ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 3, 2005
* * * * * PCB 2006-062 * * * * *
BEFORE THF: ILLINOIS
POLLUTION CONTROL BOAR!)
KINCAID GENERATION, L.L.C.,
)
)
Petitioner,
)
)
v.
)
PCH
______________
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
NOTICE OF FILING
b: Pollution Control
Board, Attn: Clerk
Division of Legal
Counsel
James R. Thompson
Center
illinois Environmental Protection Agency
IOU W. Randolph
1021 North Grand Avenue, East
Suite 11-500
P.O.
Box 19276
Chicago, Illinois 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
Kincaid
Generation,
L.L,C.
and the
Appearances of Sheldon
A. Zabel, Kathleen C. Bassi,
Stephen J, Bonebrake, Joshua R. More, and Kavita M, Patel, copies of which are herewith served
upon you.
S
Dated:
November 3, 2005
Sheldon A. Zabel
Kathleen C. Bassi
Stephen J,
Bonebrake
Joshua R. More
Kavita M. Patel
SCHIFF HARDIN, LLP
6600
Sears Tow-er
233 South Wacker Drive
Chicago, Illinois 60606
312-258-5500
Fax: 312-258-5600
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 3, 2005
* * * * * PCB 2006-062 * * * * *
BEFORE TIlE ILLINOIS POLLUTION CONTROL BOAR1)
KINCAII) GENERATION, L.L.C.,
)
)
Petitioner,
)
)
v.
)
PCI3
________________
)
(Permit Appeal
—
Air)
ILL1NOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
APPEARANCE
I
hereby file my appearance in this proceeding, on behalf of Kincaid Generation, I ..L.C.
Dated:
November 3, 2005
Sheldon
A. Zahel
Kathleen C. Bassi
Stephen J, Bonebrake
Joshua R. More
Kavita M. Patel
SCHIFF FIARDIN, 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
* * * * * FOB 2006-062 * * * * *
BEFORE TIlE ILLINOIS POLLUTION CONTROL BOARI)
KINCAID GENERATION, L.L.C.,
)
)
Petitioner,
)
PCB
____________
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
APPEARANCE
I hereby
file
my appearance in this proceeding, on behalf of Kineaid Generation, L.L.C.
athleen C. Bassi
Dated:
November 3, 2005
Sheldon A. Zabel
Kathleen C. Bassi
Stephen J. Bonebrake
Joshua R. More
Kavita M. Patel
SC-lIFE HARIMN, LLP
6600 Sears Tower
233 South Waeker Drive
Chicago, Illinois 60606
312-258-5500
Fax: 312-258-5600
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, NOVEMBER 3, 2005
* * * * * FOB 2006-062 * * * * *
BEFORE TIlE ILLINOIS POLI,1JTION CONTROL BOARD
KINCAID GENERATION, L.L.C.,
)
)
Petitioner,
)
v.
)
PCB____________
)
(Permit
Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
APPEARANCE
I hereby file my appearance in this proceeding, on behalf of Kinc’aid Generation, L.L.C.
St-(~pl!eñ
~F1~
J. Bonebrake
V
Dated:
November 3, 2005
Sheldon A. Zahel
Kathleen C. Bassi
Stephen J. Bonebrake
Joshua IC More
Kavita M. Patel
SCHIFF HARDIN, LLP
6600
Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
312-258-5500
Fax: 312-258-5600
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 3, 2005
* * * * * FOB 2006-062 * * * * *
BEFORE ‘lift ILLINOIS POLLUTION CONTROL BOARD
KINCAII) GENERATION, L.L.C.,
)
Petitioner,
)
)
V.
)
PCB
_________
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
)
APPEARANCE
I hereby file my appearance in this proceeding, on behalf of Kincaid Generation, I ..L.C.
/
-.
--
/
/-
,--- -
-
/~Z2~~—7~,
—
-
Joshua R. More
Dated:
November 3, 2005
Sheldon A. Zabel
Kathleen C. Bassi
Stephen J. l3onebrake
Joshua R. More
Kavita M. Patel
SCHIFF HARDN, 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
* * * * * PCB2006-062 * * * * *
BEFORE THE ILLINOIS POLLU1’ION CONTROL BOARD
KINCAID GENERATION, LL.C.,
11
Petitioner,
)
)
PCB
___________
)
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
APPEARANCE
I hereby file my appearance in this proceeding, on behalf of Kineaid Generation, L.L.C.
Kavita M. Patel
Dated:
November 3, 2005
Sheldon A. Zahel
Kathleen C. Bassi
Stephen J. Bonehrake
Joshua R. More
Kavita M. Patel
SCHIFF HARDEN, LLP
6600 Sears Tower
233 South Waeker Drive
Chicago,
Illinois 60606
312-258-5500
Fax: 312-258-5600
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 3, 2005
* * * * * FOB 2006-062 * * * * *
BEFORE TI-IF ILLINOIS POLLUTION C’ONl’ROL BOARI)
KINCAII) GENERATION, L.L.C.,
)
Petitioner,
)
v.
)
PCB
____________
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
CERTIFICATE OF SERVICE
1, the undersigned, certify that I have served the attached
Appeal of CAAPP Permit
of
Kincaid Generation, L.L.C. and Appearances
of Sheldon A. Zabel, Kathleen C. Bassi,
Stephen J. Bonehrake, Joshua R. More. and
Kavita M. Patel.
by hand delivery upon the following person:
and hy first class mail upon the fbllowing person:
Pollulion Control Board, Ann: Clerk
Division of Legal Counsel
James R. ‘thompson Center
Illinois Environmental Protection Agency
100 \V. Randolph
1021 North Grand Avenue, East
Suite 11-500
P.O. Box 19276
Chicago, Illinois 60601
Springfield, Illinois 62794-9276
Kathleen C. Bassi
Dated:
November 3, 2005
Sheldon A. Zabel
Kathleen C. Bassi
Stephen J. Bonebrake
Joshua R. More
Kavita M. Patel
SCHIFF HARDIN, LLP
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
* * * * * FOB 2006-062 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
KINCAID GENERATION, L.L.C.,
)
)
Petitioner,
)
V.
)
PCB
____________
(Permit Appeal
—
Air)
iLLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
APPEAL OF CAAPP PERMIT
NOW COMES Petitioner, KINCAID GENERATION. L.L.C., (“Petitioner,” “Kineaid,”
or “Kincaid Generation”), pursuant to Section 40.2 of the Illinois Environmental Protection Act
(“Act”) (415 ILCS 5/40.2) and 35 IIl,Adm,Code
§
105.300
et seq.,
and requests a hearing hefore
the Board to contest the decisions contained in the permit issued to Petitioner on September 29,
2005, under the Clean Air Act Permit Program (“CAAPP” or ‘~1•’itleV”) set forth at Section 39.5
of the Act (415 ILCS 5/39.5). In support of its Petition, Petitioner states as follows:
I. BACKGROUND
(35 tILAdm.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 approved
programs. Illinois’ Title V program, the CAAPP, was filly and finally approved by the U.S.
Environmental Protection Agency (“USEPA”) on December 4, 2001 (66 Fed.Reg. 72946). The
Illinois Environmental Protection Agency (“Agency”) has had the authority to issue CAAPP
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, NOVEMBER 3, 2005
* * * * * FOB 2006-062 * * * * *
permits since at least March 7, 1995, when the state was granted interim approval of its CAAPP
(60 Fed.Reg. 12478). Illinois’ Title V program is set forth at Section 39.5 of the Act,
35
Ill.Adm.Code 20I.Suhpart 12, and 35 lll.Adm.Codc Part 270.
2.
Kincaid Generation, Agency ID. No.. 021 SJ4AAB, is an electric generating
station owned by Kincaid Generation, L.L.C., and operated by Kincaid Generation, I... C. The
Kineaid electric generating units (“EGUs”) were built in 1967 and 1968. The Kincaid
Generating Station is located four miles west ofKincaid, Illinois, on Route 104 in Christian
County. Christian County isan attainment area for all pollutants. Kineaid is a baseload load
plant and can generate approximately 1248 megawatts. Kincaid Generation employs 146 people
at the Kineaid Generating Station.
3.
Kineaid Generation operates two coal-fired boilers at Kincaid that have the
capability to fire at various modes that include the combination of coal and natural gas as their
principal fuels. In addition, the boilers fire natural gas as auxiliary fuel during startup and for
flame stabilization. Certain alternative fuels, such as used oils generated on-site, may be utilized
as well. Kincaid also operates associated coal handling, coal processing, and ash handling
activities. In addition to the boilers, Kincaid operates a natural gas-fired auxiliary boiler used to
heat the plant. This boiler is not used to directly generate electricity. Finally, there is a 500-
gallon gasoline tank located at Kincaid, to provide fuel fbr station vehicles.
4.
Kincaid is a major source subject to Title V. The EGUs at Kineaid are subject to
both of Illinois’ NOx reduction programs: the “0.25 averaging” program at 35 lll.Adm.Code
217.Suhparts V and the “NOx trading program” or “NOx SIP call” at 35 Ill.Adm.Code
217.Suhpart W. Kincaid is subject to the federal Acid Rain Program at Title IV of the Clean Air
Act and was issued a Phase II Acid Rain Permit on March 18, 2005.
-2-
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5.
Emissions ofnitrogen oxides (“NOx”) from the EGIJs are controlled by over-fire
air (OFA) and selective catalytic reduction equipment (SCR). Emissions of sulfur dioxide
(“SO2”)
from the EGIJs arc controlled by limiting the sulfur content of the fuel used for the
boilers. PM emissions from the boilers are controlled by an electrostatic precipitator (“ESP”).
Fugitive PM emissions from various other coal and ash handling activities are controlled through
enclosures, covers, moisture content, dust collection devices, and haghouses. as necessary and
appropriate. Emissions of carbon monoxide (“CO”) are limited through good conibuslion
practices in the boilers, Emissions of volatile organic compounds (“VOC”) from the gasoline
storage tank arc controlled by the use of a submerged loading pipe.
6.
The Agency received the original CAAPP permit application for the Kincaid
Station on September 7, 1995, and assigned Application No. 95090078. Petitioner updated this
application on February 4,2003. 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 amounting to $~.6 million, as set forth at Section 39.5(18) of
the Act, since submitting the application for a CAAPP permit for the Kincaid Generating Station
in 1995. Kincaid’s state operating permits have continued in frill force and effect since submittal
of the CAAPP permit application, pursuant to Sections 9.1(0 and 39.5(4)(b)of the Act.
7.
The Agency issued a final draft permit for public review on June 5,2003.
Kincaid Generation filed ~itten comments with the Agency regarding the Kineaid draft permit
on September 26, 2003.1 The Agency issued a proposed permit for the Kineaid Station on
October 6, 2003. Subsequently, in December 2004, the Agency issued a draft revised proposed
Kincaid Generation has attached the appeakd pennit to this Petition. 1-Towever, 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 Board decisions, are easily accessible. In the
interests of economy, then, Kincaid Generation is not attaching such documents to this Petition.
-3-
ELECTRONIC. FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 3, 2005
* * * * * POB 2006-062 * * * * *
permit for Petitione(s and other interested persons’ comments. Kincaid Generation again
commented. on January 14, 2005. The Agency issued a second drafi revised proposed permit in
July 2005 and allowed the Petitioner and other interested persons 10 days to comment, At the
same time, the Agency released its preliminary Responsiveness Summary, which was a draft of
its response to comments, and invited comment on that document as well. Kineaid Generation
submitted comments on this version of the proposed permits and on the preliminary
Responsiveness Summary on August 1,2003. The Agency submitted the revised proposed
permit to USEPA 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 Kincaid Generation
has not submitted any further comments, based upon the understanding that the Agency had
every intention to issue the permit at the end of USEPA’s review period.
8.
The final permit was, indeed, issued on September 29, 2005.2 Although some of
Petitioner’s comments have been addressed in the various iterations of the permit, it still contains
terms and conditions that are not acceptable to Petitioner, including conditions that are contrary
to applicable law and conditions that first appeared, at least in their final detail, in the August
2005 proposed permit and upon which Petitioner did not have the opportunity to comment. It is
for these reasons that Petitioner hereby appeals the permit. This pertnit appeal is timely
submitted within 35 days following issuance of the permit. Petitioner requests that the Board
review the pennit, remand it to the Agency, and order the Agency to correct and reissue the
permit, without further public proceeding, as appropriate.
2See
USEPA/Region 5’s Permits website at ifflp±www~p&g~yLreoioI15kir/pe.rmits/iJnnliuehun
-*
“CAAPP permit Records”
-)
‘Kincaid Generation, LLC” for the complete “trail” of the milestone action dates for
this pennit.
-4-
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* * * * * FOB 2006-062 * * * * *
II. EFFEC’l’IVENESS OF
PERMIT
9.
Pursuant to Section 10-65(b) of the Illinois .&dministrative Procedures Act
(“APA”), 5 ILCS 100/10-65, and the holding in
Borg-Warner Corp. vAilauzy,
427 N.E. 2d 415
(Ill.App.Ct. 1981)
(“Borg-Warner”).
the CAAPP permit issued by the Agency to Kincaid
Generation does not become effective until after a ruling by the Board on the permit appeal and,
in the event of a remand, until the Agency has issued the permit consistent with the Board’s
order. Section 10-65(b) provides that “when a licensee has made timely and sufficient
application for the renewal of a license or a new license with reference to any activity of a
continuing nature, the existing license shall continue in frill force and effect until the final agency
decision on the application has been made unless a later date is fixed by order of a reviewing
court.” 5 ILCS 100/10-65(h). The
iorg- Warner
court found that with respect to an appealed
environmental permit, the “final agency decision” is the final decision by the Board in an appeal,
not the issuance of the permit by the Agency.
Borg-Warner,
427 N.E. 2d 415 at 422;
see also
IBP, 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 (Ill. Pollution Control
Bd. 1985). Therefore, pursuant to the APA as interpreted by
Borg-Warner,
the entire permit is
not yet effective and the existing permits for the facility continue in effect.
10.
The Act provides at Sections 39.5(4)(h) and 9.1(0 that the state operating permits
continue 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, Kincaid Generation currently has the necessary permits to
operate the station.
-5-
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II.
In the alternative, to avoid any question as to the effectiveness of the permit under
the APA. Kincaid Generation reqtrests that the Board exercise its discretionary authority at 35
lll.AdntCode
§
105.304(b) and stay the entire permit. Such a stay is necessary to protect
Kincaid Generation’s right to appeal and to avoid the imposition of conditions before it is able to
exercise that right to appeal Further, compliance with the myriad of new monitoring, inspection,
recordkeeping, and reporting conditions that are in the CAAPP permit will be burdensome and
costly. To comply with conditions that are inappropriate, as Kincaid Generation alleges below,
would cause irreparable harm to Kincaid Generation, including the imposition of these
unnecessary costs and the adverse effect on Kincaid Generation’s right to adequate review on
appeal. Kincaid Generation has no adequate remedy at law other than this appeal to the Board.
Kincaid Generation is likely to succeed on the merits of its appeal, as the Agency has included
conditions that do not reflect “applicable requirements,” as defined by ‘l’itle V, and has exceeded
its authority to impose conditions or the conditions are arbitrary and capricious. Moreover, the
Board has stayed the entirety of all the CAAPP permits that have been appealed.
See
Bridgestone/Firestone Off Road Tire Company v. IEPA,
PCB 02-31 (November I, 2001);
Lone
Star /ndustrie~Inc. v. IEPA,
PCB 03-94 (January 9,2003,);
Nielsen & Brainbridge, L.L.C. v.
/jul’A,
PCB 03-98 (February 6, 2003);
Saint-Gobain Con!ainers, Inc. v. IEI’A,
PCB 04-47
(November 6, 2003);
Champion Laboratories, Inc. v. JEPA,
PCB 04-65 (January 8, 2004);
Noveon, Inc. v. IEPA,
PCB 04-102 (January 22, 2004);
Midwest Generation, LLC
—
Collins
Generating Station v. JEPA,
PC13 04-108 (January 22, 2004);
Board of Trustees of Eastern
Illinois University v. IEPA,
PCB 04-110 (February 5, 2004);
Ethyl Petroleum Additives, Inc., v.
JEPA,
PCB 04-1 13 (February 5,
2004);
Oasis Industries, Inc.
v
IEPA,
PCB 04-1 16 (May 6,
2004). The Board should continue to follow this precedent.
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* * * * * FOB2006-062 * * * * *
12.
Finally, a large number of conditions, linked throughout the permit, included in
this CAAPI’ permit are appealed here. To require some conditions of the CAAPP permit to
retnain in effect while the contested conditions are covered by the old state operating permit
creates an administrative environment that would he, to say the least, very confusing. Moreover,
the Agency’s failure to provide a statement of basis, discussed below, renders the entire permit
defective. ‘lhercfore, Kincaid Generation requests that the Board stay the entire permit for these
reasons.
13.
In sum, pursuant to Section 10-65(b) of the APA and
Borg-Warner,
the entirety of
the CAAPP permit does not become effective until the completion of the administrative process,
which occurs when the Board has issued its final ruling on the appeal 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, consistent with its grants of stay in other CAAPP permit appeals
and because of the pen’asiveness of the conditions appealed throughout the permit, to protect
Kineaid Generation’s right to appeal and in the interests of administrative efficiency. Kincaid
Generation requests that the l3oard stay the entire permit pursuant to its discretionary authority at
35 IlI.Adm.Code
§
105.304(h). Such a stay will minimize the risk of unnecessary litigation
concerning the question of a stay and expedite resolution of the underlying substantive issues.
The state operating permits currently in effect will continue in effect throughout the pendency of
the appeal and remand. ‘l’herefore, the Kincaid Generation 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. As explained above, the
.7-
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* * * * * POB2006-062 * * * * *
entire permit should he stayed and, thus. Kincaid Generation does not repeat this discussion
below in addressing the challenged conditions.
III. ISSUES ON APPEAL
(35 IILAdm.Code
§~
IO5.304(a)(2), (3), and
(4))
14.
As a preliminary matter, the C.AAPP permits issued to the Kincaid Generating
Station and 20 of the other coal-fired power plants in the state on the same date are very similar
in content. ‘he same language appears in virtually’ all of the permits. though there are subtle
variations to some conditions to reflect the elements of uniqueness that are true at the stations.
As a result, the appeals of these pennits filed with the Board will he equally as repetitious with
elements of uniqueness retlecting the stations. Further, the issues on appeal span the gamut of
simple typographical errors to extremely complex questions of law. Petitioner’s presentation in
this appeal is by issue per unit type, identifying the permit conditions giving rise to the appeal
and the conditions related to them that would he affected. Petitioner appeals all conditions
related to the conditions giving rise to the appeal, however, whether such related conditions are
expressly identified or not below.
IS.
The Act does not require a permittcc to have participated in the public process; it
merely needs to object, after issuance, to a term or condition in a permit in order to have standing
to appeal the permit issued to him.
See
Section 40.2(a) of the Act (the applicant may appeal
while others need to have participated in the public process). However, Kincaid Generation, as
will be evidenced by the administrative record, has actively participated to the extent allowed by
the Agency in the development of this permit. In some instances, also as discussed in further
detail below, the Agency did not provide Kineaid Generation with a viable opportunity to
comment, leaving Kincaid Generation with appeal as its only alternative as a means of rectifying
inappropriate conditions. These issues are properly before the Board in this proceeding.
-8-
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16.
Section 39.5(7)t’d)(ii) of the Act gntnts the Agency the authority to “gaplill.’’
“Gapfilling” is the inclusion in the pernut of periodic monitoring requirements, where the
underlying applicable requirement does not include them. This language faithfully reflects 40
CFR §
70.6(a)(iii)(14), the subject of litigation in
Appalachian Power Company
v.
EPA.
208 F.3d
lOIS
(D.C.
Cr. 2000). The court in
Appalachian
Power
found 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 1028.
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
are
regulated.”
Appalachian Power
at 1 026-27. (Quotation marks and citations in original
omitted.) Thus. where the permitting authority, here the Agency, becomes excessive in its
gapfllling, it is imposing new substantive requirements contrary to Title V.
18.
The Agency, here, has engaged in appropriate gapfluing, as some of the Board’s
underlying regulations do not provide specifically for periodic monitoring.
C.f,
35
fll.Adm.Code 2l2.Subpart E. However, the Agency has exceeded its authority to gapfill in some
instances, as discussed in detail below. These actions are arbitrary and capricious and are an
unlawful assumption of regulatory authority not granted by Section 39.5 of the Act. Moreover,
contrary to
Appalachian Power,
they, by their nature, unlawfully impose new substantive
requirements. Where Petitioner identifies inappropriate gapfilling as the basis for its objection,
‘Note that testing may hea type of monitoring.
Set’
Section 39.5(7~d)(ii)of the Act.
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Petitioner requests that the Board assume this preceding discussion of gapfi II ing is part of that
discussion of the specific term or condition.
19.
In a number of instances discussed below, the Agency has failed to provide
required citations to the applicable requirement. “Applicable requirements” are those substantive
requirements that have been promulgated or approved by LJSEPA pursuant to the Clean Air Act
which directly impose requirements upon a source, including those requirements set forth in the
statute or regulations that are part of the Illinois SIP. Section 39.5(l) of the Act. General
procedural-type requirements or authorizations are not substantive ~appIicabIe requirements” and
are not sufficient basis for a substantive term or condition in the permit.
20.
The Agency has cited generally to Sections 39.5(7)t’a), (b), (e), and (fI of the Act
or to Section 4(b) 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 Title V to identify its basis for
inclusion of a permit condition (Section 39.5(7)(n)). If the Agency cannot cite to the applicable
requirement and the condition is not proper gapfihling, the condition cannot be included in the
permit. The Agency has confused general data- arid information-gathering authority with
“applicable requirements,” They are not the same. Section 4(b) 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.
21.
Moreover, the Agency’s assertion in the Responsiveness Summary that its general
statutor authority serves as its authority to include conditions necessary to “accomplish the
Appalachian Power,
2(38 F.3d at 1026.
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purposes of the Act” misstates what is actually in the Act. Responsiveness Summary, p. 15; see
Section
39.5(7Xn).
Section 39.5(7)(a) says that the permit is to contain conditions necessary to
“assure compiance with all ~Qpjjcahlereqpirements.” (Emphasis added.) For the Agency to
assume broader authority than that granted by the Act is unIawf~uland 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 for the permit’s conditions.
This statement of basis is to explain the permitting authority’s rationale for the terms and
conditions of the permit. it is to explain why the Agency made the decision it did, and it is to
provide the permittee the opportunity to challenge the Agency’s rationale during the permit
development process or comment period. Title V requires the permitting authority to provide
such a statement ofhasis. Section 39.5(n) of the Act. The Agency’s after-the-fact short project
sumniary produced at public, notice, the permit, and the Responsiveness Summary are not
sufficient and cannot he considered a statement of basis. Moreover, the project summary and
Responsiveness Summary do not speak to Kincaid. When the pertnittee and the public arc
questioning the rationale in comments, it is evident that the Agency’s view of a statement of
basis is not sufficient. Since the Responsiveness Summary is prepared after the fact and is not
provided during permit development, it cannot serve as the statement of basis. The lack of a
viable statement of basis denies the permittee notice of the Agency’s decision-making rationale
and the opportunity to comment thereon and makes the entire permit defective. This alone is a
basis for appeal and remand of the permit and for a stay of the entire permit.
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A. Issuance and Effective Dates
(Cover Page)
23.
The Agency issued the CAAPP permit that is the subject of this appeal to Kiricaid
Generation on September 29, 2005, at 7:18 p.m. The Agency notified Kineaid Generation that
the permits had been issued through emails sent to a Kineaid Generation employee. The email
indicated that the permits were available on JSEPA’s wehsite, where Illinois’ permits are
housed. l-lowever. that was not the case. Kincaid Generation could not locate the permits on the
wehsite that evening.
24.
Ihe issuance date of the permit becomes important because that is also the date
that commences the computation of time for filing an appeal of the permit and for submitting
certain documents, according to permit language, to the Agency. LJSFiPA’s wcbsite identifies
that date as September 29, 2005. If that date is also the effective date, many additional deadlines
would he triggered, including the expiration date as well as the date by which certain other
documents must be submitted to the Agency. More critical, however, is the fact that once the
permit becomes effective, Kincaid Generation is obliged to comply with it, regardless of whether
it has any recordkeeping systems in place, any additional control equipment that might he
necessary, new compliance requirements, and so forth. It took the
Agency
over two years to
issue the final permit; the first drafi permit was issued June 4,
2003.
Over that course of tine,
the Agency issued numerous versions of the permit, and it has changed considerably. Therefore,
it is unreasonable and unprecedented to expect Kincaid Generation to have anticipated the final
permit to the degree necessary for it to have been in compliance on September 29, 2005.
25.
Moreover, publication of the permit on a website is not “official” notification in
Illinois. Kincaid 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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electTonic delivery of permits. Therefore, at the earliest, until the permit is officially delivered to
the company, it should not be deemed effective. Kincaid’s CAAI~Ppermit was officially
delivered through the U.S. Postal Service on October 3. 2005.
26.
Neither the Act nor the regulations spdeify when permits should become efkctive.
Prior to the advent of Title V, however, sources have not been subject to such numerous and
detailed permit conditions and exposed to enforcement from so many sides. Under Title ‘V. not
only the Agency through the Attorney General, but also USEPA and the general public can bring
enforcement suits for the smallest violation of the permit. If the issuance date is the effective
date, this has the potential for tremendous consequences to the permittee and is extremely
inequitable.
27.
If the effective date of the permit is September 29, 2005, this also would create an
obligation to perform quarterly monitoring and to submit quarterly reports (c/? Condition 7.1.10-
2(a)), for the third quarter of 2005, consisting of less than 30 hours of operation. The
requirement to perform quarterly monitoring, recordkeeping, and reporting for a quarter that
consists of less than 30 hours of operation, assuming the permittee would even have compliance
systems in place so quickly after issuance of the permit, is overly burdensome and would not
benefit the environment in any manner. Therefore, the requirement is arbitrary and capricious.
28.
A more equitable and legal approach would be for the Agency to delay the
effective date of a final permit for a period of time reasonably sufficient for sources to implement
any new compliance systems necessary because of the terms of’ the permit or at least until the
time for the source to appeal the permit has expired, so that an appeal can stay the permit until
the Board can rule.
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29.
Consistent with the APA, the effective date of the permit, contested herein, is
stayed, and Kincaid Generation requests that the Board order the Agency to establish an effective
date some period of time after the permittee has received the permit following remand and
reissuanee 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)
Recordkeeping of and Reporting hAP Emissions
30.
The CAAPP permit issued to Kincaid Generation to keep records of emissions of
mercury, hydrogen chloride, and hydrogen fluoride all flAPs
—
and to report those emissions at
Conditions 5.6.1(a) and (h) (recordkeeping) and 5.7.2 (reporting). The Agency has not provided
a proper statutory or regulatory basis for these requirements other than the general provisions of
Sections 4(b) and 39.5(7)(a), (hL and
(e)
of the Act. Citations merely to the general provisions
of the Act do not create an “applicable requirement.”
31.
In Ihct, there is no applicable requirement that allows the Agency to require this
recordkeeping and reporting. There are no regulations that limit emissions of IIAPs from
Kineaid Generation. While USEPA has recently promulgated the Clean Air Mercury Rule
(“CAMR”) (70 Fed.Reg. 28605 (May 18, 2005)). Illinois has not yet developed its corresponding
regulations. The Agency correctly discussed this issue relative specifically to mercury in the
Responsiveness Summary by pointing out that ii 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 incorrectly states in the Responsiveness
Summary that it can rely upon Section 4(b), the authority lbr the Agency to gather information,
as a basis for requiring recordkeeping and reporting of mercury emissions through the CAAPP
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permit. ‘l’he Agency has confused its authority to gather data pursuant to Section 4(h) and its
authority to gapfill to assure compliance with the permit with the limitation on its authority under
Title V to include only “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 authority just as seriously as if it had included emissions limitations for flAPs in
the permit. Section 4(h) does not provide the authority to impose this condition in a CAAPP
permit.
32.
Further, the Agency’s own
regulations,
which
are
part of the approved
program or
SIP for its ‘title V program, preclude the Agency from requiring the recordkeeping and reporting
of HAP emissions that ii has included at Conditions 5.6.1(a) and (b) and 5.7.2. The Agency’s
Annual Emissions Reporting rules, 35 1ll.Adm.Code Part 254, which Condition 5.7.2 specifically
addresses, state as follows:
Applicable Pollutants for Annual Emissions Reporting
Each Annual Emissions Report shall include applicable
information for all regulated air pollutants, as defined in Section
39.5 of the Act 415 ILCS
5/39.5,
except for the~owin
~tants:
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 (MACI’). For purposes of
this subsection (b), emission units that are not required to
control or limit emissions but are required to monitor, keep
records, or undertake other specific activities are
considered subject to such regulation or requirement.
35 Ill.Adm.Code
§
254,120(h). (Brackets in original; emphasis added.) Power plants are not
subject to any NESHAPs or MACT standards.
See
69 Fed.Reg. 15994 (March 29, 2005)
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(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 Kincaid Generation 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 of HAPs emitted by coal-fired power plants.
33.
Consistent with the APA, Conditions 5.6.1(a) and (b)
in tofu
and Condition 5.7.2
as it relates to reporting emissions of NAPs in the Annual Emission Report, contested herein, arc
stayed, and Kincaid Generation requests that the Board order the Agency to amend the permit
accordingly.
(ii)
Retention and Availability of Records
34.
Conditions 5.6.2(h) and
(c)
switch the burden
of
copying records the Agency
requests
from the Agency, as stated in Condition
5.6.2(a),
to the permittee. While Kincaid
Generation generally does not object to providing the Agency records reasonably requested and
is reassured by the Agency’s statement in the Responsiveness Summary that its “on-site
inspection of records and written or verbal requests for copies ot’records will gçncralj,y occur at
reasonable times and be reasonable in nature and scope” (Responsiveness Summary, p. 18)
(emphasis added), Kincaid Generation may not be able to print and provide data within the span
of an inspector’s visit where the records are electronic and include vast amounts of data.
Moreover, most of the electronic records are already available to the Agency through its own or
USEPA’s databases, and where this is the case, Kincaid Generation should not be required to
again provide the data absent its loss for some unforeseen reason, and certainly should not to
have to print out the information. Further, Kincaid Generation is troubled by the qualifier
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generally
that the Agency included in its statement. It implies that the Agency may not always
choose reasonable times, nature, and scope of these requests.
35.
Consistent with the \PA. Conditions 5.6.2(b) and
(c),
contested herein, are
stayed, and Kincaid Generation requests that the Board order the Agency to amend them in a
manner to correct the deficiencies outlined above.
(iii)
Submission of Blank Record Forms to the Agency
36.
Kincaid Generation is unsure as to what the Agency expects with respect to
Condition 5.6.2(d).
See
Condition 5.6.2(d). Kincaid Generation first thought that the Agency
was requiring submission of the records that are required by Conditions 7.1.9, 7,2.9, 7.3.9. 7.4.9,
7.5.9, 7.6.9, and 7.7.9. Flowever, upon rereading Condition 5.6.2(d), Kincaid Generation
believes that through this condition, the Agency is requiring Kincaid Generation to submit blank
copies of its records, apparently so that the Agency can check them for Ihrm and type of content.
If true, the condition is unacceptable, as the Agency does not have the authority to oversee how
Kincaid Generation conducts its internal methods of compliance. Ihere is no basis in law for
such a requirement and it must be deleted.
37.
Each company has the responsibility 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 of recordkeeping or reporting formats.
While the Agency has the authority to require that certain information be reported, it has no
authority
—
and cites to no authority (because there is none)
—
to impose this condition.
38.
Nor does the Agency provide a purpose for this condition
—
which is an example
of why a detailed statement-of-basis document should accompany the CAAPP permits, including
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the drafis, as required by Title V. One can only guess the Agency’s purpose for this condition.
I-lowever, if the Agency finds that submitted records are inadequate, the Agency has remedies to
address that situation.
39.
Additionally, this permit condition requires Kincaid to submit these documents
before the 35 days to appeal has run, which violates Kincaid Generation’s due process rights to
appeal the condition, as granted by the Act at Section 40.2. lhe Agency’s requirement at
Condition 5.6.2(d) that Kincaid Generation submit blank fonns within 30 days of issuance of the
permit significantly undermines Kincaid Generation’s right to appeal
—
and the effectiveness of
that right. Although the condition is stayed, because the appeal may not be filed until 35 days
afier issuance, a third party might try to argue that Kincaid Generation is not in compliance with
the new permit from the time the report was due until the appeal was filed. While this is not
correct because the stay is effective as of the date of issuance, it is improper to even create this
uncertainty. This denies Kincaid Generation due process and thus is unconstitutional, unlawful,
and arbitrary and capricious.
40.
Consistent with the APA, Condition 5.6.2(d). contested herein, is stayed, and
Kincaid Generation requests that the Board order the Agency to delete it from the permit. In the
alternative, Kincaid Generation requests that the Board interpret this condition to bar
enforcement against Kincaid if the Agency fails to communicate any inadequacies it finds in the
blank recordkeeping forms submitted to it, so long as those records were completed, as part of
the permit shield.
C. NOx SIP
Call
(Section
6.1)
41.
Condition 6.I.4~a)says, “Beginning in 2004, by November30 of each year....”
While this is a true statement,
i.e.,
the NOx trading program in Illinois commenced in 2004, it is
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inappropriate for the
Agency to
include in the permit a condition with a retroactive effect. By
including this past date in an enforceable permit condition, the Agency has exposed Kincaid
Generation to potential enforcement under this permit for acts or omissions that occurred prior to
the effectiveness of this
permit. It is unlawful for the Agency to require retroactivc compliance
with past requirements in a new permit condition.
Lake EnviL, Inc.
t~
The State ofIllinois,
No,
98-CC-S 179, 2001 WL 34677731, at *8 (Ill.Ct.Cl. May 29, 2001) (stating “retroactive
applications are disfavored in the law, and arc not ordinarily allowed in the absence of language
explicitly so providing. The authoring
agency
of administrative regulations is no less subject to
these settled principles of statutory construction than any other arm of government.”). This
language should be changed to refer to the first ozone season occurring upon effectiveness of the
permit, which, for example, if the permit appeal is resolved before September 30, 2006, would he
the 2006 ozone season, Rather than including a specific date, Kincaid Generation suggests that
the condition merely refer to the first ozone season during which the permit is effective.
42.
For these reasons, Condition 6.1.4(a) is stayed pursuant to the APA, and Kincaid
Generation requests that the Board order the Agency to amend the language to avoid retroactive
compliance with past requirements.
D. Boilers
(Section 7.1)
(I)
Opacity as a Surrogate for PM
43,
Historically, power plants and other types of industry have demonstrated
compliance with emissions limitations
for PM
through periodic stack tests and consistent
application of good operating practices. Prior to the development of the CAAPP permits, opacity
was primarily a qualitative indicator of the possible need for further investigation of operating
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conditions or even hr the need ol’ new stack testing. However, in the iterations of the permit
since the publication of the October 2003 proposed permit, the Agency has developed an
approach in which opacity serves as 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
95t1,
percentile confidence interval of
the
measurement of compliant PM emis.sions during the last and other historical stack tests as the
upper hound opacity level that triggers reporting of whether there m~yhave been an cxceedance
of the PM limit without regard for the realistic potential for a PM excccdancc. These reporting
requirements are quite onerous, particularly for Kincaid’s units, that tested at the lowest levels of
PM and opacity. The inclusion of these conditions exceeds the scope of the Agency’s authority
to gaptill and so are arbitrary and capricious and must be stricken from the permit.
44.
The provisions requiring the use of opacity as a surrogate for PM are found in
Conditions 7.1 .9(c)(ii), linked to Condition 7.1.4(h), which contains the emissions limitation for
PM: 7.1 .9(c)Uii)(E3), also linked to Conditions 7.1.4(b) and 7. l.9(c)(ii); 7.1 .10-l(aXi) and (ii),
linked to Condition 7.1.10-3(a); 7.1.lO-2(a)( )(
),
linked to Conditions 7.1
.9(c)(iii)(B) and
7,1 .9(c)(ii); 7.1. l0-2(d)(v) generally; 7.1.1 0-2(d)(vXC), requiring an explanation of the presumed
number
and magnitude of opacity and PM exceedances and speculation as to the causes of the
exceedances; 7.1.
10-2(d)(v)(D),
requiring a description of actions taken to reduce opacity and
PM exceedances and anticipated effect on future exceedances; 7.1.l0-3(a)(ii), requiring follow-
up reporting within 15 days after an incident during which there may have been a PM
exceedance based upon this tipper hound of opacity; and 7.1.12(b), relying on continuous opacity
monitoring pursuant to Condition 7.1.8(a), PM testing to determine the upper bound of opacity,
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and the recordkeeping conditions described above to demonstrate compliance with the PM
emissions limitation,
45.
Providing a reliable, exact PM concentration level outside of stack testing is not
possible. It is impossible to continuously test a stack to determine a continuous
level of PM
emissions, and it would he unreasonable for the Agency to expect such. Pursuant to some of the
consent decrees settling a number of USEPA’s enforcement actions against coal-fired power
generators, some companies are testing continuous PM monitoring devices. None of these
companies, according to their consent decrees, is required to rely on these PM continuous
emissions monitoring
systems (“CEMS”) to determine their current PM enlissions levels, The
PM CEMS are not at a point of refinement where they can even he considered credible evidence
of PM emissions levels. 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. Moreover, PM CEMS have not been proven to equate to Method 5.
46.
Historically, opacity has not been used as a reliable, quantitative surrogate for PM
emissions levels. The Agency itself acknowledged that opacity is not a reliable indicator of PM
concentrations.
See
Responsiveness Summary, pp. l5-16,42-44.~ Kincaid Generation agrees
with the Agency that increasing opacity may indicate that PM emissions are increasing, but this
is not
always the case nor is a given opacity level an indicator of a given PM level at
any given
time,
let alone at different times, Kincaid Generation’s current operating permits require
triennial PM stack testing, to be performed within 120 days prior to expiration of the permit,
“Setting a specific level of opacity that is deemed to be equivalent to the applicable PM emission limit.
is not possible on a variety of levels
It would also be inevitable that such an action would be flawed as the
operation of a boiler may change over time and the coal supply will also change, affecting the nature and quantity of
the ash loading to the ESP. These type 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-established opacity value.”
Responsiveness Summary, p. 44.
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which has an expiration date three years following issuance. ‘I his requirement comprises
periodic monitoring.
Relying on stack testing and operational practices is currently the best and
most appropriate approach to asswing compliance with PM emissions limitations. Moreover, the
compliance method br PM emissions limitations in the NSPS is only through stack testing, not
through opacity as a surrogate for PM.
47.
Despite the Agency’s implications to the contrary in the Responsiveness
Summary (see Responsiveness Summary. pp. 42-44), the permit does niake opacity a surrogate
for PM compliance. When the Agency requires estimates of PM levels or guesses as to whether
there is an exceedance of PM based upon opacity, opacity has been quantitatively tied to PM
compliance. Further, the opacity level triggers reporting that the opacity/PM surrogate level has
been exceeded and so there m~vhave been an exceedance of the PM level regardless of any
evidence to the contrary. For example, if an opacity/PM surrogate level of 15 were exceeded,
this
must be reported despite the fact that all fields in the ESP were on and operating, that stack
testing indicates the PM emissions level at the
95th
percentile confidence interval is 0.04
lb/mmBtu/hr, and that the likelihood there was an exceedance of the PM emissions limitation of
0.! lb/mmBtuihr is extremely low. The purpose of such reporting is unclear. It does not assure
compliance with the PM limit. Moreover, this reporting requirement is a
new substantive
requirement, according
to
Appalachian Power,
and is not
allowed under Title V. As such, these
conditions exceed the Agency’s gapfilling authority and are unlawful and arbitrary and
capricious.
48.
Contrary to the Agency’s assertion in the Responsiveness Summary, opacity does
not provide 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
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surrogate for PM
emissions levels, in fact, penalizes the best-operating units. Units that stack
test with very
low opacity and very low PM emissions levels are the units for which this
additional reporting will be
most frequently triggered. For example, if stack testing resulted in
PM emissions of 0.OOS lh/mmfltu and the opacity during the test at the 9S~’percentile confidence
interval
was 1, this condition in the permit would require the permittee to submit a report for
every operating hour for the
quarter, over 2,180 reports for the third quarter of 2005, stating that
the unit may have exceeded the PM limit. This condition will result in burdensome reporting
that serves no purpose. As such, it exceeds the Agency’s authority
to gapfihl, is unlawful, and is
arbitrary and capricious.
49.
Further, this condition effectively creates a false low opacity limitation. In order
to avoid the implication that there
may have been an exceedance of the PM limit, the opacity
limit becomes that level that is the upper bound at the
95ih
percentile confidence interval in the
PM testing. By including these conditions, the Agency has created a new, substantive
requirement without having complied with proper
rulemaking procedures. This is unlawful and
beyond the scope of the Agency’s authority under Section 39.5 of the Act and Title V of the
Clean Air Act. It also violates the provisions of Title VII of the
Act.
See Appalachian Power.
50.
These conditions could invite some sources to perform stack testing under
atypical operating conditions,
i.e.,
to “detune” the units, in order to push the bounds of
compliance with the PM limit, That is, to identify more realistic operating conditions that would
result in emissions closer to the PM limit,6 a source might perform stack tests with some
6
Kincaid Generation’s policy is that the boilers be operated in a compliant manner. During stack tests,
Kincaid Gencration has consistenity operated the boilers in a normal mode, meaning that all pollution control
devices are operating, the boiler is operating at normal and maximum load, and so forth, PM test results typically
are nowhere near the PM limit. PM emissions levels during Kincaid’s last stack tests were at
0.008
lb/mm3tu (Unit
1) and 0.006 lbfmmj3tu (Unit 2), well in compliance with the PM limitation.
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elements of the ESP turned off. Testing in a manner that generates results close to the PM limit
may result in opacity that exceeds the opacity limit. This is counter-intuitive and not in keeping
with good air pollution control practices. Moreover, arguably, sources could operate at these
detuncd levels and still be in compliance but emit more pollutants than they typically do now.
These hypothetical situations illustrate the flaw with this condition.
SI.
Periodic stack testing according to the schedule contained in Condition
7.l.7(a)(iii) and good operational practices fill the gap. Periodic stack testing according to the
schedule in Condition 7.1 .7(a)(iii) is sufficient to assure compliance with the PM limit and
satisfy the periodic monitoring requirements of Section 3c.5(7)(d)(ii) of the Act according to the
Appalachian Power
court. In fact, “periodic stack testing” is the Agency’s own phrase in
Condition 7.1 .7(a)(iii) and is consistent with the findings
ofAppalaclilan Power.
52.
Conditions 7.1 .l0-2(d)(v)(C) and (D) in particular are repetitious of Condition
7.1.1 0-2(d)(iv). Both require descriptions of the same incident and prognostications as to how
the incidents can be prevented in the future. One such requirement, Condition 7.1.l0-2(d)(iv), is
sufficient to address the Agency’s concern, although Kincaid Generation also objects to
Condition 7.1.1 0.2(d)(iv) to the extent that it requires reporting related to the opacity surrogate.
53.
As with Condition 5.6.2(d) discussed above, Condition 7.I.9(c)(ii) denies Kincaid
Generation due process. Condition 7.1 .9(c)(ii) requires that the
rjecords.
.
.
that identify the upper bound of the 95 confidence
interval (using a normal distribution and 1 minute averages) for
opacity measurements.
. .
,
considering an hour of operation,
within which compliance with the PM limit is assured, with
supporting explanation and documentation.
.
. .
shall be submitted
to the Illinois EPA in accordance with Condition 5.6.2(d).
Like Condition 5.6.2(d), Condition 7.1 .9(c)(ii) denies Kincaid Generation due process for the
same reasons. Kincaid Generation was not granted the opportunity to appeal the condition
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before it was required to submit information that Kincaid Generation believes is not useful or
reliable.
54.
Finally, Condition 7.1.1 0-2(d)(vi) requires Kincaid Generation to submit a
glossary of “common technical terms used by the Permittee” as part of its reporting of
opacity/PM exceedance events. If the tenns are “common,” they do not require definition. ‘l’his
requirement does not appear anywhere else in the permit, which supports there being no need for
these definitions in this condition. This requirement has no basis and should be deleted from the
permnit.
55.
Consistent with the APA, Conditions 7.l.9(c)(ii), 7.I.9(c)(iii)(B), 7.1.10-1(a),
7.
I
.1 0-2(a)(i)(E), 7. 1.1 0-2(d)(iv), 7.1. I 0-2(d)(v). 7.1 .20-2(d)(vi), 7.1 .1 0-3(a)(ii). and 7. 1
. 12(b),
contested herein, and any other related conditions that the Board finds appropriate are stayed,
and Kincaid Generation requests that the Board order the Agency to delete these conditions.
(ii)
Reporting the Magnitude of PM Emissions
56.
Somewhat consistent with its direction for PM, the Agency also requires Kincaid
Generation to determine and report the magnitude of PM emissions during startup and operation
during malfunction and breakdown.
See
Conditions 7.1 .9(g)(i), 7.1 .9(g)(ii)(C)(V),
7. 1.9(h)(ii)(D)(ITI), and 7.1.1 0-2(d)(iv)(A)(lIl), Compliance with these conditions is not possible
and, therefore, these conditions are arbitrary and capricious. Kincaid Generation does not have a
means for measuring the magnitude of PM emissions at any time other than during stack testing
—
not even using the opacity surrogate. There is no certified, credible, or reliable alternative to
stack testing to quantify PM emissions.
57.
Additionally, Condition 7.1.1 0-2(dXiv)(A)(V) requires Kincaid Generation to
identif~’“the means by which the exceedance of the PM emissions limit was indicated or
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identified, in addition to the level of opacity.” Kincaid Generation believes this means that it
must provide any additional information it might have that indicates an cxccedancc of the PM
emissions limit. Like the above statements regarding opacity, this condition is an inappropriate
and inaccurate basis for detennining whether there are exccedanccs of the PM limit and the
magnitude of any such exceedanc.e. As discussed above, stack testing is the only reliable method
of testing for PM emissions exceedances, and stack testing is not done continuously.
58.
Consistent with the APA. Conditions 7.1.9(g)(i), 7.l.9(g)(ii~C)(V),
7.1 .90)(ii)(D)(lll), and7.l .1O—2(d)(iv). specifically 7.1 .10-2(d)(iv)(A)(lII) and (5), contested
herein. are stayed. and Kincaid Generation requests that the Board order the Agency to delete
these conditions from the permit.
(iii)
PM Testing
59.
Kincaid Generation interprets the language in Condition 7.1 .7(a)(i) to mean that
stack testing that occurs after December 31, 2003, and before September 29, 2006, satisfies the
initial testing requirement included in the permit. However, the language is not clear and should
be rewritten.
60.
The Agency has included a requirement in the permit at Condition 7.1 .7(b)(iii)
that Kineaid Generation perform testing for PMI0 condensibles. First, this requirement is
beyond the scope of the Agency’s authority to include in a CAAPP permit, as such testing is not
an “applicable requirement,” as discussed below. Second, even if the condition were
appropriately included in the permit, the language of Condition 7.1 .7(b)*7 is not clear as to the
timing of the required testing, largely because of the lack of clarity of Condition 7.l.7(a)(i).
The asterisk is in the permit.
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61.
Regarding the requirement in Condition 7.1 .7(bXiii) for Method 202 testing. the
Agency has exceeded its authority because there is no regulatory requirement that applies PMIO
limitations to the Kincaid Generating Station. For this reason, the requirement should he
removed from the permit. At the least, the requirement should be set aside in a state-only portion
of the CAAPP permit, although Kincaid Generation believes its inclusion in any permit would he
inappropriate. In the Responsiveness Summary at page 18, the Agency stated, ~Thc requirement
for using both Methods 5 and 202 is authorized by Section 4(b) of the Environmental Protection
Act.” Section 4(b) of the Act says:
The Agency shall have the duty to collect and disseminate such
information, acquire such technical data, and conduct such
experiments as may be required to cany out the purposes of this
Act, including ascertainment of the quantity and nature of
discharges from any contaminant source and data on those sources,
and to operate and arrange for the operation of devices for the
monitoring of environmental quality.
415 ILCS 5/4(b). While the Agency has authority to gather information, this authority does not
extend under Title V to requiring a facility to test for PM10 condensibles, because that testing is
not an “applicable requirement” under Title V. As discussed above, an “applicable requirement”
is one that applies to the permittee pursuant to a federal regulation or a SIP. That Method 202 is
one of USEPA’s reference methods does not make it an “applicable requirement” pursuant to
Title V, as the Agency suggests in the Responsiveness Summary.
62.
Also regarding Condition 7.1 .7(h)(iii), the structure of the Board’s PM regulations
establish the applicable rcquirements for the Kincaid Generating Station. The Kincaid
Generating Station is subject to 35 Ill.Adm.Code 2l2.Subpart E, Particulate Matter Emissions
from Fuel Combustion Emission Units. It is not and never has been located in a PMIO
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nonattainnient area.8 ‘lhc F3oards PM regulations are structured such that particular PM 10
requirements apply to identified sources located in the PM10 nonattainment areas.9 No such
requirements apply now or have ever applied to the Kincaid Generating Station.
63.
The measurement method for PM, found at 35 lll.Adm.Code
§
212.110,
references only Method 5 or derivatives of Method 5. This section of the Board’s rules applies
to the Kineaid Generating Station. ‘l’he measurement method for PMIO, on the other hand, is
found at 35 lll.Adm.Code
§
212.108, Measurement Methods for PM-b Emissions and
Condensible PM-TO Emissions. ‘This section references both Methods Sand 202, among others.
The Kincaid Generating Station is not subject to PMIO limitations and thus is not subject to
§
212.108, regardless ofthe 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. While this is a
true statement for tests of PMIO condensihles under
§
212.108, it has no bearing on facilities
subject only to PM testing under
§
212.110. Therefore, there is no basis for thc Agency to
include a requirement for Method 202 testing in the CAAPP permit, which is limited to including
2rlly applicable requirements and such monitoring, recordkeeping, and reporting that are
necessary to assure compliance.
64.
In fact, the Agency 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 te~stmeasurements that are applicable for determiniflg
In fact, there are no more I’M 10 nonanainment areas in the state.
See 70
Fed.Reg. 55541 and 55545
(September 22, 2005), redesignating to attainment the McCook and Lake Calumet nonattainment areas., respectively.
Presumably, these sources will remain subject to those requirements as part of Illinois’ maintenance plan.
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çg~pliaricewith PM emissions standards and limitations, which
ggperally_do not include condensable sicl PM emissions. In
addition, since condensable_sici P Meniissions are no~~~’ec~jo
emission standards.
Responsiveness Summary, p. 18. (Emphasis added.) Further, the Agency says, “Regulatorily,
only filterable1
lOb
PM emissions need to he measured.” Responsiveness Summary. p. 18. ‘fhe
Agency attempts to justify inclusion ofthe requirement for testing condensibles by stating that
the data are needed lo “assist in conducting assessments of the air quality impacts of power
plants, including the Illinois EPA’s development ofan attainment strategy for PM2.5.”
Responsiveness Summary, p. 18. Under the Board’s rules, it is limited to testing for PM, and so
its “regulatory applicability” is limited.
65.
While the Agency has a duty under Section 4(h) to gather data, it must he done in
compliance with Section 4(h). Section 4(b), however, does not create or authorize the creation of’
permit conditions. Only the Board’s rules serve as the basis for permit conditions. Requiring
such testing in the CAAPP pennit is not appropriate, and as such, it is unlawfiul and exceeds the
Agency’s authority.
66.
The requirement for Method 202 testing must be deleted from the permit.
Consistent with the APA, Condition 7.1 .7(b)* and the inclusion of Method 202 in Condition
7.1 .7(b)(iii), contested herein, are stayed, and Kincaid Generation requests that the Board order
the Agency to delete the requirement
for
Method 202 testing from the permit.
(iv)
Measuring
CO Concentrations
67.
The CAAPP permit issued to the Kincaid Generating Station requires Kincaid
Generation to conduct, as a work practice, quarterly “combustion evaluations” that consist of
“diagnostic measurements of the concentration of CO in the flue gas.”
See
Condition 7.1.6(a).
~Ic., non-gaseous
PM;
condensibles are gaseous.
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See
ct/so
Conditions 7. I.9(a)(vi) (related rceordkeeping requiremenu. 7.l.l0-1(a)(iv) (related
reporting requirement), and 7.1.12(d) (related compliance procedure requirement). Ihese
provisions are not necessary to assure compliance with the underlying standard, are not required
by the Hoard’s regulations, and. therefore, exceed the Agency’s authority to gapfill. Maintaining
compliance with the CO limitation has historically been a work practice, thus its inclusion in the
work practice condition of the permit. Sophisticated control systems are programmed to
optimize boiler efficiency, which serves to minimize CO emissions.. At Kincaid and elsewhere,
compliance with the CO limitation has been accomplished through combustion maximization
optimization techniques. This approach is sufficient and should not he changed. Ambient air
quality is not threatened, and stack testing has demonstrated that emissions of CO at the Kincaid
Generating Station, at 101 ppm at Unit I and 62 ppm at Unit 2 during diagnostic stack testing,
are significantly below the standard of 200 ppm.
68.
In the case of CO. requiring the stations to purchase and install equipment to
monitor and record emissions of a pollutant that stack testing demonstrates they comply with and
for which the ambient air quality is in compliance by a large margin is costly and burdensome
and, therefore, arbitrary and capricious. In order to comply with the “work practice”~of
performing “diagnostic testing” that yields a concentration of CU, Kincaid Generation would be
required to purchase and install or operate some sort of monitoring device with no environmental
purpose served.
69.
Furthermore, the Agency has failed to provide any guidance as to how to perform
diagnostic measurements of the concentration of CO in the flue gas. It is Kincaid Generations’
Kincaid Generation questions how the requirement that the Agency has included in Condition 7.1.6(a) is
classified as a “work practice.” To derive a concentration of CO emissions, Kincaid Generation will have to engage
in monitoring or testing
—
the work practice of combustion optimization that has been the standard historically.
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understanding that a sample can he extracted from any point in the furnace or stack using a
probe. This sample can then be preconditioned (removal of water or particles, dilution with air)
and analyzed. The way in which the sample is preconditioned and analyzed, however, varies.
Given the lack of guidance and the variability in the way the concentration of CO in the flue gas
can be measured, the data generated is not sufficient to assure compliance with the CO limit and
is. therefore, arbitrary and capricious. Stack testing, on the other hand, does yield data sufficient
to assure compliance with the CO limit.
require Kincaid70.
TnGenerationaddition, Conditionsto
provide
7.1estimates.9~(i),of7.1the.9(g)(ii)(C)(V),magnitude
of COandemitted7,1
.9(xii)a~)(1I1)’during
startup2
and operation during malfunction and breakdown. The monitoring device that Kincaid
Generation would have to use for the quarterly diagnostic evaluations required by Condition
7.1.6(a)
is a portable CO monitor, which it is believed do not give continuous readout recordings.
Rather, they must be manually read, Witat the Agency is effectively requiring through the
recordkeeping provisions of Conditions 7.1 .9(g)(i), 7.1 .9(g)(ii)(C)(5), and 7.1 .9(h)(ii)(D)(3) is
that someone continually read the portable CO monitor during startup, which could take as long
as 36 hours, and during malfunctions and breakdowns, which are by their nature unpredictable.
in
the first case (startup), the requirement is unreasonable and burdensome and could
be
dangerous in some weather conditions. Malfunctions and breakdowns would have the same
problems that would occur during startup, and the unpredictability of
malfunctions
and
breakdowns may make it impossible for Kincaid Generation to comply with the condition.
71.
The requirement to perform diagnostic measurements of the concentration of CO
in the flue gas is arbitrary and capricious because the Agency has failed to provide any guidance
~ Related conditions arc 7.l.lO-l(a)(iv) (reporting) and 7.1.12(d) (compliance proccdures).
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as to how to perform the diagnostic measurements. Kincaid Generation can only speculate as to
how to develop and implement a tbrtnula and protocol Ibr performing diagnostic measurements
of the concentration ofCO in the flue gas in the manner specified in Condition 7.1.6(a).
USEPA has not required similar conditions in the permits issued to other power plants in Region
5. lhercfore, returning to the work practice of good combustion optimization to maintain low
levels ofCO emissions is approvahlc by I.JSEPA and is appropriate for CO in Kincaid’s permit.
72.
Consistent with the APA, Conditions 7.1.6(a), 7.l.9(a)(vi), 7.l.9(g)(i).
7.1
.9~g)(ii)(C).7.l.9(h’jOi)(D). 7.1 .10-1(a)(iv), and 7.1.12(d), contested herein, and any other
related conditions that the Board finds appropriate are stayed, and Kincaid Generation requests
that the Board order the Agency to delete these requirements from the permit. Kincaid
Generation also requests that the Board order the Agency to amend Condition 7.1.6(a) to reflect
a requirement for work practices optimizing boiler operation, to delete the requirement for
estimating the magnitude of CO emitted during startup and malfunction and breakdown, and to
amend the corresponding recordkeeping, reporting, and compliance procedures accordingly.
(v)
Applicability of 35 IlLAdm.Code 217.Subpart V
73.
The Agency has included the word
each
in Condition 7.1.4(1): “The affected
boilers are each subject to the following requirements
(Emphasis added.) Because of the
structure and purpose of
35
ltl.Adm.Code
217.Subpart
V, which is the requirement that the NOx
emissions rate &om certain coal-fired power plants during the ozone season average no more
than
0.25
lb/mmBtu across
the state,
Kincaid Generation submits that the use of the word
each
in
this sentence is misplaced and confusing, given the option available to the Kincaid Generating
Station to average emissions among affected units in infinite combinations.
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74.
Consistent with the APA, Conditions 7.1.4(l) and 7.1 .4j)O)(A) are stayed, and
Kincaid Generation requests that the Board order the Agency to delete the word
each
from the
sentence quoted above in Condition 7.1.4(0 and to insert the word
each
in Condition
7.1
.4ffl(i)(A) if the Board agrees that its inclusion is necessary at all, as follows: “~lheemissions
ofNOx from an each affected boiler...,”
(vi)
Startup Provisions
75.
As is allowed by Illinois’ approved Title V program, CAAP1~permits provide an
affirmative defense against enforcement actions brought against a pcrmittcc for emissions
exceeding an emissions limitation during startup. The provisions in the Board’s rules allowing
for operation of a CAAPP source during startup are located at 35 1l1,Adm.Code 20l.Subpartl.
These provisions, at
§
201.265 refer back to
§
201.149 with respect to the affirmative defense
available. The rules nowhere limit the length of time allowed for startup, and the records and
reporting required by
§
201.263, the provision that the Agency cited as the regulatory basis for
Condition 7.1.9(g). do not address startup at all; it is limited in its scope to records and reports
required for operation during malfunction and breakdown where there are excess emissions.
Therefore, one must conclude that the records that the Agency requires here are the result of
gapfilling and are limited to what is necessary to assure compliance with emissions limits.
76.
Kincaid Generation is already required to provide information regarding when
startups occur and how long they last by Condition 7.1
.9(g)(ii)(A).
Condition 7.1 .9(g)(ii)(B)
requires some additional information relative to startup. Emissions of SO2, NOx, and opacity
during startup are continuously monitored by the CEMS/COMS. Midwest Generationhas
already established that the magnitude of emissions of PM and CO cannot be provided
(see
above). The additional information that the Agency requires in Condition 7.1 .9(g)(ii)(C) after a
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six-hour period does nothing to assure compliance with the emissions limitations, which is the
purpose of the permit in the First place. and so exceeds the Agency’s authority to gapfill.
Moreover, this “additional” information would scrve no purpose were it to be required even after
the 26 hours typical for suuiup.
77.
Consistent with the APA. Condition 7.l.9(g)(ii)( ), contested herein, is stayed,
and Kincaid Generation requests that the Board order the Agency to delete the condition,
consistent with the startup provisions of
35
Ill.AdimCode
§
201.149 and the inapplicability of
§
201.263.
(vii)
Malfunction and Breakdown
Provisions
78.
Illinois’ approved Title V program allows the Agency to grant sources the
authority to operate during malfunction and breakdown, even though the source emits in excess
of its limitations, upon certain showings by the permit applicant. Ihe authority must be
expressed in the permit, and the Agency has made such a grant of authority to Kincaid
Generation. This grant of authority serves as an affirmative defense in an enforcement action,
Generally see
Condition 7.1.3(c).
79.
With this grant of authority, Condition 7.l.10-3(a)(i) requires Kincaid Generation
to notify the Agency “immediately” if it operates during malfunction and breakdown and there
could he PM exceedances. As pointed out above, there is currently no proven or certified
methodology for measuring PM emissions other than through stack testing. Therefore, Kincaid
Generation must notify the Agency if it suspects that there have been PM exccedances, The
Agency has provided no regulatory basis for this reporting and no guidance on how to make this
judgment call. Reference to reliance on opacity as an indicator of PM emissions should also be
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deleted. The condition as written exceeds the scope of the Agency’s authority to gaplill and so is
tmlawful, arbitrary and capricious.
80.
Also in the final version Condition 7.1.
lO-3(a)(i).
the Agency has deleted the
word
consecutive
as a trigger for reporting opacity and potential
PM
exceedanccs during an
“incident.” Its deletion completely changes the scope and applicability of the condition.
Please
see
Kincaid Generation’s comments on each version of the permit in the Agency Record. As the
series of comments demonstrates, it was not tintil the draft revised proposed permit issued in July
2005 that the Agency had deleted the concept of consecutive six-minute averages of opacity
from this condition. Moreover, the methodology for using consecutive six-minute averages has
been common practice in the underlying permit.
81.
The Agency has provided no explanation for this change. As the actual opacity
cxceedance could alone comprise an “incident,” Kincaid Generation believes that it is more
appropriate to retain the word
consecutive
in
the
condition. Random, intermittent exeeedances of
the opacity limitation do not necessarily comprise a malfunction/breakdown “incident.” On the
other hand, a prolonged period of opacity exceedance does possibly indicate a
malfunction/breakdown “incident,” In the alternative, Kineaid Generation suggests that the
Agency add a two-hour timeframe during which these six or more 6-minute opacity averaging
periods
could occur to be consistent with the next condition, 7.1.1 0-3(a)(ii). Likewise, a
timeframe is not included in Condition 7.1.1 0-3(a)(ii), which appears to refer to the same
“incident” that is addressed by Condition 7.1 .1 0-3(a)(i). Kincaid Generation suggests
that the
Agency qualify the length of time during which the opacity standard may have
been
exceeded
for
two or more hours to 24 hours.
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82.
Consistent with the AP.A, Condition 7.1.1 0—3(a)(i), contested herein, is stayed,
and Kincaid Generation requests that the Board order the Agency to delete it from the permit as
it relates to PM. Consistent with the APA, Condition 7.1.l0-3(a)Oi), contested herein, is stayed
and Kincaid Generation requests that the Board order the Agency to remove the reference to PM
emissions and to insert a timefranie to span the six-minute opacity averaging periods to make
them consecutive or. in the aliernative, to require that they occur within a two-hour block,
(viii) Alternative Fuels Requirements
83.
The Agency has included at Conditions 7.l.5(a)(ii)-(iv) requirements that apply
when Kincaid uses a fuel other than coal as its principal mel. Condition 7.1 .5(a)(ii) identifies
what constitutes using an alternative fuel as the principal fuel and establishes emissions
limitations. Condition 7.1 .5(a)(iii) also describes the conditions under which Kincaid would be
considered to be using an alternative fuel as its principal fuel, Condition 7.l.5(a)(iv) requires
notification to the .Agency prior to Kincaid’s use of an alternative fuel as its principal fuel.
84.
Inclusions of these types of requirements in Condition 7.1.5, the condition
addressing non-applicability of requirements, is organizationally misaligned under the permit
structure adopted by the Agency. These provisions should he included in the proper sections of
the permit, such as 7.1.4 for emissions limitations and 7.1.10 for notifications. In the alternative,
they should be in Condition 7.1.11(c), operational flexibility, where the Agency already has a
provision addressing alternative fuels. As the Agency has adopted a structure for the CAAPP
permits
it would
that
he useful
is fairly
for
consistent
the Agency
not
to
only
include
among
specific
units
reeordkeeping
in a single permit
requirements
but also among
in the
permits,’
same
3
sections.
~That is, Condition 7x.9 for alt types of emissions units in this permit, from boilers to tanks, addresses
recordkeeping. Likewise, condition
7.x.9
addresses recordkeeping in all of the CAAPP permits for EGUs.
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85.
Additionally, at Condition 7.1.1 I(c)(ii), the
Agency’s
placement of the examples
of alternative fuels defines them as hazardous wastes. The intent and purpose of the condition is
to ensure that these alternative fuels are not classified as hazardous wastes, The last phrase of
the condition, beginning with “such as petroleum coke. tire derived fuel...,” should he placed
immediately afler “Alternative fuels” with punctuation and other adjustments to the language as
necessary, to clarify that the examples listed are not hazardous wastes.
86.
For these reasons, Conditions 7.1.5(a)( i), 7.
1.5(a)(iii), 7.1 .5(a)(iv),
and
7.1.11 (c)(ii)
are stayed pursuant to the APA, and Kincaid Generation requests that the Board
order the Agency to place Conditions
7.l.5(a)(ii)-(iv)
in more appropriate sections of the permit
and to clarify Condition 7.1.1 1(c)(ii).
(ix)
Stack Testing Requirements
87.
Condition 7,1.7(e) identifies detailed information that is to be included in the
stack test reports, including target levels and settings. To the extent that these requirements are
or can be viewed as enforceable operational requirements or parametric monitoring conditions,
Kincaid Generation contests this condition. Operation of an electric generating station depends
upon many variables
—
ambient air temperature, cooling water supply temperature, fuel supply,
equipment variations, and so forth
—
such that different settings are used on a daily basis. Stack
testing provides a snapshot of operating conditions within the scope of the operational paradigm
set forth in the permit at Condition 7.1.7(b) that is representative of normal or maximum
operating conditions, but using those settings as some type of monitoring device or parametric
compliance data would be inappropriate.
88.
Consistent with the APA, Condition 7.1.7(e), contested herein, is stayed, and
Kincaid Generation requests that the Board order the Agency’ to delete it from the permit.
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(x)
Monitoring and Reporting Pursuant to
NSPS
89.
It
appears from various conditions in the permit that the Agency believes that
Kincaid is subject to NSPS monitoring and reporting requirements pursuant to the Acid Rain
Program. Kincaid Generation’s review of the Acid Rain requirements does not show how NSPS
applies to Kincaid. The Acid Rain Program requires monitoring and reporting pursuant to 40
CFR Part
75.
Specifically,
40 CER
§
75.21(b) states that continuous opacity monitoring shall be
conducted according to procedures set forth in state regulations where they exist. Recordkeeping
is addressed at
§
75.57(t) and reporting at
§ 75.65.
None of this references Part 60, NSPS.
90.
Arguably. it is odd that a permittee would appeal a condition in a permit that
states that regulatory provisions are not applicable. l-lowcver, consistent with Kincaid
Generation’s analysis of the Acid Rain requirements, the permit, and the Board’s regulations, it
must
also
appeal Condition
7.1.5(b), which
exempts Kincaid from the requirements of 35
1lI.Adm.Code 201.Subpart L based upon the applicability of’NSPS. NSPS does not apply to the
Kincaid Generating Station through the Acid
Rain Program, and so this condition is
inappropriate.
91.
Conditions 7.1.l0-2(b)(i), 7.l.I0-2(c)(i)
and 7.l.10-2(d)(i) require Kincaid
Generation to submit summary information on the performance of the
SO2,
NOx, and opacity
continuous monitoring systems,
respectively, including the information specified at
40
CFR
§ 60.7(d).
Condition
7.1. 10-2(d)(iii)
Note
refers,
also, to NSPS
§~
60.7(c)
and (d). The
information required at
§ 60.7(d)
is inconsistent
with the information required by
40
CFR
Part
75,
which
are the federal reporting requirements applicable to Kincaid Generation’s
boilers.
Section
60.7(d)
is not an “applicable requirement,” as the boilers are not subject to the NSPS.
For Kincaid Generation to comply with these conditions would entail reprogramming or
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purchasing and deploying additional sotiware for the computerized CEMS, effectively resulting
in the imposition of additional substantive requirements through the CAAPP permit exceeding
the allowance thr gaplilling. Moreover, contrary to Condition 7.1.l0-2(d)(iii), Kincaid
Generation does not iind a regulatory link between the NSPS provisions of 40 CFR 60.7(c) and
(d) and the Acid Rain Program.
92.
Consistent with the APA, Conditions 7.1.5(h), 7.1.1 0-2(h)(i), 7.1. l0-2(c)(i).
7.1.l0-2(d)(i)
and 7.l.l0-2(d)(iii) Note. contested herein, are stayed, and Kincaid Generation
requests that the Board order the Agency to delete reference to 40 CER 60.7(d).
(xi)
Opacity Compliance Pursuant to
§
212.l23(b)
93.
The Board’s regulations at 35 lll.Adm.Code
§
212,123(b) provide that a source
may exceed the 30 opacity limitation of
§
212.123(a) for an aggregate of eight minutes in a 60-
minute period but no more than three times in a 24-hour period. Additionally, no other unit at
the source located within a 1,000-foot radius from the unit whose emissions exceed 30 may
emit at such an opacity during the same 60-minute period. Because the opacity limit at
§
212.123(a) is expressed as six-minute averages pursuant to Method 9
(see
Condition
7.1.12(a)(i)), a source demonstrating compliance with
§
212.123(b) must reprogram its COMS to
record or report opacity over a different timeframe than would be required by demonstrating
compliance with
§
212.123(a) alone, The Agency attempts to reflect these provisions at
Condition 7.1.12(a), providing for compliance with
§
212.123(a) at Condition 7.l.12(a)(i) and
separately addressing
§
212.123(b) at Condition 7.1 .12(a)(ii). Additionally, the Agency requires
Kincaid Generation to provide it with 15 days’ notice prior to changing its procedures to
accommodate
§
212.123(b) at Condition 7.1.12(a)(ii)(E). These conditions raise several issues.
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94.
Condition 7.1 .1 2(a)(ii) assumes that accommodating the “different” compliance
requirements of
§
212,123(b), as compared to
§
212.123(a). is a change in operating practices.
Whether it is or is not a change in operating practices is immaterial under the rule. Moreover, as
with Kincaid Generation’s objection to Condition 5.6.2(d), Condition 7.l.12(a)(ii)(E) is an
attempt by the Agency to inser itself into the operational practices of a source beyond the scope
of its authority to do so. ‘The Agency states that the purpose of the 15 days’ prior notice is so that
the Agency can review the source’s recordkecping and data handling procedures, presumably to
assure that they will comply with the requirements implied by
§
212.123(h). As with Condition
5.6.2(d), the risk lies with the pcrmittce.
If,
during an inspection or a review of a quarterly
report, the Agency linds that Kincaid Generation has not complied with
§ 212.l23(b)’s
implied
data collection requirements. then the Agency is authorized by the Act to take certain actions,
Kincaid Generation takes the responsibility for the data capture and recordkeeping necessary for
compliance with
§
212.123(h).
95.
Moreover, while Condition 7.l.l2(a)(ii)(F) says that the Agency will review
Kincaid’s recordkeeping and data handling practices, it says nothing about approving them or
what the Agency plans to do with the review. The Agency has not explained a purpose of the
requirement in a statement-of-basis document or in its Responsiveness Summary or shown how
this open-ended condition assures compliance with the applicable requirement. Because the
Kincaid Generating Station is required to operate a COMS, all of the opacity readings captured
by the COMS are recorded and available to the Agency, allowing the Agency the opportunity to
determine whether Kincaid has complied with
§
212.123(b). The 15 days’ prior notice will not
improve the Agency’s ahility to determine Kincaid’s compliance.
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96.
Conditions 7.1.1 0-3(a)(i) and (ii) do not accommodate the applicability of
§
212.123(h). The Board’s regulations do not limit when
§
212.123(h) may apply beyond eight
minutes per 60 minutes three times per 24 hours. Therefore, any limitation on opacity must
consider or accommodate the applicability of
§
2 12.123(b) and not assume or imply that the only
applicable opacity limitation is 30.
97.
Finally, inclusion of recordkeeping and notification requirements relating to
§
212.123(b) in the compliance section of the permit is organizationally misaligned under the
permit structure adopted by the Agency. ‘These provisions, to the extent that they are appropriate
in the first place, should be included in sections such as 7.1.9 for recordkeeping and 7.1,10 for
reporting. As the Agency has adopted a structure for the CAAPP permits that is fairly consistent
not only among units in a single permit hut also among permits, it would be useful for the
Agency to include specific recordkceping requirements in the same sections.
98.
Consistent with the APA. Condition 7.1.12(a)(ii), contested herein, is stayed, and
Kincaid Generation requests that the Board order the Agency to delete the condition from the
pennit. Additionally, consistent with the APA. Conditions 7.1.10-3(a)(i) and (ii), contested
herein, are stayed, and, if the Board does not order the Agency to delete these conditions from
the permit pursuant to other requests raised in this appeal, Kincaid Generation requests that the
Board order the Agency to amend these conditions to reflect the applicability of~212.123(b).
K Coal Handling Equipment, Coal Processing Equipment, and Fly Ash Equipment
(Sections
7.2, 7.3, and 7.4)
(1)
Fly Ash Handling v. Fly Ash Processing Operation
99.
No processing occurs within the fly ash system. It is a handling and storage
operation the same as coal handling and storage. The Agency recognizes in Condition 7.4.5 that
the NSPS for Nonmetallic Mineral Processing Plants does not apply “because there is no
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equipment used to crush or grind ash.’ Fhis underscores Kincaid Generation’s point that the fly
ash handling system is not a process.
100.
Because the fly ash operations at the Kincaid Station are not a process, they are
not subject to the process weight rate rule at
§
2 12.321(a), which accordingly is not an applicable
requirement under Title V As such, Condition 7.4.4(c) and all other references to the process
rate weight rule or
§
212.32 1(a), including in Section 10 of the permit, should be deleted.
101.
Since the fly ash operation is not a process, reference to it as a process is
inappropriate. The word
process’
and its derivatives in Section 7.4 of the permit should be
changed to
operation
and its appropriate derivatives or. in one instance, to
hand/ed,
to ensure
that there is no confusion as to the applicability of* 212.321(a).
102.
Consistent with the APA, the Conditions 7.4.3, 7.4.4, 7.4.6, 7.4,7, 7.4.8, 7.4.9,
7.4.10, and 7.4.11, all of which are contested herein, are stayed, and Kincaid Generation requests
that the Board order the Agency to delete the Conditions 7.4.4(c), 7.4.9(b)(ii). and all other
references to the process weight rate rule, including in Section 10, and add Condition 7.4.5(b)
identi~’ing
§
212.321(a) as a requirement that is not applicable to Kincaid.
(ii)
Fugitive Emissions Limitations
and
Testing
103.
The Agency has applied the opacity limitations of~212.123 to sources of fugitive
emissions at the Kincaid Generating Station through Conditions 7.2.4(b), 7.3.4(b), and 7.4.4(b),
all
referring back to Condition 5.2.2(h). Applying the opacity limitations of~212.123 to sources
of fugitive emissions is improper and contrary to the Board’s regulatory structure covering PM
emissions. In its response to comments to this effect, the Agency claims that
n~othingin the State’s air pollution control regulations states that
the opacity limitation does not apply to fugitive emission units.
The
regulations at issue broadly apply to ‘emission units.’
Moreover, while not applicable to these power plants, elsewhere in
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the State’s air pollution control regulations, opacity limitations are
speci lically set f’or fugitive particulate matter emissions at marine
terminals, roadways, parking lots and storage piles.
Responsiveness Summary, p.4l.
104.
That the Agency had to specifically establish fugitive emissions limitations for
such sources is a strong indication that the regulatory structure did not apply the opacity
limitations of~212.123 to fugitive sources. Fugitive emissions are distinctly different in nature
from point source emissions, in that point source emissions are emitted through a stack, while
fugitive emissions arc not emitted through some discrete point. Therefore, fugitive emissions are
addressed separately in the Board’s rule at 35 l1l.Adm,Code 2l2.Suhpart K. These rules call thr
fugitive emissions plans and specifically identify the types of sources that are to he covered by
these plans. Condition 5.2.3 echoes these requirements, and Condition 5.2.4 requires the fugitive
emissions plan.
105.
The limitations for fugitive emissions are set forth at
§
212.301. It is a no-visible-
emissions standard, as viewed at the property line of the source. The measurement Tnethods for
opacity are set forth at
§
2 12.109, which requires application of Method 9 as applied to
§
212.123. It includes specific provisions for reading the opacity of roadways and parking areas.
However,
§
212.107, the measurement method for visible emissions, says, “this Subpart shall
not apply to Section 2 12.301 of this Part.” Therefore, with the exception of roadways and
parking lots, the Agency is precluded from applying Method 9 monitoring to fugitive emissions,
leaving no manner for monitoring opacity from fugitive sources other than the method set forth
in
§
212.301. This reinforces the discussion above regarding the structure of Part 212 and that
§
2 12.123 does not apply to sources
of
fugitive emissions other than where specific exceptions to
that general nonapplicability are set forth in the regulations.
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106.
As
§
212.107 specifically excludes the applicability of Method 9 to fugitive
enussions, the requirements of Condition 7.2.7(a), 7.3.7(a), and 7.4.7(a) are inappropriate and do
not reflect applicable requirements. Therefore, they. along with Conditions 7.2.4(b), 7.3.4(b),
and 7.4.4(b). must he deleted from the permit. Except for roadways and parking lots,
§
212.123
is not an applicable requirement for fugitive emissions sources and the Agency’s inclusion of
conditions for fugitive sources based upon
§
212.123 and Method 9 is unlawful. ‘l’othe extent
that Condition 7.2.12(a), 7.3.12(a), and 7.4.12(a) rely on Method 9 for demonstrations of
compliance, it, too, is unlawful.
107.
The Agency also requires stack tests nithe haghoases at Conditions 7.2.7(b),
7.3.7(b), and 7.4.7(h). PM stack testing would be conducted in accordance with ‘lest Method 5.
I lowever, a part of complying with Method 5 is complying with Method 1. which establishes the
physical parameters necessary to test. Kincaid (ieneration cannot comply with Method 1. At
Kineaid. the stacks and vents for sources such as small baghouses and wetting systems are
narrow and not structurally built to accommodate testing ports and platforms for stack testing.
‘l’he PM emissions for these types of emissions units are very small. The inspections,
monitoring, and recordkeeping requirements are sufficient to assure compliance. These
conditions should be deleted from the permit.
108.
For these reasons, consistent with the APA, Conditions 7.2.4(b), 7.2.7(a),
7.2.12(a), 7.3.4(b), 7.3.7(a), 7.3.12(a). 7.4.3(b), 7.4.7(a), and 7.4.12(a),
all
contested herein, are
stayed, and Kincaid Generation requests that the Board order the Agency to delete these
conditions to the extent that they require compliance with
§
212.123 and Method 9 or stack
testing and, thereby, compliance with Methods I and 5.
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(iii)
Testing Requirements for Coal Handling, Coal Processing, and Fly Ash Handling
Operations
109.
The final permit provides at Condition 7.4.7(a)(ii) that Kincaid Generation
conduct the opacity testing required at Condition 7.4.7(a)(i) for a period of at least 30 minutes
“unless the average opacities for the first 12 minutes of observation (two six-minute averages)
are both less than 5.0 percent.” The original draft and proposed permits (June 2003 and October
2003, respectively) contained no testing requirement for fly ash handling. This testing
requirement first appeared in the draft revised proposed permit of December 2004, and at that
time allowed for testing tube discontinued if the first 12 minutes’ observations were both less
than 10.
In the second draui revised proposed permit (July 2005), the Agency inexplicably
reduced the threshold for discontinuation of the test to 5.
110.
The Agency provided no explanation for (I) treating fly ash handling differently
from coal handling in this regard (see Condition 7.2.7(a)(ii)”t) or (2) reducing the threshold from
1 0°/hto 5.
Because the Agency failed to provide an explanation for this change, Kincaid
Generation did riot have the opportunity to comment on the change and does not understand the
Agency’s rationale. ‘l’hus, the inclusion of this change in the threshold for discontinuing the
opacity test is arbitrary and capricious. Condition 7.4.7(a)(ii) is inextricably entwined with
7.4.7(a), and so Kincaid Generation appeals this underlying condition as well.
111.
The final permit provides at Condition 74.7(a)Oi) that Kincaid Generation
conduct the opacity testing required at Condition 7.4.7(a)(i) for a period of at least 30 minutes
“unless the average opacities for the first 12 minutes of observation (two 6-minute averages) are
both less than 5.0 percent.” The original draft and proposed permits (June 2003 and October
~“The duration of opacity observations for each test shall be at least 30 minutes (five 6-minute averages)
unless the average opacities for the first 12 minutes of observations (two 6-minute averages) are both less than 10,0
percent.” (Emphasis added.)
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2003, respectively) contained no testing requirement for fly ash handling. This testing
requirement first appeared in the draft revised proposed permit of December 2004, and at that
time allowed for testing to he discontinued if the first 12 minutes’ observations were both less
than 10,
In the second draft revised proposed permit (July 2005). the Agency inexplicably
reduced the threshold for discontinuation of the test to S.
112.
For these reasons, Condition 7.4.7(a), which is again contested herein, is stayed,
and Kincaid Generation requests that the Board order the Agency to amend Condition 7.4.7(a)(ii)
to reflect the 10 threshold, rather than the S threshold, for discontinuation of the opacity test,
although Kincaid Generation specifically does not concede that Method 9 measurements are
appropriate in the first place.
(v)
Inspection Requirements for Coal Handling, Coal Processing, and Fly Ash Handling
Operations
113.
Conditions 7.2.8(a), 7.3.8(a), and 7.4.8(a) contain inspection requirements for the
coal handling, coal processing, and fly ash handling operations, respectively. In each case, the
condition requires that “Itihese inspections shall be performed with personnel not directly
involved in the day-to-jday operation of the affected operations
“ The Agency provided no
basis for this requirement other than a discussion, after the permit was issued, in the
Responsiveness Summary’ at page 19. The Agency’s rationale is that the personnel performing
the inspection should be ‘“fresh” and “‘independent” of the daily operation, but the Agency
does not tell us why being “fresh” and “independent” are “appropriate” qualifications for such an
inspector. ‘J’he Agency rationalizes that Method 22
(i.e.,
observation for visible emissions)
applies, and so the inspector need have no particular skill set. The opacity requirement lbr these
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operations is not 0 or no visible emissions at the point of operation. hut rather at the property
line. Therefore,
114.
Thereexactlyis nowhatbasistheinobserverlaw or practicalityis
supposedfortothislookprovision.at is not atJoall
identifyclear.t~in a CAAPP
permit condition who can perform an inspection is overstepping the Agency’s authority and
exceeds any gapfilling authority that may somehow apply to these observations of Fugitive dust.
The requirement
must
he stricken
from
the
permit.
115.
The Agency has included in Conditions 7.2.8(h) and 7.3.8(b) that inspections of
coal handling and coal processing operations be conducted every 15 months while the process is
not operating. Condition 7.4.8(h) contains a corresponding requirement for fly ash handling, but
on a nine-month frequency. ‘l’he Agency has not made it clear in a statement of basis or even the
Responsiveness Summary why these particular frequencies for inspections are appropriate.
Essentially, the Agency is creating an outage schedule, as these processes are intricately linked to
the operation of the boilers.. In any given area of the plant, station personnel are constantly alert
to any “abnormal” operations during the course of the day. Although these are not formal
inspections, they are informal inspections and action is taken to address any “abnormalities”
observed as quickly as possiblc.
it
is Kincaid Generation’s best interest to run its operations as
efficiently and safely as possible. While the Agency certainly has gapfIlling authority, the
gapfihling authority is limited to what is necessary to ensure compliance with permit conditions.
See Appalachian Power.
It is not clear at all how these frequencies of inspections accomplish
that end,
116,
Moreover, the Agency does not provide a rationale as to why the frequency of fly
ash handling inspections should be greater (more frequent) than for the other operations.
~The Agency’s requirements in this condition also underscore Kincaid Generations appeal ot the
conditionsapplying an opacity limitatian to frigitive sources, above at Section lll.F.(ii).
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117.
As these operations must be inspected when they are not operating, and as they
would not operate during an outage ofthe boiler, it is not necessary for the Agency to dictate the
frequency of the operations. Rather, inspections should he linked to boiler outages. Moreover,
these operations are inspected on monthly or weekly bases pursuant to Conditions 7.2.8(a).
7.3.8(a). and 7.4.8(a), and so any maintenance issues will be identified.
118.
Conditions 7.2.8(h), 7.3.8(b), and 7.4.8(h) require detailed inspections of the coal
handling, coal processing, arid fly ash handling operations both before and after maintenance has
been performed. The Agency has not provided a rationale for this requirement and has not cited
an applicable requirement for these conditions. This level of detail in a CAAPP permit is
unnecessary and inappropriate and exceeds the Agency’s authority to gapfill. these
requirements should he deleted from the permit.
119.
Condition 7.2.8(a) requires inspections of the coal handling operations on a
monthly basis and provides “that all affected operations that are in routine service shall he
inspected at least once during each calendar month.” Until the July 2005 draft revised proposed
permit, the language in this clause was “that all affected operations shall he inspected at least
once during each calendar quarter.”
~lhe Agency has provided no explanation as to why the
frequency of inspections has been increased. Also, since the first sentence of the condition
already states that these operations are to be inspected on a monthly basis, the last clause of the
condition is superfluous.
120.
For these reasons, Conditions 7.2.8(a), 7.3.8(a), and 7.4.8(a), which are contested
herein, are stayed consistent with the APA, and Kincaid Generation requests that the Board order
the Agency to delete those provisions of these conditions that dictate who should perform
lb
That is, not all aspects of the coal handling operations are
required lobe inspected during
operation on a
monthly basis.
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inspections of these operations. to delete the requirement contained in these conditions that
Kincaid Generation inspect hefore and after maintenance and repair activities. Additionally,
Conditions 7.2.8(b). 7.3.8(b), and 7.4.8(b) and any related conditions, are contested herein, are
stayed pursuant to the APA, and Kincaid Generation requests that the Board order the Agency to
alter the frequency of the inspections to correspond to boiler outages.
(vi)
Recordkeeping Requirements for Coal Handling, Coal Processing, and Fly Ash
Handling Operations
121.
Condition 7.2.9(a)(i)(C) requires Kincaid Generation to submit a list identifying
coal conveying equipment considered an “affected facility” for purposes ofNSPS. Such a list
was included in the application, and that should suffice. Moreover, the equipment in question is
subject to the NSPS identified in Condition 7.2.3(a)(ii), and so has already been identified in the
permit itself A second list is not necessary to ensure compliance with emissions limitations.
The equipment has been permitted historically. Moreover, the condition requires submission of
this list pursuant to Condition 5.6.2(d), which is addressed earlier in this Petition. Condition
7.2.9(a)(i)(C) should be deleted from the pennit.
122.
Likewise, the demonstrations confirming that the established control measures
assure compliance with emissions limitations, required at Conditions 7.2.9(b)(ii). 7.3.9(b)(ii) and
7.4.9(h)(ii), have already been provided to the Agency in the construction and CAAPP permit
applications. These conditions, therefore, are unnecessary, and resubmitting the demonstrations
pursuant to Conditions 7.2.9(b)(iii), 7.3.9(b)(iii), and 7.4.9(b)(iii) serves no compliance purpose.
Also, Conditions 7.2.9(b)(iii), 7.3.9(b)(iii), and 7.4.9(b)(iii) rely upon Condition 5.6.2(d),
contested herein. Conditions 7.2.9(b)(ii), 7.2.9(b)(iii), 7.3.9(b)(ii), 7.3.9(b)(iii), 7.4.9(b)(ii), and
7.4.9(b)(iii) should be deleted from the permit.
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123.
Moreover, Conditions 7.2.9(h)( ii). 7.3.9(h)(iii), and 7.4.9(b)(iii) include reporting
requirements within the recordkccping requirements. contrary to the overall structure of the
permit. Kincaid Generation has already objected to the inclusion of these conditions for other
reasons. In any event, they should not appear in Condition 7.x.9.
124.
Conditions 7.2.9(d)(ii)U
),
7.3.9(c)(ii)(l
),
and 7.4.9(ii)(
)
are redundant of
7.2.9(d)(ii)(E), 7.3.9(e)(ii)(E), and 7,4,9( )(ii)(E), respectively. Such redundancy is not
necessary. Conditions 7.2.9(d)(ii)(B), 7.3.9(c)(ii)(B), and 7.4.9(c)(ii)(H) should he deleted from
the permit.
125.
Conditions 7.2.9(e)(ii), 7.2.9(e)(vii), 7.3.9(d)(ii), 7.3.9(dXvii), 7.4.9(d)(ii), and
7.4.9(d)(vii) require Kincaid Generation to provide the magnitude of PM emissions during an
incident where
the
coal handling operation continues without the use of control measures.
Kincaid Generation has established that it has no means to measure exact PM emissions from
any process on a continuing hasis. The Agency understands this. Therefore, it is not appropriate
for the Agency to require reporting of the magnitude of PM emissions.
126.
‘l’he Agency uses the
word process
in Condition 7.2.9(f)(ii) rather than
operation.tm7
While this may seem a minor point, it is a point with a distinction. i’he word
process,
as the Board can see in Section 7.4 of the permit relative to the fly ash handling
operation, could implicate the applicability of the process weight rate rule. lo avoid anyone’s
confusing coal handling as an operation subject to the process weight rate rule, Kincaid
Generation requests that the Board order the Agency to substitute
operation
or some other
synonym
for process
in this context.
17
“Records For eacim incident when operation ofaim affected QLQ&~continued during malftmnction or
breakdown
(Emphasis added.)
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l27.
The Agency provided no rationale or authority for including of Condition
7.4.9(cXi)(B),
observations of accumulations of fly ash in the vicinity of the operation. The
Agency did address this condition afler the fact in the Responsiveness Summary, but did not
provide an acceptable rationale for the provision. The Agency says, with respect to the
accumulation of fines, as Follows:
Likewise, the identification of accumulations of fines in the
vicinity of a process does not require technical training. It merely
requires that an individual be able to identify accumulations of coal
dust or other material. This is also an action that could be
performed by a member of the general public. Moreover, this is a
reasonable requirement for the plants for which it is being applied,
which are required to implement operating programs to minimize
emissions offligitive dust. At such plants, accumulations of fines
can potentially contribute to emissions of fugitive dust, as they
could become airborne in the wind.
Responsiveness Summary, p. 19. The heart of the matter lies in the next-to-last sentence:
“plants
. .
which are required to implement operation programs to minimize emissions of
fugitive dust.” This is accomplished through fugitive dust plans, required at 35 Ill,Adm.Code
§
212.309 and Condition
5.2.4.
The elements of ffigitive dust plans are set forth at
§
212,310 and
do not include observations of accumulations of fines. In fact, nothing in the Board’s rules
addresses observing the accumulation of fines.
128.
Observing accumulations of fines is not an applicable requirement; therefore, its
inclusion in the permit violates Title V and
Appalachian Power
by imposing a new substantive
requirement upon the permittee through the Title V permit. Additionally, observing
accumulations of fines is not gapfilling, as it is not necessary to assure compliance with the
permit. The assurance of compliance with the fugitive dust requirements rests within the
adequacy of the fugitive dust plan, which must he submitted to the Agency for its review,
pursuant to
§
212.309(a), and periodically updated, pursuant to
§
212.312. If the permittee does
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not comply with its fugitive dust plan or the Agency finds that the fugitive dust plan is not
adequate. there are procedures and remedies available to the Agency to address the issue.
Likewise, the Agency eaiuiot supplement the fugitive dust plan, the control plan, through the
permit. It is a priority of Kincaid to maintain its facility clear of fines for safety and
environmental requirements.
129.
Given that the fly ash system results in few emissions, rarely breaks down, and is
a closed system, there is no apparent justification for the trigger for additional recordkeeping
when operating during malfunction/breakdown being only one hour in Condition 7.4.9(e)(ii)(E)
compared to the two hours allowed for coal handling (Condition 7.2.9(f)jii)(E) and coal
processing (Condition 7.3.9(e)(ii)(E)), The Agency has provided no rationale for this difference.
Moreover, in earlier versions of the permit, this time trigger was two hours
See
the June 2003
draft permit and the October 2003 proposed permit.
130.
For these reasons, Conditions 7.2.9(a)(i)(C), 7.2.9(h)(ii), 7.2.9(b)(iii), 7.2.9(e)(ii),
7,2.9(e)(vii), 7.2.9(f)(ii), 7.3.9(h)(ii), 7.3.9(b)(iii), 7.3.9(c)(ii)(B), 7.3,9(c)(ii)(E), 7.3.9(d)(ii),
7.3.9(d)(vii), 7,4.9(b)(ii), 7.4.9(b)(iii), 7.4.9(c)O)(B), 7.4.9(c)Oi)(B), 7.4.9(c)(ii)(F), 7.4.9(d)(ii),
and 7.4.9(e)(ii)(E), all contested herein, are stayed consistent with the APA, and Kincaid
Generation requests that the Board order the Agency to delete Conditions 7.2.9(a)(i)(C),
7,2.9(b)(ii), 7.2.9(h)(iii), 7.2.9(d)(ii)(B), 7.3.9(b)(ii), 7.3.9(b)(iii), 7.3.9(cl)(ii)(B), 7,4.9(b)(ii),
7.4.9(h)(iii), 7.4.9(c)(i)(B), 7.4.9(c)(i)(B) and 7.4.9(d)(ii); add the concept of estimating the
magnitude ofPM emissions to Condition 7.2,9(e)(ii), 7.3.9(d)(ii), 7.3.9(e)(ii), 7.4.9(d)(ii), and
7.4.9(d)(vii); substitute the word
operation
for the word
process
in Condition 7.2.9(f)(ii); and
change one hour to two hours in Condition 7.4.9(e)(ii)(E).
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(vii)
Reporting Requirements for Coal Handling. Coal Processing, and Fly Ash Handling
Operations
131.
Conditions 7.2. lO(a)(ii), 7.3. 0(aXii). and 7.4.l0(a)(ii) require notification to the
Agency fur operation of support operations that were not in compliance with the applicable work
practices of Conditions 7.2.6(a), 7.3.6(a), and 7.4.6(a), respectively, for more than 12 hours or
four hours with respect to ash handling regardless of whether there were excess emissions.
Conditions 7.2.6(a), 7.3.6(a), and 7.4.6(a) identify the measures that Kineaid Generation employs
to control fugitive emissions a the Kincaid Generating Station. Implementation of these
measures is set forth in the fugitive dust plan required by Condition 5.2.4 and
§
212.309 but not
addressed in Conditions 7.2.6, 7.3.6, or 7.4.6. The Agency’s concern here in Conditions
7.2. l0(a)(ii), 7.3. l0(a)(ii). and 7.4.lO(a)(ii) should be with excess emissions and not with
whether control measures are implemented within the past 12 or four hours, as the fugitive dust
plan does not require implementation of those control measures continuously. There are
frequently 12- or four-hour periods when the control measures are not applied because it is not
necessary that they be applied or it is dangerous to apply them. These conditions should he
amended to reflect notification of excess emissions and not of failure to apply work practice
control measures within the past 12 or four hours, Kincaid Generation notes also that the
Agency has provided no explanation as to why ash handling in Condition 7.4,1 0(a)(ii) has only a
four-hour window while coal handling and processing have a 12-hour window.
132.
Conditions 7.2.10(b)(i)(A), 7.3.i0(b)(i)(A), and 7.4.I0(b)(i)(A) require reporting
when the opacity limitation
ni~i
have been exceeded. That a limitation iip~yhave been exceeded
does not rise to the level of an actual exceedance. These conditions are beyond the Agency’s
authority to require such reporting.
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133.
Additionally. in these same conditions
(i.e.,
7.2. I0(b)(i)(A). 7,3. lO(b)(i)(A). and
7.4.10(b)(i)(A))), the Agency requires reporting if opacity exceeded the limit for “five or more
60-minute averaging periods” (“four or more” for ash handling). The next sentence in the
condition says, “Otherwise,
.
. .
for no more than five 6-minute averaging periods
“The ash
handling provision says “no more than three” (Condition 7.4.1 0(h)(i)(A)). The language in
Condition 7.4.1 0(h)(i)(/) is internally consistent: however, the language in Conditions
7.2. l0(b)(i)(A) and 7.3.1 O(h)(i)(A) is not. It is difficult to tell from these two conditions whether
five six-minute averaging periods of excess opacity readings do or do not require reporting. In
earlier versions of the permit, five six-minute averaging periods did not trigger reporting. In lhct,
the August 2005 proposed versions of the permit is the first time that five six-minute averages
triggered reporting. ‘he conditions should he amended to clarify that excess opacity reporting in
Conditions 7.2.10(b)(i)(A) and 7.3.I0(h)(i)(A) is triggered after five six-minute averaging
periods and, as discussed below, that these averaging periods should be consecutive or occur
within some reasonable outside timeframe and not just randomly.
134.
As is the case with other permit conditions for the fly ash handling operations, the
reporting requirements during malfunction/breakdown at Condition 7.4.1 0(h)(i)(A) for this
support operation are different from those for the coal handling and coal processing operations.
Kincaid Generation must notify the Agency immediately for each incident in which opacity of
the
fly ash operations exceeds the limitation for four or more six-minute averaging periods, while
for coal handling and coal processing, such notification is required apparently
(see
discussion
above) only after five six-minute averaging periods.
See
Conditions 7.2,1 0(b)(i)(A) and
7.3.l0(h)0)(A). The Agency has provided no basis for these differences or for why it changed
the immediate reporting requirement for ash handling from five six-minute averaging periods, as
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in the October 2003 proposed permit, to the four six-minute averaging periods. Additionally, the
Agency has deleted the time frame during which these opacity exceedances occur in this
provision’8 in all three sections
— 7.2.10(b)(i)(A),
7.3.lO(h)(i)(A).
and 7.4.10(b)(i)(A).
Cf.
the
October 2003 proposed permit. 1he lack of a timeframe for these operations has the same
problems as discussed above regarding the boilers. The trigger for reporting excess opacity for
all three of these operations should he the same tinieframe. The Agency has provided no
justification for these differences. Also, given the complexities of the permitting requirements
generally, these different reporting timeframes make compliance more challenging. No
environmental purpose is served by having them different.
135.
The Agency requires at Conditions 7.2.10(b)(ii)(
), 7.3.10(b)(ii)(C),
and
7.4.10(b)(ii)(C)
that Kincaid Generation aggregate the duration of all incidents during the
preceding calendar quarter when the operations continued during malfunction/breakdown with
excess emissions. Kincaid Generation is already required at Conditions 7.2.1 0(h)(ii)(A),
7.3.10(h)(ii)(A). and 7.4.10(b)(ii)(A) to provide the duration of each incident. It is unclear why
the
Agency needs this additional data. The Agency has not identified any applicable requirement
for this provision
other
than the
general
reporting provisions of Section 39.5 of the Act, and it is
not appropriate gapfilling. For these reasons,
these
conditions should be deleted.
136.
Conditions 7.2.1
0(b)(ii)~,
7.3.
10(b)(ii)(D),
and 7.4.
I0(b)(ii)(D)
require
reporting that there were no incidents of malfunctionlbreakdown, and so no excess emissions, in
the quarterly report. I’he provisions in Section 7.1.1 0-2~~require reporting only if there are
excess emissions, and Condition 7.1.10-3, which addresses malfunction/breakdown specifically,
8
That
is,
that
the
averaging periods
are
consecutive or occur within some tinieframc,
such as
two
hours.
‘~
Conditions 7.
,10-2(b)Oii), (c)0H), (d)(iii), and
(dxiv).
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requires only notification and onl~of excess emissions. Reporting requirements for the support
operations during malfunction/hreakdown should be limited to reporting excess emissions and
should not he required if there are no excess emissions.
137.
For these reasons, Conditions 7.2.1 0(a)(ii), 7.2. 10(b)(i)(A). 7.2.1 0(h)(ii)(C),
7.2. lO(hXii)(D). 7.3. l0(a)(ii), 7.3.1 0(b)(i)(A), 7.3.10(b)(ii)(C), 7.3.I0(b)(ii)(D), 7.4.lO(a)(i).
7.4.l0(h)(i)(A), 7.4.10(h)(ii)(C), and 7.4.l0(h~ii)(D),all contested herein, are stayed pursuant to
the APA, and Kincaid Generation requests that the Board order the Agency to qualify that
Conditions 7.2.lO(a)( i). 7.3.l0(a)(ii), and 7.4.lO(a)(ii) are limited to notification when there are
excess emissions rather than when control measures have not been applied for a 12-hour period
or four-hour period in the case of ash handling; to add a timeframe for opacity exceedances
occurring during operation during malfunction/breakdown for immediate reporting to the
Agency in Conditions 7.210(b)(i)(A), 7.3.I0(b)(i)(A), and 7.4.10(b)(i)(. ); to change thenumber
of six-minute averaging periods to six and to delete the requirement for reporting suppositions of
excess opacity in Conditions 7.2.l0(h)(i)(A), 7.3.l0(bXiXA), and 7.4.lO(b)(i)(A); to delete
Conditions 7.2.1 0(b)(ii)(C), 7,3. l0(b)(ii)(C). 7.4.1 0(b)(ii)(C).
F. Maintenance and Repair Loss
(Sections 7.1, 7.2. 7.3, 7.4 73, 7.6)
138.
The permit includes requirements that Kincaid Generation maintain maintenance
and repair logs for each of the permitted operations. However, the requirements associated with
these logs differ among the various operations, which adds to the complexity of the permit
unnecessarily. Specifically, Conditions 7.l,9(b)(i), 7.2.9(a)(ii), 7.3.9(a)(ii), 7.4.9(a)(ii),
7.5.9(a)(ii)
and 7.6.9C require logs for each control device or for
the
permitted equipment
without regard to excess emissions or malfunction/breakdown. Conditions 7. I .9(h)(i),
7.2.9(0(i), 7.3.9(e)(i), and 7.4.9(e)(i) require logs for components of operations related to excess
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emissions during malfunctior~reakdown.Conditions 7.2.9(d)(i)(C), 7.3.9(c)(i)(C). and
7.4.9(c)(i)(C) require descriptions of recommended repairs and maintenance, a review of
previously recommended repair and maintenance, apparently addressing the status of the
completion ofsuch repair or maintenance. Conditions 7.2.9(d)(ii)(B)-(E), 7.3.9(c)(ii)(B)-(E),
and 7,4.9(c)(ii)(B)-(E) go even further to require Kincaid Generation to record the observed
condition of the equipment and a summary of the maintenance and repair ihat has been or will he
performed on that equipment, a description of the maintenance or repair that resulted from the
inspection, and a summary of the inspector’s opinion of the ability of the equipment to
effectively and reliably control emissions.
139.
Each section of the permit should he consistent on the recordkeeping
requirements for maintenance and repair of emission units and their respective pollution control
equipment. Consistency should be maintained across the permit for maintenance and repair logs
whereby records are required only if any emission unit, operation. process or air pollution control
equipment has a malfunction and breakdown with excess emissions.
140.
Conditions 7.2.9(d)(i)(D). 7.3.9(c)(i)(D) and 7.4.9(e)(i)(D) require “a summary
of the observed implementation or status of actual control measures, as compared to the
established control measures.“‘fhese conditions are ambiguous, without clear meaning, and
should be deleted from the permit.
141.
These requirements exceed the limitations on the Agency’s authority to gapfill.
1he purposes of maintaining equipment are multifold, including optimization of operation as
well as for environmental purposes. The scope of the Agency’s concern is compliance with
environmental limitations and that is the scope that should apply to reeordkeeping. The
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maintenance logs required in this pernut should be consistently limited to logs of repairs
correcting mechanical prohlems that caused excess emissions.
142.
For these reasons. Conditions 7.1 .9(b)(i), 7.2.9e Xii), 7.2.9(d)(i)(C).
7.2.9(d)0)(D). 7.2.9(d)(ii)(B)—(1
),
7.3.9(a)(ii). 7.3.9(c)(i)(C), 7.3.9(c)(i)(D), 7.3.9(c)(ii)(B)-(E).
7.4.9(a)(ii). 7.4.9(c)(iXC). 7.4.9(c)(i)(D), 7.4.9(c)(ii)(B)-(h), 7.6.9(a)(ii). and 7.7.9(a)(ii), all
contested herein. are stayed consistent with the APA, and Kincaid Generation requests that the
Board order the Agency to delete these conditions.
(.
l’esting Protocol Requirements
(Sections
7.1,
7.2, 7.3, 7.4)
143.
The permit contains testing protocol requirements in Section 7.1, 7.2, 7.3, and 7.4
that unnecessarily repeat the requirements set forth at Condition 8.6.2. Condition 8.6.2, a
General Permit Condition. provides that specific conditions within Section 7 may supersede the
provisions of Condition 8.6.2. Where the conditions in Section 7 do not supersede Condition
8.6.2 hut merely repeat it, those conditions in Section 7 should be deleted. Duplicate
requirements potentially expose Kincaid to allegations of violations based upon multiple
conditions, when those conditions are mere redundancies. It is arbitrary and capricious and such
conditions in Section 7 should be deleted from the permit.
144.
More specifically, Conditions 7.l.7(c)(l), 7.2.7(b)(iii), 7.3.7(h)(iii), and
7.4.7(b)(iii) repeat the requirement that test plans be submitted to the Agency at least 60 days
prior to testing. This 60-day submittal requirement is part of Condition 8.6.2 as well. Condition
7.1.7(e),
on the other hand, properly references Condition 8.6.3 and requires additional
information in the test report without repeating Condition 8.6.3. However, Conditions
7.2.7(b)(v). 7.3.7(b)(v), and 7.4.7(h)(v) require information in the test report that is the same as
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the information required by Condition 8.6,3. To the extent that the information required by the
conditions in Section 7 repeat the requirements of Condition 8.6.3, they should be deleted.
145.
For these reasons, Conditions 7.1 .7(e)(1), 7.2.7(h)(iii). 7.2.7(b)(v), 7.3.7(b)(iii).
7.2.7(h)(v), 7.4.7(b)(iii). and 7,4.7(h)(v). contested herein, are stayed pursuant to the APA, and
Kincaid Generation requests that the Board order the Agency to delete Conditions 7.l,7(c)(1),
7.2.7(b)(iii), 7.3.7(h)(iii), and 7.4.7(h)(iii) and to amend Conditions 7.2.7(b)(v), 7.3.7(h)(v), and
7.4.7(h)(v) such that they do not repeat the requirements of Condition 8.6.3.
H. Standard Permit Conditions
(Section 9)
146.
Kincaid Generation is concerned with the scope of the term “authorized
representative” in Condition 9.3, regarding Agency surveillance. At times, the Agency or
USEPA may employ contractors who would he their authorized representatives to perform tasks
that could require them to enter onto Kineaid Generation’s property. Such representatives,
whether they are the Agency’s or USEPA’s employees or contractors, must he subject to
the
limitations imposed by applicable Confidential Business Information (“CBI”) claims and by
Kineaid Generation’s health and safety rules. Kincaid Generation believes that this condition
needs to make it clear that Kincaid Generation’s CBI and health and safety requirements are
limitations on surveillance,
147.
For these reasons, Condition 9.3, contested herein, is stayed pursuant to the APA,
and Kincaid Generation requests that the Board order the Agency to clarify the limitations on
surveillance in the condition as set forth above.
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WI IFREFORE,
for the reasons set fbrth herein. Petitioner Kineaid (ieneration requests a
hearing before the Board to contest the decisions contained in the CAAPP permit issued to
Petitioner on September 29, 2005. The permit contested herein is not effective pursuant to
Section 10-65 of the Administrative Procedures Act (5 lEGS 100/10-65). In the alternative, to
avoid potential confusion and uncertainty described earlier and to expedite the review process,
Petitioner requests that the Board exercise its discretionary authority to stay the entire permit.
Kincaid Generations state operating permit will continue in hill force and effect, and the
environment will not he harmed by this stay. Further, Petitioner requests that the Board remand
the permit to the Agency and order it to appropriately revise conditions contested herein and any
other provision the validity or applicability of which will be affected by the deletion or change in
the provisions challenged herein and to reissue the CAAPP pennit.
Respectfully submitted,
KINCAID GENERATION. L.L.C.,
KINCAID GENERATING S ATION
by:
__
One of Its Attorneys
Dated:
Novemher 3,2005
Sheldon A. Zabel
Kathleen C. Bassi
Stephen A. Bonehrake
Joshua R. More
Kavita M. Patel
SCHIFF HARDIN, LLP
6600 Sears Tower
233 South Wacker Drive
Chicago. Illinois 60606
312-258-5500
Fax: 312-258-5600
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