WILL COUNTY GENERATING STATION,

)

)

Petitioner,

)

v.

)

)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

)

Respondent.

NOTICE OF FILING

To: Pollution Control Board, Attn: Clerk

James R. Thompson Center

100 W. Randolph

Suite 11-500

Chicago, Illinois 60601

Sally Carter

Robb Layman

Division of Legal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue, East

P.O. Box 19276

Springfield, Illinois 62794-9276

Bradley P. Halloran

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, Illinois 60601

PLEASE TAKE NOTICE that I have today electronically filed with the Office of the

Clerk of the Pollution Control Board

Motion for Leave to File Reply, Reply to Agency’s

Response in Opposition to Petitioner’s Request for Stay

, and

Waiver of Decision Date

,

copies of which are herewith served upon you.

_____/s/

Kathleen C. Bassi

______

Kathleen C. Bassi

Dated:

May 12, 2006

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006

---

Sheldon A. Zabel

Kathleen C. Bassi

Stephen J. Bonebrake

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, MAY 12, 2006

---

WILL COUNTY GENERATING STATION,

)

)

Petitioner,

)

v.

)

)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

)

)

Respondent.

)

CERTIFICATE OF SERVICE

I, the undersigned, certify that I have served the attached

Motion for Leave to File

Reply, Reply to Agency’s Response in Opposition to Petitioner’s Request for Stay

, and

Waiver of Decision Date

,

by electronic delivery upon the following

person:

and by electronic and first class mail upon

the following persons:

Pollution Control Board, Attn: Clerk

James R. Thompson Center

100 W. Randolph

Suite 11-500

Chicago, Illinois 60601

Sally Carter

Robb Layman

Division of Legal Counsel

Illinois Environmental Protection Agency

1021 North Grand Avenue, East

P.O. Box 19276

Springfield, Illinois 62794-9276

Bradley P. Halloran

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street, Suite 11-500

Chicago, Illinois 60601

_____/s/

Kathleen C. Bassi

______

Kathleen C. Bassi

Dated:

May 15, 2006

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006

---

Sheldon A. Zabel

Kathleen C. Bassi

Stephen J. Bonebrake

Kavita M. Patel

SCHIFF HARDIN, LLP

6600 Sears Tower

233 South Wacker Drive

Chicago, Illinois 60606

312-258-5500

Fax: 312-258-5600

CH2\ 1401280.2

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006

---

Petitioner,

ILLINOIS ENVIRONMENTAL

Respondent.

MIDWEST GENERATION, LLC,

WILL COUNTY GENERATING STATION,

)

1

)

PCB 06-156

)

(Permit Appeal

-

Air)

1

1

)

RESPONSE IN OPPOSITION TO PETITIONER'S REOUEST FOR STAY

NOW COMES Petitioner, MIDWEST GENERATION, LLC, WILL COUNTY

GENERATING STATION (

"Petitioner" or "Midwest Generation"), by and through its attorneys,

Schiff

Hardin, LLP, pursuant to 35

Il1.Adm.Code

5

101.500(e), and moves that the Board grant

Petitioner leave to file the attached Reply to the Agency's Response in Opposition to Petitioner's

Request for Stay. In support of this Motion, Petitioner states as follows:

1.

On March 3,2006, the Illinois Environmental Protection Agency ("Agency")

granted a construction permit, Construction Permit No. 06020009, to Midwest Generation for the

construction of new wet dust extractors for the Unit 3 and

4 coal bunkers at the Will County

Generating Station.

2.

On April 7,2006, Petitioner filed a petition with the Board appealing portions of

the Agency's decisions reflected in the construction permit and requesting a stay of only certain

conditions contained in the construction permit. The Board accepted the permit appeal for

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006

---

hearing on April 20,2006, but reserved ruling on the request for partial stay until the Agency had

the opportunity to file its Response to the request for partial stay.

3.

On April 25,2006, the Agency filed its Response in Opposition to Petitioner's

Request for Stay (

"Response"). Midwest Generation received an electronic copy of the

Response from the Agency on April 25,2006, and was served with the Response on May

4,

2006, though it was postmarked April 26. Based upon the mailbox rule, this Reply is due to the

Board by May 15,2006. 35

111.Adm.Code 3 101.300(a). In its Response, the Agency argues that

the request for stay is overly broad and objects to the partial stay on that basis. Resp.,

7

16.

4.

In its Response, the Agency argues that the automatic "stay" provisions of the

Administrative Procedure Act, 5 ILCS

100110-65, do not apply and then that the request for

partial stay of only certain conditions of the permit is overly broad. The Agency suggests that

the Board should rely on the

"traditional factors frequently considered by the Board in prior

proceedings

" in determining whether a partial stay is appropriate. While the Agency cites a

number of Board Orders where it has granted stays, the Agency does not delineate what these

"traditional factors" are and provides no guidance to the Board.

5.

Pursuant to 35

111.Adm.Code 3 101.500(e), "The moving person will not have the

right to reply, except as permitted by the Board or the hearing officer to prevent material

prejudice.

" Midwest Generation will be materially prejudiced if the Board does not grant

permission for it to file this Reply because the Agency has misstated the applicability of Section

10

-65 of the Administrative Procedure Act and has provided the Board with no guidance

regarding the factors that should be considered in granting a partial stay of a permit.

Additionally, the Agency observes that Midwest Generation objects to only portions of some of

the conditions appealed and states that

"the objectionable part of the permit condition can easily

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006

---

be segregated from the larger part of the condition." Resp.,

7

15. Midwest Generation would be

materially prejudiced if it were not granted the opportunity to identify what those lesser,

objectionable parts of the conditions are so that the Board, if so inclined, can grant a stay of less

than an entire condition.

WHEREFORE, for the reasons set forth above, Petitioner, MIDWEST GENERATION,

LLC, WILL COUNTY GENERATING STATION, requests that the Board grant its Motion for

Leave to File Reply to the Agency's Response in Opposition to Petitioner's Request for Stay and

accept for filing the attached Reply.

Respectfully submitted,

MIDWEST GENERATION, LLC,

WILL COUNTY GENERATING STATION

by:

Dated: May 12,2006

SCHIFF

HARDIN, LLP

Sheldon A. Zabel

Kathleen C. Bassi

Stephen

J. Bonebrake

Kavita M.

Patel

6600 Sears Tower

233 South Wacker Drive

Chicago, Illinois 60606

312

-258-5500

Fax: 3 12

-258-2600

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006

---

MIDWEST GENERATION, LLC,

WILL COUNTY GENERATING STATION,

1

Petitioner,

1

V.

)

PCB 06-156

)

(Permit Appeal

-

Air)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

1

Respondent.

1

TO PETITIONER'S REOUEST FOR STAY

NOW COMES Petitioner, MIDWEST GENERATION, LLC, WILL COUNTY

GENERATING STATION (

"Petitioner" or "Midwest Generation"), by and through its attorneys,

Schiff

Hardin, LLP, pursuant to 35 11l.Adm.Code

5

101.500(e), and replies to the Illinois

Environmental Protection Agency's (

"Agency") Response in Opposition to Petitioner's Request

for Stay (

"Response"). In support of this Reply, Petitioner states as follows:

I.

On March 3,2006, the Agency granted a construction permit, Construction Permit

No. 06020009, to Midwest Generation for the construction of a replacement pollution control

device, new wet dust extractors for the Unit 3 and

4 coal bunkers at the Will County Generating

Station.

2.

On April 7,2006, Petitioner filed a petition with the Board appealing portions of

the Agency's decisions reflected in the construction permit and requesting a stay of only certain

conditions contained in the construction permit. The Board accepted the permit appeal for

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006

---

hearing on April 20,2006, but reserved ruling on the request for partial stay until the Agency had

the opportunity to file its Response to the request for partial stay.

3.

On April 25,2006, the Agency filed its Response in Opposition to Petitioner's

Request for Stay with the Board electronically. Midwest Generation received an electronic copy

of the Response from the Agency on April 25,2006, and was served with

the Response on May

4, 2006, though it was postmarked April 26. Based upon the mailbox rule, this Reply is due to

the Board by May 15,2006. 35

11l.Adm.Code

5

101.300(a). In its Response, the Agency argues

that the request for stay is overly broad and objects to the partial stay on that basis. Resp.,

1

16.

4.

The Agency argues that Section 10-65 of the Administrative Procedure Act

("APA"), 5 ILCS 100/10-65, does not apply because the permit appealed is a construction

permit; therefore, the Agency argues, there is no activity of a continuing nature, as required by

Section

10-65(b), to trigger the applicability of that section. Resp., 19. However, the permit

issued, though titled a construction permit, includes authorization for Midwest Generation to

operate. Therefore, the permit is both a construction permit and an operating permit. The

conditions that Midwest Generation has appealed all relate to the portion of the permit that is an

operating permit. In that context, contrary to the Agency's contention, the underlying activity,

operation of the coal bunkers, is continuing in nature. Replacement of pollution control

equipment does not affect the need to operate or the continuing nature of the operation of the

coal bunkers. The pollution control equipment would not be needed nor would it operate absent

the presence of the coal bunkers, which is the source of the emissions being controlled. The

authorization to operate in Condition 11 addresses the

"affected operations,"

ie.,

the coal

bunkers,

y&

the new pollution control system. It cannot be disputed that operation of the coal

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006

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bunkers is a continuing activity. Therefore, Section 10-65 of the APA does apply to the portion

of this permit that is an operating permit.

5.

If the Board determines that the partial stay is unavailable and if Section 10

-65

does not apply to the portion of this permit that is an operating permit, the only way in which

Midwest Generation could safely preserve its rights of appeal of the language challenged in the

CAAPP Appeal is to shut down the Will County Generating Station, clearly an extreme outcome.

Will County cannot operate its boilers if it cannot operate its coal bunkers. Its choice of

replacing a type of pollution control equipment on the coal bunker has nothing to do with the

operation of the coal bunkers themselves, as the emissions from the coal bunkers will still be

controlled with this new equipment, which is better equipment than the rotoclones that are being

replaced. If Will County operated the coal bunkers pursuant to the language contained in the

construction permit, then it would be subject to provisions that it has appealed in Docket PCB

06

-060, contrary to Section 10-65. For the same reasons it should not he subject to those

provisions while that appeal is pending, it should not be subject to them pursuant to a separate

permit issued for a different reason. That is, Midwest Generation should not have to implement,

pursuant to this construction permit, measures that it has lawfully appealed in Docket 06

-060,

and it should not have to shut down its operations in order to preserve its rights under Docket

06-

060.

6.

Moreover, the only way in which the Board can protect its own jurisdiction and

authority in Docket 06

-060 is if a partial stay in this matter is available or to acknowledge that

the challenged permit conditions are stayed under Section 10

-65, discussed in greater detail

below. Without a stay here. the Agency can impose the challenged language despite the Board's

findings in Docket

06-060. To require a stay of the entire permit would, effectively, require Will

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006

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County to shut down in order to avoid imposition of the challenged provisions until the Board

completes its deliberations under Docket

06-060.

7.

The Agency argues that the "APA's automatic stay provision

. . .

is independent

of the statute's contested case procedures,

" apparently because the automatic stay provision is set

forth in Section 10

-65 regarding licenses, including permits. Resp.,

7

8. However, appeals of

licensing or permitting decisions are contested cases by definition. The APA defines

contested

cases

as follows:

"Contested case" means an adjudicatory proceeding (not

including ratemaking, rulemaking, or quasi

-legislative,

informational, or similar proceedings) in which the individual

legal rights, duties, or privileges of a party are required

by law to

be determined by an agency only after an opportunity for a

hearing.

5

ILCS 10011-30. Clearly, permit appeals fall within this definition. Furthermore, the Act

supports this definition by stating, in Section

40(a) regarding permit appeals, that the applicant

may

"petition for a hearing before the Board to contest the decision of the Agency." 41 5 ILCS

5/40(a). Therefore, Petitioner is very puzzled by the Agency's argument that the automatic stay

provision is independent from the APA's contested case procedures.

8.

Additionally, the Agency argues that because the automatic stay provisions of the

APA are independent of the statute's contested case provisions, the waiver provisions of Section

10-70,s ILCS 100110-70, do not apply to permit appeals. Resp.,

1

8. The Agency opines that

the

"General Assembly cannot be said to have authorized waiver of the APA's automatic stay

provision through language that specifically speaks only to contested cases.

" Resp.,

7

8.

However, the Agency fails to consider the entire context of Sections 10

-65 and 10-70 in the

APA. Article 10 of the APA addresses administrative hearings. Section 10

-65, regarding

licensure, contains the provisions applicable not only when a new or renewal license

-

or permit

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006

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-

is issued but also when issuance is denied or challenged. Such circumstances are clearly

contested cases, thus the inclusion of Section 10

-65 immediately following several sections

specifically addressing contested cases and the inclusion of Section 10

-70, immediately

following Section

10-65. Therefore, the argument that statutory placement somehow means that

the automatic stay provisions do not apply is misplaced.

9.

As for the partial stay, Section 10-70 provides for such a stay. In the case of

permit appeals, only the petitioner holds rights that may be waived, both with respect to the

Board's decision time of 120 days under the Act

-

i

e

,

the petitioner alone can waive that time,

see

415 ILCS 5/40(a)(2) and 35

111.Adm.Code

5

101.308(b) ("Where the petitioner does not

waive the decision deadline.

. . .") -

and to the automatic stay of Section 10-65 of the APA

-

i e

,

the petitioner is the only party granted the benefit of or right to the automatic stay and so only the

petitioner can waive that right in part. While the Board may not have historically couched its

grants of partial stays in this manner, its authority to recognize partial stays of the effectiveness

of appealed permits derives from Section 10

-70 of the APA.

10.

The Agency also challenges Petitioner's reliance on a footnote in the CAAPP

permit appeal for Will County, PCB 06

-060, as authority for the Board to recognize partial stays

of contested permits. Petitioner could have relied directly on the Board's Order in

Soyland

Power Cooperative, Inc v IEPA,

PCB 06-055 (January 5,2006). However, Soyland Power's

CAAPP permit appeal was filed on or about the same date as the CAAPP permit appeal filed for

Will County, and the documents generated

by Petitioners, the Agency, and the Board regarding

the 21 CAAPP permit appeals are very similar with the exception of

Soyland Power's partial

stay. Footnote 3 in the Board's February 26,2006, Order recognizing the applicability of the

automatic stay under Section 10

-65 of the APA in PCB 06-060 references the Order in

Soyland

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006

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Power.

Neither the Agency nor the Board nor the public was deprived of any relevant

information by reliance on that footnote rather than directly on the Order in

Soyland Power.

That the Board did not cite authority for the partial stay for Soyland Power does not obviate the

fact that the Board could not have recognized the partial stay if it was not authorized, and the

Agency did not challenge that authority in

Soyland Power.

11.

The Board, like any court or quasi

-judicial administrative agency, has inherent

authority to protect the integrity of its proceedings by granting stays. The Agency's Response

appears to support this concept by advocating the application of the

"traditional factors

frequently considered by the Board in prior proceedings,

" Resp.,

7

10, as the standard by which

the Board should determine whether it should grant a partial stay of the construction permit in

this case. The

"traditional factors" that the Board considers when determining whether to grant a

stay are

(1) whether a certain and clearly ascertainable right needs protection, (2) whether

irreparable injury will occur without the stay, (3) whether an adequate remedy at law exists, and

(4) whether there is a probability of success on the merits.

Bridgestone/Firestone Off-Road Tire

Company v Illinois Environmental Protection Agency,

PCB 02-31 (November 1,2001), p.

3;

Communig Land$ll,

p. 4. Without conceding the legitimacy of its claim to a partial stay through

Section 10

-65 of the APA and the waiver provisions of Section 10-70, Petitioner agrees that the

four

"traditional factors" do apply to the circumstances at Will County. Petitioner has a certain

and clearly ascertainable right that needs protection,

i

e

,

its right to appeal the CAAPP permit

would be undercut, as would the Board's authority to effectively review the conditions, if the

contested language in the challenged

pennit is not stayed. Moreover, Petitioner has a statutory

right to appeal conditions in its permit. Petitioner would suffer irreparable injury without the

stay, as it would be required to implement measures that are under appeal in Docket PCB 06

-060

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006

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and upon which the Board has not yet rendered its decision. Moreover, in the context of this

appeal alone, Petitioner would suffer irreparable injury if it were required to implement measures

that it believes are inappropriate. An adequate remedy at law does not exist outside this forum at

this time. Petitioner believes there is a probability of success on the merits of its petition for

appeal.

12.

The Agency acknowledges that

Petitioner should not be required to expend significant costs, or

run the risk that its appeal rights be cut short, in complying with

the contested conditions of the permit prior [to] a Board ruling on

the merits of the appeal.

Resp.,

7

11. Moreover, the Agency "generally favors an approach of limiting stay relief to a

permit's contested conditions.

" Resp., 11.

13.

The Agency objects to the partial stay in this matter, however. because it is, in the

Agency's opinion, overly broad. Resp.,

7

16. The Agency interprets Midwest Generation's

Petition to Appeal the identified conditions as encompassing more than Midwest Generation

actually objects to and cites Special Condition

5(a)(i), regarding who performs inspections, as an

example. Resp.,

7

13. The Agency notes that Midwest Generation did not discuss the

requirement for there to be inspections performed in its appeal, only who should perform the

inspections. Resp.,

7

13. The Agency cites several other specific challenges in the appeal in

subsequent paragraphs of the Response as further evidence of its perception that Midwest

Generation's concerns are with provisions within conditions rather than with entire conditions,

even though the entire condition has been appealed.

14.

The Agency is correct that, in at least some instances, Midwest Generation objects

to only certain limited provisions contained within the conditions and not the entire condition in

all cases. However, Section 40(a)(l) of the Environmental Protection Act ("Act") says, "If the

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006

---

Agency

. . .

grants with conditions a permit under Section 39 of this Act. the applicant may

. . .

petition for a hearing before the Board to contest the decision of the Agency." 415 ILCS

5/40(a)(l). (Emphasis added.) Because the Act identifies only conditions, not parts of

conditions, that may he the basis of appeal, Midwest Generation appealed the entirety of the

conditions containing objectionable language rather than attempting to parse through the

conditions to strike out the objectionable language and appeal only that. Identifying only the

specific language that is objectionable appeared to be a level of detail that exceeded the scope of

what was appropriate for inclusion in the Petition for Appeal, though it is a level of detail that

would be addressed in a hearing on the matter.

15.

However, Midwest Generation is agreeable to a surgical stay of only certain

portions of some of the identified conditions and has attached a

redlined version of the permit

that lines out the language that is objectionable and that is truly the object of Midwest

Generation's appeal.

See

Exhibit 1. If the Board determines that a surgical stay is statutorily

available, Petitioner notes that it is not able to

"correct" Condition 9(b)(i) merely through

redlining, however, and

will interpret the condition to imply that the five six-minute periods

identified in the condition are consecutive, even though the word

consecutive is not included in

the condition. If the Board is not persuaded that a partial stay as set forth in the

redlined version

of the permit is statutorily available, then Midwest Generation the entirety of the objectionable

conditions are stayed.

WHEREFORE, for the reasons set forth above, Petitioner MIDWEST GENERATION,

LLC, WILL COUNTY GENERATING STATION, reiterates its request that the Board

determine that a partial stay of the construction permit that is the subject of this appeal is

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006

---

statutorily applicable, that the partial stay is reflected by the language struck out in Exhibit 1 to

this Reply, or, in the alternative, that all of the conditions contested in the appeal are stayed.

Respectfully submitted,

MIDWEST GENERATION, LLC,

WILL COUNTY GENERATING STATION

by:

Dated: May 12,2006

SCHIFF

HARDIN, LLP

Sheldon A.

Zabel

Kathleen C. Bassi

Stephen

J. Bonebrake

Kavita M. Patel

6600 Sears Tower

233 South Wacker Drive

Chicago, Illinois 60606

3 12-258-5500

Fax:

3 12-258-2600

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006

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Page

2

opacity greater thar 30 percent, on six-min,~te average, except as

allowed by 35 IAC

212.123(b) and 212.124.

b. Subjecr to the following terms and conditions, the Permittee is

authorized to continue operation of an affected operation in violation

of the applicable limit of Condition

3:a) (35 IAC 212.123) in the event

of a malfunction or breakdown.

This authorization is provided pursuant

to

35 IAC 201.149, 201.i61 and 201.262, as the Permittee has applied

for such authorization in its application, generally explaining why

such continued operation would be required to provide essential service

or to prevent injury to personnel or severe damage to equipment, and

describing the measures that will be taken to minimize emissions from

any malfunctions and breakdowns.

i. This authorization only allows such continued operation as

related

to the operation of the Unit 3 and Unit 4 boilers as

necessary to provide essential service or to prevent injury to

personnel or severe damage to equipment and does not extend to

continued operation solely for the economic benefit of the

Permittee.

il.

. .

Upon occurrence of excess emissions due to naifunction or

breakdown, the Permittee shall as soon as practicable repair the

affected operation, remove the affected operation from service or

undertake other action so that excess emissions cease.

iii.. The Permittee shall fulfill applicable recordkeeping and

reporting requirements of Conditions 7(e) and 9(b), respectively.

iv. Following notification to the Illinois EPA of a malfunction or

breakdown with excess emissions, the Permittee shall comply with

all reasonable directives of the Illinois

EPA with respect to

such incident, pursoant to 35 IAC 201.263.

v. This authorization

does not relieve the Permittee from the

continxing obligation to minimize excess emissions during

malfunction or breakdown. As provided by 35 IAC 201.265, an

authorization in a permit for continued operation with excess

emissions during malfunction and breakdown does

not shield the

Permittee fron enforcement for any such violation and only

constitutes a prima facie defense to such an enforcement action

provided that the

Pernittee has fully complied with all terms and

conditions connected with such authorization.

Note: These provisions addressing continxed operation

duricg a

malfurction or breakdown event may be revised in an operating permit

addressing

the affected operations.

4a. Particulate matter emissions from the Unit 3 affecred operation shall

not exceed 1.7

pounds/hour and 7.6 tons/year and from the Unit 4

affectec operation shall not exceed 1.6 pcunds/hour and 7.1 tons/year.

b. Notwithstanding the above, i~ the event of a malfunction or breakdown,

the particulate matter emissions from the

Jnit 3 and Unit 4 affected

operations may exceed 1.7 and 1.6

pounds/hour, respectively, subject to

the terns and conditions established in Condition

3(b) for an

exceedance of 35 IAC

212.123(a) in the event of malfunction or

breakdown.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006

---

Page

3

5a. i. The Permittee shali perform inspections of the affected

operations at least once per month, including the associated

control measures, while the affected operatiors are in use, to

confirm compliance with

the requirements of this permit.

These

. .

.

.

,,-7

.

.

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a.

ii. The Permittee shall maintain records of the following for the

above inspections:

A. Date and time the inspection was performed and name(s) of

inspection personnel.

B. The observed condition of the control measures for the

affected operations, including the presence of any visible

emission~-4f-*;~i)hi--4---&h:.

k. th: v:cz-y

.

L

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C. A description of any maintenance or repair associated with

the control measures that is

recome~ded as a result of the

inspection and a review of outstanding

recommendations for

maintenance or repair from previous

inspection!^:,

i.e.,

whether recommended action has been taken, is yet to be

performed or no longer appears to be required.

D. A sum-nary of the observed implementation or stacus of

actual control measures as compared to the customary

control measures.

b. i. The Permittee shall perform detailed inspections of the control

1

equipment for each affected operation +t .I 22:'t c-,-.&

while the operation is out of service, with an initial inspection

performed before any maintenance and repair activities are

conducted during the period the operation is out of service and a

follow

-up inspection performed after any such activities are

completed.

ii. The Permittee shall maintain records of the following for the

above inspections:

A. Date and time the inspection was performed and ~ame:s) of

inspection personnel.

9.

The observed condition of the control equipment

C. A sumnary of the maintenance and repair that is to be or

was conducted on the control equipment.

D. A descriptior of any maintenance or repair that is

recornmended as a result of the inspectior and a review of

outstanding recommendations for maintenance or repair from

previous

inspection(s), i.e., whether recommended action

has been taken, is yet to be performed or no longer appears

to be required.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006

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Page

4

E. A summary of the observed condition of the concrol

equipment as related to its ability to reliably and

effectively coctrol emissions.

i.

The Permittee shall have the opacity of the enissions from the

affected operations during representative weather and operating

conditions determined by a

qnalified observer in accordance with

USEPA Test Method 9, as further specified below.

8.

-

--,

L,-L

7 -..2

,*...&,*

.~,--

-....

&+&++-I

-

zcrfcrff c

W;f

,*Periodic testing

shall be conducted at least annually for each affected

operation.

C. Upon written request by the Illinois EPA, testing of the

affected operations shall be conducted within

45 calendar

days of the request or on the date agreed upon by the

Illinois EPA, whichever is later.

B. For periodic testing, the duration of opacity observations

shall be at least

30 minutes (five &minute averages)

unless the average opacities for the first

12 minutes of

observations (two six

-minute averages) are both less

tian

10.0 percent.

iii.

A. The Permittee shall notify the Illinois EPA at least 7 days

in advance of the date and time of these tests, in order to

allow the

Illicois EPA to witness testing. This

notification shall include the

name(s) and employer(s1 of

the qualified observer

(s

j

.

B. The Permittee shall promptly notify the Illi~ois EPA of any

changes in the time or date for

testing.

iv. The Permittee shall provide a copy of its observer's readings to

the Illinois EPA at the time of tesring,

if

Illinois EPA

personnel are present.

v. The Permittee shall

subnit a writte~ report for this testing

within

15 days of the date of testicg. This report shall

iccluae:

A. Date and

the of testing.

B. Name ana employer of qualitled observer

C. Copy of

c'lrrent certification

D. Description of observation condition, including recext wearher

E. Descriptior of the operaring conditions of the affected operations.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006

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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006

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Page

6

b. The Perrrittee shall keep the following file(s) and log(s! for the air

pollution control equipment for the affected operations:

A.

File(s! containing the following data for the equipment, with

supporting

inforxation, which file(s) shall be kept up to date:

1) The design particulate matter control efficiency or

performance specification for particulate matter

emissiocs,

gr/dscf; 2) The maximum design emission rate, pounds particulate

matter/hour, and 3) The applicable particulate matter enission

factor normally used by the Permittee to calculate actual

particulate matter

erc.issions, if a factor other than the maximum

hourly emission rate is normally used.

ii. Maintenance and repair

log(s) for the control equipment, which

Log(s) shall list the activities performed on each item of

equipment, with date

and description.

c. The Permittee shall maintain records for the amount of material

handled, operating hours, or other measure of activity of each affected

operation on a monthly and annual basis, which data is in the terms

normally used by the Permittee to calculate actual emissions of each

affected operation.

d.

?he Pernittee shall maintain records of the following for each incident

when an affected operation operated without the customary control

measures

:

A.

il.

. .

iii

-

iv.

The date of the incidenc and identification of the affected

operation rhat was involved.

A description of the incident, including the customary control

measures that were not present or implemented; the customary

control measures that were present, if any; other control

measures or mitigation measures that were implemented, if any;

2

& .,-.

,: ,~

,>?~ .,., : -. ,, -+ ,., . . .

.

,

,.L..uL

.,,.

L.~b

,-..... Lu~L - lie clii3:,Lcli

-.

&~k+-tA?

*+.*.*=.

The time at and means by which the incident was identified, e.g.,

scheduled inspection or observatioc by operating personnel.

The length of time after the incident was

idenrified that the

affected operations continued to operate before customary control

measxres were in place or the operations were shutdown (to resune

operation

only after custonary control measures were in place)

and, if this time was more than one hour, an explanation why this

time was not shorter, including a description of any mitigation

measures that were implemented during the incident.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006

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Page

7

-v

.

The estimated total duration of the incident, i.e., the total

length of time that the affected operations ran without customary

control measures and the estimated amount of

material handled

during the incident.

vi.

A discussion of the probable cacse of the incident and any

prevectative measures taken.

e. Pursuant to

35 IAC 201.263, the Permittee shall maintain records,

related to malfunction and breakdown for each affected operation that,

at a

minim~m, shall include:

i. Maintenance and repair

log(s) for the affected operation that, at

a micimum, address aspects or components of such operations for

which nalfunction or breakdown has resulted in excess emissiocs,

which shall list the activities performed on such aspects or

compocents, with date, description and reason for the activity.

Ic addition, in the maintenance and repair

log:s), the Permittee

shall also list the reason for the activities that are performed.

ii. Records for each incident when operation of an affected operation

continued during malfunction or breakdown, inclnding continued

operation with excess emissions as addressed by Condition

3(a),

that include the following information:

A. Date and duration of malfunction or breakdown.

B. A description of the malfunction or breakdown.

C. The corrective actions used to reduce the quantity of

emissions and the duration of the incident.

C.

Confirmation of fulfillment of the requirements of Condition

9(h) (i), as applicable, including copies of follow-up

reports submitted pursuant to Condition

9(b) (i) (B).

E. If excess emissions occurred for two or more hours:

I.

A detalled explanatioc why continued operation of the

affected

opera~ion was necessary.

I:. A detailed explana~io? of the preventative measures

planned or

take? to prevent similar malfunctions or

breakdowns or redcce their frequency and severity.

III. An estinate of the magnitude of excess enissions

occurring during the incident.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006

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Page

8

The Pernittee shall maintain the following records for the particulate

matrer emissions from each affected operation

(tons/month and tons/yr),

with supporting calcul-+'

a-lons.

The Permittee shall keep records for any opacity observations performed

by Method 9 that

the Permittee conducts or are condncted at its behest,

inc1,~ding name of the observer, date and tine, duration of observation,

raw data, results, and

conclasion.

The Permittee shall retain all records required by this permit at the

source for at least

5 years from the date of entry and these records

shall be readily accessible to the Illinois EPA for inspection and

copying upon request.

The

Perrnictee shall promptly notify the Illinois EPA of deviations from

requirements of this permit for the affected operations, as follows.

Such notifications shall include a description of each incident and a

discussio~ of the probable cause of deviation, any corrective actions

taken, and any preventative measures taken.

1. Notificatior. and reporting as specified in Condition 9(b) (i) for

certain deviations from an applicable opacity standard.

Pursuant to 35 LAC 201.263, the Perinittee shali provide the following

notifications and reports to the Illinois EPA, concerning incidents

when operation of an affected operation continued with excess

emissions, including continued operation during

nalfunction or

breakdown as addressed by Condition

3(b).

i. A. The Permittee shall immediately notify the Iilinois EPA's

Regional Office, by telephone (voice, facsimile or electronic)

for each incident in which the opacity fron an affected

operation exceeds

+.+r+;:y

ki(+%e?&d---the

applicable opacity

standard for five or more 6

-minute averaging periods.

, ~, .

7

-,-..~ -- ~- -?-~

.- -.~?-

T

-,

m-

L,.."v~

- -.- ----,

7,

jli..ri"li~i,

"IUL.ii

i.

ii.UAiu_

--_

IIICI_.U

.

~~..-~,~L"L..,.

.

.

.

..,,.

?.r,.

.

L"~L.-L.'d

,

b-

rrr

"L

i

,,-

,-..^

, - ->,

,,.,----..a

. .

)..*,-

-LL ....

d

,-~>- ~-

: --~-~, "

P

'A"

-

>' -'

c

r

c :&*-&i

~v,2

c

C,*~L~-W+-J*-&

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006

---

Page 9

8.

Upon conclusion of each incident that is two hours or more

in duration, the Permittee shall submit a written follow

-up

notice to the Illinois EPA, Compliance Section and Regional

Office, within 15 days providing a detailed description of

the incident and its

cause(s), an explanation why continued

operation was necessary, the length of time

durizg which

operation continued under such conditions, the measures

taken by the Permittee to minimize

and correct deficiencies

with chronology, and when the repairs were completed or the

affected operation was taken out of service.

IOa. Unless otherwise specified in a particular condition of this permit or

in the written instructions distributed by the Illinois EPA for

particular reports, reports and notifications shall be sent to the

Illinois

EPA

-

Air Compliance Section with a copy sent to the Illinois

EPA

-

Air Regional Field Office.

b. The current addresses of the offices that should generally be utilized

for the submittal of reporrs and notificarions are as follows:

i. Illinois EPA

-

Air Conpliance Section

Illinois

Znvironmental Protection Ageccy (KC 40)

Bureau of Air

Compliance

&

Enforcement Section (XC 40)

1021

North Grand Avenue East

P.O.

30x 19276

Springfield, Illinois 62794

-9276

Phoce:

217/782-5811 Fax: 21?/782-6348

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006

---

11.

. .

Illinois EPA

-

Air Regional Field Office

Illinois Environmental Protection Agency

Division of Air Pollution Control

9511 West Earrison

Des

?laines, Illinois 60016

Phone:

8Zil294-4000 Fax: 847/294-4018

11. The affected operations may be operated with the new control systems

pursuant to this construction permit until an operating permit becomes

effective that addresses operation of these operations with the new

control systems.

If you have any questions concerning this permit, please contact Manish

Patel

at 217l782-2113.

Donald E. Sutton, P.E.

Manager, Permit

Sectior~

Division of Air Poilucion Control

cc: Region 1

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

MIDWEST GENERATION, LLC,

1

WILL COUNTY GENERATING STATION

)

)

Petitioner,

1

1

V.

)

PCB 06-156

)

(Permit Appeal -Air)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

1

)

Respondent.

1

WAIVER OF DECISION DATE

NOW COMES Petitioner, Midwest Generation, LLC, Will County Generating Station,

by and through its attorneys, Schiff

Hardin LLP, and waives the Board's statutory decision date

in this matter for approximately

49 days from the current decision deadline, until September 21,

2006.

by:

Respectfully submitted,

MIDWEST GENERATION, LLC,

WILL COUNTY GENERATING STATION

Dated: May 12,2006

SCHIFF

HARDIN, LLP

Sheldon A. Zabel

Kathleen C. Bassi

Stephen

J. Bonebrake

Kavita M.

Pate1

6600 Sears Tower

233 South Wacker Drive

Chicago, Illinois 60606

312

-258-5500

Fax:

3 12-258-2600

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, MAY 12, 2006