ELECTRONIC FILING,
RECEIVED,
CLERK’S OFFICE,
NOVEMBER
18,
2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
AMEREN
ENERGY
)
GENERATING COMPANY,
)
HUTSONVILLE POWER STATION
)
)
Petitioner,
)
)
PCB No. 2006-070
)
(CAAPP
Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE
To:
Dorothy Gunn, Clerk
James T. Harrington
Illinois Pollution Control Board
David L.
Rieser
100 West Randolph Street
McGuireWoods, LLP
Suite 11-500
77 West Wacker, Suite 4100
Chicago, illinois
60601
Chicago, Illinois 60601
Bradley P. Halloran
Hearing Officer
James It. Thompson Center,
Suite
11-500
100 West Randolph Street
Chicago, illinois
60601
PLEASE TAKE NOTICE that I have today electronically filed with the Office of
the
Clerkofthe illinois Pollution Control Board the APPEARANCES, MOTION IN
PARTIAL OPPOSITION TO, AND PARTIAL SUPPORT OF, PETITIONER’S
REQUEST FOR STAY and AFFIDAVJT ofthe Respondent, illinois Environmental
Protection Agency, a copy ofwhich is herewith served upon the assigned Hearing Officer
and the attorneys for the Petitioner.
Respectfully submittl
by,
-
Robb
I-I. 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,
)
HIJTSONVLLLE POWER STATION
)
)
Petitioner,
)
)
PCB No. 2006-070
v.
)
(CAAPP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
APPEARANCE
NOW COMES Robb H. Layman and enters his appearance on behalfofthe
Respondent, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, as one ofits
attorneys in the above-captioned matter.
Respectfully submitted by,
ei&b
w
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 BOAR)
OF THE STATE OF ILLINOIS
AMEREN ENERGY
)
GENERATING COMPANY,
)
HUTSONVILLE POWER STATION
)
)
Petitioner,
)
)
PCB No. 2006-070
)
(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,
4zu~-
e~za~
SallyC~er
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 16, 2005
BEFORE THE ILLThIOIS POLLUTION
CONTROL
BOARD
OF
THE
STATE OFILLINOIS
AMEREN ENERGY
)
GENERATING COMPANY,
)
HUTSONVIIJLEPOWER STATION
)
)
Petitioner,
)
)
PCB No. 2006-070
v.
)
(CAAPP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION IN PARTIAL OPPOSITION TO,
AND PARTIAL SUPPORT OF,
PETITIONER’S REQUEST FOR STAY
NOW COMBS theRespondent, 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“Aneren 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 JLCS 5/39.5(2004),
the
Illinois EPA issued a CAAPP permit to Ameren Energy Generation on September 29,
2005.
The permit authorized the operation of an electrical power generation facility
known as the Hutsonville Power Station.
The facility is located at
15142 East
1900th
Avenue in Hutsonville, illinois.
I
ELECTRONIC FILING,
RECEIVED, CLERKS
OFFICE,
NOVEMBER
18, 2005
On November
3, 2005, attorneys forthe 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 ofthe appeal on the same date.
Formal notice ofthe appeal was served upon the
Illinois EPA on November 4, 2005.
As part ofits Petition, Ameren Energy Generation seeks a stayof the
effectiveness ofthe entire CAAPP permit, citing two principal grounds for
its requested
relief.
First, Petitioner alleges that the CAAPP permit is subject to the automatic stay
provision ofthe illinois Administrative Procedure Act (“APA”),
S JLCS 100/10-
65(b)(2004).
As an alternativebasis for a blanket stay oftheCAAPP 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 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 101.5 00(d).
ARGUMENT
The Illinois EPA urges the Board to
deny Petitioner’s request for a stayof the
effectiveness ofthe entire CA.APP permit.
For reasons that are explained in detail below,
Petitioner cannot avail itself ofthe protections afforded by the APA’s automatic
stay
provision as a matter of law.
Further,
Petitioner has failed to demonstrate sufficient
justification for the Board to grant a blanket stay of the CAAPP permit under its
discretionary stay authority.
The Illinois EPA supports the Petitioner’s limited stay of
2
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 CA.APP 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 of a
continuing nature.”
See,
S .ILCS 100/10-65(b).
The CAAPP permit at issue in this
proceeding governs emissions-related activities at an existing, majorstationary source in
Illinois.
Accordingly, the illinois EPA does not dispute that the CAAPP permit is
synonymous with a license that
is of a continuing nature.
See also,
S ILCS 100/1 -35
(2004)(defining “license” as the “whole or part of any 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 ofthepending appeal because it is the Board, not the Illinois
EPA, that makes the “final agency decision”
on the permit.
See, Borg-Warner
Corporation v. Mauzy.
427 N.E.2d 415,56111. Dec.
335 (3~
Dist.
1981).
The stay
provision would also apparently ensure that the Petitioner continues to abide by the terms
of“the existing license
which
shall continue in full force and effect.”
See, S ILCS
100/1-65(b)(2004).
In this case, that “existing license” is the underlying State operating
3
ELECTRONIC FILING,
RECEIVED, CLERK’S
OFFICE,
NOVEMBER
18, 2005
permits’ that have been separately governing the facility’s operations since the
illinois
EPA’s original receipt ofthepermit application.
See,
415 J’LCS 5/39.5(4)(b)(2004).
The
Borg- Warner
decision upheld the APA’s automatic stay provision in the
context ofa renewal for a National Pollutant Discharge Elimination System (“NPDES”)
permit sought before the illinois EPA.
Notably, the court observed:
“A final decision, in the 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 caseuntil
the PCB rules on the
permit
application.”
Borg-Warner,
56111. Dec. at 341.
The flhinois EPA concedes that the
Borg-Warner
decision may still reflect good law and that it probably warrants, 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, the illinois 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
Control Board,
486 NE2d 293,
294 (3~
Dist.
1985),
affirmed, illinois EPA
v.
illinois
Pollution Control Boar4 503
NE2d
343,
345
(ill.
1986);
ESG Watts,
Inc.,
v.
Illinois Pollution Control Board,
676 N.E.2d 299,
304 (3~
Dist.
1997).
Thus,
it is the
Board’s decisionin reviewingwhether 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 ofthe
CA.APP
permit application
was
also authorized in a State construction permit.
4
ELECTRONIC FILING,
RECEIVED, CLERK’S OFFICE,
NOVEMBER
18, 2005
While the
Borg-Warner
opinion n~ay
offer some interesting reading, it does not
provide a proper precedent in this case.
This conclusion can be arrived because the APA
simply does not apply to these CAAPP permit appeal proceedings.
Forone 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
the Act are not subject to the contested case provisions ofthe APA.
See, 415 ILCS
5/31. 1(e)(2004).
In the case of the Act’s CA.APP provisions,
a similar basis for
exemption is provided by thepermit severability requirementsthat 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
JLCS 5/39.5(7) (2004).
Section
39.5(7)(i)
ofthe 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 representssomething 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 otherwords, the General Assembly was not simply
speaking to the Illinois EPA but, rather, to
a larger audience.
By observing that a
component
of a
CAAPP permit shall retain a “continued validity,” lawmakers clearly
proscribed that the uncontested conditions of a CAAPP permit must continue to survive
notwithstanding
a challenge to the permit’s otherterms.
This language signifies an
5
ELECTRONIC FILING,
RECEIVED, CLERK’S OFFICE,
NOVEMBER
18, 2005
unambiguous
intent to exempt some segment of the CAAPP permit from any kind of
protective stay during the permit appeal process.
Forthis reason, the automatic stay
provision ofthe APA cannot be said to govern CAAPP permits issued pursuant to
the
Act.
The Board should also reject the Petitioner’s automatic stay argument on entirely
separate grounds.
Petitioner suggests that the APA’s automatic stay provision appliesby
virtue ofthe licensing that is being obtained through the CAAPP permitting process.
However, the APA contains a grandfathering clause that specifically exempts an
administrative agencythat previously possessed “existing procedures on July
1,
1977” for
contested case or licensing matters.
Seer
5 JLCS 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 procedures for permitting disputes,
the earlier
rules referenced the Board’s enforcement procedures in providing specific requirements
for the permit appeal process.
Theywere 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
ELECTRONIC FILING,
RECEIVED, CLERK’S OFFICE,
NOVEMBER
18,
2005
to be conducted according to the Board’s Part ifirules pertaining to enforcement.
See,
Rule 502.
In contrast to the Regulatory and Nonacbudicative Hearings and Proceedings,
the Enforcement Proceedings ofPart III contained a plethora ofcontested case
requirements, including provisions for the filing ofa petition (i.e., Rule 304),
authorization for hearing (i.e., Rule 306), motion practice (i.e., Rule 308), discovery (i.e.,
Rule 313), conduct ofthe hearing (Rule 318), presentation of evidence (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 theBoard in enforcement cases and
permit appeals formedthe basic framework for the current-day version of the Board’s
procedural regulations promulgated at
35 Ill. Adm. Code
101-130.
Althoughthe Board’s
procedural rules may have 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 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 theirpoint oforigin that is relevant to this
analysis, not the advent ofthe permitting program itself.2
2
Petitioner may counter that
the
Borg- Warner
decision is at odds with this argument and that part of the
appellate court~s
ruling held that the APA’s grandfathering clause didnot 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 conditionedtheir effectiveness upon
a future event.
7
ELECTRONIC FILING,
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NOVEMBER 18, 2005
IL
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
forgranting a blanket stayofthe CAAPP permit.
Specifically,
Petitioner suggests that theBoard stay the entire CAAPP permit as part of its
discretionary stay authority.
See, Petition a: pages 4-5.
While the reasons put forward
by Petitioner suffice to justif~’
a stay ofthe CA.APP 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 otherCAAPP appeals, the
Illinois EPA has come to regard blanket stays ofCAAPP permits
as incongruous with the
aims ofthe illinois CAAPP and needlesslyover-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.
The Board has
frequently granted stays in permit proceedings, often citing to the various factors
considered by illinois courts at common law.
The factors that are usually examined by
the Board include the existence of a clearly ascertainable right that
warrants
protection,
irreparable
injury in the absence of a stay, the
lack of an adequate legal remedy
and
a
When the event actually took place, the effectiveness ofthe rules occurred after the July I,
1977, date
established
in the
grandiathering clause.
More importantly,
inaddressing an 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 of the AM demands that the
focus be placed on the
existing procedures “specifically for contested cases or licensing.” S
ILCS 100/1-S
(a)
(2004).
8
ELECTRONIC
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18, 2005
probability ofsuccess on the merits ofthe controversy.
See.
Bridgestone/Firestone
Off-
road Tire Company v. illinois EPA,
PCB
02-31 atpage
3
(November
1, 2001);
Community Landfill Company and City ofMorris
v. illinois EPA,
PCB No.
01-48 and 01-
49 (consolidated) at page
5 (October
19, 2000), citing
Jun/wnc
v.
S.f Advanced
Technology & Manufacturing,
498 N.E.2d
1179 (li’ 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 thenature
ofthe injury that might befall an applicant
from having to comply with permit conditions,
such as the compelled expenditure of“significant resources,”
Abitec Corporation v.
illinois EPA,
PCB No. 03-95 at page
1
(February 20, 2003), or the effectual loss of
appeal rights prior to a final legal determination.
Bridgestone/Firestone
at page 3.
The
Board has also afforded
special
attention to the “likelihood ofenvironmental harm” for
any stay that maybe granted.
See,
Bridgestone/Firestone
at page 3;
Abitcc Corporation
at I;
Community Landfill Company and City ofMorris
v. illinois EPA,
at page 4.
I.
Consideration of traditional factors
Petitioner’s Motion touches, albeit sketchily, on some ofthe relevant factors in
this
analysis.
See,
Petition at 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 of the CAAPP permit until after it
is provided its proverbial “dayin court.”
Petitioner’s right ofappeal likewise should not
be cut short or rendered mootbecause itwas unable to obtain a legal ruling beforebeing
9
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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 stayof
permit conditions contested on appeal.
However, theyare not at all
instructive to
Petitioner’s claim that a stayof the entire CAAPP permit is needed.
Judging by
a fair reading of the Petition, Petitioner has challenged a relatively
small numberof the conditions contained in the overall CAAPP permit, thus leaving the
lion’s share of the 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 pennit authority.
If
the vast majority ofthe permit’s terms
are uncontested, it cannot logically follow that the
absence of a stay for those conditions will prevent the
Petitioner
from
exercising a
right
of appeal.
Similarly, it is difficult to discern whyPetitioner’s compliance with
uncontested permit conditions would cause irreparable harm, especially if one
can
assume, as here,
that the crux ofCAAPP
permitting
requirements were
carried
over
from
previously-existing State operating permits.3
The Illinois EPA does not dispute that the Clean Air Act’s (“CAR’)
Title
V program,
which formed the
framework for
the
Illinois
CAAPP, requires only a
marshalling
of
pre-existing “applicable requirements”
into a single operating
pennit for
a major source and that it does not generally authorize new substantive
requirements.
See,
Appalachian
Power Company v.
Illinois
EPA,
208 F.3d
lOIS,
1026-1027
(D.C.
Circuit,
2000);
Ohio Public Interest
Research Group
v.
Whitman,
386 F.3d 792, 794
(6th
Cit. 2004);
In
‘t:
Peabody
Western Coal
Company,
CAA Appeal No.
04-01,
slip op.
at 6 (EAB,
February
18,
2005).
Aside from
the
conditions
lawThlly 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
casual comparison of the
CAAPP
permit and the Petition suggeststhat the
present
appeal
only calls into
question
a relatively
small
fraction ofpermit
conditions contained
in the overall
CAAPP
permit.
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ii.
Significance ofprior
Board
rulings
TheBoard has granted numerous
stays in past and pending CAAPP permit
proceedings.
Forthe most
part,
the extent ofthe relief granted has been a function ofthe
relief sought by the petitioning party.
In several cases, the Board has granted stays ofthe
entire 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 finn.
In other CAAPP appeal cases, the Board
granted stays forthe contested permit conditions,
again minoring 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 majorityofthe afore-referenced cases, the Illinois EPA did not actively
participate in the stay motions sought before the Board
due to theperennially-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,
PCB
No. 03-94, slip opinion at 2,
(January
9,
2003);
Nielsen
it
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.,
it.
Illinois EPA,
PCB
No. 04-65, slip opinion at
1 (January
8,
2004);;
Midwest Generation,
L.L.C.,
it.
Illinois EPA,
PCB
No. 04-108, slip opinion at
1
(January 22,
2004);
Ethyl
Petroleum Additives,
Inc.,
it.
Illinois EPA,
slip
opinionat
1
(February
5,
2004);
Board of Trustees of
Eastern Illinois University
it.
illinois EPA,
PCB
No. 04-110, s1ip opinion at
I
(February
5,
2004).
See, Bridgestone/Firestone Off-road
Tire Company
it
Illinois EPA,
PCB 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)
PCB No. 04-102, slip opinion at
1-2 (January
22,
2004);
Oasis
Industries,
Inc.,
it,
Illiirois
EPA,
PCB No. 04-116, slip opinion at 1-2
(May 6,2004).
6
See, XCTC Limited Partnership,
‘,s~
Illinois EPA,
PCS
No. 01-46,
consolidated
with
Georgia-Pac(flc
Tissue, L.L.C.,
it.
Illinois EPA,
PCB No.
01-SI;
General Electric Company
it.
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
of
a CAAPP permit.
See, Abitec Corporation
it.
illinois EPA,
PCBNo. 03-95, sup opinion at
1-
2
(February
20, 2003).
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of resources, 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 CAMP permit
appeal, illinois EPA officials became aware ofthe potential implications posed by stays
on the existing Title V program approval.8
In the
wake ofthis discovery, theillinois EPA
is now compelled to observe that the Board’s earlierdecisions affording blanket stays to
CAAPP
permits arguably fell short of exploringall of the relevant considerations
necessary to the analysis.
Accordingly, the flhinois EPA urges theBoard to reflect
upon
additional factors that have not previouslybeen addressed to date.9
iii.
Statutory objectives ofCAAPP and common
attributes of permit
appeals
As discussed earlier in this Motion, the illinois CAMP commands the fllinois
EPAto incorporate conditions into a CAMP permit that address requirements
concerning the “severability” ofpermit conditions.
See,
415 ILCS5/39.5 (7)(i) (2004).
To
this end,
every
CAMP 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 former Unit Manager for the CAAPP Unit ofthe Division of Air Pollution Control’s Permits
Section, received an
inquiry
from a USEPA/R.egionV representative in March of 2004 pertaining
to
the
broad
nature of the stays
obtained in
CAAPP
permit appeal proceedings before the Board.
This initial
inquiry led to
further
discussion
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 ofCAAPP permits
have
been
granted
contingent upon
the Board’s final action in the
appeal
or
“until
the
Board orders
otherwise.”
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18, 2005
provision promulgated by USEPA in
its regulations
implementing Title V of the CAA.
See,
40 C.F.R. §70.6(a)(5)(July 1,2005 edition).
As is evident from the statutory language, the obvious legislative intent
for this
CAAPP provision is to “ensure the continued
validity” of the ostensibly larger body of
permitting requirements that are not being challengedon 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 “ofdiverse kinds” or “unlike; different,”this wording demonstrates a
legislative intent
to contrast one
discernable
group ofpermit
conditions
(i.e.,
uncontested
conditions)
from
the otheranother (i.e., contested
conditions).
See,
The American
Heritage Dictionary, Second College Edition; see also,
Webster’s
New
World Dictionary,
Third College Edition
(describing primaryuse of the 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)
ofthe Act’s CAAPP
program
does not,
on
its
face, affect theBoard, the provision could arguably be read as a limited restriction
on the Board’s discretionary stay authority in CAMP appeals.1°Implicit
in the statutory
language is an unmistakable expression aimed at preserving thevalidity and effectiveness
~
Any
such restriction
may
not be absolute, as the
Act’s
permit
content
requirement does not necessarily
rule out the potential merits of
a
blanket stay where
a
permit is challenged in its entirety.
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of some segment ofthe CAMP permit during the appeal process.
This legislative goal
cannot
be achieved ifblanket stays are the convention.
Where the obvious intention of
lawmakers could be thwarted, reviewing courts must construe a statute in a mannerthat
effectuates its object and
purpose.
See, F.D.I.C.
it
Nihiser,
799 F.Supp. 904 (C.D. Ill.
1992);
Castaneda
v.
illinois Human Rights Commission,
547
N.E.2d437
(Ill.
1989).
In
this instance, the Board should recognize an inherent limitation ofits stay authority by
virtue ofthe Illinois CAAPP’s severability provision.
At the very least, the
existence of
the provision should give pause to the Board’s recent approach in evaluating
stays
in
CAAPP permit appeals.
Petitioner asserts that a further delay 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 CAA’s Title V program is to promotepublic
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 permits 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 othercoal-fired
CAAPP permittees in other appeals would cast a wide net,
Blanket stays ofthese
recently-issued CAAPP permits would effectively shield an entire segment ofIllinois’
utilities sector from potential enforcement based
on Title V permitting, which was meant
See,
David P. Novello,
The New Clean Air
Act Operating Permit
Program:
EPA ‘sPinal Rules,
23
Environmental Law Reporter
10080,
10081-10082
(Februaiy
1993).
14
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One last consideration in this analysis is the deliberate, ifnot time-consuming,
pace ofpermit appeals in general.
From past experience, the
Illinois EPA has observed
that many permit appeals are ofa type that could more aptly be described as “protective
appeals.” These types ofappeals are
frequently filed becausea particular permit
condition affects an issue relating to on-going or future enforcement proceedings.
Alternatively, these cases may entail some other kindofcontingency necessitating
additional permit review, a new permit application and/or obtaining
a revised permit from
the fllinois EPA.
Only rarely does a permit appeal actually proceed to hearing.
Based on the Illinois EPA’s estimation, nearly all of the 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, pendingwith 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 fllinois EPA is often an obligatory
participant in many ofthese types ofcases, this argument is not meant
w
condemn the
practice.
Rather, the relevant point is that significant portions of a CAAPP permit stayed
in its entirety will be delayed from taking effect, in spite ofbearing no relationship to
the
appeal or its ultimate outcome.
To allow this under circumstances where petitioning
parties seldom appear to desire their “day in court” stjikes 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 stay of the effectiveness of the 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,
~c&,’e
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 following statements
set forth in this instrwnent are
true
and correct, except as to matters therein stated to on
information and belief
and,
as to
such matters,
the
undersigned certifies that he believes
the same
to
be true:
1.
.1
~•cun~
eploel
by the Illinois Environmental Protection Agency
(“illinois EPA”) as aSethor Publk Ser
ibeAdministrator professional engineer.
During
the early
part
odOO4, I
was
the Manager ofthe Clean Air Act Permit Program
(“CA.APP”) Unit in the Division ofAir Pollution Control’s Permit Section,
whose offices
are located at
1021 North GraridAvenue 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~endingCAAPP permit
applications
and
issues
pertaining
to the
administration
ofthe
CA.APP
program.
By
virtue
ofmy involvement in the CAAPP permit review process, I am
familiar with
communications
between USEPAIReg1on V and the illinois EPA in March of2004
concerning
an issue relating to stays obtained
in CAAPP permit appeals befotdthe
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 Ut
severabilityrequirements of40 C.F.R. Part 70
and
thefllinois CAAPP.
3.
I have read the Motion prepared by the illinois EPA’s attorneys relating to
ELECTRONIC FILING,
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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 of my knowledge
and
betief.
Subscribed and Sworn
To Before Me
this
~~Day
ofNovember 2005
0+0+4+0+4+4 ++*+4+4t
4
OFFICIM.
SEAl.
~
BRENDA
BOEHNER
:
t
NOt?.RYPUBtE.STAIEOFILUNOS
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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 APPEARAIMCES,
MOTION IN PARTIAL OPPOSITION TO,
AND
IN PARTIAL SUPPORT OF,
PETITIOT’JER’S REQUEST
FOR
STAY and AFFIDAVIT to:
Dorothy Gunn, Clerk
Illinois Pollution ControlBoard
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
Assistant
Counsel