ELECTRONIC
FILING,
RECEIVED, CLERK’S OFFICE,
NOVEMBER
16, 2005
BEFORE’! HE
ILLINOIS I’OItUTION
(:0NTR0L
BOARD
OF THE
STATE OF ILLINOIS
SOYLAND POWER
COOPERATIVE,
NC.
)
Petitioner,
)
PCB No. 2006-055
v.
)
(CAAPP Pem~it
Appeal)
)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent.
NOTICE
To:
Dorothy Gunn, Clerk
Amy L.
Jackson
Illinois Pollution Control Board
Rammelkamp Bradney.
P.C.
100
West Randolph Street
232 West State Street
Suite 11-500
P.O. Box
550
Chicago, Illinois
60601
Jacksonville,
Illinois 62651
Carol Sudman
Hearing
Officer
Illinois Pollution Control
Board
1021
North Grand Avenue East
P.O.
Box
19274
Springfield,
Illinois 62794-9276
PLEASE TAKE NOTICE that I have today electronically filed with the Office of
the
Clerk of the Illinois Pollution Control Board the APPEARANCES
and MOTION
IN SUPPORT
OF
PETITIONER’S REQUEST
FOR STAY of the Respondent,
Illinois Environmental Protection Agency, a copy of which is herewith served upon the
assigned Hearing Officer and the
attorney for the
Petitioner.
Respectfully submitted by,
Robb H. Layman
Assistant Counsel
Dated: November 16, 2005
Illinois
Environmental Protection Agency
1021
North Grand Avenue East
P.O. Box 19276
Springfield,
Illinois 62794-9276
(217)524-9137
ELECTRONIC
FILING,
RECEIVED, CLERKS
OFFICE,
NOVEMBER
16,
2005
BEFORE
TILE ILLINOIS POLLUTION
(:0NTROL
BOARD
OF THE
STATE
OF
ILLINOIS
SOYLAND POWER
COOPERATIVE,
INC.
)
)
Petitioner,
PCB No. 2006-05 5
v.
)
(CAAPP Pennit Appeal)
)
ILLINOI.S ENVIRONMENTAL
PROTECTION AGENCY,
)
)
Respondent.
APPEARANCE
NOW COMES Robh H.
Layman and enters his appearance on behalf of the
Respondent, ILLINOIS ENV!RONMENTAL PROTECTION AGENCY, as one of its
attorneys in the above-captioned matter.
Respectfully submitted by,
r72?ox
4
c
Robb H. Layman
Assistant Counsel
Dated:
November 16,
2005
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O.
Box
19276
Springfield, Illinois
62794-9276
(217) 524-9137
ELECTRONIC
FILING,
RECEIVED,
CLERK’S OFFICE,
NOVEMBER
16, 2005
BEFORE
TILE
ILLINOIS
POLLUTION CONTROL BOARD
OF THE
STATE OF ILLINOIS
SOYLAND
POWER
COOPERATIVE, INC..
)
Petitioner,
PCB No.
2006-055
v.
)
(CAAPP
Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY.
)
Respondent.
APPEARANCE
NOW COMES Sally Carter and enters her appearance on behalf of the
Respondent, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, as one of its
attorneys
in the above-captioned matter.
Respectfully submitted by,
AaqS
Sally ~ter
Assistant Counsel
Dated: November 16, 2005
Illinois Environmental
Protection Agency
1021
North Grand Avenue East
P.O. Box
19276
Springfield, Illinois
62794-9276
(217)
782-5544
ELECTRONIC
FILING,
RECEIVED, CLERKS
OFFICE,
NOVEMBER
16, 2005
BEFORE’!’ LIE
ILLINOIS POLLUTION
CONTROL BOARD
OF ‘I’IIE STATE
OF’ ILLiNOIS
SOYLAND POWER
COOPERATIVE.
INC.
Petitioner,
PCB No.
2006-055
v.
)
(CAAPP Permit Appeal)
)
ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION IN
SUPPORT OF
PETITIONER’S REQUEST FOR STAY
NOW COMES the Respondent,
ILLINOTS ENVIRONMENTAL PROTECTION
AGENCY (“Illinois EPA”), by and through its attorneys,
and moves in support of
Petitioner’s,
SOYLAND POWER COOPERATIVE,
INC.’s (hereinafter “Soyland” or
“Petitioner”) request for a stay of the effectiveness of the contested conditions of Clean
Air Act Permit Program (“CAAPP”) permit issued in the above-captioned matter.
INTRODUCTION
Acting in accordance with its authority under the CAAPP provisions of the
Illinois Environmental Protection Act (hereinafter “Act”),
415 JLCS5/39.5(2004),
the
Illinois EPA issued a CAAPP permit to Soyland on September 29, 2005.
The permit
authorized the operation of an electrical power generation facility located at Highway
100, Pearl, Pike County, Illinois.
On November 2, 2005,
attorneys for the Petitioner filed this appeal (hereinafter
“Petition”) with the Board challenging certain permit conditions contained within the
ELECTRONIC
FILING,
RECEIVED, CLERK’S OFFICE,
NOVEMBER
16, 2005
CAAPP
permit
issued
by
the
Illinois EPA.
Formal notice of the appeal
~
served upon
the
Illinois EPA on November
2,
2005.
As
part
of its
Petition, Soyland seeks a stay of the effectiveness of the conditions
appealed
in the CAAPP permit.
See,
Petition
at paragraph
14.
In
accordance with the
Board’s procedural
requirements, the Illinois EPA may file a response to any motion
within
14 days after service of the motion.
See,
35
111. ~1dm.(‘ode 101.500(d).
STATEMENT IN SUPPORT
Section
105.304(b) of Title
35 of the Board’s procedural
regulations provides that
a petition for review of a CAAPP permit may include
a request for stay.
The Board has
frequently granted stays in permit proceedings, often citing to the various factors
considered by Illinois courts at common law.
The factors that are usually examined by
the Board include the existence of a clearly ascertainable right that warrants protection,
irreparable injury in
the absence of a stay, the lack of an adequatd
Legal remedy and a
probability of success on the merits of the controversy.
See,
Bridgestone/Firestone Off-
road Tire
Company v. Illinois EPA,
PCB 02-3
1 at page 3 (November
1,2001);
Community Landfill Company and City ofMorris v. Illinois EPA,
PCB No.
01-48 and 01-
49 (consolidated) at page
5
(October
19, 2000), citing
Junkunc v.
S.f. Advanced
Technology
& Manufacturing,
498 N.E.2d
1179 (Vt Dist.
1986).
However,
the Board has
noted that its consideration is not confined exclusively to those factors or must each one
of those factors be considered by the Board in every case.
See,
Bridgestone/Firestone
at
page
3.
The Board has commonly evaluated stayrequests with an eye towards the nature
of the injury that might
befall an
applicant from having to comply with permit conditions,
2
ELECTRONIC
FILING,
RECEIVED, CLERKS
OFFICE,
NOVEMBER
16, 2005
such
as
the compelled
expenditure of “signi leant
resources,”
A1’iiec Corpoiation
v.
Illinois EPA,
PCB No.
03-95
at
page
1
(February 20,
2003),
or the effectual loss
of
appeal rights prior to a final
legal determination.
Bridgestone/Firestone
at page 3.
The
Board has also
afforded special attention to the ‘likelihood
of environmental harm” for
any stay that may be granted.
See,
Bridgestone/Firestone
at page 3;
Abitec Corporation
at
1;
Comn,unitv Landfill Company and City ofMorris v. Illinois EPA,
at page 4.
Petitioner’s Motion touches,
albeit sketchily, on some of the relevant factors in
this analysis.
See, Petition
at paragraph 14.
The Illinois EPA generally accepts that a
petitioner should not be required to expend exorbitant costs in complying with challenged
permit conditions until after
it is provided
its proverbial
‘day in court.’
Similarly, the
Illinois EPA accepts that a petitioner’s right of appeal should not be cut short
or rendered
moot because it
was unable to obtain a legal ruling before being required to comply with
those terms of the permit that are deemed objectionable.
Because the Petitioner seeks a
limited
stay of the CAAPP permit, which is confined only to those permit conditions
contested in this appeal, the Illinois EPA is agreeable to Petitioner’s requested stay relief
CONCLUSION
For the reasons explained above, the Illinois EPA supports the Petitioner’s request
for a stay of the effectiveness of the contested conditions of the
CAAPP
permit.
Respeetthlly submitted by,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
R~bbH. Layman
(I
Assistant Counsel
3
ELECTRONIC
FILING,
RECEIVED, CLERK’S
OFFICE,
NOVEMBER
16,
2005
Dated: Novcmber
16,
2005
Illinois
Environmental Protection Agency
I
021
North Grand Avenue East
P.O.
Box
19276
Springfield, Illinois
62794-9276
(217)
524-9137
4
ELECTRONIC
FILING,
RECEIVED, CLERK’S OFFICE,
NOVEMBER
16,
2005
CE
TI LICATE OF SERVICE
I hereby certify that on the
16th day ofNovember 2005,
1
did send, by electronic
email with prior approval, the
following instruments entitled APPEARANCES and
MOTION IN SUPPORT OF PETITIONER’S REQUEST FOR STAY
to:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
100 West Randolph
Street
Suite
11-500
Chicago, Tllinois
60601
and a true and correct copy of the same foregoing instrument, by First Class Mail with
postage thereon hilly paid and deposited into the possession of the United States Postal
Service, to:
Carol Webb
Amy Jackson
Hearing Officer
Rammelkamp Bradney, P.C.
Illinois Pollution Control Board
232 West State Street
1021 North Grand Avcnue
East
P.O.
Box
550
P.O.
Box
19274
Jacksonville, IL 62651
Springfield, Illinois 62794
Robb H. Layman
Assistant Counsel