ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

3.

2005

*

*

*

*

*

POB 2006-074

*

*

*

*

!3EFORE

TIlE

ILLINOIS

Pi)LLITION

(irs

140!.

130AIfl)

DYNEGY MIDWEST GFNERA1’ION,

INC.

(WOOl)

RI \/ER

POWER

STATION),

Petitioner,

PCI)

________________

)

(Permit Appeal

—

Air)

ILLINOIS

ENVIRONMENtAL

PROTECt’ ION AGENCY’,

NOTICE OF

FILING

Jo:

Pollution

Contro’

Board. /\tln:

Clerk

I)ivision

oI’Legal

Counsel

James ft.

thompson

Center

Illinois

Environmental

Protection

Agency

100

W.

Randolph

l021

North Grand Avenue. Fast

Suite

11-500

P.O.

Box

1 9276

Chicago,

Illinois 60601

Springfield,

Illinois

62794—9276

‘LEASE

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

!)ynegy

Midwest

Generation,

Inc.

(Wood

River

Power

Station) and the

Appearances of

Sheldon

A. Zabel.

Kathleen C.

llassi.S Cephen J.

Bonebrake, Joshua R.

More, and Kavita

M.

Paid.

copies of which are herewith served

upon

you.

Kathleen C.

assi

Dated:

November

3, 2005

Sheldon A. Zahel

Kathleen C. Bassi

Stephen

J.

Bonebrake

Joshua R. More

Kavita M.

Patel

SCHJFF IJARDIN. LIP

6600 Sears Tower

233

South

Wacker Drive

Chicago,

Illinois

60606

312-258-5500

Fax:

312-258-5600

---

ELECTRONIC FILING,

RECEIVED,

CLERK’S OFFICE,

NOVEMBER

3,

2005

*

*

*

*

*

POB 2006-074

*

*

*

*

*

I3ICFORE

‘IDE

II.IJNOIS

POlL,!.

JON

CONTROl. BOARI)

1)YNEGV MIDWEST

GENERATION, INC.

(WOOD RIVER

POWER

S’rATJoN),

)

Petitioner,

)

S.

)

PCB

____________

)

(Permit Appeal

—

Air)

ILLINOIS

ENVIRONMENTAL

PItoTI:crloN

,GF:N(:’,

)

)

Respondent.

APPEARANCE

I

hereby

file

my

appearance in

this proceeding.

on

behalf of D~negyMidwest

Generation, Inc. (Wood

River Power Station).

Sheldon A.

Zahél

Dated:

November 3, 2005

Sheldon A. Zahel

Kathleen C. Bassi

Stephen

J.

Ronebrake

JoshLta

R.

More

Kavita M. Patel

SC! LIFE JIARDIN,

ELF

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

*

*

*

*

*

PCB 2006-074

*

*

*

*

*

Bl1l”ORI’.

.J.flf:

ILl.JNOl~

I’OI.I.L TION

CONTROl.

ROARI)

I)YNEGY NIll)WES’ GJ’NEI(A’I’ION,

INC’.

Petitioner,

PCB

___________

(Permit

Appeal

—

Air)

ILLINOIS

ENVIRONMENTAL

PRO’I’E(:FION AGENCY,

Respondent.

A P P EA RAN CE

I

hereby

file

my appearance

in

this proceeding, on

behalf’ of Dyneg~Midwest

Generation, Inc.

(Wood

River Po~serStation).

Iathleen

C.

Bassi

Dated:

November

3. 2005

Sheldon A. /abel

Kathleen C.

l3assi

Stephen J.

Bonebrake

Joshua

R.

More

Kavita

NI.

Patel

SCHIFF IJARDIN, LIJ~

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

2006-074

*

*

*

*

*

BEFORE TIlE

ILLINOIS PoJ,l.t:l’ION

CON1’ROL BOAltI)

DYNEGY

MIDWEST

GENERATION, INC.

(WOOl)

RIVER

POWER STATION),

)

Petitioner,

V.

)

PCB

____________

(Permit Appeal

—

Air)

ILLINOIS

ENVIRONMENTAL

PROTECTION

AGENCY,

)

Respondent.

)

APPEARANCE

I

hereby

file my

appearance

in this proceeding, on

behalfof Dynegy Midwest

Generation.

Inc.

(Wood

River Power Station).

/

:~‘

/

‘

:4

~i

~

S~epl~wi

J.

Bonebrake

Dated:

November 3,

2005

Sheldon

A.

Zahel

Kathleen

C.

Bassi

Stephen

3.

Bonebrake

Joshua K.

More

Kavita M. Pate

SCHIFF

HARDIN, LLP

6600 Sears Tower

233

South Wacker Drive

Chicago,

Illinois

60606

312-258-5500

Fax:

312-258-5600

---

ELECTRONIC

FILING,

RECEIVED,

CLERK’S

OFFICE,

NOVEMBER

3.

2005

*

*

*

*

*

POB 2006-074

*

*

*

*

*

BEJ’()Rl:

‘FIlE IlLINOIS

POLLUTION (:ONl’ROL BOMB)

DYNEGY

MIIflVES1’ GENERATION,

INC.

(WOOl)

RIVER

PoWER

STATION),

Petitioner,

PCB

____________

)

(Permit Appeal

—

Air)

ILLINOIS ENVIRONMEN’IAL

PROTECTION

AGENCY,

)

Respondent.

)

APPEARANCE

I

hereby

file

rn

appearance in

this proceeding, on

behalf of Dynegy Midwest

Generation,

Inc.

( Wood River Po~~er

Station),

Joshua

IC

More

Dated:

November

3, 2005

Sheldon

A. /abel

Kathleen

C.

Bassi

Stephen

J.

Bonebrake

Joshua R. More

Kavita M. Patel

SCHIFF HARDIN,

LLP

6600 Sears Tower

233

South Waekcr Drive

Chicago,

Illinois

60606

312-258-5500

Fax~312-258-5600

---

ELECTRONIC

FILING,

RECEIVED,

CLERK’S

OFFICE, NOVEMBER

3,

2005

*

*

*

*

*

PCB

2006-074

*

*

*

*

*

111/FORE ‘FIlE

ILLINOIS

POLLI

lION

CONTROL BOARD

DYNEGY MIDWEST GENERATION,

INC.

)

(WOO!)

RIVER

POWER

STATION),

)

Petitioner,

)

PCB

______________________

)

(Permit Appeal

—

ILLINOIS ENVIRONMENTAL

PROI’ECl’ION AGENCY,

3

APPEARANCE

I

hereby

file my appearance

in

this proceeding.

on

behalf of Dynegy Midwest

Generation, Inc.

(Wood

River Power

Station).

___

L~

Kavita Ni. Patel

Dated:

November 3,2005

Sheldon A.

Zabel

Kathleen C.

Bassi

Stephen

J. Bonebrake

Joshua R.

More

Kavita M.

Patel

SCHIFF HARDIN, LLP

6600 Seats Tower

233

South

Waeker Drive

Chicago, Illinois

60606

312-258-5500

Fax:

312-258-5600

---

ELECTRONIC

FILING,

RECEIVED,

CLERKS

OFFICE,

NOVEMBER

3,

2005

*

*

*

*

*

PCB 2006-074

*

*

*

*

*

Iil/I’ORI/’I’ lIE ILliNOIS

POIi.li’ION

CONTROl,

BOAI4I)

InNE0;v

MIDWEST GENERA1’TON, INC.

(WOOl)

Petitioner.

)

PCI)

__________________

(Permit Appeal

—

Air)

ILLINOIS ENVIRONMENTAL

Respondent.

CERTIFICATE

OF SERVICE

I,

the

undersigned,

certify’ that

I have served

thc attached

Appeal of

CAAPP

Permit

of

I)yneg3’

Mid

est Generation, Inc. (Wood River Power Station)

and Appearances

of Sheldon

A.

Zahel.

Kathleen

C.

Bassi,

Stephen

J.

Bonebrake, Joshua

R.

More,

and

Kavita

Ni.

Patel,

by

electronic

delivery

upon

the

following

and by

electronic and first class mail

upon

person:

the

following person:

Pollution Control

Board,

Attn:

Clerk

Division of Legal Counsel

James

IC

‘fhompson

Center

Illinois Environmental

Protection Agency

100W.

Randolph

1021

North

Grand Avenue, East

Suite

11-500

P.0,

Box

19276

Chicago,

Illinois 60601

Springlield,

Illinois

62794-9276

Kathleen

C.

f3assi

Dated:

November

3,

2005

Sheldon A.

Zabel

Kathleen C.

Bassi

Stephen J.

I3onebrake

Joshua R.

More

Kavita

Ni.

Patel

SCFIIFF

HARDIN, LLP

6600

Sears

Tower

233

South

Wacker

Drive

Chicago,

Illinois

60606

312-258-5500

Fax:

312-258-5600

---

ELECTRONIC

FILING,

RECEIVED,

CLERKS

OFFICE,

NOVEMBER

3.

2005

*

*

*

*

*

POB 2006-074

*

*

*

*

*

BEFORE

111/

ILL.INOIS POLLI”IION

CONTROL BOARD

l)YNEGY

MIDWEST (;F:NERATION, INC.

(WOOD RIVER POWER

STATWN)

Petition er,

)

PCI)

____________

(Permit Appeal

—

PRO’l’ECTION AGENCY,

Respondent.

.

)

APPEAL

OF

CAAPP

PE kM

IT

NOW

COMES Petitioner, DYNFGY

MIDWLS’I’ GENERATION, INC.

(WOOl)

RI\/El(

POWFR SIATION) (‘‘Petitioner,’’ or •‘DMG’’).

pursuant to

Section 40.2 ol the

Illinois

linvironmental

Protection

Act (“Act”) (415

ILCS

5,”40.2) and 35

Il.Adm.Code

§

105,300cr

seq..

and requests a hearing bef

re

the

Board

to contest

the

permit issued

lo Petitioner on

Septemher

29, 2005,

under

the

Clean Air Act Permit Program (“CAAPI’”

or

“‘l’itle

\T’)

set forth at Section

39.5 of

the Act

(415

ILCS

5/39.5).

Although this appeal

contests many specific

provisions of the

permit,

these specific

provisions are so

intertwined

with the remaining

provisions that

it would

he impractical

to

implement those

remaining provisions,

Therefore, DMG

appeals the permit as

a whole.

In support of its Petition, Petitioner states as

follows:

I,

BACKGROUND

(35

llI.Adm.Code

§

105.304(a))

1.

On

November

15,

1990, Congress

amended the Clean Air Act (42

u.s.c.

§~

740l-7671q)

and included in

the amendments

at Title

V a requirement

for a national operating

permit

program.

l’he Title

V

program

was to be

implemented by states with approved programs.

Illinois’ Title V

program,

the

CAAPP, was fully and

finally approved

by

the U.S.

Environmental

---

ELECTRONIC

FILING

RECEIVED,

CLERK’S

OFFICE,

NOVEMBER

3,

2005

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PCB 2006-074

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*

Protection

AgL’flc\

(1

Sl,P;\H

out

Deceniher

4,2001

(66

Lcd.Rcu.

72946).

Ihc

lllin’Hs

l~nvironrnentalProtection

Agency

( ‘Agcnc~’’’;has had

the authority

to issue

CAAPI’

pennits

since at least

March

7.

1

905,

\vhen

the state

was

granted

interim approval of its

CAAPP (60

Fcd.Reg.

12478).

Illinois

I

tIe

V

program is set

forth at

Section

39.5

of the

Act,

35

IIl.Adni.Code

201

.Sahpai’t

F. and

35

lIl.Adtn.Codc

Part

270.

2.

‘Ihe

Wood

River

Power Station

(“Wood River’

or the

~Sta1ion”).

Agency

1.1).

No.

I 9020AAE.

is an electric

uencrating station owned and

operated

h

DM0.

The Wood

River

electrical generating

tU) t~

(-1

Ci :s’’)

st ent

online

hetcen

roughly

1948

and

1962.

‘‘he

Wood

River Power

Station

is

located at//

t

Chessen Lane. Alton,

Madison

Count’.

Illinois

62002,

l)M(I

employs

approximately 98

people at

the

Wood

River Power Station.

3.

DM0

operates

two coal-fired

boilers at

Wood River

that

have the capability to

fire

at

various

modes

that

ineltide

the combination

of coal

and/or natural

as

their principal

fuels.

In

addition,

the boilers

ire

natural

gas as auxiliary

fuel during

slartup

and for flame stabilization.

Certain

alternative

fUels may be

utilized as well.

DM0

also operates

three natural

gas and oil

fired boilers

at Wood

River

used generally

during

peak

demand periods and to

heat certain

huldings.

Wood

River

also operates

associated

coal

handling,

coal

processing,

arid ash handling

activities.

Finally, there

is a 500-gallon capacity gasoline

tank located at Wood

River,

to

provide

fuel

for Station vehicles.

4.

Wood River

is a major source

subject to

Title

V.

The FUEls at

Wood

River are

subject to both of Illinois’

NOx reduction programs:

the

“0.25 averaging” program at

35

IlI.Adm.Code

21 7.Suhparts

V and the

“NOx trading program”

or “NOx SIP

call” at

35

Ill.Adm.Code

2! 7.Suhpart

\V.

Wood

River

is

subject to the

federal

Acid

Rain Program

at Title

IV

of the Clean

Air Act and

has been issued

a Phase

11

Acid Rain Permit.

.3-

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ELECTRONIC

FILING,

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CLERK’S

OFFICE, NOVEMBER

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2005

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5.

Ctn-cutl

NOx emissions

irori

Boilers

land

5

are

controlled

H

lou

NOx

homers

and oven

ire

air.

missions

of 502

from

the Boilers

4

and

5

are controlled

by

limiting

the

solbr

content

of

the

fuel used

for the boilers.

PM

emissions

from

Boiler

5

are

controlled

by

an

cleciroslatic

precipitator

(‘‘liSP’’)

with

a

flue gas

conditioning system and

PM

emission.s

from

Boiler

4

arc

controlled

by

an

ESP.

Fugitive

PM

emissions

from

various coal and

ash

handling

activities

are controlled

through haghouses.

enclosures,

covers, and dust suppressants.

as

necessary

and appropriate.

missions

of carbon monoxide

(tO”)

are

limited through

good

combustion

practices

in the

boilers.

VOM emissions

from

the

gasoline

storage tank

arc

controlled

by

the use of a

submerged

loading

pipe.

6.

The

Agency

received

the original

CAAPI~permit application

for the

Wood

River

Station

in about September.

1995. and assigned

Application No.

95090096.

The

CAAPP permit

application

was

timely submitted

and

updated,

and

Petitioner

requested and was

granted an

application

shield,

pursuant

to

Section

39.5(5)(h).

Petitioner has

paid

fees

as set forth at Section

39.5(18) of the Act since

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(t) and

39.5(4)(h) of the

Act.

7.

The

Agency

issued

a draft permit

for public

review

on June 25, 2003.

The

Agency subsequently

held

a hearing on the draft permit

in

August 2003.

DM0

filed written

comments

with the Agency regarding

the Wood River draft permit)

8.

The Agency

issued

a proposed permit

for the Wood

River Station in October,

2003.

This permit

was not technically open for public

comment,

as it had been sent to USEPA

DM0 has attached the

appealed permit

to

this

Petition.

However,

the dralt

and proposed

permits

and other

documents referred

to

herein

should

be included

in the administrative record that the

Agency will

tile.

Other

documents referred

to

in

this Petition,

such as cases or Board decisions, arc easily

accessible.

In

the interest

oF

economy,

then

DM0

is

not attaching such documents to this

Petit ion.

-3-

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ELECTRONIC

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CLERKS

OFFICE. NOVEMBER

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hr

its comment

is

mcc1uimcd

hv

I

itle

V.

Scihsequeill\

.

in

Decettiber 2(04, the

Ageiic\

issued

a

clra Ii revised proposed

penn

it

a

0

reqtiested comment s of Petitioner aid

other interested

persons.

DM0

again commented.

l’he

Agency

issued

a second draft revised proposed

permit

in

July

2005 and

allowed the

Petitioner and other interested

persons

It) days

to comment.

At

the

same

time. the

Agency released

its

prel intinary Responsiveness

S umrnar~

.

which

was

a draft

of

its

response to comments,

and

insited

comment

on

that doe ument

as

well.

I)MG

submitted

com hi nec! comments

on this

x emsion of the

pennit

for

I

Ias

aim

and

tOr

its

four other generating

stations

together.

as well

as on

the prclininrtry Responsiveness

Summary.

The Agency

suhmiued the revised

proposed

permit

to US1-tPA

for its 45-day

review

on August

15, 2005.

The

Agency

did not seek

further comment

on

the permit

from

the Petitioner or other interested

persons,

and DM0

has not

stibmitted

any

further comments,

based upon

the

understanding

that

the

Agency

had every

intention to

issue

the permit

at

the end of IJSLPA’s review

period.

9.

The

final

permit was,

indeed,

issued

on

September

29.

2005.2

Although some of

Petitioner’s

comments

have

been addressed

in the various iterations

of the

permit. it still

contains

terms and conditions

that

arc not acceptable

to Petitioner,

including conditions

that

are contrary

to applicable

law’ and conditions that

first appeared,

at least

in

their

final detail,

in the

August

2005

proposed permit

and upon which

Petitioner did not

have the opportunity to comment.

It

is

for these

reasons that Petitioner hereby

appeals the permit.

This permit

appeal

is timely

submitted within

35

days following issuance of the permit.

Petitioner requests

that

the Board

review the permit, remand

it to the

Agency,

and

order

the

Agency to

correct and reissue the

permit, without further

public

proceeding, as appropriate.

Stc. IJSFPA

Rigon

S

s

Permits

website

at

-

ht,tpj~i~~j

j~p,geo~meemon~’ai pci m its’itont iuchtrn

—

-3

“CAAPP

permit

Records”

3

Dyncgy

Midwest Generation

Inc.”

for

the

source

tocated at ~

I

Chessen Lane,

Alton, for the corriptet~~~~trait”

of Ihe

mitestone action dates

for

this

permit.

-4-

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ELECTRONIC

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II.

I:Frrx’IivI:NEss

01-’ l’FRM

II’

1

0.

Pursuant to

Section

10—65(b) of the

Illinois

Adm inistratise

Procedures

Act

(‘APA’),

5

ILUS

I 00/1

0—65. and the

holding

in

Borg— II’

ruler

Corp.

v.

Aiarizi’.

427 N.E.

2d

41

5

III.App.Ct.

198 1)

(‘Borg—

ft

arncr’).

the

(AAPI

permit

issued

by

the

Agency

to

the

Station

does

not

become effective

until after

a ruling

by

the

Board on

the

permit

appeal

and,

in

the event ot’a

remand, until

the

Agency

has issued

the

permit consistent

with the Board’s

order.

Section

1

0—

65(h) 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

ofa continuing nature,

the existing

license

shall

continue in

full

force and

effect

until the

final

agency

decision

on the application

has

been made unless

a later date

is fixed

by

order of a reviewing court.’

511 .CS

I 00/1 0—65(h).

‘l’he

Jiorg—JJ’arnei-

court

found

that

with

respect

to an appealed

environrncnlal

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

aLw liii’,

Inc.

t’,

IL Environmental

Protection

.1,c,enc),

1989

WI,

137356

(111.

Pollution Control

Rd.

1989):

Electric Energy,

Inc

v

I/i

Pu/lid/on Control Sd.,

1985

WI. 21205(111.

Pollution

Control Rd.

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.

11.

The Act provides

at Sections 39.5(4)(b) arid 9,~(0that

the state opera0ng

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.

In

the alternative,

to avoid

any question

as to

the

limitation on

the

scope of the

effectiveness

of

the permit under the

APA, DM0

requests that

the Board exercise its discretionary

atithority

at

35

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~ 105.31/4(h) and sta~ilte entire

permit.

Such

a stay

isticcessar’

to

protect

l)MG’s right to

appeal

and

to avoid

the imposition of conditions that contradict or are

cumulative of the conditions

in

the

pre—existing permits

betore

it

is able

to exercise that right

to

appeal.

Further, compliance

with

the

myriad

01

lie\V

monitoring.

itispection,

rceordkeeping.

and

reporting

conditions

that

are

in the CA,APP

permit

will

he extremeI~costly.

To comply

with

conditions

that

arc

inappropriate, as

l)MG

alleges

below, would

cause

irreparable

harm

to

1)MG,

including

the

imposition of

these unnecessary’ costs

and the

adverse effect

on

I)MG’s right

to

adequate revie~son

appeal,

DM0

has no

adcLtiate

remedy at law other

than this

appeal

to

the

I3oard.

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

‘title

V. and

has exceeded

its authority

to

impose

permit

conditions and has imposed

permit conditions

that

are

arbitrary

and capricious.

See lone

Star l,ulrisi,’ies,

Inc.

v,

IEJA.

PUB

03—94

(January

9, 2003);

V/c/sen

&

Brainhridç’e,

L,I.C,

t’.

IEPA.

PUB

03-98

(1-chruary

6,

2003); Saint-Gohain Containers,

Inc.

v.

IEPA.

PUB 04-47 (November

6, 2003):

Champion Laboratories,

Inc.

v,

ILJ-’A,

I’CB

04-65

(January

8. 2004);

tvo’i’eon.

Inc.

v

IEP~1.

PUB 04-102

(January

22, 2004);

Ethyl

Petroleum

.4dditives,

Inc..

v.

IEP.4,

PUB 04-1 13

(February

5. 2004);

Oasis Industries,

Inc.

v,

JEPA,

PUB

04-116

(N-lay 6,2004).

Moreover, the

Board has stayed

the entirety of all

the

CAAPP permits

that have been appealed.

Additionally see Bridgestone/Firestone

0//Road

Tire Company

v

IEPA.

PUB

02-31

(November 1,2001);

Midwest Generation,

LLC

Collins

Generating Station

v

IEPA,

PUB 04-108 (January 22, 2004);

Board of Trustees of Eastern

Illinois

University

v.

JEPA.

PCB 04-110 (February

5, 2004).

‘‘he

Board should continue to follow this precedent.

12.

Finally, a

large number of conditions

included

itt

this CAAPP permit

are

appealed

here.

‘l’o allow

some conditions of the CAAPP

permit

tobe

effective while equivalent conditions

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in the

old state operating permits

remain

ellective

uacier Section

I

(1-65(h) of tIre

Illinois

.-\I~,\

would

create

an administrative

environment

that

would

he. to say’ the

east,

very

eonlusing.

Moreover,

the

Agency’s

failure

to provide

a

statement

of basis, discussed below,

renders the

entire permit

defective.

‘l’heretbre.

DM0

requests

that

the

Board stay

the entire

permit

I’or these

reasons.

I

3.

In

sum.

liursilant to

Section

10—65(h)

of

the APi\

and

Borg— Warner.

the entirety

of

the

CAAPP

permit

does

not become cffeeti\ e until the

completion of the administrati~

e process.

which occurs

when

the

Board has

issued

its

final ruling on

the

appeal

and

the Agency

has

acted

on

an~remand.

(For the

sake of simplicity, hereafter

the

eI’fect of the APA

will

he

rc (‘erred

to as

a

“stay”).

In

the

alternative,

DM6

requests

that the

Board, consistent

with its

grants of stay’ in

other

CAAP1~

perntit appeals,

because ofthe pen’asivcness

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

1Il.Adrn.Code

§

I 05.304(b).

In addition, such a stay

will minimize

the risk of unnecessary

litigation concerning the question of a stay

and expedite resolution of the underlying

substantive

issues.

‘the state operating permits

currently in effect

will

continue in effect throughout the

pendeney

of the appeal and remand.

i’herefore, the Station will

remain subject to

the terms

and

conditions of those permits.

As the CAAPP permit cannot impose new substantive conditions

upon a permittee

(see

discussion below), emissions limitations

are the

same under both permits.

The environment will

not

be harmed by

a stay of the CAAPP

permit.

III.

ISSUES ON APPEAL

(35 tII.Adm.Code

§~

105.304(a)(2), (3), and

(4))

14.

As a preliminary matter,

the CAAPP

permits issued to the

Wood

River Power

Station and 20

of the other coal-fired

power plants

in

the state

on

the same

date are very

similar

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iii

content.

I he

sante Iangtia~eappears

in virtwillv

all

of

the perinils. thou

h

there arc

subtle

variations

to some

conditions

to

reflect

the elements of tniiquetiess

that

exists at

the

various

stations.

For

example, not

all stations

have

the same

types

ol’ emissions units.

Sonic

units

in the

state

arc

subject

to New

Source

PerI’ormanee

Sttntdards

(“Nw

SPS’’). perhaps Ne~Source

Review

‘‘NSR”)

or

Prevention of Signi (leant

Deterioration

TSD

).

or other state

or

federal

progrants.

while others

arc

not.

Applicable

requirements

may’

differ because of geographic

location.

As

a

result, the

appeals of these permits

filed

with the

Board

will

be

repetitious

with cements of

tiniqueness

reflecting

the

yariotns

statnons

circumstances,

l”urther. the

isstnes

on appeal

span

the

gamut of simple

typographical errors

to

extrenie!v 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

he affected,

should

the Board grant

Petitioner’s

appeal.

Petitioner appeals all conditions related

to

the conditions

giving rise

to the

appeal. however.

whether

or not

such related

conditions arc expressly

identified

below.

IS.

The Act does not require

a pcrniittee to

have participated

in the public

process;

the

permittee

merely needs to oh~ectto a term

or condition in a permit

in order to have standing

to appeal

the

permit issued

to him.

See

Section

40.2(a) of the Act

(the applicant may appeal

while others

need to

have participated

in

the

public process).

However, DM0,

as will

he

evidenced

by

the administrative

record,

has actively participated

to the extent

allowed

by

the

Agency

in

the development of this permit.

In some

instances,

as discussed

in

further detail

below,

the Agency

did not provide

DM6

with

a

viable opportunity to comment, leaving DM0

with appeal

as

its only alternative

as

a

means of rectifying inappropriate

conditions.

These

issues

are

properly before the

Board in this

proceeding.

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16.

Section

.3~.5K

7t(d

flu)

of the

Act

grants the

Agency

limited

authority

to

uaptill.’

“Gapf’ifling” is the inclusion in

the permit of periodic

monitoring requirements,

where

the

underlying

applicable

requirement does

not include them.

Section 39.7(7)(d)9i)

faithfully

reflects

40

CUR

§

70.6(a)(

fl’~’bfl,the subject of litigation

in

Appalachian Power

Conzpant’

V.

EPA.

208

F.3d

1015

(DC’,

Cir.

2000).

The

court in

Appalachian

Power

found

that

state

attthomities

are precluded

from

including

provisions in permits

requiring more frequent

mom toring’ than

is required

in

the

underlying applicable

requirement

unless

the

applicable

reqturement

contained no

periodic

testing or

monitoring, specified

no

frequency for the

testing or

monitoring, or required

only

a

one—time test.

Appalachian

Power

at

1028.

17.

The

.“lppalaci’ian lancer

court also noed

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.”

Appalachian Power

at

1026-27.

(Quotation marks and citations

in original

omitted.)

Thus, where the

permitting authority, here the

Agency, becomes over-enthusiastic

in

its gapfilling.

it is

imposing new substantive

requirements

contrary to

Title

V.

18.

The

Agency, indeed,

has engaged

in gapfilling,

as some of the Board’s underlying

regulations

do not provide

specifically

for periodic monitoring,

Cf,

35

lll,Adm.Codc

2I2.Subpart

E.

However,

the Agency

has also engaged

in over-enthusiastic

gapfilling in

some

instances,

as discussed

in

detail below.

‘These

actions

are

arbitrary and capricious

and are an

unlawfttl assumption of regulatory

authority

not granted by Section

39.5

of the Act.

Moreover,

contrary to

Appalachian

Power,

they, by their nature, unlawfully constitute the imposition of

new substantive

requirements.

Where

Petitioner identifies inappropriate

gapfihling

as the basis

Note that

testing may be

a type of monitoring.

See

Section

39.5(7)(dhii)

of the

Act.

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fir

its chjcctictt

to

it

term

or

condition

of

lhc permit,

Petttionter

requests

thai

the

!3oard

assuitic

this preceding

discussion

of gaptilling

as part

of

that discussion of the specific

term

or condition.

19.

In

a number of instances

specilieal Iv

identified

and discussed

belos\

.

the

Agency

has

failed

to

provide required

citations

to the applicable requirement.

Applicable reqttirements’

are

those

st.ihstantivc

requirements

that have

been

promulgated

or

approved

by

USILPA pursuant

to

the

Clean Air Act

\\lticIt directly

impose

requirements upon

a

source, including

those

requirements

set

forth in the

statute or regulations

that

are

part

of

the

Illinois

SIP.

Section

39.5(1).

General

procedural-type requircnlents

or

authorizations are not

substanti

e

“applicable

requiremenTs

and are

not sufficient

basis

far

a substantive

term

or condition

in the

permit.

20.

The

Agency

has cited

generally to

Sections 39.5(7)(a),

(h),

(c) and (f) of the

Act

or to 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

.Agcncy is required

by Title

V

to identify

its

basis

far

inclusion ofa

permit condition

(Section

39.5(7)(n)).

Ifthc Agency cannot cite to the applicable

requirement

and the

condition is

not proper gaptilling, the

condition cannot he included

in the

permit.

‘lhe

Agency

has confused

genera

data- and

information-gathering

authority

with

“applicable

requirements.”

Ihey are

not the

same.

Section

4(h) of the Act cannot be converted

irtto 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.

2.

Moreover, the Agency’s assertion

in the Responsiveness

Summary that

its general

statutory authority

serves as its authority

to

include conditions

necessary to “accomplish

the

tn its

discussion

of gapt

fling,

the

Appalachian Power

court

notes

that’Titte

V

does

nnt

impose substantive

new

requirements.”

208

L3d at

026.

(Internal

quotation marks

and

citations omitted.)

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purposes of the Act”

misstates

w

hat

is actually

in

the

Act.

Responsiveness Stiniman.

p.

IS:

sic

Section

39.5(7)(n).

Section

39.5(7)(a)

says that

the permit

is to contain

conditions

necessary to

“assure compliance

~vith all

applicable

requirements.”

(Emphasis

added.)

For

the

Agency

to

assume broader

authority’ than that

granted

by’ the

Act

is

unlaw ful

and

arbitrary and

eapricio us.

22.

Another

gcnieral

deficiency of the CAAPP

permitting

process in Illinois

is the

r\gciicv~s

refusal

to develop rind

issue a formal

statement

of basis

far

the pennit’s conditions.

This statement of basis

is

to explain the

permitting aLithorit’ s rationale

I’or 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

perniit

development process or

comment period.

Title

V reqinres the permitting authority to provide

such a statement of basis.

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

‘line

Agency’s after-the-fact

conglomeration

of the

very short

project summary produced

at public

notice, the

permit, and

the

Responsiveness Summary arc just not

sufficient.

\Vhen

the

permittee and the public

are

questioning rationale in comments, it

is evident that the

Agency’s view of a statement of basis

is

not sufficient.

Further, the

Responsiveness Summary

is prepared after the

fact;

it

is not

provided

during permit development.

Therefore,

it cannot

serve as the

statement of basis.

The

lack of a

viable statement of basis, denying the permittee

notice of the Agency’s decision-making

rationale and the opportunity to comment thereon,

makes

the entire

permit defective and is. in

and of itself, a basis for appeal and remand of the pertnit and stay of the

entire permit.

A.

issuance and Effective

Dates

(Cover

Page)

23.

The Agency

issued the

CAAPP pennit that is the subject of this appeal

to DM6

on Scptenihcr

29,

2005, at about 7:17

p.m.

the Agency

notified DM6

that the permit had been

issued through emails

sent to

DM6.

The

email

indicated that the

permits were

available on

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1:S’l’A’s

wehsire. where

Illinois’

pennits are

heused,

I lowever.

that

svas not the

case.

I)Mt

was

not able to

locate the

permits

on

the

website that

evening.

24.

The

issuance date of the

pcrniit

becomes

important

because that

is also

the

date

that

starts

the clock

for

tiling an appeal

and the date.

unless

the permit

is appealed,

by

which

certain

documents

must he

submitted

to

the

Agency’.

14SF PA’s

wehsite

identities that

date

as

September 29.

2005.

Ifthat

date

is also

the

effective date.

ntanv

additional

deadlines wotild

be

triggered,

including

the

expiration

date as

well as tlte date

by’

schicli

certain

doeunients

mist

be

submitted

to

the

Agency.

More critical,

however,

is the

fact that once

the

permit

becomes

effective,

DM6

would

become

obligated

to comply

with

it (subject

to the stay of

the

pcrnii

1

as

discussed

herein), regardless of whether

it had necessary recordkceping

systems

in place. the

necessary additional

control

equipment

in place.

and so

forth.

Ii took the

Agency

over two years

to

issue

the

final

pernut.

Over that

course

of’ time. the

Agency

issued

nunicrous versions of the

permit, and

it has

changed considerably.

Therefore, it

would

be

unreasonahle

to expect

DM6

to

have anticipated

the

final

perniit to the degree

necessary for

it

tc have

been

in conrplian’ce’by

September 29, 2005.

25.

Moreover,

publication

of the permit

on

a website

is not “official” notification

in

Illinois.

The

Petitioner cannot be

deemed to “have” the

permit

until

the

original, signed

version

of the

pen’nit has been delivered,

Neither Illinois’

rules

nor the Act have

been amended

to reflect

electronic delivery of permits, especially by

reference

to

a third party’s

website.

Therefore,

until

the permit

is officially delivered

to a perinittee,

it should not be

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

14,5,

Postal

Service.just

as this

CA.APP

permit

was delivered

on October

3. 2005.

Neither the Act nor the regulations

specify

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v.hea

permits

should

become effective.

Prior

to

the advent

of

hide

\‘.

however, sources

were

not

subject

to such numerous

and detailed perniit conditions,

nor were

they exposed

to enl’orcement

l’rotui

so

many sides.

tinder

‘I itle V.

not only

the

Agency through

the Attorney General,

hut also

USEPA

and

the

general

public

can bring enforcement suts

for

‘~

iolatioa

of the

least matter

in

the

permit.

Ifzhe issuance date is

the effective date,

there is potential

far

tremendous

adverse

consequences to the

permittee with extrentely inequitable

effect.

27.

If

the effective date waS

September

29, 2005,

that

wottld

also create an

obligation

to perform

quarterly monitoring

and

to

submit quarterly

reports,

(cf.

Condition

7.

I

.

1(1—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 inonilorintt,

recordkecping,

and

reporting for a quarter

that consists

of less

than

30 hours of operation.

assuming the

permittee

would

even

have compliance

systems in

place

so quickly

after issuance of the permit,

is overly

burdensome and

would not benefit the environnient

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

permit after remand and reissuance for a period of time

reasonably

sufficient to allow sources to

implement any new compliance

systems necessary because

of the

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

DMG

requests

that the Board order the Agency

to establish an effective date some

period of time

after the

perniittee has

received the permit

fbllowing remand and reissuanee

of the

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perittit.

to allow

the pcrituttee

~nItieient

time to

implement

tue systems

ueecssary to

eontplv

~~ith

all

requirements

iii

this “cry

complex permit.

13.

overall Source Conditions

(Section

5)

(i)

The

Permit

Improperly

Incorporates

(‘onsent

Decree

Requirements

30.

Ott Ma~27.

2005.

the

initec

States

District

(‘our!

for the

Southern l)istriet of

Illinois entered

a

Consent

Decree

in

the matter

of

tIle

United

States of

America, et

al

.

v.

Dvneev

Midwest

Generation.

et

aT,.

Case No.

99—833—NIl ft

(the

‘‘Consent

Decree’).

The

( ‘AAPP Permit

ret~rs

to

the Consent

Decree

as Attachment

7.

Under Paragraph

158

of the

Consent

Decree.

DM0

is required within

I

80

days

after

entr

of the Consent

I

)ecree

(Nv

November

23.

2005)

to

amend

any

applicable

‘I

tIe

\•‘

Permit

Application,

or

to apply’ for amendments

of

its ‘fitle V

permits,

to include

a

schedule

for all

‘‘U

nit—specific

performance,

operational,

maintenance,

and

control tcchnolog~’

requirements

established

by

Ithe

Consent Decree....”

In Condition

5.4(a).

the

Agency

purports

to

incorporate such

a

schedule

for the

I Ia~’ana

Station through “Attachment

o

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

DM0

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

he

enforceable

under

this

Consent Decree

regardless

of whether

such

term

has or

will

become

a part

of a

Title V permit

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,

many other sections

of the permit

also purport to require

compliance

with various requirements

set

forth

on

the

Schedule.

See,

e.g.. Conditions 5.4(b),

5.7.3,

5.7.4,

7.1.6-h,

7.1.6-2(h),

(e)

and

(d),

7.1 .7(a)(iii),

7.1

,7(a)(v),

7.1.8(e).

7.1

.9—3(a)(iii),

7.1.9-1(1),

7.1

.9-2(a)(i),

7.1.

l0—2(b)(iii).

and

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7,1.1 2(h)(iii.

‘I

he

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. confttsion

and ambiguity.

For

instance,

as noted

in

more detail

elsewhere in this Petition,

Condition

7.1

.

I 2(bKii)

of this permit

ptrrports

to

implement particulate matter GEMS provisions

of the

Consent Decree httt,

in

reality.

would

if stistained,

create

an entireLy

new and unauthorized

obligation.

‘I’his de feet in

Condition

7.1.1

2(h)(ii), and similar defects

in some

other conditions

that

address or refer to the Consent

Decree.

are

separately addressed

later in

this petition.

‘hose

specific

challenges

illustrate

the

many problems

caused

by’

including

specific conditions that refer to or otherwise 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

from

similar defects, and should

not he

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, DM0

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, 7.1 .3(a)(ii), 7.1 .3(b)(ii)(B),

7.l.3(e)(ii),

7.1

.4(b)(ii),

7.1.4(c),

7.1.6-1

(including

all of its

subparts), 7.1.6-2(b), (c),

and (d) (including

all of their subparts),

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

7.1

.7(a)(v), 7.! .7(b)(iii)(B),

7.1.8(e),

7.1.9-2(b)(v),

7.1 .9-3(a)(iii), 7.1 .9-3(c)(iii’)(13), 7.1.10-

2(c)(iv)

and

7.1 .12(b)(ii).

that

purport to implement or adopt requirements

from or otherwise

characterize

or

refer to the Consent Decree

or

Schedule,

and conditions that reference

or relate

to

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such

conditions

is arbitrary

and

capricious

and

unautitot ized

1w

Ia’~

lie

.Additionnl

Consent

Decree

Conditions”).

33,

For

these reasons.

Additional (:~isetitDecree

Conditions,

all contested

herein,

are

stayed

in this proceeding

consistent

with the APA,

and DM6

reclucsts that

the Hoard order

the

Agency

to delete

these conditions

and

all

references to these conditions front

the permit.

This

slav

wil

have no

e fleet on

the enforceability of the

Consent Decree

under its

own terms.

(ii)

‘he

Permit

lncorrectl~Requires

Compliance

with

Consent

l)ccree

Requirements

I hat

1)o Not

Accrue with in

the Term

of the

Permit.

34.

‘I

lie

permit

in various conditions

purports

to specifically

impose obligations

with

respect

to ntattcrs that

are

not reqt( red

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 term i nation

date of this

permit

is arbitrary and capricious

and

unauthorized

by

law.

For example.

Conditions

7.1 .6—1(a),

(h)

amid (c)(ii)(i)

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.

I

.6—1(a),

(h)

amid

(c)(h )(B), and

all

conditions

that reference or relate

to these conditions,

all contested herein, are

stayed consistent

with the

A1~A.and

DM0

requests that

the

Hoard order

the Agency

to delete these

conditions ‘and

all

references

to

these conditions

from

the

permit.

~fhisstay

will

have

no effect on

the

enforceability

of the

Consent

Decree under

its

own terms.

(iii)

The Schedule

Misconstrues Some Consent Decree Requirements and

Incorrectly

Requires Compliance with

Certain Consent Decree Requirements that Are

Specific.

36.

According

to Condition 5.4(a),

the

Schedule

sets

forth

“Unit-Specific

Performance, Operational,

Maintenance, and Control Technology

Requirements of the

Consent

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Decree

hat

Appl\

to the

Haldwin Station

and, according

to

the

Agency.

the Schedule

is

‘‘included

in this permit

pursuant

to Paragraph

156

of

the

Consent Decree

he

Schedule.

however,

includes requirements

that

are

not unit-specific and mischaracterd.es certain Consent

Decree requirements.

37.

Contrary

to

Condition

5.4(a) and the Consent

Decree, Para~raphs57. 58.

59.

60,

61,

62.

73.

74.

83,

67.

89.

91,

92.

94,

95,

96.

98.

99,

119,

125.

157,

and

163

of the

Schedule

impose obligations

on

the

Station that

arc

not unit—specific.

In addition.

Paragraphs

91

.

92.

94,

95, and 96 of

the

Schedule attempt

to

impose requirements

that

are not currently’

~applicable to

a

Wood River

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 DM6

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 identi&

the specific unit(s)

at the Wood River

Station that

the requirement applies

to

and to correct the

errors contained in Paragraphs

42 and 44

by duplicating

the language

in the

parallel provisions of

the Consent Decree.

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ii’’)

Rccordkeeping

ol’ and

Reporting

Fi!\l~Emissions

39.

‘The CAAPP permit

issued

to the

Statioit requires DM0

to

keel) records of

emissions

of mercury, hydrogen chloride.

artd hydrogen

fluoride

—

all

I

lAPs

and to report those

emissions

at Conditions

5.6. 1(a) and

b) (recoidkeeping) and

5.7.2

(reporting).

‘l’he Agency

has

not

a

provided

it proper

statutory

or

regulatory

basis

for these requirements

other than tite

general

pros isions of Sections 4(h)

and 39.5(7)(a),

(5). and te)

~

the

Act.

(,itations

merely to the

general

provisions of the

Act do not

create an

‘applicahle

requircmcrlt.’

40.

Tn

hict,

there

is no

applicable

rcdluirelnent

that

allows

the

Auency

to require

this

recordkceping

and reporting.

i’here

are

no regulations

that

limit emissions

of

I lAPs

from

the

Wood

River Power Station.

While

LSPA

has recently

promulgated

the

(‘lean Air Mercury

Rule

C

CAMR”) (70

Fed.Reg.

28605

(May

18, 2005)),

Illinois has not yet

developed

its

corresponding

regulations.

The Agency

correctly discussed this issue

relative specifically

to

mercury

in the Responsiveness

Summary by pointing out

that

it

cannot add substantive

requirements

through

a CAAPI~permit

or through

its

oblique

reference to the

CAMR.

See

Responsiveness

Summary

in the Administrative

Record,

p.

21.

Flowever,

the

Agency

was

incorrect in its discussion

in the

Responsiveness Summary

by stating that

it can rely upon

Section

4(b) as

a basis

for requiring recordkecping and reporting of mercury emissions

through

the CAAPP

permit.

The Agency

has confused

its

authority to

gather data pursuant to Section

4(b) and its duty to

gapfill to assure compliance

with

the permit with

the

limitation on

its

authority

under Title V to include gj~)y“applicable requirements” in a

‘!‘itle V permit.

See

Appalachian Power.

Even

by

including

only recordkeeping

and reporting of HAP emissions

in

the pertnit,

the Agency

has

exceeded

its

authority just as

seriously as if it had included

emissions

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limitations

for I-lAPs

in the

permit.

Section

‘4mb) does

no!

provide

the anillorit)

to

iiflpose

this

conditions

in a CAA PP

permit.

41.

Further,

the

Agency’s own regulations,

which are

part ol

the approved program

or

SIP

l’or its ‘lithe

V

program, preclude

the

Agency

from

requiring

the recordkecping

and reporting

of’ HAP emissions

that

ii has included

at Conditions

5.6.

1(a)

and

(b) and

5.7.2.

‘Ihe

Aeency’s

Annual

l’missions

Reporting rules,

35

ilI,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

in

formation

for

all

regulated

air

pollutants,

as

defined

in

Section

39.5

of

tile

Act

415

ILCS

5/39.5),

except

for

f~fr~

~tants:

b)

A hazardous

air pollutant

emitted

by

an

emission

unit

that

is

not

subject

to

a

National

Emissions

Standard

for

Flazardous

Air

Pollutants

(NESHAI~)

or

maximum

achievable

control

technology

(MACT).

For

purposes

of

this

subsection

tb),

emission

units

that

are

not

required

to

control

or

limit

emissions

hut

arc

required to

monitor.

keep

records,

or

undertake

other

specific

activities

are

considered subject

to such regulation or requirement.

35

1ll.Adm.Codc

§

254.120(b).

(Brackets

in

original; emphasis added.)

Power plants are not

subject to any NESI-IAPs

or MACI’ standards,

See

69

Fed.Reg.

15994

(March 29, 2005)

(IJSEPA withdraws

its listing of coal-fired power plants undcr Section

112(e) of the

Clean Air

Act).

The Agency has not

cited

any other applicable requirement

that provides it

with the

authority to require DMG to keep

records of and report

1-lAP emissions.

Therefore,

pursuant to

the provisions of~254.120(b) of the Agency’s

regulations, the

Agency has no regulatory

basis

for requiring the reporting ofHAPs emitted

by coal-fired power plants.

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12,

For these reasons.

Conditions

5.6.

ta) and (hi

in

lob

and

(‘ondmtioii

5.7,2

as

it

relates

to reporting emissions

of’ NAPs

in

the Annual

Emission Report,

all

contested herein. are

stayed

consistent with the APA,

and DM6 requests

that the

Board order

the Agency

to

amend

the

permit

to delete such

conditions,

(v)

Retention and Availability

of Records

43.

Conditions

5,6,2(b)

and

(c

I

switch

the

burden

of

copying records the

.Agermcv

rectuests

from the

Agency,

as stated

in Condition

5.6,2(a).

to the

perm ittee.

WhiTe

DM6

generall~’

does

not

objeci

to providing the

Agency

records

reasonably

requested and

is reassured

by

the

Agency’s

statement

in

the Responsiveness Summary

that

its’

on-site

inspection

of records

and

written

or

verbal requests

for copies ol’records

will generally occur at reasonable times

and

he reasonable

in

nature

and

scope’’

(ResponsE’

cmiess

Summary.

p.

1 8) (emphasis

added),

DM6

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~sdatabases,

and where

this is

the case. DM0 should

not

be

required to again provide the

data absent

its

loss

for some

unforeseen

reason, and certainly should

not

to

have to print out

the

information,

Further,

DM0

is

troubled by

the qualifier

generally

that the Agency

included

in

its statement,

It implies that the

Agency may not always choose reasonable

times,

nature, and scope of

these

requests.

44.

For these reasons, Conditions

5.6.2(b)

and (c), all contested

herein, are stayed

consistent with the APA, and DM6

requests that the

Board order the

Agency to amend them

in a

manner to correct the deficiencies

outlined above.

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(si)

1)u plicat he

Reporting

45.

Various provisions of the permit impose obligations to submit inlorniatiorl

to the

Agency

that DM0 already submits

electronically to

government agencies pursuant to certain

federal

and

state requirements.

Information

suhnlitted

electronically to

the

~.i

SI/PA, for instance,

is generally’ available to the

Agency through

Ii

SI

PA’s

electronic databases.

Ihe

requirement to

submit information to the

Agenc~’that is

already-

a~-

ailable

to the

Agency’ electronically

results

in

duplicative obligations

that are

burdensome and serve

no apparent

purpose.

therefore,

the

requirement is

arbitrary andeapricious.

l”or these

reasons, all conditions that

impose obligations

upon DM6 to submit information to the

Agency that is available

to the Agency

~s.

ithoul

such

submissions, are

stayed consistent

with the

APA. and DM0 requests that

such conditions

he

deleted

from the permit.

(vii)

Submission

of Blank, Record Forms to

the Agency

46.

DM6

is

unsure as to what the

Agency expects with respect

to Condition

5.6.2(d).

See

C’ondition

5.6.2(d).

On

the one hand, this condition

may require submission of’the records

that are

required by

Conditions 7.1.9-).

7.1.9-2, 7.1.9-3, 7.1.9-4, 7.2.9,

7.3.9, 7.4.9.

7.5.9, and

7,6.9.

On

the other hand, Condition 5,6.2(d) may require DM6

to submit blank copies of its

records, apparently

so

that the Agency can

cheek them

for form

and type of content.

If this latter

interpretation

is correct,

there is no basis

in law for such a requirement and it must he deleted.

47.

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 reeordkeeping systems and bears

the responsibility for

any insufficieneies

it

macs

in doing

so.

Absent a statutomy

grant or

the promulgation of reporting formats through

rulemaking, the

Agency has no authority to oversee the

development of recordkeeping or

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reportinu

formats.

‘I’Ile Ao’encv

has

the authority

to

require that

certain

information

he reported

but cites

to

no authority,

because

there is

none, to support

this condition.

48.

Nor does

the

Agency

provide a purpose

for this condition

—

which serves as an

excellent

example of why

a

detailed statenient—oihasis

document should

accompany

the

CAAPP

permits.

including the

drafts,

as

required

by Title

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 recordkeeping

requirements

in

the peru

it

in

order to assure that

they are adequate.

however,

there

is no regulatory

or

statutory’ basis

for the

Agency to do

this,

and

it has

cited none.

Moreover,

if the

Agency’s purpose

for requiring this submission

is to determine the adequacy’

of’

reeordkeeping. then

~vithotir 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 iheility

through

an

off-site review.

lIthe

Agency

finds

records that are

submitted

(luring the

prescribed

reporting periods

inadequate, the Agency

has

a

remedy available

to it through the

law.

It can

enforce against

the

company.

‘That is

the

risk

that

the company bears.

49.

Further, if the

company is concerned

with the adequacy of its

planned

recordkeeping,

it can

ask the Agency

to provide

it

sotne counsel.

Providing

such counsel or

assistance is a statutory

function

of the Agency.

Even then,

however, the Agency

will qualify

its

assistance

in order

to attempt

to avoid

reliance

on

the

part of the permittee

should there

be an

enforcement action

brought.

An interpretation of’this condition

could

he 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 pennit

shield.

-22-

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50.

Additionally,

tile

Agency

has

violated

J),M( i’s

due

process rights

under

tile

Constitution by rcquirin~

submission of these

documents

before

DM6

had

the

opportunity

to

exercise

its

right to appeal

the condition,

as granted by

the

Act at Section 40.2.

‘l’he

Act allows

permittees 35

day’s in

which

to appeal conditions of the permit to

which it

objects.

‘l’he

Agency’s

requirement

at Condition

5.6.2(d) that DM6 submit blank

forms within

30

day’s of issuance

of

the permit sigtntieantiy’

undermines

DMG’s right to appeal

—

and the effectiveness of

that

right

—

or

forces 0MG to violate the

terms and conditions of the permit

to lhhIy

presen•’e

its rights.

Although

the condition

is staved, because the appeal may

not

he

flied until

35

days alter

issuance, there could at least

be a question

as

to whether

0MG

was in violation

front the time

the

report

was due

until

the appeal was

filed.

DM6

submits that

the stay relates back

to the

date of

issuance.

Nevertheless,

it is

improper to even create this

uncertainty.

Ibis

denies DM6

due

process and so is unconstitutional. unlawful,

and arbitrary

and capricious.

51.

For these reasons,

Condition 5.6.2(d), contested

herein,

is

stayed consistent

with

the

APA. and DM6

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 lithe

Agency fails

to

communicate

any inadequacies it

finds in blank recordkeeping forms submitted to it,

enforcement against DM6

for 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

52.

Conditions

5.7.3

and 5,7.4 purport to characterize and impose reporting

requirements associated with

the Consent Decree.

These 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

unnecessar~duplication

of

requirements.

for the

reasons stated earlier,

the

Schedule

and Consent

Decree requirements are

separatel~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

herei

1, are stayed

consistent

with

the

APA, and DM0

req uests

that

the

Hoard order the

Agency

to

delete

these

conditions.

C.

?~Ox

511’ Call

(.Sertion

6.1)

53.

Condition

6.? .4(a)

says.

‘I3eg

inning

in

2004. by November

30

of each “ear

While this

is a true statement.

i.e..

the NOx

trading

program

in

Illinois

commenced

in

2004.

ii

is

inappropriate

br

the

Agency

to

include

in the penn it a condition

with

a

retroactive

efièct.

By’

including

this past date

iii

an

enforceable

permit

condition,

tile Agency

has

exposed DM6

to

potential enborcement

under

this

permit

for acts or omissions

that occurred

prior to the

effectiveness

of

this permit.

It

is

unlawful

for the Agency

to

require

retroactive

compliance

with

past reqttirements

in

a new permit

condition.

J.ake Emil..

Inc.

v.

The Slate o/lllinois.

No.

98-

CC-SI 79,

2001

WI. 34677731 ,at

~S(III.

Ct.

Cl.

May

29. 2001)

(stating

“retroactive

applications

are

disfhvored

in tIle

law,

and are

not ordinarily

allowed in the

absence

of language

explicitly

so

providing.

‘l’he authoring agency

of administrative regulations

is no

less stibject

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,

thr example,

if the permit appeal

is resolved

before September

30,

2006,

would be the 2006

ozone

season.

Rather than including a specific date, DM6 suggests that

the condition

merely

refer to the

first ozone season

during which the permit

is effective.

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54.

for

these

reasons,

Condition 6.1,4(a). contested herein,

is staved consistent

~ ith

the APA, and 0MG requests

Illat the

Board

order

tIle Agency

to

amend the

language

to avoid

retroactive

compliance

with

past requirements.

1).

Boilers

(Sections

7.

t

and

7,5)

U)

Opacity

as

a Surrogate

For

PM

55.

1 Iistorically.

power plants

and other types

of

industrial

fbcihities

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

C AAPP

permits. opacity was

primarily

a

qualitative indicator of the

possible need

hr further

investigation of operating conditions or even

for the need

of new stack testing.

Flowever.

the

Agency

has developed

and

inlposed

in Condition

7.1 .9—3(a)(iii),

and related conditions,

a

requirement that

treats opacity as

a quantitative surrogate

for indicating

excecdances of the PM

emissions limitation.

For

the

first time in

the August 2005

proposed permit, the

Agency

required

Petitioner

to identify

the

opacity measured at the

95th percentile

confidence

interval

of

the

measurement of compliant PM emissions during the

last and other historical

stack tests as

the

upper bound opacity

level that triggers

reporting of whether there may have

been an exceedance

of the PM limit without regard

for the realistic potential

for a PM cxccedance.

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.

Condition 7.1.9-3(a)(iii), and related conditions, must

be

stricken from the permit.

56.

The provisions requiring

the use of opacity

as effectively

a

surrogate for PM are

found in

Conditions

7,1 .9-3(a)(iii).

linked to Conditions

7.1.4(b) and 7.1.6-1(h), which contains

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the

emissions

limitation

Iou PM:

7,? ,Q-3(atiiv).

also

linked

to Conditions

7.1.4-Ith)

and

7.? ‘6-

1(h);

and

other related conditions,

including

7.

1.

It)— 1(a) and its

subparts;

7.

1

.1 0—2(a)(i)(F),

linked

to

Conditions

7.1 .9—3(a)(iv

I and

7.1

9—3(a)(iii);

7.1.1

0—2(d) and

its

subparts:

7.1. lO-’3(a)(ii):

and

7.1.12(h).

relying

on continuous

op~tcitvmonitoring

pLirsuatlt

to

Condition

7.1.8(a). I’M

testing

to

deternl inc

the upper hound

of

opacity,

and

the

recordb ecping

conditions described above

to

demonstrate

compliance

uith

tIle

PM

emissions

limitation.

57.

No

one can provide

a

reliable, exact PM

concentration level

anywhere in

the

United

States

today’

outside of stock

testing.

Obviously’,

it

is

impossible

to continuously test

a

stack

to

determine

a continuous

level

of I’M

emissions, and

it

would

be

unreasonable

tbr tile

Agency

or anyone

else

to expect

such.

Pursuant

to

the

Consent

Decree

settling

U SFPA’s

enforcement action

against DM6

concerning the

Baldwin

Station, DM6

will

test continuous PM

monitoring devices on

four of its

coal-fired

units.

Consent

Decree, Paragraph

91,

‘Ihe Consent

Decree does

not require

the use of these

PM CIiMS to

determine current

I’M emissions

levels for

compliance purposes.

In

Ihct. 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

ofrelinement

where they should be considered

credible evidence of PM

emissions levels.

DM6

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

CENtS

as

the

basis of a case

for PM

violations.

As a result. sotirces must rely

upon

the continuity or consistency of conditions that

occurred during a successful

stack

test to provide reliable indications of PM emissions levels,

58.

Historically, opacity has never been used

as a reliable, quantitative surrogate for

PM emissions

levels.

The Agency

itself acknowledged that opacity

is not a reliable indicator of

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PM

concentrations.

(See

Responsiveness

Stitnniary, pp.

15-16. 42-44),’

Increasing

opacity

may

indicate that PM

emissions are

increasing. hut

this is

not always

the case nor

is a given opacity

an indicator

of a given

PM

level

at

any’ given

time,

let alone

‘at different

t

inles.

Relying

on stack

testing

is

the

best

and

most

appropriate

approach

to

assuring

compliance

with

PM

eillissions

limitations.

51,)

Despite

the Agency’s implications

to the contrary

in the

Responsiveness

Sunlmar

(see

Responsiveness

Summary,

pp.

42—44). the

permit does

make opacit~’a surrogate

for PM

compliance.

When the

Aeency requires even

estimates ofPM

levels

or

guesses as to

whether there

is an

exceedance

of PM based

upon opacity, opacity’ has been qualltitatively

tied to

PM

compliance.

Further, the

opacity

level triggers

reporting that

the opacity/PM

surrogate

level

has been exceeded

and

so indicates that there

~ty

have been an

exceedance

of the PM level

regardless

of any evidence

to the

contrary.

For

example,

if the opacity/PM

surrogate

level

of,

say.

15

is exceeded.

this must be

reported despite

the

fact that

all fields

in the electrostatic

precipitator

were on

and operating,

slack testing indicated that

the PM emissions

level at

the

9511

percentile

confidence

interval

is

0.04 lb/mmBtu/hr, and the

likelihood

that there

was an

exceedance

of the

PM emissions

limitation

ot’O.l

lh/mmBtwl’ir 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 gaplilling 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.

“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 he

flawed

as

the

operation

of a

boiler

may

change overtime

and

the

coat

supply

will also

change,

affecting the

nature and

quantity

of the

ash

loading

to

the

ESP.

These types

of changes

cannot be prohihitcd,

as they

arc

inherent

in

tile

routine operation

ofcoal-flred

power plants.

However,

such

changes could

invalidate any

pre-established

opacity

value.”

Responsiveness

Sumnlary,

p.

44.

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60.

(.‘otltrar

to

lie

r\LcHc\

‘

assertion

in

tile

Responsiveness

Stiinnlar\

that

opacity

pro\’ides

a ‘robust

means to

distinguish compliance

operation of

a

coal—Ored

boiler and its

LSP

from

impaired operation’’ (Responsiveness

Summary’. p. 43),

relying tipon opacity

as

a

surrogate

for

PM

emissions

levels

has tIle result of penalizing

the best—operating units.

‘I hat

is,

the units

for which

the stack

testing resulted

in very

low opacity

and

very

low

PM

emissions

levels

are the

units

for which this additional

reporting

svtll

he

most

frequently triggered.

or example,

if stack

testing

resulted

ill

PM emissions of 0.02

lh/nlmBtu and the opacity during

the

lest

at the

950

percentile

confldencc

interval

tvas

2.

DM0

wotild

he

required

to

suhnlit

reports stating

that

the

unit

may

have exceeded

the

PM

linlit

every

time

opacity

exceeds

2.

Clearly,

this

condition

~il

result

in overly burdensome

reporting

that

serves

no

purpose.

As such.

it exceeds

the

Agency’s

authority

to

gapfill, is

tmnlawftml,

and

is arbitrary and capricious.

61.

Further, this

condition

effectively

creates a

false

low

opacity

limitation.

In order

to

avoid

the

implication

that there may

have been an exceedance

of the

PM

limit,

the

opacity’

limit becomes that

level

that

is the

upper hound

at

the

95~ipercentile

confidence

interval in

the

PM

testing.

By including these conditions,

the Agency

has

created a new, substantive

requirement

without having conlplied with proper

rulemaking

procedures.

This

is unlawful

and

beyond

the scope of the

Agency’s authority

under Section

39.5

of the

Act and

Title V of the

Clean Air

.Act.

It

also violates

the provisions of Title VII of the

Act.

See Appalachian

Power,

62.

Periodic

stack

testing according to paragraphs

89 and

119 ofthe Consent Decree

is sufficient to assure compliance with 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

fact, “periodic

stack testing”

is the Agency’s

own phrase in

Condition

7.1 .7(a)(iii) and

is consistent

with the

lindings of

Appalachian

Power.

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63.

Conditions

7.1.1 0-d)tv1C1

and (I)t

in

particular are

repetitious ofCortdition

7.1

.1

0—2(d)(ft).

Both require descriptions of the

same incident and prognostications as

to

how

the

imlcidents can

he prevented

in

the

future.

‘In

the extent either condition

is appropriate.

Condition

7.

I

.

I 0—2(d)dv).

is sufficient

to address the Agency

s concern,

although

0MG

also

objects

to Condition

7.1

.1 (1—2(d)(iv) to the extent that

it requires reporting related to the opacity

surrogate.

64.

In conjunction with its attempt

to relate opacity to

PM, the Agency requires

in

Condition

7.1 .1

(l—2( d)(v)(A) and (B) detailed infilrnmation regarding

recurring

and new cattscs

of

opacity exceedances in a calendar quarter.

The

requiretnents are

overly burdensome

and

the

Agency

lacks authority to impose suell

requirements.

65.

As with

Condition

5.6.2(d) discussed above,

Condition

7.1 .9-3(a)tiii) denies

DM0 due process.

Condition

7.1 .9-3(a)tiii) requires

that the

“records

that identify the

upper bound

of the

95

confidence

interval

(using

a

nortnal

distribution

and

1

minute

averages)

for

opacity

measurements

.

.

.

,

considering

an

hour

of

operation.

within

which

compliance

with

Ithe

PM

limit

is

assured,

with

supporting

explanation

and documentation

hail

he

submitted

to the

Illinois EPA

in accordance with Condition 5.6.2(d).”

66.

Obviously,

ifCondition 5.6.2(d) denies

0MG

clue process, Condition

7.1.9-

3(a)(iii) does

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

iniom-rnation

that DM0 believes

is

nol

useful

or reliable,

DM0

is particularly loathe to provide the

Agency with this information

because it believes that the information will

be misconstrued and misused.

67.

Finally, Condition

7.1.1O-2(d)(vi) requires

DM0 to

submit a glossary of

“common

technical terms used by

the

Permittee” as pan of its

reporting of opacity;PM

exceedance events.

If the ternls are “common,” they do

not

require definition.

Moreover, this

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requirement

does

lot

appear

anywllere

else

m

the

permit.

lf”conlmon

teelIntedi

tcriits

do

not

require

delillition

in other contexts

in this pern~

it. then sureR’

they’ do

not require detinitton

in

this context.

‘his

requirement

should

he deleted

from the permit.

68.

For these

reasons.

tile

conditions

contested

in

this secuon.

including Conditions

7.I.9-3(ahiii),

7.l.9-3(a)(iv),

7.1.10-1(a),

7.I.lU-2(a)(iflh).

7.1.10-2(d),

7.l.10-2(d)(v);

7.1.10-

2(dylvqA). 7.1.lO-2(W(VXB),

7.i.I0-2(d)(v)(C).

7.l.l0-2(d)(v)(D),

7.1.l0-2(d)(~i).7.l.0-

ii

and

7.

I

.

12(b).

and any other related conditions

are staved

consistent

with the

APA.

and

DM0

reqtiests tllat the

Board order

the

Agency

to delete

these conditions.

(ii)

Reporting the

Magnitude of PM Emissions

69.

he

Agency

requires

DM0

to

determine and report the magnitude

of PM

emissions during

startup

and operation

during malfunction

and breakdown

See

Conditions

7.1 .9-4(a)(i). 7.1 .9-4(a)(ii)(C)(5),

7.1 .9-4(h)(H )(F1(3). 7.1.1 0-2(d)(iv)(A)( 3).

7.5 .Q(e)( ii)tE)(3),

and

7.5,1 0-2(d)(i)(D).

Compliance

with these

conditions is not

possible and,

therelbrc,

the

inclusion

of these conditions

in the

permit

is arbitrary and capricious.

DM0

does not

have

a

means

for accurately

measuring

tile

magnitude

of

PM emissions

at any time other than during

stack testing

not even

using the opacity surrogate.

‘I’herc

is not a certified,

credible. reliable

alternative

to

stack testing to measure

PM

emissions.

Although a PM CEMS

may

be installed at

the Station tinder the

Consent

Decree, any

such CFMS has not

been certified (and might

not be

despite liMO’s good

faith efforts)

and

thus the

permit should not require

or depend on

the

use

of

such

a CEMS

to measure

PM emissions.

70.

Additionally,

Condition

7.i.10-2(d)(iv)(A)(5)

requires DM0

to identify

“the

nueans by which the

exceedanee

of

the PM emissions

limitj

was indicated or identified,

in

addition to continuous nlonitoring.“~fhisinaccurately inlplies

that

a PM CEMS

is installed

and

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operating

at

Wood

River or that the

installation

nnd

operation ofa

PM

Cl:.MS

at

a Wood I(t~er

ullit

will

occur.

A PM CEMS may

not

he

installed at

Wood

River.

Even ifa

PM CEMS

is

installed at a Wood River unit, any

such GEMS

is

riot currently

an authorized

or required basis

to

determine

compliance,

as

described more

fully

elsewhere in

this petition.

DM0 believes

that

this might also he

construed to mean

that

it tuust provide

infbrmation relative to some means,

such

as opacity

which.

as discussed

in detail

above, DM0

believes

is an

inappropriate

and

inaccurate

basis

for determining v\llctller there are

exccedances of the

PM

limit,

let alone

the

magni ode of any

such exceedance —that DM0

relied

upon to determine

any excecdance of the

PM

limit.

Besides

stack testing or perhaps total

shutdown of the ESP, there

are none.

his

is a

nonsensical

requirement.

71.

Moreover, there

is

no apparent

justification

for

the one hour trigger for additional

recordkeeping when operating during malfunction/breakdown in

Condition

7.5.9(e)(ii)(E)

compared to

the two hours

allowed Condition

7,1 .9-4(h)(h)(ii)(E).

72.

For these

reasons, Conditions 7.1.9-4(a)(i).

7.1.9-4(a)(iD(C)(

),

7.l.9-4(b)(ii)(E)

and (E)(3), 7.1.1O-2(d)tiv), specifically 7.1.l0-2(d)(iv)(A)(3)

and (5),

7.5.9(e)(ii)(E) and

(E)(3),

and 7.5.I0-2(d)(i)(D).

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 (Condition 7.1.7(a))

73.

As noted

in Condition

7.1 .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 fi’equency reduction if certain

conditions are

satisfied) and other periodic PM stack testing requirements, and compliance

with

the

Schedttle is mandated by Condition

5.4(a),

as

discussed above,

there

is no need to

impose

-31-

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ELECTRONIC FILING,

RECEIVED,

CLERKS

OFFICE,

NOVEMBER

3.

2005

*

*

*

*

*

PCB 2006-074

*

*

*

*

*

i1ternnti~e

or additional

PM

stack testing

rL’qulretltents

in

Condition

7.l.?(a)tiL

(in.

(tilt.

(\H.

(vi)

and

(vii).

The

stack

testing reqtnrcd by