ELECTRONIC FILING,
RECEIVED,
CLERK’S OFFICE,
NOVEMBER 18,
2005
BEFORE TUE ILLINOIS POLLUTION CONTROL
BOARD
OF TEE STATE OF ILLINOIS
DYNEGY MIDWEST GENERATION,
INC.)
(WOOD
RIVER
POWER STATION),
)
)
Petitioner,
)
)
PCB No. 2006-074
v.
)
(CAAPP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTIONAGENCY,
)
)
Respondent.
)
NOTICE
To:
Dorothy Gunn, Clerk
Sheldon A. Zabel
illinois Pollution Control Board
Kathleen C. Bassi
100 West Randolph 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 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
sen’ed upon the assigned Hearing Officerand the attorneys for the Petitioner.
Respectthlly submitted by,
Robb H. Layman
Assistant Counsel
Dated: November 18, 2005
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box
19276
Springfield, Illinois 62794-9276
(217) 524-9137
ELECTRONIC FILING,
RECEIVED,
CLERKS
OFFICE,
NOVEMBER
18,
2005
BEFORE
THE
ILLINOIS POLLUTION CONTROL
BOAR)
OF
TIlE
STATE OF
ILLINOIS
DYNEGY MIDWEST GENERATION, INC.)
(WOOD
RiVER POWER STATION),
)
)
Petitioner,
)
)
PCB No. 2006-074
v.
)
(CAAPP Pennit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
APPEARANCE
NOW
COMES Robb H.
Layman and enters his appearance on behalfofthe
Respondent,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, as one ofits
attorneys in the above-captioned matter.
Respectfully submitted by,
Robb H. Layman
Assistant Counsel
Dated: November 18, 2005
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O. Box 19276
Springfield, illinois 62794-9276
(217) 524-9137
ELECTRONIC FILING,
RECEIVED, CLERKS OFFICE,
NOVEMBER
18,
2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
DYNEGY MIDWEST GENERATION, NC.)
(WOOD RIVER POWER STATION),
)
)
Petitioner,
)
)
PCB No. 2006-074
v.
)
(CAAPP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
APPEARANCE
NOW COMES Sally Catter and enters her appearance on behalfof the
Respondent, ILLINOIS ENVIRONMENTAL PROTECTIONAGENCY, as one ofits
attorneys in the above-captioned matter.
Respectfully submitted by,
Sally C~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
TILE
STATE OF ILLINOIS
DYNEGY MIDWEST GENERATION, INC.)
(WOOD RIVER POWER STATION),
)
)
Petitioner,
)
)
PCB No. 2006-074
v.
)
(CAAPP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTIONAGENCY,
)
)
Respondent.
)
MOTION IN OPPOSITION TO
PETITIONER’S REOUEST FOR STAY
NOW COMES the Respondent, ILLINOIS ENVIRONMENTALPROTECTION
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 Air Act Permit Program (“CAAPP”)
permit issued
in the above-captioned matter.
INTRODUCTION
Actingin
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 DynegyMidwest Generation on September 29,
2005.
The permit authorized the operation of an electrical power generation facility
known as the Wood River Power Station.
The facility is located at #1
Chessen Lane in
Alton, illinois.
I
ELECTRONIC
FILING,
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NOVEMBER 18, 2005
On November 3, 2005, attorneys for
the
Petitioner filed this appeal (hereinafter
‘Petition”) with the Board challenging certain permit conditions contained withinthe
CAAPP permit issued by the illinois EPA.
The Illinois EPA received an electronic
version of theappeal on the same date.
Formal notice ofthe appeal was served upon the
Illinois EPA on November 7, 2005.
As part ofits Petition, Dynegy Midwest Generation seeks a stay of the
effectiveness ofthe entire CA.APP permit, citing two principal grounds for its requested
relief.
First, Petitioner alleges that
the CAAPP permit is subject to the automatic stay
provision of the illinois Administrative
Procedure Act (“APA’),
5 JLCS
100/1 0-
65(b)(2004)
.
As an alternative basis
fbr 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’s procedural requirements, the
Illinois EPA may
file
a response to any motion within 14 days after serviée ofthe motion.
See,
35 IlL Adm.
Code 101.500(d).
ARGUMENT
The illinois EPA urges the Board to
deny Petitioner’s request for a stay ofthe
effectiveness ofthe entire
CAAPP permit.
Forreasons that are explained in detail below,
Petitioner cannotavail itself ofthe protections
afforded by the APA’s automatic stay
provision as a matter oflaw.
Further, Petitionerhas failed to demonstrate sufficient
justification for theBoard to grant a blanket stay ofthe CAAPPpermit under its
discretionary stay authority.
Given the absence of an alternative request by Petitioner
seeking either a stay of contested CAAPP permit conditions or any otherrelief deemed
just and appropriate, theBoard 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 Petitionermaintains that the CAAPP permit in this
proceeding is subjectto the automatic stay provision ofthe APA.
See, Petition at page
5.
The automatic stay provision under the APA governs administrativeproceedings
involving
licensing, including a “new license with reference to any activity of a
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 CAAPP permit is
synonymous with a license that is ofa continuing nature.
See also,
5 ILCS 100/1-35
(2004)(defining “license” as the “whole or part ofany agencypermit... required by
law”).
In
its argument, Petitioner postulates 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 ThirdDistrict Appellate Court ruling from over
two decades ago, Petitioner reasons that the APA’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, 56111.
Dec.
335 (3”’ Dist.
1981).
The stay
provision would also apparentlyensure that the Petitioner continues to
abideby the terms
of”theexisting license which
shall continue in full force and effect.”
See, 5 JLCS
100/1-65(b)(2004).
In this case, that “existing license” is the underlying State operating
3
ELECTRONIC FILING,
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18, 2005
permits’ that have been separately governingthe facility’s operations since the illinois
EPA’s original receipt ofthe permit application.
See,
415 ILCS5/39.5 (4)(b)(2004).
The
Borg-Warner
decision upheld the APA’s automatic stay provision in the
context ofa renewal fora National Pollutant Discharge Elimination System (“NPDES”)
permit sought before the Illinois EPA.
Notably, the court observed:
“A final decision,
in the sense ofa
final and binding decision coming out of the
asiministrative process before the administrative agencies with decision making
power, will not be forthcoming in the instant caseuntil
the PCB rules on the
permit application.”
Borg-Warner,
56111.
Dec. at 341.
TheIllinois EPA concedes that the
Borg-Warner
decision may still reflect good law and that itprobably warrants, in the appropriate case,
application ofthe doctrineof
stare decisis
by Illinois courts.
Moreover, the Illinois EPA
observes that the ruling is apparently in perfect harmony with other
subsequent decisions
by Illinois courts that addressed the respective roles ofthe illinois EPA and the Board in
permitting matters under theAct.
In this regard, the illinois EPA is
fully cognizant ofthe
“administrative continuum” that exists with respect to the Board in most permitting
matters, and the CAAPP program itself does not reveal the General Assembly’s
intentions to change this administrative arrangement.
See, illinois EPA v.
illinois
Pollution
Control Board,
486 NE2d 293, 294
(3”’ Dist.
1985),
affirmed. illinois EPA
v.
Illinois Pollution Control Board,
503 NB2d 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 reviewingwhether a CAAPP permit should issue that ultimately
determines when the permit becomes final.
In
limited situations, it is possible that a facility’s operation during
the pending review of the
CA.APP
permit application was also authorized in a State construction permit.
4
ELECTRONIC
FILING,
RECEIVED, CLERK’S OFFICE,
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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 CAAPP permit appeal proceedings.
For one reason, the
APA’svarious provisions should not applywhere the General Assembly has effectively
exemptedthem from a particular statutory scheme.
One example ofthis exerciseof
legislative
discretion is found with administrative citations, which under
Section 31.1 of
the Act are not subject to
the contested case provisions 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 issuanceof CAAPP permits.
Section 39.5(7) of the Illinois CAAPP sets forth requirements governing the
permit content for every CAAPP permit issued by the illinois EPA.
See generally,
415
ILCS 5/39.S(7)(2004).
Section 39.5(7)(i) ofthe Act provides that:
“Each CAAPP permit issued under subsection 10 ofthis Section
shall include a
severability clauseto
ensure the continued validity ofthe various permit
requirements in the event of a challenge to
any portions ofthe permit.”
415 JLCS 5/39.5(7fl’i)(2004).
This provision represents something more than the trivial
or inconsequential dictates to an agency in its administration ofa permit program.
Rather, it clearly contemplates a legal effect upon a permitting action that extends beyond
the scope of thepermit’s terms.
In other
words, the
General Assembly was not simply
speaking to the Illinois EPA but, rather,
to a larger
audience.
By observing that a
component ofa CAAPP permit shall retain a “continued validity,”
lawmakers clearly
proscribed that the
uncontested conditions of a
CAAPP permit must continue to survive
notwithstanding a challenge to the permit’s other terms.
This language signifies an
5
ELECTRONIC FILING,
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18, 2005
unambiguous intent to exempi some segment of the CAAPP 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 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 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 forpermitting disputes, the earlier
rules referenced theBoard’s enforcementprocedures in providing specific requirements
for thepermit appeal process.
Theywere then, as they are today, contested case
requirements by virtue of their very nature.
The earliest version of the Board’s procedural
regulations was adopted on
October 8,
1970 in the R70-4 rulemaking and was subsequently published by the Illinois
Secretary ofState’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 of Part III contained a plethora ofcontested case
requirements,
including provisions
forthe filing ofa petition (i.e., Rule 304),
authorization for hearing (i.e., Rule 306), motion practice (i.e., Rule 308), discovery (i.e.,
Rule 313), conduct ofthe hearing (Rule 318), presentation of evidence (i.e., Rule 321),
examination ofwitnesses (i.e., Rules 324,
325 and 327) and
final disposition (i.e., Rule
322).
.
A later version ofthese rules, including amendments, was adopted by the Board
on August 29,
1974.
The ‘Procedural Rules” that originally guided 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 the Board’s
procedural rules may have evolved and expanded over time, thecore features ofthe
adversarial process governing these cases have remained substantiallythe
same,
including those rules governing CAAPP permit appeals.
Because the Board had such
procedures in place prior to July
1,
1977, those procedures effectively secured the
Board’s exemption from the APA’s contested case requirements.
And so long as those
underlying
procedures historically satisfied
the
grandfathering clause, it should not matter
that the Act’s CAAPP program was enacted some twenty years later.
After all, it is the
procedures
applicable to contested cases and their
point
oforigin that is relevant to this
analysis, not the advent ofthe permitting program itself.2
2
PetitioneT may counter
that
the
Borg-Wanser
decision is at odds
with this argument and that part
of the
appellate court’s ruling 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
grandfathering clauseis inapposite
here.
The NPDES rules at issue were written in a way that conditioned their effectiveness
upon a
future event.
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IL
The CAAPP permit
issued
by
the
Illinois
EPA
should
not
be
stayed in
its entirety
by
reason of Petitioner’s
alleged justifications.
Separate and apart from its APA-related argument, Petitioner offersthe Board
an
alternative basis for granting a blanket stay ofthe CAAPP permit.
Specifically,
Petitioner suggeststhat the Board stay the entire CAAPP permit as part ofits
discretionary stay authority.
See, Petition at pages 5-7.
While thereasons put forward
by Petitioner might have sufficed to justify 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 mustermore persuasive
arguments
on this issue, the fllinois EPA questions whether such an all-encompassing remedy is
appropriate under any circumstances.
Notwithstanding the Board’s recent practice in
other C/SAP? appeals, the Illinois EPA has come to regard blanket
stays of
CAAPP
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.
The
Board has
frequently
granted stays
in permit proceedings, often citing to the
various
factors
considered by fllinois
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
Whenthe event actually took place, the
effectiveness of the rules occurred after
the July
1,
1977, date
established in
the
grandfathering clause.
More importantly,
in
addressing
an issue that was not central to
the appeal, the appellate court appears tohave erroneously placed too much
emphasis
on the
substantive
permitting
procedures of the NPDES program, rather than those
procedures
applicable to the Board’s
contested
case
hearings.
A proper
construction
ofthe
MA
demands that
the focus be placed on the
existing
procedures
“specifically for contested cases or licensing.”
5
FLCS
100/1-5(a) (2004).
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ELECTRONIC FILING,
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18, 2005
probability of success on the merits ofthe controversy.
See, Bridgestone/Firestone Off-
road Tire Company
v.
Illinois EPA,
PCB 02-31
at page
3 (November
1, 2001);
Community Landfill Company and City ofMorris
v. Illinois EPA,
PCB No. 01-48 and 01-
49 (consolidated) at page
5
(October 19, 2000), citing
Junkunc
v.
Si
Advanced
Technology & Manufacturing,
498 N.E.2d 1179
(15t Dist.
1986).
However, theBoard has
noted that its consideration is not confined exclusively to those factors nor must each one
of those factors be considered by the Board in 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 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 oftherelevant factors in
this analysis.
See, Petition
at pages 5-7.
The Illinois EPA generally accepts that
Petitioner should not be required to
expend exorbitant costs in complying with challenged
monitoring, reportingor record-keeping requirements ofthe CAAPP permit until after it
is provided its proverbial “thy in court.”
Petitioner’s right ofappeal likewise should not
be cut short or rendered moot because itwas unable to obtain a legal ruling before being
9
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required to comply with those terms ofthe permit that are deemed objectionable.
The
Illinois EPArecognizes thesereasons as a legitimate basis for authorizing a stay of
permit conditions contested on appeal. However, they are not at all instructive to
Petitioner’s claim that a stay ofthe entire CAAPP permit
is needed.
Judging by a fair reading ofthe Petition,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 ofemissions
that are purportedly beyond the
scope
ofthe illinois EPA’s
statutory pennit
authority.
If
the vast majority ofthe permit’s terms areuncontested, it cannot logically follow that the
absence of a stay
for those conditions will prevent the Petitioner from exercising a right
ofappeal.
Similarly, it
is difficult to discern why Petitioner’s compliance with
uncontested permit
conditions would cause irreparable hann, especially ifone 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
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
(EAB,
February
18,
2005).
Aside from
the
conditions
lawfiutly
imposed
by the
Illinois
EPA
for
periodic
monitoring and
other
miscellaneous matters.
the
remainder
of
the CAAPP perñiit
should
be
comprised of the pre-existing requirements
that
were
previously permitted.
A
casualcomparison
of
the CAAPP permit and
the
Petition
suggests that the
present
appeal only
calls into question a
relatively small
fraction
of
permit conditions contained
in the
overall
CAAPP permit.
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IL
Other related factors
Petitionerargues
that
the absence ofa blanket stay would cause “admipistrative
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 pages 6-7.
The fllinois EPA takes
exception
to a key assumption in
thePetitioner’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 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 may have expired, “until
the
source’s CAAPP
permit
has been issued.”
See,
415 ILCS 5/39.5(4)(b) (2004)
.~
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 reasonably intended for a source’s obligation to end upon permit issuance, onlyto
~
Petitioner also references Section 9.1(0 of the Act as a source of authority 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.
Iffi
applies
only to New Source Review permits issued under the
authority
ofthe
CAA,
not
CAAPP
permits specifically
governedby
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 superceding effect
on the State operating permit delayed
until
permit effectiveness.
Petitioner apparently reads the
above-referenced provisions as thoughthey apply
to the Board’s final action in this appeal.
See,
Petition at page
5.
However, this
argument
ignores other provisions of the Act that clearly depict the Illinois EPA as the
permit-issuer.
No clearer evidence of this intent
can be found than 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 ILCS5/39.5 (9)(2004)
.~
Other
provisions ofthe Act similarly
establish that permit issuance denotes the action of the 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 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 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 ILCS 5/39.5(9)(b)(noting
requirement
that
the
Illinois
EPA shall not ‘issue” the proposed
permit if USEPA provides a
written
objection
within the 45 day
review period);
4/5 ILCS
5/39.5~9)~(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
ILCS
5/39.5(9)(g)(observing requirements
for
whenever
a USEPA objection is received by the Illinois
EPA
following
its
issuance of
a
permit
after the
expiration
of
the 45-day review
period and prior 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 of
a petition with USEPA,
See. 4/5 ILCS
5/39.5(9)(J).
6
The requirements in
Section
39.5(10),
entitled “Final
Agency Action,”
recognize the standards
for
permit issuance by the Illinois EPA.
415 JLCS 5/39.5(10)(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 conditionsas
a
basis
for appeal to the
Board.
See,
415
!LCS
S/40.2(’a)(2004).
The
latter provisionseven
go so far as to
reference “final permit action”
in relation to the
Illinois
EPA’s permit decision.
Id.
12
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determining
whether
a
permit issued
by the Illinois EPA becomes final, should not color
the meaning ofother legal terms.7
The issuance or effectiveness of a
CAAPP permit
is
functionally distinct from
the legalisms associated with when a
CAAPP
permit
becomes
final.
Even putting aside the legal semantics posed by this issue,
the thrust
of
Petitioner’s argument misses its mark.
Any
confusion stemming from
the appeal phase
of the Title
V program should be fairly modest compared 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 of major emissions
and they frequently did not address the applicability of all 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 of a unilorm federal
permitting system.9
By trying to breath life into the State operating permits beyond the
date of the Illinois
EPA’s pennit issuance, Petitioner’s argument would actually prolong
one of the very problems that the Title V permitting scheme was meant to remedy.
As a practical
matter,
Petitioner’s
requested relief helies 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 Clean Air
Ac: Operating
Penn
it Program:
EPA
‘s Final
Rules.
23
Environmental Law Reporter 10080,
10081-10082 (February
1993).
~
Id.
13
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Petitioner also mentions in passing that the Illinois EPA’s failure to provide a
sufficient statement ofbasis
forthe
CAAPP
permit is
another
reason for staying the entire
permit.
Petition
at page
7.
Because Petitioner treats
this
issue
separately in
its Petition,
the flhinois EPA will not fully address themerits of the
argument in this Motion.
However, the Illinois EPA will briefly respond to the issue as itrelates to the Petitioner’s
request for stay.
The statement ofbasis envisionedby the statute
is an
informational requirement
that
is meant to facilitate both thepublic
and
TJSEPA’s
understanding
ofthe permit
decision in the
draft phase
of
permitting.
See, 415
ILCS5/39.5(8)(b)(2004j
It is not
a
part
of, nor does it otherwise affect, the content ofthe CAMP 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
lawfully render 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 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 inadequacies ofthe 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 statement ofbasis as affecting the validity of the
final CAAPP permit nor as areason
for voidingthe nlinois EPA’s final permit decision.
if such challenges were recognized
14
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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 CAMP permit was
sufficiently
adequate
as to
comply with the Act.
Alternatively, the Illinois EPA is prepared to contend that the
statement of
basis
requirement is predominantly
procedural
in
nature,
is confined to the
preliminary stages of the
permitting
process
and
arguably lacks sufficiently intelligible
standards as to serve as a basis forenforcement.
In any event, the Board should deny the
Petitioner’s request for stay on
any grounds relating
to
this issue.
On thewhole, the
Petitioner’s charge
that
the statement ofbasis affectsthe entire permit is unsupported by
law and
fails to
demonstrate a
probability of success on the merits of the controversy.
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 been a function
of the
relief sought by thepetitioning
party.
In several cases,
the
Board has granted
stays ofthe
entire
CAAPP permit, usually
doing so
without much substantive discussion.’°
Curiously, all excepting one ofthe 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
‘°
See.
Lone Star industries, Inc.,
v. Illinois EPA,
PCB No. 03-94, slip opinion at 2, (January 9, 2003);
Nielsen
~&
Bainbridge,
L.L.C..
v. illinois EPA,
PCB
No.
03-98, slip opinion
at
1-2
(February 6, 2003);
Saint-Gobain Containers, Inc.,
i’.
Illinois EPA,
PCB No.
04-47,
slip
opinion at 1-2 (Novembe 6,
2003);Champion
Laboratories,
Inc.,
v. Illinois EPA,
PCB No. 04-65, slip opinion at
I
(January
8, 2004);;
Midwest Generation, L.L.C..
v. Illinois EPA.
PCB No.
04-108, slip opinion at
1
(January
22,
2004);
Ethyl
Petroleum Additives,
Inc.. v.
Illinois
EPA,
slip opinion
at
I
(February
5,
2004);
Board
of
Trustees
of
Eastern
Illinois
University v. Illinois EPA,
PCB No. 04-110, slip opinion at
I (February
5,
2004).
15
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2005
by the petitioning
party.’1
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.
12
In the majority of the afore-referenced cases, the Illinois EPAdid not actively
participate in the stay motions
sought
before the Board due to theperennially-occurring
press 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 absenceof a lack
ofresources, it is doubtflul that the illinois EPAwould have articulated weighty concerns,
as presently argued, with respect to the stay relief requested in
earlier
cases.
However,
following the Board’s last occasion to act on a blanket stay request in a CAAPP permit
appeal, Illinois EPA officials
became
aware ofthe potential implications posed by stays
on the existing Title V
program approval)4
In
the wake of
this
discovery, the flhinois
EPA
is now compelled to observe that
the Board’s earlierdecisions affordingblanket
stays to CAAPP permits
arguably fell short ofexploring all
ofthe relevant considerations
“
See,
Bridgestone/Firestone Off-road
Tire Company v. Illinois EPA,
PCB 02-3!
atpage 3 (Noventer
1,
2001);
PPG Industries, Inc.,
v. Illinois EPA,
PCB
No.
03-82,
sup
opinion at 1-2 (February 6, 2003);
Abitec
Corporation
v.
Illinois EPA,
PCB
No. 03-95, slip opinion at
1-2
(February 20,
2003);
Noveon, Inc.,
v..
Illinois
EPA,
PCB No. 04-102, slip
opinion at 1-2 (January 22, 2004);
Oasis Industries, Inc.,
v.
Illinois
EPA,
PCB
No.
04-116, slip opinion
at
1-2
(May 6,2004).
~
See, XCTC Limited Partnership.
v. Illinois EPA,
PCB
No.
01-46,
consolidated
with Georgia-Pac~Ic
Tissue,
L.LC,
v.
Illinois
EPA,
PCBNo. 01-51;
General Electric Company
v. Illinois EPA,
PCB
No. 04-
115
(January 22,2004).
“
The Illinois
EPA
did file ajoint motion in support
ofa
stay request seeking protection forcontested
conditions
of
a CAAPP
permit.
See, Abitec
Corporation
v.
Illinois EPA,
PCBNo. 03-95, slip opinion at
I-
2
(February 20, 2003).
14
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/kegion V representative in
March
of 2004 pertaining
to
the
broad
nature
ofthe
stays obtained in
CAAPP
permit appeal
proceedings
befoTe the Board.
This
initial
inquiry led to further discussionbetween USEPA/Region V
representatives
and the
Illinois EPA
regarding the
impact
of such
stays on
the
severability
requirements
for CAAPP
pennits
set forth in 40
C.F.R. Pan 70 and
the
Illinois
CA.APP.
(See, Supporting Affidavit ofJim Ross attached to this Motion).
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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 CA.APP and common attributes ofpermit
appeals
As discussed
earlier in this Motion, the illinois CAAPP
commands the Illinois
EPA to
incorporate
conditions into a
CA.APP
permit that address requirements
concerning
the “severability” of
permit
conditions.
See,
415 ILCS 5/39.5(7)(1) (2004).
To
this
end, every
CAAPP
permit is required to contain a permit condition
severing those
conditions challenged in
a subsequent permit appeal from the other pennit conditions in
thepermit.
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 TJSEPA in
its
regulations implementing Title V ofthe CA/I.
See.
40 C.F.R. §70.6(a)(5)(July 1,2005 edition).
As is evident
from
the
statutory
language, the obvious legislative intent for
this
CAAPP
provision is to
“ensure
the continued
validity”
ofthe ostensibly larger body of
permitting requirements
that
are
not being challenged on appeal.
The use ofthe word
“various” in describing those conditions
that
are severable is especially important when
compared with the later reference
in the same sentence to
“any
portions” ofthe permit
that
are
contested.
Because the commonly understood meaning ofthe adjective
“various” is
“of
diverse kinds” or “unlike; different,” this
wording demonstrates a
legislative intent to contrast one discernable group ofpermit conditions (i.e., uncontested
‘~
It is noted
that
the Board’s prior rulings regarding
blanket
stays of CAAPP pemuts have been granted
contingent upon the Board’s final
action in the
appeal or
“until
the Board
orders otherwise.”
17
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2005
conditions)
from
the other another (i.e., contested conditions).
See,
The American
Heritage Dictionary,
Second College Edition; see also,
Webster’s New World Dictionaiy,
Third College Edition
(describing
primary use
ofthe 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
the permit content
requirements
ofthe
CAA and
the Illinois
CAAPP
are not directly binding on theBoard.
However, while the
Illinois
EPA’s mandate under
Section 39.5(7)(i) ofthe Act’s CAAPP program does not,
on its face, affect the Board, the provision could arguably be read as a limited restriction
on the
Board’s
discretionary stay
authority
in CAMP
appeals.’6
Implicit in the
statutory
language is an unmistakable expression aimed at preserving the validity and
effectiveness
ofsome segment ofthe CAJAIPP 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
and
purpose.
See, F.D.LC. v.
Nihiser,
799
F.Supp.
904 (C.D. Ill.
1992);
Co.staneda
v. Illinois Human Rights Commission,
547
N.E.2d 437 (Ill.
1989).
In
this
instance, the Board should recognize an
inherent limitation of its stay authority by
virtue ofthe Illinois CAAPP’s severability provision.
At the
very least,
the existence of
the provision should give pause 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
nile
out
the potential
merits
ofa blanket say
where a permit
is
challenged in its
entirety. As
previously
mentioned, the Illinois EPA disputes the merits ofPetitioner’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 ofthe chiefgoals ofthe CAA’s Title V
program
is to
promote public participation, including the use ofcitizen suits to
facilitate compliance
through enforcement.’7
The severabilityrequirement ofthe
Part
70 regulations, which
formed the regulatory basis for Section 39.5(7)(i) ofthe Illinois CAAPP, can be seen as
an extension ofthis endeavor.
Blanket stays of
CAAPP permits
could arguably lessen
the opportunities for
citizen
enforcement in an area that
is teeming
with
broad public
interest.
Moreover, thecumulative effect of stays sought by Petitioner and other coal-
fired CAAPP pennittees
in other appeals would cast a
wide net.
Blanket stays of these
recently-issued CAAPP permits would effectively shield an
entire segment of illinois’
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 of
permit
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
ofappeals
are
frequently filed because a particular permit
condition
affects
an issue relating to on-going or
future
enforcement proceedings.
Alternatively, these cases may
entail
some other kind of contingency necessitating
additional permit review, a new permit application
and/or
obtaining a revised permit from
the Illinois EPA.
Only rarely does a permit appeal actuallyproceed to
hearing.
Based on the Illinois
EPA’s estimation, nearly all of the CAMP permit appeals
filed with
the Board to date could be aptly described as “protective appeals.”
While a
‘~
See,
David P.
Novello,
The
New
Clean
AirAct Operating Pennit Program.’ EPA’s Final Rules.
23
Environmental
Law Reporter 10080, 10081-10082 (February
1993).
19
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handfiul of
cases have
been voluntarily dismissed from the Board’s docket, several of
these cases are, and will remain, pending with the Board for months and/or years to
come, in part, because there is no
ability to resolve them independentoftheir 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 ofa CA.APP permit stayed
in its entirety will be delayed
from taking effect, in spite ofbearing no relationship to the
appeal or its ultimate outcome.
To allow this wider 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, the illinois EPA moves the Board to deny the
Petitioner’s request for a stay ofthe effectiveness of the 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, fllinois 62794-9276
(217) 524-9137
20
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18, 2005
STATE
OF
ILLThIOIS
COUNTY OF SANGAMON
•
AFFIDAVIT
I, Jim Ross, being first duly sworn, depose and state that the following statements
set forth in
this instrument are true and
correct, except as to matters therein stated to on
information
and belief and, as to
such matters, the undersigned certifies that he believes
the same to be true:
1.
I armcune
tly enplo
ted by the
Illinois Environmental Protection Agency
(“illinois EPA”) as asenior Pubilé
SeM~44dministrator
professional engineer.
During
the earlypart of
2004,
I was the Manager ofthe Clean Air Act Permit Program
(“CAAPP”) Unit in the Division of AirPollution Control’s Permit Section, whose offices
are located at
1021 North GrandAvenue East, Springfield, illinois.
I havebeen
employed with the illinois EPA since May
1988.
2.
As
part
of my job responsibilities, I participated in
frequent teleconference
calls with representatives from the United States Environmental Protection Agency
(“tJSEPA”) atRegion V in Chicago, Illinois, involving various ‘pending CAAPP permit’
applications and issues pertaining to the administration of the CAAPP program.
By
virtue ofmy involvement
in the CAAPP permit review process, I am familiarwith
communications between USEPA/Region V and the Illinois EPAin March of2004
concerning an issue relating to stays obtained in CAAPP permit appeals befórd the
Illinois Pollution Control Board.
The issue
was initially raised by a representative from
USEPA/Region V. who expressed concern about the impact ofsuch stays upon thà
severability requirements of
40 C.F.R. Part 70 and the Illinois CAAPP.
3.
I have
read the Motion
prepared by the illinois EPA’s
attorneys relating to
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NOVEMBER 18, 2005
this matter and, thither, find
that the facts set
forth in
said responses
and
answers
are true,
resjSonsive and complete to thebest ofmy knowledge and
belief.
Subscribed and Sworn
To Before Me this ,LjDay of November 2005
~Oek)r9~RT
•+4+$4$4*+++4t4+$t
~.
OFFICIAL
SEAL.
.
*
BRENDA BOEMNER
:
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?CTMYPUBUCISTATEOF IWIGS
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MY GOSSISSION EIWflS
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sayet~3q~
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 REQUEST FOR STAY and
AFFIDAVIT
to:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
100
West Randolph Street
Suite 11-500
Chicago, illinois
60601
and a true and
correct copy of
the same foregoing instrument, by First Class Mail with
postage thereon filly paid and deposited into thepossession ofthe 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
KavitaM.
Pate!
Chicago, Illinois
60601
Schiffllardin, LLP
6600
Sears Tower
233 South Wacker Drive
Chicago, illinois 6060
Robb H. La~ian
“J
Assistant Counsel