ELECTRONIC FILING,

RECEIVED, CLERKS OFFICE,

NOVEMBER 18, 2005

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OF TIlE STATE

OF ILLINOIS

AMER.EN

ENERGY

)

GENERATING COMPANY,

)

MEREDOSIA POWER STATION

)

)

Petitioner,

)

)

PCB No. 2006-069

V.

)

(CAAPP Permit Appeal)

)

ILLINOIS

ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

)

NOTICE

To:

Dorothy Gunn,

Clerk

James T. Hanington

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. Halloran

Hearing Officer

James

R. Thompson Center,

Suite 11-500

100 West Randolph Street

Chicago,

flhinois

60601

PLEASE TAKE NOTICE that I have today electronically filed with the Office of

the Clerk ofthe Illinois Pollution Control

Board theAPPEARANCES, MOTION IN

PARTIAL OPPOSITIONTO, AND

PARTIAL SUPPORT OF, PETITIONER’S

REQUEST

FOR

STAY and AFFIDAVIT ofthe

Respondent;

illinois

Environmental

Protection

Agency, a copy of

which

is

herewith sewed upon the

assigned Hearing Officer

and the attorneys for the Petitioner.

Respectfully submitted by,

7~~ow4s~

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 THE STATE OF ILLINOIS

AMEREN ENERGY

)

GENERATING COMPANY,

)

MEREDOSIAPOWER STATION

)

)

Petitioner,

)

)

PCB No. 2006-069

v.

)

(CAAPP Permit Appeal)

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

)

APPEARANCE

NOW

COMES Robb

H. Layman and enters his appearance on behalfofthe

Respondent, ILLINOIS

ENVIRONMENTAL PROTECTION AGENCY, as one ofits

attorneys in the above-captioned mailer.

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

AMEREN ENERGY

)

GENERATING COMPANY,

)

MEREDOSIA POWER

STATION

)

)

Petitioner,

)

)

PCB No. 2006-069

)

(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, CLERK’S OFFICE,

NOVEMBER 18, 2005

BEFORE TUE ILLINOIS POLLUTION CONTROL BOARD

OF

THE

STATE OF ILLINOIS

AIS4EREN ENERGY

)

GENERATING COMPANY,

)

MEREDOSIA POWER STATION

).

)

Petitioner,

)

)

PCB No. 2006-069

v.

)

(CAAPP Permit Appeal)

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

)

MOTION IN

PARTIAL

OPPOSITION TO,

AND

PARTIAL

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 of the Clean Air Act

Permit Program

(“CAAPP”) permit issued

in the above-captioned matter.

INTRODUCTION

Acting in accordancewith its authority under the CAAPP provisions ofthe

fllinois Environmental Protection Act (hereinafter “Act”),

415 ILCS 5/39.5(2004),

the

Illinois EPA issued a CAAYP permit to Ameren Energy Generation

on

September 29,

2005.

The permit authorized the operation ofan electrical power generation facility

known as the Meredosia Power Station.

The facility is located at 800 South Washington

Street in Meredosia,

Illinois.

1

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ELECTRONIC FILING,

RECEIVED, CLERK’S OFFICE, NOVEMBER

18, 2005

OnNovember 3,

2005, attorneys for thePetitioner filed this appeal (hereinafter

‘Petition”) with

the Board challengingcertain permit conditions contained within the

CAAPP permit issued by the illinois EPA.

The illinois EPA received an electronic

version ofthe appeal on the same date.

Formal notice ofthe appeal was served upon the

illinois EPA on November 4, 2005.

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

effectiveness of the 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”),

5 ILCS 100/10-

65(29(2004).

As an alternative basis for a blanket stayofthe 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 CAAPP permit in the

event that the Board denies its

request fora 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.

Forreasons that

are explained in detail below,

Petitioner cannot avail itself oftheprotections

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

discretionarystay authority.

The Illinois EPA supports the Petitioner’s limited

stay of

2

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ELECTRONIC FILING,

RECEIVED, CLERK’S 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 ofthe 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 CA.APP 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 ofa continuing nature.

See also,

5 ILCS 100/1 -35

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

law”).

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

effectiveness of the 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 ofthe pending 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

(3~”

Dist.

1981).

The stay

provision would

also apparently ensure that the Petitioner continues to abide by theterms

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

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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 fllinois

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 fora 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 andbinding 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 reflect good law and that it probably warrants, in the appropriate case,

application of the doctrine of

stare decisis

by Illinois courts.

Moreover, the illinois EPA

observes that theruling is apparentlyin perfect harmony with other subsequent decisions

by illinois courts that addressed the respective roles ofthe illinois

EPA and the Board in

permitting matters under the Act.

In this regard, the fllinois 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 arangement.

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.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 of the

CAAPP

pennit

application was also

authorized

ina 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 APA

simply does not apply to these CAAPP permit appeal proceedings.

For one reason, the

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

exempted them from a particular statutory scheme.

One example ofthis exercise of

legislative discretion is foundwith administrative citations, which

under Section

31.1 of

the Act

are not subjectto the contested case provisions ofthe APA.

See. 415 ILCS

5/31.1(e)(2004).

In the case ofthe Act’s CAAPP provisions, a similar basis for

exemption is 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

ILCS5/39.5(7)(2004).

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

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

severability clause to ensure the continued validity ofthe various permit

requirements in the event ofa challenge to

any portions of the permit.”

415 ILCS 5/39. 5(7)(i)(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 of the 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 theuncontested conditions of a CAAPP permit must continue to survive

notwithstanding a challengeto thepermit’s other terms.

This language signifies an

5

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ELECTRONIC FILING,

RECEIVEO,

CLERKS OFFICE,

NOVEMBER

18, 2005

unambiguous intent to exempt some segment of the CAAPPpermit from any kind

of

protective stay during the pennit appeal process.

For this reason, the automatic stay

provision ofthe APA cannot be said to govern CAAPP permits issued pursuant to the

Act.

TheBoard

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

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 the Board in its

deliberations.

Similar to the current Board proceduresfor 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 theyrequired such proceedings

6

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ELECTRONIC

FILING,

RECEIVED, CLERKS

OFFICE,

NOVEMBER

18, 2005

to be conducted

according to theBoard’s Part Ill rules pertaining to enforcement.

See.

Rule 502.

In contrast to theRegulatory and Nonadjudicative Hearings and Proceedings,

the Enforcement Proceedings ofPart

III contained a plethora of contested 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 of the 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 oftheBoard’s

procedural regulations promulgated at 35 Iii. Adm.

Code

101-130.

Althoughthe Board’s

procedural mIS may have evolved and expanded over time, the core features of the

adversarial process governing these cases haveremained 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 case requirements.

And so long as those

underlying procedures historically satisfied the grandfathering clause,

it should not matter

that the Act’s CAAPP program was enacted some twenty years later,

After all, it is the

procedures applicable to contested cases and their point oforigin that is relevant to this

analysis, not the advent ofthe permitting program itself.2

Petitioner may counter

that

the

Borg-

Warner

decIsion is at

odds

with this argument and that

part

M-tk

appellate court’s rulingheld

that the APA’s

grandfathering

clausedid not apply to the Board’s rules for the

NPDES permit

program.

The court’s discussion on the

issue of the grandMhering

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

H.

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 of the CAAPP pennit.

Specifically,

Petitionersuggests that the Board stay the entire CAAPP pennit as part of its

discretionary stay authority.

See, Petition atpages 4-5.

While the reasons put forward

by Petitioner suffice to justii~’

a stay ofthe CAAPP permit’s contested conditions,

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

Even ifthe

Petitioner could muster more persuasive arguments on this issue, the flhinois EPA

questions whether

such an all-encompassing remedy is appropriate under any

circumstances.

Notwithstanding the Board’s recent practice in other CAA.PP appeals, the

Illinois EPA has come to regard blanket

stays of CAAPP permits as incongruous with the

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

to these

appeals.

Section

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

a petition for review of a CAAPP permit may include a request for stay.

TheBoard has

frequently granted stays in pcnnit 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 ascertainableright 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 ofthe rules

occurred

after the July

1,

1977, date

established in the grandfatheTing clause.

More importantly,

in

addressing an issue that

was

not

central to

the

appeal, the appellate

court appears tohave erroneously placed too much emphasis on the substantive

permitting

procedures of the NPDES

program,

rather than those

procedures applicable to the Board’s

contested case hearings.

A proper

construction

ofthe

APA

demands

that the

focus

be placed on the

existing procedures “specifically for contested cases or licensing.”

5 JLCS 100/1-5

(a)

(2004).

8

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ELECTRONIC FILING,

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18, 2005

probability of success on the merits ofthe controversy.

See,

Bridgestone/Firestone

road Tire Companyv. illinois EPA,

PCB 02-3 1

atpage 3 (November 1,2001);

Community Landfill Company and City ofMorris

v, illinois EPA.

PCB No. 01-48

and

49 (consolidated) at page 5 (October

19, 2000), citing

Junlwnc

t’.

Si

Advanced

Technology & Manufacturing.

498 N.E.2d 1179

(Vt

Dist. 1986).

However, theBoard has

noted that

its consideration is not confined exclusively to those

factors nor must each one

of those factors be considered by the Board in everycase.

See, Bridgestone/Firestone

at

page 3.

The Board has commonly evaluated stay requests with an eyetoward

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 maybe granted.

See,

Bridgestone/Firestone

at page 3;

Abitec

Ceirporation

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 of

the 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 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

01-

9

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ELECTRONIC FILING,

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required to comply with those terms ofthepermit that are deemed objectionable.

The

illinois EPA recognizes thesereasons as a legitimate basis for authorizing 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 ofthePetition, Petitioner has challenged a relatively

small number of the 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 majorityofthe permit’s terms areuncontested, it cannot logically follow that the

absence of a stay for those conditions willprevent the Petitioner from exercisinga right

of appeal.

Similarly, it is difficult to discern whyPetitioner’s compliance with

uncontested permit conditions would cause irreparableharm, especially if one can

assume, as here, that the crux ofCAAPP pennitting requirements were carried over from

previously-existing State operating pennits.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

ofpre-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

i’.

illinois EPA,

208

F.3d

1015, 1026-1027 (DE_C.irwit.

2000);

Ohio Public

Interest

Research Group

v.

Whitman,

386 F.3d 792, 794(6”

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

for

periodic

monitoring

and other

miscellaneous matters,

the

remainder of the CAAPP permit should be comprisedof the pre-existing

requirements that were

previously

permitted.

A

casual

comparison

ofthe

CAAP? permit and the Petition suggests that the present

appeal

only calls into question a relatively small fraction of

permit

conditions contained

in

the overall

CAAPP permit.

10

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ELECTRONIC FILING,

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ii.

Significance ofprior Board

rulings

The

Board has granted

numerous

stays in past and pending CAAPP permit

proceedings.

For the most part, the extent ofthe relief granted has been a function ofthe

relief sought by the petitioning party.

In several cases, theBoard 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 bythe same law

firm.

In other CAAPP appeal cases, theBoard

granted

stays for the contested permit conditions,

again mirroring the reliefsought 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 of the afore-referenced cases, the Illinois EPAdid not actively

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

press ofothermatters.7

In doing so, the Illinois EPA clearly

waived any rights

to voice

objections to the stays sought

and

obtained in those cases.

Even in the absence ofa lack

See,

Lone

Star Industries,

Inc., v.

Illinois

EPA,

PCB No. 03-94, slip opinion at 2, (Januazy

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

I

(January 8, 2004);;

Midwest Generation,

L.L.C.,

v.

Illinois

EPA,

PCB No. 04-108, slip opinion

at

I

(January 22,2004);

Ethyl

Petroleum

Additives, Inc..

v.

Illinois EPA,

s11p opinion at

I

(February 5, 2004);

Board of Trustees

of

Eastern

lllinois

University

v.

Illinois EPA,

PCB

No.

04-110, slip opinion at

1

(February 5, 2004).

$

See, Bridgestone/FirestoneOff-road Tire Company v. Illinois

4,

PCE

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 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).

‘

See, XCTC Limited Partnership,

it.

Illinois

EPA,

PCB No. 01-46,

consolidated with Georgia-Pac(JIc

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 of a stay request seeking protection for contested

conditions

ofa

CAAPP permit.

See,

Abitec Corporation

it.

Illinois EPA,

PCBNo. 03-95, slip opinion at

1-

2

(February

20, 2003).

Ii

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18, 2005

of resources, it is

doubtful

that

the fllinois EPA would have

articulated

weighty concerns,

as

presently argued,

with

respect

to the stay

relief

requested

in

earlier

cases.

However,

following the

Board’s

last

occasion

to

act

on

a

blanket

stay request in a

CAAPP permit

appeal,

Illinois EPA officials became aware ofthe potential implications posed by stays

on the existing Title V

program approval.8

In

the

wake

of

this 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 of

the

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 of permit

appeals

As

discussed earlier in this Motion, the Illinois CAAPP commands the Illinois

EPA to incorporate conditions into a CAAPP permit that address requirements

concerning the “severability” of permit conditions.

See, 415 JLCS 5/39.5(7)(i)(2004).

To

this end, every CAAPP permit is requiredto

contain a permit condition severing those

conditions challenged in

a subsequent permit appeal

from

the otherpermit conditions in

thepermit.

The severability provision 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 former Unit Manager for the CAMP 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

broadnatureof the stays obtained in CAAPP 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 of such stays on the severability requirements

for CAAPP permits set forth in 40 C.F.R. Part 70

and the illinois CAAPP.

(See, Supporting Affidavit ofJim

Ross attached to this Motion).

~

It is noted that the Board’s prior rulings regarding blanket stays ofCA.APP permits have been granted-

contingent upon the

Board’s final action in the

appeal or “until the Board orders otherwise.”

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2005

provision promulgated by 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

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 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 of the adjective

“various” is “of diverse kinds” or “unlike; different,” this wording demonstrates a

legislative intent to contrast one discemable 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’sNew

World Dictionary,

Third College Edition

(describing primary

use of

the term as “differing one

from

another;

ofseveral kinds”).

Given the clear absence ofambiguity with this statutory text, no other

reasonable meaning

can

be

attributed to its language.

The illinois EPA readily concedes that the permit content requirements ofthe

CAP.

and

the Illinois

CAAPP are not directly binding on the Board.

However, while the

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

on

its

face, affect the Board, theprovision 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 peimit

is challenged in

its entirety.

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ELECTRONIC FILING, RECEIVED, CLERK’S OFFICE,

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18, 2005

ofsome

segment ofthe CAAPP permit during the appeal process.

This

legislative

goal

cannotbe

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

effectuatesits 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

(111.

1989).

In

this instance, the Board should recognize an inherent limitation of

its stay

authority by

virtue ofthe illinois CAAPP’s severability provision.

At the

very least, the

existence of

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

CAAPP pennit appeals.

Petitioner

asserts

that a

further

delay in the

effectiveness of the 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

ofcitizen suits to

facilitate compliance

through

enforcement,

The severabilityrequirement 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 pennits

could

arguably lessen 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

pennittees

in other appeals would cast a wide net.

Blanket stays of these

recently-issued CAAPP permits would effectively shield an entire segmentof Illinois’

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

was meant

~ $~

David?. Novello,

The

New

Clean Air Act

Operating

Permit

Program: EPA’s Final Rules,

23

Environmental Law Reporter

10080,

10081-10082

(Febnsary

2993).

14

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ELECTRONIC

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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, if not time-consuming,

pace ofpermit appeals in general.

From past experience, the

Illinois EPA has observed

that many

permit appeals

are

ofa

type

that could more aptly be described as “protective

appeals.” These

types

ofappeals

are frequently filed

because a particular permit

condition affects an issue relating to on-going or

future

enforcement proceedings.

Alternatively, these cases may

entail some other kind

of contingency 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

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 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,

therelevant point is that significant portions ofa 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 appear to desire their “day in court” strikes

the illinois EPA

as needlessly

over-protective.

15

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CONCLUSION

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

Petitioner’s request

for a stayof the effectiveness ofthe

CAAPP

permit in

its entirety.

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

ofthe CAAPP permit’s contested conditions

and

urges the Board to order the same.

Respectfully

submitted

by,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

e~7~(674(

Ap~

Assistant Counsel

Dated: November

Illinois Environmental Protection Agency

1021

P.O. Box 19276

Springfield, Illinois 62794-9276

(217) 524-9137

16

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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 followini statements

set forth in

this instrument are true and

correct, except as to matters therein stated to on

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

the same to be

true:

1.

I arn.currently employed by the illinois Environmental Protection Agency

(“illinois EPA”) as aSenior P~iblicServièéAdrninisfrator professional engineer.

During

the early

part

of2004,

I

was

the Manager ofthe Clean

Air

Act Permit

Program

(“CAAPP”) Unit in the Division ofAir Pollution Control’s Permit Section, whose offices

are

located at

1021

North Grand Avenue East, Springfield,

Illinois.

I have been

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

(“USEPA”) atRegion

V

in

Chicago, Illinois, involving various pending CAAPP permit

applications and issues

pertaining

to

the administration ofthe CAAPP program.

By

virtue

ofmy involvement in the CA.APP permit review process, 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 before the

illinois Pollution Control Board.

Theissue

was initially

raised by a representative

from

USEPAJRegion V, who expressed concern about the impact of

such

stays upon

thi.

severability requirements of

40

C.F.R.

70

and

the illinois CAAPP.

3.

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

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ELECTRONIC

FILING, RECEIVED, CLERK’S OFFICE, NOVEMBER

18, 2005

this

matter and,

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(Day ofNovember 2005

:

OFFICIAL

SEN.

•

t

BRENDA BOEIINER

:

+

ICT*ff(PUBLJc.sIAThOFIuJNCIS

~wcoaa1sSONEXPflSIl42OOV

i_,atG#++44444+4++t++4+t4W

sayet~3~

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CERTIFICATE OF SERVICE

I hereby certify that on the

18th day ofNovember 2005, I did send, by electronic

mail with prior approval, the

following instnzments 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 of thesame 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.

Hathngton

Hearing Officer

David

L. Rieser

James R, Thompson Center

McGuireWoods, LIP

Suite 11-500

77 West Wacker, Suite 4100

100 West Randolph Street

Chicago, illinois 60601

Chicago, illinois

60601

Robb H.

Layman

Assistant

Counsel