1. RECEIVED
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
AMERENENERGY RESOURCES
GENERATNG
COMPANY,
EDWARDS POWER
STATION,
Petitioner,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
)
)
)
)
)
)
PCB 06-67
)
CAAPP
Appeal
)
)
)
)
RECEIVED
CLERK’S OFFICE
NOV
302095
STATE OF ILLINOIS
Pollution Control Board
NOTICE OF FILING
To:
Mr.
Robb Layman
Ms.
Sally Carter
Division of Legal Counsel
1021
North Grand Avenue
Post Office Box
19276
Springfield,
IL
62794-9276
Ms. Dorothy Gunn, Clerk
Illinois
Pollution Control Board
James R.
Thompson Center
1000 West Randolph Street
Suite
11-500
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 upon you.
James T. Harrington
David L. Rieser
McGuireWoods LLP
77
West Wacker,
Suite 4100
Chicago, IL
60601
v.
One ofits
attorne’
Telephone:
312/849-8100
RECEIVED
CLERIcs OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
NOV
302005
AMERENENERGY RESOURCES
)
STATE OF ILLINOIS
GENERATING COMPANY,
)
Pollution Control Board
EDWARDS POWER STATION,
)
)
Petitioner,
)
)
v.
)
PCB 06-67
)
CAAPP Appeal
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION FOR LEAVE TO FILE
REPLY TO MOTION
114
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 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.
198 1’))
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 sewed 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 ofthe 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.
Res
ctfully submitted,
j”
Dated:
~
McGuireWoods
LLP
77 West Wacker,
Suite 4100
Chicago, IL
60601
Telephone:
312/849-8100
L. Rieser
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARLf~E
CE ~V ED
RKSOFFI~
AMERENENERGY RESOURCES
)
NOV
30
‘
GENERATING
COMPANY,
)
20b5
EDWARDS POWER
STATION,
)
~STA1E
OF ILLINOiS
OjIution Contro: Boarc
Petitioner,
)
)
v.
)
PCB 06-67
)
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.
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 ofa
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
Permitsunder 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 ofthe 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. Ifthe
effective date is
stayed, then none ofthe
other
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.
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.
Respeptfully
submitte9,.
7’
Dated:_____
___________
)4yt~es
t.
arrington
avid L. Rieser
McGuireWoods LLP
77 West Wacker, Suite 4100
Chicago, IL
60601
Telephone:
312/849-8100
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AMERENENERGY RESOURCES
)
GENERATING
COMPANY,
)
EDWARDS
POWER STATION,
)
)
Petitioner,
)
)
v.
)
PCB 06-67
)
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 ofLegal Counsel
Illinois Environmental
Protection Agency
1021 North Grand Avenue
Springfield,
IL
62794-9276
on November 30, 2005 via Federal Express.
‘5
.I~&~ngto/~~
/
e of the Attorneys for Petifloner
McGuire Woods LLP
77
West Wacker,
Suite 4100
Chicago, Illinois
60601
Telephone: 312/849-8100
\\REA\289970. I

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