ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF TIlE STATE OF ILLINOIS
ELECTRIC ENERGY,
)
INCORPORATED,
)
)
Petitioner,
)
)
PCB No. 2006-065
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
MeGuireWoods, LLP
Suite 11-500
77 West Wacker, Suite 4100
Chicago, illinois 60601
Chicago, Illinois 60601
Bradley P. Halloran
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 ofthe Illinois Pollution Control Board the APPEARANCES, MOTION IN
PARTIAL OPPOSITION TO, AND 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 forthe 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 FILING, RECEIVED, CLERKS OFFICE, NOVEMBER 18, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
ELECTRIC ENERGY,
)
INCORPORATED,
)
)
Petitioner,
)
)
PCB No. 2006-065
v.
)
(CAAPP Pennit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
APPEARANCE
NOW COMES Robb H. Layman and enters his appearance on behalf ofthe
Respondent, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, asone of its
attorneys in the above-captioned matter.
Respectfully submitted by,
e7~~g
~
Robb H. Layman
Assistant Counsel
Dated: November 18,2005
illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 524-9137
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, NOVEMBER 18, 2005
BEFORE TIlE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
ELECTRIC ENERGY,
)
INCORPORATED,
)
)
Petitioner,
)
)
PCB No.
2006-065
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) 782-5544
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
ELECTRIC ENERGY,
)
INCORPORATED,
)
Petitioner,
)
)
PCB No. 2006-065
v.
)
(CAAPP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent
)
MOTION IN PARTIAL OPPOSITION TO,
AND
PARTIAL
SUPPORT OF,
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, in part, and approve, in part, the Petitioner’s,
ELECTRIC ENERGY, INCORPORATED (hereinafter “Electric Energy” or
‘Petitioner”), request for a stay ofthe effectiveness ofthe Clean Air Act Pennit 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 JLCS 5/39.5(2004),
the
Illinois EPA issued a CAAPP pennit to Electric Energy on September 29, 2005. The
permit authorized the operation of an electricalpower generation facilityknown as the
Joppa Stream Electric Station. The facility is located at 1200 Portland Road in Joppa,
Illinois.
1
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, NOVEMBER 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
CAAPP permit issued by the Illinois EPA. The Illinois EPA received an electronic
version of the appeal on the sante date. Formal notice ofthe appeal was served upon the
Illinois EPA on November 4, 2005.
As part ofits Petition, Electric Energy seeks a stay ofthe 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 1 00/1 0-65(b)(2004).
As an
alt&native basis for a blanket stay ofthe CAAPP permit, Petitioner alleges facts intended
to support the Board’s use ofits discretionarystay authority. Finally, Petitioner seeks a
stay ofthe contested conditions ofthe CAAPP permit 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, 35111. Adm.
Code
101.500(d).
ARGUMENT
The Illinois EPA urges the Board to deny Petitioner’s request for a stay of the
effectiveness ofthe entire CAAPP permit. For reasons that are explained in detail below,
Petitioner cannot avail itselfof the 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 stay ofthe CAAPP permit under its
discretionary stay authority. The Illinois EPA supports the Petitioner’s limited stay of
2
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, NOVEMBER 18, 2005
the CAAPP 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 of the APA’s automatic stay provision.
The first argument raised by Petitionermaintains that the CAAPP 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, including a “new license with reference to any activity ofa
continuing nature.”
See, 5 ILCS 100/10-65(b).
The CAAPP permit at issue in this
proceeding governs emissions-related activities at an existing, majorstationary source in
illinois. Accordingly, the Illinois EPA does not dispute that the CAAPP permit is
synonymous with a license that is ofa continuing nature.
See also, 5 JLCS 100/1 -35
(2004)(deflning “license” as the “whole orpart ofany agency permit... required by
law”).
In its argument, Petitioner contends that the APA automatically stays the
effectiveness of the CAAPP permit until afterthe 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 suggests 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, 56 ill. Dcc. 335 (3” 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
3
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005
permits1 that have been separatelygoverning the facility’s opcrations since the Illinois
EPA’s original receipt ofthe permit application.
See, 415 ILCS 5/39.5(4)(b)(2004).
The
Borg- Warner
decision upheld the APA’s automatic stay provision in the
context ofa renewal for a National Pollutant Discharge Elimination System (“NPDES”)
permit sought before the Illinois EPA. Notably, the court observed:
“A final decision, in the senseofa 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,
56111. Dec. at 341. The Illinois EPA concedes that the
Borg-Warner
decision may still refledt 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
pennitting matters under the Act. In this regard, the Illinois EPA is fully cognizant of the
“administrativecontinuum” 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 NE2d 293, 294 (31(1 Dist. 1985),
affirmed, illinois EPA v.
illinois Pollution Control Board.
503 NE2d 343, 345 (Ill. 1986);
ESG Watts, Inc., v.
Illinois Pollution Control Board,
676 N.E.2d 299, 304 (3~”Dist. 1997). Thus, it is the
Board’s decision in reviewing whether a CAAPP permit should issue that ultimately
determines when the permit becomes final.
In
limited situations,
it
is possible
that a facility’s operation during the pending review or the
CAAPP-
permit application was
also authorized
in a State
construction
permit.
4
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005
While the
Borg-Warner
opinion may offer some interesting reading, it does not
provide a proper precedent in this case. This conclusion can be arrived because the APA
simplydoes not apply to these CAAPP permit appeal proceedings. For one reason, the
APA’s various provisions should not apply where the General Assembly has effectively
exemptedthem from a particular statutory scheme. One example
of
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 APA.
See, 415 ILCS
5/31. 1(e)(2004).
In the case ofthe Act’s CAAPP provisions, a similar basis for
exemption is provided by the permit severability requirements that govern the illinois
EPA’s issuance ofCAAPP permits.
Section 39.5(7) ofthe Illinois CAAPP sets forth requirements governing the
permit content for every CAAPP permit issued by the Illinois EPA.
See generally, 415
ILCS 5/39.5(7)(2004).
Section 39.5(7)(i) of the Act provides that:
“Each CAAPP 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 of the permit.”
415 ILCS 5/39.5(7) (1) (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 of a CAAPP permit must continue to survive
notwithstanding a challenge to the permit’s other terms. This language signifies an
5
ELECTRONIC FILING, RECEIVED, CLERK’S 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 ofthe licensing that is being obtained through the CAAPP permitting process.
However, the APA contains a grandfathering clause that specifically exempts an
administrative agency that previously possessed “existing procedures on July 1, 1977” hr
contested case or licensing matters.
See,
5 JLCS 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 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 of theirvery nature.
The earliest version of the Board’s procedural regulations was adopted on
October 8, 1970 in the R70-4 rulemaking and was subsequently published by the Illinois
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
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005
to be conducted according to the Board’s Part ifi rules pertaining to enforcement.
See,
Rule 502.
In contrast to the Regulatory and Nonadjudicative Hearings and Proceedings,
the Enforcement Proceedings ofPart ifi contained a plethora ofcontested 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 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 4dopted 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 of the
adversarial process governing these cases have remained substantially the same,
including those rules governing CAAPP permit appeals. Because the Board had such
procedures in place prior to July 1, 1977, those procedures effectively secured the
Board’s exemption from the APA’s contested case requirements. And so long as those
underlying procedures historically satisfied the grandt~theringclause, 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, not the advent ofthe permitting program itself?
2
Petitioner may counter that
the
Borg-Warner
decision is
at
odds with this argument and that part-of-tht
appellate court’s ruling held that the A.PA’s grandfathering clause did not apply to the Board’s rules
forihe
NPDES permit
program.
The court’s discussion on the issue ofthe grandfathering clause is inapposite here.
The NPDES rules at issue were written
in a
way
that
conditioned their effectiveness upon a nature
event.
7
ELECTRONIC FILING, RECEIVED, CLERK’S 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 AM-related argument, Petitioner offers the Board an
alternative basis for granting a blanket stay ofthe CAAPP permit. Specifically,
Petitioner suggests that the Board stay the entire CAAPP permit as part of its
discretionary stay authority.
See. Petition at page 4.
While the reasons put forward by
Petitioner suffice to justi& a stay of the CA.APP pennit’s contested conditions, Petitioner
fails to demonstrate a clear and convincing need for a broader stay. Even
if
the Petitioner
could muster more persuasive arguments on this issue, the Illinois EPA questions
whether such an all-encompassing remedy is appropriate under any circumstances.
Notwithstanding the Board’s recent practice in other
CAAPP
appeals, the Illinois EPA
has come to regard blanket stays of CAAPP permits as incongruous with the aims ofthe
Illinois
CAAPP
and needlessly over-protective in light ofattributes common to these
appeals.
Section 105.304(b) of Title 35 of the Board’s procedural regulations provides that
a petition for review of a CAAPP permit may include a request for stay. The Board has
frequently granted stays in permit proceedings, often citing to the various factors
considered by Illinois courts at common law. The factors that are usually examined by
the Board include the existence of a clearly ascertainable right that warrants protection,
irreparable injury in the absence of a stay, the lack of an 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 emphasison the substantive
permitting procedures ofthe NPDES program, rather than those procedures applicable to the Board’s
contested case hearings. A proper construction ofthe APA demands that the fbcus be placed on the
existing procedures “specifically for contested cases or licensing.” S
ILCS 100/I-S (a)(2004).
8
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005
probability of success on the merits ofthe 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 page
5
(October 19, 2000), citing
Junkunc v. Si. Advanced
Technology & Manufacturing,
498 N.E.2d 1179 (Itt 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
ofthe 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 of Morris 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-keepingrequirements 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 before being
9
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005
required to comply with those tenns ofthe permit that arc deemed objectionable. The
illinois EPA recognizes these reasons as a legitimate basis for authorizing a stay of
permit conditions contested on appeal. However, they are not at all instructive to
Petitioner’s claim that a stay ofthe entire CAAPP permit is needed.
Judging by a fair reading ofthe Petition, Petitioner has challenged a relatively
small number ofthe conditions contained in the overall CAMP permit, thus leaving the
lion’s share ofthe permit conditions unaffected by the appeal. Much ofthe gist of
Petitioner’s appeal pertains to “periodic monitoring,” including a number ofprovisions
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 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 (“CAN’) Title V program, which formed the
framework for the Illinois CAAPP, requires only a marshalling ofpie-existing “applicable requirements”
into a single operating permit for a major source and that
it
does not generally authorize new substantive
requirements.
See, Appalachian Power
Company
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.
04-01,
slip op. at 6
(EAB,
February
18, 2005).
Aside from the
conditions lawfully imposed
by
the Illinois EPA forperiodic monitoring and other
miscellaneousmatters,
the remainder ofthe CAAPP permit should be comprised ofthe pre-existing requirements that were
previously permitted. A casual comparison ofthe CAAPP permit and the Petition suggests that the present
appeal only calls into question
a
relatively small fraction ofpermit conditions contained in the overall
CAAPP permit.
to
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, NOVEMBER 18, 2005
ii.
Significance of prior
Board rulings
The Board has grantednumerous 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 CAMP permit, usually doing so without much substantive discussion.4 Curiously,
all excepting one ofthe prior cases involving blanket stays were brought by petitioning
parties represented by the same law firm. In other CAMP 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 majorityof the afore-referenccd cases, the Illinois EPA did not actively
participate in the stay motions sought before the Board due to the perennially-occurring
press ofother matters.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.
BainbrWge, Li. C., v. Illinois EPA,
PCB
No. 03-98, slip opinion at 1-2 (February
6,2003);
Saint-Gobain Containers, Inc., v.
Illinois
EPA,
PCB
No.
04-47, slip opinion at 1-2 (Novembe 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.
04-108, slip opinion at
1
(January
22,
2004);
Ethyl
Petroleum Additives,
Inc., v. Illinois 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).
See, BridgestonelFirestone
Off-road
Tire Company
“.
Illinois 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);
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,
PCB No.04-116, slip opinion at 1-2 (May 6,2004).
6
See. XCTCLimited Partnership, v. Illinois
EPA,
PCB
No.
01-46,
consolidated with Georgia-Pacjflc
Tissue, L.L. C., v. Illinois EPA,
PCB No. 01-51;
General Electric
Company v. Illinois
EPA,
PCB
No. 04-
115 (January 22,2004).
The Illinois EPA did file a joint
motion in support ofa stay request seekingprotection forcontested
conditionsof a
CAAPP
pennit.
See, Abitec
Corporation v.
Illinois EPA,
PCB No. 03-95,
slip
opinion at I
-
2 (February 20, 2003).
11
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005
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,
followingthe Board’s last occasion to acton a blanket stay request in a CAAPP permit
appeal, Illinois EPA officials became aware ofthe potential implications posed by stays
on the existing Title V program approval.8 In the wake of this discovery, the flhinois EPA
is now compelled to observe that the Board’s earlier decisions affording blanket stays to
CAAPPpermits arguably fell short ofexploring all ofthe relevant considerations
necessary
to the analysis. Accordingly, theIllinois EPA urges the
Board to reflect upon
additionaliii. factorsStatutorythat haveobjectivesnot previouslyofCA.APPbeen addressed
and common
to date.
attributes
9
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” ofpermit conditions.
See, 415 ILCS 5/39.5 (7)(1) (2004).
To
this end, every CAAPP permit is required to contain a permit condition severing those
conditions challenged in a subsequent permit appeal from the other permit conditions in
the permit. The severability provision 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 CA.APP program mirrors the
Jim Ross, a formerUnit Manager for the CA.APP Unit
of the Division of Air Pollution Conuol’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 betweenUSEPA/ltegion
V
representatives and
the illinois EPA regarding
the impact of such
stays on the
severability
requirements forCAMP permits set forth in 40 C.F.R. Part 70
and the Illinois CAAPP,
(See, Supporting
Affidavit ofJim
Ross
attached
to
this
Motion).
~ It is noted
that
the
Board’s prior
rulings regarding blanket stays of CA.kPP permits have been granted
contingent upon the
Board’s final action in the appeal or
“until
the
Board
orders otherwise.”
12
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005
provision promulgated by USEPA in its regulations implementing Title V ofthe CAA.
See,
40 C.F.R. §70.6(a)(5)(JuIy 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 largerbody 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 meaning ofthe 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
conditions) from the other another (i.e., contested conditions).
See, The American
Heritage Dictionary, Second College Edition; see also, Webster’s New World Dictionary,
Third College Edition
(describing primary use ofthe term as “differing one from another;
of several kinds”). Given the clear absence ofambiguity with this statutory text, no other
reasonable meaning can be attributed to its language.
The Illinois EPA readily concedes that the permit content
requirements of the
CAA and the Illinois CAAPP are not directly binding on the Board. However, while the
Illinois EM’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 CA.APP appeals.’°Implicit in the statutory
language is an unmistakable expression aimed at preserving the validity and effectiveness
‘° 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.
13
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005
of some segment ofthe CAAPP permit during the appeal process. This legislative goal
cannot be achieved ifblanket 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.I.C. v. Nihiser,
799 F.Supp. 904 (C.D. 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 ofits 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.
Petitioner asserts that a flurther delay in the effectiveness ofthe CAAPP permit
would not prejudice the Illinois EPA or the public at large.
See, Petition at page
4. It is
noteworthy that one ofthe chiefgoals of the CAA’s Title V program is to promotepublic
participation, including the use ofcitizen suits to facilitate compliance through
enforcement)’ The severability requirement ofthe 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 ofCAAPP 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 other coal-fired
CAAPP permittees in other appeals would cast a wide net. Blanket stays of these
recently-issued CAAPP permits would effectively shield an entire segment ofIllinois’
utilities sector from potential enforcement based on 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
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005
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 filinois EPA has observed
that many permit appeals are ofa type that 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 enforcementproceedings.
Alternatively, these cases may entail some other kind ofcontingency necessitating
additional permit review, a new permit application and/or obtaining a revised permit from
the illinois EPA. Only rarely does a permit appeal actuallyproceed to hearing.
Based on the Illinois EPA’s estimation, nearly all ofthe CAAPP permit appeals
filed with the Board to date could be 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
enforcement or permitting developments. As the Illinois EPA is often an obligatory
participant in many of these types of cases, this argument is not meant to condemn the
practice. Rather, the relevant point is that significant portions of a CAAPP permit stayed
in its entirety will be delayed from taking effect, in spite ofbearing no relationship to the
appeal or its ultimate outcome. To allow this under circumstances where petitioning
parties seldom appearto desire their “day in court” strikes the Illinois EPA as needlessly
over-protective.
15
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005
CONCLUSION
For the reasons explained above, the Illinois EPA moves the Board to deny the
Petitioner’s
request
for a stay ofthe effectiveness ofthe
CAAPP permit
in its
entirety.
However, the Illinois EPA supports the Petitioner’s request for a stay of the effectiveness
ofthe
CAAPP permit’s contested conditions and urges the Board to order the same.
Respectfully submitted by,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
RobbH.Layman
~J
Assistant Counsel
Dated: November 18,
2005
Illinois Environmental
Protection Agency
1021 North Grand
Avenue
East
P.O. Box 19276
Springfield, fllinois 62794-9276
(217) 524-9137
16
ELECTRONIC FILING, RECEIVED, CLERKS OFFICE, NOVEMBER 18, 2005
STATE OF ILLINOIS
COUNTY OF SANGAMON
AFFIDAVIT
I, Jim Ross, being first duly sworn, depose and state that the followinj 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.
1 amncurrently employed by the Illinois Environmental Protection Agency
(“illinois EPA”) as asenior Pi~bliéSeMèó.Mministrator professional engineer. During
the early part of2004, 1 was the Manager ofthe Clean AirAct Permit Program
(“CAAPP”)
Unit in the Division
of AirPollution Control’s Permit Section, whose offices
are located at 1021 North GrandAvenue East, Springfield, Illinois. I hás~ebeen•
employed with the Illinois EPA since May 1988.
2.
As part ofmyjob responsibilities, I participated in frequent teleconference
calls with representatives from the United States Environmental Protection Agency.
(IJSEPA”) at.ReØon V in Chicago, illinois, involving various ~ending CAAPP permit
applications and issues pertaining to the administration of the CAAPP program. By
virtue ofmy involvement in the CAAPP permit reviewprocess, I am familiar with
communications between USEPAJRegion V and the illinois EPA in March of 2004
concerning an issue relating to stays obtained in CAAPP permit appeals befóte 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 the. I.
severabilityrequirements
of40 C.F.R.
Part 70 and
the
Ilinois CAMP.
3.
1 have read the Motion prepared by the Illinois EPA’s attorneys relating to
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005
this matter and, fbrther, find that the facts
set
forth in said responses and answers are true,
responsive and complete to the best of my knowledge and belief.
Subscribed and Sworn
To Before Me this .L~DayofNovember 2005
:~
OFFICIAL SEAL
;
t BRENDA BOEHNER
~mtwpiauc.STATE OF
n.aC5
sa~et~5~
ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005
CERTIFICATE OF SERVICE
I
hereby certif5’ that
on the 18th day ofNovember 2005, I
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 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 fifty paid and deposited into the possession of the 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
Robb H. La~an
Assistant Counsel