BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ELECTRIC ENERGY,
)
NOV 302005
INCORPORATED,
)
STATE OF
ILLINOIS
)
Pollution Control Board
Petitioner,
)
)
v.
)
PCB06-65
)
CAAPP Appeal
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE OF FILING
To:
Mr. Robb Layman
Ms. Dorothy Gunn, Clerk
Ms. Sally Carter
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 bellied
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 of which are herewith served upon you.
James T. Harrington
One of its attorneys
James T. Harrington
David L. Rieser
McGuireWoods LLP
77 West Wacker, Suite 4100
Chicago, IL 60601
Telephone: 312/849-8100
RECEIVED
CLERK’S OFFI
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
NOV 302005
ELECTRIC ENERGY
)
INCORPORATED,
)
PoUuflon Control Board
Petitioner,
)
)
v.
)
PCB06-65
)
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 REOUEST 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 ofthe 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 caimot 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.
Re pectfully submitted,
a es
.
n~ft~
arringon
D id L. Rieser
McGuireWoods LLP
77 West Wacker, Suite 4100
Chicago, IL 60601
Telephone: 312/849-8100
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVED
ELECTRIC
ENERGY,
)
CLERK’S OFFICE
INCORPORATED,
)
NOV 302095
Petitioner,
)
STATE OF ILLINOIS
)
Pollution Control Board
v.
)
PCB0665
)
CAAPP Appeal
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITIONER’S RESPONSE TO RESPONDENT’S MOTION IN PARTIAL
OPPOSITION TO. AND PARTIAL SUPPORT OF, PETITIONER’S REOUEST
FOR STAY
NOW COMES the Petitioner, by and through its attorneys, and responds to the Motion in
Partial Opposition to, and Partial Support ofPetitioner’s Request for Stay.
I.
The CAAPP Permit is Not in Effect and Is Stayed as a Matter ofLaw 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 of the 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 ~~~(~)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
cannot go 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
S
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.
One of those conditions is the effective date. If the effective date is stayed, then none of the other
‘Electric Energy, Inc. v. Illinois Environmental Protection Agency, PCB 85-14 (1985), 1985 WL 21205,
and ffiE,jnc. v. illinois Environmental Protection Agency, PCB 89-128 (1989), WL 137356.
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 of the 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 of review. 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 of the Board and the action of the Agency implementing it.
Dated:
McGuireWoods LLP
77 West Wacker, Suite 4100
Chicago, IL 60601
Telephone: 312/849-8100
L. Rieser
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
ELECTRIC ENERGY,
)
INCORPORATED,
)
)
Petitioner,
)
)
v.
)
PCB06-65
)
CAAPP Appeal
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
CERTIFICATE OF SERVICE
I, James T. Harrington, one of the attorneys for Petitioner, hereby certif~’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 ofLegal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue
Springfield, IL 62794-9276
on November 30, 2005 via Federal Express.
j~mes
“S
T. Harrington
//
7/ne of the Attorneys for Petitio/b
McGuireWoods LLP
77 West Wacker, Suite 4100
Chicago, Illinois 60601
Telephone: 312/849-8100
\\REA\2901 14.1
