ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

SOUTHERN ILLINOIS POWER

)

COOPERATIVE

)

)

Petitioner,

)

)

PCB No. 2006-061

)

(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

Stephen1. Bonebrake

Suite 11-500

Joshua ft.. More

Chicago, illinois 60601

Kavita

M. Patel

SchiffHaxtlin, LLP

Bradley P. Halloran

6600 Sears Tower

Hearing Officer

233 South Wacker Drive

James it. Thompson Center,

Chicago, illinois 60606

Suite 11-500

100 West Randolph Street

Chicago, illinois 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, flhinois Environmental Protection Agency, a copy of which is herewith

served upon the assigned Hearing Officer and the attorneys for the Petitioner.

Respectfully submitted by,

Z2Ió

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

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ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005

BEFORE TIlE ILLINOIS POLLUTION CONTROL

BOARD

OF TIlE STAtE OF ILLINOiS

SOUTHERN ILLINOIS POWER

)

COOPERATIVE

)

)

Petitioner,

)

)

PCB No. 2006-061

v.

)

(CAAPP Pennit Appeal)

)

ILLINOIS ENvIRoNMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

)

APPEARANCE

NOW COMES Robb H. Layman and enters his appearance on behalfofthe

Respondent, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, as one ofits

attorneys in the above-captioned matter.

Respectfully submitted 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

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ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005

BEFORE THE ILLINOIS POLLUTION CONTROL

BOARD

OF

TIlE

STATE OF ILLINOIS

SOUTHERN

ILLINOIS POWER

)

COOPERATIVE

)

)

Petitioner,

)

)

PCB No. 2006-061

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 of its

attorneys in the above-captioned matter.

Respectfully submitted by,

Sally C&ter

Assistant Counsel

Dated: November 18,2005

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O.

Box 19276

Springfield, Illinois 62794-9276

(217)

78255M

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ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, NOVEMBER 18, 2005

BEFORE THE

ILLINOIS POLLUTION

CONTROL

BOARD

OF

TIlE

STATE OF ILLINOIS

SOUTHERN ILLINOIS POWER

)

COOPERATIVE

)

)

Petitioner,

)

PCB

No. 2006-061

v.

)

(CAAPP Permit Appeal)

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

).-

Respondent.

)

MOTION IN OPPOSITION TO

PETITIONER’S REQUEST FOR STAY

NQW 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, SOUTHERN ILLINOIS POWER

COOPERATIVE, (hereinafter “Southern illinois Power” or “Petitioner”), request fora

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 of the

Illinois Environmental Protection Act (hereinafter“Act”),

415 ILCS 5/39.5(2004),

the

Illinois EPA issued a CAAPP pennit to Southern Illinois Power on September 29, 2005.

The permit authorized the operation of an electrical power generation facility kn wn as

the Marion Generating Station. The facility is located at 10825 Lake ofEgypt Road in

Marion, Illinois.

I

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ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE? NOVEMBER 18, 2005

On November

2,

2005,

attorneys for the Petitioner tiled 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 of the appeal on the same date. Fonnal notice ofthe appeal was served upon the

Illinois EPA on November 4, 2005.

As part ofits Petition, Southern illinois Power seeks a stay ofthe effectiveness of

the 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 ofthe

Illinois Administrative Procedure Act (“MA’),

5 JLCS 100/ 0-65(b)(2004).

As an

alternative basis for a blanket stay ofthe 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 illinois EPA may file

a response to any motion within 14 days after service ofthe motion.

See, 35 BL 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 detail below,

Petitionercannot avail itselfofthe 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 CAAPP permit under its

discretionary stay authority. Given the absence of an alternative request by Petitioner

seeking either a stay ofcontested CAAPP permit conditions or any other relief deemed

just and appropriate, the Board should decline to gram any stay relief whatsoever.

2

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ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005

1.

The CAAPP permit issued by the Illinois EPA should

not be

stayed in

its entirety by reason of

the

APA’s

automatic

stay provision.

The first argument raised

by

Petitioner maintains that the CAAPP permit in this

proceeding is subject to the automatic stay provision ofthe APA.

See, Petition at pages

4-5.

The automatic stay provision under the APA governs administrative proceedings

involving licensing, including a “new license with reference to any activity of a

continuing nature.”

See, 5 ILCS 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)(deflning “license” as the “whole or part ofany agencypermit... required by

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 ofthe 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 (3” Dist. 1981). The stay

provision would also apparently ensure that the Petitioner continues to abideby the terms

of “the

existing license which shall continue in ãzII force and effect.”

See, 5 ILCS

100/1-65(’b,)(2004).

In

this case, that “existing license” is the underlying State operating

3

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ELECTRONIC FILING, RECEIVED, CLERKS 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 ILCS 5/39.5(4)

(Li)

(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 probablywarrants, in the appropriate case,

application ofthe doctrine of

stare decisis

by illinois courts. Moreover, the illinois EPA

observes that 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 fully cognizant ofthe

“administrative continuum” that exists with respect to the Board 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 NIE2d 293, 294

(3M

Dist. 1985),

affinned, 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 (3”’ Dist. 1997). Thus, it is the

Board’s decision in reviewing whether a CA.APP 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 of the CAAPP

permit application was also authorized in a State construction permit.

4

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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 becausethe MA

simplydoes not apply to these CAAPP 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 exampleof this 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 of the AM.

See, 415 ?LCS

5/31.I(e)(2004).

Inthe case ofthe Act’s CA.APP provisions, a similar basis for

exemption is provided by the permit severability requirements that govern the Illinois

EPA’s issuance ofCAAPP permits.

Section

39.5(7)

ofthe Illinois CAAPP sets fbrth requirements governing the

permit content for every CAAPP permit issued by the illinois EPA.

See generally, 415

ILCS 5139.5(7)(2004).

Section 39.5(7)(i) ofthe Act

provides that:

“Each CAAPP permit issued under subsection 10 of this Section shall include a

severability clause to ensure the continued validity of the various permit

requirements in the event of a challenge to any portions ofthe permit.”

415

J’LCS 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 dearly 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 of a CAAPP permit must continue to survive

notwithstanding a challengeto the permit’s other terms. This language signifies an

S

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ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005

unambiguous

intent to exempt some segment of

the

CAAPP peimit from any kind of

protective

stay

during the permit appeal process. For this reason, the automatic stay

provision ofthe APA 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 suggeststhat the APA’s automatic stay provision appliesby

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 agencythat previously possessed “existing procedures on July 1, 1977” for

contested case or licensing matters.

See, S 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 after its 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 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 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

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ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005

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 Ill contained a plethora of contested case

requirements, including provisions for the filing ofa 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 of evidence (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 the basic framework for the 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 ofthe

adversarial process governingthese 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 grandiathering 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 theirpoint oforigin that is relevant to this

analysis,Petitionernot

may

thecounteradventthatofthethe

Borg-Warner

permittingdecisionprogramis

at

itself.

odds

2

withthisargumentandthatpart ofthe

appellate court’s ruling held that the APA’s grandfathering clause

did

not apply to the Board’s rules for the

NPDES permit program.

The court’s discussion on the issue of the

grandlathering clause is inapposite here.

The NPDES rules at issue were written in a way that conditioned their effectiveness upon a future event.

7

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ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, NOVEMBER 18, 2005

11.

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 of the CA.APP permit. Specifically,

Petitioner suggests that the Board stay the entire CAAPP permit as part of its

discretionary stay authority.

See, Petition at pages 5-7.

While the reasons put forward

by Petitioner might have sufficed to justify a stay of the 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 hascome to regard blanket stays of CAAPP

permits as incongruous with the aims of the illinois CAAPP and needlessly over-

protective in light of attributes common to these appeals.

Section 105.304(b) ofTitle 35 ofthe Board’s procedural regulations provides that

a petition for review of a CAMP permit may include a request for stay. The Board has

frequently granted stays in pennit proceedings, often citing to the various factors

considered by illinois courts at common law. The factors that are usually examined by

the Board include the existence of a clearly ascertainable right that warrants protection,

irreparable injury in the absence of a stay, the lack of an adequate legal remedy and a

When the event actually took place, the effectiveness of the rules occurredafter 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

appeais to have erroneously placed too much

emphasis

on the substantive

permitting procedures

ofthe

NPDES program, rather than

those procedures applicableto 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 JLCS 100/I-5(a) (2004).

S

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ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 16, 2005

probabilIty ofsuccess on the merits of the controversy.

See, Bridgestone/Firestone Off-

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 pageS (October 19, 2000),

citing Junknnc v. S.J. Advanced

Technology & Manufacturing,

498 N.E.2d 1179

(1g

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 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 harm” for

any stay that may be granted.

See, Bridgestone/Firestone

at page 3;

Abitec Corporation

at I;

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 5-7.

The Illinois EPA generally accepts that

Petitioner should not be required to expend exorbitantcosts 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 of appeal likewise should not

be cut short or rendered moot because it was unable to obtain a legal ruling beforebeing

9

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ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005

required to comply with

those

terms of the permit that are deemed objectionable. The

Illinois EPA recognizes these reasonsas 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 fair reading 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 of the 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 ofa stay for those conditions will prevent the Petitioner from exercising a right

of appeal. Similarly, it is difficult to discern why Petitioner’s compliance with

uncontested permit conditions would cause irreparable harm, especially if one can

assume, as here, that the crux ofCAAPP 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”) Title V program, which formed the

framework for the Illinois CAAPP, requires only a marshalling of pre-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 Companyv. Illinois EPA.

208 P.3d 1015, 1026-1027 (D.C.

Circuit,

2000);

Ohio Pub/k interest Research Group

it.

ltlümtan,

386 F.3d 792, 794 (6”~Cit. 2004);

In re: Peabody

Western Coal Company,

CAA Appeal No. 04-Cl, sup op.

at 6 (EAR, February 18, 2005). Aside from the

conditions lawfully

imposed

by the

Illinois EPA for 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

CAMP

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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ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005

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 at page 6.

The Illinois EPA takes exception to a key assumption in

the Petitioner’s argument. In the Illinois EPA’s view, the vestiges ofany former State

operating penilits forthis CAAPP source dissipated upon the illinois EPA’s issuance of

the CAAPP permit

on

September 29,

2005.

This area ofdiscussion maybe a significant

source ofPetitioner’s misunderstanding, thus explaining its conThsion 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 JLCS 5/39.5(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, 415 ILCS 5/39. 5(’4)(’g)(2004).

Taken together, these provisions indicate that permit issuanceand permit effectiveness

for a 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 ofauthority

for its proposition

that the

State operating

permit

continues in effect until

the

CAAPP

permit is issued.

See,

Pet/don

at page

5.

This

assertion

is

erroneous.

Section 9.1(0 applies only to New Source Review

permits

issued

under

the

authority

of the CAA,

not

CAMP 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

confmed entirely to specified

CAA

programs.

Alternatively, to the

extent

that the Act’s

CAAPP

requirements

are

more

specific to

CAA.PP

pemiits, the provision

found at

Section 39.5(4)(b) would apply

Stead of

the more general provision under Section

9.1(f).

II

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ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, NOVEMBER 18, 2005

have

the CAAPP 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 ofthe Act that clearly depict the Illinois EPA as the

permit-issuer. No clearer evidence of this intent can be found than the numerous

provisions of Section

39.5(9)

of the Act, which govern the United States Environmental

Protection Agency’s (hereinafter “USEPA”) participation and, role in reviewing the

CAMP

permits.

See, 4)5 ILCS 5/39.5(9)(2004)

.~

Other provisions ofthe Act similarly

establish that permit issuance denotes the action ofthe Illinois EPA, not the Board, in the

contextAsof CAAPP

previously

permitting.

mentioned,

6

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 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. 4/5 ILCS 5/39.5(9)(b,)(noting

requirementthat the Illinois EPA shall not “issue” the proposed

permit

if

USEPA provides

a written objection within the

45

day review period); 4)5

!LCS

s/39.s(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”);

4/5 IL.CS

5/39.5(’P)(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 ILCS

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.

4/5 !LCS 5/39.5(/Q1(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, 4/5 1L~5/40.2(a)(’2004).

The latter provisions

even go so hr

as to

reference “final permit action” in relation to

the

Illinois EPA’s permit decision,

Jd.

12

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ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE, NOVEMBER 16, 2005

determiningwhether a permit issued by the Illinois EPA becomes final, should not color

the meaning of other legal terms.7 The issuance or effectiveness of a CAAPP permit is

functionally distinct from the legalisms associated with when a CAMP permit becomes

final.

Even puffing

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 of the CAA Amendments of 1990, states issued permits under a patchwork of

various programs. In Illinois and elsewhere, numerous permits for separate ordiscrete

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 (“SIP”)) 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 absence ofa 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 actually prolong

one ofthe very problems that the Title V permitting scheme was meant to remedy.

As a

practical matter,

Petitioner’s requested reliefbelies

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.

Novella, The New Clean AirAct Operating Permit Program: EPA’s Final Ru/es,

23

Environmental Law Reporter 10080, 10081-10082 (Febnia,y 1993).

~ /d.

13

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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 for the CA.APP permit is another reason for staying the entire

permit.

Petition at page

6 Because Petitioner treats this issue sep~ratelyin its Petition,

the illinois EPA will not fully address the merits ofthe argument in this Motion,

However, the Illinois EPA will briefly respond to the issue asit 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 ofthe permit

decision in the draft phase ofpermitting.

See, 415 JLCS 5/39,5(8) (b)(2004).

It is not a

part of, nor does it otherwise affect, the content ofthe CAAPP permit and it does 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 the entire CA.APP permit defective.

In this instance, the Petitioneridentified 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 the mechanism for

challenging it rims to the underlying permit condition, not the statement itself The

Petitioner should not be heard to complain of the inadequacies ofthe statementwhen 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 affectingthe validity ofthe final CAAPP permit nor as a reason

for voiding the Illinois EPA’s final permit decision. Ifsuch challenges were recognized

14

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ELECTRONIC RUNG, RECEIVED, CLERKS OFFICE, NOVEMBER 18, 2005

by the Board, they

could serve

as a pretext for preventing the final

issuance

of a CAAPP

permit and result in perpetual litigation over a largely ministerial agencyfunction.

The Illinois EPA is ultimately preparedto argue that the statement ofbasis that

was prepared in conjunction with the CA,APP permit was sufficiently adequate as to

comply with the Act. Alternatively, the fllinois EPA is prepared to contend that the

statement ofbasis requirement is predominantly procedural in nature, is confined to the

preliminarystages of the 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 forstay on any grounds relating to this issue. On the whole, the

Petitioner’s charge that th~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 of the

entire

Curiously,

CAAPP

all exceptingpermit,

usuallyone

ofdoingthe priorso

withoutcases

involvingmuch

substantiveblanket

staysdiscussion)were brought0

by

petitioning parties represented by the same law firm. hi other CAAPP appeal cases, the

Board granted stays for the contested permit conditions, again mirroring the relief sought

‘°

See, Lane Star industries, inc.. v. flhinotc EPA,

PCB No. 03-94, slip opinion at

2,

(January 9, 2003);

Nielsen

v. Bainbridge, L.L.C., v.

Illinois

EPA,

ICE No. 03-98, slip opinion at 1-2 (February 6, 2003);

Saint-Gobain Containers, Inc., v. Illinois EPA,

PCB No. 0447, slip opinionat 1-2 (Novcmbe 6,

2003);Charnpion Laboratories, Inc., v. Illinois EPA,

PCB No. 04-65, slip opinion at 1 (January 8, 2004);;

Midwest Generalion, L.L.C, v. Illinois EPA,

PCB No. 04-108, slip opinion at I (January 22, 2004);

Ethyl

Petroleum Additives, Inc., u.

IllMo&

EPA,

slip opinion at 1 (February 5, 2004);

Board of Trustees of

Eastern Illinois University

v.

illinois

EPA,

PCB

No.

04-110, slip opinion at I (February 5, 2004).

15

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ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005

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.’2In

the majority ofthe afore-referenced cases, the Illinois EPA did not actively

participate in the stay motions sought before the Board due to the perennially-oceun-ing

press ofother matters.13 In doing so, the illinois EPA clearly waived any rights to voice

objections to the stays sought and obtained in those eases. Even in the absence ofa lack

of resources, 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

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 ofthis discovery, the Illinois

EPA is now compelled to observe that the Board’s earlier decisions affording blanket

stays to CAAPP permits arguably fell short of exploring all of the relevant considerations

“

See, Bridgestone/Firestone Off-road Tire Company v. illinois

EPA,

PCB 02-31 at page 3

(November -1,

2001);

PPG

Industries,

Inc., v. Illinois EPA,

PCE

No. 03-82, slip opinion at 1-2 (February6, 2003XAbitec

Corporation v, Illinois

EPA,

PCB No. 03-95, slip opinion at 1-2

(February

20, 2003);

Noveon, Inc., v.

illinois EPA, ICE

No. 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).

11

See,

XCTC Limited Partnership, v. illinois EPA,

ICE

No.

01-46,

consolidated

with Georgia-Pat91c

Tissue, L.L C.,

v.

Illinois EPA,

PCB

No. 01-51;

General

Electric Company

i’.

illinois EPA,

PCB No. 04-

115

(January 22, 2004).

IS

The Illinois EPA did file

a

joint motion

in support cia

stay request seeking

protection for contested

conditions

of a

CAAPP permit.

See, Abitec

Corporation

v.

illinois

EPA,

PCB No. 03-95, sup opinion at I

-

2 (February 20, 2003).

“

Jim Ross, a former Unit Manager for the CAAPP Unit ofthe Division of Air Pollution Control’s

Permits Section, received an inquiry from a USEPA/Region V representative in March of 2004 pertaining

to the broad nature of the stays obtained in CAAPP permit appeal proceedings before the Board. This

initial inquiry led to further discussion between USEPAIRegion V representatives and the IllinoitEPA

regarding the impact of such stays on the severability requirements for CAM’? permits set forth

in

40

C.F.R.

Part 70

and

the Illinois CAAPP.

(See, Supporting Affidavit ofJim

Ross attached to this Motion).

16

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ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005

necessary to the

analysis.

Accordingly, the Illinois EPA urges the Board to reflect upon

additionaliv. factors

Statutorythat

have

objectives

not previouslyof’

CAAPP

been addressedand

commonto

date.’attributes5

ofpermit

appeals

As discussed earlier in this Motion,

the illinois CAAPP

commands the Illinois

EPA to incorporate conditions into a CAAPP permit that address requirements

concerning the “severability” of permit conditions.

See, 415 JLCS 5/39.5 (7)(i)(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 other permit conditions in

the permit. The severability provision is prominentlydisplayed in the Standard Permit

Conditions of the Petitioner’s CAAPP permit.

See, Standard Pennit Condition 9.13.

It

should also be noted that the language from the Act’s CAMP program minors the

provision promulgated by USEPA in its regulations implementing Title V of the 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

CAAPP

provision is to “ensure the continued validity” of the ostensibly larger body of

pennitting requirementsthat 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 saint sentence to “any portions” ofthe permit

that are contested. Because the commonly understood meaning of the adjective

‘various” is “of diverse kinds” or “unlike; different,” this wordingdemonstrates a

legislative intent to contrast one discernable group of permit conditions (i.e., uncontested

IS

It is noted that the Board’s prior rulings regarding blanket stays ofCAAPP permits

have been

granted

contingent upon

the

Board’s final action in the appeal or “until the Board orders otherwise.”

17

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ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005

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

of the

term as “differing one from another;

of

several kinds”). Given the clear absence of ambiguity with this statutory text, no other

reasonable meaning can

be

attributed to its language.

The Illinois EPA readily concedes that the pennit content requirements ofthe

CAA and

the illinois CAMP

are

not directly binding on the Board. However, while the

Illinois EPA’s mandate under Section

39.5(7)(i) of theAct’s CAAPP

program does not,

on its face, affect the Board, the provision could arguablybe read as a limited restriction

on

the Board’s discretionary stay authority in CAMP 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

could be thwarted, reviewing courts must construe a statute in a

manner

that

effectuates

its object and purpose.

See, F.D.LC. v. Mhiser, 799

F.Supp.

904

(C.D. ill.

1992);

Castaneda v. illinois Human Rights Commission, 547

N.E.2d 437 (111.

1989). In

this instance, the Board should recognize an inherent limitation

of

its

stay

authority by

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

CAAPP permit appeals.

~ Any

such restriction

may not

be

absolute,

as

the Act’s permit content requirement does not

necessarily

rule

out the

potential merits of

a 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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ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005

It is noteworthy that one ofthe chiefgoals of the CARs Title V program is to

promote public participation, including the

use

ofcitizen suits to facilitate compliance

through enforcement.” The severabilityrequirement of the Part 70 regulations, which

formed the regulatory basis for Section

39.5(7)(i)

ofthe Illinois

CAAPP,

can be seen as

an extension of this endeavor. Blanket stays of

CA.APP

permits could arguably lessen

the

opportunities forcitizen enforcement in an area that is teeming with broad public

interest. Moreover, the cumulative effect of stays sought by Petitioner and other coal-

fired CAAPP permittees in other appeals would cast a wide net. Blanket stays ofthese

recently-issued CAAPP permits would effectively shield an entire segment ofIllinois’

utilities sector from potential enforcementbased 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 of permit appeals in general. From past experience, the Illinois EPA has observed

that many permit appeals are ofa type that could more aptly be described as “protective

appeals.” These types ofappeals are frequently filed because a particularpermit

condition affects an issue relating to on-going or future enforcement proceedings.

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 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 (Febnwy

1993).

19

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ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005

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 ability to resolve them independent oftheirrelated

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 ofa CA.APP 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 appearto desire their “day in court” strikes the Illinois EPA as needlessly

over-protective.

CONCLUSION

For the reasons explained above, the Illinois EPA moves the Board to deny the

Petitioner’s request for a stay ofthe effectiveness of the CAMP permit in its entirety.

Respectfully submitted by,

ILLINOIS

ENVIRONMENTAL

PROTECTION AGENCY,

Robb H. Layman

w4—

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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ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005

STATE OF ILLINOIS

COUNTY OF SANGAMON

AFFIDAVIT

I, Jim Ross) being first duly sworn, depose and state that the following statements

set forth in this instrument are true and correct, except as to matters therein stated to on

information and belief and, as to such matters, the undersigned certifies that he believes

the same to be true:

1.

I awcurrently employed by the Illinois Environmental Protection Agency

(“Illinois EPA”) as aSenior Publiá SeMb~.Administratorprofessional engineer. During

the early part of 2004, I was the Manager ofthe Clean Air Act Permit Program

(“CAAPP”) Unit in the Division ofAir Pollution Control’s 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 ofmy job responsibilities, I participated in frequent teleconference

calls with representatives from the United States Environmental Protection Agency

(“USEPA”) at~RegionV in Chicago, Illinois, involving various j,ending CAAPP permit

applications and issues pertaining to the administration ofthe CAMP 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 before 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 th~.

severability requirements 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

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ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18,2005

this matter and, fmuther, find that the facts set forth in said responses and answers are true,

responsive and complete to the best ofmy knowledge and belief.

Furth

t sayeth not.

O~.

Subscribed and Sworn

To Before Me this .L(Day ofNovember 2005

oeka-xT

r’;~~°’~

BRENDA BOEWNER

t

:

4

PCTPRYPUeUC.$TATEOVIUJNOIS

2

ttzy~SaJlSSJONEXP~ESJ~j~4

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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 REQUEST

FOR

STAY

witS

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 ofthe same foregoing instrument, by First Class Mail with

postage thereon fhlly 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