ELECTRONIC
FILING,
RECEIVED, CLERKS
OFFICE,
NOVEMBER 18, 2005
BEFORE TIlE ILLINOIS POLLUTION CONTROL BOARD
OF TIlE STATE OF ILLINOIS
DYNEGY MIDWEST GENERATION,
INC.)
(HAVANA POWER STATION),
)
)
Petitioner,
)
)
PCB No. 2006-071
v.
)
(CAAPP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE
To:
DorothyGunn,
Clerk
Sheldon A. Zabel
Illinois Pollution Control Board
Kathleen
C. Bassi
100 West Randolph Street
Stephen J. Bonebrake
Suite
11-500
JoshuaR. More
Chicago, Illinois
60601
Kavita M. Patel
SchiffHardin, LLP
BradleyP. Halloran
6600 Sears Tower
Hearing Officer
233
South Wacker Drive
James R, Thompson Center,
Chicago, fllinois 60606
Suite
11-500
100 West Randolph Street
Chicago, illinois
60601
PLEASE TAKE NOTICE that I have today electronically filed with the Office of
the Clerk ofthe illinois Pollution Control Board the APPEARANCES, MOTION IN
OPPOSITION TO PETITIONER’S REQUEST FOR STAY and AFFIDAVIT ofthe
Respondent, Illinois Environmental
Protection Agency, a copy ofwhich is herewith
served upon the assigned Hearing Officer and the attorneys for the Petitioner.
Respectfully submitted by,
yct
RobbH. Layman
Assistant Counsel
Dated: November 12, 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 TUE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
DYNEGY MIDWEST GENERATION, INC.)
(HAVANA POWER STATION),
)
)
Petitioner,
)
)
PCB No. 2006-07
1
V.
)
(CAAPP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
APPEARANCE
NOW COMES R.obb H. Layman and enters his appearance on behalfof the
Respondent, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, as one ofits
attorneys in the above-captioned matter.
Rcspectflully submitted by,
Reow4~
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
DYNEGY
MIDWEST GENERATION, INC.)
(HAVANA POWER STATION),
)
)
Petitioner,
)
)
PCB No. 2006-071
v.
)
(CAAPP Peimit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
APPEARANCE
NOW COMES Sally Carter and enters her appearance on behalf ofthe
Respondent, ILLINOiS ENVIRONMENTAL PROTECTION AGENCY, as one ofits
attorneys in the above-captioned matter.
Respectfullysubmitted by,
as.
Sally C&ter
Assistant Counsel
Dated: November18, 2005
illinois Environmental Protection Agency
102! North Grand Avenue East
P.O. Box
19276
Springfield, fllinois 62794-9276
(217)782-5544
ELECTRONIC FILING,
RECEIVED, CLERKS
OFFICE,
NOVEMBER 18, 2005
BEFORE THE iLLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
DYNEGY MDWEST
GENERATION, INC.)
(HAVANA POWER STATION),
)
)
Petitioner,
)
)
PCB No. 2006-071
v.
)
(CAAPP Pennit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION IN OPPOSITIONTO
PETITIONER’S REQUEST FOR STAY
NOW COMES theRespondent, ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY (“Illinois EPA”), by and through its attorneys,
and moves the illinois Pollution
Control Board (“Board”) to deny the Petitioner’s, DYNEGY MIDWEST
GENERATION, INC., (hereinafter “Dynegy Midwest Generation” or “Petitioner”),
request for a stay of the effectiveness ofthe Clean Mr 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 ILCS 5/39.5(2004),
the
Illinois EPA issued
a CAAPP permit to Dynegy Midwest Generation on September 29,
2005.
The permit authorized the operation ofan electrical power generation facility
known as the Havana Power Station.
The facility is located at
15260 North State Route
78 in Havana, illinois.
I
ELECTRONIC FILING,
RECEIVED, CLERKS
OFFICE,
NOVEMBER 18, 2005
On November 3,
2005,
attorneys for the Petitioner filed this appeal (hereinafter
‘Petition”) with the Board challenging certain permit conditions contained within the
CAMP 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 7, 2005.
As part of its Petition, Dynegy Midwest Generation seeks a stay ofthe
effectiveness of the 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 ILCS 100/10-
65(b)(2004).
As an alternative basis for a blanket stay ofthe CAAPP permit, Petitioner
alleges facts intended to support the Board’s use ofits discretionary stay authority.
In accordance with the Board’sprocedural requirements, the Illinois EPA may file
a response to any motion within 14 days after service ofthe motion.
See,
35 III. Adm.
Code 101.500(d).
ARGUMENT
The Illinois EPA urges theBoard to deny Petitioner’s request fora stay ofthe
effectiveness of the entire CAAPP permit.
For reasons that are explained in detail below,
Petitioner cannot avail itselfof theprotections afforded by the APA’s automatic
stay
provision
as a matter oflaw.
Further, Petitioner has failed to demonstrate sufficient
justification for the Board to grant a blanket stay ofthe CAAPP permit under its
discretionary stay authority.
Given the absence ofan alternative request by Petitioner
seeking either a stay ofcontested CAAPP permit conditions or any other relief deemed
just and appropriate, the Board should decline to grant any stay relief whatsoever.
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ELECTRONIC FILING,
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NOVEMBER 18, 2005
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 provision ofthe APA.
See, Petition at page 5.
The automatic stay provision under theAPA governs administrative proceedings
involving
licensing, including a “new license with reference to any activity of a
continuing nature.”
See,
5 ILCS iOO/10-65(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 ILCS 100/1-35
(2004)(defining “license” as the“whole or part ofany agency permit... required by
law”).
In its
argument, Petitionerpostulates 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 reasons that the APR s stay provision continues to apply
throughout the duration ofthe pending appeal because it is the Board, not the illinois
EPA, that makes the“final agency decision” on the permit.
See. Borg-Warner
Corporation v. Mauzy,
427 N.E.2d 415, 56
III. Dec. 335 (3~
Dist.
1981).
Thestay
provision would also apparentlyensure that the Petitioner continues to abideby the terms
of ‘The existing licens~
which
shall continue in
ulill force and effect.”
See,
5 ILCS
100/1-65(b)(2004
In this case, that “existing license” is the underlying State operating
3
ELECTRONIC
FILING,
RECEIVED, CLERK’S OFFICE,
NOVEMBER 18, 2005
permits’ that have been separately governing the facility’s operations since theillinois
EPA’s original receipt of the permit application.
See,
415 ILCS 5/39.5(4)(b)(2004).
The
Borg-Warner
decision upheld the APA’s automatic stay provision in the
context ofa renewal for a National Pollutant Discharge Elimination System (“NPDES”)
permit sought before the Illinois EPA.
Notably, the court observed:
“A final decision, in the sense of a final and binding decisioncoming out ofthe
administrative process before the administrative agencies with decision making
power, will not be
forthcoming in the instant case until the PCB rules on the
permit
application.”
Borg-Warner,
56
111. Dec. at 341.
The illinois EPA concedes that the
Borg-Warner
decision may still reflectgood
law and that itprobably 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 othersubsequent 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
(3N~
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
(3Td
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 ofthe CAAPP
permit
application
was also authorized in a
State consiniction
penn!.
4
ELECTRONIC
FILING,
RECEIVED, CLERK’S OFFICE,
NOVEMBER 18, 2005
While the
Borg- Warner
opinion may offer some interesting reading, it does not
provide a proper precedent in this case.
This conclusioncan be arrived because the APA
simply does not apply to these CAAPP permit appeal proceedings.
Forone reason, the
MA’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 found with administrative citations, which under Section
31.1
of
the Act arenot
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 thepermit severabilityrequirements that govern the illinois
EPA’s issuance ofCAAPP permits.
Section 39.5(7) ofthe Illinois CAAPP sets forth requirements governing the
permit content for every CAAPP permit issued by the illinois EPA.
See generally,
415
ILCS 5/39.5(’7)(2004).
Section 39.5(7)(i) 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 eventof a challenge to any portions ofthe permit.”
415 JLCS 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 ofthepermit’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 ofa CAAPP permit
must continue to survive
notwithstanding
a challenge to
the permit’s other terms.
This language signifies an
5
ELECTRONIC FILING,
RECEIVED, CLERK’S OFFICE,
NOVEMBER
18, 2005
unambiguous intent to exempt some segment ofthe CAA.PP permit
from
any kind of
protective stay during the permit appeal process.
For this reason, the automatic stay
provision ofthe MA cannot be said to govern CAAPP permits issued pursuant to the
Act.
The Board should also reject the Petitioner’s automatic stay argument on entirely
separate grounds.
Petitioner suggests that the APA’s automatic stay provision applies by
virtue ofthe licensing that
is being obtained through the CAAPP permitting process.
However, the APA contains a grandfathering clause that specifically exempts an
administrative agency that previously possessed “existing procedures on July
1,
1977” 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 procedures for permitting disputes, the earlier
rules referenced the Board’s enforcement procedures in providing specific requirements
for the pennit appeal process.
They were then, as theyare today, contested
case
requirements by virtue of their 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 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
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 III contained a plethora of contested 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 fmal disposition (i.e., Rule
322).
Alater version of theserules, 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 Ill. Adm. Code 101-130.
Although theBoard’s
procedural rules may have evolved and expanded over time, the core features ofthe
adversarial process governing these cases have remained substantially the same,
including those rules governing CAAPP permit appeals.
Because the Board had such
procedures in place prior to July
1,
1977,
those procedures effectively secured the
BoaixPs 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 pointof origin that is relevant to this
analysis, not the adventofthe permitting program itself.2
Petitioner
may counterthat
the
Borg- Warner
decision is at odds
with
this argument and that pail of the
appellate
court’s
niling
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 ofthe grandfathering clause is inapposite here.
The NPDES
rules at
issue
were
written
in
a way
that
conditioned
their
effectiveness
upon
a future event.
7
ELECTRONIC FILING,
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18, 2005
H.
The CA.APP 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
alternativebasis for granting a blanket stay of the CAAPP permit.
Specifically,
Petitioner suggeststhat the Board stay the entire CAAPP permit as part ofits
discretionary stay authority.
See,
Petition at pages 6-7.
While the reasons put forward
by Petitionermight have sufficed to justifr a stay ofthe CAAPP permit’s contested
conditions had one been sought, 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 EPAhas come to regard blanket stays ofCAAPP
permits as incongruous with the aims ofthe illinois CAAPP and needlessly over-
protective in light ofattributes common to these appeals.
Section
105.304(b)of Title 35 ofthe Board’s procedural regulations provides that
a petition for review ofa CAAPP permit may include a request for stay.
TheBoard has
frequently granted stays in permit proceedings, often citing to the various
factors
considered by fllinois courts at càmmon 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 absenceof a stay,
the lack of an adequate legal remedy and a
When
the event actually took place, the
effectiveness of the
rules
occurred after
the July
1,
1977, date
established
in the grandfathering clause.
More
importantly,
in 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 procedures applicable to the Board’s
contested case
hearings.
A proper construction of the
APA demands that the
focus be placed on the
existing procedures “specifically for contested cases or licensing,”
5 JLCS 100/I -5(a) (2004).
8
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probability of success on the merits ofthe controversy.
See, Bridgesione/Firestone Off-
road Tire
Company v.
Illinois EPA,
P002-31
at page
3
(November
1, 2001);
Community Landfill Company and
City ofMorris
i’.
illinois EPA,
PCB No.
01-48 and 01-
49 (consolidated) at page
5
(October 19, 2000), citing
Junkunc v. S.J. Advanced
Technology & Manufacturing,
498 N.E.2d 1179
(15t
DiM.
1986).
However, the Board has
noted that its consideration is not confined exclusively to those factors nor must each one
ofthose factors be consideredby the Board in every case.
See,
Bridgestone/Firestone
at
page 3.
The Board has commonly evaluated stay requests with an eye toward the nature
ofthe injury that might befall an applicant from having to âomply with permit conditions,
such as thecompelled 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 hann” for
any stay that may be granted.
See, Bridgestone/Firestone
at page 3;
Abitec Corporation
at 1;
Community
Landfill Company and City ofMorris
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
6-7.
The Illinois EPA generally accepts that
Petitioner
should not be required to expend exorbitant costs in complying with challenged
monitoring, reporting or record-keepingrequirements ofthe CAMP permit 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 beforebeing
9
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required
to
comply with those terms ofthepermit that are deemed objectionable.
The
Illinois EPA recognizes these reasons as a legitimate basis for authorizing a stayof
permit conditions contested on appeal. However, they are not atall instructive to
Petitioner’s claim that a stay ofthe entire CAMP permit is needed.
Judging by a fairreading of thePetition, 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 of the gist of
Petitioner’s appeal pertains to “periodic monitoring,” including a number ofprovisions
dealing with emissions testing, reporting, record-keeping and monitoring of emissions
that are purportedly beyond the scope ofthe illinois EPA’s statutory permit authority.
If
the vast majority ofthe permit’s terms are uncontested, it cannot logically follow that the
absence ofa stay for those conditions will prevent the Petitioner from exercising
a right
of appeal.
Similarly, it is difficult to discern why Petitioner’s compliance with
uncontested permit conditions would cause irreparable harm, especially if one can
assume, as here, that the crux of CAAPP 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”) TitleV 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 (MB, February
18,
2005).
Aside
from
the
conditions lawMly imposed by
the Illinois EPA for periodic
monitoring and other miscellaneous matters,
the remainder of the CAAPP pemiit should be comprised of the pit-existing
requirements
that were
preyiously permitted.
A
casualcomparison
of the CAMP
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.
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ii.
Other related factors
Petitioner argues that the absence of a blanket stay would cause “administrative
confusion”because the uncontested conditions of the CAAPP permit would remain in
effect while the challenged conditions would be governed by the “old state operating
permits.”
Petition
at
page
7.
The Illinois EPA takes exception to
a key assumption in
the Petitioner’s argument.
In the Illinois EPA’s view, the vestiges of any former State
operating permits
for this CAAPP source dissipated upon the illinois EPA’s issuance of
the CAAPP permit on September 29, 2005.
This area ofdiscussion maybe a significant
source ofPetitioner’s misunderstanding, thus explaining its
confusion with the effects of
a limited stay.
Section 39.5(4)(b) states that a CAAPP source must abide by the terms ofits
previous State operating permit, even though the permit mayhave expired, “until the
source’s CAAPP permit has been issued.”
See,
415 JLCS 5/39.5(4)(b)(2004).4
A few
subsections later, the statute provides that the CA.APP permit “shall upon becoming
effective supercede the State operating permit.”
See, 415 ILCS5/39.5(4)(g) (2004).
Taken together, these provisions indicate that permit issuance and permit effectiveness
for a CAAPP permit are synonymous and that any underlying State operating permit
becomes a nullity upon the aforementioned occurrence.
The General Assembly could not
havereasonably intended for a source’s obligation to end upon permit issuance, only to
Petitioner
also references
Section 9.1 (1) of the Act as a source ofauthority for
its proposition that
the
State operating permit continues in effect until the CAAPP permit is issued.
See, Petition atpage 5.
This
assertion is
erroneous.
Section
9.1(f) applies only toNew Source Review permits issued
under
the
authority of the CAA,
not
CAAPP
permits
specifically governed by Section
39.5.
Although the text of the
subsection is silent with
respect
to
this distinction,
it should be construed with reference to its context
and
surrounding provisions,
which
are
confined entirely to specified CAA programs.
Alternatively, to the
extent
that
the Act’s CAAPP
requirements are
more
specific
to
CAAPP permits, the provision found at
Section 39.5(4)(b) would apply instead of the more general provision under Section 9.1 (f).
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have the CAAPP permit’s supercedingeffect
on the State operating permit delayed until
permit effectiveness.
Petitioner apparently reads the above-referenced provisions as though they apply
to the Board’s final action in this appeal,
See, Petition at page
5.
However, this
argument ignores other provisions ofthe Act that clearly depict the Illinois EPA as the
permit-issuer.
No clearer evidence ofthis intent can be found than the numerous
provisions of Section 39.5(9) ofthe Act, which govern theUnited States Environmental
Protection Agency’s (hereinafter “USEPA”) participation and role in reviewing the
CAAPP permits.
See,
415 ILCS 5/39.5(9)(2004)
.~
Other provisions ofthe Act similarly
establish that permit issuance denotes the action ofthe Illinois EPA, not the Board, in the
context ofCAAPP permitting.6
As previously mentioned, the illinois EPA does not deny that the CAAPP
permitting process is analogous to the type of“administrative continuum” recognized by
Illinois courts
in otherpermitting programs under the Act.
In this respect, the fllinois
EPA performs a role under the Illinois CAAPP that requires, in essence, a
defacto
issuance of a CAAPP permit.
The Board’s obligation in adjudicating whether the permit
should issue, in contrast,
is a
dejure-like
function that, while critical in terms of
See, 415 !LCS 5/39.5(9)
(b)(noting
requirement that
the
Illinois EPA shallnot “issue” the
proposed
pennit ifUSEPA provides a written objection
within the 45 day review period);
415 JLCS
5/39.5(9)(/)(cxplaining
that when the illinois EPA is in receipt of a USEPA objection arising from a
petition, the “Agency shall not issue
the permit”);
415 ILCS
5139.5(9)(g)(observing requirements for
whenever a USEPA objection is received by the Illinois EPA following its issuance ofa permit after the
expiration of the 45-day review period and prior to receipt of an objection arising from a petition). Notably,
one
suchprovision states that the “effectiveness of a permit or its requirements”
is not stayed by
virtue of
the filing of a petition with USEPA.
See,
415 JLCS 5/39.5(9)
(/).
6
‘I’he
requirements in Section 39.5(10), entitled “Final Agency Action,” recognize the standards for
permit issuance by the
illinois EPA.
4)5 ILCS
5/39.5(JO) (2004).
Similarly, the review provisions for Title
V
permits, codified at Section 40.2,
focus on a pennit denial or a grant of a permit with conditions as a
basis for appeal to the Board.
See,
4)5 ILCS
S/40.2(a)(2004).
The latter provisions even go so far as to
reference “final permit action” in relation to the illinois EPA’s permit decision.
Id.
12
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2005
determining whether a permit issued by the fllinois EPA becomes final, should not
color
the meaningofother legal terms.7
The issuance or effectiveness ofa CAAPP permit is
functionallydistinct from the legalisms associated with when a CAAPP permit becomes
finaL
Even putting aside the legal semantics posedby this issue, the thrust of
Petitioner’s argument misses its mark.
Any confusion stemming from the appeal phase
ofthe Title V program should be fairly modest compared to the past.
Prior to
the
enactment ofthe CAA
Amendments
of 1990, states issued permits under a patchwork of
various programs.
In Illinois and elsewhere, numerous permits
for separate or discrete
pollutant-emitting activities would often exist for an individual
source ofmajor emissions
and
they frequently did not address the applicability ofall other
CAA
or state (i.e., State
Implementation Program C’SIP”)) requirements.8
The Title V operating permit program
ensured that all of a major source’s applicable state
and
CAA-related requirements would
be brought together into a single, comprehensive document.
in doing so, the legislation
sought to minimize the confusion brought about from the absence of a
uniform
federal
permitting system.9
By
trying
to breath life
into
the State operating
permits
beyond the
date ofthe Illinois EPA’s permit
issuance, Petitioner’s argument would actually prolong
one ofthevery problems that theTitle V permitting scheme
was
meant to remedy.
As a practical matter, Petitioner’s requested relief belies the notion that former State
operating permits
continue to govern the facility’s operations until the Board issues its
final ruling in this cause.
After all, it
is the
CAAPP permit issued by the illinois EPAfrom which the Petitioner is seeking a stay.
See,
David P. Novello,
The
New
Clean
Air
Act
Operating Permit Program: EPA ‘sPinal Rules,
23
Environmental Law Reporter 10080,
10081-10082 (February
1993).
~
Id.
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Petitioner also mentions in passing that the illinois EPA’s fhilure to provide a
sufficient statement of
basis
for the CA.APP permit is another
reason
for stayingthe entire
permit.
Petition at page
7.
Because Petitionertreats this issue separately in its Petition,
the Illinois EPA will not fullyaddress themerits of the argument in this Motion.
However, the Illinois EPA will briefly respond to the issue as it relates to the Petitioner’s
request for stay.
The statement ofbasis envisioned by the statute
is an informational requirement
that
is meant to facilitate both thepublic
and
USEPA’s understanding of the permit
decision in the
draft
phase of permitting.
See, 415 ILCS 5/39.5(8) (b)
(2004).
It is not a
part
of, nor does it otherwise affect, the content ofthe
CAAPP
permit
and
it does not bind
or impose legal consequences in the same manner that a permit itselfdoes. The Illinois
EPA generally does not believe that any perceived inadequacies in the statement of basis
can
lawfully render the entire
CAAPP
permit defective.
In this instance, thePetitioner identified its grievances with respect to the
CAAPP
permit’s conditions notwithstanding thealleged flaws in the underlying statementof
basis.
To the extent that something
contained
in a statement of
basis
is found
objectionable, or is left out altogether, the Illinois EPA suggests that the mechanism for
challenging it runs to the underlying permit condition, not the statement itself.
The
Petitioner should not be heard to complain ofthe inadequaciesof the statement when the
basis that
gives
rise to the appeal stems
from
a permit’s conditions,
not the deliberative
thought.processes ofthe permitting agency.
As such, the Illinois EPA does not construe
a statementof basis as
affecting
the validity of the final CAAPP permit nor as a reason
for voiding the flhinois EPA’s finalpermit decision.
Ifsuch challenges were
recognized
14
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2005
by the
Board,
they could serve as a pretext for preventing the final issuance ofa
CAAPP
permit and result in perpetual litigation over a largely ministerial agency fUnction.
The Illinois EPA is ultimatelyprepared to
argue that the statement ofbasis that
was prepared
in conjunction with the CAMP permit was sufficiently adequate as to
comply with the Act.
Alternatively, the Illinois EPA is prepared to contend that the
statement ofbasis requirement is predominantly procedural
in nature, is confined to the
preliminary stages of thepermitting process and arguably lacks sufficiently intelligible
standards as to serve as a basis for enforcement.
In any event, the Board should deny the
Petitioner’s request for stay on any grounds relating to this issue.
On the whole, the
Petitioner’s charge that the statement ofbasis affects the entire permit is unsupported by
law and fails to demonstrate a probability of success on the merits ofthe controversy.
iii.
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 thepetitioning party.
In several cases, the Board has granted stays of the
entire
CAAPP
permit, usually
doing
so
without
much substantive discussion.’°
Curiously, all excepting one
of
the prior
cases involving
blanket stays were brought by
petitioning parties
represented by
the same law firm.
In other CAAPP appeal cases, the
Board
granted stays forthe
contested permit conditions,
again mirroring the relief
sought
~
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-Gobain
Containers,
Inc.,
v. illinois EPA.
PCB No.
04-47,
slip opinion at
1-2
(Novembe
6,
2003);Champion
Laboratories,
Inc.,
t’.
Illinois EPA,
PCB
No. 04-65, slip opinion at
1
(January
8, 2004);;
Midwest
Generation,
L.L.C.,
v. illinois EPA,
PCB No. 04-108, slip opinion at
I
(January 22,2004);
Ethyl
Peiroleum Additives, inc.,
t’.
Illinois EPA,
sup
opinion
at
1
(February
5,
2004);
Board ofTrustees
of
Eastern Illinois
University v. Illinois EPA,
PCB No. 04-110, slip opinion at
1
(February
5, 2004).
15
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by
the
petitioning
art’
In a few cases, the Board does not appearto have granted any
stay protection whatsoever, as the petitioning party apparently opted not to pursue such
relief.’2
In the majorityofthe afore-referenced cases, the Illinois EPA did not actively
participate in the stay motions sought before the Board due to the perennially-occurring
press of other matters.’3
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
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 lastoccasion 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,’4
In the wake ofthis discovery, the fllinois
EPA is now compelled to
observe that the Board’s earlier decisions affording blanket
stays to CAAPP permits arguablyfell short of exploring all ofthe relevant considerations
~
See,
Bridgestone/Firestone Off-road Tire
Company
t’.
illinois EPA,
PCB 02-31
at page 3 (November
1,
2001);
PPG lndustries,
Inc.,
v. illinois EPA,
PCB
No. 03-82, slip opinion at 1-2
(February 6, 2003);
Abitec
Corporation v. Illinois EPA,
PCB No. 03-95, slip opinion at 1-2
(February
20, 2003);
Noveon, Inc., v.
Illinois EPA,
PCB
No. 04-102, sup 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).
12
See, XCTC Limited Partnership,
v. Illinois
EPA,
PCRNo. 01-46,
consolidated with Georgia-Pact/ic
Tissue, L.L.C.,
v. illinois EPA,
PCD No. 01-51;
General Electric Company v. Illinois EPA,
PCB
No. 04-
115
(January 22,
2004).
‘~
The Illinois
EPA
did file ajoint
motion
in support of a stay
request
seeking
protection for contested
conditions ofa
CAAPP permit.
See, Abitec
Corporation v. Illinois EPA,
PCB No. 03-95, slip opinion at
I-
2 (February 20, 2003).
“
Jim Ross, a former Unit Manager for the CAM’? 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 of
the
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 C/LAP? permits
set forth
in 40
C.F.R. Pan
70
and
the Illinois
CAAPP.
(See,
Supporting Affidavit ofJim Ross attached to this Mo:ion).
16
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2005
necessary to the
analysis.
Accordingly, the Illinois EPA urges the Board to
reflect upon
additional
factors
that
have not previously been addressed to date.’5
iv.
Statutory objectives of
CAAPP
and common attributes of permit
appeals
As discussed earlier in this Motion, theillinois CAAPP commands the flhinois
EPAto incorporate conditions into a CAAPP permit that address requirements
concerning the “severability” ofpermit conditions,
See,
415 ILCS5/39.5(7)(1) (2004).
To
this end, every CAAPP permit is required to contain a permit condition severing those
conditions challenged in a subsequent permit appeal from the otherpermit conditions in
the permit.
The severability provision is prominently displayed in the Standard Permit
Conditions of the Petitioner’s CAAPP permit.
See,
Standard Permit Condition
9.13.
It
should also be noted that the language from the Act’s CAAPP program mirrors the
provision promulgated by USEPA in its regulations implementing TitleV ofthe CAA.
See,
40 C.F.R. ~70.6(a)(5)(July1, 2005 edition).
As is evident fii,m 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.
Theuse 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” of the permit
that arc contested.
Because the commoniy understood meaning ofthe adjective
“various” is “of diverse kinds” or“unlike; different,” this wordingdemonstrates a
legislative intent to contrast one discernable group of permit conditions (i.e., uncontested
‘~
It is noted that
the
Board’s prior rulings
regarding blanket stays
of
CAAPP permits
havebeen granted
contingent upon the Board’s
final
action in the appeal or “until the Board orders otherwise.”
17
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conditions)
from the other another (i.e., contested conditions).
See,
The American
Heritage Dictionai’y, Second College Edition; see also,
Webster’s
New
World Dictiona?y,
Third College Edition
(describingprimary use of the term as “differing one from another;
ofseveral 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 thepermit content requirements of the
CAA and the Illinois CAAPP
are not directly binding on the Board.
However, while the
Illinois EPA’s mandateunder Section
39.5(7)(i)
ofthe Act’s CA.APP program does not,
on its face, affect theBoard, theprovision could arguably be read as a limited
restriction
on the Board’s discretionary stay authority in CAAPP appeals.’6
Implicit in the statutory
language is an unmistakable expression aimed at preserving the validity and effectiveness
of some segment ofthe CAAPP permit during the appeal process.
This legislative
goal
cannot be achieved ifblanket stays are the convention.
Where the obvious intention of
lawmakers could be thwarted, reviewing courts must construe a statute in a mannerthat
effectuates
its object and purpose.
See,
F.D.J.C.
v.
Nihiser,
799
F,Supp.
904
(C.D. fll.
1992);
Castaneda
v. illinois Human Rights
Commission,
547 N.E.2d 437 (III.
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.
16
Any
such restriction
may
notbe 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. As previously
mentioned,
the
Illinois EPA disputes the
merIts of
Petitioner’s
argument relating to a purported deficiency
in the CAAPP
permit’s statement of basis.
18
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It is
noteworthy that one of the chiefgoals ofthe CAA’s Title V program
is to
promote public participation, including the use ofcitizen suits to facilitate compliance
through enforcement.17
The severability requirement ofthe Part 70 regulations, which
formed the regulatory basis for Sectic,n 39.5(7)(i) ofthe Illinois CAAPP, can be seen as
an extension ofthis endeavor.
Blanket stays of CAAPP permits could arguably lessen
the opportunities forcitizen enforcement in an area that is teeming with broad public
interest.
Moreover, the cumulative effect of stays sought by Petitioner and other coal-
fired CAAPP permittees in otherappeals 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 Tide V permitting, which was meant
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 of a type that could more aptly be described as “protective
appeals.” These types of appeals are
frequently
filedbecause a pa~ticWar
permit
condition affects an issue relating to on-going or future enforcement proceedings.
Alternatively, these cases may entail some other kind ofcontingency necessitating
additional permit review, a new permit application and/or obtaining a revised permit from
the illinois EPA.
Only rarely does a permit appeal actually proceed to hearing.
Based on the illinois
EPA’s estimation, nearly all
ofthe CAAPP permit
appeals
filed with theBoard to date could be aptly described as “protective appeals.”
While a
“
See,
David P. Novello,
The New Clean Air Act Operating Permit Program: EPA
‘s Final
Rules,
23
Environmental
Law Reporter
10080,
10081-10082
(February 1993).
19
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18, 2005
handful ofcases have been voluntarily dismissed
from theBoard’s docket, sever*of
thesecases are, and will remain, pending with the Board for months and/or years to
come,
in part, because there is no ability to resolve them independent oftheir related
enforcement or permitting developments.
As the Illinois EPA is often an obligatory
participant in many 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 ofbearingno relationship to the
appeal orits 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.
CONCLUSION
For the reasons explained above, theIllinois EPA moves the Board to deny the
Petitioner’s request for a stay ofthe effectiveness ofthe CAAPP permit in its entirety.
Respectfully submitted 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
20
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NOVEMBER
18, 2005
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 jnstniment are true and correct,
except as to matters therein stated to on
information and belief and, as to such matters, the undersignedcertifies that he believes
the same to be true:
1.
I amcurrently employed by.the Illinois Environmental Protection Agency
(“Illinois EPA”) as aSenior Public Se
iècAdministrator professional engineer.
During
the early part of2004, I wasthe 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 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 bending CAAPP permit
applications and issues pertainingto the administration ofthe CAAPP program.
By
virtue ofmy involvement in
the CAAPP permit review process, I am familiarwith
communications between USEPAJRegion V and the illinois EPA in March of2004
concerning an issue relating to
stays obtained in CAAPP permit appealsbefóte the
Illinois Pollution
Control Board.
The issue was initially raised by a representative from
USEPA/Region V, who expressed concernabout the impact ofsuch stays upon the
severability requirements of40 C.F.R.
70 and the illinois CAAPP.
3.
I have read the Motion prepared by the fllinois EPA’s attorneys relatingto
ELECTRONIC FILING,
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18, 2005
this
matter
and, fUrther, fin4 that the facts set forth in said responses and answers aretrue,
responsive and complete to the best ofmy knowledge and belief.
Subscribed and Sworn
To Before Me this
Day ofNovember 2005
~6eiAX9J(T
~t.+4O+44t+4~+ttt$t+*4$+~*
4
OFFICIAL SEM
t
BRENDA BOENNER
t
rcTQYMUC,STA1tOFRWCG
2
P.
&rtcCsaLSS$OI4EJWfl$l1.3.2o~:
~!4*t+4444444++t4+++44*4
sayet~3~
R
ELECTRONIC FILING,
RECEIVED, CLERK’S OFFICE,
NOVEMBER16, 2005
CERTIFICATE OF SERVICE
I hereby certify that on the 18th day ofNovember 2005,1 did send, by electronic
mail with prior approval, the following instruments entitled APPEARANCES,
MOTION IN OPPOSITION TO 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 of the United States Postal
Service, to:
BradleyP. Halloran
Sheldon A. Zabel
Hearing Officer
Kathleen C. Bassi
James R. Thompson Center
Stephen J. Bonebrake
Suite
11-500
Joshua R.
More
100 West Randolph Street
Kavita M. Patel
Chicago, Illinois
60601
Schiffllardin, LLP
6600
Sears Tower
233
South Wacker Drive
Chicago, Illinois 6060
Robb H. Layman
C.’
Assistant Counsel
