ELECTRONIC FILING,
RECEIVED,
CLERKS OFFICE,
NOVEMBER
18, 2005
ELECTRONIC FILING,
RECEIVED,
CLERKS OFFICE,
NOVEMBER
18,
2005
BEFORE THE JLLINOIS POLLUTION
CONTROL BOARD
OF TIlE STATE OFILLINOIS
MIDWEST
GENERATION,
LLC,
)
WILL
COUNTY
GENERATING STATION)
)
Petitioner,
)
)
PCB No. 2006-060
v.
)
(CAMP Pennit Appeal)
)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE
To:
Dorothy Gunu, 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
SchiffHardin,
LLP
Bradley P.
llalloran
6600
Sears
Tower
Hearing Officer
233
South Wacker Drive
James
R. Thompson Center,
Chicago, Illinois 60606
Suite
11-500
100
West Randolph Street
Chicago, flhinois
60601
PLEASE
TAKE
NOTICE that I
have today electronically
filed with the Office of
the Clerk 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 copy
ofwhich is
herewith
served upon the assigned Hearing Officer and the attorneys for thePetitioner.
Respectfullysubmitted by,
Robb H. Layman
Assistant Counsel
Dated:
November 18, 2005
Illinois
Environmental Protection
Agency
1021
Nonh
Grand
Avenue
East
P.O. Box
19276
Springfield, Illinois 62794-9276
(217) 524-9137
ELECTRONIC FILING,
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18,
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ELECTRONIC FILING,
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CLERK’S OFFICE,
NOVEMBER
18,
2005
BEFORE THE ILLINOIS POLLUTION
CONTROL BOAR)
OF THE STATE OF ILLINOIS
MIDWEST GENERATION, LLC,
)
WILL COUNTY GENERATING STATION)
)
Petitioner,
)
)
PCB No. 2006-060
V.
)
(CAMP Permit Appeal)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
APPEARANCE
NOW COMES Robb H. Layman and enters his appearance on behalf ofthe
Respondent, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, as one of its
attorneys in the above-captioned matter.
Respectfblly submitted by,
e~?7_~c
w
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,
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18, 2005
ELECTRONIC FILING,
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CLERK’S OFFICE, NOVEMBER
18, 2005
BEFORE TIlE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
MIDWEST GENERATION, LLC,
)
WILL COUNTY GENERATING STATION)
)
Petitioner,
)
)
PCB No. 2006-060
)
(CAM’? 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 of its
attorneys in the above-captioned matter.
Respectfully submitted by,
4abr&du
Sally CArter
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
ELECTRONIC FILING,
RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
MIDWESTGENERATION, LLC,
)
CRAWFORD GENERATING STATION
)
)
Petitioner,
)
)
PCB No.
2006-060
v.
)
(CAAPP Permit Appeal)
)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION
IN OPPOSITION TO
PETITIONER’S REOUEST FOR STAY
NOW COMES the Respondent,
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY (“Illinois EPA”), by and through its attorneys, and moves the illinois Pollution
Control Board
(“Board”) to deny the Petitioner’s, MIDWEST 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 CAMP provisions ofthe
Illinois Environmental Protection Act (hereinafter “Act”),
415 JLCS 5/39.5(2004),
the
Illinois EPA issued
a CAAPP permit to Midwest Generation
on September 29,
2005.
The permit authorized the operation ofan electrical power generation
facility known as
the Will
County Generating Station.
The facility is located at 529 East
135th
Road in
Romeoville, Chicago, Illinois.
1
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On
November
2,
2005, attorneys for
the
Petitioner 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 ofthe effectiveness ofthe
entire CAMP permit, citing two principal grounds forits requested relief.
First,
Petitioner alleges that the CAAPP permit is subject to the automatic stay provision of the
illinois Administrative Procedure Act (“APA”),
5 ILCS 200/10-65(b)(2004).
As an
alternative basis for a blanket stayofthe CAAPP permit, Petitioner alleges facts intended
to support the Board’s use ofits discretionary stay authority.
In accordance with the Board’s procedural requirements, the fllinois EPA may file
a response to
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 of the entire CAMP permit.
For reasons that are explained in detail below,
Petitioner cannot avail itself Ofthe protections afforded by the APA’s automatic stay
provision as a matter of law.
Further, Petitioner has failed to demonstrate sufficient
justification for the Board to grant a blanket stay ofthe CAMP permit under its
discretionary stay authority.
Given the absence ofan alternative request by Petitioner
seeking either a stay ofcontested CAAPP permit conditions or any otherrelief deemed
just and appropriate, the Board
should decline to grant any stay relief whatsoever.
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I.
The
CAAPP
permit
issued by
the
Illinois EPA
should not
be stayed in
its entirety
by reason of the MA’s automatic stay provision.
The first argument raised by Petitioner maintains that the CAMP permit in this
proceeding is subject to the automatic stay provision ofthe MA.
See, Petition atpages
5-6.
The automatic stay provision under the MA governs administrative proceedings
involving licensing, including a “new license with reference to any activity ofa
continuing nature.”
See,
5 J’LCS 100/10-65(b).
The CAMP 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 permit is
synonymous with a license that is of a continuing nature.
See also,
5 ILCS 100/1-35
(2004)(defining
“license” as the “whole or partof any agencypermit...
required by
law”).
hi its argument, Petitioner postulates that the MA automatically stays the
effectiveness of the CAAPP permit until after the Board has rendered a fmal adjudication
on the merits of this appeal.
Citing to a Third District Appellate Court ruling from over
two decades ago, Petitioner reasons that the MA’s stay provision continues to apply
throughout theduration of the pending appeal because it is the Board, not the Illinois
EPA, that makes the “final agency decision” on the permit.
See, Borg-Warner
Corporation
v. Mauzy,
427 N.E.2d 415,56111. Dec.
335
(3Td
Dist.
1981).
The stay
provision would also apparently ensure that the Petitioner continues to abide by the terms
of“the existing license (which
shall continue in full force and effect.”
See,
5 ILCS
100/1 -65(b)(2004).
In this case, that “existing license” is the underlying State operating
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permits1
that have been separately governing the facility’s operations since the Illinois
EPA’s original receiptof the 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 of a renewal fora 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 decisionmaking
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
decisionmay still reflect good law and that it probably warrants, in the appropriate case,
application of the doctrine of
stare decisis
by Illinois courts.
Moreover, the illinois EPA
observes that the ruling is apparently.in perfect harmonywith other subsequent decisions
by illinois courts
that addressed therespective roles oftheIllinois EPA and the Board in
permitting matters under the Act.
In this regard, theillinois
EPA is fully cognizant of the
“administrative continuum” that exists with respectto the Board in most permitting
matters, and theCAAPP 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 NB2d 343,
345 (flI. 1986);
ESG Watts, Inc.,
v.
Illinois Pollution Control Board,
676 N.E.2d 299,
304
(318
Dist.
1997).
Thus, it is the
Board’s decision in reviewing whether a CAMP 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
permit
application was also
authorized ina State
constniction
permit.
-
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-
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
simply does not apply to these CAMP permit appeal proceedings.
For one reason,
the
APA’s various 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 contested case provisions oftheAPA.
See,
415 JLCS
5/31.1(e)(2004).
In the case ofthe Act’s CAAPP provisions,
a similar basis for
exemption is provided by thepermit severabilityrequirements that govern theillinois
EPA’s issuance ofCAMP permits.
Section 39.5(7) of the Illinois CAMP sets forth requirements governing the
permit content for every CA.APP permit issued
by the Illinois EPA.
See generally, 415
ILCS 5/39.5(7)(2004).
~Section39.5(7)(i) ofthe Act provides that:
“Each CAMP permit issued under subsection
10 ofthis Section shall include a
severability clause to ensure the continued validity ofthe various permit
requirements in the event of a challenge to any portions ofthepermit.”
415 ILCS 5/39.5(7)(i)(2004).
This provision represents something more than the trivial
or inconsequential dictates to an agency in its administration ofa permit program.
Rather, it clearly contemplates a legal effect upon a permitting action that extends beyond
the scope ofthe permit’s terms.
In other words, 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 ofa CAAPP permit must continue to survive
notwithstanding a challenge to the permit’s other terms.
This language signifies an
5
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unambiguous intent to exempt some segment of the CAMP permit from any kind of
protective stay during the permit appeal process.
For this reason, the automatic stay
provision ofthe AM cannot be 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 ofthe
licensing that is being obtained through the CAMP permitting process.
However, the APA contains a grandfathcring clause that specifically exempts an
administrative agency that previously possessed “existing procedures on July
1,
1977” tbr
contested case or licensing matters.
See,
5 ILCS 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 have been in place with the Board since shortly afterits fonnal
creation.
Because the pennitting scheme established by the Act contemplated appeals to
the Board, procedural rules were created in those early years to
guid6 the Board in its
deliberations.
Similar to the current Board procedures for
permitting disputes, 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 of their 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 th~y
required such proceedings
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to be conducted according to the Board’s Part III rules pertaining to enforcement.
See,
Rule 502.
In contrast to the Regulatory and Nonadjudicative Hearings and Proceedings,
the Enforcement Proceedings ofPart
111 contained a plethora ofcontested case
requirements, including provisions
forthe 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 framework forthe current-day versiOn ofthe Board’s
procedural regulations promulgated at 35 Ill. Adm. Code
101-130.
Although the Board’s
procedural rules may have evolved and expanded over time, the core features of the
adversarial process governing these cases have remained substantially the same,
including those rules governing CAMP 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 CAMP programwas enacted some twenty years later.
After all,
it is the
procedures applicable to contested cases and their point oforigin that
is relevant to this
analysis, not the advent ofthe permitting program itself.2
2
Petitioner may counter that the
Borg-Warner
decision is
at odds with
this
argument and
that part of the
appellate
court’s ruling held that the APA’s
grandfatheringclause did not apply to the Board’s rules for the
NPDES permit program. 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.
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II.
The
CAAPP permit issued by the Illinois EPA should not be stayed in
its entirety by reason ofPetitioner’s alleged justifications.
Separate and apart
from
its APA-related argument, Petitioner offers the Board an
alternative basis for granting a blanket stay ofthe CAAPP permit.
Specifically,
Petitioner suggeststhat the Board stay the entire CAAPP permit as part ofits
discretionary stay authority.
See, Petition at pages 6-8.
While the reasons put forward
by Petitioner might have sufficed to justi& a stay ofthe CAMP permit’s contested
conditions had one been sought, Petitioner fails to demonstrate a clear and convincing
need for a broader stay.
Even if the Petitionercould muster more persuasivearguments
on this issue, the illinois EPA questions whether suchan all-encompassing remedy is
appropriate under any circumstances.
Notwithstanding the Board’s recent practice in
other CAMP appeals, the illinois EPAhas come to regard blanket stays of CAMP
permits
as incongruous with the aims ofthe illinois CAMP and needlessly over-
protective in light of attributes common to these appeals.
Section 105.304(b) ofTitle 35 of the Board’sprocedural regulations provides that
a petition for review ofa CAMP permit may include
a request forstay.
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 addressing an issue that was not central to
the appeal, the appellate court appears to have erroneously placed too much emphasis on the
substantive
permittingproceduresof 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 100/I-5(a)(2004).
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probability ofsuccess on themerits of the controversy.
See, BridgestonelFirestone
QQ
road Tire Company v. illinois EPA,
PCB 02-31
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. 5.1 Advanced
Technology & Manufacturing, 498
N.E.2d 1179(1” Dist.
1986).
However, the Board has
noted that its consideration is not confined exclusively to those factors nor 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 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 expenditureof“significant resources,”
Abitec Corporation
v.
illinois EPA,
PCB No. 03-95 atpage
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 ofenvironmental
hami” for
any stay that may be 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 of traditional 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-keeping requirements ofthe CAMP permit until after it
is provided its proverbial “day in court.”
Petitioner’s right ofappeal likewise should not
be cut short or rendered moot because it
was
unable to obtain a legal ruling before being
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required to comply with those terms ofthepermit that are deemed objectionable.
The
Illinois EPA recognizes thesereasons as a legitilnate 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 of the entire CAMP permit is needed.
Judging by a fair reading ofthe Petition, Petitioner has challenged a relatively
small number of the conditions contained in the overall CAAPP permit, thus leaving the
lion’s share ofthe permit conditions unaffected by the appeal.
Much of the gist of
Petitioner’s appeal pertains to “periodic monitoring,” including
a number ofprovisions
dealing with
emissions testing, reporting, record-keeping and monitoring ofemissions
that are purportedlybeyond the scope ofthe 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
ofappeal.
Similarly, it is difficult to discern why Petitioner’s compliance with
uncontested permit conditions would cause irreparable hann, especially if one
can
assume, as here, that the cmx 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”) Tide Vprogram,
which formed the
framework for the Illinois CAAPP, requires onlya marshalling of pre-existing “applicable requirements”
into a single operating permit for a major source and that
it does not generally authorize new substar,tic
requirements.
See, Appalachian Power
Company
v. 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
Cir. 2004);
In
re: Peabody
Western Coal Company,
CAA Appeal No. 04-0 I, slip op.
at 6 (EAB, February 18,
2005).
Aside from the
conditions lawfully
imposed by the Illinois EPA for periodic monitoring and other miscellaneous matters,
the remainderof the CAAPP pennit should be comprised ofthe 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.
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ii.
Other related factors
Petitioner
argues
that the absence ofa blanket stay would cause “administrative
confusion” becausethe uncontested conditions of the CAAPP permit would remain in
effect while the challenged conditions would be governed by the “old state operating
permits.”
Petition at page
7.
The Illinois EPA takes exception to a key assumption in
the Petitioner’s
argument.
In the Illinois EPA’s view, the vestiges of
any
former State
operating permits for this CAMP
source dissipated upon the illinois EPA’s issuance of
the CAAPP permit on September 29, 2005.
This area ofdiscussion may be a significant
source
ofPetitioner’s
misunderstanding,
thus explaining its confusion with the effects of
a limited stay.
Section 39.5(4)(b) states that a CAAPP
source
must abide by the terms of its
previous State operating permit, even though
the
permit may have expired,
“until
the
source’s CAAPP permit
has
been issued”
See,
415 ILCS 5/39.5(4)(b)(2004).4
A few
subsections later, the statute provides that
theCAAPP permit “shall upon becoming
effective supercede the State operating permit.”
See,
415 JLCS 5/39.5(4)(g)(2004).
Taken together, these
provisions
indicate that permit issuance and permit effectiveness
fora CAAPP 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(f)
of
the Act
as
a source of
authority
for
its pSposition 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(f) applies only toNew Source Review permits issued
under
the
authority of the CAA, not CAAPP pennits 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
confined
entirely
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 91(1).
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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
at
page
6.
However, this
argument ignores
other provisions of the Act that
clearly depict the Illinois EPA as the
permit-issuer.
No clearer evidence ofthis intent
can
be found than the numerous
provisions of Section 39.5(9) of the Act, which govern theUnited
States Environmental
Protection Agency’s (hereinafter “IJSEPA”) participation
and
role in reviewing the
CAAPP permits.
See,
415
ILCSS/39.5(9X2004).5
Other provisions of the Act similarly
establish that permit
issuance denotes the action ofthe Illinois
EPA,
not the Hoard, in the
context ofCAMP 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 of a
CAAPP 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 5139.5(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 ILCS
5/39.5(9)OXexplaining
that
when the Illinois EPA is in receipt of a USEPA objection
arising from a
petition, the “Agency shall not issue the permit”);
4/5 IICS
SfSQ.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 “effectivenessof a permit
or
its requirements”
is not stayed by virtue of
the filing of a petition
with USEPA.
See,
415
!LCS 5/39.5(9)0.
The
requirements in Section 39.5(H)), entitled “Final Agency Action,” recognize the
standards
for
permit
issuance by the illinois EPA.
415 ILCS 5/39.5(10)(2004).
Similarly,
the
review provisions for Title
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,
415
JLCS 5/40,2(a) (2004).
The
latter provisions even go so
far
as to
reference
“final
permit action”
in relation to the Illinois
EPA’s
permit
decision.
Id,
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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.
Even putting aside the legal semantics posed by this issue,
the thrust of
Petitioner’s
argument
misses its mark.
My confusion stemming from the appeal phase
ofthe Title V program should be fairly modest compared
to the past.
Prior
t
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 for an
individual
source ofmajor emissions
and
they frequently did not address the applicability ofall other CAA or state (i.e.,
State
Implementation Program
(“SW”)) requirements.8
The Title V operating permit program
ensured that
all of a 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 absenceof a uniform federal
permitting
system.9
By trying to breath life
into the State operating
permits beyond the
date ofthe Illinois EPA’s permit issuance, Petitioner’s argument would actuallyprolong
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
facility’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.
See,
David P. Novello,
The New
Clean
Air Act
Operating Permit
Program: EPA’s
Final
Rules,
23
Environmental Law Reporter 10080,
10081.10082
(February
1993).
ii
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Petitioner also mentions
in passing that the Illinois EPA’s failure to provide a
sufficient
statement
ofbasis for the CAMP 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 respondto
the issue as it relates to thePetitioner’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 ofthe permit
decision in the
draft
phase.of permitting.
See,
415 ILCS 5/39.5(8)(b)(2004).
It is not a
part
of, nor does it otherwise
affect,
the content of the CAAPP permit
and
it does not bind
or impose legal consequences in the same
manner
that a permit itself does. The Illinois
EPA generally does not believe that
any
perceived inadequacies in the statement ofbasis
can
lawfully render the entire
CAAPP
permit defective.
In this
instance,
thePetitioner identified
its
grievances with respect to the
CAAPP
permit’s conditions notwithstanding the alleged flaws in the underlying
statement
of
basis.
To theextent that something contained in a statement ofbasis is found
objectionable, or is left out altogether, the Illinois EPA suggests that the mechanism for
challenging it runs to the underlyingpermit condition, not the statement itself.
The
Petitioner should not be heard to complain ofthe inadequacies ofthe statementwhen the
basis that gives rise to the appeal stems from a permit’s conditions, not the deliberative
thought-processes of the pennitting agency.
As such, the Illinois EPA doesnot construe
a statement ofbasis as affecting the validity ofthe final
CAAPP
permit nor as a reason
for voiding the Illinois EPA’s
final
permit decision.
If such challenges were recognized
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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
preliminarystages 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 ofsuccess on the merits ofthe
controversy.
iii.
Significance of prior 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 of theprior cases involving blanket
stays were brought
by
petitioning parties represented by the same law firm.
In otherCAMP
appeal cases, the
Board granted stays fbr
thecontested permit conditions,
again mirroring
the reliefsought
‘°
See,
Lone Star
Industries, Inc.,
v. Illinois EPA,
PCB
No.
03-94, slip opinion
at 2, (January 9, 2003);
Nielsen
v. Bainbridge, L.L.C,
v. Illinois EPA,
PCBNo. 03-98, slip
opinion
at
1-2
(Febniary
6,
2003);
Saint-Gobain
Containers,
Inc.,
v. Illinois EPA,
PCB
No.
04-47,
slip opinion at 1-2
(Novernbe
6,
2003);Champion Laboratories,
Inc.,
v. Illinois EPA,
PCB
No. 04-65, slip
opinion
at
1
(January 8,
2004);;
Midwest Generation,
L.L.C..
v,
illinois EPA,
PCB No.
04-lOS,
slip opinion at I
(January
22, 2004);
Ethyl
Petroleum
Additives,
Inc.,
v.
Illinois
EPA.
slip opinion at t (February 5,
2004);
Board
of
Trustees
of
Eastern Illinois
University v.
Illinois
EPA,
PCBNo. 04-110, sup opinion at
1
(February 5,
2004).
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by
the
petitioning
party.’
In a few cases,
the
Board
does not appear to have granted any
stay
protection whatsoever, as
the
petitioning party
apparently opted not
to
pursue
such
relief.’2
In the majorityofthe afore-referencet
cases, the IllinoisEPAdid not actively
participate in the stay motions sought before the Board due to the perennially-occurring
press ofother
matters.’3
In doing so, the Illinois EPA clearly waived
any rights to voice
objections to the stays sought
and
obtained in those cases.
Even in the absence of a lack
ofresources, it is doubtful that the Illinois 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 occasion to act on a blanket stay request in a CAMP
permit
appeal, Illinois EPA officials became aware ofthe potential implications posed by stays
on the existing Title V
program approval.’4 In the wakeof
this discovery, the Illinois
EPA is now compelled to observe
that the Board’s earlier decisions affording blanket
stays to CAMP permits
arguably fell short of exploring
all
ofthe relevant considerations
See, Bridgestone/Piresione
Off-road Tire Company v. Ill/nots EPA,
PCB 02-31 at page 3 (November
1,
2001);
PPG Industries,
Inc.,
v. Illinois EPA,
PCB
No.
03-82, slip opinion at
1-2
(February 6,
2003);
Abilec
Corporation
v. illinois EPA,
PCB
No. 03-95,
slip opinion at
1-2
(February 20, 2003);
No won,
Inc.,
v.
illinois
EPA,
PCBNo. 04-102,slip opinion at 1-2
(January 22, 2004);
Oasis Industries,
Inc.,
v. Illinois
EPA,
PCB No. 04-116, slip opinion at 1-2 (May 6,
2004).
12
See, XCTCLimited Partnership,
v.
illinois EPA,
PCBNo. 01-46,
consolidated
with Georgia-PacWc
Tissue,
L.L C.,
v.
Illinois
EPA,
PCB No. Oi-51;
General Electric Company v. Illinois EPA,
PCB
No.
04-
115
(January 22,2004).
‘~
The Illinois EPA did file a
joint motion in support of a stay request seeking protection for contested
conditions
ofa
CAAPP permit.
See, Abitec Corporation
it.
Illinois EPA,
PCB No. 03-95, slip opinion at
I-
2
(February 20, 2003).
‘~
Jim
Ross,
a
former Unit Manager for the CAAPP Unitof the Division ofAir Pollution Control’s
Permits Section, received an inquiry from a USEPA/Region V representative in March
of
2004
pertaining
to the broad nature ofthe stays obtained in CAAPP
permit
appeal proceedingsbefore
the Board.
This
initial inquiry led to fluiber discussion between USEPAJRegion V representatives and the Illinois EPA
regarding the
impact ofsuch 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
to this Motion).
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necessary
to the analysis.
Accordingly, the Illinois EPA
urges theBoard to reflectupon
additional factors
that have not previously been addressed to
date.’5
iv.
Statutory objectives ofCAAPP and common attributes ofpermit
appeals
As discussed earlier in this Motion, theIllinois CAAPP commands the Illinois
EPA to incorporate conditions into a CAAPP permit that
address requirements
concerning the “severability” ofpermit conditions.
See,
415 ILCS 5/39.5(7) (i)(200g,).
To
this end, every CAAPP
permit
is required to contain a permit condition severing those
conditions challenged in
a subsequent pennit 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 alsobe noted that the language from the Act’s
CAAPP program mirrors
the
provisionpromulgated byUSEPA 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”of the
ostensibly larger body of
permitting requirements that are
not being challenged on appeal.
The use ofthe 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
permit
that are contested.
Because the commonly understood meaningofthe
adjective
“various”
is
“of
diverse kinds” or “unlike; different,”
this
wording demonstrates
a
legislative intent to
contrast
one discernable
group
of
permit
conditions (i.e., uncontested
~
It
is noted that the Board’s prior rulings
regarding blanket stays
of
CAAPP permits havebeen granted
contingent
upon the Board’s final action in the appeal
or
“until the
Board orders otherwise.”
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conditions)
from the other another (i.e., contested conditions).
See,
The American
Heritage Dictionary, SecondCollege 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 absenceofambiguity with
this statutory
text, no other
reasonable meaning
can
be attributed to its language.
The Illinois EPA readily concedes that the permit content requirements ofthe
CAA and the Illinois CAMP
are
not directlybinding 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 provisioncould arguably be read as a
limited restriction
on the
Board’s
discretionary stay authority in CAAPP appeals.16
Implicit in the
statutory
language is an unmistakable expression aimed at preserving the validity
and
effectiveness
of some segment of the CAAPP permit
during the appeal process.
This
legislative goal
cannot
be achieved if
blanket stays are the convention. Where the
obvious
intention of
lawmakers
could be thwarted, reviewing
courts
must construe a statute in
a
manner that
effectijajes its object and purpose.
See,
F.D.L C
v.
Nihiser,
799 RSupp. 904 (C.D.
Ill.
1992);
Castaneda
v.
Illinois
Human Rights Commission,
547
N.E.2d437 (Ill.
1989).
In
this instance, the Board should
recognize an inherent
limitation of its stay authorityby
virtue
ofthe
Illinois CAAPP’s severability provision.
At the
very least, the existence of
the provision should give pause to the Board’s recent approach in evaluating stays in
CA-APP
permit
appeals.
“
Any such resthclion
may
not be
absolute,
as
the
Act’s
permit content requirement does not necessarily
nile
out
the potential merits
of
a blanket stay where a
permit
is challenged in
its
entirety.
As
previously
mentioned, the
Illinois EPA disputesthe
merits
ofPetitioners argument
relating
to
a
purponed
deficiency
in the CAAPP permit’s statement of
basis.
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It
is noteworthy that one of the chiefgoals ofthe CAA’s Title V
program
is to
promote public participation, including the use ofcitizen suits to
facilitate compliance
through
~ The severabilityrequirement ofthe Part 70 regulations, which
formed the regulatory basis for Section 39.5(7)(i) of the Illinois CAAPP,
can
be
seen as
an
extension ofthis endeavor.
Blanket stays ofCAMP
permits could arguably lessen
the opportunities for citizen enforcement in an
area
that
is teeming with broad public
interest.
Moreover, the cumulative effect of stays sought by Petitioner
and
othercoal-
fired
CAAPP
permittees
in other appeals would cast a wide net.
Blanket stays of these
recently-issued CAMP
permits
would effectively shield an entire segment ofillinois’
utilities sector
from
potential enforcement based on Title V 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 ofa typethat could more aptly be described as “protective
appeals.” These types of appeals
are
frequently filed because a particular permit
condition affects an issue relating to
on-going or
future
enforcement proceedings.
Alternatively, these
cases
may entail
some otherkind 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 CAMP permit appeals
filed with the Board to date could be
aptly described as “protective appeals,”
While
a
‘~
See,
David P. Novello,
The New
Clean Air Act Operating Permit Program: EPA
‘s Final
Rules,
23
Environmental
Law Reporter 10080,
10081-10082
(Febnaazy
1993).
19
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handful ofcases have beenvoluntarily 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 ability to resolve them independent oftheir
related
enforcementor
permitting
developments.
As the Illinois EPA is often an obligatory
participant in manyofthese types of cases,
this argument
is notmeant to
condemn
the
practice. Rather, the
relevant point is that significant portions ofa CAAPP permit
stayed
in its
entirety will be delayed
from
taking effect, in spite ofbearingno relationship to the
appeal or its ultimate outcome. To
allow this under circumstances where petitioning
parties seldom appear to desire their “day in court” strikes the Illinois EPA as
needlessly
over-protective.
CONCLUSION
For the reasons explained above, the Illinois EPAmoves the Board to deny the
Petitioner’s request for a stay ofthe effectiveness of the CAAPP permit in its entirety.
Respectfullysubmitted by,
ILLINOIS
ENVIRONMENTAL
PROTECTIONAGENCY,
Robb H.
Layrnaiy/
Assistant Counset
Dated: November 18, 2005
Illinois Environmental Protection Agency
1021 North
Grand
Avenue East
P.O. Box
19276
Springfield, Illinois 62794-9276
(217) 524-9137
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STATE OF
ILLINOIS
COUNTYOFSANGAMON
AFFIDAVIT
I, Jim
Ross,
being first duly sworn, depose
and state that
the following statements
set forth in this instrwnent are true and correct, except as to matters therein statedto on
information and belief and, as to such matters, the undersigned certifies that he believes
the same to be true:
I.
I an currently employed by the illinois Environmental Protection Agency
(“Illinois EPA”) as a Senior Public ServiëeAdministrator professional engineer.
During
the earlypart of2004, I was the Manager ofthe Clean Air Act Permit Program
(“CAAPP”) Unit in the Division ofAir Pollution Controls Permit Section, whose offices
are located at
1021 North Grand Avenue East,
Springfield, illinois.
I have been
employed with the illinois EPA since May 1988.
2.
As part of myjob responsibilities, I participated in frequent teleconference
calls s~’ithrepresentatives from the United States Environmental Protection Agency
(“USEPA”) at~RegionV in Chicago, Illinois, involving various bending 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 USEPA/Region V and the illinois EPA in March of2004
concerning an issue relating to stays obtained in CAAPP permit appeals befOie the
Illinois Pollution Control Board.
The issue was initially raised by a representative from
USEPA/Region V, who expressed concern about the impact ofsuchstays upon thà..
-
severability requirements of40 C.F.R. Part 70 and the illinois CAAPP.
3.
I have readthe Motion prepared by the illinois EPA’s attorneys relating to
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this matterand, further,
fmd that
the facts set forth
in
said responses and
answers are true,
responsive
and
complete to the bestofmyknowledge
and belief.
Subscribed
and Sworn
To BeforeMe
this J~Day ofNovember 2005
4
OFFICIAL
SEAL
t
BRENDA BOEKNER
t
p~rw
ptac,
STATE
oc iwicist
sayet~3~~
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CERTIFICATE OF SERVICE
-
I hereby
certify that on the 18th
day ofNovember 2005,
I did
send,by electronic
mail with prior approval, the following instrwnents entitled APPEARANCES,
MOTION IN OPPOSITION TO PETITIONER’S REQUEST FOR STAY and
AFFIDAVIT to:
-
Dorothy Gunn, 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 the possession 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 Wacker Drive
Chicago, illinois 6060
Robb H. Layman
Assistant Counsel