RECE~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DEC
022005
MIDWEST GENERATION, LLC,
)
POllUtiOn
Contrc~
Board
CRAWFORD GENERATING STATION,
)
)
Petitioner,
)
)
v.
)
PCB No. 2006-056
)
(Permit Appeal
—
Air)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE
To:
Dorothy Gunn, Clerk
Robb Lyman, Assistant Counsel
Pollution Control Board
Sally Carter, Assistant Counsel
James R. Thompson Center
Division of Legal Counsel
100 W.
Randolph Street
Illinois
Environmental Protection Agency
Suite
11-500
1021
North Grand Avenue, East
Chicago, Illinois 60601
P.O.
Box
19276
Chicago, Illinois 60601
Springfield, Illinois 62794-9276
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R.
Thompson Center
100 West Randolph Street
Suite
11-500
Chicago, Illinois
60601
PLEASE TAKE NOTICE that I have today
çy(jtIf~’J’.
filed with the Office of the
Clerk ofthe Pollution Control Board PETITIONER’S REPLY IN SUPPORT OF A PERMIT
STAY AND IN RESPONSE TO ILLINOIS EPA’S OPPOSITION TO PETJTIONER’S
REQUEST FOR A STAY
and
MOTION FOR LEAVE
TO FILE REPLY INSTANTER,
copies of which are herewith served upon you.
q~&m
dha~
Kathle
C. Bassi
Dated:
December 2, 2005
SCHIFF HARDIN LLP
Sheldon A.
Zabel
Kathleen
C. Bassi
Stephen J. Bonebrake
Joshua R. More
Kavita M.
Patel
6600 Sears Tower
233
South Wacker Drive
Chicago, Illinois
60606
312-258-5567
FAX:
312-258-5600
-2-
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
r
r~
f~~)
U’-’.
u”
2005
STATE OF ILLINOIS
MIDWEST
GENERATION,
LLC,
)
Pollution Control Board
CRAWFORD GENERATING STATION,
)
)
Petitioner,
)
)
v.
)
PCB No. 2006-056
)
(Permit Appeal
—
Air)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION FOR LEAVE TO FILE REPLY
INSTANTEI4
Pursuant
to
35
Ill.
Adm.
Code
101.500(e),
MIDWEST
GENERATION,
LLC,
CRAWFORD
GENERATING
STATION
(“Petitioner”),
respectfully
submits
this
Motion
for
Leave to File Reply
Instanter.
In support of this Motion, Petitioner states as follows:
1.
Petitioner will
be
materially prejudiced
unless
it
is
allowed
to
file the attached
Reply.
First,
in
its
Motion
in
Opposition to
Petitioner’s
Request
for Stay,
Respondent Illinois
Environmental
Protection
Agency
(“the
Agency”)
alleges
that
the
Administrative
Procedure
Act’s (“APA”)
automatic
stay
provision,
Section
10-65(b),
does
not
apply.
In the
attached
Reply, Petitioner responds to the Agency’s arguments and demonstrates why Section 10-65(b) of
the APA does apply.
2.
Second,
in
its Motion in
Opposition, the Agency argues that Petitioner’s
asserted
justifications for an entire stay of the Clean Air Act Permit Program (CAAPP) permit pursuant to
the Board’s discretionary stay
authority
fail to
demonstrate
“a clear and
convincing need for a
-3-
broader stay.”
The
Motion
in Opposition reflects
a significant change
in
the Agency’s position
concerning
requests
for
permit
stays,
and
Petitioner
will
be
prejudiced
unless
it
has
an
opportunity
to respond to these new arguments.
WHEREFORE,
for the
reasons
set
forth
above,
Petitioner
Midwest
Generation,
LLC,
respectfullyrequests that the Board grant its Motion for Leave to File Reply
Instanter.
Respectfully submitted,
MIDWEST GENERATION, LLC,
CRAWFORD GENERATING STATION
By:___
One ofIts Attorneys
Dated:
December 2, 2005
Sheldon A. Zabel
Kathleen C.
Bassi
Stephen J. Bonebrake
Joshua R. More
Kavita M. Pate!
SCHIFF HARDIN, LLP
6600 Sears Tower
233
South Wacker Drive
Chicago, Illinois
60606
Telephone: 312-258-5500
Fax:
312-258-5600
-4-
RECEIVED
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
CLERK’S OFFICE
MIDWEST GENERATION, LLC,
)
DEC
022005
CRAWFORD GENERATING STATION
)
STATE OF ILLINOIS
Pollution Control Board
Petitioner,
)
)
y.
)
PCB
No. 2006-56
)
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITIONER’S REPLY
IN SUPPORT OF A PERMIT
STAY AND IN RESPONSE TO
THE AGENCY’S OPPOSITION TO PETITIONER’S REQUEST FOR A STAY
Petitioner, MIDWEST GENERATION, LLC,
CRAWFORD
GENERATING STATION
(“Petitioner,”
or
“Midwest
Generation”),
by
and
through
its
attorneys,
submits
this
reply
in
support of (1) its
position
that the Clean Air Act Permit Program
(“CAAPP”) permit
on appeal
in
this
proceeding
is
not
in
effect,
pursuant
to
the
Illinois
Administrative
Procedure Act
(the
“APA”), while this
appeal is pending and until the Illinois Environmental Protection Agency (the
“Agency”) issues the permit after remand, and (2) its
request, in the
alternative, that the
Illinois
Pollution
Control
Board
(“Board”)
grant
Petitioner’s
request
for
a
stay
of the
entire
CAAPP
permit
pursuant
to
the
Board’s discretionary
stay
authority.1
This
reply
also
responds
to
the
Agency’s “Motion in Opposition to Petitioner’s Request for Stay”
(the “Opp.”).2
A motion
for
leave to file this reply is attached hereto and is filed herewith.
The
Agency
notes
that Petitioner
did
not
expressly make an
alternative
request
to
stay
just the contested conditions.
(Opp.
at 2).
That is
correct.
However, to
the extent the Agency
implies that the Board
does not have
authority to
grant relief that
is not expressly requested, that
is inconsistent.
The Board has the
authority to grant appropriate relief including lesser relief than
that requested by Petitioner.
2
The
Agency’s filing
is
captioned
a “motion,” but
the filing appears
to be
a
response to
Petitioner’s positions
and
requests rather than a
motion.
For instance, the “motion” cites to the
INTRODUCTION
On
November
2,
2005,
Midwest
Generation
filed
a
Petition
for
Review
(hereinafter
“Petition”)
with the
Board
challenging certain
permit
conditions
contained within the
CAAPP
permit issued by the Agency.
As part ofits Petition, Midwest Generation asserted that, until
the
Board rules on the contested conditions and the permit is issued by the Agency after remand with
any
changes
required by
the
Board, the
entire
CAAPP
permit
is
not
in
effect
(is
automatically
stayed3) pursuant
to
Section
10-65(b)
of the
APA
and
the
holding
in
Borg-Warner
Corp.
Mauzy,
427 N.E.
2d 415,
56 Ill. Dec.
335 (3d Dist.
1981).
In the alternative, Petitioner requested
that
the
Board,
consistent
with
its
grants of stay
in
response to
stay
requests
in
other CAAPP
permit
appeals, exercise
its
discretionary stay
authority and
stay
the entire
CAAPP
permit.
On
November
18,
2005, the
Agency
filed a “Motion in
Opposition” to Petitioner’s
conclusion that
the
entire
CAAPP
permit
is
stayed pursuant to
Section
10-65(b)
of the APA
and
to Petitioner’s
alternative request
for
a
stay.
The
Agency
incorrectly asserts
that the
APA’s automatic
stay
provision,
Section
10-65(b), does not apply, and that the Petitioner’s
asserted justifications for an
entire
stay
of the
CAAPP
permit
pursuant to
the
Board’s
discretionary
stay
authority
fail
to
demonstrate “a clear and convincing need for a broader stay.”
ARGUMENT
The CAAPP
permit
is
and
should
be
stayed in
its
entirety,
for
the reasons
discussed
below.
First, pursuant to
Section
10-65(b) of the
APA,
the entire
CAAPP permit
issued by
the
Agency does not become
effective until
after a ruling by the Board on the permit
appeal
and, in
time
for responses
to
be
filed
and,
in its
conclusion,
seeks no relief except that
the Board
“deny
the
Petitioner’s
request
for
a
stay
of the
effectiveness
of the
CAAPP
permit
in
its
entirety.”
(Opp. at
2, 20).
For brevity,
the
effect
of Section
10-65(b)
of the
APA
is
referred
to
herein
as
the
“automatic stay.”
2
the event of a remand,
until the Agency has issued the permit
consistent with the Board’s order.
In
addition,
to
the
extent
necessary
in
light
of the
automatic
stay
under
the
APA,
the Board
should
exercise
its
discretionary authority
and
enter an order
staying
the
entire
CAAPP
permit
because
an ascertainable right warrants protection, irreparable injury
will
befall
Petitioner
in the
absence
of
an
entire
stay,
Petitioner has
no
adequate
remedy
at
law,
Petitioner
is
likely
to
succeed on the merits
of its appeal,
and the environment will not be hanned ifthe entire
CAAPP
permit
is
stayed.
I.
THE
EFFECTIVENESS
OF
THE
ENTIRE
CAAPP
PERMIT
ISSUED
BY
ILLINOIS EPA IS STAYED PURSUANT TO THE APA
As
the
Agency
recognizes,
the
automatic
stay
provision
of
the
APA
governs
administrative proceedings involving
licensing
and pursuant to
Borg-Warner,
under
Section
10-
65(b) of the APA,
the effectiveness of a license
is
stayed until
a final administrative decision
is
rendered
by
the
Board.4
(Opp.
at
3-4).
Indeed,
the Agency
concedes
that
the
Borg-Warner
decision is consistent with the involvement ofand the separate
roles of the Board and the Agency
in
permitting
matters,
that
it
is
the
“Board’s
decision
.
.
.
that
ultimately determines when the
permit
becomes final,”
and
the
“CAAPP
program itself does not
reveal the General Assembly’s
intentions to change this
administrative arrangement.”
(Opp. at 4).
Nonetheless, the Agency
asserts
that
the
automatic
stay
provision
of
the
APA,
as
applied
by
Borg-Warner
to
enviromnental
permits,
does
not
apply
because
the
General
Assembly
somehow
exempted
CAAPP
permit
appeal
proceedings
in
particular
from
the
APA
under
415
ILCS
39.5(7)(i)
without referring to either the APA or
Borg-Warner,
and that the APA’s grandfathering clause,
5
ILCS
100/10-1-5(a), excludes the applicability of the APA from this proceeding even though the
“
The
APA
also
ensures
that
the
Petitioner
continues
to
abide
by
the
terms
of the
underlying state operating permits.
5
ILCS
100/10-65(b) and (Opp.
3-4).
3
CAAPP program,
like the NPDES permitting program at issue in
Borg-Warner,
was not in effect
prior
to
July
1,
1977.
These
assertions
ignore
controlling
law,
misinterpret
the
Illinois
Environmental Protection Act (the “Act”) and are
incorrect.
A.
The General Assembly
Did
Not Exempt the CAAPP from the Automatic Stay
Provision of the APA.
The
Agency’s
first
argument
is
that,
even
though
the
General
Assembly
included
no
express exemption from
the
APA
in
Section
39.5 of the
Act, the
General Assembly nonetheless
signaled
its
intention
to
make
CAAPP
permits
effective
immediately
upon
issuance
by
the
Agency,
in
derogation
of
the
APA’s
automatic
stay
of
effectiveness,
by
including
a
“severability” provision in
Section 39.5(7)(i) of the Act (“the severability clause”) that addresses
validity
of
permit
provisions,
not
the
effectiveness
of
a
permit.
(Opp.
at
3-4).
A
close
examination
of the
Agency’s
argument
and
the
Act
reveals
that
when the
General
Assembly
desires
to
exempt
sections of the Act
from
the APA,
it does
so
expressly,
through references
to
the
APA,
and
it
does
not
leave
the
divination
of
its
intentions
to
inferences.
Further,
the
Agency’s
argument
misses
the
fundamental
point
that
validity
and
effectiveness
are
two
very
different legal concepts.
The
Agency
misplaces
its
reliance
on
the severability clause.
That provision
addresses
the
validity
of uncontested
permit
conditions.
The
issue
before
the
Board,
however,
is
not
whether uncontested conditions remain valid notwithstanding
challenges to
other provisions,
but
whether
the permit
is
in
effect
prior
to
the
Board’s
ruling
on
appeal.
The
Agency
errs
by
assuming,
without
support,
that
through
a
severability
provision
that
does
not
even
refer
to
permit effectiveness,
let alone the APA, the General Assembly intended
to change Illinois law so
that the entire permit must remain
in effect during
the appeal.
(Opp.
at.
5-6,
18).
The Agency’s
4
strained
interpretation of the severability
clause
is
premised upon
a
misunderstanding
of the
applicability ofthe severability clause and the effect of a stay.
The first question before the Board
is
one of statutory
construction.
The cardinal rule of
statutory
construction
is
that
the
Board
must
ascertain
and
give
effect
to
the
intent
of
the
legislature.
In re Marriage of King,
208 Ill.2d
332,
340, 280
III.
Dec.
695,
699
(III. 2003). “The
legislature’s
intent
can
be
determined by
looking
at
the
language
of the statute
and construing
each
section of the
statute
together
as
a
whole.”
People
v.
Patterson,
308
Ill.App.3d
943,
947,
242 Ill.
Dec.
518,
521
(2d Dist.
1999). Moreover, the
language of the statute should be
given its
plain and
ordinary meaning.
Marriage ofKing.
208
Ill.2d at 340.
By construing Section 39.5(7)(i) of the Act along with each section of the Act together as
a
whole,
it
is
apparent
that
Section
39.5(7)(i)
is not
intended
to
address when a
permit is,
or
is
not,
in
effect,
the
question addressed by
Borg-Warner
and the
APA.
Section
39.5(7)(i)
of the
Act provides that “each
CAAPP permit issued under subsection
10 of this
Section shall include
a
severability clause to
ensure
the continued
validity of the various
permit
requirements
in
the
event of a
challenge
to
any
portions
of the
permit.”
First,
as
conceded
by
the
Agency, the
severability clause establishes CAAPP permit content and is, therefore,
applicable to
the Agency
but
not
binding
on
the
Board.
(Opp.
at
18).
Second,
the
choice
of the
term
“validity”
is
important
and
clearly
demonstrates
that
the
General
Assembly
was
not
addressing
in
this
provision
when permits
are effective
but,
instead, was
addressing
potential
problems
of legal
enforceability of the remainder of a permit when a portion of a permit is determined to be
invalid
(e.g., inconsistent with the governing law).
As
the
Agency
concedes, Sectioh
39.5(7)0) was
included
in the
Act
so
that uncontested
conditions would
“continue
to
survive notwithstanding
a challenge to
the permit’s other terms.”
5
(Opp.
at
5).
Survival
of some permit
terms when others
are challenged has nothing to do
with
when
a
permit
is
effective
under
Illinois’
administrative
scheme.
The
plain
and
ordinary
meaning
of
“validity”
in
legal
settings
is
“legal
sufficiency,
in
contradistinction
to
mere
regularity.”
Black’s Law Dictionary
1548
(7th
ed.
1999).
Section 39.5(7)(i) of the Act
is nothing
more than
a
mechanism
to
ensure
the
legality
of the remainder of a
CAAPP
permit
when a
condition
is judged
illegal
or
void.
This
concept
is
akin to
typical severability
provisions
in
contracts that provide
that the
invalidity of one contract term shall not
impact the validity of the
remainder of the contract.
Such severability provisions do
not
affect
the period during which a
contract
is
in
effect,
only
the
terms
that may
be
enforced while the
contract
is
in
effect.
This
view of Section
39.5(7)(i) is supported
by the United
States Environmental
Protection Agency’s
(“USEPA”)
interpretation
of the
model
severability
clause
upon
which
Section
39.5(7)(i)
is
based.
On
July
7,
1993,
the
USEPA
in
“Questions
and
Answers
on
the
Requirements
of
Operating
Permits
Program
Regulations”
explained
that
“tihe
severability
clause
(Section
39.5(7)(i)
of the Act)
is
a
provision that
allows the
rest of the permit to
be enforceable when a
part of the permit is judged illegal or void.”5
Undeterred by the plain
language of Section
39.5(7)(i), the
Agency
attempts to read into
the statutory language the key term the General Assembly
chose not to
include.
According to the
Agency,
“implicit
in
the
statutory
language
is
an
unmistakable
expression
aimed
at preserving
the validity and effectiveness of some segment of the CAAPP permit during the appeal process.”
(Opp.
at
18,
emphasis
added).
However,
the
General
Assembly
did
not
include
the
term
“effectiveness”
in
Section
39.5(7)0),
as discussed
above,
and
the Agency’s
assertion does
not
~ A
copy
of the
relevant
pages
of the
July
7,
1993
“Questions
and
Answers
on
the
Requirements of Operating Permits Program
Regulations” are attached hereto as Exhibit
1.
The
remainder
of
the
document
can
be
found
at
http://www.epa.govlRegion7/programs/artdlair/title5/tsindexbyauthor.htm.
6
make it so.
Indeed, the Agency’s effort to import the term “effectiveness” into Section 39.5(7)(i)
merely
shows
that
validity
and
effectiveness
are
two
distinct
terms.
“Validity,”
as previously
discussed connotes legality.
The common and
ordinary meaning of “effectiveness” has no
such
connotation.
The applicable definition of the base word, “effect,” is “the quality or state ofbeing
operational.”
Merriam
Webster’s
Collegiate
Dictionary
367
(10th
ed.
1997).
Therefore,
“effectiveness”
in
the
CAAPP
permitting
context
means
the
time
during
which
the obligations
set forth
in the permit are put into
operation.
To read
“effectiveness” into the statutory language
when
the
legislature
chose
to
use
“validity”
results
in
an
impermissible
departure
from
the
unambiguous
statutory
language.
Patterson,
308
Ill.App.3d
at
948
(“When the
language of the
statute
is
unambiguous, the
Board
may not
depart from the
language
and read
into the statute
exceptions, limitations, or conditions.”).
The
Agency
also
misconstrues
the
effect
a
stay
will
have
on
the
legality
of
the
uncontested conditions.
The Agency asserts that because
a
component
of
a
CAAPP
permit
shall
retain
a
“continued
validity,”
...
uncontested
conditions
of
a
CAAPP
permit
must
continue
to
survive
notwithstanding
a
challenge
to
the
permit’s
other
terms.
This
language
“continued
validity”
signifies
an
unambiguous intent to exempt some segment ofthe CAAPP permit
from any
kind ofprotective
stay during the permit
appeal process.
(Opp. at
5-6).
The Agency seems to assume
that a stay of the entire
permit will somehow affect the “continued
validity”
or
“survival”
of the
uncontested
conditions.
This
is
a
flawed
assumption.
The
automatic
stay under the
APA
does not
depend
on or consider the
merits
of the CAAPP
permit
requirements,
but
rather
merely
suspends
the
time
required
for
performance
of the
CAAPP
permit
requirements.
A
stay of the
entire
CAAPP
permit,
therefore,
is
not
a
challenge to
any
7
portion
of the
CAAPP
permit
that
will
affect
the
“continued
validity”
or
“survival”
of the
uncontested conditions.
Finally,
if the General Assembly intended to exempt the CAAPP from the automatic
stay
provision
of the
APA,
it
would
have
expressly
done
so.
One
example
of
this
exercise
of
legislative
discretion
is
found in
Section
31.1
of the
Act,
the
very
section the Agency
cites
in
support
of its
proposition
that
the
severability
clause
exempts
the
CAAPP
from
the
APA.
Section
31.1
of the
Act
states
that “Sections
10-25
through
10-60
of the
Illinois
Administrative
Procedure
Act
shall
not
apply
to
any
administrative
citation
issued
under
subsection
(b)
of this
Section.”
The
General
Assembly,
therefore,
knows
how to
explicitly exempt provisions of the
APA
from the Act.
In the present
case it chose
not to;
there is no
explicit exclusion of the APA
in
Section
39.5(7)(i)
of
the
Act.
Since
the
language
of
Section
39.5(7)(i)
is
plain
and
unambiguous, the Board
can not expand
its meaning to
include an exemption from the automatic
stay
provision
of the
APA.
To
do
so
would
be
an
improper
departure
from
the
statutory
language.
B.
The APA’s Grandfathering Clause Does Not
Apply To the CAAPP.
The
Agency’s
second
argument
is
that,
pursuant
to
5
ILCS
100/1-5(a)
(“the
APA’s
grandfathering clause”),
the APA does not apply to this proceeding because the Board had issued
some
procedural
rules
prior
to
July
1,
1977.
More specifically,
the Agency
suggests
that
the
Board’s
procedural
rules
adopted
on
October
8,
1970,
in
the
R70-4
rulemaking
(“general
procedural
rules”)
preclude
APA
applicability
to
CAAPP
permit
appeals because the
general
procedural rules were adopted before July
1,
1977.
(Opp. at 6-7).
That argument,
however,
is
at
odds
with
the
appellate
court’s
ruling
in
Borg-Warner
and
the
General
Assembly’s
intended
reach of the APA’s grandfathering clause.
8
The court in
Borg-Warner
upheld the APA’s automatic
stay provision in
the context of a
renewal of a National
Pollutant
Discharge
Elimination
System
(“NPDES”) permit
sought
from
the
Agency.
Borg-Warner,
427 N.E.
2d
415,
421,
56
Ill.
Dec.
335,
341
(3d Dist.
1981).
The
court
ruled
that
the APA’s grandfathering clause did
not
apply because there were
no
existing
procedures for NPDES
licensing
prior to
July
1,
1977,
the pertinent
date for exceptions
to
the
applicability
of the
APA.
Id.
at
418.
The
NPDES
rules
at
issue
were
written in
a way that
conditioned
their effectiveness
upon
a
future
event.
The Agency
argues
that
this
fact makes
Borg-Warner
“inapposite here.”
(Opp. at 7
n.2).
The
Agency
misconstrues the
significance of
the
Borg-Warner
decision.
The
APA
applied
in
Borg-Warner
because
there were
no
NPDES
permitting
procedures
in
effect
as
of
July
1,
1977.
There
were
not
CAAPP
permitting
procedures
in
effect
before
July
1,
1977,
either.
The
Agency
apparently believes
that
Borg-
Warner
was
incorrectly decided but
that
is
a question the Agency will have to take up with
the
appellate
court.
Here,
of course,
that
decision
is
controlling.
Under
Borg-Warner,
the
APA
applies in this permit appeal proceeding.
Consistently,
the
Board
has
cited
and
followed
Borg-Warner,
issuing
opinions
recognizing the applicability of the automatic
stay provision in
the permitting
context despite the
fact that
the
general
procedural
rules
were
promulgated
prior to
July
1,
1977.
See
e.g.,
Arco
Products
Company v.
illinois
Environmental Protection Agency,
PCB
89-5 (February
2,
1989);
Village ofSauget v.
Illinois Environmental Protection Agency,
PCB
86-57,
Monsanto
Company
v.
Illinois
Environmental
Protection
Agency,
PCB
86-62
(Consolidated),
(July
31,
1986);
Electric Energy
v.
Illinois
Environmental
Protection Agency,
PCB
85-14
(February
7,
1985).
The Agency
has
offered
no
contrary
decision
of this
Board
or
any
court.
The
Board
should
therefore continue
to follow
Borg-Warner
and determine that the
APA’s grandfathering
clause
is
9
inapplicable because there were
no existing procedures for CAAPP permitting as ofJuly
1,
1977.
To hold otherwise would be contrary to
Borg-Warner
and the Board’s own precedent.
Furthermore, if the Agency’s argument is correct, there would have been no
need for the
General Assembly to
have
expressly
excluded
the applicability of the contested case provisions
of the
APA
from
Section
31.1
of the
Act.
The
Agency
argues
that
“it
is
the
procedures
applicable to
contested
cases
and
their point
of origin
that
is
relevant
to
this
analysis, not
the
advent of the permitting program itself.”
(Opp.
at
6-7).
In other words,
the Agency argues
that
the contested
case
provisions
of the
APA do
not
apply
in
any contested
case
brought under
the
Act because the general procedural rules
“point of origin” is before July
1,
1977.
The legislature
was
certainly
aware
of
the
“point of origin”
of the
general
procedural
rules
and
the
APA’s
grandfathering clause when it drafted the explicit exclusion of the APA from
Section
31.1
of the
Act.
If the
legislature
intended for the APA’s
grandfathering clause
to
exclude
the
contested
case
provisions
of the
APA
from the
Act,
there would have been no
need for the legislature to
have expressly excluded the contested case provisions
of the APA from
Section 31.1
ofthe Act.
The
legislature,
therefore,
did
not
intend
for
the
APA’s
grandfathering
clause
to
limit
the
applicability of the APA to
the
Act because the “point of origin” of the
general procedural rules
is before July
1,
1977.
Carried
to
its
logical conclusion, the Agency’s argument
would
exempt
virtually
every
Board
proceeding
from
the
APA
and,
in
fact,
would
exempt
the proceeding of
any
administrative
body
that
existed
before
July
1,
1977,
that
had
procedural
rules
in
effect
before that date.
II.
THE BOARD SHOULD EXCERSISE
ITS DISCRETIONARY AUTHORITY AND
STAY THE ENTIRE CAAPP PERMIT ISSUED BY THE ILLINOIS EPA.
In situations
like
this,
where
Section
10-65(b) of the
APA
applies,
the entry of a
stay
order
is
unnecessary
as
the
stay
provided
by
the
APA
is
automatic.
See
e.g.,
Arco
Products
10
Company v.
illinois Environmental Protection Agency,
PCB
89-5 (February 2,
1989);
Village of
Sauget v.
illinois Environmental Protection Agency,
PCB
86-57,
Monsanto
Company
v.
illinois
Environmental Protection Agency,
PCB
86-62 (Consolidated),
(July 31,
1986);
Electric Energy
v.
Illinois
Environmental Protection Agency,
PCB
85-14 (February
7,
1985).
Nonetheless,
and
without
waiving
its
position
that
such a
request
is
unnecessary
in
light
of the
APA,
Midwest
Generation
requests,
in
the
alternative,
that
the
Board
exercise
its
discretionary
authority
pursuant to
35
Ill.Adm.Code
§
105.304(b) and enter an order staying the entire CAAPP permit.
The
Board
frequently
grants
requested stays
of entire
permits,
often referring to
various
factors
considered
under
common
law.
The
Board
considers
several
factors
including
(1)
existence of an ascertainable right that needs protection, (2) irreparable injury
in the absence of a
stay,
(3) the
lack of an adequate remedy at law, (4) the probability of success
on the merits, and
(5) the likelihood of environnental harm if a stay is granted.
See Bridgestone/Firestone
Off-road
Tire
Company
v.
Illinois
Environmental
Protection Agency,
PCB
02-31
(November
1,
2001).
While the Board may look to these five
factors in determining whether or not to grant a stay, it is
not confined exclusively to
these factors nor must each one be
satisfied.
Id.
The Board’s recent practice
in other CAAPP
permit appeals, which practice has not been
opposed by
the
Agency,
has
been to
grant
stays of the
entire
CAAPP permit
when requested,
even when the
entire permit was not
contested.
See
Lone Star Industries,
Inc.
v.
IEPA,
PCB 03-
94
(January
9,
2003);
Nielsen
&
Brainbridge,
L.L.C.
v.
IEPA,
PCB
03-98
(February
6,
2003);
Saint-Gobain
Containers,
Inc.
v.
IEPA,
PCB
04-47
(November
6,
2003);
Champion
Laboratories,
Inc.
v.
IEPA,
PCB
04-65 (January
8,
2004);
Midwest
Gene*ation,
LLC
—
Collins
Generating Station
v.
IEPA,
PCB
04-108 (January
22,
2004);
Ethyl Petroleum Additives,
Inc.,
v.
IEPA,
PCB
04-113
(February
5,
2004);
Board of Trustees of Eastern illinois
University v.
IEPA,
11
PCB
04-110
(February
5,
2004).
Notwithstanding
the
Board’s recent
practice
in
the
above-
referenced
appeals
and
the Agency’s
position
in
those
appeals, the
Agency
now asserts that
it
“has
come to
regard blanket stays of CAAPP permits as incongruous with the aims ofthe Illinois
CAAPP and needlessly over-protective in light of attributes common to these appeals.”
(Opp.
at
8).
The catalyst for the Agency’s
sudden
change of position appears to be
a phone
call
from
USEPA.
(Opp.
at
16).
Although
the Agency
argues
that
its
“weighty
concerns” are
based
on
state law,
it
is
clear that
it
was not until
the
USEPA
called
the Agency
that theAgency had the
epiphany that an entire stay ofa CAAPP permit is improper.
(Opp. at
16).
The Agency
suggests that
the reasons for an
entire stay put forward by Petitionerjusti~’
a
stay
of the
contested
conditions,6
but
that
certain reasons do
not justif~’a
stay
of the
entire
CAAPP permit.
(Opp. at 8).
To
this end, the Agency challenges the first two
ofthe
five factors
the Board often looks to and the two additional reasons Petitioner put forth in its Petition
--
a stay
of
the
entire
CAAPP
permit
is
necessary
to
avoid
administrative
confusion
and
appropriate
because IEPA
failed
to
provide
a statement of basis.
Since the
Agency
is
only
challenging
a
limited
number of the reasons Petitioner set
forth
in
its
Petition for a
stay of the entire
CAAPP
permit, the Agency waives any objection to
those reasons that it did not
challenge and-the-Board
may
grant a stay of the entire
CAAPP permit based
on the unchallenged reasons set forth
in the
Petition.
Bridgestone/Firestone
at page 3.
A.
An Ascertainable Ri2ht
Exists That Needs Protection
and Absent a
Stay of
the
Entire
CAAPP Permit,
Petitioner Will Incur Irreparable
Injury.
The
Agency’s
first
argument
is
that
because
Petitioner
is
not
challenging
the
entire
CAAPP
permit,
an ascertainable right
does not
exist as to
the
uncontested
conditions
that needs
¶
One of the
conditions the Petitioner contests
is the effective date.
Therefore,
a
stay of
the contested conditions will
result
in
a
stay of the effective date, thus
staying the effectiveness
of the entire CAAPP permit.
12
protection,
and
compliance
with
the
uncontested conditions
during
the appeal
process
will
not
result
in
irreparable
harm.
(Opp.
at
10-Il).
The
Agency
seems
to
assume
that
the contested
conditions
that
pertain
to
such
things
as
emissions
testing,
reporting,
recordkeeping,
and
monitoring
are
not
interwoven
in purpose or scheme with the remainder of the CAAPP permit.
This
assumption is flawed.
A close examination of the CAAPP permit reveals that a stay ofjust
the
contested
conditions
would
create
confusion
and
leave
at
least
some
of
the
uncontested
conditions virtually meaningless.
Further, such a limited stay would require Petitioner to
comply
with
provisions
that
are incorrect applications of legal
requirements.
For example, Conditions
7.1 .3(b)(iii), 7.1 .3(c)(iii),
7.1 .7(a)(iv),
7.1.1 0-2(a)(i)(D),
7.1.12(f), which were
not contested,
are
linked
to
contested
conditions.
Therefore,
if
the
Board
were
to
only
stay
the
contested
conditions, these uncontested conditions would become meaningless.
Petitioner’s
right of appeal
should
not
be
cut
short
or even rendered moot
by
a
limited
stay that would result
in Petitioner having to comply
with certain conditions before a legal ruling
that
will
or
may
affect
the
meaning
of those
conditions.
Furthermore,
as
admitted
by
the
Agency,
Petitioner
should
not
be
required
to
expend
exorbitant
costs
in
complying
with
conditions
whose
meaning
will
be
affected
by
the
appeal
process.
(Opp.
at
9).
Since
the
contested
conditions
are
beyond
the
scope of the Agency’s statutory
permit
authority
and
are
interwoven with the remainder of the CAAPP permit,
a stay of the entire permit is
necessary to
protect an ascertainable right and avoid irreparable injury.
B.
The
Absence
of
a
Stay
of
the
Entire
CAAPP
Permit
Would
Cause
Administrative Confusion.
The
Agency’s second
argument
is that,
even though the permit
appeal process
is part of
the
administrative continuum,
no
administrative
confusion
will result if a partial stay
is
granted
because the
state
operating
permits
become
a
“nullity”
upon
the
issuance/effectiveness of the
13
CAAPP
permit.
(Opp.
at II).
The Agency’s interpretation of the Act contravenes a basic
canon
of statutory construction because it results
in a superfluous interpretation ofstatutory language
--
if effectiveness
and issuance are synonymous as the Agency alleges,
Section
39.5(4)(b)
or (g) of
the
Act
becomes superfluous.
Krafi
lnc.
v.
Edgar,
561
N.E.2d
656,
661
(Ill.
1990)
Stern
v.
Norwest Mortgage Inc.,
672 N.E.2d 296, 299
(Ill.
App. Ct.
1996);
Roscoe
Taylor
v.
illinois,
No.
93-CC-0083,
1995
WL 1051631, at *3 (Ill.
Ct.
Cl.
1995).
The
Agency
takes
issue
with
Petitioner’s
reliance
upon
both
Sections
39.5(4)(b)
and
9.1(f) of the
Act
for the
continuation of the
state
operating
permit
during
the pendency of the
appeal.
(Opp.
at
11).
However,
in
ascertaining the
meaning of a
statute,
the statute
should
be
read as
a
whole
with
all
relevant
parts
considered.
Patterson,
308
Il1.App.3d
at
947,
242
Ill.
Dec.
at
521.
Petitioner’s
reliance
on
both
sections
is
necessary
and,
therefore,
appropriate
in
order
to
give
effect
to
the
language
in
the
statute.
Section
39.5(4)
of the
Act
addresses
the
transition
from
the
state operating
permit
program
to
the
CAAPP.
A
source’s state operating
permit
is
to
remain
in
full
force
and
effect
until
issuance of the CAAPP
permit.
See
Section
39.5(4)(b)
of the
Act.
Once
the
CAAPP
permit
has
been
issued,
at least
this
portion
of the
transition
from
the
state
operating
permit
program
to
the
CAAPP
has
occurred.
However,
Section
39.5(4)(g)
says
that
the
“CAAPP
permit
shall
upon
becoming
effective
supersede
the
State operating permit.”
(Emphasis added.)
Under Illinois law,
as discussed above, the CAAPP
permit is
not effective if it has been appealed.
If the Agency
is correct
in
its
argument, there
is
no
permit
in
effect
under
which
the
source
can operate
if
a
stay
is
issued
by
the Board.
The
General Assembly could not have reasonably intended for
a source to
operate without a permit.
Section
9.1(0
of
the
Act
supports
the
distinction
between
Sections
39.5(4)(b)
and
39.5(4)(g) ofthe
Act
in
the
context of appeals of CAAPP
permits,
and
confirms that
the
state
14
operating
permits
remain
in
effect
until
“final
administrative
action”
is
taken
on
the
CAAP
permit.
Section 9.1(f) of the Act provides that
“ilf
a complete application for a permit renewal
is submitted to the Agency at least 90 days prior
to expiration of the permit, all ofthe
terms and
conditions of the permit shall
remain in effect until final administrative action has been taken on
the
application.”
The
Agency
argues
that
this
section
applies only
to
New
Source
Review
construction
permits
because
the
context
of Section
9.1
is
the
Clean
Air
Act.
In
actuality,
Section
9.1(0 of the Act is not
limited
to permits
issued
because of Clean Air Act
requirements,
or even if it is, it would apply in the case of CAAPP permits because they are required by Title V
of
the
Clean
Air
Act.
First,
New
Source
Review
permits
are
not
renewed.
They
are
preconstruction permits
that are followed by
an operating permit.
Therefore,
Section 9.1(1) does
not apply to New Source
Review at all,
let alone only to New
Source
Review.
Second,
permits
issued
because
of
Clean
Air
Act
requirements
generally
require
public
notice,
and
the
applications must be
submitted
at
least
180
days prior
to
expiration ofthe
previous
permit.
See
Section 39(a) of the
Act.
Therefore,
it is
not
limited
only
to
permits
required by the Clean Air
Act.
A state operating permit,
pursuant to
Section
9.1(0 of the
Act,
continues in
effect after its
expiration if the application for renewal
is timely.
In this
case,
the application
for renewal was
the
application for the CAAPP
permit.
See Section
39.5(4)(a)
of the Act.
In
order
for Sections
39.5(4)(a),
(b), and
(g) of the
Act to
make sense
in the context of the
entire
Act,
which
has not
been superseded by the CAAPP as discussed above, the state operating permit continues in effect
during the pendency of the appeal ofthe CAAPP permit thus creating administrative confusion
if
a stay ofthe entire permit
is
not granted.7
~Note that Section
39.5(5)(o) applies in appeals ofrenewal CAAPP permits.
15
C.
The Absence of a
Statement of Basis Warrants
a
Stay of the Entire CAAPP
Permit.
The Agency’s third argument is that the lack of a statement of basis does not
support the
need for a stay of the entire CAAPP permit because it
does not render the entire permit defective.
(Opp. at 14).
The current issue before the Board, however,
is not whether the lack ofa statement
of basis renders the permit defective, but
whether the lack of a statement of basis justifies
a stay
of the entire CAAPP permit.
Petitioner, therefore, will
not address the merits of why a statement
of basis
renders
the
entire
permit
defective
in
this
reply,
but
will
set
forth
why the
lack
of a
statement of basis is a reason to stay the entire permit.
Section
39.5(8)(b) requires
the Agency
to
explain the Agency’s
rationale
for the
terms
and
conditions
of the
CAAPP
permit.
A
statement of basis
is,
therefore,
necessary
for
the
permittee
to
fully
understand the rationale behind
each permit
condition
and
ultimately affects
whether
the
permittee
finds
a
condition
to
be
objectionable.
Since the Agency
did
not
issue
a
statement of basis,
denying the permittee
notice
of the Agency’s decision-making rationale and
the
opportunity
to
comment thereon,
Petitioner
effectively
objects
to
each and
every
CAAPP
permit condition.
The Agency concedes that
the reasons put forward by Petitioner in its Petition
justi~a
stay
of the
contested
conditions.
Accordingly,
the
Agency’s
failure
to
provide
a
statement of basis justifies a stay ofthe entire CAAPP permit.
III.
THE
STATUTORY
OBJECTIVES
OF
THE
CAAPP
AND
THE
COMMON
ATTRIBUTES
OF PERMIT APPEALS DO NOT WARRANT THE DENIAL
OF A
STAY OF THE ENTIRE CAAPP PERMIT.
The
Agency
argues,
without
providing
any
support
for
its
argument,
that
the
Board
should
not
issue
a stay of the
entire
CAAPP permit because
it could
lessen the opportunities for
citizen enforcement against Petitioner and
the “cumulative effect” of stays
sought by other coal-
fired
CAAPP
permittees
would
“effectively
shield”
the
entire
utility
sector
from
potential
16
enforcement.
(Opp. at
19)
This argument
is completely specious.
The Act
allows “any person”
to
file a complaint
with the Board
against any
person violating the
“Act,
any
rule or regulation
adopted under the Act, any permit, or any term or condition of a permit.”
See
Section
31 (d)(i) of
the Act.
Therefore,
a stay in
this case or any of the other coal-fired CAAPP permit appeals will
not
limit a citizen’s ability to bring an enforcement action.
The
Agency
also
argues
that
Petitioner
is
not
entitled
to
a
stay of the
entire
CAAPP
permit because this appeal
along with the other coal-fired CAAPP permit appeals are “protective
appeals.”
Petitioner takes exception
to
the accusation that
this
appeal is
protective.
Petitioner
was
active in
the opportunities for public participation
and
issued written comments
in response
to
all
of the
iterations
of the
draft CAAPP
permit.
Petitioner filed this
appeal
because
the
Agency failed to address serious issues raised by
Petitioner during public participation, resulting
in
a
CAAPP
permit
that
exceeds the Agency’s statutory
authority.
Petitioner
and the
Agency
anticipate that some ofthese
issues will likely go to hearing.8
~The Agency in
its Motion For Extension of Time to
File Record concedes that
some of
this issues will likely
go
to hearing.
17
CONCLUSION
For the reasons set
forth above, Petitioner contends that the CAAPP permit
on appeal
in
this proceeding
is
not in
effect, pursuant to the
APA,
while this appeal
is pending
and until
the
Agency
issues the
permit
after
remand,
and
requests,
in
the alternative, that
the
Board
grant
Petitioner’s request for a stay of the
entire CAAPP
permit
pursuant to the Board’s discretionary
stay authority.
Respectfully submitted,
MIDWEST GENERATION, LLC,
CRAWFORD
GENERATING STATION
by:
_______
One of Its Attorneys
Dated:
December 2, 2005
Sheldon A. Zabel
Kathleen C. Bassi
Stephen J. Bonebralce
Joshua R. More
Kavita M. Patel
SCHIFF HARDIN, LLP
6600 Sears Tower
233
South
Wacker Drive
Chicago, Illinois
60606
312-258-5500
Fax:
312-258-5600
CH2\
1335958.1
18
EXHIBIT
1
QUESTIONS AND ANSWERS ON
THE REQUIREMENTS OF OPERATING PERMITS
PROGRAM REGULATIONS
Prepared By:
The
U.
S.
Environmental Protection Agency
July
7,
1993
INTRODUCTiON
This document summarizes questions and answers
(Q’s
& A’s)
on requirements and implementation of the Environmental
Protection Agency’s
(EPA)
final operating permits program
regulations.
The operating permits regulations
were
published on
July
21,
1992,
in Part
70 of Chapter
I of Title 40 of the Code of
Federal Regulations
(57 FR 32250)
.
These rules are mandated by
Title V of the Clean Air Act
(Act)
as amended in 1990.
The contents of this document reflect
a wide range of
questions that have been asked of EPA concerning implementation
of the operating permits program.
In part,
the document reflects
audience questions and EPA’s responses at workshops and
conferences sponsored by EPA and by other groups
at which EPA
personnel participated as speakers.
Workshop attendees included
personnel from EPA Regional Offices,
State and local permitting
agencies,
industry representatives, and other individuals from
the interested public,
including environmental groups.
Questions
and answers are organized in chapters primarily
according to the sections of the Part
70 regulations with
additional topics. covered in latter chapters.
This document is
available in a WordPerfect 5.1 file on
EPA’s electronic bulletin boards and will be periodically updated
by addition of more questions and answers.
Each succeeding set
o.f additions to this document will be indicated so the user can
distinguish new material.
As new material is added,
it will be
designated
in WordPerfect “redline”
font.
“Redline”
font appears
differently
(e.g.,
shading or dotted underline)
according to the
printer being used.
Example:
4f~~ë)
As each new addition of Q’s
& A’s
is made,
the “redline”
font will be removed from the previous addition so that only the
latest material added will appear in “redline” font.
Document
updates will be recQrded as they are made.
This document responds to many requests for information
concerning implementation of Part
70.
The contents are based on
the Part 70 requirements and the requirements of Title
V.
Answers to questions are intended solely as guidance representing
the Agency’s current position on Part
70 implementation.
The
information contained herein is neither rulemaking nor final
Agency action and cannot be relied upon to create any rights
enforceable by any party.
In addition, due to litigation
underway,
the Agency’s position on aspects of the program
discussed in this document may change.
If
so,
answers will be
3.
revised accordingly.
As with periodic updates to this dpcument,
any change will be denoted with the Wordperfect “redline” font to
distinguish any revised answer from a previous version.
RECORD OF DOCUMENT UPDATES
Original document:
July
7,
1993
First Update:
_____________
ii.
TABLE OF CONTENTS
Page
1.0
PROGRAM OVERVIEW
2.0
DBFINITIONS
2.1
Applicable Requirements
2.2
Affected States
2.3
Malor Source
2.4
Potential to Emit
2.5
Regulated Air Pollutant
2.6
Regulated Pollutant for Fees
2.7
Responsible Official
3.0
APPLICABILITY
3.1
Sources Covered
—
General
3.2
Source Category Exemptions
3.3
“Synthetic Minors”
3.4
Emissions Unit Coverage
3.5
Fugitive Emissions
3.6
Applicability Duration
3.7
Section 112Cr)
Sources
3.8
Area HAP’s Sources
3.9
Acid Rain Source Obligations
3.10 Non—Act Reauirements
3.11 Radionuclide Sources
4.0
PROGRAM SUBMITTALS
4.1
Program Submittal Content
4.2
EPA Review of Program Submittals
4.3
Interim Aonroval
4.4
Equivalent Program Elements
4.5
Attorney General’s Opinion
4.6
Legal Authority
4.7
Partial Programs
4.8
Operational Flexibility
4.9
“Off Permit”
4.10 Transition Plan
4.11 Judicial Review
4.12 Implementation Agreements
PERMIT APPLICATIONS
5.1
Application Content
5.2
Timely and Complete Submittal
5.3
Application Review
5.4
Insignificant Activities
5.5
Emissions
Reoorting
5.6
Confidential Information
5.7
Compliance Plans
1—1
2—1
2—1
2—1
2—1
2—1
2—2
2—3
2—3
3—1
3—1
3—2
3—3
3—3
3—3
3—3
3—4
3—4
3—4
3—5
3—5
4—1
4—1
4—2
4—2
4—3
4—3
4—3
4—4
4—4
4—5
4—5
4—6
4—7
5—1
5—1
5—1
5—2
5—2
5—3
5—3
5—4
5.0
iii
6.6
6.7
6.8
6.9
6.10
6.11
6.12
6.13
6—1
6—1
6—1
6—1
6—2
6—2
6—3
6—4
6—5
6—6
6—6
6—7
6—7
6—7
7.0
PERMIT PROCESSING
7.1
General
Process
7.2
Administrative Mtendments
7.3
Minor Modifications
7.4
Significant Modifications
7.5
Apolication Shield
7.6
Public Participation
7.7
Renewals
7.8
Reoneninas
7.9
Title
I Modifications
7.10 Permit Denial
7.11 Temporary Sources
7—1
7—1
7—1
7—1
7—2
7—2
7—2
7—3
7—3
7—3
7—3
7—3
8.0
PERMIT
REVIEW
8.1
EPA Review
8.2
Affected State Review
8.3
Public Participation
8.4
Data Management
8—1
8—1
8—1
8—1
8—1
9.0
PERMIT FEES
9.1
Presumptive Minimum Program Cost
9.2
Fee Demonstration
9.3
Funded Program Costs
9.4
Fee Schedule
9.5
Small Business Program Funding
9.6
Phase
I
Source Fee Exemption
9—1
9—1
9—i
9—1
9—3
9—4
9—4
10.0 FEDERAL OVERSIGHT AND SANCTIONS
11.0 ENFORCEMENT AUTHORITY
11.1 Enforcement Authority
11.2 criminal Authority
10—1
11—1
11—1
11—1
5.8
certification of Truth.
etc
5.9
Cross—Referencing
6.0
PERMIT
CONTENT
6.1
General
Permit
Content
6.2
Equivalency
Determination
6.3
Federal
Enforceability
6.4
compliance
Certification
6.5
Monitoring.
Recordkeeping.
Reporting
5—4
5—4
Inspection Provisions
General Permits
Permit Shield
Alternative Scenarios
Emergency Defenselupdates
Noncomplying Sources
Model Permits
Emissions Tradina
.
.
iv
12.0
PROGRAM
INTERFACE
12.1
au
12.2
Section
112
12.3 New Source Review
12.4 Acid Rain
12.5 Enhanced Monitoring
12.6 Stratospheric Ozone
12—1
12—1
12—2
12—2
12—3
12—9
12—9
14.0
PART
71
14—1
13.0 MISCELLANEOUS
13.1 Indian Lands
.
.
.
13.2 Pollution Prevention
13—1
13—1
13—1
v
6.0
PERMIT
CONTENT
6.1
General
Permit
Content
1.
Must
the
SIP-approved
emissions
rate
be
included
in
the
permit,
or
is
a
Control
Technology
Guideline
reasonably
available
control
technology
limit
sufficient?
The
SIP—approved
emissions
rate
is
the
applicable
requirement
and must be included in the permit.
2.
What is a severability clause?
The severability clause is
a provision that allows the rest of
the permit to be enforceable when a part of the permit is
judged illegal or void.
6.2
Equivalency Determination
6.3
Federal Enforceability
1.
What are the limits on the additional requirements thit a
permitting authority can impose on a source in the
non-
federally-enforceable portion of the permit?
A
permitting
authority
is
free
to
add
any
“State—only”
requirements
to
the
extent
allowed
by
State
or
local
law.
However,
the
permitting
authority
is
also
responsible
for
enforcing
the
federally—enforceably
portion
of
the
permit
and
EPA
will
exercise
its
enforcement
oversight
with
regard
to
those
terms
and
conditions.
2.
If
a
facility
takes
a
tighter
limit
to
create
emission
credits, how is the new limit made federally enforceable?
The new limit
is made federally enforceable by placing it in
the federally—enforceable part of the Title V permit,
along
with appropriate compliance terms
(e.g., monitoring,
reporting,
and recordkeeping)
3.
What
is the mechanism to change or reverse “State-only”
conditions that became federally enforceable back to “State-
only”
status?
The
mechanism
for
changing
the
designation
from
federally
enforceable to “State—only”
is the minor permit modification
process.
These changes,
if “State—only,” should not involve
applicable
requirements
and
could
be
removed
from
the
federally—enforceable portion of the permit as
long as none of
the restrictions
on minor permit modifications
in section
70.7(e) (2) (i) (A)
are violated.
If any of the restrictions in
6—1
CERTIFICATE
OF SERVICE
I hereby certify that on the
2~
day ofDecember 2005,1
did serve, by electronic filing, by
electronic mail, and by U.S. Mail postage prepaid, a true and correct copy ofthe attached
PETITIONER’S REPLY IN SUPPORT OF A PERMIT STAY AND IN RESPONSE TO
THE AGENCY’S OPPOSITION TO PETITIONER’S REQUEST FOR A STAY
and
MOTION FOR LEAVE TO FILE REPLY
INSTANTER,
upon the following persons:
Dorothy Gunn, Clerk
Robb Lyman, Assistant Counsel
Pollution Control Board
Sally Carter, Assistant Counsel
James R.
Thompson Center
Division ofLegal Counsel
100
W. Randolph
Street
Illinois Environmental Protection Agency
Suite
11-500
1021
North Grand Avenue, East
Chicago, Illinois 60601
P.O. Box
19276
Chicago, Illinois
60601
Springfield, Illinois 62794-9276
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite
11-500
Chicago, Illinois 60601
athleen C. Bassi
Sheldon A. Zabel
Kathleen C. Bassi
Stephen J. Bonebrake
Joshua R. More
Kavita M. Patel
SCuFF
FIARDIN, LLP
6600 Sears Tower
233
South Wacker Drive
Chicago, Illinois
60606
312-258-5500
Fax:
312-258-5600
-5-
