ELECTRONIC FILING,
RECEIVED,
CLERKS OFFICE,
NOVEMBER
18,
2005
BEFORE TILE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
DYNEGY MIDWEST GENERATION, INC.)
(HENNEPIN POWER STATION),
)
)
Petitioner,
)
)
PCB No. 2006-072
v.
)
(CAAPP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
)
Respondent.
.
)
NOTICE
To:
Dorothy Gunn, Clerk
Sheldon A. Zabel
Illinois Pollution
Control Board
Kathleen C. Bassi
100 WestRandolph Street
Stephen J. Bonebrake
Suite 11-500
Joshua R. More
Chicago, illinois
60601
Kavita M. Patel
SchiffHardin, LLP
Bradley P. Halloran
6600 Sears Tower
Hearing Officer
233 South Wacker Drive
James R. Thompson Center,
Chicago, illinois 60606
Suite 11-500
100 West Randolph Street
Chicago, illinois
60601
PLEASE TAKE NOTICE that Ihave 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 copyofwhich is herewith
served upon the assigned Hearing Officer and the attorneys for the Petitioner.
Respectfullysubmitted by,
Robb
H.
Layman
Assistant Counsel
Dated: November 18, 2005
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 524-9137
ELECTRONIC
FILING,
RECEIVED, CLERKS OFFICE,
NOVEMBER
18, 2005
BEFORE TUE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
DYNEGY MIDWEST GENERATION, IWC.)
(HENNIPEN POWER STATION),
)
)
Petitioner,
)
)
PCB No. 2006-072
v.
)
(CAAPP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
APPEARANCE
NOW COMES Robb H.
Layman and enters his appearance on behalfof the
Respondent, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
as one ofits
attorneys in the above-captioned matter.
Respectfully submitted by,
e7~~~y~(
Robb H. Layman
Assistant Counsel
Dated: November 18,2005
Illinois Environmental Protection Agency
1021 NorthGrandAvenueEast
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
DYNEGY MIDWEST GENERATION, INC.)
(HENNEPIN POWER STATION),
)
)
Petitioner,
)
)
PCB No.
2006-072
v.
)
(CAMP 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.
Respectfblly submitted by,
Sally ~rter
Assistant Counsel
Dated: November 18, 2005
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box
19276
Springfield, Illinois 62794-9276
(217) 782-5544
ELECTRONIC
FILING,
RECEIVED, CLERKS
OFFICE,
NOVEMBER
18,
2005
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
OF THE STATE OF ILLINOIS
DYNEGY MIDWEST GENERATION, INC.)
(HENNEPIN POWER STATION),
)
)
Petitioner,
)
)
PCB No. 2006-072
v.
)
(CAAPP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION IN OPPOSITION TO
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 the Petitioner’s, DYNEGY MIDWEST
GENERATION, INC., (hereinafter “Dynegy Midwest 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 CAMP provisions ofthe
Illinois Environmental Protection Act (hereinafter “Act”),
415 JLCS 5/39.5(2004),
the
Illinois EPA issued
a CAAPP permit to Dynegy Midwest Generation on September 29,
2005.
The permit authorized the operation of an electrical power generation facility
known as the Hennepin Power Station.
The facility is located at R.R.#1, Box 200AA, in
Hennepin, Illinois.
I
ELECTRONIC FILING,
RECEIVED, CLERKS OFFICE,
NOVEMBER
16, 2005
OnNovember 3, 2005, attorneys for the Petitioner filed this appeal (hereinafter
“Petition”) with the Board challenging certain permit conditions contained within the
CAAPP permit issued by the illinois EPA.
The illinois EPA received an electronic
version ofthe appeal on the same date.
Formal notice of the appeal was
served upon the
Illinois EPA on November 7, 2005.
As part of its Petition, DynegyMidwest Generation seeks a stay ofthe
effectiveness ofthe entire CAMP permit, citing two principal grounds for its requested
relief.
First, Petitioner alleges that the CAAPP permit is subject to theautomatic stay
provision ofthe illinois Administrative Procedure Act (“APA”),
5 JLCS 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 of its discretionary stay authority.
In accordance with the Board’s procedural requirements, the Illinois EPA may file
a responseto
any motion within
14 days after service of the motion.
See,
35
IlL Adm.
Code 101.500(d).
ARGUMENT
The Illinois EPA urges theBoard to deny Petitioner’s request for a stay ofthe
effectiveness ofthe entire CAMP pennit.
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 theBoard to grant
a blanket stay ofthe CAAPP permit under its
discretionary stay authority.
Given the absence of an alternative request by Petitioner
seeking either a stay ofcontested
CAMP permit conditions or any other relief deemed
just and appropriate, the Board should decline to grantany stay relief whatsoever.
2
ELECTRONIC FILING,
RECEIVED, CLERKS
OFFICE,
NOVEMBER 18, 2005
I.
The CA.APP 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 CAMP permit in this
proceeding is subject to the automatic stay provision ofthe APA.
See, Petition at pages
5-6.
The automatic stay provision under the APA governs administrative proceedings
involving licensing,
including
a “new license with reference to any activity ofa
continuing nature.”
See,
5 ILCS 100/10-65(b).
The CAAPP permit
at issue in this
proceeding
governs emissions-related activities at an existing, major stationary source in
illinois.
Accordingly, the illinois EPA does not dispute that the CAMP permit is
synonymous with a license that is ofa continuing nature.
See also,
5 ILCS 100/I-35
(2004)(defining
“license” as the “whole or partof any agency permit... required by
law”),
In its argument, Petitioner postulates that the APA automatically stays the
effectiveness of the CAAPP permit until alter 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 APA’s stay provision continues to apply
throughout theduration of the pending appeal because it
is the Board, not the flhinois
EPA, that makes the “final agency decision” on the permit.
See, Borg-Warner
Corporation
v. Mauzy,
427 N.E.2d 415,
56111. Dec. 335 (3~
Dist.
1981).
The stay
provision would
also apparently ensure that the Petitionercontinues to
abide by the terms
of“the existing license which
shall continue in full force and effect.”
See,
5 ILCS
100/I-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 of the permit application.
See,
415 JLCS 5/39.5(4)(b)(2004).
The
Borg- Warner
decision upheld the APA’s automatic stay provision in the
context of a renewal for a National Pollutant Discharge Elimination System (“NPDES”)
permit sought before the illinois EPA.
Notably, the court observed:
“A final decision, in the sense of a final and binding decision coming out ofthe
administrative process before the administrative agencies with decision making
power, will not be forthcoming in the instant case until the PCB rules on the
permit application.”
Borg-Warner,
56
Ill. Dec.
at 341.
The Illinois EPA concedes that the
Borg-Warner
decision may still reflectgood
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 of the illinois EPA and the Board in
permitting matters under the Act.
Inthis regard, the Illinois EPA is filly cognizant ofthe
“administrative continuum” that exists with respect to the Board in most permitting
matters, and the CAMP program itself does nat 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 Board,
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 decision in reviewing whether a CAAPP permit should issue that ultimately
determines when thepermit becomes final.
In
limited
situations, it is possible that a 6cility’s operation during the pending review of the CAAPP
permit
application was
also authorized in a
State
consflction
permit.
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 conclusion
can
be arrived because the APA
simply does not apply to these CAMP permit appeal proceedings.
For one reason, the
APA’s various provisions should not apply where the General Assembly has effectively
exempted them from a particularstatutory 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 caseprovisions of theAPA.
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 of CAAPP permits.
Section 39.5(7) ofthe Illinois CAAPP sets forth requirements governingthe
permit content for every CAAPP permit issued by the Illinois EPA.
Seegenerally.
415
JLCS
5/39.5(7)(2004).
Section
39.5(7)(i) ofthe Act provides that:
“Each CAMP 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 ofthe permit.”
415 ILCS 5/39. 5(7)(i)(2004).
This
provision represents something more
than
the
trivial
orinconsequential dictates to an agency in its administration of a 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, theGeneral Assembly was not simply
speaking to the Illinois EPA but,
rather, to a larger audience.
By observing that a
component ofa CAMP permit shall
retain
a “continued validity,”
lawmakers
clearly
proscribed that theuncontested conditions of a CAAPP permit must continue to survive
notwithstanding a challenge to
thepermit’s other terms.
This language signifies an
5
ELECTRONIC
FILING,
RECEIVED, CLERK’S OFFICE, NOVEMBER
18, 2005
unambiguous
intent
to exempt some segment ofthe CAMP permit from any kind of
protective stay during the permit appeal process.
For this reason, the automatic stay
provision ofthe APA cannot be said to govern CAMP
permits issued pursuant to the
Act.
The Board should also reject thePetitioner’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 CAMP 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 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 ifi rules pertaining to enforcement.
See.
Rule 502.
In contrast to the Regulatory and Nonadjudicative Hearings and Proceedings,
the Enforcement Proceedings ofPart ill contained a plethora ofcontested case
requirements, including provisions for the filing of a petition (i.e., Rule 304),
authorization for hearing (i.e., Rule 306), motion practice (i.e., Rule 308), discovery (i.e.,
Rule 313), conduct ofthe hearing (Rule 318), presentation of evidence (i.e., Rule
321),
examination of withesses (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 August29,
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
35111. Adm. Code
101-130.
Although the Board’s
procedural rules may have evolved and expanded over time, the core features ofthe
adversarial process governing these cases have remained substantially the same,
including those rules governing CAAPP permit appeals.
Because the Board had such
proceduresin 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 satisüed the
grandfathering clause, it should not matter
that the Act’s CAMP program was enacted some tiventy years later.
After all,
it is the
procedures applicable to contested cases and their point oforigin that
is relevant to this
analysis, not the advent ofthe permitting program itself.2
2
Petitioner may counter that the
Borg-
Warner
decision is at
odds with
this
argument
and that part of the
appellate court’s zuling held that the APA’s grandfathering clause did not apply to the Board’s rules for the
NPDES permit program. The
court’s discussion on the
issue of the grandf’athering 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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OFFICE,
NOVEMBER
18, 2005
II.
The CAAPP permit issued by the Illinois EPA should not be stayed in
its
entirety by reason ofPetitIoner’s alleged justifications.
Separate and apart from its APA..related argument, Petitioner offers the Board an
alternative basis for granting a blanket stay of the CAAPP permit.
Specifically,
Petitioner suggests that the Board stay the entire CAMP permit as part ofits
discretionary stay authority.
See,
Petition atpages 6-8.
While the reasons put
forward
by Petitionermight have sufficed to justify a stay ofthe CAMP pennit’s contested
conditions had one been sought, Petitioner fails to demonstrate a clear and convincing
need fora broader stay.
Even if the 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 theBoard’s recent practice in
other CAAPP 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 petitiàn for review ofa 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 flhinois 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 ofa stay, the lack ofan 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
grandftthering clause.
More importantly,
in addressing 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 procedures applicable 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 eases or licensing.” S
!LCS
100/I-S
(a)
(2004).
8
ELECTRONIC FILING,
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probability of successon the merits
ofthe controversy.
See, Bridgestone/Firestone Off-
road Tire Companyv.
illinois EPA,
PCB 02-31
at page 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/tune v.
S.f. Advanced
Technology & Manufacturing.
498 N.E.2d
1179 (1~’
Dist.
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 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;
Abitec Corporation
at I;
Community Landfill Company and City of Morris
v. illinois EPA.
at page 4.
i.
Consideration oftraditional factors
Petitioner’s
Motion touches, albeit sketchily,
on
some of the relevant thctors in
this analysis.
See, Petition at pages 6-8.
The Illinois EPA generally accepts that
Petitioner should not be requiredto
expend exorbitant costs in complying with challenged
monitoring, reporting or record-keeping requirements ofthe CAAPP permit until after it
is provided its proverbial “day in court.”
Petitioner’s right ofappeal likewise should not
be cut short orrendered mootbecause itwas unable to obtain a legal ruling before being
9
ELECTRONIC FILING,
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required to comply with those terms ofthe permit that are deemed objectionable.
The
Illinois EPA recognizes thesereasons as a legitimate basis forauthorizing a stay of
permit conditions contested
on appeal. However, they are not at
all instructive to
Petitioner’s claim that a stay ofthe entire CAAPP permit is needed.
Judging by
a fair reading of the Petition, Petitioner has challenged a relatively
small number ofthe 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 of provisions
dealing with emissions testing, reporting, record-keeping
and
monitoring of emissions
that are purportedly beyond the scope of the 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 thePetitioner from exercising a
right
ofappeal.
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”) Title V program,
which forme4 the
frameworkfor the Illinois
CAAPP,
requires only a
marshalling ofpre-existing “applicable rcquirements”
into a single operating permit for a major sowce 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 (EAB,
Febniaiy
18, 2005).
Aside
from the
conditions lawfully
imposed by the Illinois EPA for periodic monitoring and other miscellaneous matters,
the
remainder of the CAAPP
permit should be
comprised of the pre-existing requirements that were
previously permitted.
A casualcomparison of the CAAPP permit
and the Petition suggeststhat 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 challengedconditions 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
CA.APP
source dissipated upon the illinois EPA’s issuance of
the CAAPP permit on September 29,
2005.
This area of discussion may be
a significant
source of Petitioner’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 tenns of its
previous State operating permit, even though the permit may have 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
CAAPP
permit “shall upon becoming
effective supercede the State operating permit.”
See,
415 ILCS 5/39.5(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
have reasonablyintended for a source’s obligation to
end
upon permit issuance, only to
Petitioner also references
Section 9.1(0 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
at
page
5.
This
assertion
is
erroneous.
Section 9.1(0 applies
only
toNew Source Review permits
issued
under
the
authority of
the CAA,
not
CAAPP
pemüts 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
confmedentirely 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(0.
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have the
CAAPP
permit’s superceding
effect 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
cleai’Iy depict the Illinois EPA as the
permit-issuer.
No clearer evidence of this intent
can
be
foundthan the numerous
provisions of
Section
39.5(9) ofthe Act, which
govern the United 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 of the Act
similarly
establish that permit issuance denotes the action ofthe
Illinois EPA, not the Board, in the
context of
CAAPP
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 other permitting programs under the Act.
In this respect, the Illinois
EPA performs
a role under the Illinois CAAPP that requires, in essence, a
defacto
issuance ofa 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,
4/5
!LCS
5/39.5(9)(h)(noting requirement that
the Illinois EPA shall not “issue” the proposed
permit
if USEPA provides a
written objection within the 45
day review period);
415
11_CS
S/39.5(9)Ø(explaining that when the Illinois EPA is in receipt of a USEPA objection arising
from a
petition,
the “Agency shall not issue the
permit”);
415 JLCS
5/39~5(9)(g)(observing
requirements for
whenever a USEPA objection is received by the Illinois
EPA following its issuance ofa
permit after the
expiration ofthe 45-day review period
andprior
to receipt of an objection arising from a petition). Notably,
one such provision states that the “effectiveness of a
permit
or its requirements”
is not stayed by virtue of
the
filing ofa
petition
with USEPA.
See, 4/5 ILCS 5/395(9)0).
6
The requirements
in Section 39.5(10), entitled “Final
Agency Action,”
recognize
the standards for
permit
issuance by the Illinois
EPA.
415
/LCS
5/39.5(I0)(2004).
Similarly, the review provisions for Title
V permits, codified at Section 40.2,
focus on a permit
denial
or a grant of a
permit
with conditions
as a
basis
for appeal
to the
Board.
See, 415
11_CS
5/40.2(a)(2004).
The latter provisions evengo so far as to
reference
“final permit
action” in relation to
the
Illinois EPA’s
permit
decision.
Id.
12
ELECTRONIC FILING,
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18, 2005
determining whether a permit issued by the Illinois EPA becomes final, should
not color
the meaning ofother legal terms.7
The issuanceor effectiveness ofa
CAAPP permit is
fi.rnctionally distinct from the legalisms associated with when a
CAAPP permit
becomes
final.
Even putting aside the legal semantics
posed by this issue, thethrust of
Petitioner’s argument misses
its mark.
Any confusion stemming from
the appeal phase
of the Title V program should be fairly modestcompared to the past.
Prior to the
enactment of the 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 (“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 ofa uniform federal
permitting system.9
By trying to breath life into the
State operating permits beyond the
date of the Illinois EPA’s permit issuance, Petitioner’s argument would actually prolong
one ofthe very problems that the Title 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
EPA
from
which the Petitioner is seeking a stay.
See,
David
P. Novello,
The New C/can
Air Act Operating Permit Program:
EPA
‘s Final Ru/es,
23
Environmental
Law Reporter 10080,
10081-10082
(February
1993).
~
ld.
13
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Petitioner also
mentions
in passing that the illinois EPA’s
failure
to provide a
sufficient statement ofbasis for the CAAPP permit is another reason for
staying
the entire
permit.
Petition
at page
7.
Because Petitionertreats this issue separately in its Petition,
the illinois EPA will not fully address the merits ofthe 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 the public
and
USEPA’s understanding of thepermit
decision in the
draft
phase ofpermitting.
See,
415 ILCS 5/39.5(8)(b)
(2004).
It is not a
part
of;
nor does itotherwise affect, the content ofthe
CA.APP
permit and it does not bind
or impose legal consequences in the same manner that a permit itself does. The Illinois
EPA generally does not believe that
any
perceived inadequacies in the statement ofbasis
can
lawfullyrender the
entire CAAPP
permit defective.
In this instance, the Petitioner identified its grievances with respect to the CAAPP
permit’s conditions notwithstanding the alleged flaws in the
underlying statement of
basis.
To the extent that something contained in
a statement ofbasis 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 inadequacies ofthe statementwhen 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 statement ofbasis as affecting the validity of the final
CAAPP
permit
noras a reason
for voiding the Illinois EPA’s fmal permit decision.
Ifsuch challenges were recognized
14
ELECTRONIC FILING,
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18, 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 ultimately prepared to argue that the statement ofbasis that
was prepared in conjunction with the
CAAPP
pennit 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 ofthe permitting 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 ofsuccess
on themerits ofthecontroversy.
iii.
Significance of prior 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 beena function ofthe
relief sought by the petitioning party.
In several cases, theBoard has granted stays of the
entire CAM’? 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 for the contested permit conditions, again mirroringthe relief sought
j0
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,
PCSNo. 03-98,
slip
opinion
at
1-2
(February
6, 2003);
Saint-Gobain Containers,
Inc.,
v.
Illinois EPA,
PCB
No.
04-47,
slip
opinion
at
1-2
(Novembe
6,
2003);Champion Laboratories,
Inc.,
v.
Illinois EPA,
PCB No.
04-65, slip opinion at
1
(January 8, 2004);;
Midwest Generation,
L.L.C..
“.
illinois EPA,
PCB
No. 04-108,
slip
opinion
at
1
(January
22,
2004);
Ethyl
Petroleum Additives, Inc.,
v. Illinois EPA,
slip
opinion
at
1
(February 5, 2004);
Boardof
Trustees
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
party.”
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.’2
In the majority ofthe
afore-referenced cases, the Illinois EPA did not
actively
participate in the stay motions sought before theBoard due to theperennially-occurring
press ofothermatters.’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
of resources, it is doubtful that thefllinois EPA would have articulated weighty concerns,
as presentlyargued, with respect to the stay relief requested in earlier cases.
However,
following the Board’s last occasionto 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.’4
In the wake of this discovery, the illinois
EPA is now compelledto
observe that the Board’s earlier decisions affording blanket
stays to CAAPP pennits arguablyfell short ofexploring all ofthe relevant considerations
“
See, BridgestoneiFirestone
Off-road Tire Company v. Illinois EPA,
PCB 02-31
at
page
3
(November
1,
2001);
PPG Industries,
Inc.,
v.
Illinois EPA,
PCB No. 03-82,
slip opinion at
1-2 (February 6,
2003);
Abitec
Corporation
v. Illinois EPA)
PCI1 No.
03-95, slip
opinion
at
1-2 (February 20,
2003);
Noveon, Inc.,
v.
illinois EPA,
PCB No.04-102, slip’epinion 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,
PCB
No.
01-46,
consolidated
with
Georgia-Pact/ic
Tissue,
L.L.C.,
v.
illinois EPA,
PCS No. 01-SI;
General Electric
Company
i,
Illinois EPA,
PCB No.
04-
115
(January 22,2004).
I)
The
Illinois EPA did file ajoint motion in support of a stay
request seeking
protection
for contested
conditions
of a
CAAPP permit.
See,
Abitec Corporation
v.
Illinois EPA,
PCB
No.
03-95, slip opinionat
I-
2
(February 20,
2003).
‘~
Jim Ross, a former Unit Manager
for
the CAAPP Unitof 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 representatives and
the Illinois EPA
regarding
the impact ofsuch stays on the
severability requirements for CA.APP permits set forth in 40
C.F.R.
Part 70
and the Illinois CAAPP.
(See.
Supporting
Affidavit
of
Jim
Ross attached to this Motion).
16
ELECTRONIC FILING,
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16,
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 ofpermit
appeals
As discussed earlier in this Motion, the Illinois
CAAPP commands the illinois
EPA to incorporate conditions into a CAAPP
permit
that addressrequirements
concerning the “severability” of permit 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 other permit conditions in
the permit.
The severability provision is prominentlydisplayed 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 programmirrors the
provision promulgated by 1.JSEPA 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
forthis
CAMP provision is to
“ensure
the continued validity” ofthe ostensibly larger body of
permitting
requirements
that are
not being
challenged
on
appeal.
The
use
of theword
“various” in describingthose conditions that
are
severable is especially important when
compared with the later reference in the same sentence to “any portions” of the permit
that
are
contested.
Because the commonly understood meaning ofthe adjective
“various” is “of
diverse
kinds” or “unlike; different,” this wording demonstrates a
legislative intent to
contrast one disccmable
group of
pennit
conditions (i.e., uncontested
IS
It
is
noted
that
the
Board’sprior
nilings regarding
blanket stays of
CAAPP permits have
been
granted
contingent
upon
the
Board’s final action in the
appeal
or “until the Board ordersotherwise.”
17
ELECTRONIC FILING,
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conditions)
from the other another (i.e., contested conditions).
See,
The American
HeritageDictionary, Second College Edition; see also,
Webster’s New World Dictionary,
Third College Edition
(describingprimary use ofthe
term
as “differing
one
from another,
of several kinds”).
Given the clear absence of ambiguitywith this
statutory text, no other
reasonable meaning can be attributed to its language.
The Illinois EPA readily concedes that thepermit 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 CAMP 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.’6
Implicit in the statutory
language is an unmistakable expression aimed at preservingthe validity and effectiveness
of some segment ofthe CAMP permit during the appeal process.
This legislative goal
cannot be achieved if blanket stays are the convention.
Where the obvious intention of
lawmakers could be thwarted, reviewing courts must construe a statute in a manner that
effectuates its object arid purpose.
See, F.D.LC.
v.
Nihiser,
799 F.Supp.
904 (CD. 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
severabilityprovision.
At the very least, the existence of
the provision should givepause to the Board’s recent approach in evaluating stays
in
CAAPP permit appeals.
16
Any
such restriction may
not
be absolute, as the
Act’s
permit
content requirement does not necessarily
rule out the potential merits ofa blanket stay where a permit is
challenged in its entirety.
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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2005
It is noteworthy that one ofthe chiefgoals of the
CAA’s
Title V program is to
promote public participation, including the use of citizen suits to
facilitate compliance
through enforcement!7
The severability requirement of the Part 70 regulations, which
fonned the regulatory basis for Section
39.5(7)(i) of the Illinois CAMP, can be seen as
an extension ofthis 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 of stays sought by Petitioner and other coal-
fired CAAPP permittees in other appeals would cast a wide net.
Blanket stays of these
recently-issued CAMP permits would effectively shield an entire segment ofillinois’
utilities sector from potential enforcement based on Title 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.” Thesetypes of appeals 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 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 actuallyproceed 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
“
See,
David?. Novello,
The New
Clean Air Act OperatingPermitProgram: EPA
‘s Final Rules,
23
Environmental
Law Reporter
10080,
10081-10082
(February
1993).
19
ELECTRONIC FILING,
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18, 2005
handflul ofcases have been voluntarily dismissed
from theBoard’s docket, several of
these cases are, and will remain, pending with the Board formonths and/or years to
come, in part, because there is no ability to
resolvethem independent oftheir related
enforcement orpermitting 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 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
Forthe reasons explained above, the Illinois EPA moves the Board to deny the
Petitioner’s request for a stay of the effectiveness ofthe CAAPP permit in its entirety.
Respectfully submitted by,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
‘iZeo*
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
ELECTRONIC FILING,
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NOVEMBER
18, 2005
STATE OF ILLINOIS
COTJNTYOFSANGAMON
AFFIDAVIT
I, Jim Ross,being first duly sworn, depose and state that the followini statements
set forth in this jnstnunent are tire 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 tue:
1.
1 am.currently employed by the Illinois Environmental Protection Agency
(“Illinois EPA”) as a Senior Piiblié Ser’iiëe.Administrator professional engineer.
During
the early part of~004,
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 ofmy job responsibilities, I participated in frequent teleconference
calls with representatives from the United States Environmental Protection Agency
(“USEPA”)
at•Region V in Chicago, Illinois,
involving
various j,ending CAAPP permit
applications and issues pertaining to the administration ofthe CAAPP program.
By
virtue ofmy involvement
in the CAAPP permit review process, I am familiar with
communications between USEPAJRegion V and the Illinois EPAin March of2004
concerning an issue relating to stays obtained in CAAPP permit appeals before the
Illinois Pollution Control Board.
The issue was initially raised by a representative from
USEPAJRegion V, who expressed concern about the impact ofsuch stays upon thi
severability requirements of40 C.F.R. Part 70 and theillinois CAAPP.
3.
I have read the Motion prepared by the flhinoisEPA’s attàrneys relating to
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 J~Day ofNovember 2005
~oeka.C
+
OFFICIAL
SEAL
2
BRENDA
BOERNER
:
t
pcr*gy pint.
STATE
OF
01111o6
ELECTRONIC
FILING,
RECEIVED, CLERK’S OFFICE, NOVEMBER
18, 2005
CERTIFICATE OF SERVICE
I hereby certify that on the
18th day ofNovember 2005, I did send, by electronic
mail with prior approval, the following instruments entitled APPEARANCES,
MOTION IN OPPOSITION TO PETITIONER’S REQUfST FOR STAY and
AFFIDAVIT
to:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
100 West Randolph Street
Suite
11-500
Chicago, illinois
60601
and a true and correct copy ofthe same foregoing instrument, by First Class Mail with
postage thereon filly paid and depositedinto the possession ofthe United States Postal
Service, to:
Bradley P.
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
SchiffHardin, LLP
6600 Sears Tower
233
South Wacker Drive
Chicago, illinois 6060
Robb H. Layman
Assistant Counsel