RECEIVED
CLERK’S OFFICE
NOV
302005
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
STATE OF ILLINOIS
Pollution Control Board
AMERENENERGY RESOURCES
)
GENERATING COMPANY,
DUCK CREEK POWER
STATION,
)
)
Petitioner,
)
)
v.
)
PCB 06-66
)
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
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 of which are herewith served upon you.
James T. Harrington
One of its attorneys
James T.
Harrington
David
L. Rieser
McGuire Woods LLP
77 West Wacker, Suite 4100
Chicago,
IL
60601
Telephone:
312/849-8100
RECEIVED
CLERK’S OFFICE
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
NOV
302005
STATE OF ILLINOIS
AMERENENERGY
RESOURCES
)
Pollution Control Board
GENERATING COMPANY,
)
DUCK CREEK POWER STATION,
)
)
Petitioner,
)
)
v.
)
PCB 06-66
)
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.
Flarrington,
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 ofthis 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 ofthe 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.
Resp9ctffihly submitted,
Dated:
/
?cor
_________________
,A,rnnes T. Jlarnngton
(/flavid
L.
Rieser
McGujre Woods LLP
77
West Wacker, Suite 4100
Chicago, IL
60601
Telephone:
312/849-8100
BEFORE THE
ILLINOIS POLLUTION
CONTROL BOARD
F1~
AMERENENERGY RESOURCES
)
CLiarjsc
a
urriQE
GENERATING COMPANY,
)
NOV
30200
DUCK CREEK
POWER STATION,
)
)
STATE OF ILLINOiS
Petitioner,
)
Pollution
Control
Bcmirn
)
v.
)
PCB
06-66
)
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
Pennit
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
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 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 mailer 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 of those conditions
is the effective date. Ifthe
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 ofthose terms
is
the effective date,
all ofthe
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 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 ofthe
Board and the
action of the Agency implementing it.
Respectfully submitted,
Dated:_____
-
David
L.
Rueser
McGuireWoods LLP
77
West Wacker, Suite 4100
Chicago, IL
60601
Telephone:
312/849-8100
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
Petitioner,
AMERENENERGY RESOURCES
GENERATING COMPANY,
DUCK CREEK POWER STATION,
V.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
)
)
)
)
)
)
PCB 06-66
)
CAAPP Appeal
)
)
)
)
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 ofLegal Counsel
Illinois Environmental Protection Agency
1021
North Grand Avenue
Springfield, IL
62794-9276
on November 30, 2005
via Federal Express.
es
T. Harrington
of the Attorneys for Petil
McGuireWoods LLP
77
West Wacker, Suite 4100
Chicago, Illinois
60601
Telephone: 312/849-8100
\\REA\2901
17.1
