RECEIVED
CLERKS OFFICE
NOV
302005
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE OF ILLINOIS
Pollution Control Board
AMEREN ENERGY
GENERATING COMPANY,
)
COFFEEN POWER
STATION,
)
)
Petitioner,
)
)
v.
)
PCB 06-64
)
CAAPP Appeal
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE OF FILING
To:
Mr.
Robb Layman
Ms.
Dorothy Gunn, Clerk
Ms. Sally Caner
Illinois Pollution Control Board
Division of Legal Counsel
James R.
Thompson Center
1021
North Grand Avenue
1000 West Randolph Street
Post Office Box
19276
Suite
11-500
Springfield,
IL
62794-9276
Chicago, IL
60601
Please take notice that on November 30,
2005, the undersigned caused to be
filed
with
the Clerk of the Illinois Pollution
Control
Board, Motion
for Leave
to
File Reply to
Motion in Partial Opposition to, and Partial
Support of, Petitioner’s Request for Stay, and
Petitioner’s
Response
to
Respondent’s
Motion
in
Partial
Opposition
to,
and
Partial
Support of, Petitioner’s Request for Stay, copies ofwhich are herewith served
on you.
7:
James T. Harringt~
One of its attornfs
James T.
Harrington
David
L.
Rieser
McGuireWoods
LLP
77
West Wacker,
Suite 4100
Chicago, IL
60601
Telephone:
312/849-8100
RECEIVED
CLERKS OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
NOV
302005
AMEREN ENERGY
)
STATE
OF ILLINOIS
GENERATING
COMPANY,
)
Pollutton Control
Board
COFFEEN POWER
STATION,
)
)
Petitioner,
)
)
v.
)
PCB 06-64
)
CAAPP Appeal
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION FOR LEAVE TO FILE REPLY TO MOTION IN PARTIAL OPPOSITION
TO. AND PARTIAL SUPPORT OF. PETITIONER’S REQUEST FOR STAY
NOW
COMES
the Petitioner,
by
its
Attorneys,
James
T.
Harrington,
David
R.
Rieser
and
McGuireWoods
LLP
and
moves
the
Illinois
Pollution
Control
Board
(the
“Board”)
for
leave
to
file
a brief Response
to
Respondent’s
Objections
to
Petitioner’s
Motion for Stay.
In support of this motion, Petitioner states as follows.
1.
The Petitioner has filed Petition for Review of the terms and
conditions of
the
CAAPP
Permits
issued
by
Respondent
for
the
above-named
coal
fired
electrical
generating uses.
2.
The
Petitioner
has
set
forth
the
applicable
provisions
of
the
Illinois
Administrative
Procedure
Act,
(5
ILCS
1001-10-65(b)),
and
applicable
case
authority
(Borg-Warner Corporation v.
Mauzy, 427
N.E. 2d 415,
56
Ill.Dec.
335
(3rd Dist.
1981))
establishing
that
the
terms
of the
CAAPP
Permits
cannot
go
into
effect
pending
the
decision
of the
Board
and
any
necessary
action
of the
Respondent
implementing
the
Board’s decision.
3.
Respondent served its Motion in Partial
Opposition to, and
Partial
Support
of Petitioner’s
Request
for
Stay
by
depositing
the
same
in
the
United
States
Mail
on
November
18,
2005.
Respondent also sent
copies by e-mail
to Petitioner’s
counsel
on the
same date.
4.
The effectiveness of the Permit pending the Board’s decision is an issue of
overriding
importance
to
the
Board,
the
Petitioner
and
to
the
administration
of
environmental law in Illinois.
5.
Respondent has raised arguments in opposition to the Motion
for Stay that
were
not anticipated and could not have been anticipated at the time the Motion was filed.
In
particular,
Respondent
has
raised
the
“severability
clause”
regarding
the
CAAPP
Permit
Program
as
evidence
that
the
legislature did
not
want
the
otherwise
applicable
provisions
of the
Administrative
Procedure
Act
staying the
terms
of permits
pending
completion of the administrative process through review by the Board applied to
CAAPP
Permits.
6.
Failure
to
grant
Petitioner
leave
to
file
a
Response
would
materially
prejudice Petitioner within the meaning of 35
Ill.Adm. Code Section
101.500(e).
WHEREFORE,
Petitioner
moves
for
leave
to
file
the
attached
Response
to
Respondent’s Motion.
/
Resppctfully submitted,
Dated:
///5o ~
_______________
es T.
Harrmgton
avid L. Rieser
McGuireWoods
LLP
77 West Wacker,
Suite 4100
Chicago, IL
60601
Telephone:
312/849-8100
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
AMERENENERGY
)
RECEIVED
GENERATING
COMPANY,
)
CLERK’S OFFICE
COFFEEN POWER
STATION,
)
NOV
382005
Petitioner,
)
STATE OF ILLINOIS
)
Pollution Control Board
v.
PCB 06-64
)
CAAPP Appeal
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITIONER’S RESPONSE TO RESPONDENT’S MOTION IN PARTIAL
OPPOSITION TO. AND PARTIAL SUPPORT OF, PETITIONER’S REQUEST
FOR STAY
NOW COMES the Petitioner, by and through
its attorneys, and responds to the Motion
in
Partial Opposition to,
and
Partial
Support of Petitioner’s Request for Stay.
1.
The CAAPP
Permit
is Not in Effect and Is Stayed as a Matter of Law Pursuant to
the Illinois
Administrative Procedure Act (“APA”).
The
Respondent
admits
that
the
CAAPP
Permit
is
a
license
of
a
continuing
nature as
defined by the APA.
5
ILCS
1001-35. (Respondent’s
Motion
p.
3).
It
also admits that
the
decision
in
Borg-Warner Corporation
v.
Mauzy,
427
N.E.2d
415,
56
Ill.Dec.
335
(3d
Dist.
1981), holding that
the
final
administrative
decision within
the
meaning
of the
Administrative
Procedure Act
is the decision ofthe Pollution
Control Board on the Petition for Review “may still
reflect good
law and that
it probably warrants,
in the appropriate case,
application of the
doctrine
of stare decisis
by
Illinois
Courts.”
EPA
Motion,
p.
4.
It
further admits
“the
CAAPP
program
itself
does
not
reveal
the
General
Assembly’s
intentions
to
change
this
administrative
arrangement.”
Ibid.
Nevertheless,
Respondent
contends
that
the
APA
does
not
apply
to
CAAPP
Permits.
First,
it
points
out
that
the
legislature
has
in
the
case
of administrative
citations
specifically
provided
that
the
APA
does
not
apply.
See
415
ILCS
5/31.1(e).
Yet,
this
merely
proves the opposite that the legislature
intended and
believed
clearly that
the APA applied
to
all
proceedings
under
the
Environmental
Protection
Act
unless
specifically
exempted.
It
further
proved
that the legislature knew how to
exempt actions under the
Environmental
Protection Act
when
it
chose to do
so.
Second,
the
Respondent
claims
that
the
provisions
of Section
39.5(7)0)
(415
ILCS
5/39.5(7))
providing
for
severability of permit terms
in
the
event
of a
challenge
to
any
terms of the
permit indicates
legislative
intent that the permit
would
not
be stayed
pending the
Board’s decision
on
review.
This
argument stretches
too
far.
Since
the
legislature
chose
not
to
expressly exempt CAAPP Permits from the
APA, the
severability clause must apply where some
terms of a permit
are
successfully challenged so that other unrelated
terms may remain in force.
It does not
address the
applicability of the APA
or the long
standing
precedent that
the
permit
cannotgo
into effect until the
administrative process is complete.
Clearly
if the
legislature
chose
to
exempt
CAAPP
Permits
from
the
APA,
it
would
have done
so
expressly,
by
innuendo.
It did
not do
so.
Under the
usual rules of statutory
construction,
the
APA
and
the
“stay” provisions
of
5
ILCS
1001/10-65(b),
as
applied to
Permit
Appeals
in
Borg-Warner Corporation v.
Mauzy,
supra,
and
in Board
decisions,’
govern CAAPP
Permit proceedings.
Therefore,
the CAAPP Permits under review
are
not
in effect and are stayed
as a matter of law pending the Board’s decision on the
merits.
2.
The CAAPP Permits Should
be
Stayed In Its
Entirety for the Reason
Stated
in the
Petition.
Should
the
Board
conclude
that
the
Permit
is
otherwise
final
and
effective,
a
discretionary stay of the entire Permit should
be granted.
Without belaboring the
lengthy
Petition
and
Motion,
Petitioner admits
that
it has sought
review of only
portions
of the
CAAPP
Permit.
Electric
Energy,
Inc.
v.
Illinois
Environmental Protection Agency, PCB
85-14 (1985),
1985
WL 21205,
and
IBP,
Inc.
v.
Illinois
Environmental Protection
Agency, PCB
89-128
(1989),
WL
137356.
One ofthose conditions
is the
effective date. If the effective date
is
stayed, then none ofthe
other
conditions
are
in
effect.
Petitioner has
adequately
supported
the
stay
of the
effective
date
as
it
pointed
out the numerous
conditions which would have required immediate or retroactive actions
by Petitioner.
As Respondent has agreed to the stay of all
contested terms and one of those terms
is
the effective date,
all of the conditions ofthe permit should
be
stayed pending a
Board ruling
on
the
merits.
Moreover, while
Petitioner has
challenged
only a portion of the
CAAPP
Permit
terms,
those
challenged
terms
encompass
almost
all
significant
terms
that
add
to
Petitioner’s
obligations
over those
in
existing
laws, regulations
and
permits that
remain
in
force and
effect
during the period ofreview.
Therefore, the public
health
and environment remain fully protected
during
a stay.
Conclusion.
Petitioner requests the Board reject the arguments
advanced by Respondent
and
issue
its
order
finding
that
the
CAAPP
Permit
at
issue
here
is
not
in
effect
pending
the
decision ofthe Board and the action ofthe Agency
implementing
it.
Resp
ctfully submitted,
Dated:////c
JI/Pf~~J/&M7ff/fJ
7i6t~
~:
Harrington
McGuireWoods LLP
(I”
77 WestWacker, Suite 4100
Chicago, IL
60601
Telephone:
312/849-8100
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
AMEREN ENERGY
)
GENERATING COMPANY,
)
COFFEEN POWER STATION,
)
)
Petitioner,
)
)
v.
)
PCB 06-64
)
CAAPP Appeal
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
CERTIFICATE OF SERVICE
I,
James
T.
Harrington,
one of the attorneys
for Petitioner,
hereby certify
that
I
served copies of:
1.
Motion
for Leave to
File Reply to
Motion
in Partial
Opposition to,
and Partial
Support
of,
Petitioner’s Request for Stay; and
2.
Petitioner’s
Response
to
Respondent’s
Motion
in
Partial
Opposition to,
and
Partial
Support
of,
Petitioner’s Request for Stay.
upon
Mr.
Robb Layman
and
Ms.
Sally Carter
Division of Legal Counsel
Illinois Environmental Protection Agency
1021
North Grand Avenue
Springfield,
IL
62794-9276
on November 30, 2005
via Federal Express.
4$~nes
T. Harrington
//
ne ofthe Attorneys for P~4titioner
McGuire Woods LLP
77
West Wacker,
Suite 4100
Chicago, Illinois
60601
Telephone: 312/849-8100
\\REA\290I
16.1
