresponding regulations

implementing these requirements.

36.

In the

Responsiveness Summary accompanying the Permit,

the Agency

acknowledged that

it cannot add substantive requirements through a CAAPP permit or

through an oblique reference to the CAMR.

See

Responsiveness Summary at p. 20.

Moreover, the Agency’s equally oblique

citation to

§~

4(b)

and 39.5(7)(a), (b), and (e) of

the Act does not constitute an adequate

statutory or regulatory basis

forthese conditions.

While

§

4(b) ofthe Act allows the Agency the authority to gather data, it does not

authorize the Agency to gather the specific type ofdata on an ongoing annual basis

as

contemplated under

Conditions 5.6.1(a),

5.6.1(b), and

5.7.2.

CWLP believes that under

§

4(b) ofthe Act, the Agency is authorized to make a specific request to CWLP to

provide it with certain emissions data not otherwise required by

applicable regulations,

but

§

4(b) ofthe

Act does not allow the Agency to

request this data to be

submitted in

perpetuity.

Such

a provision would essentially change the requirements of a Board rule

outside of a proper rulemaking proceeding.

37.

Additionally, the Agency’s citation

to

§~

39.5(7)(a), (b), and (f) does not

support the

inclusion ofthe

annual reporting requirements for mercury and other HAPs.

As stated above, there is

no regulatory basis

for their inclusion

in these conditions.

Without a specific regulatory basis, the Agency is only allowed to “gap-fill” to include

applicable “monitoring” requirements in

a Title V

permit.

See

415 ILCS

5/39.5(7)(a),

-15-

---

(b), (f).

The

CAAPP reporting provisions of the Act do not authorize the

Agency to

impose additional reporting that is not necessary to demonstrate compliance with

otherwise applicable requirements.

Id.

Specifically,

§

39.5(7)(f) provides the following:

To

meet the requirements of this subsection with respect to

reporting, the permit shall incorporate and identify all applicable

reporting requirements and require the following:

i)

Submittal of reports ofany required monitoring every 6 months.

More frequent submittals may be requested by the

Agency

(such

submittals are

necessary to assure compliance with thisAct or regulations

promulgated by the Board thereunder.

All instances ofdeviations from

permit requirements must be clearly identified in such reports. All

required reports must be certified by

a responsible official consistent with

subsection

S of this Section.

ii)

Prompt reporting ofdeviations

from permit requirements,

including those attributable to upset conditions as defined in the permit,

the probable cause ofsuch deviations,

and any

corrective actions or

preventive measures taken.

415

ILCS 5/39.5(7)(f) (emphasis added).

The above-cited regulation provides

no basis

for reporting HAP emissions not otherwise subject to reporting requirements where there

is no underlying applicable requirement in the law.

38.

Moreover, the requirement under the Permit regarding the reporting of

HAP emissions

is duplicative of CWLP’s existing obligations under the Toxic Release

Inventory (“TRI”) reporting requirements.

See generally,

40 C.F.R.

§

372.1

et seq.

Any

data regarding the emission ofHAPs are

already provided to the Agency as part of

CWLP’s annual TRI reports, and since the Agency has access to this information, CWLP

should not be required to resubmit

it to the Agency in a different format.

Accordingly,

the inclusion of this annual reporting requirement is not necessary.

-16-

---

39.

Underthe plain language ofPart 254, CWLP is not required to report HAP

emissions on its annual emissions reports, and information concerning HAP emissions is

not necessary to demonstrate compliance with any other applicable

requirement.

Accordingly, these conditions are arbitrary, capricious and unduly burdensome, and they

exceed the Agency’s authority under applicable

law and

regulations.

Any references in

these conditions to the maintenance ofrecords concerning HAP emissions for purposes of

annual emissions reporting and the reporting ofHAP

emissions in the annual emissions

report should be deleted.

B.

Condition 5.6.2(b) Retention and Availability ofRecords

-

Printing of Records

40.

Condition 5.6.2(b) requires CWLP to “retrieve and print, on paper during

normal source office hours,

any records retained in an electronic format (e.g. computer)

in response

to an Illinois EPA or U.S. EPA request for specific records during

the course

ofa source

inspection.”

41.

CWLP objects to this condition

as unduly burdensome and unnecessary

for the purpose of demonstrating compliance with applicable requirements.

CWLP

maintains a vast amount of electronic information, including

continuous monitoring data

from

its continuous emission monitors (“CEM5”) and continuous opacity monitors

(“COMs”).

This data will be available forreview by the Agency during an

inspection;

however, the Agency already has access to much ofthis information through its own,

or

through U.S.

EPA’s, databases, and providing such a massive amount of data in hard

copy form would

be largely duplicative.

-17-

---

42.

Moreover,

while the Responsiveness Summary indicates that “on-site

inspection of records and written or verbal requests for copies of records will

generally

occur at reasonable times and be reasonable in scope in nature,” the qualifier,

“generally,” means that CWLP may receive

a request for information with which it

cannot comply during the span ofan inspector’s visit.

See

Responsiveness Summary at

p.

18 (emphasis added).

This is ofparticular concern where the records requested are in

electronic

format, given the vast amounts ofdata involved.

For example, opacity data is

collected

on

a six-minute basis,

and every six minutes

a new

line ofdata is generated.

Records for one COM for one year would include 84,480 lines ofdata.

CWLP does not

believe that

this amount ofdata could reasonably be generated in paper form during the

course of an inspection.

43.

CWLP does not object to providing hard copies of its electronic data,

provided that the request for such data is reasonable in scope and gives CWLP adequate

time to provide the documents.

CWLP would suggest that Condition 5.6.2(b) be revised

so that

all

requests for printed materials would be submitted in writing

in accordance with

Condition 5.6.2(c).

Such

a revision would allow CWLP to respond to an information

request within 30 days of the request unless itrequests

additional time.

C.

Condition 5.6.2(d):

Retention and Availability of Records

-

Submittal of

Information Within 30 Days

44.

Condition

5.6.2(d) provides as follows:

For certain records required to be kept by this permit as

specifically identified in the recordkeeping provisions in

Section 7 ofthis permit, which records are a basis for

control practices or other recordkeeping required by this

permit, the Permittee shall promptly

submit a copy ofthe

-18-

---

record to the Illinois EPA when the record is created or

revised.

For this purpose, the initial record shall

be

submitted within 30 days of the issuance ofthis permit.

Subsequent revisions shall be submitted within

10 days of

the date the Permittee begins to rely upon the revised

record.

45.

CWLP objects to

this condition on the grounds that the term “initial

record,” as used in this condition, is vague and ambiguous.

As CWLP reads the

term

“initial record” in this context, it refers to the initial submittal ofthe records required to

be reported pursuant to the following Conditions:

7.1 .9(c)(ii), 7.2.9(c)(ii), 7.3.9(b),

7.4.9(b)(iii), 7.S.9(b)(iii), 7.6.9(b)(iii) and 7.7.9(d)(ii).

Another possible interpretation is

that the term “initial record” refers to blank forms that would

be used to record

the

information required to be reported pursuant to the above-referenced conditions.

46.

To the extent that CWLP’s interpretation of the term “initial record” is

correct,

CWLP objects to this condition because the requirement in this condition that

CWLP submit an “initial record” within 30 days ofthe

effective date ofthe permit

would

be unduly burdensome and would violate CWLP’s due process rights.

47.

Pursuant to CWLP’s interpretation ofCondition

5.6.2(d),

CWLP

would be

required to provide the Agency within 30 days ofthe Permit’s effective datethe

following records:

(1) records of established control measures for

its coal handling, coal

processing,

fly ash handling

and limestone and gypsum handing equipment;

(2) detailed

records demonstrating compliance with emission limitations for the engines at the

facility;

and (3) records demonstrating the

upper bound ofthe 95

confidence interval

(using

a normal distribution and

1-minute averages) foropacity

measurements from each

of the boilers.

See

Conditions 7.1.9(c)(ii), 7.2.9(c)(ii),

7.3.9(b), 7.4.9(b)(iii), 7.5.9(b)Øii),

-19-

---

7.6.9(b)(iii) and

7.7.9(d)(ii).

As discussed further below, CWLP objects to the

recordkeeping requirements for opacity for other reasons.

Even if CWLP

did not object

to these recordkeeping requirements, however, Condition 5.6.2(d) would

be unduly

burdensome given the amount of material requested and the short time period.”

48.

CWLP also objects to this condition because it violates CWLP’s right to

due process

in that

it requires action to be taken before CWLP has had the opportunity to

exercise

its statutory right to appeal.

415

ILCS

5/40.2.

The Act and the Board’s rules

allow permittees 35 days

in which to appeal conditions ofa permit to which they object,

and that period may be extended to 90

days under

certain circumstances.

See

35

Ill.

Admin.

Code

§

105.302(e).

The requirement to submit an “initial record” within 30 days

of the Permit’s effective date impairs CWLP’s ability to exercise its right to appeal,

ostensibly

forcing CWLP to violate this condition and

the conditions which

reference it

in order to seek review ofthe Permit through this Petition.

49.

Moreover, because the effective date ofthe Permit appears to be

contemporaneous with the date of issuance, CWLP had no

opportunity to seek relief from

this condition prior to its

taking

effect.

See supra

Paragraph 28.

SO.

For all the above reasons, Condition

5.6.2(d) denies CWLP due process

and is therefore unconstitutional, unlawful, and an arbitrary and capricious exercise ofthe

Agency’s permitting authority.

CWLP requests, therefore, that the definition of “initial

record” be clarified and Condition

5.6.2(d) be revised to either delete the 30-day

‘‘In this

instance, the timeframe

in which CWLP must submit the

requested

material is even shorter given

that CWLP did

not receive notice

that the

Permit had been issued until

four days after the

issuance-date

See

Murray Affidavit (Exhibit

H).

-20-

---

reporting requirement or to provide a reasonable time period for submittal ofinformation

to the Agency.

CWLP further contests Conditions

7.1.9(c)(ii), 7.2.9(c)(ii), 7.3.9(b),

7.4.9(b)(iii), 7.5.9(b)(iii), 7.6.9(b)(iii) and 7.7.9(d)(ii) to the extent they require reporting

pursuant to Condition 5.6.2(d).

HI.

SECTIONS 7.1 AND 7.2:

BOILERS

A.

Conditions 7.1.3(b)(iii), 7.2.3(b)(iii), 7.1.9(1)

and 7.2.9(0:12

Applicability Provisions

-

Start-up Related Recordkeeping Provisions

51.

Conditions 7.1.3(b) and

7.2.3(b) set forth start-up requirements for Units

7,8,31

and

32 and Unit 33, respectively, and Conditions 7.1.9(f)

and 7.2.9(f)

set forth

the respective recordkeeping requirements for start-ups.

CWLP

objects Conditions

7.1 .3(b)(iii) and 7.2.3(b)(iii) to the extent that these conditions required CWLP to comply

with the recordkeeping requirements of 7.1.9(g) and 7.2.9(g), respectively.

Conditions

7.1.9(g) and 7.2.9(g) are not applicable recordkeeping requirements for start-ups.

These

recordkeeping requirements

apply to malfunctions

and breakdowns.

The recordkeeping

provisions applicable to

start-up are set forth in 7.1.9(f) and 7.2.9ffl.

52.

CWLP also objects to

portions of Conditions 7.1.9(f) and 7.2.9(f).

Specifically, CWLP objects to Conditions 7.1 .9ffl(ii)(C) and

7.2.9(f)(ii)(C) and to

Conditions 7.1 .9(f)(i) and 7.2.9(f)(i).

Conditions 7.1 .9(f)(ii)(C) and 7.2.9(f)(ii)(C)

respectively provide that additional recordkeeping requirements are triggered when the

2

The boilers at

CWLP’s

Stations

have been separated into two Permit sections because Unit

33

is the

only

unit subject to the New Source Performance Standards (“NSPS”) for Fossil Fuel Fired

Steam Generators

for which Construction

is Commenced after August

17,

1971,

(40 C.F.R.

§

60.40

et. seq.).

Where CWLP

objects to conditions that are

common to the

Units 7,

8,

31

and 32, which are

addressed

in Section

7.1,

and

Unit 33, which is addressed in Section

7.2,

CWLP has addressed those objections

in a

single comment.

In

some cases, CWLP’s comments are unique to Units 7,8,31

and 32

or Unit 33.

In those instances,

the

comments

are addressed separately.

-21-

---

start-up ofa boiler exceeds fourhours for Units

7,

8,

31

and 32 and eight hours for Unit

33.

Conditions 7.1 .9(f)(i) and 7.2.9(f)(i) require CWLP to maintain records ofeach

boiler’s start-up procedures, including an estimate of both total and excess opacity and

emissions ofPM and CO during typical start-ups.

CWLP addresses each ofthese

objections in turn.

53.

First, CWLP objects to Conditions 7.1 .9(f)(ii)(C) and 7.2.9(f)(ii)(C),

as the

periods oftime allowed before the start-up triggers additional recordkeeping

requirements, four and

eight hours, respectively, are unreasonable,

impractical, and an

arbitrary and capricious

exercise of the Agency’s authority.

In drafts ofthe Permit, the

Agency had included longer periods of time for start-up of the boilers before the

additional recordkeeping requirements of Conditions 7.1 .9(f)(ii)(C) and 7.2.9(f)(ii)(C),

respectively, are triggered.

The draft permit dated June 9,

2003

included

periods of 16

hours for Units

7,

8,31, and 32,

and

11

hours for Unit 33; the July 2005 draft and the

final Permit reduced those periods further to four hours for Units

7,

8,

31, and 32, and

eight hours for Unit 33.

CWLP objected to the time periods in the draft permits on the

basis that they provided an insufficient time for start-up of a cold boiler, which can take

36 hours.

Thus, the

additional recordkecping requirements, presumably intended to take

effect only in extraordinary circumstances, would

be triggered by most, if not all,

ordinary

start-ups.

CWLP initially proposed in its comments that the time period

triggering

additional recordkeeping requirements under both

Conditions 7.1 .9(f)(ii)(C)

and 7.2.9(f)(ii)(C) be set at 27

hours.

When the Agency further reduced the time period

in the July 2005 draft, CWLP, in an effort to arrive at a reasonable permit term, suggested

-22-

---

that the Agency require additional recordkeeping after

16 hours into a start-up for Units

7,

8,

31

and 32, and

11

hours for Unit 33.

54.

In issuing the final Permit, the Agency ignored these comments, as well as

the operating realities ofcoal-fired boilers, offering no explanation for the

reduction of

the allowable start-up period.

In the Responsiveness Summary, the Agency

stated that “if

start-up does not progress in

a timely manner to operation

in compliance with applicable

standards

(generally, four hours for boilers rated at 200 MW or less,

six

hours for boilers

rated at 200 MW to 400 MW, and eight hours for boilers rated at 400 MW or

greater)... furtherrecords

are required.”

See

Responsiveness Summary at p.

7 (emphasis

added).

There are, however, no “applicable standards” for boiler start-up times contained

in the Board’s rules,

and there is

no basis in applicable law or regulation for establishing

different times for start-up and for the maintenance ofrecords following an unusual start-

up based on the size of a particular boiler.

Therefore,

Conditions 7.1 .9(f)(ii)(C) and

7.2.9(f)(ii’)(C) should be deleted on the

grounds that they are arbitrary, capricious and

unduly burdensome.

55.

Moreover, these conditions should be deleted from the Permit because the

Agency did not have the

authority to include them in the Permit in the first place.

The

provisions in the Board’s rules allowing for operation of a CAAPP

source during start-up

are located at

35

III.

Admin.

Code Part 201,

Subpart I.

These provisions, specifically

§

201.149, give the permittee the ability to request certain standards and conditions that,

if followed,

provide an affirmative

defense against enforcement actions in the event that

an otherwise applicable emission limitation is exceeded during start-up.

Although

CWLP

did request such standards and conditions in its CAAPP permit applications, as stated

-23-

---

above,

the rules do not limit the length of time allowed for start-up.

The

Agency cited 35

Ill.

Admin. Code

§

201.263 as the regulatory basis for Conditions 7.1.9W and 7.2.9W;

yet, this section does not address start-up at all.

Instead, it is limited

in its scope

to

records and reports required for operation during malfunction and breakdown, where

there are excess emissions.

The additional

statutory provisions cited as the basis for these

Conditions are

§~

39.5(7)(a) and (b), which also

do not contain specific provisions

concerning records to be maintained during start-up.

Therefore, one must conclude that

the records required under Conditions 7.1.9(f) and 7.2.9(f) are the result ofgap-filling

and are limited

to what is necessary to assure compliance with emissions limits.

See

Appalachian Power Co.,

208 F.3d at

1028.

56.

Ifthe

inclusion ofthe respective four hour and eight hour time periods

before additional recordkeeping is required is

a result of the Agency’s gap-filling

authority, it is an invalid exercise ofthat authority.

CWLP does not believe that there is

any basis for requiring additional recordkeeping for start-ups where the start-up is being

undertaken in accordance with CWLP’s procedures.

CWLP is already required to

provide information regarding start-ups, including when they occur and how long they

last, in Conditions 7.1 .9ffl(ii)(A) and 7.2.9(f)(ii)(A).

In addition, Conditions

7.1 .9(f)(ii)(B)

and 7.2.9(f)(ii)(B) require information relating to start-up, including S02,

NOx, and opacity during

start-up.

The additional information required under Conditions

7.1 .9(f)(ii)(C)

and 7.2.9(f)(ii)(C) add nothing that would aid in enforcement or further the

purposes ofthe Act.

Therefore, these conditions are unlawful.

57.

CWLP also objects to Conditions 7.1 .9(f)(i) and 7.2.9(f)(i) to the extent

those conditions require CWLP to provide estimates of PM and CO emissions.

-24-

---

Specifically,

both these conditions require CWLP to provide “an estimate of both total

and excess opacity and emissions of PM and CO during typical start-up(s) of each boiler,

with

supporting information and calculations,” and Conditions 7.1 .9(f)(ii)(C)(V)

and

7.2.9W(ii)(C)(V)

both require CWLP to provide “estimates of the magnitude of

emissions ofPM

and CO during the start-up, including whether emissions may have

exceeded any applicable hourly

standard, as listed

in Condition

7.1.4 or 7.2.4, as

appropriate.”

Compliance with these conditions

is impossible, and therefore, these

conditions are arbitrary and capricious.

Neither CWLP, nor any other source, has

the

ability to

measure the magnitude ofPM or CO emissions at any time other than during

stack testing.

Obviously it would

be unreasonable to require CWLP to engage in

continuous stack testing to record PM and CO emissions; yet, this is precisely what the

Agency appears to require in Conditions 7.1 .9(f)(i) and 7.2.9W(i).

58.

For all ofthe above reasons, CWLP requests

that the contested

recordkeeping provisions ofConditions 7.1 .9(1)0), 7.2.9(f)(i),

7.1 .9(f)(ii)(C) and

7.2.9W(ii)(C) be deleted.

59.

CWLP also objects to Conditions 7.1.1 0-2(a)(i)(D) and

7.2.1 0-2(a)(i)(D),

which address the contents of quarterly reports for the respective units, to the extent that

the quarterly reports must include records required by Conditions 7.1 .9(f)(ii)(C) and

7.2.9(t)(ii)(C).

As

noted above, Conditions 7.1 .9(f)(ii)(C) and 7.2.9W(ii)(C) are unlawful

permit

conditions;

therefore, the reporting requirements in Conditions 7.1.1 0-2(a)(i)(D)

and

7.2.1 0-2(a)(i)(D)

are also unlawful to the extent they refer back to and

require

compliance with the contested reporting requirements.

-25-

---

B.

Conditions 7.1.3(c), 7.2.3(c), 7.1.9(g), 7.2.9(g), 7.1.10-3(a), and

7.2.10-3(a):

Applicability Provisions

-

Malfunction and

Breakdown

60.

Conditions 7.1.3(c) and 7.2.3(c) contain the requirements applicable to

operations during a malfunction or breakdown.

Conditions 7.1.9(g) and 7.2.9(g) contain

the

associated recordkeeping requirements.

CWLP

objects to Condition

7.1 .3(c)(iii) and

7.2.3(c)(iii) to the extent that these conditions require compliance with the recordkeeping

provisions of7.1.9(h) and 7.2.9(h), respectively.

Condition 7.1.9(h) and 7.2.9(h),

however, contain Acid Rain requirements.

The recordkeeping requirements

applicable to

malfunctions and breakdowns are contained in 7.1.9(g) and 7.2.9(g).

61.

CWLP objects to the reporting requirements

contained in Conditions

7.1.10-3(a) and 7.2.10-3(a) and to portions ofthe recordkeeping provisions in Conditions

7.1.9(g) and 7.2.9(g).

CWLP addresses each ofthese objections in turn.

62.

Conditions 7.1.10-3(a)(i) and (ii) and 7.2.10-3(a)(i) and (ii) provide

as

follows:

i)

The Permittee shall immediately notify the

Illinois EPA’s

Regional

Office, by

telephone (voice, facsimile or electronic) for each incident in

which the applicable

PM emission

standard Condition

7.1.4(b) or

7.2.4(b), as applicable

could be exceeded or in which the opacity from a

unit exceeds 30 percent for five or more 6-minute averaging periods

unless the Permittee has begun the shutdown of the affected boiler by such

time.

(Otherwise, as related to opacity, if opacity during an incident only

exceeds 30 percent for no more than five 6-minute averaging periods, the

Permittee need only report the

incident in the quarterly report,

in

accordance with Condition

7.1.10-1(b)

and 7.1.10-2(d) or Condition

7.2.10-1(b) and 7.2.10-2(d), as appropriate).

ii)

Upon conclusion ofeach incident in which the applicable PM

emission standard may have been exceeded or

in which

exceedances of

the opacity standard is two

hours or more in duration, the Permittee shall

submit a follow-up report to the

Illinois EPA, Compliance

Section and

Regional Office, within 15

days that includes:

a detailed description

of

the incident and its cause(s);

an explanation why continued operation ofan

-26-

---

affected boiler was necessary; the length oftime during which operation

continued under such conditions,

until repairs were completed or the

boiler was taken out ofservice;

a description ofthe measures taken to

minimize and correct deficiencies with chronology; and a description of

the preventative measures that have been and are being taken.

63.

As noted in Paragraph

57, supra,

there is no proven or certified

methodology for measuring PM emissions

other than through stack testing.

Accordingly,

the Agency, through these permit conditions,

is essentially requiring CWLP to guess

whether an incident could cause a PM exceedance, immediately report the incident even

though CWLP has

no proofthat there has been an exceedance ofan emission standard,

and submit a detailed follow-up report

15 days later.

This is an arbitrary and capricious

requirement, as CWLP cannot be expected to determine whether there has been a PM

exceedance if there

is

no way to determine accurately the magnitude of PM emissions.

64.

CWLP also objects to these conditions to the extent that they require

“immediate” reporting.

In its Responsiveness Summary, the Agency states that the

term

“immediately” embodies a sense of importance to the Agency, “which is to

require

reporting but not to the detriment ofactions to respond to

a malfunction/breakdown

incident.”

Responsiveness Summary at p.

27.

Even with the Agency’s explanation,

CWLP still believes that the use ofthe term “immediately” in this condition is vague, and

the requirement that incidents be reported “immediately”

is arbitrary, capricious and

unduly burdensome.

Immediate reporting would not enable CWLP to

fully investigate an

incident to determine if there is just a monitoring malfunction.

It has been CWLP’s

experience that opacity

monitors can and do sometimes report erroneous data.

For

example, monitor misalignment caused by duct expansion or condensation buildup on the

lens can result

in erroneous

readings.

-27-

---

65.

Moreover, as written, these conditions exceed the Agency’s authority to

gap-fill.

Because there is no reasonable way to determine, outside of stack testing,

whether a PM exceedance has occurred, Conditions 7.1.1 0-3(a)(i) and (ii) and 7.2.10-

3(a)(i) and (ii) do not provide any additional information necessary to assure compliance

with the Permit.

As the court stated in

Appalachian Power Co.,

an agency’s authority to

gap-fill in Title V permits

is limited to what is

necessary to assure compliance with

emissions limits.

See Appalachian Power Co.,

208 F.3d at

1028.

The Agency has not

provided any basis for requiring CWLP to report potential excess PM emissions when it

is unknown whether an emission exceedance has actually occurred.

Indeed,

in the

Responsiveness Summary, the Agency stated that power plants “routinely operate for

long periods of time without excess emissions

due to malfunctions/breakdowns”

and

“readily correct incidents

in which excess emissions occur.”

See

Responsiveness

Summary at p.

24.

Given the Agency’s pronouncements,

it

is unclear why the reporting

requirements in these

conditions are necessary to ensure

compliance.

66.

CWLP further objects to Conditions 7.1.1 0-3(a)(i) and 7.2.1 0-3(a)(i).

In

both of these conditions, the Agency has deleted the word “consecutive” as a trigger for

reporting opacity and potential

PM exceedances during an “incident” in the final version

ofthe Permit.

In the versions ofthe draft permit prior to the July 2005 draft,

CWLP was

required to notify the

Agency if “the opacity from

a unit exceeds

30 percent for five or

more

consecutive

6-minute averaging periods” (emphasis added).

The word

“consecutive”

is critical in the context ofthese conditions, and its deletion changes their

scope

and applicability.

Random, intermittent exceedances of the opacity limitation do

not necessarily constitute a malfunction or breakdown “incident,” while a prolonged

-28-

---

period ofopacity exceedance could possibly indicate such an “incident.”

Despite this

clear distinction, the Agency provided no explanation for the deletion ofthe word

“consecutive” from these conditions.

Indeed, the Agency in its Responsiveness

Summary suggests that the term consecutive should be included in these conditions.

See

Responsiveness Summary at p.

8 (“In the case of a malfunction/breakdown, sources

shall

notify the Agency where

the applicable PM emissions standard could be exceeded or

where the opacity from the boilerexceeds or may have exceeded the applicable limit for

more than five consecutive 6-minute averaging periods.”).

CWLP requests that the word

“consecutive” be added back into these conditions.

67.

CWLP also objects to Conditions 7.1 .3(c)(iii) and 7.2.3(c)(iii) to the extent

that these conditions

require compliance with Conditions 7.1.10-3(a) and 7.2.10-3(a),

respectively, and to Conditions 7.1.9(g) and 7.2.9(g) to the extent that these conditions

require maintenance of records demonstrating compliance with Conditions 7.1.10-3(a)

and 7.2.10-3(a), respectively.

CWLP further objects to Condition 7.1.10-1(a)(i)-(ii),

7.2.10-I (a)(i)-(ii), 7.1.1 0-2(d)(iii) and 7.2.1 0-2(d)(iii)(F)-(G) to the extent that these

conditions reference notification and reporting required by 7.1.10-3(a) and 7.2.10-3(a).

As noted above, Conditions 7.1.10-3(a) and 7.2.10-3(a) are unlawful permit conditions;

therefore, requirements

in Conditions 7.1 .3(c)(iii), 7.2.3(c)(iii),

7.1.9(g), 7.2.9(g), 7.1.10-

l(a)(i)-(ii), 7.2.10-l(a)(i)-(ii), 7.1.10-2(d)Oii), and 7.2.10-2(d)(iii)(F)-(G) are also

unlawful to the extent they refer back to and require compliance with the contested

requirements.

68.

CWLP also objects to Conditions 7.1 .9(g)(ii)(D)(I1I) and

7.2.9(g)(ii)(D)(I1I)

to the extent

that they require “estimates of the magnitude of

-29-

---

emissions of PM and CO during the

incident, as emissions may have exceeded any

applicable hourly standard.”

Compliance with these

conditions

is impossible, and

therefore, these conditions are arbitrary and

capricious.

As noted in Paragraphs

57 and

63,

supra,

neither CWLP,

nor any other source,

has the ability to measure the magnitude

ofPM

or CO emissions

at any time other than during stack testing.

Obviously it would

be unreasonable to require CWLP to engage in

continuous stack testing to record PM

emissions; yet, this

is precisely what the Agency appears to require in Conditions

7.1 .9(g)(ii)(D)(I11) and 7.2.9(g)(ii)(D)(III).

C.

Conditions 7.1.9(b)(i), 7.2.9(b)(i), 7.1.9(g)(i),

and 7.2.9(g)(i):

Maintenance and Repair Logs

69.

Conditions 7.1.9(b)(i), 7.2.9(b)(i), 7.I.9(g)(i) and 7.2.9(g)(i) require

CWLP to keep repair and maintenance logs for each ofthe operations included

in the

Permit.

CWLP objects to the conditions to the extent that the term “log” is vague and

ambiguous.

CWLP notes

that in other permit conditions the term “log” is used in

conjunction with the terms “records” or “files.”

See,

e.g.,

Condition 7.3.9(a).

The

absence of such flexibility in these terms suggests that

a

specific log

book is required.

CWLP maintains maintenance and repair records for its pollution control equipment and

boilers.

These records, however,

are not maintained in

a notebook.

Some ofthese

records are maintained electronically.

It is arbitrary and capricious for the Agency to

require maintenance of a log book when similar records are maintained in

a different

format.

Accordingly, CWLP requests that these conditions be revised to replace the term

“log” with “records” or to add

the term “records.”

-30-

---

D.

Conditions 7.1.6(a) and 7.2.6(a): Work Practices

70.

Conditions 7.1.6(a) and 7.2.6(a) provide as follows:

As part ofits operation and maintenance of the affected

boilers,

the Permittee shall perform formal “combustion

evaluation” on each boiler on at least a semi-annual basis,

pursuant to

Section 39.5(7)(d) ofthe Act.

These

evaluations shall consist of diagnostic measurements ofthe

concentration ofCO in the flue gas ofthe affected boiler,

with adjustments and preventative and corrective measures

for the boiler’s combustion systems

to maintain

combustion.

71.

CWLP objects to

these conditions

on

several grounds.

First, CWLP

objects to these conditions because the conditions are not required by applicable

regulations and are not necessary to determine compliance with applicable requirements.

With the inclusion ofthese

conditions in the Permit, compliance

with the CO standard is

now not only linked to the approved Reference Method,

but to the periodic combustion

tune-ups as well.

The Title

V Permit Program was never intended to create new

regulatory requirements, but to clarify existing

ones.

The compliance method for CO is a

stack test.

The Board’s rules

do

not include a schedule for CO testing, but that does not

authorize the

Agency to require combustion tune-ups for CO emissions.

The appropriate

response would

be to require regular stack testing for CO emissions

-

which

the Permit

does.

See

Conditions

7.1 .7(a)(iv), 7.2.7(a)(iv).

See Appalachian Power Co.,

208 F.3d at

1028.

Moreover, maintaining compliance with the CO limitation has historically been a

work practice ofmaintaining good combustion practices.

The design ofthe

boiler and

the control systems are programmed to operate the boiler for the most efficient burning of

coal and, therefore, serve to minimize

CO emissions.

If the boiler is operating efficiently,

CO emissions should never even reach the emission limitation contained in the Illinois

-31-

---

rules.

Indeed, the highest

1-hour ambient measure ofCO in Springfield

in 2003 was

5.1

ppm; and the highest eight-hour ambient measure in Springfield

was 2.5 ppm.

Illinois

Environmental Protection

Agency,

Illinois Annual Air Quality Report 2003,

Table B7,

p.

57.

The one-hour standard is

35 ppm, and the eight-hour ambient standard is

9 ppm.

35

Ill. Admin. Code

§

243.123.

As evidenced by the

CO levels reported above,

it is

a

remote possibility

at best that CWLP could contribute to an exceedance of a CO ambient

standard.

When looking at the magnitude of the difference between observed CO

concentrations in the

Springfield area and the ambient standards

for CO, there is no

basis

for requiring combustion tune-ups in the permit.

As the court stated in

Appalachian

Power Co.,

a state authority’s power to gap-fill in Title V permits

is limited

to what is

necessary to assure compliance with emissions

limits.

See Appalachian Power Co.,

208

F.3d at

1028.

Accordingly,

these conditions exceed the Agency’s authority under the

Act.

72.

Second, CWLP objects to these conditions because compliance with them

would

be unduly burdensome.

In order to comply with the “work practice” of

performing “diagnostic testing” that yields a concentration of CO, CWLP would

be

required to purchase and install or operate

some sort of portable monitoring devices on its

boilers.

As

evidenced by

CO emissions

from the facility, there is no

rational reason for

requiringthis

expenditure.

73.

Third, CWLP objects

to these conditions because they are vague and

ambiguous.

The term “combustion evaluation”

is not defined.

Because this term is not

defined, it is unclear how these diagnostic

tests are to be performed and what equipment

will be

required.

CWLP believes that

it will be required at a minimum to purchase

-32-

---

portable CO monitors, but even then, it is not sure of how this evaluation is to be

performed.

13

74.

Fourth, the

Agency provided no reasonable

basis for including these

conditions in the final Permit.

These conditions were not included in the initial

draft

permit dated June

9, 2003.

Instead, these conditions were arbitrarily added to the draft

permit, dated July 2005.

With

no rational basis for including these conditions, they

should be deleted on the grounds that they are an arbitrary and capricious exercise ofthe

Agency’s authority.

75.

Finally, CWLP also objects to Conditions 7.1.9(a)(vi) and 7.2.9(a)(i)(B)

to the extent that they require maintenance ofrecords demonstrating compliance with

Conditions 7.1.6 and 7.2.6, respectively.

Additionally,

CWLP objects to Conditions

7.1.12(d) and 7.2.12(d) to

the extent that they

state that compliance with the CO emission

limitation is addressed by the

required work practices of Conditions 7.1.6(a) and 7.2.6(a).

CWLP also objects to Conditions 7.1.12(0 and 7.2.12(f) to the extent that they state that

compliance with the work practices required by Conditions 7.1.6(a) and 7.2.6(a) are

satisfied by the

recordkeeping requirements ofConditions 7.1.9 and 7.2.9.

As noted

above, Conditions 7.1.6 and 7.2.6 are unlawful

permit conditions;

therefore, the

recordkeeping requirements

in Conditions 7.1.9(a)(vi) and 7.2.9(a)(i)(B) and the

compliance procedures provided in Conditions 7.1.12(f) and 7.2.12(f) are

also unlawful

to the extent they refer back to

and require compliance with

the contested requirements.

‘3

In its

Responsiveness

Summary, the

Agency stated that

it believes that these

tune-ups are

occurring at

most if not all

plants.

Responsiveness

Summary at

p.

33.

CWLP, however, does not routinely conduct

such

tune-ups pursuant to a procedure that measures CO

emissions.

-33-

---

E.

Conditions 7.1.7(a)(ii) and

7.2.7(a)(ii): Testing Requirements and Related

Recordkeeping and Reporting Requirements: Additional PM Testing

76.

Conditions 7.1 .7(a)(ii) and 7.2.7(a)(ii) contain certain PM testing

requirements applicable to

Units

7,

8,

31

and

32 and Unit 33, respectively.

These

conditions provide as follows:

PM emission measurements shall

be made within 90

days

of operating an affected boiler for more than 30 hours total

in

a calendar quarter at a loadt that

is more than

2 percent

higher than the greatest load on the boiler, during the most

recent

set of PM tests on the affected boiler in which

compliance is shown

refer

to

Condition 7.1.7(e)(iii)(D) or

7.2.7(e)(iii)(D), as applicable,

provided, however, that the

Illinois EPA may upon requestof the Permittee provide

more time for testing (if such time is reasonably needed to

schedule and perform testing or coordinate testing with

seasonal conditions).

*

For this purpose, load shall

be expressed in terms of

either gross megawatt output or steam flow, consistent with

the form of the records kept by the Permittee pursuant to

Condition

7.1.9(a) or 7.2.9(a), as applicable.

77.

CWLP objects to these conditions to the extent that they require PM

testing when a boiler operates for a period of time when the

load is “more than 2

higher than the greatest load on the boiler during the most recent stack test.”

Not

only

is

this testing requirement arbitrary,

capricious and unduly burdensome, but it also exceeds

the Agency’s gap-filling authority

as defined under

Appalachian Power Co.

See

Appalachian Power Co.,

208 F.3d at

1028.

The Agency has provided no basis for this

testing requirement, and it has included different

testing

thresholds for other coal-fired

boilers.

See,

CAAPP Permit issued to Southern Illinois Power Cooperative,

Application

No.

95090125, Condition

7.1 .7(a)(ii) at p.

39 (containing a testing threshold ofmore than

-34-

---

5

percent higher than the greatest load on the boiler during the most recent

set of PM

tests).

14

78.

Additionally, this testing requirement is not necessary to

ensure

compliance with PM emissions

limitations.

There

arc many factors, both mechanical and

climatic, such as wet coal from heavy rains, that influence the maximum generation of a

unit on

a given day.

As these units can be considered small

in relation to other coal-fired

units within the industry,

any adverse condition at the time ofthe initial

PM stack testing

could restrict, albeit temporarily, the maximum gross generation by

more than 2

of its

potential maximum generation.

This has a more pronounced effect on the smaller units

operated by

CWLP.

For example, the 2

deviation from the

Lakeside units at maximum

generation is less than

1

MW, which

is easily within the normal fluctuation of the units’

maximum available generation depending on conditions.

When discussing this condition

in its Responsiveness Summary, the Agency states that these “extra” tests are required if

the boiler is operated at “significantly greater load” than the

load during the previous PM

test.

Responsiveness Summary at p.

29.

The Agency further states: “where emissions

arc well

within the applicable

emissions limit and the boiler operates at only a slightly

higher load such extra testing may not be worthwhile, but that determination would

be

best made on a case-by-case basis.”

Given that

a 2

increase in load at CWLP’s plants

may only be a

1

MW difference,

it is difficult to understand why such testing is

necessary, especially since the Permit already requires periodic stack tests for PM

emissions (Conditions 7.1 .7(a)(i) and (iii);

7.2.7(a)(i) and (iii)).

As the

court stated in

~ The

cover page

and

Section 7.1.7

from Southem

Illinois Power Cooperative’s CAAPP permit is

attached

hereto as

Exhibit

.1.

-35-

---

Appalachian Power Co.,

a state authority’s power to gap-fill

in Title V permits

is limited

to what is necessary to assure compliance with emissions limits.

See Appalachian Power

Co.,

208 F.3d at

1028.

In this instance, the additional testing requirements of Conditions

7.1 .7(a)(ii) and

7.2.7(a)(ii) are not necessary to

assure compliance with the

PM

limitations.

Accordingly, these conditions exceed the Agency’s authority under the Act.

79.

Ifthese conditions were to remain unchanged, there would exist the very

real possibility that attempts to schedule stack tests at the maximum possible generation

would

be unsuccessful, and the resulting

retest of the units (as gross generation inches

above the recorded test

load during the quarter due to normal fluctuations)

would not

indicate increased emissions.

80.

Due to the small

size ofthe units covered by this condition, CWLP

requests that both of these conditions be revised such that

additional PM testing would

only be required in the event ofa generation increase of greater than 4 MW.

81.

CWLP also objects to

Conditions 7.1 .7(a)(iv)(B) and 7.2.7(a)(iv)(B),

which require CO testing in conjunction with PM testing conducted in accordance with

7.1 .7(a)(ii) or (iii) and 7.2.7(a)(ii) or (iii), respectively.

As noted above, Conditions

7.1 .7(a)(ii) and 7.2.7(a)(ii) are unlawful permit conditions; therefore, the references to

those respective conditions in

7.1 .7(a)(iv)(B) and 7.2.7(a)(iv)(B), respectively, are also

unlawful to the extent they refer back to and require testing in conjunction with the

contested PM testing requirements.

-36-

---

F.

Conditions 7.1.7(b)(iii) and 7.2.7(B)(iii): Testing Requirements and

Related Recordkeeping and

Reporting Requirements:

Testing

82.

In addition to

Conditions 7.1 .7(a)(ii) and 7.2.7(a)(ii), CWLP also objects

to Conditions 7.1.7(b)(iii) and 7.2.7(b)(iii).

These conditions contain a listing of the test

methods and

procedures to be used in stack

tests.

Included

in this list of test methods is

Method 202 for PMIO testing.

These conditions also include the following note:

Measurements of condensable PM are also required by U.S.

EPA Method 202 (40 C.F.R. Part 51, Appendix M) or other

established test method approved by the Illinois EPA,

except for a test conducted prior to issuance of this permit.

CWLP objects to the inclusion ofa requirement in the Permit that it test PM1O

condensables.

Such

a requirement is beyond the scope ofthe

Agency’s authority

pursuant to

§

39.5(7)(a),

(b) and (d) ofthe Act, as such testing is not an “applicable

requircment.”

83.

As

stated above,

CWLP does not contest the Agency’s ability to collect

technical data pursuant to

§

4(b) ofthe Act.’5

See supra

Paragraph 36.

CWLP, however,

disagrees with the

Agency’s

statement in the Responsiveness Summary that “the

requirement for using both Methods

5

and 202

is authorized by

§

4(b) of the

Environmental Protection Act.” Responsiveness Summary at p.

18.

CWLP

does not

believe that this section makes testing for PM1O condensables

an “applicable

~ §

4(b) provides that “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).

-37-

---

requirement” for CAAPP purposes.

While under

§

4(b) ofthe Act, the Agency could

request that CWLP conduct an emission test for PM 10

condensables on one or more of

its units, the

scope of

§

4(b) does not extend to requiring emission testing for

condensables in perpetuity pursuant to

a CAAPP permit.

84.

The purpose of a CAAPP permit is to incorporate

all ofthe requirements

applicable to

a source in one place.

The ~pplicablerequirements for CWLP’s Units

7,

8,

31,

32, and Unit 33 are found in

35111. Admin. Code Part 212, Subpart E, entitled

“Particulate Matter Emissions from Fuel Combustion Emission Units.”

In addition to the

PM requirements contained in 35 Ill. Admin. Code Part 212, Subpart E, Unit 33

is also

subject to the NSPS, entitled “Standards ofPerformance for Fossil Fuel

Fired Generators

for Which Construction

is

Commenced after August

17,

1971.”

40 C.F.R.

§

60.40

et seq.

The measurement method

for PM, referencing only Method

5

or derivatives of MethodS,

is found at 35 Ill. Admin. Code

§

212.110.

This section ofthe Board’s rules applies to

CWLP’s plant.

Additionally, the NSPS standard applicable to

Unit 33

lists Method

5

and

its derivatives as the applicable test method for testing PM under the NSPS.

40 C.F.R.

§

60.46(b)(2).

85.

The Board’s PM regulations

are structured such that

PM1O

requirements

apply to identified sources located in the PMIO nonattainment areas.

The measurement

method

for PMIO

is found at 35

Ill.

Admin. Code

§

212.108, entitled

“Measurement

Methods for PMIO Emissions

and Condensible

PMIO Emissions.”6

This section

‘~

The

term “condensable”

is spelled differently

in

the Permit

and

in the

Board’s rules.

To be

consistent

with

the permit, CWLP has

incorporated

the

spelling

used

in

the Permit

in

its

Petition.

-38-

---

references both Methods

5 and 202, among others;

however,

no such requirements

apply

now or have ever applied to the CWLP’s Daliman or Lakeside Stations, as the

Stations

are not located in a PMIO nonattainunent area.t7

In

its Responsiveness Summary, the

Agency attempted

to expand the applicability oftesting using Method 202,

stating:

“Significantly, the use of Reference Method 202

is not limited

by geographic area or

regulatory applicability.” Responsiveness Summary at p.

18.

The Agency, however,

conceded in the Responsiveness Summary that Method 202

is not an applicable

requirement:

The inclusion ofthis requirement in these CAAPP permits,

which relates to full and complete quantification of

emissions, does not alter the test measurements that are

applicable for determining compliance with PM emissions

standards and limitations, which generally do not include

condensable PM emissions.

In addition, since condensable

PM emissions are not subject to emission standards.

Responsiveness Summary at p.

19.

While the Agency is correct that Method 202

is not

geographically limited,

it is patently incorrect to state

that the use of Method 202

is not

limited

by

applicable regulations.

The

applicable regulations clearly constrain the use of

Method 202 to PM nonattainment areas.

Therefore, there is

no basis for the Agency to

require that CWLP’s units be tested pursuant to

Method 202,

and any attempt

to do so

exceeds the Agency’s gap-filling authority under the Act.

See Appalachian Power

Co.,

208 F.3d at

1028.

17

In fact, as of September 2005, there

are

no

more nonattainment

areas for PM

10

in the

state of Illinois.

See,

70

Fed.

Reg.

55,541

and 55,545

(redesignating the McCook

and Lake Calumet nonattainment areas to

attainment status).

-39-

---

C.

Conditions 7.1.9(c)(ii), 7.2.9(c)(ii), 7.2.9(c)(iii),7.1.9(c)(iii), 7.1.10-

2(a)(i)(E), 7.2. 10-2(a)(i)(E), 7.1 .1O-2(d)(v), 7.2.10-2(d)(v),

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

7.2.1O-3(a)(ii); 7.1.12(b) and, 7.2.12(b):

Opacity as

a Surrogate for PM

Emissions

86.

Conditions 7.1 .9(c)(ii) and 7.2.9(c)(ii)

both require CWLP to

maintain

records for its boilers that

“Identify the upper bound ofthe 95

confidence interval

(using

a normal distribution and

1

minute averages) for

opacity measurements from the boilers, considering an hour

of operation, within which compliance with

the

applicable

PM limitations

is assured, with supporting explanation and

documentation,

including results ofhistoric emission tests.”

These conditions further require CWLP to review and revise these records as necessary

following performance ofeach subsequent PM

emission test on the

affected boiler.

Copies of these records are to be submitted to the Agency in accordance with Condition

5.6.2(d).’8

87.

CWLP objects to these conditions for numerous reasons.

First, CWLP

objects to these conditions because they are vague, ambiguous and unduly burdensome.

As an initial matter, the Permit does not provide

specific, clear instructions

on how the

95

confidence level is to be determined.

In the

Responsiveness Summary, the Agency

stated that sources are not to determine a “theoretical” value for the level ofopacity that

might correlate with compliance/noncompliance with the PM standard.

See

Responsiveness Summary at p.

42.

Instead, the Agency stated that sources are to

“undertake a more pragmatic task to evaluate the range of opacity in which a boiler

normally operates.”

Id.

However, based on

a review of its existing opacity data and PM

‘~

CWLP

has

all ready objected to the submittal of the “initial

record” in accordance with Condition

5.6.2(d).

See supra

Paragraph 44-50.

-40-

---

stack testing data, CWLP has been unable to find any correlation between its PM

emissions and opacity.

Because the data reviewed by CWLP do not show any correlation

between opacity levels and PM emissions from CWLP’s units,

any approach used to

determine the opacity level

that correlates to the PM emissions standard would

be,

at

best,

“theoretical,” and at worst, completely arbitrary.

Furthermore, because there is no

correlation between PM emissions levels and opacity,

CWLP believes it would

be

impossible

to comply with Conditions 7.1.9(c)(ii) and 7.2.9(c)(ii), which require CWLP

to determine the level

at which they correlate.

This impossibility of compliance makes

these conditions unduly burdensome,

and they should be deleted from the Permit.

88.

Second, the inclusion of a condition requiring CWLP to use opacity as a

surrogate for PM emissions levels

is arbitrary and capricious.

As noted above, CWLP

has found no correlation between PM emissions and opacity.

Furthermore, relying on

opacity as a surrogate

for PM emissions levels has the perverse result of penalizing the

best operating units.

If, for example, stack testing on

a unit results

in PM emissions of

0.02 lb/mmBtu and the opacity

during the test at the 95th percentile confidence interval is

2,

CWLP

would be required to

submit reports stating that the unit may have exceeded

the PM limit every time opacity exceeds 2.

This result is clearly unreasonable.

Moreover, for this reason, to the extent that the sources are not allowed to determine a

“theoretical” opacity threshold based on existing stack testing, the conditions create the

absurd need to perform stack testing under

abnormal operating conditions in order to

generate results that approach PM

emissions limits.

In essence, CWLP

would have to

“detune” the

units, or, in other words, operate the boilers at less than optimal levels,

in

order to push the bounds ofcompliance with the PM limit.

As the Agency states in its

-41-

---

Responsiveness Summary, there are a number offactors that

can influence PM emissions.

See

Responsiveness Summary at p.

43.

Varying these factors can exponentially increase

the possible

number ofnon-optimal testing conditions beyond all

reasonable bounds.

Although this is counter-intuitive, it

appears that this testing at non-optimal conditions

is

necessary to

comply with conditions treating opacity as a surrogate for PM emissions.

89.

Finally, the

inclusion ofthese conditions exceeds the Agency’s authority

under applicable

law.

In the first instance, these conditions effectively create a falsely

low opacity limitation.

In order to avoid the implication that there may have been

an

exceedance of the PM limit, the opacity limit becomes the 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

limitation without having complied with the

Board’s rulemaking procedures.

As the court noted in

Appalachian Power Co.,

the

periodic monitoring requirements ofthe Title V

program, incorporated in

§

39.5(7) of the

Act, do

not provide the Agency with “a roving commission to pore over existing State

and Federal standards, to decide which are deficient and to use the permit

system to

amend, supplement, alter or expand the extent and frequency oftesting already

provided.”

Appalachian Power Co.,

208 F.3d at

1028.

To the extent that the Agency

believes that the opacity requirements contained in 35

Ill.

Adm. Code Part 212 are

insufficient, they should propose a revision of those rules to the Board.

90.

Absent a revised rule, there is no

basis for this condition in the permit.

The CAAPP permit already contains sufficient conditions to demonstrate compliance

with applicable PM limitations.

The permit contains periodic testing requirements for

PM.

See

Conditions 7.1 .7(a)(i) and

(iii) and 7.2.7(a)(i) and (iii).

Periodic stack testing

-42-

---

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

§

39.5(7)(d)(ii) ofthe

Act.

91.

Additionally, the

permit requires

CWLP to maintain certain records

concerning operation, repair and maintenance ofthe

ESPs on its units.

The

ESPs on

CWLP’s units are

sized such that PM emissions are well controlled and well below the

regulatory limitation.

The records maintained pursuant to Condition

7.1 .9(b)(iii) and

7.2.9(b)(iii) allow the Agency to gauge whether the ESPs are in good operating order.

In

its Responsiveness Summary, the Agency dismissed the

use ofrecords concerning

operation ofthe

ESPs as a method of ensuring compliance with PM limitations.

The

Agency cited the fact that the ESPs are comprised of multiple fields and are affected by

electrical parameters (voltages) as well as “the buildup of ash on the collecting plates,

reentrainment of ash during rapping,

variation in resistivity ofthe fly ash, gradual

deterioration ofthe

collecting plates and breakage of discharge wires” as a reason

essentially to

discount the continued operation ofthe ESPs

as a basis for ensuring

compliance with the PM emissions limitations.

See

Responsiveness Summary at p.

43.

The Agency’s dismissal ofthis supposition is unfounded and in apparent contradiction of

the requirements ofthe CAAPP permit issued by the Agency.

Indeed, Conditions

7.1.12(b) and 7.2.12(b) both provide

that compliance with applicable PM emission

limitations is ensured by the recordkeeping required by 7.1.9 and 7.2.9.

This required

recordkeeping includes the maintenance of records concerning operation of the ESPs.

CWLP believes that the current permit conditions requiring periodic stack testing and

the

-43-

---

maintenance of records concerning the

operation and repair of the ESPs are sufficient to

demonstrate compliance with PM limitations.

92.

For the reasons set forth above, Conditions 7.1 .9(c)(ii) and 7.2.9(c)(ii),

requiring CWLP to use opacity as an unreliable indication ofPM concentrations, are

unnecessary.

Moreover,

the Agency has not provided any

evidence that such stringent

conditions are necessary to demonstrate compliance with applicable

PM limitations

on

CWLP’s boilers.

Indeed, the Agency in its Responsiveness Summary states that historic

emission tests indicate that PM emissions

from coal-fired boilers are well below

applicable standards and that there

is no evidence of noncompliance with PM emission

limitations.

See

Responsiveness Summary at p.

16.

Based on the Agency’s statements, it

is difficult to understand why these apparently unnecessary conditions are included in this

permit.

93.

The Permit also

contains numerous conditions that reference Conditions

7. 1 .9(c)(ii) or 7.2.9(c)(ii) or which would implicitly require compliance with those

conditions.

Specifically, Conditions 7.1 .9(c)(iii) and 7.2.9(c)(iii) require maintenance of

records of:

Each

hourwhen the measured opacity ofthe affected

boiler was above the upper bound, as specified above in

Condition 7.1 .9(c)(ii) or 7.2.9(u) (as applicable), with date,

time, operating condition if start-up,

malfunction,

breakdown, or shutdown, further explanation ofthe

incident, and whether particulate matter emissions

may

have exceeded the limit ofapplicable PM limits with

explanation.

Conditions 7.1.1 0-2(a)(i)(E) and 7.2.1 0-2(a)(i)(E) require records maintained in

accordance with Conditions 7.1 .9(c)(iii) and 7.2.9(c)(iii), the requirements of which are

-44-

---

set forth immediately above, be submitted with the quarterly reports for the respective

units.

Conditions 7.1.1 0-2(d)(v)(C) and (D) and 7.2.1 0-2(d)(v)(C) require CWLP to

provide summary information concerning opacity and PM exceedances with the

quarterly

reports, which

through inference would concern compliance with Conditions 7.1 .9(c)(ii)

or 7.2.9(c)(ii).

Conditions 7.1.10-3(a)(ii) and 7.2.10-3(a)(ii) require reporting within

15

days following operation

during a malfunction or breakdown where the PM standard may

have been exceeded, which through

inference would concern compliance with Conditions

7.1 .9(c)(ii) or 7.2.9(c)(ii).

Finally, Conditions 7.1.12(b) and 7.2.12(b) state that

compliance with the PM limitations contained in the Permit will be met through the

recordkeeping requirements ofConditions 7.1.9 and 7.2.9, which again through inference

would concern compliance with Conditions 7.1 .9(c)(ii) and 7.2.9(c)(ii), respectively.

CWLP objects to the above-listed conditions to the extent

these conditions reference or

infer compliance with Conditions 7.1 .9(c)(ii) and 7.2.9 (c)(ii) respectively.

As evidenced

above, Conditions 7.1 .9(c)(ii) and 7.2.9

(c)(ii) are unlawful permit conditions; therefore,

the references to those conditions in the recordkeeping, reporting and compliance

conditions listed

in this paragraph are also unlawful to the extent they refer back to and

either explicitly or implicitly require compliance with the contested conditions.

H.

Conditions 7.1.5(b), 7.1.1O-2(b)(i), 7.1.1O-2(c)(i), 7.1.1O-2(d)(i), and

7.1.1O-2(d)(iii)(Note):

Monitoring and Reporting Pursuant

to NSPS

Requirement for Units

7, 8,31

and 32

94.

Condition 7.1.5(b) ofthe Permit provides as follows:

Pursuant

to 35

Ill. Admin.

Code Part 201.403(a),

the

Permittee is not subject to the requirements of35

Ill.

Admin. Code Part 201, Subpart L for opacity monitoring

because the Permittee must conduct opacity monitoring on

-45-

---

the affected boiler in accordance

with the NSPS pursuant to

the federal Acid Rain program.

While

it is atypical for a source to appeal a condition that identifies a regulation as non-

applicable, CWLP believes that this condition

is in error because CWLP’s Units

7,

8,31,

and 32 are not subject to an NSPS.

Therefore, these boilers are

subject to

35111. Admin.

Code Part 201, Subpart L.

Condition 7.1.5(b) states that CWLP is required to conduct

opacity monitoring

in accordance with the NSPS pursuant to the federal Acid Rain

program.

The Acid Rain program, however, does not subject these non-NSPS boilers to

the NSPS program.

Specifically,

40

C.F.R.

§

75.2 1(b)

states that continuous opacity

monitoring

shall be conducted according to procedures set forth in state regulations

where they exist.

Recordkeeping for the Acid Rain Program is addressed at 40 C.F.R.

§

75.57(f), and reporting for the Acid Rain Program is addressed at 40 C.F.R.

§

75.65.

None ofthese regulations reference the NSPS contained in 40

C.F.R. Part

60.

Accordingly, CWLP requests that this condition be deleted.

95.

The Agency’s mistaken belief that CWLP’s Units

7,

8,31, and 32

are

subject to the NSPS was carried into the reporting requirements of Condition 7.1.10-2.

Specifically,

Conditions 7.1.1 0-2(b)ffl,

7.1.1 0-2(c)(i), and 7.1.1 0-2(d)(i) require summary

information on the performance ofthe S02 and NOx CEMS and COMs, includinglhe

information for a “Summary Report” specified by 40 C.F.R.

§60.7(d).

Additionally,

Condition 7.1.1 0-2(d)(iii) includes the following note:

Because the Permittee is subject to the reporting

requirements of the NSPS, 40 C.F.R.

§

60.7(c) and (d) for

the affected boiler for opacity, pursuant to the federal Acid

Rain Program,

as included above, the Permittee is not

subject to reporting pursuant to

35111. Admin. Code

201.405 (35

III. Admin. Code 201.403(a)).

-46-

---

As discussed above, CWLP’s Units

7,

8,

31, and 32 are not subject to the NSPS

requirements of40

C.F.R.

§

60.7 through

the

federal Acid Rain Program.

Accordingly,

there is

no applicable summary reporting requirement for the NOx and S02

CEMs.

CWLP requests that Conditions 7.1. 10-2(b)(i) and 7.1.1 0-2(c)(i)

be deleted.

CWLP notes

that it is currently submitting quarterly excess emission reports for opacity in accordance

with 35

Ill. Admin. Code

§

201.405.

CWLP requests that the citation in Condition

7.1.1 0-2(d)(i) be revised to cite 35

Ill. Admin. Code

§

201.405 as the applicable

requirement for accuracy and that

the note included at the end ofCondition 7.1.10-

2(d)(iii) be deleted.

1.

Conditions 7.1.1O-2(a)(iii)

and 7.2.1O-2(a)(iii):

Quarterly Operating

Reports

96.

Conditions 7.1.10-2(a) and 7.2.10-2(a) concern the submittal of quarterly

operating reports.

Specifically, Conditions 7.1.1 0-2(a)(iii) and 7.2.1 0-2(a)(iii) contain

a

schedule for submittal ofthese reports.

CWLP objects to both of these conditions

on the

grounds that they would require submittal ofa quarterly report for the quarter ending

September 30,

2005, essentially only one full day after issuance of the Permit.

As stated

in Paragraph 29,

supra,

CWLP

did not even have

notice that the Permit had been issued

until October 3,2005,

several days afterthe

end ofthe third quarter of2005.

Because

CWLP had no notice that

a quarterly report would

be due, it did not have the opportunity

to collect and compile the information required to be included in the report.

Thus,

compliance with these conditions

is impossible.

97.

CWLP further objects to

Condition

7.2. lO-2(a)(iii) to the extent that it

requires CWLP to submit a quarterly report for Unit 33

by October

30, 2005.

This

-47-

---

requirement violates CWLP’s right to

due process in that it requires action to be taken

before CWLP has had the

opportunity to exercise its statutory right to appeal.

415 ILCS

5/40.2.

The Act allows permittees 35 days in which to appeal conditions ofthe permit to

which it objects, and that period may be extended to 90

days under certain circumstances.

The

requirement to submit a quarterly report within 30 days ofthe Permit’s effective date

impairs CWLP

in exercising its right to appeal, ostensibly forcing CWLP to violate this

condition in order to seek review of the Permit through this petition.

98.

Moreover, because the

effective date ofthe Permit appears to be

contemporaneous with the date of issuance.

See supra

Paragraph 28.

CWLP had no

opportunity to seek relief from these conditions prior to them taking effect.

Accordingly,

these conditions,

to the extent

that they require the submittal ofa quarterly report for the

quarter ending September

30, 2005,

are unconstitutional.

J.

Conditions 7.1 .12(a)(ii)(D) and 7.2.12(a)(ii)(D):

Notification of Reliance

on Section

212.123(b)

99.

Condition

7.1.1 2(a)(ii) contains the requirements that would apply to

Units 7,8,31,

and 32

ifCWLP were

to elect to rely on

35111.

Admin.

Code

§

212.123(b).

This Section

allows sources to have:

An opacity greater than 30 percent but not greater than 60

percent for a period or periods aggregating

8 minutes in any

60 minute period, provided that such opaque emissions

permitted during any

60 minute period shall occur from

only one such emission unit located within a 305 m (1000

ft.) radius from the center point ofany other such emission

unit owned or operated

by such person, and provided

further that such opaque emissions permitted from each

such emission unit shall

be limited

to

3 times

in any

24

hour period.

-48-

---

Specifically, Condition

7.1 .1 2(a)(ii)(E) requires CWLP to “notify the Illinois EPA at least

15

days prior to changing its procedures associated with reliance on

35

III.

Admin.

Code

§

212.123(b), to allow the Illinois

EPA to review the new recordkeeping and data

handling practices planned by

the Permittee.”

Condition 7.2.1 2(a)(ii) contains similar

language applicable to Unit 33, namely the requirements that would apply to Unit 33

if it

were to rely on 35

111.

Admin. Code

§

212.122(b), which allows sources to have:

An opacity greater than 20 percent but not greater than 40

percent for a period or periods aggregating

3 minutes in any

60 minute period, provided that such opacity emission

during any 60 minute period shall occur from only one such

emission unit located within a 305

m (1000 ft.) radius

from

the center pointof any other such emission unit owned or

operated by such person and provided further that such

opaque emissions permitted from each such fuel

combustion emission unit

shall be limited

to

3

times

in any

24 hour period.

100.

CWLP objects to Conditions 7.1.12(a)(ii)(D)

and 7.2.l2(a)(ii)(D) to the

extent they require

15-day notification of an intention to demonstrate compliance with the

applicable opacity requirements in accordance with 35

Ill. Admin. Code

§

212.123(b) and

§

212.122(b), respectively.

Neither

§

212.123(b) nor

§

212.122(b) contain

any

requirement that a

source seeking to

comply with either section submit the

15-day

notification required by

Conditions 7.1.1 2(a)(ii)(E) and 7.2.1 2(a)(ii)(E).

Additionally,

the Agency provides

no rational reason why such a notification is necessary.

The

CAAPP permit contains recordkeeping and reporting requirements for opacity.

To the

extent that there is an opacity deviation, whether from

§

212.122(a),

§

212.122(b),

§

212.123(a), or

§

212.123(b), it will be timely reported pursuant to Conditions 7.1.10-I

for

Units 7,8,31

and 32

and 7.2.10-I

for Unit 33.

Given these requirements, the

Agency has

-49-

---

more than sufficient ability to evaluate CWLP’s compliance with opacity limitations,

particularly

since CWLP’s units are equipped with COMs.

101.

For the above reasons, CWLP requests that the Conditions 7.1.1 2(a)(ii)(D)

and 7.2.12(a)(ii)(D) be deleted.

CWLP

additionally notes that

as ofthe permit issuance

date,

it was already relying on

35111. Adm. Code

§

2 12.123(b) for Units

7,

8,31

and 32

and 35

III. Adm.

Code

§

212.122(b) for Unit 33.

Therefore, to the extent that these

conditions

are not deleted from the Permit,

CWLP believes that it is not required

to

submit notifications in accordance with Conditions 7.1.1 2(a)(ii)(D) and 7.2.1 2(a)(ii)(D)

because it has not changed its procedures associated with reliance on

§~

212.123(b) and

2 12.122(b).

IV.

SECTIONS 7.3, 7.4,

7.5, AND 7.6:

COAL HANDLING EQUIPMENT,

COAL PROCESSING EQUIPMENT, FLY ASH EQUIPMENT, AND

LIMESTONE AND GYPSUM HANDLING EQUIPMENT’9

A.

Conditions 7.3.4(c), and 7.3.6(a)(iii):

Applicability of Emission

Standards (NSPS)

102.

Condition 7.3.4(c) provides that CWLP’s coal handling operations that

“are subject to the NSPS, 40 C.F.R.

60,

Subpart Y, shall not exhibit 20

percent opacity or

greater into

the

atmosphere, pursuant to 40

C.F.R. 60.252(c), except

during

periods of

start-up, shutdown

and malfunction, as defined in 40 C.F.R. 60.2, pursuant to 40 C.F.R.

60.11(c) and 60.252(c).”

~ Sections

7.3, 7.4, 7.5,

and 7.6 of the Permit address coal handling, coat processing, fly ash, and limestone

and gypsum

handling equipment.

The

conditions applicable to these

operations are similar,

and the

majority of CWLP’s objections to Permit conditions

common to these units are the same.

Accordingly,

where objections to permit conditions

are the same across these emissions units, CWLP addresses the

objections together.

CWLP has also

noted unique

objections to unit-specific conditions

in this

section.

-50-

---

103.

CWLP objects to the inclusion ofthis condition in the Permit because its

coal handling operations are not subject to 40

C.F.R.

Part 60, Subpart

Y.

The coal

handling operations addressed in Section

7.3 ofthe Permit

do not fall under the definition

of a “Coal Preparation Plant” set forth in 40

C.F.R.

§

60.252.

Under

§

60.252, the term

“Coal Preparation Plant”

is

defined as “any facility (excluding underground mining

operations) which prepares coal by one or more of the following processes:

breaking,

crushing, screening, wet or dry cleaning, and thermal drying.”

CWLP’s coal handling

equipment does not break, crush, or screen coal, but

only hoists coal from the unloading

areas

to the respective boiler bunkers.

Accordingly, the NSPS contained

in 40 C.F.R.

Part 60,

Subpart Y does

not apply

to the coal handling equipment and should be deleted

from the permit.

104.

In addition to

Condition 7.3.4(c),

Condition 7.3.6(a)(iii) also applies only

to equipment to which the NSPS in 40 C.F.R. Part 60, Subpart Y apply.

That condition

prescribes work practices based on the NSPS regulations.

See

40 C.F.R.

§

60.11(d).

As

noted above, 40 C.F.R. Part 60,

Subpart Y does not apply to CWLP’s coal handling

equipment; therefore, the work practices derived from that Subpart are not applicable to

the

coal handling equipment and should be deleted from the Permit.

105.

CWLP further objects to Condition 7.3.8(a),

which contains inspection

requirements which reference compliance with 7.3.6(a); Condition 7.3.9(b), which

requires records be maintained for the control methods being implemented pursuantlo

Condition 7.3.6(a); and Condition 7.3.10(a)(ii), which requires notification ofthe Agency

within 30 days where the requirements of Condition 7.3.6(a) were not fulfilled for more

than

12

hours after discovery.

CWLP objects to these conditions

to

the extent

that they

-51-

---

require compliance with the requirements of Condition 7.3.6(a)(iii), which are not

applicable to the coal handling operations.

B.

Conditions 7.3.4(b), 7.4.4(b), 7.5.4(b), 7.6.4(b):

Applicability of Emission

Standards for Opacity

106.

Conditions 7.3.4(b), 7.4.4(b), 7.5.4(b), and 7.6.4(b) require the coal

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

respectively, to comply with the standard for opacity set forth in Condition

5.2.2(b).

Condition 5.2.2(b) generally addresses the opacity due to the emission of smoke or other

particulate matter pursuant to 35

III. Admin. Code

§

212.123.

Specifically,

Condition

5.2.2(b) allows up to 30

opacity from an emission unit.

Such application is improper

because it is inconsistent with the Board’s regulatory structure addressing PM emissions

and opacity.

107.

CWLP objects

to Conditions 7.3.4(b), 7.4.4(b), 7.5.4(b) and 7.6.4(b) to the

extent that these conditions

identifS’

§

212.123 of the Board’s rules as an applicable

requirement for each ofthe respective emission

sources.

The 30

opacity limitation

contained in 35

III. Admin. Code

§

212.123(a) does not apply to

sources offugitive

emissions, such as the coal handling, coal processing, fly ash and limestone

and gypsum

handling equipment.

108.

In its Responsiveness Summary, the Agency claims that:

Nothing

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

powerplants, elsewhere in the State’s air pollution control

regulations, opacity limitations are specifically set for

-52-

---

fugitive particulate matter emissions at marine terminals,

roadway, parking

lots,

and storage piles.

Responsiveness Summary at p.

41.

CWLP disagrees with the Agency’s statement that

the requirements of

§

212.123

apply to its fugitive emission sources.

The fact that the

Agency

specifically

established fugitive emissions

limitations for certain fugitive

emission sources indicates that

the regulatory structure does not admit to the

application

ofopacity limitations

in

§

212.123

to

fugitive sources.

109.

Fugitive emissions are fundamentally different from point source

emissions.

Point source

emissions are emitted through a discrete location (i.e. a stack or

a vent), and fugitive

emissions

are not emitted through any discrete point.

This

distinction is recognized in the Board’s rules, which establish

a different standard for

fugitive

emissions.

The opacity

standards that generally apply to fugitive particulate

matter sources are found at 35

III.

Admin.

Code

§

212.30 1, which provides:

No person shall

cause or allow the emission of fugitive

particulate

matter from any

process,

including any material

handling or storage activity,

that is

visible by

an observer

looking generally toward the zenith at a point beyond the

property line of the source.

35

III. Admin. Code

§

2 12.301

(emphasis added).

This requirement, along with its

exception in the ev~nt

wind speed exceeds 25 miles per hour, 35 Ill. Admin. Code

§

212.314, are subsumed

in Condition 5.2.2(a).

CWLP

believes that the visible emission

standard contained in

§

212.301, not

§

212.123, is applicable to its operations.

Accordingly,

it requests that

Conditions 7.3.4(b), 7.4.4(b), 7.5.4(b), 7.6.4(b) be deleted

from its Permit.

-53-

---

110.

Conditions 7.3.9(f), 7.4.9(e),

7.5.9(e), and 7.6.9(e) require maintenance of

records for all opacity measurements made in accordance with

Method

9, whicltis the

test method used to

demonstrate compliance with

§

212.123, and Conditions 7.3.12(a),

7.4.12(a), 7.5.12(a),

and 7.6.12(a) refer to the compliance procedures required to

demonstrate compliance

with Conditions

7.3.4, 7.4.4, 7.5.4 and 7.6.4,

respectively.

To

the extent that these conditions refer to compliance with

§

2 12.123, CWLP objects to

these conditions.

As noted

above, Conditions 7.3.4, 7.4.4.,

7.5.4 and 7.6.4 are unlawful

permit

conditions; therefore,

the recordkeeping

requirements

in Conditions

7.3.9(f),

7.4.9(e), 7.5.9(e), and 7.6.9(e)

and the compliance

procedures provided in Conditions

7.3.12(a),

7.4.12(a), 7.5.12(a),

and 7.6.12(a) are also

unlawful to the extent they refer

back to and require compliance with the

contested requirements.

C.

Conditions 7.3.7(a), 7.5.7(a), and 7.6.7(a):

Applicability

Method 9

Testing Requirements for Opacity Testing for Fugitive Emission

Sources

111.

Conditions 7.3.7(a), 7.5.7(a),

and 7.6.7(a)

specifically

require the use of

Method

9 to measure opacity from CWLP’s coal handling,

fly ash and limestone and

gypsum

handling equipment.

CWLP objects to the use of Method

9 to determine opacity

from this equipment.2°

112.

There are no test methods prescribed in the

Board’s regulations for

determining visible emissions from fugitive emission sources.

Indeed,

§

212.301,

which

as discussed above contains the emission limitations applicable to sources offugitive

particulate

matter,

is

specjflcally exempted

from the requirements of 35

III. Admin. Code

20

As

a general

matter, CWLP does not object to use of Method 9 testing for certain

equipment in itscoal

processing operations

because the coal

processing operations are

subject to the NSPS for Coal

Preparation

plants.

CWLP does, however, object to the opacity testing conditions

for this emission unit

for other

reasons.

Those reasons

are set forth

below in Paragraphs

115-120,

infra.

-54-

---

Part 212,

Subpart A, which prescribes the measurement methods for opacity

—

specifically, Method 9.

See

35

III. Admin. Code

§

2 12.107.

CWLP notes

that

§

212.109

ofthe Board’s rules requires Method 9 testing, with certain modifications,

to be used for

opacity readings

from roadways and

parking areas.

See also

35111. Admin. Code

§

2 12.109.

CWLP, however, believes that absent a specific reference, other sources of

fugitive

particulate matter that

are subject to

§

212.301

are exempt

from the requirements

ofSubpart A.

Accordingly, with the

exception of roadways and parking lots, the Agency

is precluded

from applying Method 9 monitoring to fugitive emissions under the Board’s

rules, leaving no

maimer for monitoring opacity from

fugitive sources other than the

visual method set

forth in

§

212.301.

113.

Since Method

9

is not applicable

to opacity testing on the fugitive

emissions from

CWLP’s coal handling,

fly ash, and limestone and gypsum handling

equipment, the inclusion of the Method 9 testing requirements in

Conditions 7.3.7(a),

7.5.7(a) and

7.6.7(a) is unlawful and should be deleted.

Additionally, there

is no

likelihood that visible emissions

from the operations permitted under these conditions

will reach the property line.

Therefore, these conditions are unnecessary to demonstrate

compliance with applicable requirements.

114.

Finally,

Conditions 7.3.12(a), 7.5.12(a), and 7.6.12(a) refer to the

compliance

procedures required to demonstrate

compliance

with Conditions 7.3.4,

7.5.4,

7.6.4, including the requirements of

§

212.123.

To the extent that these conditions

require CWLP to use Method 9

to measure opacity from fugitive sources in order to

demonstrate compliance with

§

212.123(a),

they are unlawful and should also be deleted

from the Permit.

-55-

---

D.

Condition 7.4.7(a): Method 9 Opacity TestingRequirements for

Coal

Processing Operations

11 5.

Condition 7.4.7(a) contains the requirements for conducting Method 9

opacity testing for CWLP’s coal processing operations.

While similar testing

requirements were unlawful for CWLP’s coal handling,

fly ash and limestone and

gypsum handling equipment, Method 9 testing is required for certain equipment in

CWLP’s

coal processing operations because those operations are subject to the NSPS

for

Coal Preparation Plants.

40 C.F.R.

§

60.250

et seq.

Specifically,

CWLP’s coal

processing and conveying equipment shall not exhibit 20

opacity or greater.

40 C.F.R.

§

60.252(c).

Compliance with this opacity limitation is demonstrated through Method 9

testing.

See

40 C.F.R.

§

60.254(b)(2).

116.

While CWLP believes that Method 9 testing is applicable to this emission

source, CWLP objects to certain provisions in Condition

7.4.7(a).

First, CWLP

objects to

Condition 7.4.7(a)(i) to the extent that

it relies on

§

39.5(7)(d) of the Act.

CWLP

believes that Method 9 opacity testing is only required pursuant to the NSPS for coal

preparation plants.

Therefore, the basis

for this requirement is

40 C.F.R. §60.242(c), not

§

39.5(7)(d) of the Act.

117.

Additionally, as set forth in Paragraphs 106-110,

supra,

CWLP objects to

Condition 7.4.4(b) which states that

§

2 12.123(a) is applicable to its coal processing

operations.

Accordingly, CWLP objects to 7.4.7(a) to the extent that

it suggests that

Method 9 opacity testing is required for this emission source to demonstrate compliance

with

§

212.123(a).

Accordingly, CWLP requests that this condition be revised to clarify

-56-

---

that these emission testing requirements

are solely due to the

applicability of 40 C.F.R.

§

60.242(c) to the coal processing operations.

118.

CWLP also objects to Condition 7.4.7(a)(i)(A)

to the extent that

this

condition is vague.

Condition 7.4.7(a)(i)(A) provides:

Ifstack or fugitive emissions

are normally visible during

the operation of an affected process, testing for the affected

process shall

be conducted at least annually.

For this

purpose, testing shall firstbe conducted

within three

months after the effective date ofthis Condition 7.3.7(a).

119.

It is unclear

from this condition whether an initial Method 9 test is

required for this operation to

the extent that fugitive emissions are not normally visible

during the operation of the coal processing and conveying equipment, because the

language ofthis condition suggests that the initial test must be performed within

3

months of the effective date ofthis Permit.

This condition should be clarified to provide

that an initial test is only performed if necessary due to the presence of visible emissions.

120.

Finally, Condition 7.4.12(a) refers

to the compliance

procedures required

to demonstrate compliance with Conditions 7.4.4.

One of those compliance procedures

is compliance with 7.4.7(a).

CWLP objects

to Condition 7.4.12(a) to the extent that

it

requires CWLP to comply

with those portions of Condition 7.4.7 which are unlawful.

To

the extent

Condition 7.4.7 is unlawful, Condition

7.4.12(a) is unlawful as

well.

E.

Conditions

7.4.7(b), 7.5.7(b), and

7.6.7(b):

Stack Testing for

PM

121.

Conditions 7.4.7(b), 7.5.7(b), and 7.6.7(b) contain particulate testing

requirements for CWLP’s coal processing, fly ash, and

limestone and gypsum equipment,

respectively.

Specifically,

these conditions provide that:

-57-

---

Within 90 days of a written request from the Illinois EPA,

the Permittee shall

have the PM emissions at the stacks

or

vents of the affected processes, as specified

in such request,

measured during representative

operating conditions, as set

forth below, pursuant to Section 39.5(7)(d) of the Act.

122.

None of the affected processes covered by Conditions 7.4.7(b), 7.5.7(b),

and 7.6.7(b) have stacks or vents.

Accordingly, compliance with these conditions

is

impossible.

CWLP requests that these conditions be deleted.

F.

Conditions 7.3.8, 7.4.8, 7.5.8 and

7.6.8:

Inspection Requirements

123.

Conditions 7.3.8, 7.4.8,

7.5.8 and 7.6.8 contain the inspection

requirements for CWLP’s coal handling,

coal processing,

fly ash

and limestone and

gypsum handling equipment,

respectively.

CWLP has several

objections to these

requirements as they apply to different processes.

124.

First, Condition 7.5.8(a) requires weekly inspections ofthe fly ash

handling operations, and Condition 7.6.8(a) requires bi-weekly inspections ofthe

limestone and

gypsum handling operations.

CWLP objects to the timing of these

inspections.

The Agency provides no basis

forrequiring

such frequent inspections for

these operations.

As noted above, the fly ash and

limestone and gypsum

operations do

not result in visible

emissions at the property line,

and they are in compliance with

applicable requirements.

Thus, there is no basis

for including such frequent inspections

under

Illinois law.

Additionally, the Agency has not provided any rationale

for requiring

a different frequency ofinspections for fly ash operations (weekly) and limestone and

gypsum operations

(bi-weekly).

Accordingly,

requiring different frequencies for the

inspections

is arbitrary and capricious.

CWLP requests that the frequency of inspections

for both types of operations be monthly.

-58-

---

125.

Second, CWLP objects to Conditions 7.3.8(a), 7.4.8(a),

7.5.8(a), and

7.6.8(a) to the extent that these conditions specify that monthly

inspections

be undertaken

by personnel “not directly involved

in the day-to-day operation” of the particular

operation.

The Agency apparently believes independence from day-to-day operations is

an “appropriate qualification” for persons conducting the monthly

inspections; however,

the Agency provides no reason

for its conclusion.

See

Responsiveness Summary at p.

19.

The Agency acknowledges that these inspections require no special skill because they

consist of observing visible emissions.

Id.

It is not clear why operational personnel

cannot make these observations.

It appears from the Responsiveness Summary that the

Agency assumes that operational personnel are making observations

and taking

appropriate actions

on a regular basis.

Id.

(“~Tjhese

inspections supplement and

corroborate the observations and actions of the employees

who operate these facilities on

a daily basis”).

These conditions are apparently intended to provide a “check” on the

regular inspections

and observations of operational personnel.

The Agency, however, has

not provided any reason

why this “check”

is necessary.

CWLP believes that the

requirement that inspections

be undertaken by personnel not involved in the day-to-day

operation ofthe facility is arbitrary and capricious, and it exceeds the gap-filling

authority under

415 ILCS 39.5(7)(a) and

(b).

See Appalachian

Power Co.,

208 F.3d at

1028.

126.

Third, CWLP objects to Conditions 7.5.8(b) and 7.6.8(b),

which require

detailed inspections ofthe dust

collection equipment every nine months

for the fly ash

and limestone and gypsum handling equipment,

respectively.

CWLP objects to these

conditions because the timing ofthe

inspection requirement is arbitrary and capricious,

-59-

---

particularly because the timeframe for detailed inspections of the dust collection

equipment in the coal handling

and coal processing equipment is every

IS months.

See

Conditions 7.3.8(b) and 7.4.8(b).

The Agency has provided no basis for the need for

more frequent inspections ofthe dust collection equipment.

Accordingly, the timing for

inspections

in these Conditions is arbitrary and capricious and exceeds the Agency’s gap-

filling authority under 415

ILCS 39.5(7)(a) and (b).

See Appalachian Power Co.,

208

F.3d at

1028.

CWLP requests that Conditions 7.5.8(b) and 7.6.8(b) be revised to require

detailed inspections of dust collection equipment every

15 months.

127.

Finally, CWLP objects to Conditions 7.3.9(d), 7.4.9(c), 7.5.9(c) and

7.6.9(c) to the extent that these conditions contain recordkeeping requirements for

inspections required by Conditions 7.3.8, 7.4.8, 7.5.8, and 7.6.8, and to Conditions

7.3.12, 7.4.12, 7.5.12 and 7.6.12 to the extent that these

conditions contain

compliance

procedures that would require compliance with the contested portions of Conditions

7.3.8, 7.4.8, 7.5.8, and 7.6.8.

With regard to the recordkeeping provisions, CWLP objects

to Conditions 7.5.9(c)(i) and 7.6.9(c)(i) to the

extent that these conditions require

maintenance of records from weekly or bi-weekly inspections rather than monthly

inspections.2’

CWLP objects to Conditions 7.3.9(d)(i), 7.4.9(c)(i), 7.5.9(c)(i),

and

7.6.9(c)(i), to the extent that these conditions relate to the requirement that inspectors

who are not involved

in the day to day operations of the

facility conduct inspections

pursuant to Conditions 7.3.8(a), 7.4.8(a), 7.5.8(a) and 7.6.8(a)22 and CWLP objects to

Condition 7.5.9(c)(ii), and 7.6.9(c)(ii), to the extent that these conditions require records

2’

See

Paragraph

124,

supra.

22

See

Paragraphs

125,

supra.

-60-

---

for inspections conducted every nine months rather than every

15

months.23

As noted

above, Conditions

7.3.8, 7.4.8,

7.5.8 and 7.6.8 are unlawful permit conditions; therefore,

the recordkeeping requirements in Conditions 7.3.9(d)(i), 7.4.9(c)(i), 7.5.9(c)(i) and (ii)

and 7.6.9(c)(i) and (ii) and the compliance procedures set forth in Conditions 7.3.12,

7.4.12,

7.5.12,

and 7.6.12 are unlawful to the extent they referback to

and require

compliance with the contested requirements.

C.

Conditions 7.3.9, 7.4.9, 7.5.9, and 7.6.9:

Recordkeeping Requirements

128.

Conditions 7.3.9, 7.4.9, 7.5.9, and 7.6.9 contain the recordkeeping

requirements applicable to the

coal handling,

coal processing, fly ash, and limestone and

gypsum

processing

equipment.

CWLP objects to these conditions for several reasons.

129.

First, Conditions 7.5.9(a) and 7.6.9(a) both require the maintenance of

“logs.”

CWLP objects to these conditions to

the extent that the term “log”

is vague and

ambiguous.

CWLP notes that

in other permit conditions, the term “log” is used in

conjunction with the

terms “records” or “files.”

See,

e.g.,

Condition 7.3.9(a).

The

absence of such flexibility in these conditions suggests that a specific log book is

required.

To CWLP, the term “log” means a notebook with handwritten entries.

CWLP

keeps maintenance and repair records for its pollution control equipment and operations.

These records, however, are not maintained in

a notebook.

Some ofthese records are

maintained electronically.

It is arbitrary and capricious for the Agency to require

maintenance ofa log book when similar records are

maintained in

a different format.

23

See

Paragraphs

126,

supra.

-61-

---

Accordingly, CWLP requests that these conditions be revised to

replace the term “log”

with “records” or add the term “records.”

130.

Second, Conditions 7.4.9(a)(ii), 7.5.9(a)(ii) and 7.6.9(a)(ii) require CWLP

to maintain operating

logs.

These logs would have to include information concerning

any

incident where operations continued during a malfunction and breakdown.

CWLP

objects to these conditions because they are duplicative ofthe information required to be

maintained pursuant to Conditions 7.4.9(d), 7.5.9(d), and 7.6.9(d).

As the Agency’s

principal concern is maintaining records ofsource compliance during malfunction and

breakdown,

CWLP believes that

the requirements of Conditions 7.4.9(d),

7.5.9(d), and

7.6.9(d) would

satisfy the Agency’s concern.24

Accordingly,

CWLP requests that

Conditions 7.4.9(a)(ii), 7.5.9(a)(ii), and 7.6.9(a)(ii) be deleted as they are unduly

burdensome and

unnecessary to demonstrate compliance with applicable requirements.

131.

Third,

CWLP objects to Conditions

7.3.9(d)(i)(D),

7.4.9(c)(i)(D),

7.5.9(c)(i)(D), and 7.6.9(c)(i)(D), which require CWLP to maintain “al

summary of the

observed implementation or status of actual control measures, as compared to the

established control measures.”

CWLP does not understand

what information the Agency

is seeking under these conditions.

Accordingly, these conditions are vague and

ambiguous and should be deleted from the Permit.

24

CWLP

has proposed revisions to

conditions 7.4.9(d),

7.5.9(d), and

7.6.9(d).

See

Paragraph

132

infra.

CWLP believes

the revisions it has proposed are

consistent with

the Agency’s

purposes in

requiring-records

of source

compliance during malfunction and breakdown.

-62-

---

132.

Fourth, CWLP objects to Conditions 7.3.9(e)(ii),

7.4.9(d)(ii), 7.5.9(d)(ii),

and 7.6.9(d)(ii) to the extent that these conditions require CWLP to record the magnitude

of PM emissions during the incident and record whether any applicable

emission standard

may have been violated during the incident.

CWLP also objects to conditions

7.3.9(e)(vii), 7.4.9(d)(vii), 7.5.9(d)(vii), and 7.6.9(d)(vii).

These conditions require “a

discussion whether any applicable emission standards.

.

.

may have been violated during

the incident, with supporting explanation.”

As discussed

in detail in CWLP’s objections

as to Conditions 7.l.9ffl, 7.2.9(1) and 7.1.9(g)(ii)(D)(III) and 7.2.9(g)(ii)(D)(IIi), CWLP

cannot accurately determine the magnitude of PM emissions

without conducting a stack

test.

As noted

in CWLP’s

comments on

Conditions 7.4.7(b), 7.5.7(b), and 7.6.7(b), stack

tests cannot be performed on

these operations because there are no stacks or vents.

See

Paragraph

122,

supra.

Thus, CWLP cannot ascertain whether an otherwise applicable

requirement may have been violated during the incident.

Accordingly, these conditions

are arbitrary and capricious, and CWLP requests that they be revised to delete the

requirement that CWLP

determine the magnitude of the PM emissions during the

incident.

133.

Finally,

Conditions 7.3.12, 7.4.12,

7.5.12

and 7.6.12 contain compliance

procedures for the emission standards and work practices that apply to these respective

emission sources.

These conditions provide that compliance

with the respective emission

standards and work practices

is ensured through the respective recordkeeping

requirements

contained in Conditions

7.3.9, 7.4.9, 7.5.9 and 7.6.9.

CWLP objects to

Conditions 7.3.12, 7.4.12, 7.5.12

and 7.6.12 to the extent

that these conditions require

compliance with the contested portions of Conditions 7.3.9, 7.4.9, 7.5.9 and

7.6.9 as set

-63-

---

forth above.

As outlined

in Paragraphs

130-132,

supra,

portions of Conditions 7.3.9,

7.4.9, 7.5.9 and 7.6.9 are unlawful permit conditions; therefore, the compliance

procedures set forth in Conditions 7.3.12, 7.4.12,

7.5.12, and 7.6.12 are

unlawful to the

extent they refer back to and require compliance with the contested requirements.

H.

Conditions 7.3.10 ,7.4.10 7.5.10, and 7.6.10:

Reporting Requirements

134.

Conditions 7.3.10, 7.4.10, 7.5.10, and 7.6.10 contain the reporting

requirements applicable to the coal handling,

fly ash handling, and limestone and gypsum

handling operations, respectively.

Specifically, Conditions 7.3.10(a)(i), 7.4.10(a)(i),

7.5.1 0(a)(i), and 7.6.1 0(a)(i) contain reporting requirements for incidents that resulted in

excess emissions, including continued

operation during malfunction and breakdown.

135.

CWLP objects to these

conditions to the extent that they are arbitrary and

capricious

and exceed the Agency’s gap-filling authority under

§~

39.5(a), (b) and (f) of

the Act.

CWLP notes that these reporting requirements were

not included in CWLP’s

draft Permit until the July 2005 draft.

Indeed, in the December 2004 draft ofthe Permit,

CWLP was to notify the Agency within 30 days if an operation was not in compliance

with an applicable requirement for more than

12 hours after such non-compliance was

identified.

See

Exhibit

C atpp. 96-97,

104-105, 113-114, and

121-122.

Other deviations

were to be reported in the quarterly reports.

The July 2005 draft ofthe Permit included

substantially increased reporting requirements for these operations.

The Agency,

however,

has not provided any basis

for this increased reporting.

As stated above, there

are no visible emissions at the property line from any of these operations, and there is no

evidence that deviations of applicable requirements are frequent for these emission

sources.

CWLP bejieves that the reporting requirements initially proposed by the

-64-

---

Agency and included in every draft permit until July 2005 are sufficient.

The

increased

reporting contained in Conditions

7.3.10, 7.4.10,

7.5.10, and 7.6.10

is not only

arbitrary

and capricious, but it exceeds the Agency’s gap-filling authority under

§

39.5(a), (b) and

(1)

of the Act.

See Appalachian Power Co.,

208 F.3d at 1028.

Accordingly, Conditions

7.3.10,

7.4.10, 7.5.10, and 7.6.10 should be revised consistent with the requirements

contained in the draft permits prior the July 2005 draft.

V.

SECTION

7.6:

ENGINES

A.

Condition 7.7.6:

Work Practices, Operational and Production Limits,

and Emission Limitations

136.

Condition 7.7.6 contains the work practices that are applicable to the

engines.

Specifically, Condition

7.7.6(d)(i) requires:

Ifan affected engine is routinely operated or exercised to

confirm that the engine will operate when needed, the

operation and opacity of the engine shall

formally be

observed

by operating personnel for the engine or a

member ofthe Permittee’s environmental

staff on

a regular

basis to assure that the engine is operating properly, which

observations

shall be made at least every six months.

Condition 7.7.6(d)(ii) contains the observation requirements for the engines when they

are not operated for six months.

Both ofthese conditions require observations by

“operating personnel for the engine or a member of Permittee’s environmental staff”

137.

CWLP objects to Conditions 7.7.6(d)(i) and (ii) to the extent that the

Agency is requiring inspections to be conducted

by a certain person.

There is no

applicable requirement that specifies that the engine operator or the environmental staff

must be the personnel who observe opacity and operation of the engines.

Specifically

identifying which personnel may perform these activities is not within the scope ofthe

-65-

---

Agency’s gap-filling authority under

§~

39.5(7)(a), (b) and (1), as

it is not necessary to

ensure compliance with applicable requirements.

Therefore, this requirement

is arbitrary

and capricious and should be deleted.

B.

Condition 7.7.10-1:

Reporting Requirements (Opacity)

138.

Condition

7.7.10-1 contains deviation reporting requirements applicable to

the engines.

More specifically, Condition

7.7.10-1(a) contains reporting requirements

for

incidents that resulted in excess

opacity from the engines.

CWLP objects to

condition

7.7.10-1(a) on several grounds.

139.

First, CWLP objects to Condition 7.7.10-1(a)(i) because it requires

reporting when the applicable opacity limitation

may

have

been violated.

The condition

is not premised

on

an

actual

exceedance of an opacity limitation.

There is

no regulatory

provision that would require CWLP to report a “potential” violation of the opacity

standard.

CWLP believes that this provision is arbitrary and capricious and exceeds the

Agency’s gap-filling authority under

§~

39.5(7)(a), (b) and (f) of the Act.

140.

Further, CWLP objects to Condition 7.7.10-1(a)(i) to the extent that the

trigger for immediate reporting of opacity exceedances does not include the

concept that

the averaging periods for which

opacity has been exceeded must be

consecutive.

Versions ofthe Permit prior to July 2005

include the word “consecutive.”

As noted in

Paragraph 66,

supra,

CWLP believes the

inclusion ofthe word “consecutive” is critical

because the actual opacity exceedance alone could constitute the “incident.”

In reality,

random,

intermittent exceedances of the opacity limitation do not necessarily constitute a

malfunction/breakdown incident, whereas a prolonged period of opacity exceedance

-66-

---

could potentially indicate a malthnction/breakdown “incident.”

For this reason, CWLP

requests that Condition 7.7.10-1(a)(i) be revised to

include the word “consecutively.”

VI.

CONCLUSION

In conclusion, CWLP contests the effective date ofthe Permit and subsections of

the following conditions of its Permit because they are arbitrary, capricious, vague,

contrary to law, unreasonable and/or inconsistent with applicable

requirements:

Condition 5.6.1

-

Records of Emissions

Condition 5.6.2

-

Retention and Availability of Records

Condition 5.7.2

-

Annual Emissions Reports

Condition 7.1.3

-

Applicability Provisions

-

Units

7,

8,31

and 32

Condition

7.1.5

-

Non-Applicability of Regulations of

Concern

-

Units

7,

8,

31

and 32

Condition 7.1.6

-

Work Practices

-

Units

7,

8,31

and 32

Condition

7.1.7

-

Testing Requirements

-

Units

7,

8,

31

and

32

Condition 7.1.9

-

Recordkeeping Requirements

-

Units

7,

8,

31

and

32

Condition 7.1.10-I

-

Reporting ofDeviations

-

Units

7,

8,

31

and 32

Condition 7.1.10-2

-

Periodic Reporting

-

Units 7,

8,

31

and

32

Condition 7.1.10-3

-

Notifications

-

Units

7,

8,

31

and

32

Condition 7.1.12

-

Compliance Procedures

-

Units 7,

8,

31

and 32

Condition

7.2.3

-

Applicability Requirements

-

Unit 33

Condition 7.2.6

-

Work Practices

-

Unit 33

-67-

---

Condition

7.2.7

-

Testing Requirements

-

Unit 33

Condition

7.2.9

-

Recordkeeping Requirements

-

Unit 33

Condition

7.2.10-1

-

Reporting of Deviations

-

Unit 33

Condition

7.2.10-2

-

Periodic Reporting

-

Unit 33

Condition

7.2.10-3

-

Notifications

-

Unit

33

Condition

7.2.12

-

Compliance Procedures

-

Unit

33

Condition 7.3.4

-

Applicable Emission

Standards

-

Coal

Handling Equipment

Condition 7.3.6

-

Work Practices

-

Coal Handling

Equipment

Condition 7.3.7

-

Testing Requirements

-

Coal Handling

Equipment

Condition

7.3.8

-

Inspection Requirements

-

Coal Handling

Equipment

Condition

7.3.9

-

Recordkeeping

-

Coal Handling

Equipment

Condition 7.3.10

-

Reporting

-

Coal Handling Equipment

Condition 7.4.4

-

Applicable Emission Standards

-

Coal

Processing

Equipment

Condition 7.4.7

-

Testing Requirements

-

Coal Processing

Equipment

Condition 7.4.8

-

Inspection Requirements

-

Coal

Processing Equipment

Condition 7.4.9

-

Recordkeeping Requirements

-

Coal

Processing Equipment

Condition

7.4.10

-

Reporting Requirements

-

Coal

Processing Equipment

Condition 7.4.12

-

Compliance Procedures

-

Coal

Processing Equipment

Condition 7.5.4.

-

Applicable Emission Standards

-

Fly Ash

Equipment

-68-

---

Condition 7.5.7

-

Testing Requirements

-

Fly Ash

Equipment

Condition

7.5.8

-

Inspection Requirements

-

Fly Ash

Equipment

Condition 7.5.9

-

Recordkeeping Requirements

-

Fly

Ash

Equipment

Condition

7.5.10

-

Reporting Requirements

-

Fly Ash

Equipment

Condition 7.5.12

-

Compliance Procedures

-

Fly

Ash

Equipment

Condition 7.6.4

-

Applicable Emission Standards

-

Limestone and Gypsum Handling Equipment

Condition 7.6.7

-

Testing Requirements

-

Limestone and

Gypsum Handling Equipment

Condition 7.6.8

-

Inspection Requirements

-

Limestone and

Gypsum Handling Equipment

Condition 7.6.9

-

Recordkeeping Requirements

-

Limestone

and Gypsum Handling Equipment

Condition 7.6.10

-

Reporting Requirements

-

Limestone

and Gypsum Handling Equipment

Condition

7.6.12

-

Compliance Procedures

-

Limestone and

Gypsum Handling Equipment

Condition 7.7.4

-

Applicable Emission Standards- Engines

Condition 7.7.6

-

Work Practices

-

Engines

Condition 7.7.9

-

Recordkeeping Requirements

-

Engines

Condition 7.7.10-I

-

Reporting of Deviations

-

Engines

In a Motion for Stay

which accompanies this Petition, CWLP has requested a stay

of its entire Permit or in the alternative,

a stay of the contested conditions set forth in

this

Petition.

-69-

---

WHEREFORE, for the reasons set

forth in this Petition and the Motion for Stay

that accompanies this Petition, CWLP respectfully requests that the Board stay the Permit

or, in the alternative, the contested

conditions set forth in the Petition.

CWLP further

requests that the Board vacate the imposition ofthese contested permit conditions-and

revise CWLP’s

permit consistent with the requested revisions contained in this Petition

for Review.

Respectfully submitted,

THE CITY OF SPRINGFIELD

By:f~flJQ.

d~

;7

_~~)f

its Attorneys

Dated:

November

3, 2004

Cynthia A. Faur

Mary A. Gade

Elizabeth A. Leifel

SONNENSCHEIN NATH

& ROSENTHAL

LLP

8000

Sears Tower

233

S.

Wacker Drive

Chicago,

IL 60606

(phone):

312-876-8000

(facsimile) 312-876-7934

119591 10v5

THIS

FILING IS BEING SUBMITTED ON

RECYCLED PAPER

-70-

---

CERTIFICATE OF SERVICE

The undersigned, an attorney, certify that I have served upon the individuals

named on

the attached Notice of Filing true and correct copies ofthe PETITION FOR HEARING TO

REVIEW

CLEAN AIR ACT PERMIT PROGRAM PERMIT ISSUANCE AND MOTION

FOR LEAVE TO WAIVE REQUIREMENT TO SUBMIT AN ORIGINAL AND NINE

COPIES,

by Messenger and First Class Mail, postage prepaid on November

3, 2005.