ELECTRONIC
FILING,
RECEIVED, CLERKS
OFFICE,
NOVEMBER
18, 2005
BEFORE THE
ILLINOIS POLLUTION
CONTROL BOARD
OF TUE STATE OF ILLINOIS
THE CITY OF SPRINGFIELD,
)
a municipal corporation,
)
)
Petitioner,
)
)
PCB No. 2006-075
v.
)
(CAAPP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE
To:
Dorothy Gunn, Clerk
Cynthia A. Faur
Illinois Pollution Control Board
Mary A. Gade
100 West Randolph Street
Elizabeth A. Leifel
Suite 11-500
Sonnenschein Nath & Rosenthal, LLP
Chicago, Illinois
60601
8000 Sears Tower
Chicago, illinois 60606
Carol
Sudman
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
P.O. Box
19274
Springfield, illinois 62794-9276
PLEASE TAKE NOTICE that I have today electronically filed with the Office of
the Clerk ofthe Illinois Pollution Control Board the APPEARANCES, MOTION IN
PARTIAL OPPOSITION TO, AND PARTIAL SUPPORT OF, PETITIONER’S
REQUEST FOR STAY
and AFFIDAVIT of the Respondent. illinois Environmental
Protection Agency, a copy ofwhich is herewith served upon the assigned Hearing Officer
and the attorneys for the Petitioner.
Respectfully submitted by,
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
TIlE STATE OF ILLINOIS
THE CITY
OF
SPRINGFIELD,
)
a municipal corporation,
)
)
Petitioner,
)
)
PCB No. 2006-075
v.
)
(CAMP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTIONAGENCY,
)
)
Respondent.
)
APPEARANCE
NOW COMES Robb H. Layman and enters his appearance on behalfofthe
Respondent, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, as one of its
attorneys in the above-captioned matter.
Respectfully submitted by,
RobbH. Layman
Assistant Counsel
Dated: November
18, 2005
Illinois Environmental Protection Agency
1021
North Grand Avenue East
P.O. Box
19276
Springfield,
Illinois 62794-9276
(217)524-9137
ELECTRONIC FILING,
RECEIVED, CLERK’S OFFICE, NOVEMBER
18, 2005
BEFORE
TIlE ILLINOIS POLLUTION
CONTROL BOARD
OF ‘rilE STATE OF ILLINOIS
THE CITY OF SPRINGFIELD,
)
a municipal corporation,
)
)
Petitioner,
)
)
PCB No. 2006-075
v.
)
(CAAPP Pennit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTIONAGENCY,
)
)
Respondent.
)
APPEARANCE
NOW COMES Sally Carterand enters her appearance on behalfof the
Respondent, ILLINOIS ENVIRONMENTALPROTECTION AGENCY, as oneofits
attorneys in the above-captioned matter.
Respectfl.zlly submitted by,
Sally C$rter
Assistant Counsel
Dated: November 18, 2005
flhinois 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
THE CITY OF SPRINGFIELD,
)
a municipal corporation,
)
)
Petitioner,
)
)
PCB No. 2006-075
v.
.
)
(CAAPP. Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION IN PARTIAL OPPOSITION TO,
AND PARTIAL SUPPORT OF,
PETITIONER’S REOUEST FOR STAY
NOW COMES the Respondent, ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY (“illinois EPA”), by
and through its attorneys, and moves the Illinois Pollution
Control Board (“Board”) to deny,
in part, and approve, in part, the Petitioner’s, THE
CITY OF SPRINGFIELD,
a municipal corporation (hereinafter “City ofSpringfield” or
“Petitioner”),
request for a stay ofthe effectiveness ofthe Clean Air Act Permit Program
(“CAMP”) permit issued
in the above-captioned matter.
INTRODUCTION
Acting in accordancewith its authority under the CAMP provisions ofthe
illinois Environmental Protection Act (hereinafter “Act”),
415 ILCS 5/39.5(2004),
the
illinois EPA issued a CAAPP permit to the City ofSpringfield on September 29, 2005.
The permit authorized the operation ofan electrical power generation facilityknown
collectively as the Dallman and Lakeside Stations.
The facility is located at 3100
Stevenson Drive, in Springfield, illinois.
1
ELECTRONIC
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18, 2005
On
November 3,
2005,
attorneys for the Petitioner filed this appeal (hereinafter
“Petition”) with the Board challenging certain permit
conditions contained within the
CAMP permit issued by the illinois EPA.
Formal notice ofthe appeal was served
upon
the Illinois EPA on November 7,
2005.
In a separate Motion to its Petition, the City of Springfield seeks a stay ofthe
effectiveness ofthe entire CAAPP permit, citing two principal grounds for its requested
relief.
First, Petitioner alleges that the CAAPP permit is subject to the automatic stay
provision ofthe illinois Administrative
ProcedureAct (“APA”),
5 JLCS 100/10-
65(b)(2004).
As an alternative basis
for a blanket
stayofthe CAAPP permit, Petitioner
alleges facts intended to support the Board’s use of its discretionary stay authority.
Finally, Petitioner seeks a stay ofthe contested conditions of the CAAPP pennit in the
event that the Board denies its request for a blanket stay.
In accordance with the Board’s procedural requirements, the illinois EPA may file
a response to
any motion within 14 days after service of the motion.
See, 351/i Adm.
Code 101.500(d).
ARGUMENT
The Illinois EPA urges the Board to deny Petitioner’s request for a stayof the
effectiveness ofthe entire CAAPP permit.
For reasons that are explained in detail below,
Petitioner cannot avail itself oftheprotections afforded by the APA’s automatic stay
provision as a matter of law.
Further, Petitioner has failed to demonstrate sufficient
justification for the Board to
grant a blanket stay ofthe CAAPP permit under its
discretionarystay authority.
The illinois EPA supports the Petitioner’s limited stay ofthe
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ELECTRONIC FILING, RECEIVED, CLERKS
OFFICE,
NOVEMBER 18, 2005
CAAPP permit, which confines the stay relief only to the pennit conditions contested in
the appeal.
I.
The CAAPP permit issued by the Illinois EPA should not be stayed in
its entirety by reason of the APA’s automatic stay provision.
The first argument raised by Petitioner maintains that the CAAPP permit
in this
proceeding is subject to the automatic stay provision of the APA.
See, Petition at pages
1-2.
The automatic stay provision under the APA governs administrative proceedings
involving
licensing,
includinga “new license with reference to any activity ofa
continuing nature.”
See,
S ILCS 100/10-65(b).
The CAMP 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 of a continuing nature.
See also,
5 ILCS 100/1-35
(2004)(defining “license” as the “whole or partof any agency permit... required by
law”).
In its argument, Petitioner contends that the APA automatically stays the
effectiveness ofthe CAAPP permit until
after the Board has rendered a final adjudication
on the merits ofthis appeal.
Citing to a Third District Appellate Court ruling from over
two decades ago, Petitioner suggests that the APA’s stay provision continues to apply
throughoutthe 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.E2d 415,56 ill. Dec. 335 (3~
Dist.
1981).
The stay
provision would
also apparently ensure that the Petitioner continues to abide by the terms
of“the existing license (which
shall continue in full force and effect.”
See,
5 JLCS
100/J-65(b)(2004).
In this case, that “existing license” is the underlying State operating
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18, 2005
pennits’
that have been separately governing the facility’s operations since the illinois
EPA’s original receipt of the permit application.
See,
415 ILCS 5/39.5(4)(b)(2004).
The
Borg-Warner
decision upheld the APA’s automatic stay provision in the
context 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 of the
administrative process before the administrative agencies with decision making
power, will not be forthcoming in the instant case until the PCB rules on the
permit application.”
Borg-Warner,
56111. Dec.
at 341.
The Illinois EPA concedes that the
Borg-Warner
decision may still reflect good law and that it probably warrants, in the appropriate case,
application of the doctrine of
stare decisis
by Illinois courts.
Moreover, the Illinois EPA
observes that 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.
In this regard, the illinois EPA is fully cognizant of the
“administrative
continuum’~
that exists with respect to theBoard in most permitting
matters,
and
the
CAAPP
program itselfdoes 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 NE2d 343,
345(111.
1986);
ESG
Watts, Inc.,
v.
illinois Pollution
Control Board,
676 N.E.2d 299, 304
(3T~I
Dist.
1997).
Thus, it is the
Board’s decision in reviewing whether a CA.APP permit should issue that ultimately
determines when the
permit becomes final.
In
limited
situations, it is
possible
that a facility’s operation during
the
pending review
of the
CAAPP
permit application
was
also
authorized ina
State
construction permit.
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ELECTRONIC
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18, 2005
While the
Borg-Warner
opinion may offer some interesting reading, it does not
provide a proper precedent
in this case.
This conclusion canbe arrived because the APA
simply does not apply to these CAAPP permit appeal proceedings.
For one reason, the
APA’s various provisions should not apply where
the General Assembly has effectively
exempted them from
a particular statutory scheme.
One example ofthis exercise of
legislative discretion is found with administrative citations, which under Section
31.1 of
the Act are not subject to the contested case provisions ofthe APA.
See,
415 ILCS
5/31.1(’e)(2004).
In the case ofthe Act’s CA.APP provisions, a similar basis for
exemption is provided by the permit severability requirements that
govern the illinois
EPA’s issuance ofCAAPP permits.
Section 39.5(7) ofthe Illinois CAAPP sets forth requirements governing the
permit content for every CAAPP permit issued by the fllinois EPA.
See generally,
415
ILCS 5139.5(7)(2004).
Section 39.5(7)(i) ofthe Act
provides
that:
“Each CAAPP permit issued under subseètion
10 of this Section shall include a
severability clause to ensure the continued validity ofthe various permit
requirements in the event of a challenge to any portions ofthe permit.”
415 ILCS 5/39.5(7)(Q(’2004).
This provision represents something more than the trivial
or inconsequential 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 ofthe permit’s terms.
In other words, the General Assembly was not simply
speaking to the Illinois EPA but, rather, to a larger audience.
By observing that a
component 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 thepermit’s otherterms.
This language signifies an
5
ELECTRONIC FILING,
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18, 2005
unambiguous intent to exempt 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 suggeststhat the APA’s automatic stay provision applies by
virtue of the licensing that
is being obtained through the CAAPP permitting process.
However, the APA contains a grandfathering clause that specifically exempts an
administrative agency that previously possessed “existing procedures on July
1, 1977” for
contested
case or licensing matters.
See. 5 ILCS 100/1-5(a)(2004).
Where such
provisions were in existence prior to theJuly
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 of theBoard’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, effectivethrough February
14, 1974, and they required such proceedings
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ELECTRONIC FILING,
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18, 2005
to be conducted according to theBoard’s Part III 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 of contested case
requirements, including provisions for the filing of a petition (i.e., Rule 304),
authorization for hearing (i.e., Rule 306), motion practice (i.e., Rule 308), discovery (i.e.,
Rule 313), conduct ofthehearing (Rule 318), presentation ofevidence (i.e., Rule 321),
examination of witnesses (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 35111.
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 substantially the same,
including those rules governing CAAPP permit appeals.
Because the Board had such
procedures in place prior to July
1,
1977, those procedures effectively
secured the
Board’s exemption from the APA’s contested case requirements.
And so long as those
underlying procedures historically satisfied the grandfathering clause, it should not matter
that the Act’s CAAPP program was enacted some twenty years later.
After all,
it is the
procedures applicable to contested cases and their point of origin that is relevant to this
analysis, not the advent ofthe permitting program itself.2
2
Petitioner may counter
that the
Borg-Warner
decision
is
at odds
with this argument and
that part of-the
appellate
court’s
ruling held that the APA’s
grandfathering clause did not
apply to the Board’s rules for the
NPDES permit
program.
The
court’s
discussion on
the
issue of
the
grandfathering clause is inapposite
here.
The NPDES rules
at
issue
were
written ina way that conditioned their
effectiveness upon
a figure event.
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II.
The CAAPP permit
issued by the
Illinois
EPA should not be stayed in
its
entirety by reason of
Petitioner’s alleged justifications.
Separate and apart from its APA-related argument, Petitioner offers the Board
an
alternative basis for granting a blanket stay ofthe CAAPP permit.
Specifically,
Petitioner suggests that theBoard stay the entire CA.APP permit as part of its
discretionary stay authority.
See, Petition at pages 2-4.
While the reasons put forward
by Petitioner suffice to justify a stay ofthe CAAPP permit’s contested conditions,
Petitioner fails to demonstrate a clear and convincing need for a broader stay.
Even if the
Petitioner could muster more persuasive arguments on this issue,
the Illinois EPA
questions whether such
an all-encompassing remedy is appropriate under any
circumstances.
Notwithstanding the Board’s recent practice in other CAAPP appeals, the
illinois EPA has come to regard blanket stays ofCAAPP permits
as incongruous with the
aims ofthe Illinois CAAPP and needlessly over-protective in light of attributes common
to these appeals.
Section 105.304(b) ofTitle 35 of the Board’s procedural regulations provides that
a petition for review of a CAAPP permit
may include
a request for stay.
TheBoard has
frequently granted stays in permit proceedings, often citing to the various factors
considered by Illinois courts at common
law.
The factors that
are
usually examined by
the Board include the existence of a clearly ascertainable right that warrants protection,
irreparable injury in the absence ofa stay, the lack ofan
adequate legal remedy and
a
When the event actually took place,
the
effectiveness ofthe rules
occurred after the July
1,
1977, date
established in the grandfathering 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 suktantive
permitting procedures
ofthe NPDES
program, rather than
those procedures applicable to
the Board’s
contested case hearings.
A
proper construction of the APA demands
that the
focus be placed
on the
existing procedures “specifically for contested cases or licensing.”
5 JLCS 100/1-5(a)(2004).
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and 0l-~
probability ofsuccess on the merits of the 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 ofMorns
v. illinois EPA.
PCB
No. 01-48
49 (consolidated) at page
5
(October
19, 2000), citing
Junkunc
v. S.J Advanced
Technology & Manufacturing,
498
N.E.2d
1179
(ist
Dist.
1986).
However, the Board has
noted that
its consideration is not confined exclusively to those factors nor musttaelrone
ofthose factors be considered by the Board in every case.
See, Bridgestone/Firestone
at
page
3
TheBoard has commonly evaluated stay requests with an eye toward the nature
of the 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 detemiinatiori.
Bridgestone/Firestone
at page 3.
The
Board has also afforded special
attention to the “likelihood ofenvironmental harm” for
any
stay that may be granted.
See, Bridgestone/Firestone
at page 3;
A bitec Corporation
at 1;
CommunityLandfill Company and City ofMorris
v. illinois EPA.
atpage 4.
i.
Consideration
oftraditional factors
Petitioner’s Motion addresses several ofthe relevant factors in this analysis.
See,
Motion at pages 2-4.
The Illinois EPA generally accepts that Petitioner should not be
required to expend exorbitant costs in complying with challenged monitoring, reporting
or record-keeping requirements ofthe CAAPP permit until after it is provided its
proverbial “day in court.”
Petitioner’s right ofappeal likewise should
not be cut short or
rendered moot because it
was
unable to obtain
a legal ruling before being required to
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comply
with
those
terms
ofthe
permit
that are deemed objectionable.
The Illinois EPA
recognizes
these reasons as a legitimate basis for authorizing a stay ofpermit conditions
contested on appeal.
However, they
are
not at all
instructive to Petitioner’s claim that a
stay of the entire CAAPP permit is needed.
Judging by a fairreading ofthe Petition, Petitioner has challenged a relatively
small number ofthe conditions contained in the overall CAAPP permit, thus leaving the
lion’s share ofthepermit 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 permit authority.
If
thevast majority ofthe permit’s terms
are
uncontested, it cannot logically follow that the
absence of a stay for those conditions will preverit the Petitioner from
exercising a right
ofappeal.
Similarly, it is difficult to discern why Petitioner’s compliance with
uncontested permit conditions would cause irreparable harm, especiallyif 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
formed the
framework for the Illinois
ChAP?,
requires only a marshalling
of
pre-existing “applicable requirements”
nto 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. 316
(EAB,
February
18,
2005).
Aside from the
conditions lawfully imposed by the Illinois EPA for periodic monitoring and other miscellaneous matters,
the remainder of the CAM’? permit 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 conditionscontained in the overall
CAAPP
permit.
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ii.
Other related factors
Petitioner
argues that the absence of
a blanket
stay
would cause
“unnecessary
confusion” because the uncontested conditions ofthe CAAPP permit would remain in
effect while the challenged conditions would be governed by existing State operating
permits.
Motion at pages 3-4.
The Illinois EPAtakes exception to a key assumption in
the Petitioner’s
argument.
In the Illinois EPA’s view, the vestiges of
any
former State
operating permits for this CAAPP source dissipated upon the Illinois EPA’s issuanceof
the CAAPP permit on September 29, 2005.
This area ofdiscussion maybe
a significant
source ofPetitioner’s misunderstanding, thus explaining its confusion with the effects of
a limited stay.
Section 39.5(4)(b) states that a CAAPP source must abide by the terms of its
previous State operating permit, even though the permit may have expired, “until the
source’s CAMP permit has been
issued.”
See, 415 JLCS 5/39.5(4)(b)(2004).
A few
subsections later, the statute provides that the CAAPP permit “shaltupon becoming
effective supercede the State operating permit.”
See, 415 ILCS 5/39.5(4)(g)(2004).
Taken
together, these provisions indicatethat 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, only to
have the CAAPP permit’s superceding effect
on the State operating permit delayed
until
pennit effectiveness.
Petitioner may possibly read the above-referenced provisions
as though they
apply to the Board’s final action in
this
appeal.
However, this argument ignores other
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provisions of the Act that clearly depict the Illinois EPA as the permit-issuer.
No clearer
evidence ofthis
intent
can be
found thanthe numerous provisions of Section 39.5(9) of
the Act, which govern the United States Environmental Protection Agency’s (hereinafter
“USEPA”)participation and role in reviewing the CAAPP permits.
See,
415 ILCS
5/3 9.5(9)(2004).~
Other provisions ofthe Act similarly establish that permit issuance
denotes the
action of the fllinois EPA, not the Board, in the context ofCAMP
permitting.5
As previously mentioned, the Illinois EPA does not deny that the CAAPP
permitting process is analogousto
the type of“administrative continuum” recognized by
Illinois courts in other permitting programs under the Act.
In this respect, the illinois
EPAperforms
a role
under
the Illinois CAAPP that requires, in essence, a
defacto
issuance ofa CAMP permit.
The Board’s obligation in adjudicating whether the permit
should issue, in contrast, is a
de
jute-like function that, while critical in tenns of
determining whether a permit
issued by the Illinois EPAbecomes final, should not color
the meaning ofother legal terms.6
The issuanceor effectiveness of a CAAPP permit is
See,
415 ILCS S/39.5(9)(b,)(noting
requirement that the Illinois
EPA shallnot “issue” the
proposed
permit if USEPA provides a written objection within the
45 day review period);
4)5 JLCS
5/39.
5(’9,)Q)(explaining that when the Illinois EPA is in receipt ofa
USEPA objection arising from a
petition, the “Agency shall not issue
the permit”);
4)5
)‘LCS
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 of the 45-day review period and prior to receipt
of an objection arising from a petition). Notably,
one
such p!ovision states that the “effectiveness of a permit or its
requirements” is not stayed by virtue of
the filing ofa petition with USEPA.
See, 415
JLCS 5/39.5(9)
(/).
The requirements in Section 39.5(10), entitled “Final Agency
Action,” recognize the standards for
permit issuance by the Illinois EPA.
415 ILCS 5/39.5(1 O)(2004).
Similarly, the review provisions for Title
V permits, codified at Section 40.2,
focus on a permit denial or a grant ofa permit with conditions
as a
basis for appeal to the Board.
See,
4)5 !LCS 5/40.2(a)(2004).
The latter provisions even go so far
as to
reference “final permit action” in relation to the Illinois EPA’s permit decision.
Id.
6
As a practical matter,
Petitioner’s requested
relief
belies
the notion that former
State operating permits
continue to govern the facilit~k’s
operations until the Board issues its
final ruling inthis cause.
After all, it
is the CAAPP permit issued by the Illinois EPA from which the Petitioner is seeking a stay.
12
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18, 2005
functionally distinct from the legalisms associated with when a CAAPP permit becomes
final.
Evenputting aside the legal semantics posed by this issue, the thrust of
Petitioner’s argument
misses its mark.
Any confusion stemming from
the appeal phase
ofthe Title V
program
should be fairly modest compared to thepast.
Prior to the
enactment ofthe CAA Amendments of 1990, states issued permits under a patchwork of
various programs.
In Illinois
and elsewhere, numerous permits
for separate or discrete
pollutant-emitting activities would often exist for an individual source ofmajor emissions
and they frequently did not address the applicability of all other CAA or state (i.e., State
Implementation Program (“SIP”)) requirements.1
The Title V operating permit program
ensured that all ofa major source’s applicable state and CAA-related requirements would
be brought together into a single, comprehensive document.
In doing so, the legislation
sought
to minimize the confusion brought about from the absence of a uniform federal
permitting systeth.8
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 theTitle V permitting scheme
was meant
to
remedy.
iii.
Significance ofprior Board
rulings
The Board has granted
numerous
stays in past and pending CAAPP permit
proceedings.
For the most part, the extent of the relief granted has been a
function ofthe
relief sought by the petitioning party.
In several cases, the Board has granted stays of the
See,
David P. Novello,
The
New
Clean
Air Act Operating Permit Program: EPA’s Final Rules,
23
Environmental
Law Reporter 10080,
10081-10082 (Febmary 1993).
a
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entire
CAAPP permit, usually doing so without much substantive discussion.9
Curiously,
all
excepting
one of the prior cases involving blanket stayswere 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 mirroring the relief sought by the
petitioning party.’° In a few cases, theBoard does not appear to have granted
any
stay
protection whatsoever, as the petitioning
party
apparently opted not to pursue such
relief.’1
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 ofother matters.’2
In doing so, the illinois EPA clearly waived any rights to
voice
objections to the stays sought
and
obtained in those cases.
Even in the absence of a lack
ofresources, it is doubtful that the illinois EPA would have articulated weighty concerns,
as presently argued, with respect to the stay relief requested in earlier cases.
However,
following the Board’s last occasion to act on
a blanket stay request in a CAAPP
permit
~
See,
Lone Star Industries,
Inc., v. Illinois EPA,
PCB No. 03-94, slip opinion at 2, (January 9,
2003);
Nielsen v. Bainbridge,
L.LC, v.
Illinois EPA,
PC.8 No. 03-98,
s1ip 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,
PCBNo.
04-65,
slip
opinion at
1
(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
1
(February 5,
2004);
Board ofTrustees of
Eastern Illinois
University v. Illinois EPA,
PCBNo. 04-110,
slip opinion at
1
(February 5, 2004).
‘°
See, Bridgestone/Firestone Off-mad 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,
PCB No. 03-95, slip
opinionat
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,
PCR No. 04-116, slip opinion
at
I-? (May 6,2004).
See,
.X’CTC Limited Pannership,
v. Illinois EPA,
PCB No. 01-46,
consolidated with
Georgia-Pacific
Tissue,
L.L.C,,
v. Illinois EPA,
PCB No; 01-51;
General Electric Company
v. Illinois EPA.
PCB No. 04
115
(January 22, 2004).
12
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 opinicitat
1-
2 (February 20, 2003).
14
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2005
appeal,
Illinois EPA officials became aware ofthepotential implications posed by stays
on the existing Title V program approval.’3
In the wake of this discovery, theIllinois
EPA is now compelled to observe that the Board’s earlier decisions affording blanket
stays to CAAPP permits arguably fell short of exploring all ofthe relevant considerations
necessary to the analysis.
Accordingly, the illinois EPA urges the Board to reflect upon
additional factors that have not previously been
addressed to date)4
iv.
Statutory objectives ofCAAPP and common attributes of permit
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” ofpermit 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 permit conditions in
the permit.
The severability provision is prominently displayed in the
Standard
Permit
Conditions of the Petitioner’s CAAPP permit.
See,
Standard Permit Condition 9.13.
It
should also be noted that the language from the Act’s CAAPP program mirrors the
provision promulgated by USEPA in its regulations implementing Title V ofthe CAA.
See,
40 C.F.R.
§70.6(a)(5)(July
1, 2005 edition).
As is evident
from the
statutory
language, the obvious legislative intent for this
CA.APP provision is to “ensure the continued validity” of theostensibly larger body of
“
Jim Ross, a former Unit Manager for the CAAPP Unit of the
Division
of
Air
Pollution Control’s
Permits
Section,
received
an
inquiry
from a USEPAJRcgion V
representative in March of2004 pertaining
to the
broad
nature of the
stays
obtained in
CAAPP permit appeal
proceedings before the Board.
This
initial inquiry led to ftrther discussion between
IJSEPA/Region
V representatives and the Illinois
EPA
regarding
the impact of such 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 ofJim Ross attached to this Motion).
~
It
is noted that
the
Board’s prior
rulings regarding blanket stays of CAAPP permits
have been granted
contingent upon
the
Board’s final action in
the appeal or
“until the Board
orders
otherwise.”
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permitting
requirements
that are not being challenged on appeal.
The use ofthe word
“various” in describingthose conditions that
are
severable is especially important when
compared with the
later
reference in the samesentence to
“any portions” ofthe permit
that
are
contested.
Because the commonly understood meaning of the adjective
“various” is “of diverse kinds” or “unlike; different,” this wording demonstrates a
legislative intent to
contTast one discernable group ofpermit conditions (i.e., uncontested
conditions)
from the other another (i.e., contested conditions).
See,
The American
Heritage Dictionaty, Second College Edition; see also,
Webster’s New World Dictionary,
Third College Edition
(describing
primary
use ofthe term as “differing one
from another;
of several kinds”).
Given the clear absence of ambiguity with this statutory text, no other
reasonable meaning
can
be attributed to its language.
TheIllinois EPA readily concedes that the permit content requirements ofthe
CAA and the Illinois CAAPP are not directly binding on the Board.
However, while the
Illinois EPA’s mandateunder Section 39.5(7)(i) of the 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
CAAPP appeals.’5
Implicit in the statutory
language is an unmistakable expression
aimed
at preserving the validity and effectiveness
ofsome
segment ofthe CAAPP 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
‘~
Any such
reshiction
may
not
said to be absolute, as the
Act’s permit
content
requirement
does not
necessarily
rule out the potential merits of a blanket stay
where
a
permit
is challenged
in its
entirety.
As
previously mentIoned,
the Illinois EPA disputes the
merits ofPetitioner’s argument
relating
to
a purported
deficiency in the
CA.APP permit’s
statement of basis.
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effectuates
its object
and purpose.
See, F.D.IC.
v. Nihi.~er,
799
F.Supp. 904
(C.D.
Ill.
1992);
Castaneda
v.
Illinois Human Rights Commission,
547 N.E.2d 437 (III.
1989).
In
this instance, the Board should
recognize
an inherent limitation of
its stay authority by
virtue of the Illinois CAAPP’s severability provision.
At the very least, the existence of
the provision should give pause to theBoard’s recent approach in evaluating
stays in
CAAPP
permit appeals.
It is noteworthy that one ofthe chiefgoals ofthe CAA’s TitleV program is to
promotepublic participation,
including the
use
ofcitizen suits to facilitate compliance
through
enforcement.’6
The severability requirement ofthe
Part
70 regulations, which
formed the regulatory basis for Section
39.5(7)(i)
ofthe Illinois CAAPP,
can
be seen as
an extension of this endeavor.
Blanket
stays of
CAAPP permits
could arguably lessen
the opportunities
forcitizen enforcement in an area that is teeming with broad public
interest.
Moreover, the cumulative effect of stays sought by Petitioner and othercoal-
fired
CAAPP
permittees in other appeals would
cast a wide net.
Blanket stays ofthese
recently-issued
CAAPP
permits would effectively shield an entire segment of Illinois’
utilities sector froip potential enforcement based on Title V
permitting,
which was meant
to provide a more convenient, efficientmechanism for the public
to seek CAA-related
enforcement.
One last consideration in this
analysis is
thedeliberate, ifnot time-consuming,
pace ofpermit appeals in general.
From past experience, the Illinois EPA has observed
that many permit appeals are ofa type that could more aptly be described as “protective
appeals.” These types of appeals are frequently filed because a particular permit
16
See,
David P. Novella)
The New CleanAir Act
Operating Permit Program: EPA
‘s Final Rules,
23
Environmental Law Reporter
10080,
10081-10082
(February 1993).
17
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condition affects an issue relating to on-going or future enforcement proceedings.
Alternatively, these cases may entail some otherkind ofcontingency necessitating
additional permit review, a new permit application and/or obtaining a revised permit from
the illinois EPA.
Only rarelydoes a permit appeal actually proceed to hearing.
Based on the illinois EPA’s estimation, nearly all ofthe CAAPP permit appeals
filed with the Board to date could be aptly described as “protective appeals.”
While a
handthl ofcases have been voluntarily dismissed from theBoard’s docket, several of
these cases are, and will remain, pending with the Board for months and/or years to
come, in part, because there
is no ability to resolve them independent oftheir related
enforcement or permitting developments.
As the Illinois EPA is often an obligatory
participant in many ofthese types ofcases, this argument is not meant to condemn the
practice.
Rather, therelevant point is that significant portions ofa CAAPP permit stayed
in its entirety will be delayed from taking effect, in spite ofbearing no relationship to the
appeal or its ultimate outcome.
To allow this under circumstances where petitioning
parties seldom appear to desire their “day in court” strikes the Illinois EPA as needlessly
over-protective.
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CONCLUSION
For the reasons explained above, theIllinois EPA moves the Board to deny the
Petitioner’s request for a stay of the effectiveness ofthe CAAPP permit in its entirety.
However, the Illinois EPA supports thePetitioner’s request for a stay ofthe effectiveness
of the CAAPP permit’s contested
conditions and urges the Board to order the same.
Respectfully submitted by,
ILLENOIS ENVIRONMENTAL
PROTECTION AGENCY,
Robb H. Layman
Assistant Counsel
Dated: November
18, 2005
illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield,
Illinois 62794-9276
(217) 524-9137
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STATE OF ILLINOIS
COUNT
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 an
information and belief and,
as to
such matters, the undersigned certifies that he believes
the same to be true:
1.
I am currently employed by the Illinois Environmental Protection Agency
(“Illinois EPA”) as aSenior PublicSen~iëe4drninisfrator
professional engineer.
During
the early part of2004, I was the Manager ofthe Clean Air Act Permit Program
(“CAAPP”)
Unit in the Division ofAirPollution Control’s Permit Section, whose offices
are located at
1021
North Grand Avenue East,
Springfield, illinois.
I have been
employed with the illinois EPA since May 1988.
2.
As part ofmyjob responsibilities,
I participated in frequent teleconference
calls with representatives from the United States Environmental Protection Agency
(“USEPA”) at.Re&onV in Chicago, illinois, involving various pending CAAPPpermit
applications and issuespertaining to the administration ofthe CA.APP program.
By
virtue ofmy involvement
in the CAAPP pet-mit review process, I am familiar with
communications between USEPA/Region V and the illinois EPA in
March of2004
concerning an issue relatingto stays obtained in CAAPP permit appeals before the
fllinois Pollution Control Board.
The issue was initially raised by a representative from
USEPA/Region V, who expressed concern about the impact ofsuchstays upon the
severability requirements of40 CP.R. Part 70 and the flhinois CAAPP.
3.
I have read the Motion prepared by the illinois EPA’s attàmeysrelating to
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this matter and, further,
fmd that the facts set forth in said responses and
answers are true,
res$nsive and complete to thebest ofmy knowledge and belief.
Subscribed and Sworn
To Before Me this ~L~Day
ofNovember 2005
OFFtCIAZ,
SEAL.
£
BRENDA BOEMNER
pCT~Y
ptm~t,
STATE
OF
n.U1104
~~ycosiji5siONWVESII42OO9
R
ELECTRONIC
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18, 2005
CERTIFICATE OF SERVICE
I hereby certify that on the 18th day ofNovember 2005,
1 did send, by electronic
mail with prior approval, the following instruments entitled APPEARANCES,
MOTION IN PARTIAL OPPOSITION TO, AND PARTIAL
SUPPORT OF,
PETITIONER’S REQUEST
FOR STAY and AFFIDAVIT to:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois
60601
and a true and correct copy of the same foregoing instrument, by First Class Mail with
postage thereon fully paid and deposited into the possession of theUnited States Postal
Service, to:
Cynthia A. Faur
MaryA. Gade
Elizabeth A. Leifel
Sonnenschein Nath & Rosenthal,
LLP
8000 Sears Tower
Chicago, Illinois 60606
Carol Sudman
Heating Officer
Illinois Pollution Control Board
1021
North Grand Avenue East
P.O. Box
19274
Springfield, Illinois 62794-9276
Robb H.
Layntan
C/
Assistant
Counsel
