RECEIVED
CLERKS
OFFICE
BEFORE THE
ILLINOIS POLLUTION
CONTROL BOARD
NOV
30
2005
AMEREN ENERGY
)
STATE OF
ILLINOIS
GENERATING COMPANY,
)
Pollution Control
Board
HUTSONVILLE POWER
STATION,
)
)
Petitioner,
)
)
v.
)
PCB
06-70
)
CAAPP Appeal
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE OF FILING
To:
Mr. Robb Layman
Ms. Dorothy Guim, 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 ofwhich are herewith served upon you.
)5~:
James T.
arrin~ton/
One of its attorneys
James T. Harrington
David L. Rieser
McGuireWoods LLP
77
West Wacker, Suite 4100
Chicago, IL
60601
Telephone:
312/849-8100
BEFORE
THE ILLINOIS
POLLUTION
CONTROL BOARD
AMEREN ENERGY
)
NOV
311
2005
GENERATING COMPANY,
)
STATE OF
ILLII’JOIS
HUTSONVILLE POWER
STATION,
)
Pollution
Control boerci
)
Petitioner,
)
)
v.
)
PCB 06-70
)
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
(flQ~g-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 of35
Ill.Adm.
Code Section
101.500(e).
WHEREFORE,
Petitioner
moves
for
leave
to
file
the
attached
Response
to
Respondent’s Motion.
Resp
ctfully submitted,
jt_
Dated:
/Wo/ ~
~
avid L. Rieser
McGuireWoods LLP
77 West Wacker,
Suite 4100
Chicago, IL
60601
Telephone:
312/849-8100
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARD
NOV
332005
AMEREN ENERGY
)
p~j~~trolBoara
GENERATING COMPANY,
)
HUTSONVILLE POWER
STATION,
)
)
Petitioner,
)
)
v.
)
PCB 06-70
)
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 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 ofthe
Pollution Control Board
on
the Petition for Review “may still
reflect good
law and that
it
probably warrants,
in the
appropriate case,
application ofthe 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.
If the effective date
is stayed, then none of the 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 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 ofthe Board and the action of the Agency implementing
it.
Resu/ctfully submitted
Dated:
/J/((,/
30/AfO’(
J/1i/f//1/S/7/
McGuireWoods LLP
77 West Wacker, Suite 4100
Chicago, IL
60601
Telephone:
312/849-8100
L. Rieser
BEFORE THE ILLNOIS
POLLUTION CONTROL BOARD
AMEREN ENERGY
)
GENERATING COMPANY,
)
HUTSONVILLE POWER
STATION,
)
)
Petitioner,
)
)
v.
)
PCB 06-70
)
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.
4—’-
,4nesT.
arringto
/
ne ofthe Attorneys fowtetitioner
McGuireWoods
LLP
77
West Wacker,
Suite 4100
Chicago, Illinois
60601
Telephone:
312/849-8100
\\REA\2901
10.1
