BEFORE THE POLLUTION
CONTROL BOARD
OF THE STATE
OF ILLINOIS
RECEIVED
CLERKS OFFICE
THE CITY
OF
SPRINGFIELD,
)
NOV
032005
a municipal corporation,
Petitioner,
)
r
7
STATE OF
ILLINOIS
)
PCB
OLei’~
Pollution Control Board
vi.
)
(Permit Appeal
—
Air)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
NOTICE OF FILING
To:
Dorothy M. Gunn
Robert P. Messina
Clerk ofthe Board
Chief Legal
Counsel
Illinois Pollution Control Board
Illinois Environmental
Protection Agency
100 West Randolph
1021 North Grand Avenue East
Suite
11-500
P.O. Box
19276
Chicago,
IL 60601
Springfield, IL 62794-9276
Please take notice that on November 3,
2005, we filed with the Office ofthe Clerk of the
Illinois Pollution Control Board, an
original
and
9 copies of the following:
(1) MOTION TO
STAY EFFECTIVENESS OF CAAPP PERMIT;
(2) APPEARANCE OF CYNTHIA A.
FAUR AND (3) MOTION FOR LEAVE TO EXCEED THE PAGE LIMIT, which are
served upon you.
Respectfully submitted,
TITlE CITY OF SPRINGFIELD,
a municipal corporation
By
C~\c*\\JLt~QL_~
(~)ne
of its attorneys
Dated:
November 3, 2005
Cynthia A. Faur
Mary A. Gade
Elizabeth A.
Leifel
Sonnenschein Nath & Rosenthal
LLP
8000 Sears Tower
Chicago, Illinois
60606
(312) 876-8000
11961772
TillS
FILING
IS BEING SUBMI1TED ON RECYCLED
PAPER
BEFORE THE POLLUTION CONTROL BOARD
R
E C
El V ED
OF THE STATE OF ILLINOIS
CLERK’S OFFICE
NOV
032005
THE
CITY OF SPRINGFIELD,
STATE OF ILLINOIS
a
municipal corporation,
)
Pollution Control Board
Petitioner,
)
o~
PCB
___________
v.
)
(Permit Appeal
—
Air)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
MOTION TO STAY EFFECTIVENESS OF CAAPP PERMIT
The City of Springfield
owns and
operates an electric generation and transmission
company commonly
known
as City Water, Light
& Power (“CWLP”).
The City of Springfield,
hereinafter referred to as CWLP, by its attorneys, Cynthia A. Faur, Mary A.
Gade, Elizabeth A.
Leifel, and Sonnenschein Nath & Rosenthal LLP,
hereby petitions the Illinois Pollution Control
Board (the “Board”) to stay the effectiveness of CWLP’s Clean Air Act Permit Program
(“CAAPP”) permit in this matter, pursuant to
415 ILCS
5/40.2,
and
in accordance with 35
III.
Admin.
Code
§
105.304(b).
CWLP requests
a stay ofthe effectiveness of its CAAPP permit.
It recognizes, however,
that the Board could find that such a stay
is unnecessary because CWLP’s
CAAPP permit never
became effective pursuant to
§
10-65(b) of the Illinois Administrative Procedures Act (the
APA’) and the holding in
Borg-Warner Corp.
v.
Mauzy,
100 Ill. App.
3d 862, 427 N.E.2d 415
(3d
Dist.
1981).
Section 10-65(b) of the APA provides that when a permittee (referred to
as a
licensee in
the APA) has made a timely
and
sufficient application for
a permit renewal (or
license renewal as it is referred to
in the APA) or a new permit
(or license) for an activity of a
continuing nature, the permit (or license) shall continue in effect until the final agency decision
has been made unless
a
later date
is fixed by order of the reviewing court.
5 ILCS
100/10-65(b).
The Appellate Court in
Borg-Warner
held that a final decision for the purposes of
§
10-65(b) of
the APA would not
occur until the Board were to rule on any appeal of an issued permit.
Borg-
Warner Corp.
100 Ill. App.
3d. at 870-871, 427 N.E.
2d. at 421.
In this instance,
CWLP
submitted a timely
and sufficient application to the Agency
for a CAAPP permit.
The purpose
ofthe CAAPP permit is to
take
the place of CWLP’s existing operating permits.
Accordingly,
the Board could
find that pursuant to
§
10-65(b) ofthe APA,
CWLP’s CAAPP permit never
became effective and that a stay of effectiveness is not necessary.
In the alternative, if the
Board determines that
§
10-65(b) ofthe APA does not apply in
this instance, CWLP states as follows
in support ofits Motion for Stay:
1.
On September 29, 2005,
the Illinois Environmental Protection Agency
(the
“Agency”) issued
a
final CAAPP permit, Application No.
95090091, (the “Permit”)
to CWLP’s
Dallman and Lakeside
Stations, located at 3100
Stevenson Drive,
Springfield, Illinois.
2.
Today, November 3,2005, CWLP has filed a Petition for Hearing to Review Clean
Air Act Permit Program Permit Issuance (the “Petition”) in order to preserve its right to appeal in
this matter.
3.
In this Motion, CWLP requests that the Board
stay the effectiveness of its CAAPP
permit.
Such a stay is appropriate based upon the standards
articulated by the Board.
Illinois
law provides the following standards to
be used in determining the appropriateness of a stay:
(1)
a certain ascertainable right needs protection; (2) irreparable injury will occur without the
injunction; (3) no adequate remedy at law exists,
and
(4) there is
a probability of success on the
merits);
See Nielsen
& Bainbridge,
L.L.C.
v. JEPA,
Docket No.
03-98 (III. Pollution Control Bd.
Feb.
6, 2003);
see also Saint-Gobain Containers,
Inc.
v.
JEPA,
Docket No.
04-47 (III. Pollution
Control Bd. Nov. 6, 2003);
Noveon,
Inc.
v. JEPA,
Docket No. 04-102 (Ill.
Pollution Control
Bd.
Jan.
22, 2004); and
Bridgestone/Firestone OffRoad Tire
Company v.
JEPA,
Docket No.
02-31
-2-
(Ill. Pollution
Control Bd. Nov.
1,2001) (noting that it is not necessary for the Board to consider
all four factors).
4.
First,
a stay ofeffectiveness of the Permit is necessary to protect CWLP’s right to
appeal and to prevent the imposition of contested permit conditions before CWLP is able to
exercise its right to appeal
and be heard by
the Board.
5.
Second, if the stay is not granted, CWLP will suffer irreparable hann.
As discussed
in the Petition,
the Permit contains numerous
conditions that are
arbitrary and capricious, unduly
burdensome, and not otherwise required by applicable law.
To require CWLP to come into
compliance with this Permit prior to resolution of the Petition would take a significantamount of
time and would require substantial capital expenditures, placing an undue
burden on CWLP, in
the event that the contested permit conditions are overturned.
Granting a stay of the Permit
would alleviate this hardship.
6.
Third, CWLP has no adequate remedy at law other than to appeal
its Permit to tire
Board.
Further, CWLP
is likely to succeed on the merits ofthe Petition.
As detailed in the
Petition, the CAAPP permit, as issued, contains numerous conditions that do
not represent
“applicable requirements.”
Under Illinois law,
the Agency has exceeded
its authority with
regard to
certain conditions,
and certain conditions are arbitrary and capricious.
7.
A stay ofthis
Permit would not result in
any harm to the Illinois EPA, the public or
the environment.
CWLP
would continue to operate in compliance with its existing operating
permits while the Petition is pending.
8.
A stay of the effectiveness ofthe entire CAAPP permit is appropriate
in this instance
because CWLP
in its Petition has contested
numerous subsections of48
permit conditions.
To
the extent that the
Board
were to grant a CWLP a partial stay of the Permit based only on the
contested conditions,
it would create unnecessary confusion because CWLP would need to
.3
-
comply with
existing permit terms for certain items and the requirements of the CAAPP Permit
for others.
9.
The Board has stayed the effectiveness of other CAAPP permits
in their entirety
when requested.
See,
Nielsen
& Brainbridge,
L.L. C.
V IEPA,
Docket No. 03-98 (Ill. Pollution
Control Bd.
Feb.
6, 2003);
Saint-Gobain Containers,
Inc.
v.
IEPA,
Docket No. 04-47 (Ill.
Pollution Control
Bd. Nov. 6, 2003);
Midwest Generation, LLC
-
Collins Generating Station
v.
JEPA,
Docket No. 04-108
(III. Pollution Control Bd. Jan. 22, 2004); and
Board of Trustees of
Eastern Illinois University v.
IEPA,
Docket No.
04-110(111. Pollution Control Bd.
Feb.
5,
2004).
10.
While a stay of effectiveness of CWLP’s CAAPP permit is appropriate in this
instance,
should the Board determine that such a stay is not warranted, CWLP requests, in the
alternative, that the Board grant a stay ofthe contested conditions ofthe Permit.
WHEREFORE,
CWLP respectfully requests that the Board grant a stay of effectiveness
of CWLP’s CAAPP permit until the Board’s final action in this matter.
Respectfully submitted,
THE CITY OF SPRINGFIELD,
a municipal
corporation
of its Attorneys
Dated:
November 3, 2005
Cynthia A. Faur
Mary A.
Gade
Elizabeth A.
Leifel
Sonnenschein Nath & Rosenthal LLP
8000 Sears Tower
Chicago, Illinois
60606
(312) 876-8000
11961753
THIS FILING IS BEING SUBMIFFED
ON RECYCLED PAPER
-4-
BEFORE THE POLLUTION CONTROL BOARIh
E C E ~VED
OF THE
STATE
OF
ILLINOIS
CLERK’S OFFICE
NOV
03
2005
THE
CITY
OF
SPRINGFIELD,
)
STATE OF ILLINOIS
Pollution Control Board
a municipal corporation,
)
)
Petitioner,
)
Dc
)
PCB
___________
v.
)
(Permit Appeal
—
Air)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
APPEARANCE
OF CYNTHIA A. FAUR
The undersigned, as one of its attorneys, hereby enters an Appearance on behalf ofThe
City of Springfield.
Respectfully submitted,
THE CITY OF SPRINGFIELD,
a municipal corporation
Dated:
November 3, 2005
Cynthia A.
Faur
Mary A. Gade
Elizabeth A. Leifel
Sonnenschein Nath & Rosenthal LLP
8000 Sears Tower
Chicago, Illinois
60606
(312) 876-8000
THIS FILING IS BEING
SUBMI’VITED ON RECYCLED PAPER
BEFORE THE POLLUTION CONTROL BOARD
RE CE IV E D
OF THE STATE OF ILLINOIS
CLERK’S
OFFICE
NOV
0
32005
THE CITY OF SPRINGFIELD,
STATE OF
(LUNOIS
a municipal corporation
)
Pollution Control
Board
)
Petitioner,
)
,f
.._‘7
)
PCB
LAL’
v.
)
(Permit Appeal
—
Air)
)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
)
Respondent.
)
MOTION FOR LEAVE TO EXCEED THE PAGE LIMIT
The City of Springfield owns and operates an electric
generation and transmission utility
commonly known as City Water,
Light
& Power (“CWLP”).
The City of Springfield,
hereinafter referred to as CWLP, by its attorneys, Cynthia A.
Faur, Mary A.
Gade, Elizabeth A.
Leifel, and Sonnenschein Nath & Rosenthal LLP,
hereby requests that the Illinois Pollution
Control Board (the “Board”) grant its Motion for Leave to Exceed the Page Limit (Motion”) for
its Petition For Hearing To Review Clean Air Act Permit Program Permit Issuance.
In support
of this Motion, CWLP states as follows:
1.
Section 101.302(k) ofthe Board’s rules provides in relevant part that
“nb
motion, brief in support of motion or brief may exceed 50 pages.”
35
III. Admin. Code
§
101.302(k).
2.
On November 3, 2005, CWLP
filed, contemporaneous with this Motion, a
Petition For Hearing To Review Clean Air Act Permit Program Permit Issuance (“Petition”).
In
this Petition, CWLP has objected to numerous subsections in 48
conditions in its Clean Air Act
Permit Program (“CAAPP”) permit,
which itself was over
154
pages.
This Petition is
70
pages.
3.
While
CWLP made every effort to meet the page limit specified in the Board’s
rules, in order for CWLP to hilly satisfy the Board’s requirements for appeals ofCAAPP permits,
CWLP’s needs in excess ofthe 50 pages allowed by
§
101.302(k).
The requirements for CAAPP
permit appeal
are contained in 35
Ill. Admin. Code
§
105.304(a).
Pursuant
to these rules, CWLP
is required to
provide the following information in its Petition for review ofa CAAPP permit: (1)
a concise description ofthe CAAPP
source for which the permit is sought; (2) a statement ofthe
Agency’s decision or part thereofto be reviewed; (3)
a justification as to why the Agency’s
decision or partthereof was in error; and (4) the other materials upon which the petitioner relies
in its Petition.
As CWLP
stated above, it objected to 48
conditions in its CAAPP permit.
To
effectively set forth each condition appealed and state why each condition was in error, CWLP
required additional pages.
4.
In addition, CWLP
has attached to its Petition a copy of the CAAPP permit which
is the subject of the Petition, as well as other supporting documents upon which it relies in its
Petition.
-2-
WHEREFORE, for the reasons set forth in this Motion,
CWLP respectfully requests that
the Board grant CWLP the authority file
a Petition in excess ofthe 50
page limit set forth in 35
Ill. Admin.
Code
§
101.302(k).
Respectfully submitted,
CITY OF SPRINGFIELD
By:____
of’ its Attorneys
Dated:
November 3, 2004
Cynthia A. Faur
Mary A. Gade
Elizabeth A. Leifel
SONNENSCHEIN NATH & ROSENTHAL LLP
8000
Sears Tower
233
S.
Wacker Drive
Chicago, IL 60606
(phone): 312-876-8000
(facsimile) 312-876-7934
I I962213v1
THIS FILING IS BEINGSUBMITFED ONRECYCLED PAPER
-3-
CERTIFICATE OF SERVICE
The
undersigned, an attorney, certify
that I have
served upon the individuals named on
the attachedNotice of Filing true and correct copies ofthe (1)
MOTION TO STAY
EFFECTIVENESS OF CAAPP PERMIT;
(2) APPEARANCE OF CYNTHIA A. FAUR
AND (3) MOTION FOR LEAVE TO EXCEED THE PAGE LIMIT, by Messenger and First
Class
Mail, postage prepaid on November 3, 2005.
