ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE, NOVEMBER 18,2005

BEFORE THE ILLINOIS POLLUTION

CONTROL BOARD

OFTHE STATE OFILLINOIS

AMEREN

ENERGY

)

GENERATING COMPANY,

)

COFFEEN POWER STATION

)

)

Petitioner,

)

)

PCB No.

2006-064

v.

)

(CAAPP Permit Appeal)

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

)

NOTICE

To:

Dorothy Gunn, Clerk

James T. Harrington

Illinois Pollution Control Board

David L. Rieser

100 West Randolph Street

McGuireWoods, LLP

Suite

11-500

77 West Wacker, Suite 4100

Chicago, illinois

60601

Chicago, illinois 60601

Bradley P. Halioran

Hearing Officer

James

R.

Thompson Center,

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 of the Illinois Pollution Control Board the APPEARANCES, MOTION IN

PARTIAL OPPOSITION TO,

AM) PARTIAL SUPPORT OF, 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 the Petitioner.

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

---

ELECTRONIC EILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER18,

2005

BEFORE

THE ILLINOIS POLLUTION CONTROL

BOARD

OF THE STATE OF ILLINOIS

AMEREN ENERGY

)

GENERATING COMPANY,

)

COFFEEN POWER STATION

)

)

Petitioner,

)

)

PCB No. 2006-064

v.

)

(CAAPP Permit 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

(7

Assistant Counsel

Dated: November 18, 2005

illinois Environmental Protection Agency

1021 North GrandAvenue East

P.O. Box

19276

Springfield, Illinois 62794-9276

(217) 524-9137

---

ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

18, 2005

BEFORE TIlE ILLINOIS POLLUTION CONTROL

BOARD

OF THE STATE OF ILLINOIS

AMEREN ENERGY

)

GENERATING COMPANY,

)

COFFEEN POWER STATION

)

)

Petitioner,

)

)

PCB No. 2006-064

)

(CAAPP

Permit Appeal)

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

)

APPEARANCE

NOW COMES SallyCarter and enters her appearance on behalf ofthe

Respondent, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, as one ofits

attorneys in the above-captioned matter.

Respectfully submitted by,

4a4~4~

Sally (~(rter

Assistant Counsel

Dated: November

18, 2005

illinois Environmental Protection Agency

1021

North Grand Avenue East

P.O.

Box

19276

Springfield, illinois 62794-9276

(217) 782-5544

---

ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

18, 2005

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

AMEREN ENERGY

)

GENERATING COMPANY,

)

COFFEEN POWER STATION

)

)

Petitioner,

)

)

PCB No. 2006-064

v.

)

(CAMP Permit Appeal)

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

)

MOTION IN PARTIAL OPPOSITIONTO,

AND PARTIAL SUPPORTOF,

PETITIONER’S REQUEST FOR STAY

NOW COMES the Respondent, ILLINOIS ENVIRONMENTALPROTECTION

AGENCY C’ilhinois EPA”), by and through its attorneys, and moves the illinois Pollution

Control Board (“Board”) to deny, in part, and approve, in part, the Petitioner’s,

AMEREN ENERGY GENERATING COMPANY (hereinafter“Aineren Energy

Generation” or ‘Petitioner”), request for a stay ofthe effectiveness ofthe Clean Mr Act

Permit Program (“CAAPP”) permit issued in the above-captioned matter.

INTRODUCTION

Acting in accordance with its authority under the CAAPP provisions ofthe

illinois Environmental Protection Act (hereinafter “Act”),

415 ILCS 5/39.5(2004),

the

Illinois EPA issued a CAAPP permit to Ameren Energy Generation on September 29,

2005.

The permit authorized the operation ofan electrical power generation facility

known as the Coffeen Power Station.

The facility is located at 134 CIPS Lane in

Coffeen, Illinois.

1

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ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE,

NQVEMBER 18, 2005

On November 3,

2005,

attorneys

for the Petitioner filed this appeal (hereinafter

“Petition”) with the Board challenging certain permit conditions contained within the

CAMP permit issued by the illinois EPA.

The Illinois EPA received an electronic

version of the appeal on the same date.

Formal notice ofthe appeal was served upon the

Illinois EPA on November 4, 2005.

As partof its Petition, Ameren Energy Generation seeks a stay of the

effectiveness ofthe entire CAAPP permit, citing two principal grounds for its requested

relief.

First, Petitioner alleges that the CAAPP permit is subject to the automatic stay

provision ofthe Illinois Administrative Procedure Act (“APA”),

5 ILCS 100/1 0-

65(19(2004).

As

an alternative basis fora blanket stay ofthe CAMP permit, Petitioner

alleges facts intended to support the Board’suse of its discretionary stay authority.

Finally, Petitioner seeks

a stay ofthe contested conditions of the CAAPPpermit in the

event that the Board denies its request for a blanket stay

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,

3511!. Adm.

ARGUMENT

The illinois EPA urges the Board to deny Petitioner’srequest for a stayof the

effectiveness ofthe 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 oflaw.

Further, Petitioner has failed to demonstrate sufficient

justification for the Board to grant a blanket stayof the CAAPP permit under its

discretionary stay authority.

The illinois EPA supports the Petitioner’s limited stayof

2

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ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

18, 2005

the CAMP permit, which confines the stay relief only to those permit conditions

contested in the appeal.

I.

The CAAPP permit issued by the Illinois EPA should not be stayed in

its entirety by reason ofthe APA’s automatic stay provision.

The first argument raised by Petitioner maintains that theCAMP permit

in this

proceeding is subject to the automatic stay provision ofthe APA.

See, Petition at pages

3-4.

The automatic stay provision under the APA governs administrative proceedings

involving licensing, includinga “new license with reference to any activity ofa

continuing nature.”

See,

5 JLCS 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 theCA.APP permit is

synonymous with a license that is of a continuing nature.

See also,

5 JLCS 100/1 -35

(2004)(deflning “license” as the “wholeor partof any agenby permit... required by

law”).

In its argument, Petitioner contends that the APA automatically stays the

effectiveness ofthe CAMP permit until after theBoard has rendered a final adjudication

on the merits ofthis appeal.

Citing to a Third District Appellate Court ruling from ovqr

two decades ago, Petitioner suggests that the APA’s stay provision continuesto 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. Matay,

427 N.E.2d 415,

56111. Dec. 335 (3” Dist.

1981).

The stay

provision would also apparentlyensure 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(19(2004).

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

3

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ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

18, 2005

permits’ that have been separately governing the facility’s operations since the illinois

EPA’s original receipt ofthe permit application.

See,

415 JiGS 5/39.5 (4)(b)(2004).

The

Borg-Warner

decision upheld the APA’s automatic stay provision in the

context of a 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 ofa finil and binding decision coming out ofthe

administrative processbefore 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

JIl. Dec. at 341.

The Illinois EPA concedesthat

the

Borg-Warner

decision may still reflect good law and that itprobably warrants, in the appropriate case,

application ofthe doctrine of

stare decisis

by flhinois 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 theBoard

in

permitting matters under the Act.

In this regard, the illinois EPA is fblly cognizant ofthe

“administrative continuum” that exists with respect to the Board in most permitting

matters,

and the CAMP program itselfdoes not reveal the General Assembly’s

intentions to change this administrative arrangement.

See, Illinois EPA

i’.

illinois

Pollution

Control Board,

486 NE2d 293,

294 (3” Dist.

1985),

affirmed, illinois EPA

v.

illinois Pollution Control Board,

503 NB2d

343, 345 (Ill. 1986);

ESO

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 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 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

because the

APA

simply does 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.

Oneexample 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 ofthe APA.

See,

415 ILCS

5/31.1(e)(2004).

In the case ofthe Act’s CAAPP provisions, a

similar basis

for

exemption is providedby the permit severability requirements that govern the illinois

EPA’s issuance of

CAAPP

permits.

Section 39.5(7) ofthe Illinois CAMP

sets forth requirements governing the

permit content for every

CAAPP pennit issued by the Illinois EPA.

Seegenerally, 415

ILCS 5/39.5(7) (2004).

Section 39.5(7)(i) ofthe Act provides that:

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

severability clause to ensure the continued validity ofthe various permit

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

415 ILCS 5/39.5(7,)4)(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 otherwords, the General Assembly

was

not simply

speaking to the Illinois EPA but, rather, to

a larger audience.

By observing

that a

component of a CAAPP permit shall

retain

a “continued validity,”

lawmakers

clearly

proscribed that the uncontested conditions ofa CAMP permit must continue to survive

notwithstanding a challenge to the permit’s other terms.

This language signifies an

5

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ELECTRONIC FILING,

RECEIVED, CLERKS OFFICE,

NOVEMBER

18, 2005

unambiguous intent to exempt some segment ofthe CAAPP permit

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 suggests that the APA’s automatic stay provision applies by

virtue of the licensing that

is being obtained through the CAMP permitting

process.

However, the APA contains a grandfathering clause that specifically exempts an

administrative agency that previously possessed “existing procedures on July

1,

1977” for

contested caseor licensing matters.

See,

5 ILCS 1 00/1-5(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 theAct 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 referencedthe 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 theirvery 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 flhinois

Secretary ofState’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 UI rules pertaining to enforcement.

See,

Rule 502.

In contrast to the Regulatory and Nonadjudicative Hearings and Proceedings,

the Enforcement Proceedings ofPart III contained a plethora ofcontested

case

requirements, including provisions for the filing of a petition (i.e., Rule 304),

authorization for hearing (i.e.., Rule 306), motion practice (i.e., Rule 308), discovery (i.e.,

Rule 313), conduct ofthe hearing (Rule 318), presentationofevidence (i.e., Rulç 321),

examination ofwitnesses (i.e., Rules 324,

325

and 327) and final disposition (i.e., Rule

322).

A later version of these 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 mayhave evolved and expanded over time, the core features ofthe

adversarial process governing these cases have remained substantiallythe 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 CAAPP program was 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

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 ina

~y

that conditioned their effectiveness upon a

fiiturc

event.

7

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ELECTRONIC FILING,

RECEIVED, CLERKS

OFFICE,

NOVEMBER 18, 2005

II.

The

CAAPP permit issued

by the

Illinois EPA

should not be stayed in

its

entirety by

reason

of Petitioner’s

alleged justifications.

Separate and apart from its APA-related argument, Petitioner offers the Board an

alternativebasis

for granting a blanket stay ofthe CAAPP permit.

Specifically,

Petitioner suggests that the Board stay the entire CAAPP permit as part ofits

discretionary stay authority.

See,

Petition at page 4.

While the reasons put forward by

Petitioner sufficeto justify a stay ofthe

CAMP

permit’scontested conditions, Petitioner

fails to demonstrate a clear and convincing need for a broader stay.

Even if thePetitioner

could muster more persuasivearguments on this issue, the illinois EPA questions

whether such an all-encompassingremedyis appropriate under any circumstances.

Notwithstanding the Board’s recent practice in other CAMP appeals, theIllinois EPA

has come 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 forreview 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 ofa clearly ascertainable right that warrants protection,

irreparable

injury

in the absenceof 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 grandfatbering clause.

More importantly,

in addressing an issue that was not central to

the appeal, the

appellate court appears to haveenoneously placed too much emphasis on the substantive

permittingprocedures of the NPDES program, rather than those procedures applicable to the Board’s

contested case

hearings.

A proper construction of the

APA demands that the

focus be placed on the

existing procedures “specifically for contested cases or Licensing.”

.5

JLCS

IOO/J-5(a)(2004).

S

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ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER 18, 2005

probability of

success

on the merits ofthe

controversy.

See, Bridgestone/Firestone Of

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

Junkuncv. Si

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 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 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 page

4.

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 CA.APP 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 beforebeing

9

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ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE,

NOVEMBER 18, 2005

required to comply with those terms of thepermit that are deemed objectionable.

The

Illinois EPA recognizes these reasons as a legitimate basis for authorizing a stay of

permit conditions contested on appeal.

However, theyare not at all instructive

to

Petitioner’s claim that

a stay ofthe entire CAAPP permit is needed.

Judging

by a fair reading

of

the

Petition,Petitionerhas challenged a relatively

small

number ofthe conditions contained in theoverall CAAPP permit, thus leaving the

lion’s share ofthe permit conditions unaffected by the appeal.

Much ofthe gistof

Petitioner’s appeal pertains to “periodic monitoring,” including a numberofprovisions

dealing with emissions testing, reporting, record-keeping and monitoring ofemissions

that

are purportedly

beyond the scope ofthe

Illinois

EPA’s

statutory

permit authority.

If

the

vast majority

of the 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 harm, especially if one

can

assume,

as here, that the

crux

of

CAAPP permitting requirements were carried

over

from

previously-existing State operating permits.3

The

Illinois EPA

does not dispute

that

the Clean

Air Act’s C’CAA”) Title

V

program, which

formed the

framework for

the

Illinois

CAAPP, requires oniy a marshalling

of

pre-existing

“applicabie requirements”

into a single operating

pcrmit for a major

source and

that it

does not generally authorize

new

substantive

requirements.

See,

Appalachian

Power

Company v.

illinois

EPA,

208

Fad

1015,

1026-1027

(D.C.

Circuit~

2000);

Ohio Public

interest Research Group

v.

Whitman,

386 F.3d

792, 794 (6”

Cir.

2004);

In re: Peabody

Westeni

Coal Company,

CAA

Appeal No. 04-01, slip 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 remainderof the CAAPP permit should be

comprised

of

the pre-existing

requirements that

were

previously

pennifted.

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,

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ii.

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 CAAPP permit, usually doing so without much substantive discussion.4

Curiously,

all

excepting one oftheprior cases involving blanket stays were brought by petitioning

parties represented by the same law firm.

In other CAAPP appeal cases, the Board

granted stays for the contested permit

conditions, again mirroringthe relief sought by the

petitioning

party.5

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.6

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

participate

in the stay motions sought before the Board due to theperennially-occurring

press ofothermatters.7

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 ofa lack

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,

PCRNo.

03-98,

slip

opinion at 1-2 (February 6, 2003);

Saint-Cofrain

Containers,

inc.,

v.

Illinois EPA,

P0

No.

04-47,

slip

opinion at 1-2 (Novembe 6,

2003);Chwnpion Laboratories, Inc.,

v.

Illinois EPA,

PCB

No. 04-65,

slip

opinion at

I

(January 8, 2004);;

Midwest

Generation,

L.L.C,

v.

Illinois EPA,

P0

No.

04-108, slip

opinion at

1

(January

22, 2004);

Ethyl

Petroleum Additives, Inc.,

v. Illinois EPA,

slip

opinion at

1

(February

5, 2004);

Boardof

Trustees

of

Eastern Illinois

University

v.

Illinois EPA,

PCB

No. 04-110,

slip

opinion

at

1

(February

5, 2004).

See,

Bridgestone/Firestone

Off-road

Tire Company v.

Illinois EPA,

PCB 02-31

at page

3 (November

1,

2001);

PPO Industries,

Inc.,

v. illinois EPA,

PCB

No.

03-82,

slip

opinion

at

1-2

(February

6, 2003);

Abitec

Corporation

v.

illinois EPA,

PCB No.

03-95,

slip opinion at 1-2

(February 20, 2003);

Noveon,

Inc.,

v.

Illinois EPA,

PCB

No. 04-102, slip

opinion

at 1-2

(January

22,

2004);

Oasis Industries,

Inc.,

v.

Illinois

EPA,

P0

No. 04-116, slip

opinion at

1-2 (May 6, 2004).

6

See, XCTC LimitS Partnership,

v.

Illinois EPA,

PCB

No.

01-46,

consolidated will, Georgia-Pac~f

Ic

Tissue,

L.L. C.,

v.

Illinois EPA,

P0

No.

01-SI;

General Electric Company v.

illinois EPA,

P0

No.

04-

115 (January 22,2004).

The Illinois EPA did file ajoint mbtion in support ofa stay request seeking protection for contested

conditions ofa CAAPP permit.

See,Abitec

Corporation

v.

Illinois

EPA,

PCB No. 03-95, slip opinion at

I-

2

(Febniaxy 20, 2003).

II

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ofresources, it is doubtful

that

the illinois EPA would have articulatedweighty 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 approyal.8

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

ofthe

relevant considerations

necessary to the analysis.

Accordingly, the

Illinois EPA urges the Board to reflectupon

additional

factors that have not previously been

addressed

to

date.9

iii.

Statutory

objectives ofCAAPP and common attributes of permit

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” ofpermit conditions.

See,

415 ILCS 5/39.5(7)

(:)

(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 severabilityprovision

is prominently displayed in the Standard Permit

Conditions of the Petitioner’s CAAPP

permit.

See,

Standard Permit Condition

9.13.

It

should also be noted that the language

from

the Act’s CAAPPprogram mirrors the

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 natureof the stays obtained in

CAAPP permit appeal proceedings

before

the

Board.

This

initial

inquiry

led to

f¾jrther

discussion between USEPA/Region

V

representatives and

the

Illinois

EPA

regarding

the impact of such stays on the severability requirements

for CAAPP

permits

set forth in 40 C.F.R. Part 70

and

the

illinois

CAAPP.

(See, Supporting Affidavit offim

Ross attached

to

this Motion).

~

It is noted that the Board’s prior rulings

regarding blanket stays

of

CAAPP permits have been granted

contingent upon the

Board’s final

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

12

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provision promulgatedby 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

permitting requirements that are not being challenged on appeal.

The use oftheword

“various” in describingthose conditions that are severable is especially important when

compared with the

later reference in the same sentence to “any portions” ofthepermit

that are contested.

Because the commonly understood meaning ofthe adjective

“various” is “of diverse kinds” or “unlike;

different,”

this wording demonstrates a

legislative intent to contrast one discernable group ofpermit

conditions (i.e., uncontested

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;

ofseveral kinds”).

Given the clear absence ofambiguity 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 CAAPP are not directlybinding on theBoard.

However, whilethe

Illinois EPA’s mandate under Section 39.5(7)(i) ofthe Act’s CAAPP program does not,

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

on the Board’s discretionary stay authority in CAAPP appeals.’°Implicit in the statutory

language is an unmistakable expression aimed

at

preserving

the

validity and effectiveness

~

Any

such resthction

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.

13

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ofsome 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

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

a manner that

effectuates its object and purpose.

See. F.D.L C.

v. Nihiser,

799 F.Supp. 904 (CD. ill.

1992);

Castaneda

v. Illinois Human Rights

Commission. 547

N.E.2d 437

(Ill.

1989).

In

this instance, the Board should

recognize an inherent

limitation of its stay authority by

virtue ofthe Illinois CAAPP’s

severabilityprovision.

At the very least, the existence of

the provision should give pause to the Board’s recent approach in evaluating stays in

CAAPPpermit appeals.

Petitioner asserts that a further delay in the effectiveness ofthe CAAPP permit

would not prejudice the Illinois EPA or the public

at large.

See, Petition atpage

4.

It

is

noteworthy that one ofthe chief goals ofthe CAA’s Title V program is to promote public

participation, including the use

of citizen

suits to facilitate compliance

through

enforcement.”

The severabilityrequirement of the Part 70 regulations, which formed the

regulatory basis forSection 39.5(7)(i) ofthe Illinois CAAPP, can

be seen

as

an extension

ofthis endeavor.

Blanket stays ofCAAPP permits could arguably lessen the

opportunities for citizen enforcement in an area that is teeming

with

broad public interest.

Moreover, the cumulative effedt of

stays sought by Petitioner and othercoal-fired

CAAPP pennittees in other appeals would casta wide net.

Blanket stays ofthese

recently-is~ued

CAAPP permits would effectively shield an

entire segment of illinois’

utilities sector from potential enforcement based on Title V permitting, which was meant

“

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).

14

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to provide a more convenient, efficient mechanism for the public

to seek CAA-related

enforcement.

One last consideration in this analysis is the deliberate, ifnot time-consuming,

pace ofpermit appeals in general.

From past experience, the Illinois EPA has observed

that many

permit

appeals areof a typethat could more aptly be described as “protective

appeals.” These types ofappeals are frequently filed because a particular permit

condition

affects

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

Alternatively, these cases may entail some otherkind of contingencynecessitating

additional

permit review, a new

permit

application and/orobtaining a revised

permit from

the illinois EPA.

Only rarely does a permit appeal

actually

proceed to hearing.

Based on the Illinois EPA’s

estimation, nearlyall ofthe CAAPP permit appeals

filed with the Board to date couldbe aptly described as

“protective

appeals.”

While a

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 oftheir related

enforcementor permitting developments.

As the Illinois EPA is often an obligatory

participant in many ofthese

types

ofcases, this argument is not meant to condemn the

practice.

Rather, the relevant point is that significant portions of a CAAPP permit stayed

in its entirety will be delayed

from

taking effect, in

spiteof bearing no 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.

15

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CONCLUSION

For the reasons explained above, the Illinois

EPA moves the

Board

to

deny the

Petitioner’s

request

for

a stay of

the effectiveness ofthe CAMP permit in

its entirety.

However, the Illinois EPA supports the Petitioner’s request for a stay ofthe effectiveness

of the

CAAPP permit’s

contested conditions

and urges

the

Board

to

order

the same.

Respectfully submitted by,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Robb

H. Layman

Assistant Counsel

Datcd: November

18, 2005

illinois Environmental Protection Agency

1021

North

Grand Avenue East

P.O.

Box

19276

Springfield, Illinois

62794-9276

(217) 524-9137

16

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FILING, RECEIVED, CLERKS OFFICE,

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STATE

OF U.JLINOIS

COUNTY

OF

SANGAMON

AFFIDAVIT

I, Jim Ross, being first duly sworn, 4epose and state that the followini statements

set forth in this jnstnimentare 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:

I.

I arn.currently employed by the Illinois Environmental Protection Agency

(“flhinois

EPA”) as

aSenior

Public Sc

iè;Administrator professional engineer.

During

the earlypart of2004, 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 havebeen

employed

with the illinois EPA since May 1988.

2.

As part ofmy job responsibilities,! participated in frequent teleconference

calls with representatives from the United States Environmental Protection Agency

(“USEPA”) atRegion

v

in Chicago, Illinois, involving various ~,endingCAMP permit

applications arid issues pertaining to the administration ofthe CAAPP program.

By

virtue ofmy involvement in the CAMP permit reviewprocess, I am familiar with

communications betweenUSEPA/Region V and the Illinois EPA in March of2004

concerning an issue relating to stays obtained in CAMP permit appealsbefore the

Illinois Pollution Control Board.

The issue was initially raised by a representative from

USEPA’Region V, who expressed concern about the impact ofsuch stays upon thó

I

severability requirements of40 C.F.R. !axt 70 and the fllinois CAAPP.

3.

I have read theMotion prepared by the Illinois EPA’s attorneys relating to

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ELECTRONIC

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this

matter

and,

further, findthat the facts set forth in said responses

and answers are true,

res$nsive

and

complete to thebest ofmy knowledge

and belief.

Subscribed and Sworn

To Before Me

this

Jf~DayofNovember

2005

OFFICIAL

SEAL

Z

BRENDA BOEHNER

ICThR(

pat.

STATE

oc iujso~st

~Mycc&masslowwmEsn42o

~!4*44++.4tt4+4.+.n+t+•44tt4

tt

sayet~~

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CERTIFICATE

OF SERVICE

I hereby certif~’

that on the 18th day ofNovember 2005,1 did send, by electronic

mail with prior approval, the following instruments entitled APPEARANCES,

MOTION IN

PARTIAL OPPOSITION TO, AND IN PARTIAL SUPPORT OF,

PETITIONER’S REQUEST FOR STAY and

AFFIDAVIT

to:

Dorothy Ounn,

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 fully paid and deposited into the possession ofthe United States Postal

Service, to:

Bradley P. Halloran

James T. Harrington

Hearing Officer

David L. Rieser

James

R. Thompson Center

McGuireWoods, LLP

Suite

11-500

77 West Wacker, Suite 4100

100 West Randolph Street

Chicago, illinois 60601

Chicago, illinois

60601

r74~~

~‘4~cr

Robb

H. Layman

Assistant Counsel