ELECTRONIC FILING,
RECEIVED,
CLERK’S OFFICE,
NOVEMBER
18, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
MIDWEST GENERATION, LLC,
)
CRAWFORD GENERATING STATION
)
)
Petitioner,
)
)
PCB No, 2006-056
v.
)
(CAAPP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE
To:
Dorothy Gunn, Clerk
Sheldon A. Zabel
illinois Pollution Control Board
Kathleen
C. Bassi
100
West Randolph Street
Stephen J. Bonebrake
Suite
11-500
Joshua R. More
Chicago, illinois
60601
Kavita M. Patel
SchifiHardin, LLP
Bradley P.
Halloran
6600 Sears Tower
Hearing Officer
233
South Wacker Drive
James R. Thompson Center,
Chicago, illinois 60606
Suite
11-500
100 West Randolph Street
Chicago, illinois
60601
PLEASE TAKE NOTICE that Ihave today electronically filed with the Office of
theClerk ofthe Illinois Pollution Control Board the APPEARANCES,
MOTION
IN
OPPOSITION TO PETITIONER’S REQUEST FOR STAY and AFFIDAVIT ofthe
Respondent, illinois Environmental Protection Agency,
a copyofwhich is herewith
served upon the assigned Hearing Officer and the attorneys for the Petitioner.
Róspectfully submitted by,
72iw
Robb H. Layman
Assistant Counsel
Dated: November 18, 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 18,
2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
MIDWEST GENERATION, LLC,
)
CRAWFORD GENERATING STATION
)
Petitioner,
)
)
PCB No. 2006-056
V.
)
(CAAPP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTIONAGENCY,
)
)
Respondent.
)
APPEARANCE
NOW
COMES Robb H. Layman and enters his appearance on behalfofthe
Respondent, ILLINOIS
ENVIRONMENTALPROTECTION AGENCY, as one ofits
attorneys in the above-captioned matter.
Respectfullysubmitted by,
Robb H. Layman
Assistant Counsel
Dated: November 18, 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 18, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
MIDWEST GENERATION, LLC,
)
CRAWFORD GENERATING STATION
)
)
Petitioner,
)
)
PCB No. 2006-056
V.
)
(CAAPP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
APPEARANCE
NOW COMES Sally Carter and enters her appearance on behalfofthe
Respondent, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, as one ofits
attorneys in the above-captioned matter.
Respectfully submitted by,
Sally ~rter
Assistant Counsel
Dated: November 18, 2005
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O. Box 19276
Springfield, illinois 62794-9276
(217)782-5544
ELECTRONIC FILING,
RECEIVED, CLERK’S OFFICE,
NOVEMBER 18, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
MIDWEST GENERATION, LLC,
)
CRAWFORD GENERATING STATION
)
)
Petitioner,
)
)
PCB No.
2006-056
v.
)
(CAAPP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION IN OPPOSITION TO
PETITIONER’S REQUEST FOR STAY
NOW COMES theRespondent, ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY (“Illinois EPA”), by and through its attorneys, and moves the Illinois Pollution
Control
Board (“Board”) to deny the Petitioner’s, MH)WEST GENERATION, LLC,
(hereinafter “Midwest Generation” or “Petitioner”), request for a stay ofthe effectiveness
ofthe Clean Air Act Permit Program (“CAAPP”) permit issued in the above-captioned
matter.
INTRODUCTION
Acting in accordance with its authority under the CAAPP provisions ofthe
Illinois Environmental Protection Act (hereinafter“Act”),
415 ILCS 5/39.5(2004).
the
Illinois EPA issued
a CAAPP permit to Midwest Generation
on September 29,
2005.
The permit authorized the operation of an electrical powergeneration facility known as
the Crawford Generating Station.
The facility is located at 3501
South Pulaski Road in
Chicago, Illinois.
I
ELECTRONIC
FILING,
RECEIVED, CLERKS OFFICE,
NOVEMBER 18, 2005
On November
2,
2005, attorneys for thePetitioner filed this
appeal (hereinafter
‘Petition”) with the Board challenging certain permit conditions contained within the
CAAPP permit issued by the Illinois EPA.
The Illinois EPA received an electronic
version ofthe appeal on the same date.
Formal notice ofthe appeal was
served upon the
illinois EPA on November 4,
2005.
As part ofits Petition, Midwest Generation seeks a stay of the effectiveness ofthe
entire CAAPP permit, citing
two principal grounds for its requested relief.
First,
Petitioner alleges that the CAAPP permit is subject to the automatic stay provision of the
illinois Administrative Procedure Act (“APR’),
5 JLCS 100/10-65(b)
(2004).
As an
alternative basis for a blanket stay ofthe CAAPP permit, Petitioner alleges facts intended
to
support the Board’s use of its discretionary stay authority.
In accordance with the Board’s procedural requirements, the illinois EPA may file
a responseto any motion within 14 days after service ofthe motion.
See,
35 IlL Adm.
Code 101.500(d).
ARGUMENT
The illinois EPA urges the Board to deny Petitioner’s request for a stay ofthe
effectiveness ofthe entire CAAPP permit.
For reasons that are explained in detailbelow,
Petitioner cannot avail itself ofthe protections affordedby the APA’s automatic stay
provision as a matter of law.
Further, Petitioner has failed to demonstrate sufficient
justification forthe Board to grant a blanket stay ofthe CAAPP permit under its
discretionary stay authority.
Given the absence of an alternative requestby Petitioner
seeking either
a stay ofcontested CAAPP permit conditions or any other relief deemed
just and appropriate, the Board should decline to grant any stay relief whatsoever.
2
ELECTRONIC FILING,
RECEIVED, CLERKS
OFFICE,
NOVEMBER
18, 2005
I.
The CAAPP permit
issued
by
the
Illinois EPA should
not
be
stayed in
its
entirety by reason ofthe APA’s automatic stay provision.
The first argument raised by Petitioner maintains that the CAAPP pennit in
this
proceeding is subject to the automatic stay provision ofthe APA.
See,
Petition at pages
5-6,
The automatic
stay provision under the APA governs administrative proceedings
involving
licensing, including
a “new license with reference to any activity ofa
continuing nature.”
See,
5 ILCS
100/10-65(b).
The CAAPP permit at issue in this
proceeding governs emissions-related activities at an existing, major stationary source in
illinois.
Accordingly, the illinois EPA does not dispute that the CAAPP pennit is
synonymous with a license that is ofa continuing nature.
See also,
5 ILCS 100/1-35
(2004)(defining “license” as the “whole or part of any agency permit...
requiredby
law”).
In its argument, Petitioner postulates that the APA automatically stays the
effectiveness ofthe CAAPP permit until after the Board has rendered a final adjudication
on the merits ofthis appeal.
Citing to a Third District Appellate Court ruling from over
two decades ago, Petitioner reasons that the APA’s stay provision continues to
apply
throughout the duration of the pending appeal because it is the Board, not the illinois
EPA, that makes the “final agency decision” on thepermit.
See,
Borg-Warner
Corporation
v. Mauzy.
427 N.E.2d 415,56111. Dec.
335
(3S
Dist.
1981).
The stay
provision would also apparently ensure that thePetitioner continues to abide by the terms
of“the existing
license which
shall continue in lull force and effect.”
See,
5 ILCS
100/1-65(b)(2004).
In this case, that “existing license’ is the underlying State operating
3
ELECTRONIC FILING,
RECEIVED, CLERK’S OFFICE, NOVEMBER
18, 2005
permits’ that have been separately governing the facility’s operations since the Illinois
EPA’s original receipt ofthe permit application.
See,
415 JLCS 5/39.5(4)(b)(2004).
The
Borg-Warner
decision upheld the APA’s automatic stay provision in the
context ofa renewal for a National Pollutant Discharge Elimination System (“NPDES”)
permit
sought before the Illinois EPA.
Notably, the court observed:
“A final decision, in the sense of a final and binding decision coming out ofthe
administrative process before the administrative agencies with decision making
power, will not be forthcoming in the instant case until the PCB rules on the
permit application.”
Borg-Warner.
56
Ill. Dec. at 341.
The illinois EPA concedes that the
Borg-Warner
decision may still reflect
good law and that it probably warrants, in the appropriate case,
application ofthe doctrine of
stare decisis
by illinois courta
Moreover, the Illinois EPA
observesthat the ruling is apparently in perfect harmony with other subsequent decisions
by Illinois courts that addressed the respective roles ofthe Illinois EPA and the Board in
permitting matters under the Act.
In this regard, the Illinois EPA is filly cognizant ofthe
“administrative continuum” that exists with respect to theBoard in most permitting
matters, and the CAAPP program itself does not reveal
the General Assembly’s
intentions to change this administrative arrangement.
See, illinois EPA v. illinois
Pollution Control
Board,
486 NE2d 293,
294 (3” Dist. 1985),
affirmed, Illinois EPA v.
illinois Pollution
Control
Board,
503 NE2d 343, 345 (ill.
1986);
ESG Watts,
Inc.,
v.
Illinois Pollution Control Board,
676 N.E.2d 299,
304
(3Td
Dist.
1997).
Thus, it is the
Board’s decision in reviewingwhether a CAAPP permit should issue that ultimately
determines when the permit becomes final.
In limited situations, it is possible that a facility’s operation during the pending review ofthe CAAPP
permitapplication
was also authdrized
in a State
construction
permit.
4
ELECTRONIC FILING,
RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005
While the
Borg-Warner
opinion may offer some interesting reading, it does not
provide a proper precedent in this case.
This conclusion can be arrived because the APA
simplydoes not apply to these CAAPP permit appeal proceedings.
For one reason, the
APA’svarious provisions should not apply where the General Assembly has effectively
exempted them from a particular statutory scheme.
One example ofthis exercise of
legislative discretion is found with administrative citations, which under Section
31.1 of
the Act are not subject to the contestedcase provisions ofthe APA.
See, 415 ILCS
5/31.1(e)(2004).
In the case ofthe Act’s CAAPP provisions, a similar basis for
exemption is provided by the permit severabilityrequirements that govern the illinois
EPA’s issuance of CAAPP permits.
Section 39.5(7) ofthe Illinois CAAPP sets forth requirements governingthe
permit content for every CAAPP permit
issued by the illinois EPA.
See generally, 415
ILCS5/39.5(7)(2004).
Section 39.5(7)(i) ofthe Act provides that:
“Each CAAPP permit issued under subsection
10 ofthis Section shall include
a
severability clause to ensure the continued
validity ofthe various permit
requirements in the event ofa challenge to any portions of the permit.”
415ILCS
5/39.5(7)(i)(’2004).
This provision represents something more than the trivial
or inconsequential dictates to an agency in its administration of a permit program.
Rather, it clearly contemplates
a legal effect upon a permitting action that extends beyond
the scope ofthe permit’s terms.
In otherwords, the General Assembly was not simply
speaking to the Illinois EPA but, rather, to a larger audience.
By observing that a
component of a CAAPP permit shall retain a “continued validity,” lawmakers clearly
proscribed that the uncontested conditions of a CAAPP permit must continue to survive
notwithstanding a challenge to the permit’s other tenns.
This language signifies an
5
ELECTRONIC FILING,
RECEIVED, CLERKS OFFICE, NOVEMBER 18,
2005
unambiguous intent to exempt some segment ofthe CA.APP permit from
any kind of
protectivestay during the permit appeal process.
For this reason, the automatic stay
provision ofthe MA cannotbe said to govern CAAPP permits
issued pursuant to the
Act.
The Board should also reject the Petitioner’s
automatic stay argument on entirely
separate grounds.
Petitioner suggests that the APA’s automatic stay provision applies by
virtue of the licensing that is being obtained through the CAAPP permitting process.
However, the APA contains a grandfathering clause that specifically exempts an
administrative agency that previously possessed “existing procedures on July
1,
1977” for
contested caseor licensing matters.
See,
5 JLCS
100/1-5(a)(’2004).
Where such
provisions were in existence prior to the July
1, 1977, date, those existing provisions
continue to apply.
Id.
Procedural rules Mve been in place with the Board since shortly afterits
formal
creation.
Because the permitting scheme established by the Act contemplated appeals to
the Board, procedural rules were created in those early years to guide the Board in its
deliberations.
Similar to the current Board procedures for pennittingdisputes, the earlier
rules referenced the Board’s enforcement procedures in providing
specific requirements
for the permit appeal process.
They were then, as they are today, contested case
requirements by virtue oftheir very nature.
The earliest version ofthe Board’s procedural regulations was adopted on
October 8,
1970 in the R70-4 rulemaking and was subsequently published by the illinois
Secretary of State’s office as “Procedural Rules.”
Those rules included requirements for
permit appeals, effective through February
14,
1974, and they required such proceedings
6
ELECTRONIC FILING,
RECEIVED, CLERK’S OFFICE,
NOVEMBER
18, 2005
to be conducted according to the Board’s Part ifi
rules pertaining to enforcement.
See,
Rule 502.
In contrast to the Regulatory and Nonadjudicative Hearings and Proceedings,
the Enforcement Proceedings ofPart Ill contained a plethora ofcontested case
requirements, including provisions for the filing of a petition
(i.e., Rule 304),
authorization for hearing (i.e., Rule 306), motion practice (i.e., Rule 308), discovery (i.e.,
Rule 313), conduct ofthe
hearing (Rule 318), presentation ofevidence (i.e., Rule 321),
examination ofwitnesses (i.e., Rules 324,
325 and 327) and final disposition (i.e., Rule
322).
A later version ofthese rules, including amendments, was adopted by the Board
on August 29,
1974.
The “Procedural Rules”that originally guided the Board in enforcement cases and
permit appeals formed thebasic frameworkfor the current-day version ofthe Board’s
procedural regulations promulgated at 35 ill.
Adm. Code
10 1-130.
Although the Board’s
procedural rules may have evQlved and expanded over time, thecore features ofthe
adversarial process governing these cases have remained substantially the same,
including those rules governing CAAPP permit appeals.
Because the Board had such
procedures in place prior to July
1, 1977, those procedures effectively secured the
Board’s exemption from the APA’s contested case requirements.
And so long as those
underlying procedures historically satisfied the grandfathering clause, it should not matter
that the Act’s CAAPP program was enacted some twenty years later.
After all, it is the
procedures applicable to contested cases and their pointoforigin that
is relevant to this
analysis, not the advent ofthe permitting program itself.2
2
Petitionermay counterthat the
Borg-Warner
decision is at
odds with this argument
and
that part
ofthe
appellate
court’s ruling held that the APA’s grandfatheringclause did not apply to the Board’s rules for the
NPDES permit Fogratit.
The
court’s
discussion
on the issue of the grandfathering clause is inapposite
here.
The
NPDES rules at
issue
were written in a way that conditioned their effectiveness upon a future event.
7
ELECTRONIC FILING,
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NOVEMBER
18, 2005
H.
The CAAPP permit issued
by the Illinois EPA
should
not
be
stayed in
its entirety by reason of
Petitioner’s
alleged
justifications.
Separate and apart
from its
APA-related argument, Petitioner offers theBoard an
alternative basis for granting a blanket stay of the CAAPP permit.
Specifically,
Petitioner suggests that the Board stay the entire
CAAPP permit as part of its
discretionary stay authority.
See, Petition at
pages
6-&
While the reasons put forward
by Petitioner might have sufficed to justify a stay ofthe CAAPP permit’s contested
conditions had one been sought, Petitioner fails to demonstrate a clear and convincing
need for a broader stay.
Even if the Petitioner could muster more persuasive arguments
on this issue, the illinois EPA questions whether such an all-encompassing remedy is
appropriate under any circumstances.
Notwithstanding the Board’s recent practice in
other CAAPP appeals, the illinois EPA has come to regardblanket stays of CA.APP
permits as incongruous with the aims ofthe illinois CAAPP and needlessly over-
protective in
light of attributes common to these appeals.
Section
105.304(b) ofTitle 35 of the Board’s procedural regulations provides that
a petition for review of a CAMP permit mayinclude 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 ofa stay, the lack ofan adequate legal remedy and a
When
the event actually took place, the effectiveness of the
rules occurred after
the July 1,
1977,
date
established in the
grandfathering
clause.
More importantly,
in addressingan
issue that
was
not
central
to
the appeal, the appellate court appears to have erroneously placed too much emphasis on the substantive
permitting
procedures
of the NPDES program, rather than those procedures applicable to
the
Board’s
contested case
hearings.
A proper construction of the
APA demands
that the focus be placed on the
existing procedures “specifically for contested cases
or
licensing.” S
ILCS I
00/I-S
(a)(2004).
8
ELECTRONIC FILING,
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2005
probability ofsuccess on the merits ofthe controversy.
See, Bridgestone/FirestoneOf
roadTire Company
v.
illinois
EPA,
PCB
02-3 1
at page 3
(November
1, 2001);
Community LandfillCompanyand Cityof
Morris
v. illinoisEPA~
PCBNo.01-48 and 01-
49
(consolidated) at page
5 (October 19, 2000), citing
Junkuncv. S.f. Advanced
Technology & Manufacturing,
498 N.E.2d 1179
(1st
Dist.
1986).
However, the Board has
noted that its consideration is not confined exclusively to those factors nor must each one
ofthose factors be considered by the Board in every case.
See, Bridgestone/Firestone
at
page 3.
The Board has commonly evaluated stay requests with an eye toward
the nature
of the injury that might befall an applicant from having to comply with permit conditions,
such as the compelled expenditure of“significant resources,”
Abitec Corporation
v.
illinois EPA,
PCB No. 03-95 at page I (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 maybe
granted.
See, Bridgestone/Firestone
at page 3;
Abitec Corporation
at 1;
Community Landfill Company and
City ofMorris v. illinois EPA,
at page 4.
i.
Consideration oftraditional factors
Petitioner’s Motion touches,
albeit sketchily, on some ofthe relevant factors in
this analysis.
See, Petition at pages 6-8.
The illinois EPA generally accepts that
Petitioner should not be required to
expend exorbitant costs in complying with challenged
monitoring, reporting or record-keepingrequirements ofthe CA.APP permit until after it
is provided its proverbial “day in court.”
Petitioner’s right of appeal likewise should not
be cut short or rendered moot because it was unable to obtain a legal ruling before being
.9
ELECTRONIC
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required to comply with those terms ofthe permit that are deemed objectionable.
The
Illinois EPA recognizes these reasons as a legitimate basis for authorizing a stay of
permit conditions contested on appeal.
However, they are not at all instructive to
Petitioner’s claim that a stay ofthe entire CAAPP permit is needed.
Judging by a fairreading ofthe Petition, Petitioner has challenged a relatively
small number ofthe conditions contained in the overall CAAPP permit, thus leaving the
lion’s share ofthe permit conditions unaffected by the appeal.
Much ofthe gist of
Petitioner’s appeal pertains to “periodic monitoring,” including a number of provisions
dealing with emissions testing, reporting, record-keeping and monitoring ofemissions
that are purportedly beyond the scope of the illinois EPA’s statutory permit authority.
If
the vast majority ofthe permit’s terms are uncontested, it cannot logically follow that the
absence of a stay for those conditions will prevent the Petitioner from exercising a right
of appeal.
Similarly, it is difficult to discern whyPetitioner’s compliance with
uncontested permit conditions would cause irreparable harm, especially if one can
assume, as here, that the crux of CAAPP permitting requirements were carried over from
previously-existing
State
operating
permits.3
The Illinois EPA does
not dispute that the Clean Air Act’s (“CAA”) TitleV program, which formed-the
framework for the Illinois CAMP, requires only a marshalling ofpre-existing “applicable
requirements”
into a single operating permit
for a major source and that it does
not generally authorize new substantive
requirements.
See,
Appalachian
Power Company
t’.
Illinois
EPA,
208 F.3d
1015,
1026-1027 (D.C.
Circuit,
2000);
Ohio Public Interest Research
Group
v.
Whitman,
386 F.3d
792, 794
(6th
Cit.
2004);
In ye:
Peabody
Western Coal Company,
CAA Appeal No. 04-01, slip op. at 6 (EAt February
18, 2005).
Aside from the
conditions lawfully imposed by the Illinois
EPAfor periodic monitoring and other miscellaneous matters,
the remainder of the CAAPP permit should be comprised of the pre-existing requirements
that were
previously permitted.
A casual comparison of the CAAPP permit and the Petition suggests that the present
appeal only calls into
question a relatively small fraction of permit conditions contained in the overall
CAAPP permit.
10
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ii.
Other
related factors
Petitioner
argues
that the
absence of a
blanket stay would cause “administrative
confusion”
because
the uncontested conditions ofthe CAAPP permit would
remain
in
effect
while the
challenged conditions
would
be
governed
by the
“old
state
operating
permits.”
Petition atpage
7.
The illinois EPA takes exception to
a key assumption in
the Petitioner’s argument.
In theillinois EPA’s view, the vestiges of any former State
operating permits for this CAAPP source dissipated upon the illinois EPA’s issuance of
the CAAPP
permit
on September 29, 2005.
This area of discussion maybe a significant
source ofPetitioner’s misunderstanding, thus explainingits confusion with the effectsof
a limited stay.
Section 39.5(4)(b) states that a CAAPP source must abide by the terms ofits
previous State operating perniit, even though the permit mayhave expired, “until the
source’s CAMP permit has been issued.”
See, 415 ILCS5/39.5(4)(b)(2004).4
A
few
subsections later, the statute provides that the CAAPP permit “shall upon becoming
effective supercede the State operating permit.”
See; 415ILCS 5/39. 5(4)(g)(2004).
Taken together, these provisions indicate that permit issuance and permit
effectiveness
for a CAMP permit are synonymous and that any underlying State operating permit
becomes a nullity upon the aforementioned occurrence.
The General Assembly could not
have reasonably intended for a source’s obligation to
end upon permit issuance, only to
Petitioner also
references Section 9.1(1) ofthe Act as a source of authority for its proposition that the
State operating permit continues in effect until the CAAPP permit is issued.
See,
Petition atpage 6.
This
assertion is erroneous.
Section 9.1 (I) applies only toNew Source Review pennits issued under the
authority of the CAA, not CAAPP permits specifically governed by
Section 39.5.
Although the text of the
subsection is silent with respect to this distinction,
it should be construed with reference to its context
and
surrounding provisions,
which are confmedentirely to specified CAA
programs.
Alternatively, to the
extent that the Act’s CAAPP requirements are more
specific
to CAAPP
permits, the provision found at
Section 39.5(4)(b) would apply
instead of the more general provision under Section 9.1(1).
11
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2005
have
the
CAMP permit’s superceding effect on the State operating permit
delayed until
permit effectiveness.
Petitioner apparently reads the above-referenced provisions
as though they apply
to the Board’s final action in this appeal.
See,
Petition a/page
6.
However, this
argument ignores otherprovisions ofthe Act that clearly depict the Illinois EPA as the
permit-issuer.
No cleater evidence of this intent
can
be found than the numerous
provisions ofSection 39.5(9) of the Act, which govern the United States Environmental
Protection Agency’s (hereinafter “USEPA”) participation and role in reviewing the
CAAPP permits.
See, 415
JLCS 5/39.5 (9)(2004)
.~
Other provisions of the Act similarly
establish that permit issuance denotes the action ofthe Illinois EPA, not theBoard,
in
the
context of CAAPP permitting.6
As previously mentioned, the Illinois EPA does not deny that the CAAPP
permitting process is analogous to the type of“administrative continuum” recognized by
Illinois courts
in other permitting programs under the Act.
In this respect, the Illinois
EPA performs
a role under the Illinois CAAPP that requires, in essence, a
defacto
issuance ofa CAMP permit.
The Board’s obligation
in adjudicating whether the permit
should issue,
in contrast, is a
dejure-like
function that,
while critical in terms of
$
See,
415 !LCS
5/39.5(9)(b)(noting
requirement that the Illinois EPA shall not “issue” the
proposed
permit if USEPA provides a written objection within the 45
day review period);
415 !LCS
5/39.5(9)Q)(explaining that
when the Illinois
EPA is in receipt of a USEPA objection arising
from a
petition,
the “Agency shall not issue
the permit”);
415
JLCS
5/39.5(9)(g)(observing requirements
for
whenever a USEPA objection is received by
the
Illinois EPA following its issuance of a
permit after the
expiration of the 45-day review period and prior to receipt of an objection arising from a petition). Notably,
one such provision states
that the “effectiveness of a permit or its requirements”
is not stayed by virtue of
the
filing
of
a
petition
with USEPA.
See,
415
JLCS 5/39.5(9)(/).
6
The requirements
in Section 39.5(10),
entitled
“Final Agency Action,” recognize the
standards for
permit
issuance by the
Illinois EPA.
415 JLCS 5/39.5 (10)(2004).
Similarly, the review
provisions forTitle
V permits, codified at
Section 40.2, focus on a permit
denial or a
grant
of
a
permit
with
conditions as a
basis
for appeal to the Board.
See, 4/5 ILCS 5/40.2(a)(2004).
The latter provisions even go so fat as to
reference “final permit action” in relation to the
Illinois EPA’s permit
decision.
Id.
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18,
2005
determining whether a permit issued by the Illinois EPA
becomes
final,
should
not color
the meaning ofother legal terms.7
The issuance or effectiveness of a CAAPP permit
is
functionally distinct from the legalisms associated with when a CAAPP permit
becomes
final.
Evenputting aside the legal semantics posed by this issue, the thrust of
Petitioner’s argument misses its mark.
Any confusion stemming from the appeal phase
ofthe Title V program should be
fairly modest compared to the past.
Prior to the
enactment ofthe CAA Amendments of 1990, states issued permits under a patchwork of
various programs.
In
Illinois and elsewhere, numerous permits for separate or discrete
pollutant-emitting activities would
often exist foran individual source of major emissions
and they frequently did not address the applicability ofall other CAA or state (i.e., State
Implementation
Program
(“SIP”)) requirements.8
The Title V operating permit
program
ensured that
all ofa major source’s applicable state and CAA-related requirements would
be brought together into a single, comprehensive document.
In doing so, the legislation
sought to minimize the confusion brought about from the absence of a uniform federal
permitting
system.9
By trying to breath life into the State operating permits beyond the
dateofthe
Illinois
EPA’s permit issuance, Petitioner’s argument would actually pro1ong
one of the very problems that the Title V permitting scheme
was
meant to remedy.
As a practical
matter, Petitioner’s requested
relief belies the notion
that
former
State
operating permits
continue
to govern
the
~ciIity’s
operations
until
the
Board
issues its final ruling
in this cause.
After all, it
is the
CAAPP
permit issued by
the Illinois EPA
from which
the
Petitioner is seeking a
stay.
8
See,
David P. Novello,
The New Clean Air Act
Operating Permit
Program: EPA ‘sPinal
Rules,
23
Environmental
Law Reporter 10080,
10081-10082
(February
1993).
~
id.
13
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER
18, 2005
Petitioner also mentions
in passing that the Illinois EPA’s failure to provide a
sufficient statement ofbasis forthe CA.APP permit is another reason for staying the entire
permit.
Petition at page
7.
Because Petitioner treats this
issue separately in
its Petition,
the illinois EPA willnot fully address the merits ofthe argument in this Motion.
However, the illinois EPA will briefly respond to the issue as
it relates to the Petitioner’s
request for stay.
The statement ofbasis envisioned by the statute is an informational requirement
that
is meant to facilitate both the public and USEPA’s understanding of the permit
decision in the draftphase of permitting.
See, 415ILCS5/39.5(8)(b)(’2004).
It is not a
part of, nor does it otherwise affect, the content ofthe CAAPP permit and
itdoes not bind
or impose legal consequences in the same manner that a permit itselfdoes. The Illinois
EPA generally does not believe that
any
perceived inadequacies in the statement ofbasis
can lawfully render theentire CAAPP permit defective.
In this instance, the Petitioner identified its grievances with respect to the CAAPP
permit’s conditions notwithstanding the alleged flaws in the underlying statement of
basis.
To the extent that something
contained
in a
statement
ofbasis is found
objectionable, or is left out altogether, the Illinois EPA suggests that themechanism for
challenging it
runs
to the underlying permit condition, not the statement itself.
The
Petitioner should not be heard to complain ofthe inadequacies ofthe statement when the
basis that gives rise to the appeal stems
from a permit’s conditions,
not the deliberative
thought-processes ofthe permitting agency.
As such, the Illinois EPA does not construe
a statement ofbasis as affecting the validityof the final CAAPP permit nor as a reason
for voidingthe illinois EPA’s final permit decision. Ifsuch challenges were recognized
14
ELECTRONIC FILING,
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by the Board, they could
serve
as a pretext for preventing the final issuance ofa CAAPP
permit and result in perpetual litigation over a largely ministerial agency function.
The Illinois EPA is ultimately prepared to argue that the statement ofbasis
that
was
prepared
in conjunction with the CAAPP permit
was
sufficiently adequate as to
comply with the Act.
Alternatively, the illinois EPA is prepared to contend that the
statement ofbasis requirement is predominantlyprocedural in nature, is confined to the
preliminary stages ofthe permitting process and arguably lacks sufficiently intelligible
standards as to serve as a basis for enforcement.
In any event,the Board should deny the
Petitioner’s request for stay on any grounds relating to this issue.
On the whole, the
Petitioner’s charge that the statement ofbasis affects the entire permit is unsupported by
law and fails to demonstrate a probability of success on the
merits
of the controversy.
iii.
Significance ofprior Board rulings
The Board has granted numerous stays in past and pending CAAPP permit
proceedings.
For the most part, the extent ofthe relief
granted has
been a function ofthe
relief
sought
by the petitioning party.
In several cases, the Board
has
granted stays ofthe
entire CAAPP permit, usually doing so without much substantive discussion)°
Curiously, all excepting one ofthe prior cases involving blanket stays were
brought
by
petitioning parties represented by the same law
finn.
In other CAAPP
appeal cases, the
Board granted stays forthe contested permit conditions, again mirroringthe relief sought
‘°
See,
Lone Star Industries,
Inc., v.
Illinois EPA,
PCS
No.
03-94, slip opinion
at
2, (January 9,
2003);
Nielsen v. Bainbridge, L.L.C.,
v. Illinois
EPA,
PCB No. 03-98, slip opinion at 1-2 (Febniary 6, 2003);
Saint-Gobain Containers, Inc.,
v. Illinois EPA,
PCB No.
0447, slip
opinion at
1-2 (Novembe
6,
2003);Champion Laboratories, Inc.,
v. Illinois EPA,
PCi No. 04-65, slip opinion at
1
(January 8, 2004);;
Midwest Generation,
L.L.C., v. Illinois EPA,
PCB No. 04-108, sup opinion
at
1 (January 22, 2004);
Ethyl
Petroleum
Additives, Inc.,
v.
Illinois EPA,
sup opinion at
1
(February 5, 2004);
Board ofTrustees of
Eastern Illinois
University
v. Illinois EPA,
PCBNo.
04-110,
slip opinion at
1
(February 5, 2004).
15
ELECTRONIC FILING,
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by thepetitioning party.”
In a few cases, the Board does not appear to have granted
any
stay protection whatsoever, asthe petitioning
party
apparently opted not to pursue such
relief.’2
In the majority of the afore-referenced
cases,
the Illinois
EPA did
not actively
participate in the stay motions sought before the Board due to theperennially-occurring
press ofother matters.’3
In doing so, the flhinois EPA clearly
waived any rights
to voice
objections to the stays sought
and
obtained in those cases.
Even in the absenceofa lack
ofresources, it is
doubtfiul that the fllinois EPA would have articulated weighty concerns,
as presently argued, with respect to the stay relief requested in
earlier cases.
However,
following
the Board’s last
occasionto
acton
a blanket stay request in a CAAPP permit
appeal, Illinois EPA officials
became aware
ofthe potential implications posed by stays
on the existing Title V
program
approval.’4
In the wake of this discovery, the Illinois
EPA is now compelled to observe that the Board’s earlierdecisions affording blanket
stays to CAAPP pennits arguably fell short ofexploring
all
ofthe
relevant considerations
‘~
See, Bridgestone/Firestone Off-road
Tire
Company v.
Illinois
EPA,
PCB 02-31
at
page 3
(November 1,
2001);
PPG
Industries,
Inc.,
p.
Illinois
EPA,
PCB No. 03-82, sup opinion
at
1-2 (February
6,
2003);
Abitec
Corporation
v. Illinois EPA,
PCB No. 03-95, slip
opinion at
1-2
(February 20,
2003);
Noveon,
Inc’,~~.
Illinois EPA,
PCi
No. 04-102, slip opinion at
1-2
(January 22,
2004);
Oasis Industries,
Inc., v.
Illinois
EPA,
PCi No. 04-116, slip opinion at
1-2 (May 6, 2004).
~~ See,
XCTC Limited Partnership,
v. illinois EPA,
PCi No. 01-46,
consolidated with Georgia-Pac(Iic
Tissue,
L.L.C.,
v. Illinois EPA,
PCi No. 01-51;
General Electric Company v. Illinois EPA,
PCi No. 04-
115
(January 22,
2004).
13
The Illinois EPA did file a joint motion in support
of a
stay request seeking protection for contested
conditions of a CAMP permit.
See. Abitec Corporation v.
Illinois EPA,
PCB
No.
03-95, slip opinion at
1-
2 (February 20, 2003).
~
Jimkoss, a former Unit Manager
for the
CAAPP Unit ofthe Division ofAir Pollution Control’s
Permits Section, received
an inquiry from a USEPA/R.egion
V representative in
March of
2004
pertaining
to the broad nature ofthe
stays obtained in CAAPP
permit appeal proceedings before the Board.
This
initial
inquiry led to further discussion between
USEPAJRegion V representatives and the Illinois EPA
regarding the impact of such stays on the severability requirements for CAAPP permits set forth in 40
C.F.R.
Part 70 and the Illinois CAAPP.
(See;
Supporting Affidavit ofJim
Ross
attached so
this
Motion).
16
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necessary to the
analysis.
Accordingly,
the
Illinois EPA urges the Board to reflect upon
additional factors that have not previously been addressed to date.15
iv.
Statutory objectives of CAAPP and common
attributes of permit
appeals
As discussed earlier in this Motion, the Illinois CAAPP commands the illinois.
EPA to incorporate conditions into a CA.APP permit that address requirements
concerning the “severability” ofpermit conditions.
See, 415ILCS 5/39.5(7)(1)(2004).
To
this end,
every CAAPP permit is required to contain
a permit condition severing those
conditions challenged in a subsequent permit appeal
from
the otherpermit conditions in
the permit.
The severability provision is prominently displayed in the
Standard Permit
Conditions ofthe Petitioner’s CAAPP permit.
See,
Standard Permit Condition 9.13.
It
should also be noted that the language
from
the Act’s CAAPP
program
minors the
provision promulgated by USEPA in
its
regulations implementing Title V ofthe
CAA.
See,
40 C.F.R. §70.6(a)(5)(July
1, 2005 edition).
As
is evident
from the
statutory
language,
the obvious legislative intent for
this
CA.APP provision is to “ensure the continued validity” ofthe ostensibly larger body of
permitting requirements that are not being challenged on appeal.
The
use
of the word
“various” in describing those conditions that
are
severable is especially important when
compared with the later reference
in the same sentence to
“any
portions” ofthe pennit
that
are
contested.
Because the commonly understood meaning ofthe adjective
“various” is “ofdiverse kinds”
or “unlike; different,”
this
wording demonstrates a
legislative intent to
contrast
one discernable group ofpermit conditions (i.e., uncontested
~
It
is noted
that the Board’s prior rulings regarding blanket stays
of CAAPP permits have been granted
contingent upon
the Board’s final action in the appeal
or
“until the Board ordersotherwise.”
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conditions)
from the other another (i.e., contested conditions).
See, The
American
Heritage Dictionary, Second College Edition;see also, Webster’s
New
World
Dictionary,
Third College Edition
(describing
primary
use ofthe
term
as “differing one from another;
of several kinds”).
Given the clear absence ofambiguity with this statutory text, no other
reasonable meaning canbe
attributed to its language.
The illinois EPA readily concedes that the permit content requirements ofthe
CA). and the illinois CAAPP are not directly binding on the Board.
However, while the
Illinois EPA’s mandate under Section 39.5(7)(i) ofthe Act’s CAAPP
program
does not,
on its face, affect the Board, the provision could arguably be read as a limited restriction
on the Board’s discretionary stay authority in CAAPP appeals.’6
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.
This legislative goal
cannot be achieved if blanket stays are the convention.
Where the obvious intention of
lawmakers couldbe thwarted, reviewing courts must construe a statute in
a manner that
effectuates its object and purpose.
See, F.D.LC. v. Nihiser,
799 F.Supp.
904 (CA). Ill.
1992);
Castaneda v. illinoisHuman Rights Commission,
547 N.E.2d 437
(Ill.
1989).
In
this instance, the Board should recognize an
inherent
limitationofits stay authority by
virtue ofthe Illinois CAAPP’s severability provision.
At the very least, the existence of
the provision should givepause to the Board’s recent approach in evaluating stays in
CA.APP permit appeals.
16
Any such restriction may not be absolute,
as
the
Act’s permit content requirement does not necessarily
rule out the potential
merits ofa blanket stay where
a
permit is challenged in its
entirety. As previously
mentioned, the Illinois
EPA disputes the merits
of Petitioner’s argument relating to a purported
deficiency
in the
CAAPP permit’s statement of basis.
18
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It is noteworthy that one of the chiefgoals ofthe CAA’s Title V program is to
promote public particijrntion, including the
use
of citizen suits to facilitate compliance
through enforcement.’7
The severability requirementofthe
Part
70 regulations, which
formed the regulatory basis for Section 39.5(7)(i) ofthe Illinois
CAAPP,
can
be seen as
an extension ofthis endeavor.
Blanket stays ofCAAPP permits could arguably lessen
the opportunities for citizen enforcement in an area that
is teeming with broad public
interest.
Moreover, thecumulative
effect of stays sought by Petitioner and other coal-
fired
CAAPP
permittees in other appeals would cast a wide net.
Blanket stays of these
recently-issued CAAPP permits would effectively shield an entire segment ofillinois’
utilities sector from potential enforcement based on TitleV permitting, which was meant
to provide a more convenient, efficient mechanism for
the
public to seek CAA-related
enforcement.
One last consideration in this analysis is the deliberate, if not time-consuming,
pace ofpermit appeals in general.
From past experience, the illinois EPA has observed
that many permit appeals
are
of a type that could more aptly be described as “protective
appeals.” These types ofappeals are frequently filed because a particular permit
condition affects an issue relating to on-going or future enforcementproceedings.
Alternatively, these cases may entail
some other kind ofcontingency necessitating
additional permit review, a new permit application
and/or
obtaining a revised permit from
the Illinois EPA.
Only rarely does a permit appeal actually proceed to hearing.
Based on the Illinois EPA’s estimation, nearly all ofthe CA.APP permit appeals
filed with the Board to date could be aptly described as “protective appeals.”
While
a
17
See,
David P.
1’4ovello,
The
New
Clean
Air Ac: Operating
Penn
it Program: EPA’s
Final Rules,
23
Environmental Law Reporter 10080,
10081-10082 (February
1993).
19
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handful ofcases have been voluntarily dismissed from the Board’s docket, several of
these cases are, and will remain, pending with the Board for months and/or years to
come, in part, because there is no
abilityto resolve them independent oftheir related
enforcement or permitting developments.
As the Illinois EPA is often an obligatory
participant in many ofthese types ofcases, this argument is not meant to condemn the
practice.
Rather, the relevant point is
that
significant portions of a CAAPP permit stayed
in
its
entirety will be delayed from taking effect, in spite ofbearing no relationship to the
appeal or its ultimate outcome.
To allow this under circumstances where petitioning
parties seldom appearto desire their “day in court” strikes the Illinois EPA as needlessly
over-protective.
CONCLUSION
For thereasons explained above, the Illinois EPAmoves the Board to deny the
Petitioner’s request for a stay of theeffectiveness ofthe CAAPP permit in its entirety.
Respectfully submitted by,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Robb H.
Layman
(-
Assistant Counsel
Dated: November 18, 2005
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box
19276
Springfield, illinois 62794-9276
(217) 524-9137
20
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18, 2005
STATE
OF
ILLINOIS
COUNTY
OF
SANGAMON
•
AFFIDAVIT
I, Jim Ross, being first duly sworn, depose and state that the followini statements
set forth in this ~nstrwnentaretrue and correct, except as to matters therein stated to on
informationand belief and, as to such matters, the undersigned certifies that he believes
the same to be true:
1.
1 am.currently employed by the Illinois Environmental Protection Agency
(“illinois EPA”) as aSenior Public
Servièe
Administrator professional engineer.
During
the early
part
of2004, I
was
the Manager of the Clean
Air
Act Permit Program
(“CAAPP”) Unit in the Division ofAirPollution Control’s Permit
Section, whose offices
are
located at
1021 North GrandAvenue East, Springfield, Illinois.
I have been
employed with the illinois EPA since May 1988.
2.
As partofmy job responsibilities, I participated in frequent teleconference
calls with representatives from the United States Environmental Protection Agency
(“USEPA”) at~
Region V in Chicago, fllinois, involving various ‘pending CAAPP permit
applications and issues pertaining to the administration ofthe CAAPP program.
By
virtue
ofmy involvement in the CAAPP permit review process, I am familiar
with
communications between USEPAIRegI0n
V
and the Illinois EPA in March of2004
concerning an issue relatingto stays obtained in
CAAPP
permit appealsbefote the
Illinois Pollution Control Board.
The issue was initially raised by a representative from
USEPA/Region
V.
who expressed concern about the impact of such stays upon the
H
severabilityrequirements of40 C.F.R. Part 70 and the Illinois CAAPP.
3.
I have read the Motion prepared by the illinois EPA’s attorneys relating to
ELECTRONIC FILING,
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18, 2005
this matterand, further, find
that
the facts set forth in said responses
and
answers
are
true,
responsive and complete to the best ofmy knowledge and belief.
Subscribed and Sworn
To Before Me this ,/çDay
ofNovember 2005
±
OFFtC~AI.SEA!.
BRENDA BOENNER
t
,
NOTARYFtJ&C,STAThO?IUJNO~$
oR
ELECTRONIC
FILING,
RECEIVED, CLERK’S OFFICE,
NOVEMBER
18, 2005
CERTIFICATE OF SERVICE
I
hereby certify that on the
18th day ofNovember 2005, I did send, by electronic
mail with prior approval,
the following instruments entitled APPEARANCES,
MOTION IN OPPOSITION TO PETITIONER’S BEQUEST FOR STAY and
AFFIDAVIT
to:
DorothyGunn,
Clerk
illinois Pollution Control Board
100 West Randolph Street
•
Suite 11-500
Chicago, Illinois
60601
and a true and
correct copy of the same foregoing
instrument,
by First Class Mail with
postage thereon fully paid and deposited into thepossession ofthe United States Postal
Service, to:
Bradley P. Halloran
Sheldon A. Zabel
Hearing Officer
Kathleen C. Bassi
James R. Thompson Center
Stephen J. Bonebrake
Suite
11-500
Joshua R. More
100 West Randolph Street
Kavita M.
Patel
Chicago, illinois
60601
SchiffHardin, LLP
6600 Sears Tower
233 South Waeker Drive
Chicago, illinois 6060
RobbH.Layman
(1
Assistant Counsel