ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER 18, 2005

BEFORE

LIE

ILLINOIS

POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

AMEREN

ENERGY

)

GENERATING COMPANY,

)

DUCK CREEK POWER STATION

)

)

Petitioner,

)

)

PD

No. 2006-066

v.

)

(CAMP 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.

Hailoran

Hearing Officer

James R. Thompson Center,

Suite 11-500

100 West Randolph Street

Chicago, illinois

60601

PLEASE TAKE NOTICE that I havetoday 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.

RespectfWly 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 THE

STATE OF ILLINOIS

AMEREN ENERGY

)

GENERATING COMPANY,

)

DUCK CREEK POWER STATION

)

)

Petitioner,

)

)

PCB No. 2006-066

v.

)

(CAAPP Permit Appeal)

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

)

APPEARANCE

NOW COMES Robb H.

Layman and enters his appearance on behalf ofthe

Respondent, ILLINOIS ENVIRONMENTAL PROTECTIONAGENCY, as one of

its

attorneys in the above-captioned matter.

Respectfullysubmitted by,

~‘

Robb H. Layman

Assistant Counsel

Dated: November 18, 2005

illInois Environmental Protection Agency

1021 North Grand Avenue East

P.O.Box

19276

Springfield, Illinois

62794-9276

(217) 524-9137

---

ELECTRONIC

FILING,

RECEIVED, CLERKS

OFFICE,

NOVEMBER 18, 2005

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OF THE

STATE OF ILLINOIS

AMEREN ENERGY

)

GENERATING COMPANY,

)

DUCK CREEK POWER STATION

)

)

Petitioner,

)

)

PCB No. 2006-066

)

(CAAPP Permit Appeal)

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

)

APPEARANCE

NOW COMES Sally Carter and enters her appearance on behalfofthe

Respondent, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, as one ofits

attorneys in the above-captioned matter.

Respectfully submitted by,

Sally (~rter

Assistant Counsel

Dated: November 18, 2005

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box

19276

Springfield, Illinois 62794-9276

(217) 782-5544

---

ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER 18, 2005

BEFORE TILE ILLINOIS POLLUTION CONTROL BOARD

OF TilE STATE OF ILLINOIS

AMEREN ENERGY

)

GENERATING COMPANY,

)

DUCK CREEK POWER STATION

)

)

Petitioner,

)

)

P0

No. 2006-066

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 ENVIRONMENTALPROTECTION

AGENCY (“Illinois EPA’~,

by and through its attorneys, and moves the Illinois Pollution

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

AMEREN ENERGY GENERATING COMPANY (hereinafter “Anieren Energy

Generation”or “Petitioner”), request for a stay ofthe effectiveness ofthe Clean Air Act

Permit Program

(“CAAPP”)

permit issued in the above-captioned matter.

INTRODUCTION

Acting in accordance with its authority under the CAAPP provisions ofthe

illinois Environmental Protection Act (hereinafter “Act”),

415 ILCS5/39.5(2004),

the

Illinois EPA issued a CAAPP permit

to Ameren Energy Generation on September 29,

2005.

The permit authorized theoperation of an electrical powergeneration facility

known as the Duck Creek Power Station.

The facility is located at 17751

North CILCO

Road in Canton, Illinois.

1

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ELECTRONIC FILING,

RECEIVED, CLERK’S 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 oftheappeal 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 ofthe

effectiveness ofthe entire CA.APP 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”), S

JLCS 100/10-

65(b)(2004).

As an alternative basis for a blanket stay ofthe CAAPP permit, Petitioner

alleges facts intended to support theBoard’s use ofits discretionary stay authority.

Finally, Petitioner seeks a stayofthe contested conditions ofthe CAAPP permit in the

eventthat 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,

35 IlL Adm.

Code

101.500(d).

ARGUMENT

0

The Illinois EPA urges the Board to deny Petitioner’s request for a stay of the

effectiveness ofthe entire CAAPP permit.

Forreasons that are explained in detail below,

Petitioner cannot avail itself ofthe protections afforded by the APA’s automatic stay

provision as a matter of law.

Further,

Petitionerhas failed to

demonstrate sufficient

justification for the Board to grant a blanket stay ofthe CAAPPpermit under its

discretionary stay authority.

The illinois EPA

supports the Petitioner’s limited stay of

2

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ELECTRONIC

FILING,

RECEIVED,

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NOVEMBER 18, 2005

theCAAPP permit,

which confines the stay relief only to

those permit conditions

contestedin the appeal.

1.

The CAMP

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

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 atan existing, major stationary 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 ILCS 100/I -35

(2004)(defining “license” as the “whole or part ofany agency permit... required by

law”).

In its argument, Petitioner contends 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 suggests that the APA’s stay provision

continues to apply

throughout the duration of the pending appeal because it is the Board, not the flhinois

EPA, that makes the “final agency decision” on the permit.

See,

Borg-Warner

Corporation

v. Mazay,

427 N.E.2d 415,

56 fll. Dec.

335

(3M

Dist.

1981).

The stay

provision would also apparently ensure that the Petitioner continues to abide by the terms

of“the existing license whichJ

shall continue in ftll 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 ILCS5/39.5(4)(b)(2004).

The

Borg- Warner

decision upheld the APA’s automatic

stay provision in the

context ofa renewal for a National Pollutant Discharge Elimination System (“NPDES”)

permit sought before the Illinois EPA.

Notably, the court observed:

“A final decision, in the sense of a final and binding decision coming out ofthe

administrative process before the administrative agencies with decision making

power, will not be forthcoming in the instant case until the PCB rules on the

permit application.”

Borg- Warner,

56 Ill. Dec. at 341.

Theillinois EPA concedes that the

Borg-Warner

decision may still reflect good law and that it probablywarrants, in theappropriate case,

application ofthe doctrine of

scare decisis

by illinois courts.

Moreover, the illinois EPA

observes that theruling is apparently in perfect harmonywith 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, theillinois EPA is fully cognizant ofthe

“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 anangement.

See, illinois EPA v. Illinois

Pollution Control Board,

486 NE2d 293,

294 (3~”

Dist.

1985), affirmed, illinois EPA v.

Illinois Pollution Control Board,

503 NE2d 343,

345 (III.

1986);

ESG

Watts, Inc.,

v.

illinois Pollution Control Board,

676

N.E.2c1 299, 304

(3th

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 of the CAAPP

permit application

was also authorized in a State consinictionpermit.

4

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ELECTRONIC

FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

18, 2005

While the

Borg-

Warner

opinion may offer some interesting reading itdoes not

provide a proper precedent in this case.

This conclusion can be arrivedbecause the APA

simply does not apply to these CAAPPpermit appeal proceedings.

For one reason, the

APA’s various provisions should not applywhere the General Assembly has effectively

exempted them from

a particular statutory scheme.

One example ofthis exercise of

legislative discretion is found with administrative citations, which under Section 31.1

of

theAct are not subject to the contested case provisions ofthe APA,

See,

415 ILCS

5/3L1(e)(2004,).

In the caseof theAct’s CAAPPprovisions,

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 CA.APP

sets forth requirements governing the

permit content for every CAAPP permit issued by theillinois 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 ofthis Section shall include

a

severability clause to ensure the continued validity ofthe various permit

requirements in the event ofa challenge to

any portions ofthe permit.”

415 ILCS 5/39.5(7)(i)(2004).

This provision represents something morethan 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 ofthepermit’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 ofa CA.APP permit shall retain a “continued validity,” lawmakers clearly

proscribed that the uncontested conditions ofa CAAPPpermit must continue to survive

notwithstanding a challenge to 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 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 sald 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” for

contested case or licensing matters.

See, 5 ILCS 100/1-5(a) (2004).

Where such

provisions were in existence prior to the July

1, 1977, date, those existing provisions

continue to apply.

Id.

Procedural rules have been in place with the Board since shortly 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 theBoard

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 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,

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18, 2005

to be conducted according to the Board’s Part III rules pertainingto enforcement.

See,

Rule 502.

In contrast to the Regulatory and Nonadjudicative Hearings and Proceedings,

the Enforcement Proceedings ofPart UI

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 ofthehearing (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 of theserules,

including amendments, was adopted by theBoard

on

August 29,

1974.

The “Procedural Rules” that originally guided the Board in enforcement cases and

permit appeals formed thebasic

framework for the current-day version ofthe Board’s

procedural regulations promulgated at 35

III. Adm. Code

101-130.

Although the Board’s

procedural rules may have evolved and expanded over time, the core features ofthe

adversarial process governing these cases have remained substantially the same,

including those rules governing CAAPP permit appeals.

Because theBoard had such

procedures in place prior to July

1,

1977, those procedures effectively secured the

Board’s exemption from the APA’s contested caserequirements.

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 of origin that is relevant to

this

analysis, not the advent of the permitting program itself.2

2

Petitioner may

counter that

the

Borg-Warner

decision is at

odds with this argument and

that part of the

appellate court’s ruling held that the APA’s

grandfatheringclause did not apply to the Board’s rules for the

NPDES permit program. The court’s discussion on the

issue of the grandfathering clause is inapposite here.

The NPDES rules at issue were written in a

way that conditioned their effectiveness

upon a future event.

7

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ELECTRONIC FILING,

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NOVEMBER

18, 2005

LI.

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

alternative basis 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 suffice to justi&

a stay ofthe CAAPP permit’s contested conditions, Petitioner

Ihils 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-encompassingremedy is appropriate under any circumstances.

Notwithstanding the Board’s recent practice in otherCAMP

appeals, the Illinois EPA

has come to regardblanket stays of CAAPP permits as incongruous with the aims ofthe

Illinois CAAPP and needlessly over-protective in light of attributes common to these

appeals.

Section

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

provides

that

a petitionfor review ofa CAAPP permit may include

a request for

stay.

The Board has

frequently granted stays

in

permit

proceedings, oftenciting 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

warrantsprotection,

irreparable injury

in

the absence ofa

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 havc erroneously placed too much

emphasis

on the

substantive

permitting

procedures

of the NPDES program,

rather than

those proceduresapplicable to the

Board’s

contested

case hearings.

A properconstruction ofthe

APA demands that

the focus be placed on the

existing

procedures

“specifically

for contested cases or licensing.”

5 JLCS I00/I-S

(a)

(2004).

S

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ELECTRONIC FILING,

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18, 2005

probability of success on themerits ofthe controversy.

See, Bridgestone/Firestone Off-

road Tire Company v. illinois EPA,

PCB 02-31

at page 3

(November

1, 2001);

CommunityLandfill Company and City ofMorris

v.

Illinois EPA,

PCB No. 01-48 and 01-

49 (consolidated) at page

5 (October 19, 2000), citing

Junkunc v.

S.f. Advanced

Technology & Manufacturing,

498 N.E.2d 1179

(1st

Dist. 1986).

However, the Board

has

noted that

its

consideration is not confined exclusively to those factors nor must each one

ofthose factors be considered by the Board in

every case.

See, Bridgestone/Firestone

at

page 3.

The Board has commonly evaluated stay requests with an eye

toward

the

nature

-

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 of

environmental harm”

for

any

stay that may be

granted.

See,

Bridgestone/Firestone

at page 3;

Abitec

Corporation

at 1;

CommunityLandfill 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 CAMP permit until after it

is provided

its

proverbial “day in court.”

Petitioner’s

right

ofappeal likewise should not

be cut short or rendered

moot

because it

was

unable to obtain

a legal

ruling

before being

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required

to comply

with

those terms ofthe permit that

are

deemed objectionable.

The

Illinois EPA

recognizes these reasons

as a legitimate basis for authorizing a stay of

permit conditions contested

on appeal.

However, theyare 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 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 pennit’s terms are uncontested, it cannot logically follow

that

the

absence of a stay for those conditions will prevent the Petitioner

from

exercising a

right

of appeal.

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

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

assume, as here, that the cmx ofCAAPP permitting

requirements were

carried over from

previously-existing State operating permits.3

~

The

Illinois

EPAdoes

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 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 (EAR,

February

18,

2005).

Aside from the

conditions lawfully

inçosed

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 casualcomparison of the CAAPP permit

and

the Petition suggests

that

the present

appeal

only calls into question a relatively small fraction of permit conditions contained in the overall

CAMP permit.

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ii.

Significance ofprior

Board rulings

TheBoard

has granted

numerous

stays

in

past and

pending

CAAPP

permit

proceedings.

Forthe mostp~,the extent oftherelief

granted has

been a function of

the

relief sought by the petitioning party.

In

several cases,

the Board has

granted

stays ofthe

entire

CAAPP permit,

usually doing so without much substantive discussion.4

Curiously,

all excepting one ofthe prior cases involving blanket

stays were

brought by petitioning

parties represented by the same law firm.

In other

CAAPP

appeal cases, the

Board

granted stays forthe contested permit

conditions, again

mirroring the 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

participatein the stay motions

sought

before the Board due to the perennially-occurring

press of other

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 of a lack

See, Lone Star industries, Inc.,

v. illinois EPA,

PCBNo. 03.94, slip opinion at 2,

(January

9,

2003);

Nielsen v. Bainbridge,

L.L. C.,

v. Illinois EPA,

PCB No. 03-98, slip opinion at 1-2

(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,

LLC,

v. illinois EPA,

PCR No. 04-108, slip opinion at

1

(January 22,2004);

Ethyl

Petroleum Additives, Inc.,

t’.

Illinois EPA,

slip

opinion

at

1

(February

5, 2004);

Board of Trusteesof

Eastern Illinois

University v. Illinois EPA,

PCBNo. 04-110, slip opinion at

1

(February

5, 2004).

See, Bridgestone/Firestone Off-road Tire Cbn~,any

y,

Illinois

EPA,

PCB 02-31

at page 3 (November I,

2001);

PPG industries, Inc.,

it.

Illinois EPA,

PCB

No.

03-82, slip opinion at 1-2

(February

6,

2003);

Abitec

Corporation

it.

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.,

it.

Illinois

EPA,

PCB No.

04-116, slip opinion

at

1-2 (May 6,

2004).

‘

See, XCTC Limited Partnership,

it.

Illinois EPA,

PCB

No.

01-46,

consolidated with Georgia-Pac(flc

Tissue,

L.L.C.,

it.

illinois EPA,

PCB No. 01-51;

General

Electric Company v. Illinois EPA,

PCE No. 04-

115

(January

22,

2004).

~

The Illinois EPA did file a joint motion in support of a stay request seeking protection for contested

conditions of a CAMP permit.

See, Abitec Corporation v. illinois EPA,

PCB No. 03-95, slip

opinion

at

I

-

2

(February 20, 2003).

11

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of

resources,

it is doubtful that the illinois EPA would have articulated weightyconcerns,

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.8

In the wake of this discovery, the illinois EPA

is now compelled to observe that the Board’s

earlier decisions

affording blanket stays to

CAAPP

permits

arguably fell short ofexploring

all

oftherelevant

considerations

necessary

to the analysis.

Accordingly, the illinois EPAurges the Board to

reflect

upon

additional factors that havenot previously

been addressed

to date?

iii.

Statutory

objectives

ofCAAPP and common attributes of permit

appeals

As discussed earlier in this

Motion,

the Illinois

CAAPP

commands the Illinois

EPAto incorporate conditions

into a

CAAPP permit

that

address requirements

concerning the “severability” ofpermit 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 severabilityprovision is prominently displayed in the

Standard

Permit

Conditions ofthe Petitioner’s

CAAPP permit.

See,

Standard Permit Condition

9.13.

It

should also be noted that the language

from

the Act’s

CAAPP program mirrors the

Jim

Ross, a

fonner Unit

Manager

for the CAMP 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

CAMP permit appeal proceedings

before the

Board.

This initial

inquiry led

to

further

discussion

between USEPA/Region

V

representatives

and the

Illinois EPA regarding

the

impact

ofsuch stays on the severability requirements

for CAAP? permits

set forth in40 C.F.R.

Part

70

and the Illinois CAMP.

(See, Supporting Affidavit ofJim Ross attached to this Motion).

It is noted that

the Board’s prior

rulings

regarding blanket stays

of CAAPP permits havebeen

granted

contingent upon the

Board’s final

action in the appeal or

“until the Board ordersotherwise.”

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provision promulgated by USEPA in its

regulations

implementing

Title V ofthe

CAA.

See,

40 C.P.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” ofthe

ostensibly

larger body of

permitting requirements

that are

not being challenged on

appeal.

The

use

ofthe word

“various” in describing those conditions that are severable is especiallyimportant when

compared

with

the later reference in the same sentence to “any portions” of the permit

that are contested.

Because the

commonly understood meaning

ofthe 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

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 of

ambiguity

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

directly

binding on the Board.

However, while the

illinois EPA’s mandate under Section 39.5(7)(i) of the Act’s CAMP 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

tO

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.

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ofsome

segment

of the CAAPP permit during the appeal process.

This legislative goal

cannotbe achieved ifblanket stays are the convention.

Where the obvious intentionof

lawmakers

could be

thwarted, reviewing courts must construe a statute in a mannerthat

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 (III.

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.

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 at page 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 severability requirement ofthe Part 70 regulations,

which

formed the

regulatory basis for Section

39.5(7)(i) of

the Illinois CAAPP, canbe

seen as an extension

ofthis endeavor.

Blanket stays of CAMP permits could arguably lessen the

opportunities for citizen enforcement in

an area that

is teeming with broad public interest.

Moreover, the cumulative effect of stays sought

by Petitioner

and othercoal-fired

CAAPP permittees in

other

appeals would cast a wide net.

Blanket stays ofthese

recently-issued CAMP

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 AirAct 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

Onelast consideration in this analysis is the deliberate, if not time-consuming,

pace ofpermit appeals in general.

From past experience, the Illinois

EPAhas observed

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

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

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

Alternatively,

these cases may entail some other kind of contingencynecessitating

additional permit review, a new permit application and/orobtaining

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 CAMP permit appeals

filed with the Board to date could be aptly described as “protective appeals.”

While a

handful of

cases

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 of

their

related

enforcement orpermitting developments.

As the Illinois EPA is often an obligatory

participant in many ofthese types of cases, this argument is not meant to condemn the

practice.

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

in its entiretywill 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 appear to desire their “dayin court” strikes the Illinois EPAas 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 ofthe effectiveness ofthe CAAPP permit in

its entirety.

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

ofthe CA.APP permit’s contested conditions and urges the Board to order the same.

Respectfully submitted by,

ILLINOIS ENViRONMENTAL

PROTECTION AGENCY,

Robb H. Layman

Assistant Counsel

Dated: November 18, 2005

flhinois Environmental Protection Agency

1021

North Grand Avenue East

P.O. Box

19276

Springfield, Illinois 62794-9276

(217) 524-9137

16

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STATE OF

ILLINOIS

COtJNI’Y 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 sameto beirue:

1.

I ara.curre~it1yen!p1oyed

by the Illinois Environmental Protection Agency

(“Illinois EPA~)

as aSenior

Pijblié Sersédministrator

professional engineer.

During

the early part of~004,

I was theManager ofthe Clean Air Act Permit Progranr.

(“CAMP”) Unit in the DivisionofAir Pollution Control’s Permit Section, whose offices

are located at

1021

NorthGrand 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•Region V in Chicago, illinois, involving various j,ending CA.APP permit

applications and issues pertaining to the administration ofthe CAAPP program.

By

virtue ofmy involvement

in the CAMP 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 appealsbefóte 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

severability

requirements of40

C.F.R. Part 70 and the

Illinois CAAPP.

3.

1 have read the Motion prepared by the Illinois EPA’s

attorneys relating

to

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this matter and, further,

find that the facts set forth in

said responses and answers are true,

responsive and complete to the best ofmy

knowledge

and

belief.

Subscribed

and Sworn

To Before Me this J~Day ofNovember 2005

;

OFFICiAl.

SEAL.

+

t

BRENDA BOENPIER

t

N3TMYPLaC,STATEOff

lujaS

t

wcOsac$sIONEWflSt142O

sayeth not

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CERTIFICATE OF SERVICE

I hereby certify

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 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 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

Robb H. Layman

(J

Assistant Counsel