RECEIVED
    CLERK’S OFFICE
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    NOV
    3.0
    2005
    AMEREN ENERGY
    E
    OF ILLINOIS
    GENERATING COMPANY,
    )
    Control Board
    MEREDOSIA POWER STATION,
    )
    )
    Petitioner,
    )
    )
    v.
    )
    PCB 06-69
    )
    CAAPP Appeal
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    )
    NOTICE OF FILING
    To:
    Mr.
    Robb Layman
    Ms. Dorothy Gunn, Clerk
    Ms.
    Sally Carter
    Illinois Pollution Control Board
    Division of Legal Counsel
    James R. Thompson Center
    1021
    North Grand Avenue
    1000 West Randolph Street
    Post Office Box
    19276
    Suite
    11-500
    Springfield,
    IL
    62794-9276
    Chicago, IL
    60601
    Please take notice that on November 30, 2005,
    the undersigned caused
    to be
    filed
    with the
    Clerk of the Illinois
    Pollution Control
    Board,
    Motion for Leave to
    File Reply to
    Motion in
    Partial Opposition to,
    and Partial Support of, Petitioner’s Request for Stay, and
    Petitioner’s
    Response
    to
    Respondent’s
    Motion
    in
    Partial
    Opposition
    to,
    and
    Partial
    Support of, Petitioner’s Request for Stay, copies ofwhich are herewith served upon you.
    ,4~.
    fanl~s
    .
    Harnngton/
    One of its attorneys
    James T. Harrington
    David L.
    Rieser
    McGuireWoods LLP
    77
    West Wacker, Suite 4100
    Chicago, IL
    60601
    Telephone:
    312/849-8100
    RECEIVED
    CLERK’S OFFICE
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    NOV
    3.0
    2005
    AMEREN ENERGY
    )
    STATE
    OF
    ILLINOIS
    GENERATING COMPANY,
    )
    POllution Control
    Board
    MEREDOSIA POWER
    STATION,
    )
    )
    Petitioner,
    )
    )
    v.
    )
    PCB 06-69
    )
    CAAPP Appeal
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    )
    MOTION FOR LEAVE TO FILE REPLY TO MOTION N
    PARTIAL OPPOSITION
    TO, AND PARTIAL SUPPORT OF. PETITIONER’S REQUEST
    FOR STAY
    NOW
    COMES
    the Petitioner,
    by
    its
    Attorneys,
    James
    T.
    Harrington,
    David R.
    Rieser
    and
    McGuireWoods
    LLP
    and
    moves
    the
    Illinois
    Pollution
    Control
    Board
    (the
    “Board”)
    for leave
    to
    file
    a brief Response to
    Respondent’s
    Objections
    to
    Petitioner’s
    Motion for Stay.
    In support ofthis
    motion, Petitioner states as follows.
    1.
    The Petitioner has filed Petition for Review of the terms and
    conditions of
    the
    CAAPP
    Permits
    issued
    by
    Respondent
    for
    the
    above-named
    coal
    fired
    electrical
    generating uses.
    2.
    The
    Petitioner
    has
    set
    forth
    the
    applicable
    provisions
    of
    the
    Illinois
    Administrative
    Procedure
    Act,
    (5
    ILCS
    1001-10-65(b)),
    and
    applicable
    case
    authority
    (Borg-Warner Corporation v.
    Mauzy, 427 N.E. 2d 415,
    56
    Ill.Dec.
    335
    (3rd Dist.
    1981))
    establishing
    that
    the
    terms
    of the
    CAAPP
    Permits
    cannot
    go
    into
    effect
    pending
    the
    decision
    of the
    Board
    and
    any
    necessary
    action
    of the
    Respondent
    implementing
    the
    Board’s decision.
    3.
    Respondent served its Motion
    in Partial Opposition to, and
    Partial
    Support
    of Petitioner’s
    Request
    for
    Stay
    by
    depositing
    the
    same
    in
    the
    United
    States
    Mail
    on
    November
    18,
    2005. Respondent also sent
    copies by e-mail
    to Petitioner’s counsel
    on the
    same date.
    4.
    The effectiveness ofthe Permit pending the Board’s decision
    is an issue of
    overriding
    importance
    to
    the
    Board,
    the
    Petitioner
    and
    to
    the
    administration
    of
    environmental
    law in Illinois.
    5.
    Respondent has raised
    arguments in
    opposition to the Motion for Stay that
    were
    not anticipated and could not have been anticipated at the time the Motion was filed.
    In
    particular,
    Respondent
    has
    raised
    the
    “severability
    clause”
    regarding
    the
    CAAPP
    Permit
    Program
    as
    evidence
    that
    the
    legislature
    did
    not
    want
    the otherwise
    applicable
    provisions
    of the
    Administrative
    Procedure
    Act
    staying
    the
    terms
    of permits
    pending
    completion of the administrative process through review by the Board applied to
    CAAPP
    Permits.
    6.
    Failure
    to
    grant
    Petitioner
    leave
    to
    file
    a
    Response
    would
    materially
    prejudice Petitioner within the meaning of 35 Ill.Adm. Code
    Section
    101.500(e).
    WHEREFORE,
    Petitioner
    moves
    for
    leave
    to
    file
    the
    attached
    Response
    to
    Respondent’s Motion.
    Respe
    tfully submitted,
    7’
    Dated:______
    5
    ,4mes
    T. Harrington
    David L.
    Rieser
    McGuire Woods LLP
    77
    West Wacker,
    Suite 4100
    Chicago, IL
    60601
    Telephone:
    312/849-8100
    RECEIVED
    CLERK’S OFFICE
    BEFORE THE ILLINOIS
    POLLUTION
    CONTROL BOARD
    NOV
    302005
    AMEREN ENERGY
    )
    STATE OF
    ILLII’.io
    GENERATING COMPANY,
    )
    Pollution Control BoHrr
    MEREDOSIA POWER STATION,
    )
    )
    Petitioner,
    )
    )
    v.
    )
    PCB 06-69
    )
    CAAPP Appeal
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    )
    PETITIONER’S RESPONSE TO RESPONDENT’S MOTION IN PARTIAL
    OPPOSITION TO. AND PARTIAL SUPPORT OF. PETITIONER’S REQUEST
    FOR STAY
    NOW COMES the Petitioner, by and through
    its attorneys, and responds to the Motion
    in
    Partial Opposition to,
    and Partial Support ofPetitioner’s Request for Stay.
    1.
    The CAAPP Permit is Not
    in Effect and Is Stayed as a Matter of Law Pursuant to
    the Illinois
    Administrative
    Procedure Act (“APA”).
    The
    Respondent
    admits
    that
    the
    CAAPP
    Permit
    is
    a
    license
    of
    a
    continuing
    nature as
    defined by the APA.
    5
    ILCS
    1001-35. (Respondent’s Motion
    p.
    3).
    It
    also
    admits that
    the
    decision
    in
    Borg-Warner
    Corporation
    v.
    Mauzy,
    427
    N.E.2d
    415,
    56
    Ill.Dec.
    335
    (3d
    Dist.
    1981), holding
    that
    the
    final
    administrative
    decision within
    the
    meaning of the
    Administrative
    Procedure Act
    is the decision of the Pollution Control Board
    on the Petition for Review “may still
    reflect good law and that
    it
    probably warrants,
    in the appropriate case,
    application ofthe
    doctrine
    of stare decisis
    by
    Illinois
    Courts.”
    EPA Motion,
    p.
    4.
    It
    further admits “the
    CAAPP
    program
    itself
    does
    not
    reveal
    the
    General
    Assembly’s
    intentions
    to
    change
    this
    administrative
    arrangement.”
    Ibid.
    Nevertheless,
    Respondent
    contends
    that
    the
    APA
    does
    not
    apply
    to
    CAAPP
    Permits.
    First,
    it
    points
    out
    that
    the
    legislature
    has
    in
    the
    case
    of
    administrative
    citations
    specifically
    provided
    that
    the
    APA
    does
    not
    apply.
    See
    415
    ILCS
    5/31.1(e).
    Yet,
    this
    merely
    proves the opposite that
    the
    legislature
    intended and
    believed clearly that
    the
    APA applied
    to all
    proceedings
    under
    the
    Environmental
    Protection
    Act
    unless
    specifically
    exempted.
    It
    further
    proved that the
    legislature knew
    how to exempt actions
    under
    the Environmental
    Protection
    Act
    when it chose to do
    so.
    Second,
    the
    Respondent
    claims
    that
    the
    provisions
    of
    Section
    ~
    (415
    ILCS
    5/39.5(7))
    providing
    for
    severability of permit terms
    in
    the
    event of
    a
    challenge
    to
    any
    terms
    of the permit
    indicates
    legislative
    intent that
    the
    permit would
    not
    be
    stayed
    pending the
    Board’s
    decision
    on
    review.
    This
    argument stretches too
    far.
    Since the
    legislature
    chose
    not to
    expressly exempt CAAPP
    Permits from the APA, the severability
    clause must apply where some
    terms of a permit are
    successfully challenged
    so
    that other unrelated terms may
    remain
    in force.
    It
    does
    not
    address
    the
    applicability of the
    APA
    or
    the
    long
    standing precedent that
    the
    permit
    cannot go
    into effect
    until the administrative process is complete.
    Clearly
    if the
    legislature
    chose
    to
    exempt
    CAAPP
    Permits
    from
    the
    APA,
    it
    would have
    done
    so
    expressly,
    by
    innuendo. It did
    not
    do
    so.
    Under the
    usual
    rules
    of statutory
    construction,
    the
    APA
    and the “stay” provisions of
    5
    ILCS
    1001/10-65(b),
    as
    applied to
    Permit
    Appeals
    in
    Borg-Warner Corporation
    v.
    Mauzy,
    supra,
    and
    in Board
    decisions,’
    govern CAAPP
    Permit proceedings.
    Therefore,
    the CAAPP Permits under review are not in effect
    and
    are stayed
    as a matter of law pending the Board’s decision on
    the merits.
    2.
    The CAAPP Permits Should be
    Stayed In
    Its Entirety for the Reason
    Stated in the
    Petition.
    Should
    the
    Board
    conclude
    that
    the
    Permit
    is
    otherwise
    final
    and
    effective,
    a
    discretionary
    stay of the entire Permit should
    be granted.
    Without belaboring the lengthy Petition
    and
    Motion,
    Petitioner admits
    that
    it
    has
    sought
    review of only
    portions
    of the CAAPP
    Permit.
    ‘Electric Energy,
    Inc.
    v. Illinois Environmental
    Protection Agency, PCB 85-14 (1985),
    1985
    WL 21205,
    and IBP,
    Inc. v.
    Illinois Environmental
    Protection Agency, PCB 89-128
    (1989),
    WL
    137356.
    One of those conditions is the
    effective date. If the effective date
    is stayed, then none
    of the other
    conditions
    are
    in
    effect.
    Petitioner has
    adequately
    supported
    the
    stay
    of the
    effective
    date
    as
    it
    pointed
    out the numerous conditions which
    would have required
    immediate or retroactive actions
    by Petitioner.
    As
    Respondent has agreed
    to the
    stay of all contested terms and one of those terms
    is
    the effective date,
    all
    of the conditions
    of the permit should
    be
    stayed pending a Board
    ruling
    on
    the merits.
    Moreover,
    while
    Petitioner has challenged
    only a portion of the CAAPP
    Permit
    terms,
    those
    challenged
    terms
    encompass
    almost
    all
    significant
    terms
    that
    add
    to
    Petitioner’s
    obligations over those
    in
    existing laws,
    regulations
    and
    permits that
    remain in
    force
    and
    effect
    during the period of review. Therefore, the public
    health and
    environment remain fully protected
    during a stay.
    Conclusion.
    Petitioner requests the Board
    reject the arguments advanced
    by Respondent
    and
    issue
    its
    order
    finding
    that
    the
    CAAPP
    Permit
    at
    issue
    here
    is
    not
    in
    effect
    pending
    the
    decision of the Board and the action ofthe Agency implementing
    it.
    Respe
    ully
    submitted,
    _______
    Dated:
    ~~ingJq
    —
    avid L. Rieser
    McGuireWoods LLP
    77 West Wacker, Suite 4100
    Chicago, IL
    60601
    Telephone:
    312/849-8100
    BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
    AMEREN ENERGY
    )
    GENERATING COMPANY,
    )
    MEREDOSIA POWER STATION,
    )
    )
    Petitioner,
    )
    )
    v.
    )
    PCB 06-69
    )
    CAAPP Appeal
    ILLINOIS ENVIRONMENTAL
    )
    PROTECTION AGENCY,
    )
    )
    Respondent.
    )
    CERTIFICATE OF SERVICE
    I,
    James
    T.
    Harrington,
    one of the attorneys
    for Petitioner,
    hereby
    certify that
    I
    served copies of:
    1.
    Motion for Leave to
    File Reply to
    Motion
    in Partial
    Opposition to,
    and Partial Support
    of,
    Petitioner’s Request for Stay;
    and
    2.
    Petitioner’s
    Response
    to
    Respondent’s
    Motion
    in
    Partial
    Opposition to,
    and Partial
    Support of,
    Petitioner’s Request for Stay.
    upon
    Mr. Robb Layman
    and
    Ms. Sally Carter
    Division of Legal
    Counsel
    Illinois Environmental Protection Agency
    1021
    North Grand Avenue
    Springfield, IL
    62794-9276
    on November
    30, 2005 via Federal Express.
    ames T. Harrington
    One of the Attorneys for Petitioner
    McGuireWoods
    LLP
    77
    West Wacker, Suite 4100
    Chicago,
    Illinois
    60601
    Telephone:
    312/849-8100
    \\REA\290 108.1

    Back to top