RECE!VED
CLERK’S OFFICE
BEFORE
THE ILLINOIS POLLUTION CONTROL BOARD
DEC
022005
STATE OF ILLINOIS
MIDWEST GENERATION,
LLC,
)
Pollution
Control
Board
POWERTON
GENERATING STATION,
)
)
Petitioner,
)
)
v.
)
PCB
No. 2006-059
)
(Permit Appeal
—
Air)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTIONAGENCY,
)
)
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. Flalloran
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
1ecnon~caHy
filed with the Office ofthe
Clerk of the 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.
tMbia
Ka hleen 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 Waeker Drive
Chicago, Illinois
60606
312-258-5567
FAX:
312-258-5600
-2-
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
DEC
022005
STATE OF ILLINOIS
Pollution Control
Board
MIDWEST GENERATION, LLC,
)
POWERTON GENERATING STATION,
)
)
Petitioner,
)
)
V.
)
PCB No. 2006-059
)
(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,
POWERTON
GENERATiNG
STATION
(“Petitioner”),
respectfully
submits
this
Motion
for
Leave to File Reply
Instanter.
In support ofthis 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,
respectfully requests that the Board grant its Motion for Leave to File Reply
Instanter.
Respectfully submitted,
MIDWEST GENERATION, LLC,
POWERTON 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 0
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DEC
022005
MIDWEST GENERATION, LLC,
)
POWERTON GENERATING STATION
)
STATE OF ILLINOIS
rollutton Control
Board
Petitioner,
)
)
sc
)
PCB No. 2006-59
)
(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, POWERTON
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.’
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
assertedjustificationafotan
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 pennit
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 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 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
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
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)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 otherprovisions;
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
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
IlI.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)0) of the Act
along with each section of the Act together as
a whole,
it
is
apparent that
Section
39.5(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 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,
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
(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 thrvalidityofihe
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)0)
is
based.
On
July
7,
1993,
the
USEPA
in
“Questions
and
Answers
on
the
Requirements
of
Operating
Permits
Program
Regulations”
explained
that
“the
severability
clause
L(Section
39.5(7)0) of the
Act)I
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 ofsome
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
I.
The
remainder
of
the
document
can
be
found
at
http://www.epa.gov/Region7/programs/artdlair/titleS/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 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 Boardi
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 of the CAAPP permit
from
any kind of protective stay during
the permit
appeal
process.
(Opp. at 5-6).
The Agency seems to assume
that
a stay ofthe 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)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 Grandfatherin2 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
111.
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
fi.iture
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 of the 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
Il1.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 enviromnental 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 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 ofEastern 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 of the 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 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 justify
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 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 Right
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
10-1 1).
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.l.3(b)(iii),
7.1.3(c)(iii),
7.1.7(a)(iv),
7.1.10-2(a)(i)(D), 7.1.12(1), 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 a~e
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 ofthe 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
(Ill.
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
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(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(0 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(1) 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(0 ofthe
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 ofthe
appeal ofthe 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 ofbasis
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 ofa 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 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
justify
a
stay
of
the
contested
conditions.
Accordingly,
the
Agency’s
failure
to
provide
a
statement ofbasis 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 of these 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,
POWERTON 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
312-258-5500
Fax:
312-258-5600
CH2\
1335980.1
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 recçrded 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
1
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
1.0
PROGRAM
OVERVIEW
TABLE OF CONTENTS
Page
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 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
A~olicabilityDuration
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 Approval
4.4
Equivalent Program Elements
4.5
Attorney General’s Opinion
4.6
Leual Authority
4.7
Partial Proarams
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
Application Content
5.2
Timely and Complete Submittal
5.3
Apolication Review
5.4
Insignificant Activities
5.5
Emissions Reportina
5.6
Confidential Information
5.7
Compliance Plans
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
1—1
iii.
5.8
certification of Truth.
etc.
5.9
Cross—Referencinc
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
Reooeninas
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 Manaaement
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—1
7—1
7—1
7—1
7—2
7—2
7—2
7—3
7—3
7—3
7—3
7—3
8—1
8—1
8—1
8—1
8—1
9—1
9—1
9—1
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—4
5—4
6.0
PERMIT
CON’rEN’r
6.1
General Permit Content
6.2
Equivalency Determination
6.3
FederaL Enforceability
6.4
Compliance Certification
6.5
Monitorinu. Recordkeeoina. Reporting
6.6
Inspection
Provisions
6.7
General Permits
6.8
Permit Shield
6.9
Alternative Scenarios
6.10 Emergency Defense/Updates
6.11 Noncomplying Sources
6.12 Model Permits
6.13 Emissions Trading
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
iv
12.0 PROGRAM INTERFACE
12.1 LIE
12.2 Section 112
12.3 New Source Review
12.4 Acid Rain
12.5 Enhanced Monitorinu
12.6 Stratospheric 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
v
14—1
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 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
tb
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 of December 2005, I did serve, by electronic filing, by
electronic mail,
and
by
U.S.
Mail
postage prepaid, a
true and correct copy of the 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 followingpersons:
Dorothy
Gunn, Clerk
Pollution Control Board
James R. ThompsonCenter
100 W. Randolph
Street
Suite
11-500
Chicago, Illinois 60601
Chicago, Illinois 60601
Bradley P. Halloran
Hearing
Officer
Illinois Pollution Control Board
James R.
Thompson Center
100 West Randolph Street
Suite
11-500
Chicago,
Illinois 60601
1~iá&ta
&ac’
Kathleen C.
Bassi
Sheldon
A. Zabel
Kathleen C. Bassi
Stephen
J. Bonebrake
Joshua R. More
Kavita M. Patel
SCI-IIFF HARDIN, LLP
6600
Sears Tower
233 South Wacker Drive
Chicago, Illinois
60606
312.258-5500
Fax:
312.258.5600
Robb
Lyman,
Assistant Counsel
Sally Carter, Assistant Counsel
Division of Legal
Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue, East
P.O.
Box
19276
Springfield, Illinois 62794-9276
-5-
