ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER 3,

2005

*

*

*

*

*

PCB 2006-071

*

*

*

*

*

BEFORE i’iii:

ILLINOIS

J’OLLUTI()N

CONTROL

BOARI)

DYNECY

MIDWEST

GENERATION,

INC.

(HAVANA

POWER STATION),

)

)

Petitioner,

)

)

)

PCB

_____________

)

(Permit

Appeal

—

Air)

ILLINOIS

ENVIRONMENTAL

PROTECTION AGENCY,

)

)

NOTICE

OF FILING

To:

Pollution

Control Board,

Attn:

Clerk

Division of Legal Counsel

James R.

Thompson

Center

Illinois

Environmental

Protection

Agency

100

W.

Randolph

1021

North Grand Avenue, East

Suite

11-500

P.O.

Box

19276

Chicago. Jllinois

60601

Springfield,

Illinois

62794-9276

PLEASE TAKE NOTiCE that

1

have today

filed

with the

Office of the Clerk of the

Pollution control Board the original

and nine copies of the

Appeal

of CAAPP Permit

of

Dynegy

Midwest

Generation,

inc.

(Havana

Power

Station)

and the

Appearances

of Sheldon

A.

Zahel,

Kathleen C.

Bassi, Stephen

J.

l3onehrake. Joshua

C

More, and

Kavita M. Patel. copies

of which are

herewith served upon

you.

Kathleen C.

Bassi

Dated:

November

3,

2005

Sheldon

A.

Zabel

Kathleen

C.

Bassi

Stephen

3.

Bonebrake

Joshua R. More

Kavita M. Patel

5011FF

HARDIN,

LLP

6600 Sears

Tower

233

South Wacker Drive

Chicago, Illinois

60606

312-258-5500

Fax:

312-258-5600

---

ELECTRONIC

FILING,

RECEIVED, CLERKS

OFFICE,

NOVEMBER

3,

2005

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*

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*

POB 2006-071

*

*

*

*

*

BEFORE

TILE ILlINOIS

POLLIJFR)N

CONTR()L BOARI)

DYNEGY

MIDWEST GENERATION, INC.

(HAVANA POWER

STATION),

)

Petitioner,

)

)

PCB

_____________

______

(Permit Appeal

—

Air)

ILLiNOIS ENVIRONMENTAL

PROTECTION

AGENCY,

)

Respondent.

)

APPEARANCE

I

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

Generation.

Inc. (Havana Power

Station).

9m

~

,1

/~e1donA,Z2~

Dated:

November

3, 2005

Sheldon A. Zabel

Kathleen C. Bassi

Stephen

J.

Bonebrake

Joshua R. More

Kavita M.

Patel

SCHIFF HARDIN, LLP

6600 Sears Tower

233 South

Wacker Drive

Chicago,

Illinois

60606

312-258-5500

Fax:

312-258-5600

---

ELECTRONIC

FILING,

RECEIVED,

CLERKS

OFFICE,

NOVEMBER

3,

2005

*

*

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*

*

PCB 2006-071

*

*

*

*

*

BLlORF:

Till:

ILLINOIS

P0EV.

lION

CONTROL BOARD

I)YNEGY MIl)WES1’ GENERATION, IN(:.

)

(hAVANA PoWER

STATION),

)

)

Petitioner,

)

P03

____________

(Permit

Appeal—

Air)

ILLINOIS

PROTECTION A(;ENCY,

Respondent.

)

APPEARANCE

1 hereby file my appearance in this proceeding, on

behalf of Dynegy Midwest

Generation,

inc.

(1-lavana Power Station).

Kathleen C.

l3assi

Dated:

November 3, 2005

Sheldon

A.

Zahel

Kathleen

C.

Bassi

Stephen

J.

Bonebrake

Joshua R.

More

Kavita M.

Patel

SCHIFF HARDEN.

1.12

6600 Sears ‘lower

233 South Wacker Drive

Chicago, Illinois

60606

312-258-5500

Fax:

312-258-5600

---

ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

3,

2005

*

*

*

*

*

PCB 2006-071

*

*

*

*

*

BEFORE THE

ILLINOIS

I~OLLUTIONCONTROL

DYNEGY

MII)WEST GENERATION, INC.

(HAVANA POWER STATION),

)

Petitioner,

)

)

v.

)

PCI)

___________

(Permit Appeal

—

ILLINOIS

Respondent.

APPEARANCE

I

hereby file my appearance

in this proceeding, on

behalf of Dynegy Midwest

Generation,

Inc.

(ITavana Power Station).

/

72

J

/

/

~fethen).

Bonebrake

‘/

Dated:

November

3, 2005

Sheldon

A.

Zahel

Kathleen C. Bassi

Stephen 3.

Bonebrake

Joshua R. More

Kavita M. Patel

SCHIFF HARDIN, LLP

6600 Sears Tower

233

South Wacker Drive

Chicago, Illinois

60606

312-258-5500

Fax:

312-258-5600

---

ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER 3,

2005

*

*

*

*

*

PCB 2006-071

*

*

*

*

*

I3EF0RI: TIlE

IllINOIS

POLLLITWN

CONtROL

BOARI)

DYNEGY

MIDWEST

GENERATION,

INC.

(HAVANA

POWER

STATION),

Petitioner,

)

PCI)

______________

(Permit Appeal

—

Air)

Respondent.

APPEARANCE

I

hereby

file my

appearance in this proceeding,

on behalf of Dynegy Midwest

Generation,

Inc.

(Havana Power Station).

/

,/-•

/

/-+

7’

//~

/C_~L__

7

/

/

Joshua It

More

Dated:

November 3.

2005

Sheldon

A.

Zabel

Kathleen C.

Bassi

Stephen

J. Bonebrake

Joshua IC

More

Kavita M.

Patel

SCHIEF HARDIN,

LLP

6600 Sears Tower

233

South

Waeker Drive

Chicago, IHinois

60606

312-258-5500

Fax:

312-258-5600

---

ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

3,

2005

*

*

*

*

*

FOB 2006-071

*

*

*

*

*

BEFORE THE ILLINOIS

PO)LLUTION

CONTROL

BO.&RI)

DYNEGY MIDWEST GENERATION, INC.

(HAVANA

POWER

STATION),

)

Petitioner,

)

PCB

___________

(Permit Appeal

—

Air)

ILLINOIS

ENVIRONMENTAL

PROTECTION AGENCY,

)

Respondent.

APPEARANCE

I

hereby

file

my

appearance in this proceeding,

on behalf of Dynegy Midwest

Generation, Inc. (Havana Power Station).

KavitaM. Patel

Dated:

November

3, 2005

Sheldon

A. Zabcl

Kathleen

C.

Bassi

Stephen J. Bonebrake

Joshua R.

More

Kavita

M.

Patel

SCHIFF

HARDIN, LLP

6600 Sears Tower

233

South Wacker Drive

Chicago, Jllinois

60606

312-258-5500

Fax:

312-258-5600

---

ELECTRONIC

FILING.

RECEIVED, CLERK’S

OFFICE,

NOVEMBER

3,

2005

*

*

*

*

*

PCB 2006-071

*

*

*

*

*

BEFORE TIlE

ILLINOIS

POLLUTION

CONTROl.

BOARI)

I)YNEGY

MIDWEST

GENERATION, INC.

(HAVANA

POWER STATION),

Petitioner,

V.

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

)

PCB

___________

(Permit Appeal

—

.Air)

)

)

CERTIFICATE

OF

SERVICE

I, the

undersigned, certify that

I have served the attached Appeal

of

CAAPP Permit of

I)ynegy Midwest Generation, Inc. (Havana

Power Station)

and Appearances

of Sheldon

A.

Label,

Kathleen C. Bassi.

Stephen

J. Bonebrake.Joshua

R. More,

and Kavita M.

Patel.

by

electronic delivery

upon

the

Ibliowing

person:

Pollution Control Board,

Attn:

Clerk

lames

IC

Thompson Center

lOt) W.

Randolph

Suite

11-500

Chicago,

Illinois 60601

-—

‘I~bt~t.Bassi

~

r

- —

Dated:

November

3, 2005

and

by electronic

and

first class mail

upon

the

following pen:

Division of legal

Counsel

Illinois

Environmental Protection

Agency

1021

North Grand Avenue. East

P.O.

Box

1 9276

Springfield. Illinois

62794-9276

Sheldon

A. Label

Kathleen

C.

Bassi

Stephen

J.

Bonebrake

Joshua

R.

More

Kavita

M.

Patel

5011FF

FIARDIN,

I~1~P

6600

Sears

Tower

233

South Wacker

Drive

Chicago, Illinois

60606

312-258-5500

Fax:

3

I 2-258-5600

---

ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

3,

2005

*

*

*

*

*

FOB 2006-071

*

*

*

*

*

BEFORE

THE

ILLINOIS

I’OLLLFION

CONTROL BOAR1)

DYNEGY MIDWEST

GENERATION, INC.

(hAVANA POWER STATION)

)

Petitioner,

)

PCI)

_____________

(Permit Appeal

—

Air)

ILLINOIS

ENVIRONMENTAL

PROTECTION AGENCY,

)

APPEAL OF CAAPP PERMIT

NOW

COMES

Petitioner,

DYNEGY MIDWES

GENERATION,

NC.

(I

IAVANA

POWER STATION)

(“Petitioner,” or “DM0”), pursuant

to Section

40.2 of the

Illinois

Environmental Protection Act (“Act”) (415

ILCS 5/40.2) and 35

JII,Adm.Code

§

105.300

ci

seq.,

and requests a hearing before

the Board to contest

the

permit

issued to Petitioner on

September

29,

2005. under the Clean Air

Act Permit

Program (“CAAPP” or “Title V”) set

forth

at

Section

39.5

of the

Act

(415

1LCS

5/39.5).

Although

Ibis appeal contests

many specific provisions of the

permit, these

specific provisions are so intertwined

with the remaining provisions

that

it would

be

impractical to implement those remaining provisions.

Therefore, DMG appeals tile permit as

a whole.

In support of its Petition, Petitioner states as follows:

1.

BACKGROUND

(35 Ill.Adm.Code

§

105.304(a))

1.

On November

15,

1990, Congress amended the

Clean Air Act (42

U.S.C.

§~

7401-7671q) and included in the amendments at Title

V a requirement for a national

operating

permit program.

The Title V program

was

to

be implemented

by states with appmved programs.

Illinois’

Title V program,

the

CAAPP, was fully

and finally approved

by the

U.S.

Environmental

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ELECTRONIC

FILING,

RECEIVED,

CLERK’S OFFICE,

NOVEMBER 3,

2005

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FOB 2006-071

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*

Protection

Agency

(‘‘TJSIHI’A’

)

on

December

4.

2001

(66

Fed.Reg,

72946).

Ihe

Illinois

Invironinental

Protection

Agency (‘Agency’

)

has had the authority

to

issue

CAAPP permits

since at

least March

7.

1995, when

the state

was granted

interim approval of its CAAPP

(60

Fcd.Reg.

12478).

Illinois ‘Title

V program

is set

forth at

Section

39.5

othe

Act. 35

Ill.Adm.Codc

201

Subpart

I’. and

35

III.Adm.Code

Part 270,

2.

The Havana Power

Station

(‘‘Havana’’

or the

‘‘Station”).

Agency

1,1).

No.

I 25804AA13. is an

electric generating station owned

by and operated

by

DMG.

he

I lavana

electrical

generating

units (‘liGUs”)

went

online

between

roughly

1949

and

I 978.

l’he

I lavana

Power Station

is located at

15260

North State

Route

78,

Havana, Mason County, Illinois 62644.

DM0

employs

approximately

82

people at

the

I lavana

Station.

3.

DM0

operates

one coal-fired boiler

at Flavana that

has the capability

to fire at

various modes that

include

the combination of coal

and distillate

fuel

oil as

its principal

fuels.

In

addition.

the boiler fires

distillate fuel

oil as auxiliary fuel during startup

and

for liame

stabilization.

Certain

alternative

fuels may

he utilized

as well.

DM0 also operates

eight residual

oil

tired

boilers at Havana used

to

produce steam

to

generate electricity.

These eight boilers

fire

distillate

fuel oil

as an

auxiliary

fuel

during

startup.

In addition, havana

operates

a natural

gas

fired and distillate

oil

tired boiler for generating steam

for startup of the

coat-fired boiler and for

heating purposes.

Havana also

operates associated

coal handling, coal

processing,

and ash

handling activities.

Finally, there is

a 500-gallon

capacity gasoline tank located at Havana.

4.

Havana

is a major source

subject to Title

V.

‘Ihe

ECU5 at 1-lavana are subject

to

both of Illinois’ NOx reduction programs:

the “0.25

averaging” program

at 35

Ill.Adm.Code

217.Suhparts

V

and the “NOx trading program”

or

‘NOx

SIP call” at 35

llI,Adm.Code

-2-

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ELECTRONiC

FILING,

RECEIVED, CLERKS

OFFICE, NOVEMBER

3,

2005

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2 l7.Subpart

W.

Havana

is subject to the

federal

Acid

Rain

Program at Title

IV

of the

Clean

Air

Act and has been issued

a Phase

II

Acid Rain

Permit.

5.

Currently, NOx etnissions

from

Boiler

9 are

controlled

by

low NOx

burners,

overtire

air, and a air-duct

selective catalytic

reduction

system.

Fmissions of 502

from

Boiler

9

are controlled

by limiting

the sulfur content of the

fuel

used

for the boilers.

PM emissions

from

Boiler

9 are controlled by an

electrostatic

precipitator (“ESP”) with a flue

gas conditioning

system

Fugitive PM emissions

from various

coal and ash

handling activities are

controlled

through baghouses,

enclosures, covers,

and dust suppressants, as

necessary and appropriate.

Emissions of carbon monoxide

(“(20”) are limited

through

good

combustion practices

in the

boilers.

VOM

emissions from the

gasoline storage tank

are controlled by

the use of a submerged

loading pipe.

6.

he

Agency received the

original

CAAPP permit application

for

the Havana

Station

in about September,

1995, and assigned

Application

No.

95090053.

he

CAAPP permit

application was

timely submitted and updated. and Petitioner requested and was granted an

application shield,

pursuant to Section

39.5(5)(h).

Petitioner

has paid fees as

set

forth at Section

39.5(18) of the Act since

2000

in connection with the CAAPP permit for the Station.

The

Station’s

state operating permits have continued in full

force and effect

since submittal of the

CAAPP permit application, pursuant to Sections 9.1(f) and 39.5(4)(b) of the Act.

7.

The

Agency issued a draft permit for public review on or about June 4,

2003.

he

Agency subsequently

held

a

hearing on

the

draft permit

in August 2003.

DMG

filed written

comments

with

the Agency regarding the Havana draft permit.’

DMG

has attached

the

appealed

permit to this

Petition

tiowever.

the

draft

and

proposed

permits

and other

documents referred

to

herein

should

be

included

in

the

administrative

record

that

the

Agency will

file.

Other

documents

referred to

in

this

Petition, such

as cases or Hoard decisions, are easily

accessible.

In the

interest

of

economy,

then

DMG

is

not

attaching such

documents to this Petition

-3-

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ELECTRONIC FILING,

RECEIVED,

CLERK’S OFFICE, NOVEMBER

3

2005

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8.

he

Agency issued

a proposed permit

lUr the

I tavana

Station

in

October 2005.

This pennil

was

not technically open

for public

comment,

as

it

had been

sent to

LSI1PA

ldr

its

comment

as required

by ‘title V.

Subsequently,

in

December 2004,

the

Agency

issued

a drali

revised

proposed

permit

and

requested comments of Petitioner and

other

interested

persons.

DM0

again

commented.

‘he

Agency

issued

a

second draft revised

proposed permit

in July

2005

and

allowed the

Petitioner and other

interested persons

10

days

to comment.

At

the

same

time,

the Agency

released its

preliminary Responsi~eness

Summary,

which was a draft of its

response to comments,

and

invited comment

on

that document

as well.

DM0

subni itted

combined

comments

on

this version of the permit

for

I lavana and

for its Ibur other

generating

stations

together, as

well

as on

the preliminary

Responsiveness Summary.

The

Agency

submitted

the revised proposed

permit to

USEPA

for its 45-day

review

on

August

15, 2005.

The

Agency

did

not seek

Ilirther comment

on the permit

from

the Petitioner

or other interested

persons,

and DM0

has

not submitted any

further comments, based

upon the understanding

that

the Agency had every

intention to

issue

the permit

at

the end of

USIiPA’s review period.

9.

The

final permit

was, indeed, issued on

September 29.

2005.~

Although

sonic of

Petitioner’s

comments have been

addressed in

the various iterations of the permit,

it

still contains

terms and conditions

that are

not acceptable

to Petitioner,

including conditions

that

are contrary

to applicable

law and

conditions that first appeared, at

least in their final

detail, in

the August

2005 proposed permit and

upon which Petitioner did

not have the opportunity to comment.

it

is

for these reasons that Petitioner hereby appeals the permit.

his

permit

appeal

is timely

submitted

within

35

days following issuance of the permit.

Petitioner requests that the Board

Sec

tJSEPA/Region

5’s

Permits website

at

C

~j//wfle~~,~gQv/regioa5/air/permits/Uonhne,htm

—1

“CAAPP

permit

Records”

9

“Dynegy Midwest

Generation

Inc.”

for

the

source

located

at

ii

(~hessenLane,

A

ton,

for

the

complete “trail’’ of the

milestone

action dates

for this

permit.

-4-

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ELECTRONIC FILING,

RECEIVED,

CLERK’S

OFFICE,

NOVEMBER 3,

2005

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PCB 2006-071

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review the

permit, remand

it

to the

Agency,

and

order the Agency

to

correct and reissue the

permit, without

further public

proceeding, as

appropriate.

H.

EFFECTIVENESS

OF PERMiT

10.

Pursuant to

Section

10-65(h)

of the

Illinois Administrative

Procedures Act

y’APA’).

5 TLCS

100/10-65,

and

Ihe

holding in

Borg-Warner

Corp.

v.

Mauzy,

427 N.E.

2d

415

(lll.App.Ct.

1981)

(“Borg-Warner”).

the

CAAP1~

permit issued by

the

Agency to the

Station does

not

become effective

until

after a ruling by

the Hoard on the permit

appeal and, in the event of a

remand,

until

the Agency

has issued

the

permit consistent with the

Board’s order.

Section

10-

65(b)

provides that “when a licensee has made

timely and sufficient application

for the

renewal

of a license or a new license with reference to any activity

ol’a continuing nature,

the existing

license shall continue

in

full

force and effect untit the

final agency decision on

the

application

has been made

unless a

later

date

is fixed by order ofa

reviewing court.”

5

ILCS

100/10-65(b).

the

Borg-Warner

court found

that with respect to an appealed environmental

permit, the

“final

agency decision”

is the

final

decision by the Board

in an

appeal, not

the

issuance

of’ the

permit by

the

Agency.

Borg-Warner,

427 N.E.

2d

415 at 422; see

a/so

III?.

Inc.

v.

IL Environmental

Protection

Agency,

1989

WL

137356

(III.

Pollution Control Bd.

1989);

Electric Energy,

Inc.

v.

Ill

Pollution

Control Bd.,

1985

WL 21205

(III.

Pollution Control Bd.

1985).

Therefore, pursuant

to the

APA

as interpreted by

Borg-Warner,

the entire permit

is not

yet

effective and the existing

permits for

the facility continue

in effect.

II.

The

Act provides

at Sections

39.5(4)(b) and

9.1(j) that the

state

operating

permit

continues

in effect until

issuance of the CAAPP permit.

Under

Borg-Warner,

the

CAAPP permit

does

not become effective until

the Board

issues its order

on this appeal and the

Agency

has

reissued the permit.

Therefore, DMG

currently has the necessary

permits

to

operate the Station.

-5-

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ELECTRONIC FILING,

RECEIVED,

CLERK’S OFFICE, NOVEMBER

3,

2005

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In

the

alternative,

to avoid any question

as

to the

limitation

on

the

scope

of the

cllectivcncss

of

the permit

under

the

APA.

DMG requests

that

the

Board exercise

its

discretionary authority at 35

JIl.AdntCode

§

105.304(h)

and stay the entire

permit.

Such

a stay

is necessary

to

protect

DMG

‘s right

to

appeal

and to avoid the

imposition of conditions that

contradict or are

cumulati~

e of the conditions

in the

pre—existing permits

before

it

is

able

to exercise

that right to

appeal.

Further,

compliance

with the myriad

olnew monitoring, inspection,

recordkeeping, and

reporting

conditions

that are

in

the

(.‘AAPP permit will

be extremely costly.

To comply

\VitIl

conditions

that are

inappropriate,

as DM(

alleges

below, would

cause

irreparable

harm to

13MG.

including

the

imposition

of these unnecessary costs and

the

adverse effect

on

DMG’s

right

to

adequate review on

appeal.

DMG

has

no adequate remedy

at

law

other

than this

appeal

to

the

Board.

DM0

is likely

to

succeed

on

the merits

of

its

appeal.

as

the

Agency has

included

conditions that do not

reflect

“applicable requirements.”

as

defined

by

‘l’itle

V, and has exceeded

its

authority

to

impose

permit

conditions

and

has

imposed

permit

conditions that are arbitrary

and

capricious

See

Lone Star Industries,

Inc.

i’.

ILPA,

PUB

03-94 (January 9, 2003);

Nielsen

&

Brainbridge,

L.L.C

v.

IEPA.

PUB

03-98

(February 6,

2003):

,S’aint-Gobain

Containerc,

Inc.

v

IEPA.

PUB

04-47 (November 6, 2003);

Champion Laboratories,

Inc.

v.

IEPA,

PUB

04-65

(January

8,2004);

Noveon,

Inc.

v.

IEPA,

PUB

04-102

(January 22, 2004):

Ethyl Petroleum

Additives.

Inc.,

v.

JEPA,

PUB 04-113

(February

5,2004);

Oasis Industries, Inc~v.

IEPA,

1~CB

04-116

(May 6, 2004).

Moreover,

the

Board has stayed

the entirety of all

the CAAPP

permits

that

have

been appealed.

Additionally see Bridgestone/Firestone

OffRoad

Tire

Company

v.

JEPA,

PCB

02-31

(November

I,

2001);

Midwest Generation,

LLC

—

Collins Generating Station

v.

IEI~A,

PUB

04-108

(January 22. 2004);

Boardof 7’,-ustees ofEastern Illinois

Unive,wi(y

v.

JEI’A,

PUB 04-110

(February

5,

2004).

The

Board should continue to follow this

precedent.

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12.

Finally, a large number of conditions

included

in this CAAPP

permit

are appealed

here.

To allow some

conditions of the

CAAPP permit

to he effective while equivalent conditions

in the old

state operating

permits remain

effective under Section

10-65(b) of the Illinois

APA

would create

an

administrative environment

that would

he, to say the

least, very confusing.

Moreover,

the

Agency’s thilure to provide

a statement of basis,

discussed

below,

renders the

entire permit defective.

Therefore,

DM0 requests that the Board stay the

entire

permit for

these

reasons.

13.

In sum, pursuant to

Section

I0-65(h) of the

APA

and

Borg- Warner,

the entirety

of

the CAAPP

permit does

not become

effective until the completion of the administrative process,

which

occurs when

the Board

has

issued its

final ruling on

the appeal

and the Agency

has acted

on any remand.

(For the

sake of simplicity,

hereafter the

effect

of the APA will

be

referred to as

a

“stay”).

In

the

alternative, DM0 requests that the

Board.

consistent with its

grants of stay

in

other UAAPP permit appeals, because of the pervasiveness of the

conditions appealed

throughout the permit,

to protect DMG’s right to appeal and

in the interests of administrative

efficiency, stay the effectiveness of the entire permit pursuant to

its discretionary authority at 35

Ill.Adtncode

§

105.304(b).

In addition, such a stay will

minimize the risk of unnecessary

litigation concerning the question of a stay and expedite

resolution ofthe underlying substantive

issues.

The state operating permits currently in effect

will continue

in

effect throughout the

pendency of the appeal

and remand.

Therefore, the

Station will remain subject

to the terms

and

conditions of those permits.

As the

CAAPP permit cannot impose new substantive conditions

upon a permittee

(see

discussion below), emissions

limitations are the same

under both

permits.

l’he

environment will

not

be

harmed by a stay of the

CAAPP permit.

Ill.

ISSUES ON APPEAL

(35 III.Adrn.Code

§~

1O5.304(a)(2),

(3),

and

(4))

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I 4.

As

a

prel

i

iii

i nary

matter,

the

C .AAP P

permits

issued to

the

I lavana

Power Station

and 20 of the other coal—fired power plants

in the state

on

the

same date are

very similar

in

content.

The

same language appears

in virtually all of the permits,

though

there are subtle

variations

to

some

conditions

to reflect the elements of uniqLiencss

that

exists at the various

stations.

For example,

not

all

stations have the same

types of emissions units.

Some

units

in the

state

are

subject

to

New

Source

Performance Standards

(“NSPS”). perhaps

New Source

Review

(“NSR”)

or

Prevention

ofSignilicant

Delerioration (“PSD”).

or other

state or

federal

programs,

while others are not.

Applicable

requirements may diflèr because of

geographic

location.

As a

result,

the

appeals of

these

permits

filed

with the Board

will

he

repetitious with elements of

uniqueness

reflecting

the various stations’

circumstances.

Further,

the issues

on appeal

span

the

gamut

of simple

typographical

errors

to extremely

complex

questions of law.

Petitioner’s

presentation

in this appeal

is by

issue

per

unit type,

identifying the

permit conditions

giving rise

to the

appeal

and the

conditions related to

them

that

would

be affected, shotild

the Board grant

Petitioner’s

appeal.

Petitioner

appeals

all conditions

related to

the

conditions

giving rise

to

the

appeal. howevem,

whether or

not

such

related conditions are

expressly

identified

below.

15.

The

Act does

not require a permittee to have participated in

the

public

process;

the

permittee

merely needs to object to

a term

or condition in a

permit

in order to have

standing

to

appeal

the

permit issited

to him.

See

Section 40.2(a)

of the

Act (the applicant may appeal

while

others

need

to

have

participated in the

public

process).

However,

DM0, as will

be

evidenced

by the

administrative record,

has actively

participated

to the extent allowed by

the

Agency in

the development of this permit.

In some instances,

as discussed

in

further detail

below,

the Agency

did

not

provide

DM0

with

a

viable

opportunity to comment, leaving

DM0

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with

appeal

as

its only alternative

as

a

means

of recti lying inappropriate

c

nd it ions.

‘these

issues

are

properly before

the

Board

in this proceeding.

16.

Section 39.5(7)(d)(ii)

of the Act grants the

Agency

limited authority

to “gapfill.’

“Gapuilling”

is the inclusion

in the

permit of periodic

monitoring requirements.

where the

underlying applicable

requirement does

not

include

them.

Section 39.7(7)(d)(ii)

faithfully

reflects 40 (‘FR

§

70.6(a)(iii)(13),

the subject of litigation

in

Appalachian Power

ornpany

V.

EPA,

208

F.3d

1015

(D.C. dr.

2000).

The court

inAppalachian Power

Ihund

that state

authorities

are

precluded

from

including

provisions

in

permits requiring more

frequent

monitoring3

than is required

in the

underlying

applicable requirement unless

the

applicable

requirement

contained

no periodic testing or monitoring, specified

no frequency for the testing

or

moniToring,

or

required only a one-time

test.

Appalachian Power

at

I ()28.

17.

The

Appalachian Power

court also noted

that

“Title

V

does

not

impose

substantive new

requirements”

and that test

methods

and the

frequency

at which they

are

required

“are

surely

‘substantive’

requirements; they

impose duties

and obligations on those who

arc regulated.”

Appalachia,r Power

at

1026-27.

(Quotation

marks

and citations

in

original

omitted.)

Thus, where the permitting authority, here the

Agency,

becomes over-enthusiastic

in

its gapfilling, ills imposing

new

substantive

requirements

contrary

to

Title

V.

18.

The

Agency,

indeed, has

engaged

in gaplilling,

as some of the

Board’s

underlying

regulations

do

not

provide

specifically

forperiodic monitoring.

C.f,

35

llt.Adm.Code

212.Subpart

F.

However, the

Agency

has also engaged in over-enthusiastic gaplilling in some

instances,

as

discussed

in detail

below.

These

actions

are

arbitrary

and

capricious

and are an

unlawful

assumption

of regulatory authority not

granted

by

Section

39.5

of the Act.

Momeover,

Note

that

testing maybe

a

type of monitoring.

See

Section 39.5(7)(d)(ii) ofthe

Act.

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contrary

to

ppalach/an Pu weT,

the’:, b~their nature.

unlawiul ly constitute

the

i in posit ion

oI

new substantive requirements.

Where

Petitioner identities inappropriate

gaptilling

as

the

basis

for its objection to

a term

or

condition of

the

perni it, Petitioner

requests

that

the Hoard assume

this preceding

discussion of gapliling

as part ol’that discussion of the

specific term

or condition.

19.

In

a number of instances specifically

identified and discussed

below,

the

Agency

has

fhiled

to provide required

citations

to

the applicable

requirement.

“Applicable

requirements”

arc those

substantive

requirements

that have

been promulgated or approved

by

USEPA pursuant

to

the

Clean Air Act which directly

impose requirements upon

a source,

including those

requirements set

Iorth

in the

statute or regulations that

are

part of the Illinois

S P.

Section

39.5(l).

General procedural-type requirements

or authorizations are

not substantive Thpplicable

requirements” and

are

not sufficient

basis

for a substantive term

or condition

in the permit.

20.

The Agency

has

cited generally to

Sections

395(7)(a).

(h),

(e)

and (f) of the

Act

orb

Section 4(h) of the

Act, hut it

has

not cited

to

the substantive

applicable requirement

that

serves

as the

basis

for the

contested

condition

in the

permit.

Only applicable requirements may

he

included in the permit,4 and

the

Agency is required by ~l’it1e

V

to

identi&

its basis for

inclusion of a permit condition.

(Section

39.5(7)(n)).

If the

Agency cannot cite

to the

applicable

requirement

and

the

condition

is not

proper

gaplilling,

the

condition

cannot

he

included in the permit.

The Agency has confused

general data-

and information-gathering

authority with “applicable requirements~

.“

i~hey

are

not the same.

Section 4(h) of the Act cannot

be

converted into an applicable

requirement merely

because

the Agency includes

it

as the basis

for

a condition.

Failure

to cite

the

applicable requirement is

grounds for the

Board to remand

the

term or condition

to

the

Agency.

In

its

discussion

of

gapfi!ling, the

Appalachian

Power

court

notes

that

‘Titte

V’

does

not

impose

substantive

new requirements.”

208

F.Jd at

1026.

(Internal

quotation

marks

and

citations omitted).

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21.

Moreover, the Agency’s

assertion

in

the Responsiveness

Summar\’ that tts

general

statutory

authority

serves

as its authority’ to include conditions

necessary to

“accomplish

the

purposes of the Act” misstates what

is actually

in the Act.

Responsiveness

Summary, p.

15;

see

Section

39.5(7)(n).

Section 39.5(7)(a)

says that

the permit

is to contain conditions

necessary

to

“assure compliance with all

applicable requirements.”

(Emphasis

added.)

For the

Agency to

assume broader authorily than that granted

by the Act is unlawful

and arbitrary and

capricious.

22.

Another general

deficiency of the

CAAPP

permitting process

in Illinois is the

Agency’s refusal

to

develop and

issue

a

formal

statement of basis

tbr the

permi(s conditions.

This

stalement of basis

is to explain the permitting authority’s rationale

for the terms

and

conditions of the permit.

it is to explain why

the Agency made

the decision it did: and

it

is to

provide

the

permittee the opportunity

to challenge

the Agency’s rationale during the

permit

development process or comment period.

Title V requires the

permitting authority to provide

such

a statement of basis.

(Section

~9.5(~)O) of the Act.)

The

Agency’s after-the-fact

conglomeration of the very short

project summary produced at public notice,

the permit, and

the

Responsiveness

Sutnmary

are just

not sufficient.

When

the permittee

and the public

are

questioning rationale in comments, it is evident that the Agency’s view of a statement of basis

is

not sufficient.

Further,

the Responsiveness Summary

is

prepared

after the fact; it is

not provided

during permit development.

Therefore, it

cannot

serve

as

the

statement of basis.

The

lack

of a

viable

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

rationale and

the opportunity to comment thereon, makes the entire

permit defective

and

is, in

and of itself,

a basis for appeal

and remand of the permit

and stay of the entire

permit.

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A.

Issuance

and

Effective

Dates

(Cover Page)

23.

The Agency

issued the CAAI’P permit

that

is the subject of this appeal

to DM0

on

September

29,

2005.

at about

7:17

p.m.

The Agency notified

DM0

that the permit

had

been

issued

through

eniails

sent

to DM0.

the email indicated

that

the permits

were available

on

USIiPAs wehsite, where

Ilflnois’

permits

are

housed.

however,

that

was not the case.

DM0

was not

able

to locate

the

permits

on

the website that evening.

24.

‘fhe

issuance date of the

permit becomes

important because

that is also the date

that starts the

clock

for

liling

an

appeal

and

the date.

unless the permit

is appealed, by which

certain documents must he suhniittecl to

the

Agency.

IJSITPA’s website

identifies that date

as

September 29,

2005.

If that

date

is

also

the

effective date, many additional

deadlines would be

triggered, including the expiration

date

as well

as the

date by which certain

documents must

he

submitted

to

the Agency.

More criticaL however,

is the

fact that

once the permit becomes

effective,

DM0

would

become obligated to comply with it (subject to the stay of the permit as

discussed herein),

regardless of whether

it had

necessary reeordkeeping systetns

in

place, the

necessary additional control equipment

in place, and so

forth.

It took the Agency over two years

to

issue

the

final

permit.

Over that course of time,

the Agency

issued numerous

versions of the

permit, and

it has changed

considerably.

Therefore, it w-ould he unreasonable to

expect DM0 to

have anticipated

the

final

permit

to

the

degree

necessary for it to

have been

in compliance by

September

29, 2005.

25.

Moreover, publication

of

the permit

on

a website

is

not “official” notification

in

Ellinois.

The Petitioner cannot

be deemed to “have”

the

permit until

the

original,

signed version

of

the

permit has been

delivered.

Neither Illinois’

rules nor the Act

have been amended

to reflect

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electronic delivery of permits., especially

by rcfrence

to

a third party’s website.

Iherelore. until

the

permit is officially delivered to

a permittee. it should not

he deemed

effective.

26.

Prior to the

advent of pervasive

use of computers

and

reliance on

the internet for

communication,

the Agency

sent permits

to sources through the iS.

Postal

Service, jtist

as this

CAAPP permit was

delivered on

October

3,

2005.

Neither the

Act nor the

regulations

specify

when permits

should become effective.

Prior to

the advent of Title V,

however,

sotirces were not

subject to

such numerous and detailed

permit conditions, nor were

they exposed to enforcement

front

so

many sides.

Under Title

V,

not only the Agency through

the

Attorney General.

hut also

USEPA

and

the general public can bring enforcement

suits

for violation of the

least matter in

the

permit.

If

the

issuance date

is the effective date, there is

potential fix tremendous

adverse

consequences to the

permittee with extremely

inequitable effect.

27.

If

the effective date

was

September 29,

2005, that would also create

an

obligation

to perform quarterly monitoring and

to submit quarterly reports,

(ci.

Conditions 7.1.

I 0-2(a))

and

7.2.10-2(a),

7.3.10-2(a),

for the third quarter of 2005.

The third quarter reporting requirements

would cover less than 30 hours of operation.

A

requirement

to

perform quarterly monitoring,

reeordkeeping,

and reporting for

a quarter that consists of less

than 30

hours of operation,

assuming

the

permittee would even have compliance systems

in place

so quickly after

issuance

of

the permit,

is overly burdensome and would not benefit

the environment

in any

manner.

Therefore,

the requirement is arbitrary and capricious.

28.

A

lawful

and more equitable approach, would be for the Agency to

delay the

effective date of a

final pennit after remand

and reissuance for

a period of time reasonably

sufficient to allow sources

to implement any

new compliance systems necessary because

of the

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terms

of

the

permit

At the very

least, the

Agency

should

delay

the

permit effective

date until

the

time allowed

by law for

the source

to appeal

the

permit

has expired.

29.

Consistent with the

APA, the

effective

date of the

permit, contested

herein,

is

stayed,

and DM6

requests

that

the

Board

order the

Agency to establish

an effective

date some

period of time afier the permittee has received the

permit Ibllowing remmwd and reissuance of the

permit, to

allow

the permittee sufficient time to implement

the systems necessary to comply with

all requirements

in this

very complex permit.

B.

Overall Source

Conditions

(Section

5)

(i)

The Perniit

I

inproperly Incorporates

Consent Decree Requirements

30.

On

May 27, 2005, the

United

States

District Court Ibr the

Southern District of

Illinois entered

a Consent Decree in

the niatter of the

United States

of America1 et aN’.

Dvneg~

Midwest Generation.

et al.,

Case No.

99-233-MJR (the

-‘Consent Deeree’).

The CAAPP

Permit

refers to

the

Consent

Decree

as

Attachment 7.

Under Paragraph

158 of the

Consent

Decree,

DM6 is

required

within

ISO days

~after

entry of the

Consent Decree

(by November 23. 2005)

to

amend any applicable ~litIe V

Permit Application,

or to apply

for amendments of its

Title V

permits,

to include

a schedule

for all ~Unit -specific performance, operational, maintenance,

and

control technology requirements established by

Ithel

Consent Decree

“

in Condition

5.4(a),

the Agency purports to

incorporate

such

a schedule for the

Havana Station through “Attachment

6 of this

permit.”

As noted in

Condition

5,4(a),

“Attachment 6” is

referred

to in

the

permit as the

“Schedule.”

Condition

5.4(a) of the permit

requires that DM6 comply with the

“requirements”

of the

Schedule.

Further, under Section

157 of the

Consent Decree,

“any term or limit

established

by

or under this

Consent Decree

shall

be

enforceable under this Consent Decree

regardless of whether

such term

has or will

become

a part of

a Title V

permit

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31.

Although compliance with the

requirements

set

Forth

in the Schedule

is

already

required by

Condition 5.4(a)

and

the

Consent Decree also remains enforceable

by its

terms,

tnany other sections of the

permit also purport

to require compliance with various

requirements

set lbrth on

the

Schedule.

See. e.g1, Conditions 5.4(b),

5.73, 5.7.4,

7,2.6-1,

7.2.6-2(h).

7.2.6-

2(e)(i). 7.2.7(a)(i).

7.2.8(e), 7.2.9-2(b)(v).

and 7.2. 12(b)(ii). The

references to,

and the

characterizations

and purported incorporation of Schedule or Consent Decree requirements in

multiple conditions

results in duplicative

and potentially inconsistent obligations, unauthorized

requirements,

confusion

and

ambiguity.

For instance,

as noted

in more detail

elsewhere in this

Petition.

Condition 7.2.l2(h)(ii) of this permit purports

to implement

particulate

matter CEMS

provisions of the

Consent Decree hut,

in reality,

would if sustained, create

an entirely

new

and

unauthorized obligation.

This defect in Condition 7.2. l2(h)(ii), and

similar defects

in sonic

other

conditions that address or refer to

the

Consent Decree, are separately

addressed later in this

petition.

Those

specific

challenges illustrate

the

many prohlems

caused

by

including

specific

conditions

that refer to

or othei~ise

attempt to incorporate

obligations or provisions

from

the

Schedule or Consent Decree,

and highlight,

in particular, why

those conditions

should

he

deleted

from

the

permit.

Making specific

challenges

to

some conditions is,

however,

not intended

to

imply that

other conditions

do not suffer fi-om

similar defects, and should not be construed as

a

waiver of the request in this

section of the petition

to delete

all conditions that

refer to

the

Schedule

or Consent Decree, with the

exception of Condition

5.4(a).

32.

Given the language of the Consent Decree and nature of its requirements, DM6

does not object to Condition 5.4(a).

Inclusion of additional conditions in the

permit, however,

including Conditions 5.4(b) (including all of its subparts),

5.7.3

(including all of its

subparts),

5.7.4, 7.2.3(a)(iii),

7.2.3(b)(iii),

7.2.3(e)(ii), 7.2.4(b), 7.2.4(c), 7.2.4(e), 7.2.6-I

(including all

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subparts).

7.2.6—2(h). (e).

and RI) (including

all

of their subparts). 7.2.7(a)(i), 7.2.7(a)(hi).

7.2.7(a)(v).

7.2.7(h)(iii)(13). 7.2.8(e), 7.2.9-2(b)(v).

7.2.9-3(

)Oii)

and 7.2.l2(h)(ii), that

purport

to impletnent

or adopt requirements

from

or otherwise characterize or refer

to

the Consent

Decree

or

Schedule, and conditions

that reference or relate to

such conditions is arbitrary and

capricious and unauthorized

by

law (the “Additional

Consent Decree Conditions’).

33,

For Ihese reasons,

Additional

Consent

Decree Conditions,

all

contested herein, are

stayed

in

this proceeding

consistent

with the

APA.

and DM0 requests

that the

Board order the

Agency to delete these conditions and all references to these conditions

from

the

permit.

‘lhis

stay will have no eftCct

on

the

enforceability of the

Consent

Decree

tinder its own

terms.

(ii)

The Permit Incorrectly

Requires Compliance

with

Consent I)ecree Requirements

that Do Not

Accrue within the Term of the Permit.

34.

The

permit

in

various conditions

purports to specifically

impose obligations with

respect to matters

that are not

required under

the Consent

Decree

prior to

the stated expiration

date of the

permit,

September 29, 2010.

Attempting to impose in

this permit

requirements that

do not

accrue until

after

the

termination

date of this permit

is arbitrary and capricious and

unauthorized by law.

For example, Conditions

7.2.6-1(a). (b) and

(c)(ii)(B) address

emission

limitations applicable

after the expiration of the

stated five-year term

of the CAAPP permit.

35.

For these reasons.

conditions

that address requirements under

the

Consent Decree

that arise

after September 29, 2010,

including Condition

7.1.6-1(a), (b)

and (c)(ii)(B), and all

conditions

that

reference or relate to these conditions,

all

contested herein, are stayed consistent

with

the APA, and DM0

requests

that

the

Board order the Agency to delete

these conditions and

all

references to these conditions from

the permit.

This

stay will

have no effect on

the

enforceability of the Consent Decree under

its own

terms.

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(iii)

The Schedule Misconstrues

Some

Consent l)ecree Requirements anti Incorrectly

Requires

Compliance with

(.‘ertaIn

Consent Decree

Requirements that Are

Not

Unit

Specific.

36.

According to Condition 5.4(a). the Schedule

sets

forth ~Unit-Speciflc

Performance, Operational, Maintenance,

and Control

technology Requirements of the Consent

Decree

that Apply to the

Baldwin Station

...“

and,

according to

the

Agency, the

Schedule

is

“included in this permit pursuant to Paragraph

158

of the

Consent Decree

lThc

Schedule,

however, includes requirements that

are

not unit-specific and mischaractcrizes certain

Consent

Decree

requirements.

37.

Contrary

to

5.4(a) and the

Consent Decree,

Paragraphs 57,

58,

59,

60, 61, 62,

73,

74,

83,

87.

89,

91.

92,

94.

95,

96,

98,

99,

119,

125,

157, and

183 of the Schedule

impose

obligations on

the

Station that

are

not unit-specific.

In addition, Paragraphs 91, 92, 94, 95

and

96 of the Schedule attempt

to impose

requirements that

are not cttrrently applicable to

a

Havana

unit and that might

not apply

in the

future.

Paragraph

157 also misconstrues the Consent

Decree

by purporting to make the

Schedule enforceable under

the Consent Decree

.

Furthermore,

Paragraphs 42

and 44 do not accurately recite the language of the Consent Decree, creating

ambiguity

and possibly additional or inconsistent obligations.

Accordingly, these Paragraphs of

the

Schedule are arbitrary

and capricious and unauthorized by

law.

38.

For these

reasons, Paragraphs 57, 58,

59, 60, 61, 62,

73.

74, 83, 87,

89, 91,

92,

94,

95,

96, 98,

99,

119, 125,

157,

and

183

of the

Schedule, all contested herein, are

stayed consistent

with the APA,

and DM0

requests that

the

Board order the Agency to delete

Paragraphs 57,

58,

59,

60,

61,

62,

73,

74,

91,

92,

94, 95,

96,

98,

99,

125,

157, and

183 from the

Schedule and all

references to these Paragraphs from

the

permit, to revise Paragraphs

83,

87 and

119 to identify

the specific

unit(s)

at the Havana Station that the requirement applies to and to correct the

errors

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contained

in Para2raphs

42

and 44

by duplicating

the

Ialiguage

in

the parallel provisions cl

the

(:onsent Decree.

(is)

Recordkeeping of

and

Reporting HAP Emissions

39.

The CAAPP

permit

issued to

the Station requires DM0 to keep records of

emissions of mercury. hydrogen chloride, and hydrogen fluoride

all

HAPs

and

to report those

emissions at Conditions

5.6.1(a)

and (b) (recordkeeping)

and 5.7.2

(reporting).

The Agency has

not

a provided

a proper statutory

or regulatory basis for these requirements other than the general

provisions of Sections 4(h) and 39.5(7)(a),

(h), and

(e) of the

Act.

Citations merely

to

the

general provisions of the Act

do not create

an

“applicable requirement.”

40.

In fact,

there is no applicable requirement

that allows

the Agency

to require this

recordkeeping

and

reporting.

fhere

are no

regulations that limit emissions of flAPs

from

the

Havana Power

Station.

While

USEI’A

has recently promulgated

the Clean Air Mercury Rule

(“CAMR”)

(70 Fed.Reg.

28605

(May

18,

2005)), Illinois has not yet

developed its corresponding

regulations,

The Agency correctly discussed this

issue relative specifically

to mercury in the

Responsiveness Summary

by pointing otit

that it cannot

add

substantive requirements through

a

CAAPP

permit or through its oblique

reference to

the CAMR.

See

Responsiveness Summary

in

the Administrative

Record.

p.

21.

However,

the Agency

was incorrect

in its discussion in the

Responsiveness Summary

by staling

that it can

rely upon Section 4(b) for requiring

recordkeeping and reporting of mercury

emissions through

the CAAPP permit.

Ihe

Agency has

confused its

authority to gather

data pursuant to Section 4(b) and its duty to gapfill to

assure

compliance

with the

permit with the limitation on

its authority under

title

V to include p~jy

“applicable requirements” in

a Title

V

permit.

See

Appalachian Power.

Even by including only

recordkeeping

and

reporting of

HAP

emissions in the permit,

the Agency has exceeded

its

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authority

just

as

seriously

as if it had

included emissions limitations for HAPs in

the

permit.

Section

4(h)

does not provide

the

authority

to

impose

this conditions in

a CAAPP permit.

41.

Further,

the

Agency’s

own regulations. which are part of

the approved program

or

SIP for its Title

V program,

preclude the Agency

from

requiring the recordkeeping and

reporting

of

I

I,Al’ emissions that

it has

included at

Conditions 5.6.1(a) and (h) and

5.7.2.

Ihe Agency’s

Annual Emissions

Reporting rules, 35

llI.Adm.Code Part 254. which Condition

5.7.2 specifically

addresses,

state as follows:

Applicable

Pollutants for Annual

Emissions

Reporting

Each

Annual

Emissions

Report

shall

include

applicable

intormation

for all

regulated

air

pollutants.

as

defined

in

Section

39.5

of

the

Act

415

ILCS

5/39,5,

except

for

the_followj~g

~ants:

b)

A

hazardous

air pollutant

emitted

by

an

emission

unit

that

is

not

subject

to

a

National

Emissions

Standard

fOr

Hazardous

Air

Pollutants

(NESHAP)

or

maximum

achievable

control

technology

(MACF).

For

purposes

of

this

subsection

(b),

emission

units

that

are

not

required

to

control

or

limit

emissions

but

are

required

to

monitor, keep

records,

or

undertake

other

specific

activities

are

considered subject to such regulation or requirement.

42.

35

lll.Adm.Code

§

254.120(b).

(Brackets in original; emphasis

added.)

Power

plants are

not subject to any NESIlAPs or MACT standards.

See

69 Fed.Reg.

15994 (March 29,

2005) (USEPA withdraws its

listing of coal-fired power plants under

Section

112(c) of the Clean

Air Act).

The Agency has not cited any other applicable requirement that provides it with the

authority to require DMG to keep records of and report

HAP emissions.

Therefore, pursuant

to

the provisions of

§

254.120(b)

of the Agency’s regulations, the Agency has no

regulatory basis

for requiring the

reporting of HAPs

emitted

by coal-fired

power plants.

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43.

For these reasons. Conditions

5.6.1

(ii)

and

(h)

/fl

(ala

and

Condition 5.7.2

as

it

relates

to reporting emissions oil lAPs in

the Annual

I’.mnission Report, all contested

herein, are

stayed

consistent with the

APA. and

DM0

requests that

the

Board order

the Agency

to amend

the permit

to delete

such conditions.

(v)

Retention and

Availability

of Records

44.

Conditions

5.6.2(b)

and (c) switch the

burden

of

copying

records the

Agency

requests

from

the Agency, as

stated in

Condition 5.6.2(a), to the

pennittee.

While DM0

generally

does

not

object

to

providing

the

Agency

records

reasonably

requested and

is

reassured

h~the

Agency’s statement

in

the

Responsiveness

Summary

that its

“on-site

inspection of records

and written or verbal requests

for copies

of

records will

generally

occur

at reasonable

times

and

he

reasonable

in

nature and

scope” (Responsiveness

Summary.

p.

18)

(emphasis

added), DM0

may not be

able

to

print

and

provide

data

within

the span ofan

inspector’s visit

where the

records are

electronic and

include vast amounts of data.

Moreover, most of the electronic

records

are

already

available

to

the

Agency

through its own

or

USEPA’s

databases,

and where

this is

the

case, DM0

should

not he required to again

provide

the data

absent

its

loss for some

unforeseen reason,

and certainly should

not

to

have to

print

out

the

information.

Further, DMG

is

trotibled

by

the qualifier

generally

that

the

Agency included

in

its

statement.

It

implies that

the

Agency

may

not

always choose

reasonable

times, nature, and

scope of

these requests.

45.

For these reasons,

Conditions

5.6.2(h)

and

(e), all contested herein,

are

stayed

consistent

with the APA,

and DM0

requests

that

the Board

order

the Agency

to amend them in

a

manner

to correct the

deficiencies

outlined above.

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(vi)

I)uplicating Reporting

46.

Various provisions of the permit

impose obligations

to submit information to

the

Agency

that DM0

already submits electronically

to governtnent

agencies

pursuant

to

certain

federal

and

state requirements.

Information

submitted

electronically to the

USEPA, lbr instance,

is

generally available to the Agency through USEPA’s electronic databases.

‘the requirement

to

submit information to

the Agency that

is already available

to the Agency electronically results

in

duplicative obligations

that are burdensome

and serve

no apparent purpose.

Therefore,

the

requirement

is arbitrary and capricious.

For these reasons, all conditions

that impose obligations

upon DM0

to submit information

to the Agency

that is available

to

the Agency without such

submissions,

are stayed consistent

with the

A1’A,

and DM0

requests

that such

conditions

be

deleted

from the

permit.

(vii)

Submission of Blank, Record

Forms to

the Agency

47.

DM0

is unsure

as

to

what

the

Agency expects with respect

to

Condition

5.6.2(d).

See

Condition

5.6.2(d).

On

the

one

hand, this

condition

may require submission of the records

that are required by

Conditions 7.1.9, 7.2.9-1, 7.2.9-2, 7.2.9-3, 7.2.9-4, 7.3.9.

7.4.9, 7.5.9, and

7.6.9.

On the other hand, Condition 5.6.2(d) may require

DM0 to submit blank copies of its

records, apparently so

that

the

Agency can check

them

for

form

and type

ofcontent.

If this

latter

interpretation

is correct, there is

no

basis

in law for such a requirement and

it must be deleted.

48.

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

recordkeeping

systems.

Even the most unsophisticated company

has

the right to

develop

and

implement

internal recordkeeping systems and bears

the responsibility

for any insufficiencies

it

makes

in doing

so.

Absent a statutory grant or

the promulgation of reporting formats through

rulemaking,

the Agency

has

no

authority

to

oversee

the development oirecordkeeping or

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repornng

fbrmats,

he

Agency

has the authority

to require that

cenain inturination

he

reported

but

cites to

no authority,

because there

is none,

to

support this condition.

49.

Nor

does

the Agency

provide a purpose

br this condition

--

which serves as

an

excellent example

of why a detailed statement-oi~hasisdocument should accompany

the

CAAPP

permits,

including the

drafts. as required by

litle

V.

One can

merely

assume that the

Agency’s

purpose for this condition

is to review records that

permittees plan to

keep

in support of the

various reeordkeeping requirements

in the permit

in order to

assure that they

are adequate.

1-lowever.

there is no

regulatory

or statutory basis

for the Agency

to do

this, and

it

has cited none.

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

is to determine

the adequacy of

recordkeeping,

then withoul

inherent knowledge

of all

of the

details

of any given operation,

it

will

he difficult

for

the

Agency

to determine the adequacy

of reeordkeeping for the

facility

through

an off-site

review.

If the Agency

finds records that are

submitted

during the

prescribed

reporting periods

inadequate,

the Agency

has

a

remedy

available to

it through

the

law.

It can

enforce against

the company.

That

is

the risk

that

the

company hears.

50.

Further,

if the company

is concerned with the adequacy of its

planned

recordkeeping. it can ask

the Agency to provide it some

counsel,

Providing such counsel or

assistance

is a statutory

function of the

Agency.

Even then, however, the Agency will

qualify

its

assistance

in order to

attempt

to avoid

reliance on

the part of the permittee should

there

he

an

enforcement action brought.

An interpretation of this

condition could

be that by providing

blank

recordkeeping forms to

the Agency,

absent

a communication

from the Agency that

they are

inadequate, enforcement

against the permittee for inadequate recordkeeping is barred,

so long as

the

forms

are

filled out, because they are covered by

the permit shield.

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51.

Additionally,

the

.&gency

has violated

DMU’s due process rights under the

Constitution

by requiring submission of these

documents before

DM0

had

the opportunity

to

exercise

its right to

appeal the condition,

as granted

by the Act at Section

40.2.

The Act allows

perinittees

35

days

in which to appeal conditions of the

permit

to

which

it objects.

the Ageneys

requirement

at Condition

5.6.2(d) that

DM0

submit blank forms

within

30 days of issuance of

the permit

significantly undermines DM0’s right

to

appeal

—

and

the

effectiveness of that right

—

or

forces DM0

to violate

the

terms and conditions of the

permit

to

fully preserve

its

rights.

Although the condition

is

stayed, because the appeal

may not

be

filed until

35

days

alier

issuance, there could

at least

he

a question

as

to whether

DM0 was in violation

from the

time

the

report was due

until

the appeal

was

flied.

DM0 submits that

the

stay relates back

to

the date of

issuance.

Nevertheless,

ii

is improper to even create this uncertainty.

‘his

denies

DM0 due

process and

so is unconstitutional, unlawful,

and arbitrary

and

capricious.

52.

For

these

reasons, Condition 5.6.2(d), contested

herein, is stayed consistent with

the APA, and

DM0 requests

that the

Board

order the Agency to

delete it

from

the

permit.

In the

alternative,

DM0

requests that the

Board interpret this condition such that ifthe Agency

foils to

communicate

any inadequacies it

finds in blank recordkeeping forms submitted to it,

enforcement

against

DM0

hr

inadequate records

is barred, so

long as those records were

completed,

as part of the permit shield.

(viii)

Reporting Concerning Certain

Requirement of the Consent Decree

53.

Conditions 5.7.3

and 5.7.4 purport to characterize

and impose reporting

requirements

associated with the

Consent Decree.

I’hese conditions impose

requirements that

are not required

by the

Consent Decree or any other

applicable requirement,

and the presence of

these conditions

in

addition

to the

related provisions of

the

Schedule

and

Consent Decree creates

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ambiguity

and unnecessary

duplication

of requirements.

For the reasons

stated earlier,

the

Schedule

and

Consent

Decree requirements

are separately enforceable.

Conditions

5.7.3

and

5.7.4 are arbitrary

and capricious

and unauthorized

by

law.

For

these

reasons, Conditions 5.7.3

and

5.7.4. contested herein, are sta~ed

consistent with

the

APA,

and DM0

requests that

the

Hoard order

the Agency

to delete

these conditions.

C.

Nox

SIP

Call

(Section

6.1)

54.

Condition

6.1 .4(a) says,

‘Beginning

in

2004, by November

30 of each

yea

While

this

is

a true statement. /.e.,

the

NOx

trading

program

in

Illinois commenced

in 2004,

it is

inappropriate

for the Agency

to

include

in the

permit

a

condition with

a retroactive cftect.

fly

including

this

past (late

in

an enforceable permit condition.

the Agency

has

exposed

DM0

to

potential

enforcement

under

this permit

for acts

or omissions

that occurred

prior to

the

effectiveness

of this permit.

It

is

unlawful for thc Agency

to reqture

retroactive compliance

with

past

requirements

in

a new peniih

condition.

Lake

/?nviL,

Inc.

v,

The

State

oil//inc/s.

No.

98-

CC-S 179,

2001

WL

34677731,

at

~8

(111.

Ct.

Cl.

May

29.

2001) (stating “retroactive

applications

are disfavored in the

law.

and

are not

ordinarily allowed

in the absence of language

explicitly so

providing.

I’he authoring agency of administrative regulations

is no

less subject to

these settled

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

This language

should

be

changed to refer to

the

first ozone

season occurring upon

effectiveness of the permit,

which,

for example, if the

permit appeal

is resolved before

September 30, 2006,

would he

the 2006

ozone

season.

Rather

than including

a

specific date, DM0

suggests that the condition

merely

refer to the first ozone season during which

the permit

is effective.

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55.

For these

reasons. Condition

6.

I .4(a). contested

herein,

is

stayed consistent

with

the

APA.

and DM0

requests that the Board order the

Agency to amend

the

language

to avoid

retroactive

compliance

with past requirements.

I).

Boilers

(Sections

7.1.

7.2

arid 7.3)

(i)

Opacity as a Surrogate

for

PM

56.

Historically, power plants and other types of industrial

facilities have

demonstrated

compliance

with emissions

limitations

for PM

through periodic stack tests

and

consistent

application of good operating practices.

Prior to

the

development of the CAAPP

permits,

opacity was

primarily

a qualitative indicator

of

the possible need

for further

investigation of

operating conditions

or even

for

the need ofnew

stack

testing.

Howeyer.

the

Agency

has developed and

imposed in Conditions

7.1

.9(h)(ii)

and

7.2.9-3(a)(iii), and

related

conditions,

a requirement that

treats opacity

as

a quantitative

surrogate for indicating

exceedances of the PM

emissions limitation.

For the

first time in the August 2005

proposed

permit,

the Agency

required Petitioner to

identify

the

opacity

measured

at the

95th

percentile

confidence

interval

of the

measurement of

compliant

PIVI emissions

during the last

and

other

historical

stack tests as the

upper bound

opacity level that

triggers reporting of whether there

~y

have

been

an exceedance of the

PM

limit without

regard for the

realistic potential for

a

PM

exceedance.

These

reporting requirements are

quite

onerous, particularly for the

units that tested

at the lowest

levels of PM

and opacity.

Inclusion of these conditions exceeds

the scope of the

Agency’s

authority

to gapfill

and

so

is arbitrary and

capricious

Conditions 7,1.9(b)(ii) and

7.2.9-

3(a)(iii),

and

related conditions must

be stricken from

the permit.

57.

The provisions requiring the

use of opacity as effectively a surrogate

hr

PM

are

found in Conditions

7.1 .9(b)(ii), 7.1 .9(b)(iii). 7.1.10-1(a) and

its

subparts,

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

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7.1.10-2(d)

and

its subparts, 7.l.lt)-3(a)(ii).

7.1.12(5).

7.2.9-3(a)(iii), 7.2,9-3(a)(iv).

7.2.10-1(a)

and

its

subparts, 7.2.1 0—2(a)(ij(F),

7.2.1 0-2(d) and its subparts,

7.2.1 0-3(a)(ii),

and 7.2.12(h).

58.

~‘4o

one

can

provide

a reliable, exact PM

concentration

level

anywhere

in the

United States today outside of stack

testing.

Obviously,

it is

impossible to continuously

test a

stack to determine a continuous

level ofPM emissions,

and it would he

unreasonable for the

Agency or anyone

else

to

expect

such.

Pursuant

to

the

Consent

Decree

settling USEPA’s

enforcement action

against DM0

concerning the

Baldwin Station, DM0 will test continuous PM

monitoring devices

on

thur of

its

coal-fired

units.

Consent Decree,

Paragraph

91.

The Consent

Decree does

not

require the

use of

these

PM

CFMS

to determine current PM

emissions levels for

compliance

purposes.

In

fact,

the

Consent Decree specifically

prescribes

annual stack testing as

the

method of determining the

concentration of PM

in

Paragraph

42.

PM CEMS

are not

yet

developed

to the

point of refinement

where they should he

considered

credible evidence of PM

emissions

levels; DM0

is not

aware of any case

in

which government

or citizens

suing under

Section 304 of the Clean Air Act

have even relied

upon

PM CEMS

as the

basis ofa

case

for PM

violations.

As

a result,

sources must rely upon the continuity or consistency of conditions that

occurred during

a successful

stack test

to

provide

reliable indications

of PM

emissions

levels.

59,

Historically,

opacity has never been used

as a reliable, quantitative surrogate for

PM emissions levels,

‘l’he

Agency itself acknowledged that opacity is

not

a reliable indicator of

PM concentrations.

(See

Responsiveness Summary,

pp.

15-16, 42-44)?

Increasing opacity may

indicate that PM emissions are

increasing,

but

this is not always

the case nor

is a given opacity

‘Setting

a specific level of opacity that

is deemed equivalent

to the applicable PM

emission

limit

.

.

.

is not

possible

on

a variety of levels

.

.

.

It would

also

be

inevitable

that such

an action would

be flawed

as the

operation

ofa

boiler

nay

change

over

time and

the

coal supply

will also

change,

affecting

the

nature

and

quantity of the ash loading to the ESP.

These

types of changes cannot be

prohibited,

as they are

inherent

in

the

routine operation of coal-fired

power

plants.

However, such

changes could invalidate

any pre-estabLisited.

opacity value.”

Responsiveness Summary,

p.44.

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an

indicator of a given

PM

level

at any

given time, let

alone at di

lerent

times.

Relying on

stack

testing

is

the best and

most appropriate approach to

assuring compliance with PM emissions

limitations.

60.

Despite

the Agency’s

implications

to

the contrary

in the Responsiveness

Summary

(see

Responsiveness Summary. pp.

42-44),

the permit

does make opacity

a

sulTogate

for PM compliance.

When

the Agency requires

even

estimates

of PM levels

or

guesses as to

whether

there is

an

exceedance

of PM

based upon opacity. opacity has been

quantitatively

tied

to

PM

compliance.

Further,

the

opacity

level triggers

reporting that

the

opacity/PM surrogate

level

has

been

exceeded

and

so indicates

that there may

have

been an

exceedance of the

PM

level

regardless of any evidence

to the contrary.

For example, if the

opacity/PM surrogate level ot~

say,

15

is exceeded,

this

must be

reported despite the

fact that

all

fields

in the

electrostatic

precipitator were on and operating,

stack

testing indicated that

the

PM emissions

level

at

the

95th

percentile confidence interval

is 0.04

lb/mmBtuihr.

and the

likelihood that

there

was

an

exceedance of the PM emissions limitation of 0.1

lb/mmBtu/hr is extremely

remote,

There

is no

legitimate purpose of such reporting.

It

does not

assure compliance with the PM limit and

so

inclusion of

these

conditions exceeds

the Agency’s gapfilling authority

and

is, thus, unlawful and

arbitrary and capricious.

Moreover, this unnecessary

reporting requirement is

a new substantive

requirement. according

to

Appalachian Power,

not allowed under Title V.

61.

Contrary to the Agency’s assertion in the Responsiveness Summary

that opacity

provides

a

“robust means to distinguish compliance operation

of

a coal-fired boiler

and

its ESP

from

impaired

operation” (Responsiveness Summary,

p. 43), relying upon opacity

as a surrogate

for

PM emissions levels has the result of penalizing the

best-operating units,

That

is, the units

for which the

stack testing resulted in very low opacity and very low PM emissions levels

are the

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units br which

this

additional rcporttng will

he most

t’reqttently

triggered.

l’or example. if stack

testing resulted in

PM emissions of 0.02

lh/mmRtu and

the opacity during

the test at

the

9501

percentile confidence

interval

was 2.

DMG would

he required

to submit

reports

stating that

the

unit may have

exceeded

the

PM

limit every time opacity exceeds

2.

Clearly, this

condition

will

result

in overly

burdensome

reporting that serves no purpose.

As

such,

it exceeds the

Agency’s authority to gapfill. is

unlawful,

and

is arbitrary

and capricious.

62.

Further, this condition effectively creates a

thlse low

opacity’ limitation.

In

order

to avoid the

implication

that

there may have

been an exceedance

of the PM limit, the

opacity

limit becomes

that

level that

is the

upper bound

at

the

950

percentile

confidence

interval in

the

PM

testing.

By including these conditions,

the Agency

has

created

a new,

substantive

requirement without

having

complied

with proper rulemaking procedures.

This

is unlawful

and

beyond

the scope

of the

Agency’s authority under Section

39.5 of the Act and

litle

V of the

Clean Air Act.

It also violates

the provisions of~lit1eVII of the

Act.

See .4ppalwhian

Power.

63.

Periodic

stack testing according

to paragraphs

89 and

119 of the

Consent Decree

is sufficient

to

assure compliance

svith the applicable

PM

limit and

satisfy

the periodic

monitoring

requirements of Section

39.5(7)(d)(ii)

of the Act according

to

the

Appalachian Power

court.

In

l’act,

“periodic stack

testing”

is the

Agency’s own phrase

in Condition 7.1.7(a)(iii) and

is consistent

with the

findings

of

Appalachian Power.

64.

Moreover, the compliance methods for

PM emissions

limitations

in the NSPS

applicable to Boiler 9

are only through

stack testing, not through opacity as

a surrogate for PM.

65.

Conditions

7.l.l0-2(d)(v)(C)

and (D), and

7.2.1O-2(d)(v)(C)

and (D) in particular

are

repetitious of Conditions 7.1.1 0-2(d)(iv)

and

7.2.1 0-2(d)(iv) respectively.

Both require

descriptions

of the same incident and prognostications

as to

how

the

incidents

can be prevented

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in

the

future.

l’o

the extent either condition

is appropriate. Conditions

7.1

.

I

0—2(d) iv)

and

7.2,I0-2(d)(iv).

are

sufficient to address

the Agency’s

concern, although

DMC also objects

to

Conditions

7.1.1 0-2(d)(iv)

and

7.2.1 0-2(d)(iv) to the extent that it

requires reporting related to

the

opacity surrogate.

66.

In conjunction with its attempt to relate opacity to PM, the

Agency requires

in

Conditions

7.1.1 0-2(d)(v)(A) and

(B) and 7.2.1 0-(d)(v)(A)

detailed information

regarding

recurring and new causes of opacity exceedances

in

a calendar

quarter.

The

requirements

are

overly

burdensome

and the

Agency

lacks authority

to impose such requirements.

67.

As with

Condition

5.6.2(d) discussed above.

Condition

7.1 .9-3(a)(iii) denies

DMG

due process.

Conditions

7.1 .9(b)(ii)

and 7.2.9-3(a)(

ii) requires

that the

“rjecords

that

identify

the

upper bound

of the

95°/bconfidence

interval

(using

a

normal

distribution

and

I

minute

averages)

for

opacity

measurements

considering

an

hour

of

operation.

within

which

compliance

with

the

PM

limit

is

assured,

with

supporting

explanation

and

documentation.

.

.

.

shall

be

submitted

to

the

Illinois

WA

in

accordance with

Condition

5.6.2(d).”

68.

Obviously,

if Condition

5.6.2(d)

denies DM0

due

process,

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

and

7.2.9-3(a)(iii) do

as

well

for the

same

reasons.

DM0

was not granted

the opportunity to

appeal

the

condition

before it was

required to submit

to

the Agency information that

DM0

believes is

not useful

or reliable.

DMG

is particularly loathe

to provide the

Agency with this

information

because

it

believes that the

information

will be misconstrued and misused.

69.

Finally, Conditions

7.1 ,10-2(dXvi) and 7.2.lO-2(d)(vi) requires

DM0

to submit

a

glossary of “common technical terms used

by

the

Permittee” as part of

its reporting of

opacity/PM exeeedanee

events.

If

the

terms are “common,” they do not require

definition,

Moreover,

this requirement does

not appear anywhere

else in

the permit.

If

“common technical

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terms’’

do

not

require

clcfinitmon in other contexts

at this

permit. then

surely

they do

not

require

definition in this context.

‘his

requirement should

he deleted from

the permit.

70,

For these

reasons, the conditions

contested

in this section, including Conditions

7.1 .9(h)(ii), 7.l.9(

Xiii),

7.1.10—1(a),

7.l.I0—2(a)(iXF).

7.1.10—2(d), 7.I.lft-2(d)(vi).

7.1.10—

3(a)(ii),

7.

1

.

12(b),

7.2.9—3(a)(

ii),

7.2.9—3(aftiv),

7.2.

I

0—1 (a), 7.2.

I 0—2(a)(i)(E), 7.2.

I 0—2(d),

7.2. l0-2(d)(v); 7,2.1 0-2(d)(v)(A),

7.2.

I0-2(d)(v)(13),

7.2.10-2(d)(vXC),

7.2.10-2(d)(v)(D),

7.2.

l0-2(d)(vi),

7.2.10-3(a)(ii). arid

7.2.12(b),

and any other related conditions, are

stayed

consistent

with the APA.

and DM0

requests

that

the Board order the Agency to delete

these

conditions,

(ii)

Reporting the Magnitude of PM Emissions

71.

The .Agency requires

DM0

to determine

and report

the magnitude of PM

emissions during

startup and operation during

malfunction and breakdown.

See

Conditions

7.1 .9(e)(i), 7.1 .9(c)(ii)(c)(3).

7.I.9(l)(ii)(F)(3),

7.1. I0-2(d)(iv)(A)(3) 7.2.9-4(a)(i),

7.2.9—

4(a)(ii)(C)(5),

7.2.9—4(b)(ii)(I )(3),

7.1.1

0-2(

)Ov,1(A)(3).

7.3.9(d)(i), 7.3.9(d)(ii)(D)(3),

7.3.9(e)(i), 7.3.9(e)(ii)(D)(3).

Compliance with

these

conditions is

not possible and, therefore,

the

inclusion

of these conditions in the permit

is arbitrary

and capricious.

DM0 does not have

a

means

for accurately measuring the magnitude of

PM

emissions at any time other than

during

stack testing

-

not even

using the opacity

surrogate.

‘l’here is not

a certified, credible, reliable

alternative to stack

testing

to measure

PM emissions,

Although a PM CEMS may be installed

at

the Station under the

Consent Decree, any such CEMS has not

been certified (and might

not

be

despite DMO’s good

faith efforts) and thus

the permit should not require

or depend on the use of

such

a CEMS to measure

PM

emissions.

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72.

Additionally’, Conditions 7,1

.1

0—2(d)(

iv)(/)( 5)

and

7.2.

1

0—2(d)(iv)(A

)(5)

recluire

DM0

to identify “the

means

by which

the exceedance of

the

PM

emissions

limit

was

indicated

or identified, in

addition to continuous monitoring.“‘I’his

inaccurately

implies

that a

PM

CEMS is installed

and

operating

at Havana or that the

installation and

operation of a I’M

CFMS

at a

havana unit

will occur.

A I’M

CEMS may not

be

installed at Havana.

Even if a PM

CEMS

is installed

at

a

-havana

unit, any

such CEMS is not

currently

an

authorized or required

basis

to

determine compliance,

as described

more fully elsewhere

in this petition.

DM0

believes

that this might also

be construed to

mean that it

must

provide inlbrmation

relative to

some

means,

such

as opacity

..-

which,

as discussed in detail above, DM0

believes is an inappropriate

and

inaccurate basis

for

determining whether there

are

exceedances of the PM limit,

let alone the

magnitude of any such exceedance

that

DM0

relied

upon

to determine

any exceedance of the

PM

limit.

Besides stack testing or

perhaps total

shutdown ol’the

ESP,

there

are none.

This is a

nonsensical requirement.

73.

For

these reasons. Conditions

7.1 .9(e)(i), 7.1 .9(e)(ii)(c)(3), 7.1 .9ffl(ii)(E)(3).

7.1.10-2(d)(iv), specifically 7.l.lO-2(d)(iv)(A)(3)

and (A)(5), 7.2.9-4(

)(i),

7.2.9-4(a)(ii)(C)(5),

7.2.9-4(b)(ii)(E)(3),

7.2.1 0-2(d)(iv),

speeifically,7,2.

10-2(d)(iv)

(A)(3) and (A)(5). 7.3.9(d)(i),

7.3.9(d)(ii)(D)(3),

7.3.9(e)(i). 7.3.9(e)(ii)(D)(3),

all contested herein,

are

stayed consistent

with

the

APA, and DM0

requests

that

the

Board order the Agency to delete these conditions from the

permit.

(iii)

PM and

CO

Testing (Conditions

7.1,7 and

7.2.7)

74.

As noted in

Conditions 7.1.7(a)(i) and 7.2.7(a)(i), the Consent Decree (and related

Schedule) impose annual

and other periodic PM stack testing requirements.

See

Schedule,

Paragraphs

89

and

119.

Because

the

Schedule imposes annual

(subject to frequency reduction

if

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certain conditions

are

sat

i

stied) and

other

period

ie

PNI

si tick

testinu requirements.

and

compliance

with the

Schedule

is

mandated

by

Condition

5.4(a), as discussed above. there

is no

need

to

impose

alternative or

additional

PM

stack testing requirements

in Conditions

7.

I .7(a)

and

7.2.7(a).

l’he

stack

testing required

by the

Consent Decree

is

more

than sufficient

to

satisfy any

applicable monitoring requirement,

and

any additional,

alternative or

inconsistent

stack test

requirement

is unauthorized

by

law

and arbitrary

and capricious.

Further,

as

discussed earlier

in

this petition,

the addition of

Conditions

7.1 .7(a)(i). (ii),

(iii).

(s’),

(vi)

and

(vii),

and 7.2.7(a)(i

),

(ii),

(iii),

(v). (vi)

and (vii) which refer to and characterize requirements set

lbrth

independently

in

the

Schedule, creates ambiguity,

additional

and

duplicative requiretnents

and

inconsistencies.

For these

reasons, Conditions

7. I .7(a)(i),

(ii), (iii),

(v),

(vi)

and 7.2.7(a)(i).

(ii). (iii),

(v),

(vi) and

(vii)

to the extent

the conditions relate to PM testing,

and any related conditions.

are contested

herein and stayed consistent with the APA,

and DMC

requests that

the

Board order the Agency

to delete

these Conditions and any other conditions that relate to orreference

the

PM

testing set

forth

in

these

conditions.

75.

In addition, Conditions

7.I.7(a)(vi)(A) and 7.2.7(a)(vi)(A) provide that

il’the

‘standard

fuel” is

less

than 97

of the

fuel

supply

in

a

quarter, additional testing

is required.

Conditions 7.l.7(a)(vi)(13) and 7.2.7(a)(vi)(B) provides that “such measurements” (presumably

those tests required

by

Conditions

7.1 .7(a)(vi)(A) and

7.2.7(a)(vi)(A)),

shall he made “while

firing the boiler with

at

least

1.25

times the

greatest percentage of other materials in the

calendar

quarter

that triggered

the testing.”

This may not,

however, be

possible, and imposing a condition

that may not

be achievable

technically

and practically

is unauthorized by law and

arbitrary

and

capricious.

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76.

For these

reasons, Coiidith

us 7.

1 .7(a)(vi),

7.1

.

7(a)(vi)(A

) and

(13).

and

7.2.7(a)(vi) and 7.2.7(a)(vi)(A) and

(B), contested herein,

are stayed consistent with the

\PA,

and DM0 requests

that the Board

order the

Agency to revise these conditions

to address

the

deficiencies identified above,

77.

DMG

interprets

the

language in

Conditions

7.1 .7(a)(i)(A)

and

7.2.7(a)(i)(A) to

mean that testing that occurs

after January

1, 2005,

and before

December 31. 2008 for Boilers

I

through

8.

and between January

1, 2005

and

December

31, 2005

for

Boiler 9

satisfies

the

initial

testing requirements

included in the permit for

CO (as

set forth

above, DM0 believes that the

conditions

in

7.x.7

(aXi),

(ii),

(iii),

(v) and (vi) relating

to PM should he stricken).

I

lowever, the

language is

not clear in part because

the

CO testing

timing is tied to the PM stack testing

timing,

which in turn

is

tied to the Consent

Decree.

Even if these CO testing conditions were

appropriately included

in the

permit,

which DM0

does

not

by any

means concede, the language

of Conditions

7.1.7(a)

and

7.2.7(a) should be

revised to

make clear

that

the

initial CO

test will

be

required only

at the time when the initial PM

stack test is

required

under the Consent Decree.

For these reasons,

Conditions

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

and (iv), contested herein,

are

stayed consistent

with the APA, and DMG requests that the

Board order the Agency

to revise

these conditions to

address these deficiencies.

(iv)

Other

PM

Testing Matters

78.

The Agency has included a

requirement

in

the permit

at Conditions

and

7.1 .7(b)(ii),

7.1 .7(b)(iH),

7.2.7(b)(ii) and

(iii) that DM0 perform testing

for PMIO condensibles.6

6

(.ondensib/e

is the

Board’s spelling

in

the regulations

and

in

scientific

publications, thus

our spelling of it

here

despite

the

Agency’s chosen

spelling

in

the

permit

which

is the

preferred

spelling

in the

Webster’s dictionary.

See

35

IIt.Adrn,Code

§

212.1 08.

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First,

tIns

requirement

is

beyond

the scope of the Agency’s authority to include

in a CAAPP

permit,

as

such

testing

is not

an

‘applicable requirement,’

as discussed

in detail

below.

79.

With

respect to the

inclusion of the requirement

for Method

202 testing at

Conditions

7.1

.7(h)(iii)

and

7.2.7(h)dii). the

Agency

has

exceeded

its authority

and

the

requirements

should

he removed

from

the permit.

The inclusion of

Method

202

testing

reqtiirements is inappropriate

because there

is

no

regulatory requirement that

applies

PM 10

limitations

to the Havana Power

Station.

In

response to comments

on this point, the

Agency

stated

in

the

Responsiveness

Summary at page

IS, “‘Ihe requirement for using both Methods

S

and

202

is authorized

by Section

4(h) of the

Environmental

Protection Act.”

DM0 does

not

question

the

Agency’s

authority

to gather information.

Section 4(h) of the Act says,

The

Agency

shall

have

the

duty

to

collect

and

disseminate

such

int’ormation,

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(h).

1-lowever,

this

authority

does

not

make

testing

for

PMI 0

eondensibles

an

“applicable

requirement” under Title

V.

As discussed

above,

an “applicable

requirement” is

one

applicable to

the permittee pursuant

to a

federal regulation

or a SIP.

80.

Further,just because Method 202

is one of USEPA’s

reference methods does

not

make it

an

“applicable requirement”

pursuant

to Title

\T,

as the

Agency suggests in the

Responsiveness

Summary.

The

structure of the Board’s PM regulations establish the applicable

requirements for the

Havana Power Station.

The

Havana Power Station

is subject to certain

federal

NSPS

and state requirements as

to particulate emissions.

It is not and never has been

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located in

a

P

N-i

I U nonatiainment

area,7

‘I

he

Hoard’s

P NI

regulations are

struci tired

soc h

that

particular

PM1O

requirements apply to

identified

sources located

in the

PMIO

nonattainment

areas.8

No

such requirements apply

now or

have ever applied

to

the

1-Iavana

Power

Station.

81.

The

measurement

method

for

PM,

referencing

only Method

5

or derivatives of

Method

5,

is at

35

lI1..Adm.Code

§

212.110.

This section of the

Board’s rules applies to the

1-lavana

Power Station.

The

measurement

method

for PMIU.

on

the

other

hand,

is

found

at

35

lll.Adm.Code

§

2 12.108,

Measurement Methods for

PM-

10 Emissions and Condensiblc PM-lU

Emissions.

This section references

both Methods

S

and

202,

among others.

Not subject to

PM

10

limitations, the Havana Power Station

is

not subject to

§

212.108,

contrary to the

Agency’s

attempt to expand

its applicability

in the

Responsiveness

Summary

by stating,

“Significantly.

the

use of Reference Method

202

is not

limited

by geographic

area

or regulatory

applicability.”

Responsiveness Summary,

p.

18.

l’his

is certainly a true

statement

ifone is

performing

a

test

of eondensibles.

ihowever. this statement

does

not

expand the requirements of

§

212.110

to include PM 10 condensible

testing

when

the

limitations applicable

to the source

pursuant

to 2I2.Subpart

F. are

for only PM, not PM 10.

Therefore, there is no basis for the

Agency to require

in the CAAPP permit,

that the Station

be tested

pursuant to Method 202.

82.

The Agency

even

concedes

in

the Responsiveness

Summary

that Method 202 is

not

an

applicable requirement:

The

inclusion

of this

requirement

in

these

CAAPP

permits, which

relates

to

full

and

complete quantification of

emissions,

does

not

alter

the

test

measurements

that

arc

applicable

for

determining

compliance

with

PM

emissions

standards

and

limitations,

which

generally

do

not

include

condensable

sic

PM

emissions.

In

In fact,

theme

are

no

more

PM

0

nonattainnient

areas

in

the

state.

See

70

Fcd.Reg. 5554!

and

55545

(September

22, 2005),

redesignating

to

attainment

the McCook

and

Lake Caiumnet

nonattainment

areas,

respectively.

Presumably,

these

sources

will

remain

subject to

those

requirements

as part of tllinois’

maintenance

plan.

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additiort,

since

condensable

Is

w

J

PM

emissions

are

not

subject

to

cmiii

ssiUfl

standards

Responsiveness

Summary,

p.

IS.

(Nmpliasis added.)

Further,

the

Agency

says.

“Regulatorily,

only

Ii Iterahlet°1PM

emissions

need

to

be

measured.’

Responsiveness

Summary,

p.

18.

The

A~emtcvattempts

to

usti I\

inclusion of

the

requirement

for

testing

condensibles

by

stating

that

the

data

are

needed

to

“assist

in

condttcting

assessments

of

the

air

quality

impacts

of

power

plants.

including

the

Illinois

EPA’ s

development

of

an

attainment

strategy

For

PM2

.5’S

or

by

stating

thai

“the