RECE!VED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
D~,022005
STATE OF ILLINOIS
MIDWEST GENERATION,
LLC,
)
PolIuUon Control Board
JOLIET GENERATING STATION,
)
)
Petitioner,
)
)
v.
)
PCB
No. 2006-058
)
(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
TAKENOTICE that I have today electronically filed with the Office ofthe
Clerk ofthe Pollution Control Board
PETITIONER’S
REPLY IN
SUPPORT
OF
A PERMIT
STAY AND IN RESPONSE
TO ILLINOIS
EPA’S
OPPOSITION TO
PETITIONER’S
REQUEST
FOR
A STAY and
MOTION FOR LEAVE TO FILE REPLY INSTANTER,
copies of which are herewith served
upon you.
2?,S~~
~,
t
leen C.
Bassi
Dated: December 2, 2005
SCHIFF HARDIN LLP
Sheldon A. Zabel
Kathleen C. Bassi
Stephen J. Bonebrake
Joshua R. More
Kavita M.
Pate!
6600 Sears Tower
233
South Wacker Drive
Chicago, Illinois
60606
312-258-5567
FAX:
312-258-5600
-2-
RECE
~v r
D
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DEc
022905
STATE OF ILLiNOIS
MIDWEST GENERATION,
LLC,
)
POllUtiOn Control Board
JOLIET
GENERATING STATION,
)
)
Petitioner,
)
)
v.
)
PCB No. 2006-058
)
(Permit Appeal
—
Air)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION FOR LEAVE TO FILE REPLY
INSTANTER
Pursuant
to
35
Ill.
Adm.
Code
101.500(e),
MIDWEST
GENERATION, LLC,
JOLIET
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 ofthe 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.
WI-IEREFORE,
for
the reasons
set
forth
above,
Petitioner
Midwest
Generation,
LLC,
respectfully requests that the Board grant its Motion for Leave to
File Reply
Instanter.
Respectfully submitted,
MIDWEST GENERATION, LLC,
JOLIET GENERATING
STATION
By:________________________________
One of Its Attorneys
Dated:
December
2, 2005
Sheldon A.
Zabel
Kathleen C. Bassi
Stephen J. Bonebrake
Joshua R.
More
Kavita M.
Patel
SCHIFF HARDIN, LLP
6600 Sears Tower
233
South
Wacker Drive
Chicago, Illinois
60606
Telephone:
312-258-5500
Fax:
312-258-5600
-4-
RECEIVED
CLERK’S OFF:
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DEC
022095
MIDWEST
GENERATION,
LLC,
)
JOLIET
GENERATING STATION
)
STATE OF ILLINOIS
Pollution
Control Board
Petitioner,
)
)
v.
)
PCB No. 2006-58
)
(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 REOUEST FOR A
STAY
Petitioner,
MIDWEST
GENERATION,
LLC,
JOLIET
GENERATING
STATION
(“Petitioner,”
or “Midwest
Generation”),
by
and
through
its
attorneys,
submits
this
reply
in
support of (I)
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.’
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 of its 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,
56111. 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) ofthe
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
Qf
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 bc harmed if the
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 of and the
separate roles ofthe 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
environmental
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
Proyision 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)0) 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 of the 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
Ill. Dec.
695,
699 (Ill.
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
III. 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
395(7)0)
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 ofthis
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 ofa permit when
a portion of a permit is determined to
be invalid
(e.g., inconsistent with the governing law).
As
the Agency
concedes, Section
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
(71b
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)0)
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)0), 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.gov/Region7/programs/artdlair/title5/t5indexbyauthor.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 ofthe base word, “effect,” is “the quality or state of being
operational.”
Merriam
Webster’s
Collegiate
Dictionary
367
(1Øth
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
tenns.
This
language
‘continued
validity”
signifies
an
unambiguous intent to exempt some segment of the 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
ofthe
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)0)
of
the
Act.
Since
the
language
of
Section
39.5(7)0)
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 ofthe 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 of July
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
ofthe
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
of the Act.
The
legislature,
therefore,
did
not
intend
for
the
APA’s
grandfathering
clause
to
limit
the
applicability ofthe 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 environmental 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
re
ent 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-Oobain
Containers,
Inc.
v.
IEPA,
PCB
04-47
(November
6,
2003);
Champion
Laboratories,
Inc.
v.
IEPA,
PCB
04-65
(January
8,
2004);
Midwest
Generation,
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 Easter,
illinois
University v.
JEPA,
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 of the Illinois
CAAPP and needlessly over-protective in
light of attributes common
to these-appealL”
(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 the
Agency
had the
epiphany that an entire stay of a CAAPP permit is improper.
(Opp.
at
16).
The Agency suggests that the reasons for an entire stay
put forward by
Petitioner jus’tify
a
stay
of the contested
conditions,6
but
that
certain
reasons do
not justify
a
stay
of the
entire
CAAPP
permit.
(Opp. at
8).
To
this end,
the Agency challenges the first two
of the 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 entirrCAAPP
permit,
the Agency waives any objection to those reasons that it did
not challenge andlhe-Bciard
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
6
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
ofthe entire
CAAPP permit.
12
protection,
and
compliance
with
the uncontested
conditions
during
the appeal
process will
not
result
in
irreparable harm.
(Opp.
at
10-11).
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 of just
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(0, 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
11).
The Agency’s interpretation of the Act
contravenes a basic canon
of statutory
construction because it results in
a superfluous interpretation of statutory language
--
if effectiveness and issuance are synonymous as the Agency alleges,
Section
39.5(4)(b)
or (g) of
the
Act
becomes superfluous.
Krafi
Inc.
v.
Edgar,
561
N.E.2d 656,
661
(Ill.
1990)
Stern
v.
Norwest Mortgage Inc.,
672 N.E.2d 296, 299
(III. App.
Ct.
1996);
Roscoe
Taylor
v.
illinois,
No.
93-CC-0083,
1995 WL
1051631,
at *3
(III. 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
Ill.App.3d
at 947,
242
III.
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
addrethes
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(f)
of
the
Act
supports
the
distinction
between
Sections
39.5(4)(b)
and
39.5(4)(g) of the
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 “if
a complete application
for a permit
renewal
is submitted to
the Agency at least 90
days prior to
expiration of the permit,
all of the 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(f) 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 of the
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(t) 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 of the CAAPP permit thus creating administrative confusion if
a stay of the entire permit
is
not granted.7
~Note that
Section 39.5(5)(o) applies in appeals of renewal 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 ofthe 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 of a statement
of basis
renders
the permit defective, but whether the lack of a statement of basis justifies a stay
ofthe entire CAAPP permit.
Petitioner, therefore,
will not address the merits ofwhy
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
justify
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 ofa permit.”
See
Section 3l(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 of these issues will
likely go
to hearing.8
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,
JOLIET GENERATING STATION
by:
______
One ofIts
Attorneys
Dated: December
2, 2005
Sheldon A. Zabel
Kathleen C. Bassi
Stephen J. Bonebrake
Joshua R.
More
Kavita M. Patel
SCITIIFF HARDIN, LLP
6600 Sears Tower
233
South
Wacker Drive
Chicago, Illinois
60606
312-258-5500
Fax:
312-258-5600
CH2\
1335962.1
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
of 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:
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 recorded 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 document,
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
2—1
.2—1
2—1
2—1
2—i
2—2
-
2—3
2—3
3—i
.
.3—1
3—2
3—3
3—3
.3_3
3—3
3—4
3—4
3—4
3—5
3—5
1—1
1.0
PROGRAM OVERVIEW
2.0
DEFINITIONS
2.1
Applicable Requirements
2.2
Affected States
2.3
Major Source
2.4
Potential to Emit
2.5
Regulated Air Pollutant
2.6
Regulated Pollutant forFees
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 112(r)
Sources
3.8
Area HAP’s Sources
3.9
Acid Rain Source Obligations
3.10 Non—Act Requirements
3.11 Radionuclide Sources
4.0
PROGRAM SUBMITTALS
4.1
Program Submittal Content
4.2
EPA Review of Program Submittals
4.3
Interim Aooroval
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
.
5.0
PERMIT APPLICATIONS
5.1
Aonlication Content
5.2
Timely and Complete Submittal
5.3
Antlication Review
5.4
Insignificant Activities
5.5
Emissions Reporting
5.6
Confidential Information
5.7
Compliance Plans
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—i
5—1
5—2
5—2
5—3
5—3
5—4
iii
6.6
Inspection Provisions
6.7
General Permits
6.8
Permit Shield
6.9
Alternative Scenarios
6.10 Emergency Defense/updates
6.il Noncomvlving Sources
6.12 Model Permits
6.13 Emissions Trading
7.0
PERMIT PROCESSING
7.1
General
Process
7.2
Administrative Amendments
7.3
Minor Modifications
7.4
significant Modifications
7.5
Application Shield
7.6
Public Participation
7.7
Renewals
7.8
Reonenings
7.9
Title
I Modifications
7.10 Permit Denial
7.11 Temporary Sources
8.0
PERMIT
REVIEW
8.1
EPA Review
8.2
Affected State Review
8.3
Public Participation
8.4
Data Management
5—4
5—4
6—1
6—i
6—i
6—1
6—2
6—2
6—3
6—4
6—5
6—6
6—6
6—7
6—7
6—7
7—i
7—1
7—1
7—i
7—2
7—2
7—2
7—3
7—3
7—3
7—3
7—3
8—1
8—1
8—1
8—1
9—1
9—1
9—1
9—i
9—3
9—4
9—4
10.0
FEDERAL OVERSIGHT AND SANCTIONS
10—1
11.0 ENFORCEMENT AUTHORITY
11.1 Enforcement Authority
11.2 Criminal Authority
11—1
11—i
il—i
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. Recorting
8—1
9.0
PERMIT FEES
9.1
Presumptive Minimum Proaram 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
iv
12.0 PROGRAM INTERFACE
.
12.1 LIE
12.2 Section 112
.
.
12.3 New Source Review
12.4 Acid Rain
12.5 Enhanced Monitoring
12.6 StratosDheric Ozone
12—1
12—1
.
12—2.
12—2
12—3
.
12—9
12—9
13.0 MISCELLANEOUS
13.1
Indian Lands
.
.
13.2 Pollution Prevention
13—1
13—1
13—1
14.0 PART 71
14—1
v
6.0
PERMIT
CONTENT
6.1
General Permit Cohtent
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 that~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
2nd
day of December 2005,
I 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 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. 1-lalloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite
11-500
Chicago, Illinois 60601
SJikJhdu~’
Kathleen
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
CH2\
1335658.1
-5-
