AK ~ OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
r~—r
L~
022995
STATE OF lLLIr~Ir~
MIDWEST GENERATION,
LLC,
)
fl
Contro:’~’~
FISK GENERATING STATION,
)
arci
)
Petitioner
)
)
v.
)
PCB No. 2006-057
)
(Permit Appeal
—
Air)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE
To:
Dorothy Gunn,
Clerk
Robb Lyman, Assistant Counsel
Pollution Control Board
Sally Carter, Assistant Counsel
James R. Thompson Center
Division ofLegal
Counsel
100
W. Randolph Street
Illinois Environmental Protection Agency
Suite
11-500
1021 North Grand Avenue, East
Chicago, Illinois 60601
P.O. Box
19276
Chicago, Illinois 60601
Springfield, Illinois 62794-9276
Bradley P. Flalloran
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 PETITIONER’S REPLY IN SUPPORT OF A PERMIT
STAY AND IN RESPONSE
TO ILLINOIS EPA’S OPPOSITION TO PETITIONER’S
REQUEST FOR A STAY and MOTION FOR LEAVE TO FILE REPLY INSTANTER,
copies of which are herewith served upon you.
t~t4/4ttQ
Kat
leen C. Bassi
Dated: December 2, 2005
SCHIFF HARDIN LLP
Sheldon A.
Zabel
Kathleen
C. Bassi
Stephen J. Bonebrake
Joshua R. More
Kavita M. Patel
6600 Sears Tower
233
South Wacker Drive
Chicago, Illinois
60606
312-258-5567
FAX:
312-258-5600
-2-
R E C
~z
V ED
CLERKS
OFFiCE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
LJLL
022995
STATE OF ILLINOIS
MIDWEST GENERATION,
LLC,
)
.
Pollution Control
Board
FISK GENERATING
STATION,
)
)
Petitioner,
)
)
v.
)
PCB No. 2006-057
)
(Permit Appeal
—
Air)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION FOR LEAVE TO FILE REPLY
INSTANTER
Pursuant
to
35
III.
Adm.
Code
101.500(e),
MIDWEST
GENERATION,
LLC,
FISK
GENERATING
STATION
(“Petitioner”),
respectfully
submits
this
Motion
for Leave
to
File
Reply
Instanter.
In support ofthis Motion, Petitioner
states as follows:
1.
Petitioner
will
be
materially
prejudiced
unless
it
is
allowed
to
file
the attached
Reply.
First,
in
its
Motion in
Opposition
to
Petitioner’s
Request for Stay,
Respondent
Illinois
Environmental
Protection
Agency
(“the
Agency”)
alleges
that
the
Administrative
Procedure
Act’s
(“APA”)
automatic
stay
provision,
Section
10-65(b),
does
not
apply.
In the
attached
Reply, Petitioner responds to the Agency’s arguments and demonstrates why Section
10-65(b) of
the APA does apply.
2.
Second,
in
its Motion
in Opposition, the
Agency
argues
that Petitioner’s
asserted
justifications for an entire
stay of the Clean Air Act Permit Program (CAAPP) permit pursuant to
the Board’s
discretionary stay authority
fail
to
demonstrate “a
clear
and
convincing need for a
-3-
broader stay.”
The Motion
in Opposition reflects
a significant change
in
the Agency’s position
concerning
requests
for
permit
stays,
and
Petitioner
will
be
prejudiced
unless
it
has
an
opportunity to respond to these new arguments.
WHEREFORE,
for
the
reasons
set
forth
above,
Petitioner
Midwest
Generation,
LLC,
respectfully requests that the Board grant its Motion for Leave to File Reply
Instanter.
Respectfully submitted,
MIDWEST GENERATION, LLC,
FISK GENERATING STATION
By:________________________________
One of Its Attorneys
Dated:
December 2, 2005
Sheldon A.
Zabel
Kathleen
C.
Bassi
Stephen J. Bonebrake
Joshua R. More
Kavita M. Patel
SCHIFF HARDIN, LLP
6600 Sears Tower
233
South Wacker Drive
Chicago, Illinois
60606
Telephone: 312-258-5500
Fax:
312-258-5600
-4-
EC
E
V E D
CLERK’S
OFFICE
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
LL
022095
MIDWEST
GENERATION,
LLC,
)
STATE OF ILLINOIS
FISK GENERATING STATION
)
Pollution
Control Board
)
Petitioner,
)
)
v.
)
PCB No. 2006-57
)
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITIONER’S REPLY IN SUPPORT OF A PERMIT STAY
AND IN RESPONSE
TO
THE AGENCY’S OPPOSITION TO PETITIONER’S REQUEST FOR A STAY
Petitioner,
MIDWEST
GENERATION,
LLC,
FISK
GENERATING
STATION
(“Petitioner,”
or
“Midwest
Generation”),
by
and
through
its
attorneys,
submits
this
reply
in
support of (1) its position
that the
Clean Air Act Permit Program
(“CAAPP”) permit on appeal
in
this
proceeding
is
not
in
effect,
pursuant
to
the
Illinois
Administrative
Procedure
Act
(the
“APA”),
while this appeal
is pending and until the
Illinois Environmental Protection Agency (the
“Agency”) issues the permit after remand, and (2) its
request, in the
alternative, that the
Illinois
Pollution
Control
Board
(“Board”)
grant
Petitioner’s
request
for
a
stay
of the
entire
CAAPP
permit
pursuant
to
the Board’s
discretionary stay
authority)
This
reply
also
responds
to
the
Agency’s “Motion in
Opposition to Petitioner’s Request for Stay”
(the “Opp.”).2
A motion
for
leave to file this reply is
attached hereto and
is filed herewith.
The
Agency
notes that
Petitioner did
not
expressly make an
alternative
request to
stay
just the
contested
conditions.
(Opp. at 2).
That
is correct.
However, to
the extent the
Agency
implies that
the Board does not have authority to
grant relief that
is not
expressly requested, that
is inconsistent.
The Board has the authority to grant
appropriate relief including lesser relief than
that requested by Petitioner.
2
The Agency’s filing
is captioned
a
“motion,” but
the filing
appears to be
a response to
Petitioner’s
positions
and requests rather than a motion.
For instance,
the
“motion” cites to
the
INTRODUCTION
On
November
2,
2005,
Midwest
Generation
filed
a
Petition
for
Review
(hereinafter
“Petition”)
with
the Board
challenging
certain permit
conditions
contained within
the
CAAPP
permit
issued by the Agency.
As part of its Petition,
Midwest Generation asserted that,
until the
Board rules
on the contested
conditions and the permit is issued by the Agency after remand with
any
changes
required
by
the
Board,
the
entire
CAAPP
permit
is
not
in
effect
(is automatically
stayed3)
pursuant
to
Section
10-65(b)
of the
APA
and
the
holding
in
Borg-Warner
Corp.
Mauzy,
427 N.E. 2d 415,
56111. Dec.
335
(3d Dist.
1981).
In the alternative, Petitioner requested
that the
Board,
consistent
with
its
grants of stay
in
response
to
stay
requests
in
other CAAPP
permit
appeals, exercise
its
discretionary
stay authority
and
stay the
entire
CAAPP
permit.
On
November
18,
2005, the
Agency
filed
a “Motion
in
Opposition” to
Petitioner’s
conclusion that
the entire
CAAPP permit
is
stayed pursuant
to
Section
10-65(b) of the
APA
and to
Petitioner’s
alternative
request
for
a
stay.
The
Agency
incorrectly asserts
that
the APA’s
automatic
stay
provision,
Section
10-65(b), does not apply, and that the Petitioner’s asserted justifications
for an
entire
stay of the
CAAPP
permit
pursuant
to
the
Board’s
discretionary
stay
authority
fail
to
demonstrate “a clear and convincing need for a broader stay.”
ARGUMENT
The
CAAPP
permit
is
and
should
be
stayed
in
its
entirety,
for the
reasons discussed
below.
First, pursuant to
Section
10-65(b) of the
APA,
the entire CAAPP
permit issued by the
Agen~y
does not become
effective until
after a ruling
by the
Board
on
the permit appeal
and,
in
time
for responses to
be
filed
and,
in its conclusion,
seeks no
relief except that
the Board
“deny
the
Petitioner’s
request
for
a
stay
of the
effectiveness
of the
CAAPP
permit
in
its
entirety.”
(Opp. at
2, 20).
For brevity,
the
effect
of Section
10-65(b)
of the
APA
is
referred
to
herein
as
the
“automatic stay.”
2
the event of a remand,
until the
Agency
has issued the
permit consistent with
the Board’s order.
In addition,
to
the
extent
necessary
in
light
of the
automatic
stay
under
the
APA,
the
Board
should
exercise
its
discretionary authority
and
enter an
order
staying the
entire
CAAPP permit
because an ascertainable right warrants protection, irreparable injury will
befall
Petitioner in the
absence
of an
entire
stay,
Petitioner
has
no
adequate
remedy
at
law,
Petitioner
is
likely
to
succeed on the merits of its
appeal, and the environment will not
be harmed if the
entire CAAPP
permit is stayed.
I.
THE
EFFECTIVENESS
OF
THE
ENTIRE
CAAPP
PERMIT
ISSUED
BY
ILLINOIS EPA IS STAYED PURSUANT TO THE APA
As
the
Agency
recognizes,
the
automatic
stay
provision
of
the
APA
governs
administrative proceedings involving licensing and
pursuant to
Borg-Warner,
under
Section
10-
65(b)
ofthe
APA,
the effectiveness of a license is stayed until
a
final administrative
decision is
rendered by
the
Board.4
(Opp.
at
3-4).
Indeed,
the Agency
concedes
that
the
Borg-Warner
decision is consistent with the involvement ofand the separate roles of the Board und the
Agency
in
pennitting
matters,
that
it
is the
“Board’s
decision
.
.
.
that
ultimately determines
when the
permit
becomes final,”
and the “CAAPP
program itself does not
reveal the General Assembly’s
intentions to
change this
administrative arrangement.”
(Opp. at 4).
Nonetheless, the Agency
asserts
that
the
automatic
stay
provision
of
the
APA,
as
applied
by
Borg- Warner
to
environmental
permits,
does
not
apply
because
the
General
Assembly
somehow
exempted
CAAPP
permit
appeal
proceedings
in
particular
from
the
APA
under
415
ILCS
39.5(7)(i)
without referring to
either the
APA or
Borg-Warner,
and that the APA’s giandfathering clause, 5
ILCS
100/10-1-5(a), excludes the applicability ofthe APA from this proceeding even though the
“
The
APA
also
ensures
that
the
Petitioner
continues
to
abide
by
the
terms
of the
underlying state operating permits.
5
ILCS
100/10-65(b) and (Opp.
3-4).
3
CAAPP program, like the NPDES permitting program at issue in
Borg-Warner,
was
not in effect
prior
to
July
1,
1977.
These
assertions
ignore
controlling
law,
misinterpret
the
Illinois
Environmental Protection Act (the “Act”) and are incorrect.
A.
The General Assembly Did Not Exempt the CAAPP
from the Automatic Stay
Proyision ofthe APA.
The
Agency’s
first
argument
is
that,
even
though
the
General Assembly
included
no
express exemption from the APA in
Section
39.5
ofthe Act,
the
General Assembly nonetheless
signaled
its
intention
to
make
CAAPP
permits
effective
immediately
upon
issuance
by
the
Agency,
in
derogation
of
the
APA’s
automatic
stay
of
effectiveness,
by
including
a
“severability” provision in
Section
39.5(7)0)
of the Act
(“the severability clause”) that addresses
validity
of
permit
provisions,
not
the
effectiveness
of
a
permit.
(Opp.
at
3-4).
A
close
examination of the Agency’s
argument
and
the
Act
reveals
that
when the
General
Assembly
desires
to
exempt sections ofthe
Act
from the
APA,
it does so expressly,
through references to
the
APA,
and
it
does
not
leave
the
divination
of its
intentions
to
inferences.
Further,
the
Agency’s
argument
misses
the fundamental point
that
validity
and
effectiveness
are
two
very
different legal concepts.
The
Agency
misplaces
its reliance
on the severability clause.
That provision
addresses
the
validity
of uncontested
permit
conditions.
The
issue
before
the
Board,
however,
is
not
whether uncontested conditions remain valid notwithstanding challenges to otherprovisiuns;but
whether
the
permit
is
in
effect
prior
to
the
Board’s
ruling
on
appeal.
The
Agency
errs
by
assuming,
without
support,
that
through
a
severability
provision
that
does
not
even
refer
to
permit effectiveness,
let alone the APA, the General Assembly intended to changeillinois law
so
that the
entire
permit must remain
in effect during the
appeal.
(Opp.
at.
5-6,
18).
The Agency’s
4
strained
interpretation
of the
severability
clause
is
premised
upon
a
misunderstanding
of the
applicability ofthe severability clause and the effect ofa stay.
The
first question before the Board
is one of statutory construction.
The
cardinal
rule of
statutory
construction
is
that
the
Board
must
ascertain
and
give
effect
to
the
intent
of the
legislature.
In re Marriage of King,
208 Ill.2d
332,
340,
280
III.
Dec.
695,
699
(111. 2003). “The
legislature’s intent
can
be
determined
by
looking
at
the
language of the
statute
and
construing
each section of the statute
together as
a
whole.”
People
v.
Patterson,
308
Ill.App.3d
943,
947,
242
III. Dec.
518,
521
(2d Dist.
1999). Moreover, the
language of the
statute
should be
given its
plain and ordinary meaning.
Marriage ofKing,
208
Ill.2d at
340.
By construing Section 39.5(7)0) ofthe Act along with each section of the Act together as
a
whole,
it
is
apparent that
Section 39.5(7)0)
is not
intended
to
address when
a
permit
is,
or
is
not,
in
effect,
the question addressed
by
Borg-Warner
and
the
APA.
Section
39.5(7)(i) of the
Act provides that “each
CAAPP permit issued under subsection
10 of this Section shall include
a
severability clause to
ensure
the
continued validity of the
various permit
requirements
in
the
event
of
a
challenge
to
any
portions
of the permit.”
First,
as
conceded
by
the
Agency,
the
severability clause establishes CAAPP pennit content
and
is, therefore,
applicable to the
Agency
but
not
binding
on
the
Board.
(Opp.
at
18).
Second,
the
choice
of the
term
“validity”
is
important
and
clearly
demonstrates
that
the
General
Assembly
was
not
addressing
in
this
provision
when permits
are effective
but,
instead,
was
addressing
potential
problems
of legal
enforceability ofthe remainder of a permit when
a portiori of a permit is determined to be invalid
(e.g., inconsistent with the governing law).
As
the
Agency
concedes, Section
39.5(7)0) was included
in the
Act so that
uncontested
conditions would
“continue
to
survive notwithstanding
a challenge to the
permit’s other terms.”
5
(Opp. at
5).
Survival of some permit
terms
when others
are challenged has nothing
to
do with
when
a
permit
is
effective
under
Illinois’
administrative
scheme.
The
plain
and
ordinary
meaning
of
“validity”
in
legal
settings
is
“Ijegal
sufficiency,
in
contradistinction
to
mere
regularity.”
Black’s Law Dictionary
1548
(7th
ed.
1999).
Section 39.5(7)(i) ofthe Act is nothing
more
than
a
mechanism
to
ensure
the
legality
of the
remainder of
a
CAAPP
permit
when a
condition
is judged
illegal
or void.
This
concept
is
akin
to
typical severability
provisions
in
contracts
that provide that the
invalidity
of one contract term
shall
not impact the validity of the
remainder of the contract.
Such severability provisions
do not affect
the period during
which
a
contract is
in
effect,
only
the
terms
that
may
be
enforced while the contract
is
in
effect.
This
view of Section
39.5(7)(i)
is supported by the
United States Environmental Protection Agency’s
(“USEPA”)
interpretation
of the
model
severability clause
upon
which
Section
39.5(7)(i)
is
based.
On
July
7,
1993,
the
USEPA
in
“Questions
and
Answers
on
the
Requirements
of
Operating
Permits
Program
Regulations”
explained
that
“tihe
severability
clause
(Section
39.5(7)(i) of the
Act)
is
a provision that
allows the rest of the permit
to
be
enforceable when
a
part of the permit is judged illegal or void.”5
Undeterred by the plain
language of Section
39.5(7)(i),
the
Agency attempts
to read
into
the statutory language the key term the General Assembly chose
not to include.
According to the
Agency,
“implicit
in
the
statutory
language
is
an
unmistakable
expression
aimed
at
preserving
the validity and effectiveness of some
segment ofthe CAAPP permit during the
appeal process.”
(Opp.
at
18,
emphasis
added).
However,
the
General
Assembly
did
not
include
the
term
“effectiveness”
in
Section
39.5(7)(i),
as discussed
above,
and
the
Agency’s assertion does
not
A
copy
of the
relevant
pages
of the
July
7,
1993
“Questions
and
Answers
on
the
Requirements of Operating Permits Program
Regulations” are attached hereto as Exhibit
1.
The
remainder
of
the
document
can
be
found
at
http://www.epa.gov/Region7/programs/artd/air/titles/tsindexbyauthor.htm.
6
make
it so.
Indeed, the Agency’s effort to import the term “effectiveness”
into
Section
39.5(7)(i)
merely
shows
that
validity
and
effectiveness
are
two
distinct
terms.
“Validity,” as previously
discussed connotes
legality.
The common and
ordinary meaning of “effectiveness” has no
such
connotation.
The applicable definition of the base word, “effect,” is “the quality or state of being
operational.”
Merriam
Webster’s
Collegiate
Dictionary
367
(10th
ed.
1997).
Therefore,
“effectiveness”
in
the
CAAPP
permitting context
means
the
time
during
which
the
obligations
set forth in
the permit are put
into operation.
To read “effectiveness” into the statutory language
when
the
legislature
chose
to
use
“validity”
results
in
an
impermissible
departure
from
the
unambiguous statutory
language.
Patterson,
308
lll.App.3d
at
948
(“When the
language of the
statute is
unambiguous, the
Board
may
not
depart from the
language
and
read
into the
statute
exceptions,
limitations, or conditions.”).
The
Agency
also
misconstrues
the
effect
a
stay
will
have
on
the
legality
of
the
uncontested conditions.
The Agency asserts that because
a
component
of
a
CAAPP
permit
shall
retain
a
“continued
validity,”
...
uncontested
conditions
of
a
CAAPP
permit
must
continue
to
survive
notwithstanding
a
challenge
to
the
permit’s
other
terms.
This
language
“continued
validity”
signifies
an
unambiguous intent to exempt some
segment of the CAAPP permit
from
any kind of protective stay during the permit appeal
process.
(Opp. at 5-6).
The Agency seems
to assume
that
a
stay of the entire permit will
somehow affect the “continued
validity”
or
“survival”
of
the
uncontested
conditions.
This
is
a
flawed
assumption.
The
automatic
stay under the
APA
does not depend
on or consider the
merits
of the CAAPP
permit
requirements,
but
rather
merely
suspends
the
time
required
for performance
of the
CAAPP
permit
requirements.
A
stay of the
entire
CAAPP
permit,
therefore,
is
not
a
challenge to
any
7
portion
of the
CAAPP
permit
that
will
affect
the
“continued
validity”
or
“survival”
of the
uncontested conditions.
Finally,
if the General Assembly intended to exempt the CAAPP from the automatic
stay
provision
of the
APA,
it would
have
expressly
done
so.
One
example
of this
exercise
of
legislative discretion
is
found
in
Section
31.1
of the
Act,
the
very
section the
Agency
cites
in
support
of
its
proposition
that
the
severability
clause
exempts
the
CAAPP
from
the
APA.
Section
31.1
of the
Act
states
that “Sections
10-25
through
10-60 of the
Illinois
Administrative
Procedure
Act
shall not
apply
to
any
administrative citation
issued
under
subsection
(b)
of this
Section.”
The
General Assembly,
therefore,
knows
how
to
explicitly
exempt
provisions of the
APA
from the
Act.
In the present case it
chose not to; there
is no explicit exclusion of the APA
in
Section
39.5(7)0)
of
the
Act.
Since
the
language
of
Section
39.5(7)0)
is
plain
and
unambiguous,
the Board
can not expand its meaning to include an exemption from the automatic
stay
provision
of the
APA.
To
do
so
would
be
an
improper
departure
from
the
statutory
language.
B.
The APA’s Grandfatherinp Clause Does Not Apply To the CAAPP.
The
Agency’s
second
argument
is
that,
pursuant
to
5
ILCS
100/1-5(a)
(“the
APA’s
grandfathering clause”), the APA does not apply to this proceeding because the Board had issued
some
procedural
rules prior
to
July
1,
1977.
More specifically, the Agency
suggests
that
the
Board’s
procedural
rules
adopted
on
October
8,
1970,
in
the
R70-4
rulemaking
(“general
procedural
rules”)
preclude
APA
applicability
to
CAAPP
permit
appeals
because the
general
procedural
rules were adopted before
July
1,
1977.
(Opp.
at 6-7):
That argument, however,
is at
odds
with
the
appellate
court’s
ruling
in
Borg-Warner
and
the
General
Assembly’s
intended
reach of the APA’s grandfathering clause.
8
The court in
Borg-Warner
upheld the APA’s automatic
stay provision in
the context of a
renewal of a National
Pollutant
Discharge Elimination
System
(“NPDES”)
permit
sought
from
the
Agency.
Borg-Warner,
427
N.E.
2d
415,
421,
56
III. Dec.
335,
341
(3d
Dist.
1981).
The
court
ruled
that
the APA’s grandfathering clause
did
not
apply
because there
were
no
existing
procedures
for NPDES
licensing
prior to
July
1,
1977,
the pertinent date for exceptions
to
the
applicability
of the
APA.
Id.
at 418.
The
NPDES
rules
at
issue
were
written
in
a way that
conditioned
their effectiveness
upon
a
future
event.
The
Agency
argues
that
this
fact
makes
Borg-Warner
“inapposite here.”
(Opp. at 7 n.2).
The Agency misconstrues the significance of
the
Borg-Warner
decision.
The
APA
applied
in
Borg-Warner
because there
were
no
NPDES
permitting
procedures
in
effect
as
of
July
1,
1977.
There
were
not
CAAPP
permitting
procedures
in
effect
before July
1,
1977,
either.
The
Agency
apparently
believes
that
Borg-
Warner
was
incorrectly decided but
that
is a question the
Agency
will have to-takeup-with the-
appellate
court.
Here,
of course,
that
decision
is
controlling.
Under
Borg-Warner,
the
APA
applies in this permit appeal proceeding.
Consistently,
the
Board
has
cited
and
followed
Borg-Warner,
issuing
opinions
recognizing the applicability of the automatic
stay provision in the permitting context despite the
fact that the
general
procedural
rules
were
promulgated
prior to
July
1,
1977.
See
e.g.,
Arco
Products Company v.
Illinois
Environmental Protection Agency,
PCB
89-5 (February
2,
1989);
Village of Sauget v.
illinois
Environmental Protection Agency,
PCB
86-57,
Monsanto
Company
v.
Illinois
Environmental
Protection
Agency,
PCB
86-62
(Consolidated),
(July
31,
1986);
Electric Energy
v.
Illinois
Environmental
Protection Agency,
PCB
85-14
(February
7,
1985).
The
Agency
has
offered
no
contrary decision
of this
Board
or any
court.
The
Board
should
therefore continue to
follow
Borg-Warner
and determine that the APA’s grandfathering
clause is
9
inapplicable because there were no existing procedures for CAAPP permitting as of July
1,
1977.
To hold otherwise would
be contrary to
Borg-Warner
and the Board’s own precedent.
Furthermore, if the Agency’s argument is correct, there would
have been no need for the
General Assembly
to
have
expressly excluded
the applicability of the contested
case
provisions
of the
APA
from
Section
31.1
of the
Act.
The
Agency
argues
that
“it
is
the
procedures
applicable
to
contested
cases
and
their
point of origin
that
is
relevant to
this
analysis, not
the
advent of the permitting program itself.”
(Opp. at 6-7).
In other words, the Agency argues that
the
contested
case provisions
of the
APA
do
not apply
in
any
contested case brought under
the
Act because the general procedural rules
“point oforigin” is before July
1,
1977.
The legislature
was
certainly
aware
of the
“point of origin”
of the
general
procedural
rules
and
the APA’s
grandfathering clause when it drafted the
explicit exclusion of the APA
from
Section
31.1 of the
Act.
If the
legislature intended for the APA’s grandfathering
clause to
exclude
the
contested
case
provisions
of the
APA
from
the
Act, there would
have
been
no need for the legislature
to
have expressly
excluded the contested case provisions of the APA
from
Section
31.1
of the
Act.
The
legislature,
therefore,
did
not
intend
for
the
APA’s
grandfathering
clause
to
limit
the
applicability
of the APA
to the Act
because the “point of origin” of the
general
procedural rules
is before July
1,
1977.
Carried to
its
logical conclusion, the Agency’s
argument would exempt
virtually every
Board
proceeding
from
the
APA
and,
in
fact, would
exempt
the
proceeding of
any
administrative
body
that
existed
before
July
1,
1977,
that
had
procedural
rules
in
effect
before that date.
II.
THE BOARD SHOULD EXCERSISE ITS DISCRETIONARY AUTHORITY AND
STAY THE
ENTIRE CAAPP PERMIT ISSUED
BY THE ILLINOIS EPA.
In situations
like
this,
where
Section
10-65(b) of the
APA
applies,
the entry of a
stay
order
is
unnecessary
as the
stay
provided
by
the
APA
is
automatic.
See
e.g.,
Arco
Products
10
Company v.
Illinois Environmental Protection Agency,
PCB
89-5 (February
2,
1989);
Village of
Sauget v.
illinois Environmental Protection Agency,
PCB
86-57,
Monsanto Company v.
illinois
Environmental Protection Agency,
PCB
86-62 (Consolidated),
(July
31,
1986);
Electric Energy
v.
illinois Environmental Protection Agency,
PCB
85-14 (February
7,
1985).
Nonetheless,
and
without
waiving
its
position
that
such
a
request
is
unnecessary
in
light
of the
APA,
Midwest
Generation
requests,
in
the
alternative,
that
the
Board
exercise
its
discretionary
authority
pursuant to 35 Ill.Adm.Code
§
105.304(b) and enter an order staying the entire
CAAPP permit.
The
Board frequently
grants
requested stays
of entire
permits, often referring to various
factors
considered
under
common
law.
The
Board
considers
several
factors
including
(I)
existence of an
ascertainable right that needs protection, (2) irreparable injury in the absence ofa
stay, (3) the lack of an adequate remedy
at
law,
(4) the probability of success on the
merits,
and
(5)
the
likelihood of environmental harm if a stay is granted.
See Bridgestone/Firestone Off-road
Tire
Company
v.
illinois
Environmental
Protection
Agency,
PCB
02-31
(November
1,
2001).
While the Board
may look to
these five factors
in determining whether or not to
grant a
stay,
it is
not confined exclusively to these factors nor must each one be satisfied.
Id.
The
Board’s recent practice in other CAAPP permit appeals, which practice has not been
opposed
by
the
Agency,
has been
to
grant
stays of the
entire
CAAPP permit
when requested,
even when the entire
permit
was not contested.
See Lone Star Industries,
Inc.
v.
IEPA,
PCB 03-
94
(January
9,
2003);
Nielsen
&
Brainbridge,
L.L.C.
v.
IEPA,
PCB
03-98 (February
6,
2003);
Saint-Gobain
Containers,
Inc.
v.
IEPA,
PCB
04-47
(November
6,
2003);
Champion
Laboratories,
Inc.
v.
IEPA,
PCB
04-65
(January
8, 2004);
Midwest Generation,
LLC
—
Collins
Generating Station
v.
IEPA,
PCB
04-108 (January 22, 2004);
Ethyl Petroleum Additives,
Inc.,
v.
IEPA,
PCB
04-113 (February
5,
2004);
Board of Trustees of Eastern illinois
University v.
IEPA,
11
PCB
04-110
(February
5,
2004).
Notwithstanding
the
Board’s
recent
practice
in
the
above-
referenced
appeals and
the Agency’s position
in
those
appeals, the
Agency
now asserts that
it
“has
come to regard blanket stays of CAAPP permits
as incongruous with the aims of the Illinois
CAAPP and needlessly over-protective in light
ofattributes
common to
these appeals.”
(Opp.
at
8).
The
catalyst for the Agency’s sudden change
of position
appears
to
be
a phone
call
from
USEPA.
(Opp.
at
16).
Although the
Agency
argues
that
its
“weighty concerns” are
based
on
state
law,
it
is
clear that
it was not
until
the
USEPA
called the
Agency that
the
Agency had
the
epiphany that an entire
stay of a CAAPP permit is improper.
(Opp. at
16).
The Agency
suggests that the reasons for an
entire stay put forward by Petitionerjustify
a
stay of the
contested
conditions,6
but
that
certain reasons do
not
justify a
stay of the
entire
CAAPP permit.
(Opp.
at
8).
To this
end, the Agency challenges
the
first two of the five factors
the Board often looks
to and the two additional
reasons Petitioner put forth in its Petition
--
a stay
of the
entire
CAAPP
permit
is
necessary
to
avoid
administrative
confusion
and
appropriate
because IEPA
failed
to
provide a
statement of basis.
Since the
Agency
is
only
challenging a
limited
number of the reasons Petitioner set
forth in
its
Petition for a
stay of the entire
CAAP-P
permit,
the Agency waives any objection to
those reasons that it did not challenge and the Board
may
grant a stay of the
entire
CAAPP permit based
on the unchallenged reasons set forth in the
Petition.
Bridgestone/Firestone
at page 3.
A.
An Ascertainable Risht
Exists That Needs
Protection
and
Absent
a
Stay of
the Entire CAAPP
Permit, Petitioner Will IncurIrreparable Iniury.
The
Agency’s
first
argument
is
that
because
Petitioner
is
not
challenging
the
entire
CAAPP permit,
an ascertainable right
does not exist as to
the
uncontested conditions that needs
6
One ofthe
conditions
the Petitioner contests
is the effective date.
Therefore,
a stay of
the
contested
conditions
will result
in a
stay of the
effective date,
thus
staying
the effectiveness
ofthe entire CAAPP permit.
12
protection,
and
compliance with
the
uncontested
conditions
during
the
appeal
process will
not
result
in
irreparable harm.
(Opp.
at
10-11).
The
Agency
seems
to
assume
that
the
contested
conditions
that
pertain
to
such
things
as
emissions
testing,
reporting,
recordkeeping,
and
monitoring are
not
interwoven
in
purpose or scheme
with the
remainder of the CAAPP permit.
This assumption is flawed.
A close examination of the
CAAPP permit reveals that
a stay ofjust
the
contested
conditions
would
create
confusion
and
leave
at
least
some
of the
uncontested
conditions virtually meaningless.
Further, such a limited stay would require Petitioner to comply
with
provisions
that
are incorrect applications of legal
requirements.
For
example,
Conditions
7.1 .3(b)(iii), 7.1 .3(c)(iii),
7.1 .7(a)(iv),
7.1. l0-2(a)(i)(D),
7.1.12(0, which
were not contested,
are
linked
to
contested
conditions.
Therefore,
if
the
Board
were
to
only
stay
the
contested
conditions,
these uncontested conditions would become meaningless.
Petitioner’s right
of appeal
should
not
be
cut
short
or even
rendered moot
by
a
limited
stay that would
result in Petitioner having to
comply with certain conditions before a legal
ruling
that
will
or
may
affect
the
meaning
of those
conditions.
Furthermore,
as
admitted
by
the
Agency,
Petitioner
should
not
be
required
to
expend
exorbitant
costs
in
complying
with
conditions
whose
meaning
will
be
affected
by
the
appeal
process.
(Opp.
at
9).
Since
the
contested
conditions
are
beyond
the
scope of the
Agency’s statutory
permit
authority
and
are
interwoven with
the remainder of the CAAPP permit,
a
stay of the
entire
permit
is
necessary
to
protect an ascertainable right and avoid
irreparable injury.
B.
The
Absence
of
a
Stay
of
the
Entire
CAAPP
Permit
Would
Cause
Administrative Confusion.
The Agency’s second
argument is that,
even though the permit appeal
process
is
part of
the administrative continuum, no
administrative confusion will
result if a partial stay
is
granted
because the
state
operating
permits
become
a
“nullity”
upon the
issuance/effectiveness
of the
13
CAAPP permit.
(Opp.
at
11).
The Agency’s interpretation ofthe Act contravenes
a basic canon
of statutory construction because it results
in a superfluous interpretation of statutory language
--
if effectiveness and issuance are
synonymous as the Agency alleges,
Section
39.5(4)(b) or (g) of
the Act
becomes
superfluous.
Krafl
Inc.
v.
Edgar,
561
N.E.2d
656,
661
(Ill.
1990)
Stern
v.
Nonvest Mortgage Inc.,
672 N.E.2d 296, 299
(Ill.
App.
Ct.
1996);
Roscoe
Taylor
v.
illinois,
No.
93-CC-0083,
1995
WL 1051631,
at
*3 (Ill. Ct. Cl.
1995).
The
Agency
takes
issue
with
Petitioner’s
reliance
upon
both
Sections
39.5(4)(b)
and
9.1(f)
of the
Act
for the continuation of the
state operating
permit
during
the pendency of the
appeal.
(Opp.
at
11).
However, in
ascertaining the
meaning of a statute,
the statute
should be
read as a
whole
with
all
relevant
parts
considered.
Patterson,
308
Ill.App.3d
at 947,
242
Ill.
Dec.
at
521.
Petitioner’s
reliance
on
both
sections
is
necessary
and,
therefore,
appropriate
in
order
to
give
effect
to
the
language
in
the
statute.
Section
39.5(4)
of the
Act
addresses the
transition
from
the
state operating
permit
program
to
the
CAAPP.
A
source’s state
operating
permit
is
to
remain
in
full
force
and
effect
until
issuance of the
CAAPP
permit.
See
Section
39.5(4)(b)
of the
Act.
Once
the
CAAPP
permit
has
been
issued,
at
least this
portion
of the
transition
from
the
state
operating
permit
program
to
the
CAAPP
has
occurred.
However,
Section
39.5(4)(g) says
that
the
“CAAPP
permit
shall
upon becoming
effective
supersede
the
State
operating permit.”
(Emphasis added.)
Under Illinois law,
as discussed above, the CAAPP
permit is
not effective if it has
been appealed.
Ifthe Agency
is
correct
in
its
argument, there is
no
permit
in
effect
under
which
the
source
can
operate
if a
stay
is
issued
by the
Board.
The
General Assembly could
not have reasonably intended for a source to operate without a permit.
Section
9.1(f)
of
the
Act
supports
the
distinction
between
Sections
39.5(4)(b)
and
39.5(4)(g)
of the
Act
in
the
context of appeals of CAAPP permits,
and
confirms that
the
state
14
operating
permits
remain
in
effect
until
“final
administrative
action”
is
taken
on
the
CAAP
permit.
Section
9.1(1) of the
Act provides that “if
a complete application
for a permit
renewal
is
submitted
to the
Agency at least 90 days prior to expiration of the permit,
all of the terms and
conditions of the permit shall remain in effect until final administrative
action has been taken on
the
application.”
The
Agency
argues
that
this
sedion
applies
only
to
New
Source
Review
construction
permits
because
the
context
of Section
9.1
is
the
Clean
Air
Act.
In
actuality,
Section 9.1(0 of the
Act is not limited
to permits
issued because of Clean Air Act requirements,
or even if it
is, it would apply in the case ofCAAPP permits because they are required by Title V
of
the
Clean
Air
Act.
First,
New
Source
Review
permits
are
not
renewed.
They
are
preconstruction permits
that
are followed by an
operating permit.
Therefore,
Section 9.1(0 does
not apply to
New Source Review at all,
let alone only to
New Source
Review.
Second, permits
issued
because
of
Clean
Air
Act
requirements
generally
require
public
notice,
and
the
applications
must be
submitted at least
180 days prior to
expiration of the
previous permit.
See
Section
39(a) of the
Act.
Therefore,
it is
not
limited only to
permits
required
by the
Clean Air
Act.
A
state operating permit,
pursuant to
Section
9.1(1) of the
Act,
continues in effect
after its
expiration
if the
application for renewal
is
timely.
In this
case, the
application for renewal was
the application for the
CAAPP permit.
See
Section 39.5(4)(a) of the
Act.
In order
for Sections
39.5(4)(a),
(b), and
(g) of the
Act to
make sense
in the context of the entire
Act,
which has not
been superseded by the CAAPP as discussed above,
the state operating permit continues in effect
during the pendency of the appeal of the CAAPP permit thus creating administrative confusion if
a stay ofthe entire
permit is not granted.7
~Note that Section 39.5(5)(o) applies in appeals ofrenewal CAAPP permits.
15
C.
The Absence of a Statement of Basis
Warrants
a
Stay of the Entire CAAPP
Permit.
The Agency’s third argument
is that the lack of a statement of basis does not
support the
need for a stay of the entire
CAAPP permit because it does not render the entire permit defective.
(Opp.
at
14).
The current issue before the Board, however, is not whether the lack of a statement
of basis
renders the permit defective, but whether the lack of a statement of basis justifies
a stay
of the entire CAAPP permit.
Petitioner, therefore, will
not address the merits of why a statement
of basis
renders
the
entire
permit
defective
in
this
reply,
but
will
set
forth
why the
lack
of a
statement ofbasis
is a reason to stay the entire permit.
Section
39.5(8)(b) requires
the Agency to
explain
the Agency’s rationale
for the terms
and
conditions
of the
CAAPP
permit.
A
statement of basis
is,
therefore,
necessary
for the
permittee
to
fully
understand
the rationale
behind
each permit
condition
and
ultimately affects
whether the
permittee
finds
a
condition to
be
objectionable.
Since
the Agency
did
not
issue
a
statement of basis, denying the permittee
notice of the Agency’s decision-making rationale
and
the
opportunity
to
comment
thereon,
Petitioner effectively
objects
to
each
and
every
CAAPP
permit condition.
The
Agency concedes that the reasons put
forward by Petitioner in
its Petition
justify
a
stay
of the
contested
conditions.
Accordingly,
the
Agency’s
failure
to
provide
a
statement ofbasis justifies a stay of the entire CAAPP
permit.
III.
THE
STATUTORY
OBJECTIVES
OF
THE
CAAPP
AND
THE
COMMON
ATTRIBUTES OF PERMIT APPEALS DO NOT WARRANT THE DENIAL OF A
STAY OF THE ENTIRE CAAPP PERMIT.
The
Agency
argues,
without
providing
any
support
for
its
argument,
that
the
Board
should
not
issue
a stay of the
entire
CAAPP permit
because it could
lessen the opportunities for
citizen enforcement against Petitioner
and the “cumulative effect” of stays
sought
by other coal-
fired
CAAPP
permittees
would
“effectively
shield”
the
entire
utility
sector
from
potential
16
enforcement.
(Opp.
at
19)
This argument is completely specious.
The Act
allows “any person”
to file
a complaint
with the
Board
against any
person violating the “Act,
any
rule or regulation
adopted under the Act, any permit, or any term or condition of a permit.”
See
Section
31 (d)(i) of
the Act.
Therefore,
a stay
in this case or any of the other
coal-fired CAAPP
permit appeals will
not limit a citizen’s ability to bring an enforcement action.
The
Agency
also
argues
that
Petitioner
is
not
entitled
to
a
stay of the
entire
CAAPP
permit because this appeal
along with the other coal-fired CAAPP permit appeals are “protective
appeals.”
Petitioner takes
exception to
the
accusation
that
this
appeal
is protective.
Petitioner
was
active
in the
opportunities
for public
participation and issued
written comments
in response
to
all
of the
iterations
of the
draft
CAAPP
permit.
Petitioner
filed this
appeal
because
the
Agency failed
to address
serious issues raised by Petitioner during public participation, resuiting
in
a
CAAPP
permit
that
exceeds the Agency’s
statutory
authority.
Petitioner
and
the Agency
anticipate that some ofthese issues will
likely go
to hearing.8
8
The Agency
in its
Motion
For Extension of Time to
File Record concedes that some of
this
issues will
likely go
to hearing.
17
CONCLUSION
For
the reasons set
forth
above, Petitioner contends that
the CAAPP permit
on appeal
in
this proceeding
is
not
in effect,
pursuant to
the
APA,
while this
appeal
is
pending
and
until the
Agency
issues
the permit
after remand,
and
requests,
in
the
alternative,
that
the
Board
grant
Petitioner’s
request for a stay of the
entire
CAAPP permit
pursuant
to the
Board’s discretionary
stay authority.
Respectfully submitted,
MIDWEST GENERATION, LLC,
FISK
GENERATING STATION
by:
________
One of Its Attorneys
Dated: December 2, 2005
Sheldon A. Zabel
Kathleen C.
Bassi
Stephen J. Bonebrake
Joshua R. More
Kavita M. Patel
SCHIFF HARDIN, LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois
60606
312-258-5500
Fax:
312-258-5600
CH2\ 1335960.1
18
EXHIBIT
1
QUESTIONS
AND
ANSWERS
ON
THE
REQUIREMENTS
OF
OPERATING
PERMITS
PROGRAM
REGULATIONS
Prepared
By:
The
U.
S.
Environmental
Protection
Agency
July
7,
1993
INTRODUCTION
This document summarizes questions and answers
(0’s
& A’s)
on requirements and implementation of the Environmental
Protection Agency’s
(EPA)
final operating permits program
regulations.
The operating permits
regulations were published on
July 21,
1992,
in Part 70 of Chapter
I of Title 40 of the Code of
Federal Regulations
(57 FR 32250)
.
These rules are mandated by
Title V of the Clean Air Act
(Act)
as amended in 1990.
The contents of this document reflect
a wide range of
questions that have been asked of EPA concerning implementation
of the operating permits program.
In part,
the document reflects
audience questions and EPA’s responses at workshops and
conferences sponsored by EPA and by other groups at which EPA
personnel participated as speakers.
Workshop attendees inoluded
personnel from EPA Regional Offices,
State and local permitting
agencies,
industry representatives,
and other individuals from
the interested public,
including environmental groups.
Questions and answers are organized in chapters primarily
according to the sections of the Part 70 regulations with
additional topics covered in latter chapters.
This document is available in a WordPerfect 5.1 file on
EPA’s electronic bulletin boards and will be periodically updated
by addition of more questions and answers.
Each succeeding set
of additions to this document will be indicated so the user can
distinguish new material.
As new material is added,
it will be
designated in WordPerfect “redline”
font.
“Redline” font appears
differently
(e.g.,
shading or dotted underline)
according to the
printer being used.
Example:
As each new addition of Q’s
& A’s is made,
the “redline”
font will be removed from the previous addition so that only the
latest material added will appear in “redline” font.
Document
updates will be recorded as they are made.
This document responds to many requests for information
concerning implementation of Part 70.
The •contents are based on
the Part 70
requirements and the requirements of Title
V.
Answers to questions are intended solely as guidance representing
the Agency’s current position on Part
7Q implementation.
The
information contained herein is neither rulemaking nor final
Agency action and cannot be relied upon to create any rights
enforceable by any party.
In addition,
due to litigation
underway,
the Agency’s position on aspects of the program
discussed in this document may change.
If
so, answers will be
1
revised accordingly.
As with periodic updates to this document,
any change will be denoted with the Wordperfect “redline” font to
distinguish any revised answer from a previods version.
RECORD OF DOCUMENT UPDATES
Original document:
July
7,
1993
First Update:
_____________
ii
TABLE OF CONTENTS
Page
1.0
PROGRAM OVERVIEW
2.0
DEFINITIONS
2.1
Applicable Requirements
2.2
Affected States
2.3
Major Source
2.4
Potential to Emit
2.5
Regulated Air Pollutant
2.6
Regulated Pollutant
for Fees
2.7
Responsible Official
1—1
2—1
2—1
2—1
2—1
2—1
2—2
2—3
2—3
3.0
APPLICABILITY
3.1
Sources
Covered
—
General
3.2
Source Cateaorv Exemptions
3.3
“Synthetic Minors”
3.4
Emissions Unit Coveraae
3.5
Fugitive Emissions
3.6
Applicability Duration
3.7
Section 112(r)
Sources
3.8
Area HAP’s Sources
3.9
Acid Rain Source Obligations
3.10 Won—Act Requirements
3.11 Radionuclide Sources
3—1
.3—1
3—2
3—3
3—3
3—3
3—3
3—4
3—4
3—4
3—5
3—5
4.0
PROGRAM SUBMITTALS
4.1
Proaram Submittal Content
4:.2
EPA Review of Program Submittals
4.3
Interim Approval
4.4
Eouivalent Program Elements
4.5
Attorney General’s Opinion
4.6
Lecal Authority
4.7
Partial Programs
4.8
Operational
Flexibility
4.9
“Off Permit”
4.10
Transition
Plan
4.11 Judicial Review
4.12 Implementation Agreements
5.0
PERMIT APPLICATIONS
5.1
Application Content
5.2
Timely and Comolete Submittal
5.3
Apolication Review
5.4
Insignificant Activities
5.5
Emissions Reporting
5.6
confidential
Information
5.7
Compliance
Plans
4—.
4—1
4—2
4—2
4—3
4—3
4—3
4—4
4—4
4—5
4—5
4—6
4—7
5—1
5—1
5—1
5—2
5—2
5—3
5—3
5—4
iii
5.8
Certification of Truth.
etc
5—4
5.9
Cross—Referencing
6.0
PERMIT
CONTENT
6.1
General
Permit Content
6.2
Equivalency Determination
6.3
Federal Enforceability
6.4
Compliance Certification
6.5
Monitoring.
Recordkeeping.
6.6
Inspection Provisions
6.7
General Permits
6.8
Permit Shield
6.9
Alternative Scenarios
6.10 Emergency Defense/Updates
6.11 Noncomplying Sources
6.12 Model Permits
6.13 Emissions Trading
7.0
PERMIT PROCESSING
7.1
General Process
7.2
Administrative P,mendments
7.3
Minor Modifications
7.4
Significant Modifications
7.5
Application Shield
7.6
Public Participation
7.7
Renewals
7.8
Reopeninas
7.9
Title
I Modifications
7.10 Permit Denial
7.11 Temporary Sources
.
8.0
PERMIT
REVIEW
8.1
EPA
Review
8.2
Affected
State
Review
8.3
Public
Participation
8.4
Data
Management
.
5—4
6—1
6—1
6—1
6—1
6—2
6—2
6—3
6—4
6—5
6—6
6—6
6—7
6—7
6—7
7—1
7—1
7—1
7—1
7—2
7—2
7—2
7—3
7—3
7—3
7—3
7—3
8—1
8—1
8—1
8—1
8—1
10.0 FEDERAL OVERSIGHT AND SANCTIONS
11.0 ENFORCEMENT AUTHORITY
11.1
Enforcement Authority
Renorting
9.0
PERMIT
FEES
9.1
Presumptive Minimum Program Cost
9.2
Fee Demonstration
9.3
Funded Program Costs
9.4
Fee Schedule
9.5
Small Business Program Funding
9.6
Phase
I Source Fee Exemotion
9—1
9—1
9—1
9—1
9—3
9—4
9—4
11.2 Criminal Authority
10—1
11—1
11—1
11—1
iv
12.0
PROGRAM
INTERFACE
.
.
.
.
.
.
12-1
12.1
fl~
12—1
12.2 Section 112
12—2
12.3 New Source Review
.
12—2
12.4 Acid Rain
12—3
12.5 Enhanced Monitoring
12—9
12.6 Stratospheric Ozone
12—9
13.0 MISCELLANEOUS
13—1
13.1 Indian Lands
13—1
13.2 Pollution Prevention
13—1
14.0 PART 71
14—1
v
6.0
PERMIT
CONTENT
6.1
General Permit Content
1.
Must the SIP-approved emissions rate be included in the
permit,
or is
a Control Technology Guideline reasonably
available
control
technology
limit
sufficient?
The SIP—approved emissions
rate
is the applicable requirement
and must
be included in the permit.
2.
What
is
a
severability
clause?
The severability clause is
a provision that allows the rest
of
the permit to be enforceable when
a part of the permit is
judged illegal or void.
6.2
Equivalency Determination
6.3
Federal
Enforceability
1.
What
are
the
limits
on
the
additional
requirements
that
a
permitting
authority
can
impose
on
a
source
in
the
non-
federally-enforceable
portion
of
the
permit?
A
permitting
authority
is
free
to
add
any “State—only”
requirements
to
the
extent
allowed
by
State
or
local
law.
However,
the
permitting authority is also responsible
for
enforcing the federally—enforceably portion of the permit
and
EPA will exercise its enforcement oversight with regard to
those terms and conditions.
2.
If
a
facility
takes
a
tighter
limit
to
create
emission
credits,
how
is
the
new
limit
made
federally
enforceable?
The new limit is made federally enforceable by placing it in
the
federally—enforceable
part
of
the
Title
V permit,
along
with appropriate compliance terms
(e.g., monitoring,
reporting,
and recordkeeping)
3.
what
is
the
mechanism
to
change
or
reverse
“State-only”
conditions
that
became
federally
enforceable
back
to
“State-
only”
status?
The mechanism for changing the designation from federally
enforceable to “State—only”
is the minor permit modification
process.
These changes,
if “State—only,” should not involve
applicable requirements and could be removed from
the
federally—enforceable portion of the permit as long as none
of
the restrictions
on minor permit modifications
in section
70.7(e) (2)
Ci)
(A)
are violated.
If any of the restrictions
in
6—1
CERTIFICATE OF SERVICE
I hereby certify that on the
2nd
day ofDecember 2005, I
did serve, by electronic filing, by
electronic mail,
and
by U.S. Mail postage prepaid, a
true and correct copy ofthe attached
PETITIONER’S REPLY IN SUPPORT OF A PERMIT STAY AND IN RESPONSE TO
THE AGENCY’S OPPOSITION TO PETITIONER’S REQUEST FOR A STAY
and
MOTION FOR LEAVE TO FILE REPLY
INSTANTER,
upon the following persons:
Dorothy Gunn, Clerk
Robb
Lyman, Assistant Counsel
Pollution Control Board
Sally Carter, Assistant Counsel
James R. Thompson Center
Division of Legal
Counsel
100
W. Randolph Street
Illinois Environmental Protection Agency
Suite 11-500
1021 North Grand Avenue, East
Chicago, Illinois 60601
P.O. Box
19276
Chicago, Illinois 60601
Springfield, Illinois 62794-9276
Bradley P. Flalloran
Hearing Officer
Illinois Pollution Control Board
James R.
Thompson Center
100 West Randolph Street
Suite
11-500
Chicago, Illinois 60601
Kathleen
C.
Bassi
Sheldon A. Zabel
Kathleen C. Bassi
Stephen J. Bonebrake
Joshua R. More
Kavita M. Patel
SCHIFF
1-JARDIN, LLP
6600
Sears Tower
233
South Wacker Drive
Chicago, Illinois
60606
312-258-5500
Fax:
312-258-5600
-5-
