ELECTRONIC

FILING,

RECEIVED, CLERKS

OFFICE,

NOVEMBER 18, 2005

BEFORE

THE ILLINOIS POLLUTION

CONTROL BOARD

OF THE STATE OF ILLINOIS

AMEREN

ENERGY

)

GENERATING COMPANY,

)

EDWARDS

POWER STATION

)

)

Petitioner,

)

).

PCB No. 2006-067

v.

)

(CAAPP Pennit Appeal)

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent

)

NOTICE

To:

Dorothy On,

Clerk

James T.

Harrington

Illinois Pollution Control Board

David L.

Rieser

100 WestRandolph Street

McGuireWoods, LLP

Suite 11-500

77 West Wacker, Suite 4100

Chicago, illinois

60601

Chicago, illinois 60601

BradleyP. Halloran

Hearing Officer

James R. Thompson Center,

Suite

11-500

100 WestRandolph Street

Chicago, illinois

60601

PLEASE TAXENOTICE that Ihavetoday 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 of which 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, CLERK’S OFFICE,

NOVEMBER18, 2005

BEFORE THE

ILLINOIS POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

AMEREN ENERGY

)

GENERATING COMPANY,

)

EDWARDS POWER STATION

)

)

Petitioner,

)

)

PCB No. 2006-067

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.

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, CLERK’S OFFICE, NOVEMBER 18, 2005

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OF TUE STATE OF ILLINOIS

AMEREN ENERGY

)

GENERATING COMPANY,

)

EDWARDS POWER STATION

)

)

Petitioner,

)~

)

PCB No. 2006-067

)

(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 CGter

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, CLERKS OFFICE,

NOVEMBER 18, 2005

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OF

THE

STATE OF ILLINOIS

AISIEREN ENERGY

)

GENERATING COMPANY,

)

EDWARDS POWER STATION

)

)

Petitioner,

)

)

PCB No. 2006-067

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,

AMEREN ENERGY GENERATING COMPANY (hereinafter “Ameren 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 CA.APP provisions ofthe

Illinois Environmental Protection Act (hereinafter “Act”),

415 ILCS 5/39.5(2004),

the

fllinois EPA issued a CAAPP permit to Aineren Energy Generation on September 29,

2005.

The permit authorized the operation of an electrical power generation &cility

known as the Edwards Power Station.

The facility is located at 7800 South CILCO Lane

in Bartonville, Illinois.

1

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ELECTRONIC FILING,

RECEIVED, CLERKS OFFICE,

NOVEMBER

18, 2005

On November 3, 2005, attorneys for the Petitioner filed this appeal (hereinafter

“Petition”) with theBoard challenging certainpermit conditions contained within the

CAAPP

permit issued by the illinois EPA..

The Illinois EPA received an electronic

version of the appeal on the same date.

Fornial notice ofthe appeal was served upon the

Illinois EPA on November 4,

2005.

As part of its Petition, Ameren Energy Generation 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 fo the automatic stay

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

5 ILCS 100/10-

65(b,fl’2004).

As an alternative basis for a blanket stayof the CAAPP permit, Petitioner

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

Finally, Petitioner seeks a stay ofthe contested conditions ofthe CA.APP 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,

35 Iii. Adm.

Code101.500(d).

ARGUMENT

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

effectiveness ofthe entire CAAPPpermit.

For reasons that are explained in detail below,

Petitioner cannot avail itselfofthe 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 CAAPP permit under its

discretionary stay authority.

The Illinois EPAsupports the Petitioner’s limited stay of

2

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ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE, NOVEMBER 18, 2005

the CA.APP 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 Petitioner maintains that the CAAPP permit in this

proceeding is subject to the automatic stay provisionofthe 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 of a

continuing nature.”

See, 5 ILCS 100/i0-65(b).

The CAAPP permit at issue in this

proceeding governs emissions-related activities at an existing, major stationary source in

Illinois.

Accordingly, the illinois EPA does not dispute that the CAAPP permit is

synonymous with a license that is of a continuing nature.

See also,

5 JLCS 100/1-35

(2004)(defining “license” as the “whole or partof any agencypermit... required by

law”).

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

effectiveness ofthe CAAPP permit until

after theBoard 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 theduration ofthepending appeal because it is theBoard, not the illinois

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

See,

Borg- Warner

Corporation

v. Mauzy,

427 N.E.2d 415, 56111. Dec.

335

(3fh

Dist.

1981).

The stay

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

of“the existing license which

shall continue in lull force and effect.”

See. S 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, CLERK’S OFFICE,

NOVEMBER 18, 2005

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

EPA’s original receipt of thepermit application.

See,

415 ILCS5/39.5(4)(b)(2004).

The

Borg- Warner

decision upheld the APA’s automatic stay provision in the

context of a renew4 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 of the

administrativeprocess before the administrative agencies with decision making

power, will not be

forthcoming in the instant

case until the PCB rules on the

permit application.”

Borg-Warner,

56

Ill. Dec.

at 341.

The illinois EPA concedes that the

Borg-Warner

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

application ofthe doctrine of

stare decisis

by Illinois courts.

Moreover, the illinois EPA

observes that the ruling is apparently in perfect harmony with other subsequent decisions

by Illinois courts that addressed the

respective

roles ofthe Illinois EPA and the Board in

permitting matters under the Act.

In this regard, theIllinois EPA is fully cognizant ofthe

“administrative continuum” that exists

with

respect to the Board in most permitting

matters, and the CAAPP program itself does not reveal the General Assembly’s

intentions to change

this administrative arrangement.

See, illinois EPA v. Illinois

Pollution

ConIra! Board,

486 NE2d 293, 294

(3” Dist.

1985),

affirmed,

Illinois EPA v.

Illinois Pollution

Control Board,

503

NE2d

343,345(111.

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

CAAPP

permit should issue that ultimately

determines when the permit becomes

final.

In limited

situations,

it

is

possible

that a thcility’s

operation

during the

pending

review of the

CAAPP

permit application was also authorized in a State construction permit

4

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ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE,

NOVEMBER

18, 2005

While the

Borg-

Warner

opinion

may

offer

some

interesting

reading,

it does not

provide a proper precedent

in this case.

This conclusioncan be arrived because the MA

simpiy does not apply to these CAAPP permit appeal proceedings.

Forone reason, the

APA’svarious provisions should not apply where the General Assembly has effectively

exempted them from a particular statutory scheme.

One exampleofthis 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 thepermit severabilityrequirements that govern the illinois

EPA’s issuance of’CAAPP permits.

Section 39.5(7) ofthe Illinois

CASk??

sets forth

requirements

governing the

permit content for every

CAAPP

permit issued by the illinois EPA.

Seegenerally, 415

ILCS5/39.5(7)(2004).

Section 39.S(7)(i) oftheAct provides that:

“Each CAAPP permit

issued under subsection

10 of this Section shall include

a

severabilityclause to ensure the continued validity ofthe various permit

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

415 JLCS 5/39.5(7)(‘Q(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 pennitting action that extends

beyond

thescope of thepermit’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 CAAPP permit shall retain a “continued validity,” lawmakers clearly

proscribed that the uncontested conditions ofa CA.APP permit must continue to survive

notwithstanding a challenge to thepermit’s

other

terms.

This language signifies an

5

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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 thepermit appeal process.

For this reason, theautomatic stay

provision ofthe .AYA 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 CAAPP permitting process.

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

administrativeagency 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 fonnal

creation.

Because the permitting scheme established by the Act contemplated appeals to

the Board, procedural rules were created in those early years to

guide the Board in its

deliberations.

Similar to the current Board procedures for permitting disputes, the earlier

rules referenced the Board’s enforcement procedures in providing specific requirements

for the permit

appeal process.

They were then, as they are today, contested case

requirements by virtue oftheir very nature.

The earliest version 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 of State’s office as ‘Procedural Rules.”

Those rules included requirements for

permit

appeals, effective through February

14,

1974, and they required such proceedings

6

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ELECTRONIC

FILING, RECEIVED,

CLERK’S OFFICE,

NOVEMBER

18, 2005

to be conducted according to the Board’s Part Ill rules pertaining to enforcement.

See,

Rule 502.

In contrast to the Regulatory and Nonadjudicative Hearings and Proceedings,

the Enforcement Proceedings ofPart

m

contained a plethora ofcontested

case

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

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

Rule 313), conduct ofthe hearing (Rule 318), presentation ofevidence (i.e., Rule 321),

examination ofwitnesses (i.e., Rules 324,

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

322).

A later version ofthese rules, including amendments, was adopted by the Board

on August 29,

1974.

The “Procedural Rules” that originally guided the Board in

enforcement cases and

permit appeals formed the basic framework for the current-day version ofthe Board’s

procedural regulations promulgated at 35

111. Adm. Code 101-130.

Although theBoard’s

procedural rules. mayhave evolved and expanded over time, the core features ofthe

adversarial

process governing these cases haveremained 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 front the APA’s contested case requirements.

And so long as those

underlyingprocedures 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 oddswith this argument and that part

of

the

appellate

court’s ruling held that the AlA’s grandThthering clause didnot apply to the Board’s rules for the

NPDES

permit

program.

The

court’s discussion

on

the

issue of

the

grand~theñng

clause is inapposite here.

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

7

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ELECTRONIC

FILING, RECEIVED, CLERK’S

OFFICE,

NOVEMBER

18, 2005

II.

The CAAPP permit

issued

by

the

Illinois EPA should not

be

stayed in

its entirety by reason ofPetitioner’s alleged justifications.

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

alternativebasis for granting a blanket stay ofthe

CAAPP

permit.

Specifically,

Petitioner suggests that theBoard stay the entire

CAAPP

permit as part of its

discretionary stay authority.

See, Petition at pages 4-5.

While the reasons put forward

by

Petitioner suffice to justifya stay ofthe

CAA.PP

permit’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 CA.APP permits

as incongruous with the

aims of the Illinois CAAPP and needlessly over-protective in light ofattributes common

to these appeals.

Section

105.304(b) of Title 35 ofthe 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 ofan adequate legal remedy and a

Whenthe event actually took place, the effectiveness of the rules occurred

after

the July I, 1977, date

established

in the grandfatheringclause.

More importantly,

in addressingan issue

that

was not central to

the appeal, the appellate court

appears

to have 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 proper construction ofthe AM

demands

that the

focus

be placed on the

existing procedures “specifically for contested cases

or licensing.”

S ILCS 100/1-5 (a)(2004).

8

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ELECTRONIC

FILING, RECEIVED,

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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 of

Morris

v. Illinois EPA,

PCB

No.01-48 and

01-

49 (consolidated) atpage

5 (October 19, 2000), citing

Junkunc

v. 3.1

Advanced

Technology & Manufacturing.

498 N.E.2d 1179

(15t

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 eyetoward 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), orthe effectual loss of

appeal rights prior to a final legal determination.

Bridgestone/Firestone

atpage 3.

The

Board has also afforded special attention to the “likelihood of environmental harm” for

any stay that maybe

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 oftraditional factors

Petitioner’s Motion touches, albeit sketchily, on some ofthe relevant factors in

this analysis.

See, Petition at pages 4-5.

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 CAAPP pcrmit until after it

is provided its proverbial “day in court.”

Petitioner’s right of appeal likewise should not

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

9

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ELECTRONIC

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16, 2005

required to comply with those terms ofthe permit that are deemed objectionable.

The

Illinois EPA recognizes these reasons as a legitimate basis forauthorizing a stay of

permit conditions contested on appeal.

However, they are not at all

instructive to

Petitioner’s claimthat 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 majorityof the 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

ofappeal.

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

uncontested pennit conditions would cause irreparable harm, especially ifone can

assume,

as here, that the crux ofCAMP permitting requirements were carried over from

previously-existing State operating permits.3

The Illinois

EPA does not dispute that

the

Clean

Air

Act’s (“CAA”)

Title V program, which formed the

framework for the Illinois CAAPP, requires

only a marshalling of

pre-existing

“applicable

requirements”

into a single

operating

permit for a

major source and that it does

not

generally authorize new substantive

requirements.

See,

Appalachian

Power 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

imposed by

the

Illinois

EPA for periodic

monitoring

and

other miscellaneous

matters,

the

remainder

of

the CAAPP

permit

should be comprised

of

the

pre-existing requirements that were

previously

permitted.

A

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

CAAPP permit.

10

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ELECTRONIC

FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER

18, 2005

ii.

Significance

ofprior Board rulings

The

Board

has granted numerous stays in past and pending

CAAPP

permit

proceedings.

For the most part, the extent of the 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 withoutmuch

substantive discussion.4

Curiously,

all

excepting one ofthe prior cases involving blanket stays were brought by petitioning

parties represented by the sante law firm.

In otherCAMP appeal cases, the Board

granted stays for the contested permit conditions, again mirroring therelief 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 optednot to pursue such relief.6

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

participate

in the stay motions sought before theBoard

due to the perennially-occurring

press ofother matters.7

In doing so, the Illinois EPA clearlywaived any rights to voice

objections to

the stays sought and obtained in those cases.

Even in theabsence 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,

PCB

No. 03-98, slip opinion at

1-2 (February 6, 2003);

Saint-Go

ham

Containers,

Inc.,

it.

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,

PCB

No. 04-108,

slip

opinionat

1

(January

22,

2004);

Ethyl

Petroleum Additives, Inc.,

it.

illinois EPA,

slip opinion

at

1

(February

5,

2004);

Board of

Trustees

of

Eastern Illinois

University

it.

Illinois EPA,

PCB No. 04-110, slip

opinion at

1

(February

5,

2004).

Se~Bridgestone/Firestone Offroad Tire

Company

it.

Illinois EPA,

PCR 02-31

at page

3 (November

1,

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.,

it.

Illinois

EPA,

?CB 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).

6

See,

XCTC

Limited

Partnership,

it.

Illinois EPA,

PCB No. 01-46,

consolidated with Georgia-Pac~ic

Tissue, L.L. C.,

it.

Illinois EPA,

PCB

No. 01-51;

General Electric Company

it.

Illinois EPA,

ICR 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 CAAPP

permit.

See, Abitec Corporation

it.

illinois EPA,

PCB No. 03-95, slip opinion at

1-

2

(February 20, 2003).

11

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ofresources, it is

doubtful

that the illinois EPA

would

have articulated

weighty

concerns,

as presently argued, with respect to the stay relief requested in earlier cases.

However,

following the Board’s last occasion to act on

a blanket stay request in

a CAAPP permit

appeal, Illinois EPAofficials became aware ofthe potential implications posed by stays

on the existing Title V program approval.8

In thewake ofthis discovery, the illinois EPA

is now compelled to observe that the Board’s earlierdecisions 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 reflect upon

additional factors that have not previously been addressed to date.9

iii.

Statutory objectives of CAAPP and common attributes ofpermit

appeals

As discussed earlier in this Motion, the illinois CAAPP commands the fllinois

EPA to incorporate conditions into a CAMP

permit that address requirements

concerning the “severability” of permit conditions.

See,

415 ILCS 5/39.5(7) (1)(2004).

To

this end, every CAAPP permit is required to contain

a permit

condition severingthose

conditions challenged in

a subsequent permit appeal from the otherpermit conditions in

the permit.

The severability provision is prominently displayed in the Standard Permit

Conditions ofthe Petitioner’s CA.APP 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

former Unit Manager

for the CAAPP Unit of the 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 ofthe

stays obtained

in CAAPP permit appeal proceedings before the Board.

This

initial

inquiry

led

to further

discussion between

USEPA/Region V representativesand the Illinois EPA regarding

the

impact ofsuch stays

on the severability requirements

for

CAAPP

permits

set forth in

40 C.F.R.

Part

70

and the

Illinois

CAAPP.

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

~

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 ordersotherwise.”

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provision promulgatedby USEPA in its regulations implementing Title V ofthe CAA.

See,

40 C.F.R. §70.6(a)(5)(July

1, 2005 edition).

As is evident

from

the statutory language, the obvious legislative intent for this

CAMP

provision is to “ensure the continued validity” of the ostensibly largerbody of

permitting

requirements that are not being challenged on appeal.

The use oftheword

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

compared with the later

reference in

the same

sentence to

“anyportions” of the permit

that are contested.

Because thecommonly 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 ofthe 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 arenot

directly binding on the Board.

However, whilethe

fllinois EPA’s mandate

under

Section 39.5(7)(i) of the 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 CAMP appeals.’°Implicit

in the

statutory

language

is an unmistakable expression aimed at

preserving

the validity

and effectiveness

‘°

Any auth

restriction may

not be

absolute,

as

the Act’s

permit content requirement does

not

necessarily

rule out the potential merits ofa blanket stay where a

permit

is challenged in

its

entirety.

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of some segment ofthe CAAPP permit during the appeal process.

This

legislative

goal

cannotbe achieved ifblanket stays arethe

convention.

Where the obvious intention of

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

a manner that

effectuates its object and purpose.

See, F.D.LC.

v. Ni/user,

799 F.Supp. 904 (CD. fli.

1992);

Castaneda

v. illinois Human Rights Commission,

547 N.E.2d 437 (fll.

1989).

In

this instance, the Board should recognize an inherent limitation ofits

stay authority by

virtueof the Illinois CAAPP’s severability provision.

At the vçry least, the existence of

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

CAAPP

permit appeals.

Petitioner asserts that

a furtherdelay in the effectiveness ofthe

CAAPP

permit

would not prejudice the Illinois EPA or thepublic at large.

See.

Petition at page 4.

It is

noteworthy that

one ofthe chiefgoals ofthe CANs TitleV program is to promote public

participation,

including the use ofcitizen suits to

facilitate compliance through

nf’

The severability requirement

of

the Part 70 regulations, which fonned the

regulatory basis for Section 39.5(7)(i) ofthe Illinois CAAPP, can be seen as an

extension

ofthis endeavor.

Blanket stays ofCAMP permits could arguablylessen the

opportunities for citizen enforcement in an area that is teeming with broad public interest.

Moreover, the cumulative effect ofstays sought by Petitioner and other coal-fired

CAAPP permittees in otherappeals would cast a wide net.

Blanket stays ofthese

recently-issued 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 Pmgram: 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 thepublic 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 EPAhas observed

that manypermit

appeals are ofa typethat could more aptly be described is

“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 ofcontingency necessitating

additional permit review, a new permit application and/or obtaining a revised permit from

the illinois EPA.

Only rarely does a permit appeal actually proceed to hearing.

Based on the Illinois EPA’s estimation, nearly all ofthe CAAPP 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 willremain, 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 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 spite

of

bearingno 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.

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CONCLUSION

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

Petitioner’s request for a stayofthe effectiveness ofthe

CAAPP permit

in its entirety.

However, the Illinois

EPA supports the Petitioner’s request for a stayofthe effectiveness

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

Respectfullysubmitted by,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

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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STATE OF ILLINOIS

COUNTY OF SANGAMON

AFFIDAVIT

I, Jim Ross, being first duly sworn, depose and state that the followingstatements

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

therein stated to on

information and

belief

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

the same to be true:

1.

I anicurrently employed by the Illinois Environmental Protection Agency

(“Illinois EPA”) as aSenior Public Serv ëe.Administrator professional engineer.

During

the early part of~004,

I wasthe Manager ofthe Clean Mr Act Permit Program

C’CAAPP”) Unit

in the Division ofAir Pollution Control’s Permit Section, whose offices

are

located at

1021 North Grand Avenue East, Springfield, Illinois.

I have been

employed with the illinois EPA since May 1988.

2.

As part ofmy job responsibilities, I participated in frequent teleconference

calls with representatives from~

the United States Environmental Protection Agency

(IJSEPA’) at Region V in Chicago, Illinois, involving various ~endthg CA.APP permit

applications and issues pertaining to

the administration ofthe CAAPP program.

By

virtue ofmy involvement in the CAAPP permit review process, I am familiarwith

communications between USEPA/Region V and

the Illinois EPA in March of 2004

concerning an issue relatingto stays obtained in CAAPP permit appeals before the

Illinois Pollution Control Board.

The issue was initially raised by a representative from

USEPA/Region V. who expressed concern about the impact ofsuch stays upon thi~~

severability requirements of40 C.F.R. Part 70 and

the illinois CA.APP.

3.

1 have read theMotion prepared

by

the flhinois EPA’s attorneys relating to

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18, 2005

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 .L~DayofNovember 2005

~6e~AJ?$JC

OFFICIAL.

SEAL

:

±BRENDA BOEHNER

:

~

?CTPRY PWUC. STATE Of

IuJNols:

t.

V(CO~lAlSSIOi~

EWflS tl4’2O~

s+G~~44.++4.4444.t44#**+te+tttb

—

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18, 2005

CERTIFICATE OF SERVICE

I

hereby certify that on the

18th

day ofNovember

2005, I

did send, by electronic

mail with prior approval, the following instruments entitled APPEARANCES,

MOTION IN PARTIAL OPPOSITION TO,

AND IN PARTIAL

SUPPORT OF,

PETITIONER’S REQUEST

FOR STAY and AFFIDAVIT to:

DorothyGunn, 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 thepossession ofthe United States Postal

Service, to:

Bradley P. Halloran

James

T.

Harrington

Hearing Officer

David

L. Rieser

James

R. Thompson Center

McGuircWoods, LLP

Suite

11-500

77 West Wacker,

Suite 4100

100 West Randolph Street

Chicago, Illinois

60601

Chicago, Illinois

60601

RobbH.

Layman

-

Assistant Counsel