fl E C ~

V ~ D

BEFORE THE ILLINOIS POLLUTION

CONTROL BOARD

CLERK’S OFFICE

JLC

U

i~’

2005

MIDWEST GENERATION,

LLC,

)

STATE

OF ILUNOIS

WILL COUNTY GENERATING

STATION,

)

Pollution Control

Board

)

Petitioner,

)

)

v.

)

PCB No. 2006-060

)

(Permit Appeal

—

Air)

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

)

NOTICE

To:

Dorothy Gunn, Clerk

Robb

Lyman, Assistant Counsel

Pollution Control Board

Sally Carter, Assistant Counsel

James R.

Thompson Center

Division of Legal Counsel

100 W.

Randolph Street

Illinois Environmental Protection Agency

Suite 11-500

1021

North Grand Avenue, East

Chicago, Illinois 60601

P.O.

Box

19276

Chicago, Illinois 60601

Springfield,

Illinois 62794-9276

Bradley P. Halloran

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

100 West Randolph Street

Suite

11-500

Chicago, Illinois 60601

PLEASE TAKE NOTICE that I havetoday

:1?’;

~fl1ctl’

y

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 ofwhich are herewith sewed upon you.

Kathleen C.

assi

---

Dated:

December 2, 2005

SCHIFF HARDIN LLP

Sheldon A. Zabel

Kathleen C.

Bassi

Stephen J. Bonebrake

Joshua R. More

Kavita M. Patel

6600

Sears Tower

233

South Wacker Drive

Chicago, Illinois

60606

312-258-5567

FAX:

312-258-5600

-2-

---

RE

c

~

ü VED

CLERK’S OFFiCE

BEFORE THE ILLINOIS

POLLUTION CONTROL BOARD

,..

.,.,

LiLt.

022005

STATE OF ILLIt ri’

MIDWEST GENERATION, LLC,

)

Pollution

Controi

WILL COUNTY GENERATING STATION,

)

)

Petitioner,

)

)

v.

)

PCB No. 2006-060

)

(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,

WILL

COUNTY 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 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.

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,

/

WILL COUNTY GENERATING

STATION

By:________________________________

One ofIts Attorneys

Dated:

December 2, 2005

Sheldon A. Zabel

Kathleen C.

Bassi

Stephen J. Bonebrake

JoshuaR. 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-

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OEC

Q

20o

MIDWEST GENERATION,

LLC,

)

WILL COUNTY GENERATING STATION

)

~SThTEOF ILLINOIS

)

OflLJtIon

Contioi Board

Petitioner,

)

)

v.

)

PCB

No. 2006-60

)

(Permit Appeal

—

Air)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

)

Respondent.

)

PETITIONER’S

REPLY IN

SUPPORT OF A PERMIT

THE AGENCY’S OPPOSITION TO

PETITIONER’S REQUEST FOR A STAY

Petitioner,

MIDWEST

GENERATION,

LLC,

WILL

COUNTY

GENERATING

STATION

(“Petitioner,”

or “Midwest

Generation”),

by

and

through

its

attorneys,

submits

this

reply

in

support of (1) its position

that the Clean Air Act Permit Program (“CAAPP”)

permit on

appeal

in

this

proceeding

is

not

in

effect,

pursuant to

the Illinois

Administrative

Procedure

Act

(the “APA”), while this appeal is pending and until the Illinois

Environmental Protection Agency

(the

“Agency”)

issues the permit

after remand,

and

(2)

its

request,

in

the

alternative,

that

the

Illinois

Pollution

Control

Board

(“Board”)

grant

Petitioner’s

request

for

a

stay

of the

entire

CAAPP permit pursuant to the Board’s discretionary stay authority.1

This reply

also responds to

the Agency’s “Motion in

Opposition

to Petitioner’s Request for Stay”

(the

“Opp.”).2

A motion

for leave

to file this

reply is attached hereto and is filed herewith.

The

Agency notes

that Petitioner

did not

expressly make an

alternative request to

stay

just the contested

conditions.

(Opp.

at 2).

That

is

correct.

However, to

the extent

the Agency

implies

that the Board does not have authority to

grant relief that

is not

expressly requested, that

is inconsistent.

The Board has the authority to grant appropriate relief including lesser relief than

that requested by Petitioner.

2

The

Agency’s filing

is captioned

a “motion,” but the

filing

appears to be

a response to

Petitioner’s

positions

and requests

rather than a motion.

For instance, the “motion” cites to the

---

INTRODUCTION

On

November

2,

2005,

Midwest

Generation

filed

a

Petition

for

Review

(hereinafter

“Petition”) with

the

Board

challenging

certain permit

conditions

contained within the

CAAPP

permit issued by the Agency.

As

part 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,

56 Ill. Dec.

335

(3d Dist.

1981).

In the alternative, Petitioner requested

that

the Board,

consistent

with

its

grants

of stay

in

response to

stay

requests

in

other CAAPP

permit

appeals, exercise

its

discretionary

stay

authority and

stay

the

entire

CAAPP

permit.

On

November

18,

2005, the Agency

filed a “Motion

in

Opposition”

to Petitioner’s

conclusion that

the

entire

CAAPP permit

is stayed pursuant to

Section

10-65(b) of the APA

and to

Petitioner’s

alternative request for

a

stay.

The Agency

incorrectly

asserts

that the

APA’s

automatic

stay

provision,

Section

10-65(b), does not apply, and that the Petitioner’s

asserted justifications

for an

entire

stay

of the

CAAPP

permit

pursuant

to

the

Board’s

discretionary

stay

authority

fail to

demonstrate “a clear and convincing need for a broader stay.”

ARGUMENT

The

CAAPP permit

is

and

should

be

stayed

in

its

entirety,

for the

reasons

discussed

below.

First, pursuant to

Section

10-65(b) of the

APA,

the

entire

CAAPP permit

issued by the

Agency does not become

effective until

after a ruling

by the

Board

on the permit appeal

and,

in

time

for responses

to be

filed and, in

its

conclusion,

seeks no relief except that

the Board “deny

the Petitioner’s

request for

a

stay

of the

effectiveness

of the

CAAPP

permit

in

its

entirety.”

(Opp. at

2, 20).

For brevity,

the

effect

of

Section

10-65(b)

of the

APA

is

referred

to

herein

as the

“automatic stay.”

2

---

the event of a remand, until the Agency has issued

the permit consistent with the Board’s order.

In

addition,

to

the extent

necessary

in

light

of the

automatic

stay

under

the

APA,

the Board

should

exercise

its

discretionary

authority

and

enter an

order

staying the

entire

CAAPP

permit

because

an ascertainable right warrants protection, irreparable injury

will befall Petitioner

in the

absence

of an

entire

stay,

Petitioner

has

no

adequate

remedy

at

law,

Petitioner

is

likely

to

succeed on the merits of its appeal, and the environment will not be 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

other provisions, but

whether the

permit

is

in

effect

prior

to

the

Board’s

ruling

on

appeal.

The

Agency

errs

by

assuming,

without

support,

that

through

a

severability

provision

that

does

not

even

refer to

permit effectiveness,

let alone the APA, the General Assembly intended to change Illinois law so

that

the entire

permit

must remain

in effect during the appeal.

(Opp.

at.

5-6,

18).

The Agency’s

4

---

strained

interpretation

of the

severability

clause

is

premised

upon

a

misunderstanding

of the

applicability ofthe severability clause and the

effect of a stay.

The first

question before

the Board

is one of statutory construction.

The cardinal rule of

statutory

construction

is

that

the

Board

must

ascertain

and

give

effect

to

the

intent

of the

legislature.

In re Marriage of King,

208

lll.2d

332,

340,

280 Ill.

Dec.

695,

699

(III. 2003). “The

legislature’s

intent

can be

determined

by

looking at the

language

of the statute

and

construing

each section of the

statute

together as

a whole.”

People

v.

Patterson,

308

Ill.App.3d 943,

947,

242

Ill.

Dec.

518,

521

(2d Dist.

1999). Moreover, the

language of the statute

should be

given

its

plain and ordinary meaning.

Marriage ofKing,

208

Ill.2d at 340.

By construing Section 39.5(7)(i) of the Act along with each section of the

Act together as

a whole,

it

is

apparent

that

Section

39.5(7)(i)

is not

intended

to

address when

a

permit

is, or

is

not,

in

effect,

the

question addressed

by

Borg-Warner

and the

APA.

Section

39.5(7)(i)

of the

Act provides that “each

CAAPP permit

issued under subsection

10 of this Section shall include

a

severability clause to

ensure

the continued validity of the various

permit

requirements

in

the

event

of

a

challenge

to

any

portions

of the permit.”

First,

as

conceded

by

the

Agency,

the

severability clause establishes CAAPP permit content and

is, therefore, applicable to

the Agency

but

not

binding

on

the

Board.

(Opp.

at

18).

Second,

the

choice

of the

term

“validity”

is

important

and

clearly

demonstrates

that

the

General

Assembly

was

not

addressing

in

this

provision

when permits

are

effective

but,

instead,

was

addressing

potential

problems

of legal

enforceability ofthe 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 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

“the

severability

clause

(Section

39.5(7)(i)

of the

Act)

is

a

provision that allows the

rest ofthe permit to

be

enforceable when a

part

ofthe permit is judged illegal or void.”5

Undeterred by the plain language of Section

39.5(7)(i),

the Agency attempts

to

read

into

the statutory language the key term the General Assembly

chose not to include.

According to the

Agency,

“implicit

in

the

statutory

language

is

an

unmistakable

expression

aimed

at preserving

the validity and effectiveness of some segment of the CAAPP permit during the appeal

process.”

(Opp.

at

18,

emphasis

added).

However,

the

General

Assembly

did

not

include

the

term

“effectiveness”

in

Section

39.5(7)(i),

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/prograins/artd/air/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 of the base word, “effect,” is “the quality or state of being

operational.”

Merriam

Webster’s

Collegiate

Dictionary

367

(1Qth

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 ofthe 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 of the entire permit will somehow affect the “continued

validity”

or

“survival”

of

the

uncontested

conditions.

This

is

a

flawed

assumption.

The

automatic

stay

under the

APA does not

depend on

or consider the merits of the CAAPP

permit

requirements,

but

rather

merely

suspends

the

time

required

for

performance

of the

CAAPP

permit

requirements.

A

stay of the

entire

CAAPP

permit,

therefore,

is

not

a challenge

to

any

7

---

portion

of the

CAAPP

permit

that

will

affect

the

“continued

validity”

or

“survival”

of

the

uncontested conditions.

Finally,

if the General Assembly intended to exempt the CAAPP from the automatic stay

provision

of the

APA,

it

would

have

expressly

done

so.

One

example

of this

exercise

of

legislative

discretion

is

found in

Section

31.1

of the

Act,

the

very

section the Agency

cites

in

support

of

its

proposition

that

the

severability

clause

exempts

the

CAAPP

from

the

APA.

Section

31.1

of the

Act

states

that

“Sections

10-25 through

10-60 of the Illinois

Administrative

Procedure

Act

shall

not

apply

to

any

administrative

citation

issued

under

subsection

(b) of this

Section.”

The General Assembly,

therefore,

knows

how to

explicitly

exempt

provisions

of the

APA from the Act.

In the present case it chose not

to; there is no

explicit exclusion of the APA

in

Section

39.5(7)(i)

of

the

Act.

Since

the

language

of

Section

39.5(7)(i)

is

plain

and

unambiguous, the Board

can not expand its meaning to

include

an exemption from the automatic

stay

provision

of the

APA.

To

do

so

would

be

an

improper

departure

from

the

statutory

language.

B.

The APA’s

Grandfathering Clause Does Not Apply To

the CAAPP.

The

Agency’s

second

argument

is

that,

pursuant

to

5

ILCS

100/1-5(a)

(“the

APA’s

grandfathering clause”), the APA does not

apply to this proce~ding

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. 2d4l5,

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 contraryto

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

ofthe

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” ofthe

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 CAAPPpermit.

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 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

Gen~rating

Station

v.

IEPA,

PCB

04-108 (January 22,

2004);

Ethyl Petroleum Additives,

Inc.,

v.

JEPA,

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

of the entire CAAPP permit.

12

---

protection,

and

compliance

with

the uncontested

conditions

during

the appeal

process will

not

result

in

irreparable harm.

(Opp.

at

10-Il).

The

Agency

seems

to

assume

that

the contested

conditions

that

pertain

to

such

things

as

emissions

testing,

reporting,

recordkeeping,

and

monitoring are

not

interwoven in

purpose or scheme with the remainder ofthe CAAPP

permit.

This

assumption is flawed.

A close examination of the CAAPP permit

reveals that

a stay ofjust

the

contested

conditions

would

create

confusion

and

leave

at

least

some

of

the

uncontested

conditions virtually meaningless.

Further, such a limited stay would require Petitioner to comply

with

provisions

that

are

incorrect applications of legal

requirements.

For example, Conditions

7.1 .3(b)(iii),

7.1 .3(c)(iii),

7.1 .7(a)(iv),

7.1.1 0-2(a)(i)(D), 7.1.12(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 ofstatutory language

--

if effectiveness and

issuance are synonymous as the Agency alleges, Section

39.5(4)(b) or (g) of

the Act

becomes

superfluous.

Krafi Inc.

v.

Edgar,

561

N.E.2d

656,

661

(III.

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

(Ill. Ct.

Cl.

1995).

The

Agency

tales

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

Ill.

Dec.

at

521.

Petitioner’s

reliance

on

both

sections

is

necessary

and,

therefore,

appropriate

in

order

to

give

effect

to

the

language

in

the

statute.

Section

39.5(4) of the

Act

addresses

the

transition

from

the state operating

permit

program to

the CAAPP.

A

source’s state operating

permit

is

to

remain

in

full

force

and

effect

until

issuance of the CAAPP

permit.

See

Section

39.5(4)(b) of the

Act.

Once

the

CAAPP

permit

has

been

issued,

at

least

this

portion

of the

transition

from

the

state

operating

permit

program

to

the

CAAPP

has

occurred.

However,

Section

39.5(4)(g) says

that

the

“CAAPP

permit

shall

upon

becoming

effective

supersede

the

State

operating permit.”

(Emphasis added.)

Under Illinois law, as discussed above, the CAAPP

permit

is

not effective if it

has been appealed.

If the Agency

is correct

in its

argument,

there is

no

permit

in

effect

under

which

the

source

can operate

if a

stay is

issued

by

the

Board.

The

General Assembly could not

have reasonably intended for a source to operate without a permit.

Section

9.1(0

of

the

Act

supports

the

distinction

between

Sections

39.5(4)(b)

and

39.5(4)(g) of the

Aci

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

ofthe terms

and

conditions

of the permit shall remain in effect until final administrative action has been taken on

the

application.”

The

Agency

argues

that

this

section

applies

only

to

New

Source

Review

construction

permits

because

the

context

of

Section

9.1

is

the

Clean

Air

Act.

In

actuality,

Section 9.1(f) ofthe 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(f) 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 of the entire

CAAPP permit because it does not

renderthe 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 ofbasis 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

permittce

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 31(d)(i) of

the Act.

Therefore,

a stay in this

case or any of the other coal-fired CAAPP permit

appeals will

not

limit a citizen’s ability to bring an enforcement action.

The Agency

also

argues

that

Petitioner

is

not

entitled

to

a

stay

of the

entire

CAAPP

permit because this appeal along with the other coal-fired CAAPP permit appeals are “protective

appeals.”

Petitioner takes exception

to

the accusation

that

this

appeal

is protective.

Petitioner

was

active in

the opportunities for public participation

and issued

written comments in

response

to

all

of the

iterations

of the

draft

CAAPP

permit.

Petitioner

filed

this

appeal

because

the

Agency failed to

address serious issues raised by Petitioner during public participation, resulting

in

a

CAAPP

permit

that

exceeds the Agency’s

statutory

authority.

Petitioner

and

the Agency

anticipate that some ofthese

issues will likely

go

to

hearing.8

The Agency

in its Motion

For Extension of Time to File Record concedes that

some of

this

issues will likely

go

to

hearing.

17

---

CONCLUSION

For the reasons set forth

above, Petitioner contends that the CAAPP permit

on appeal

in

this proceeding

is not

in

effect,

pursuant to the

APA,

while

this

appeal

is pending

and until

the

Agency

issues the permit

after

remand,

and

requests,

in

the

alternative,

that

the Board

grant

Petitioner’s

request for a

stay of the entire

CAAPP permit pursuant

to the Board’s discretionary

stay authority.

Respectfully submitted,

MIDWEST GENERATION, LLC,

WILL COUNTY 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\

1335965.1

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 199Q.

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 7Q 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-

---

TABLE OF CONTENTS

Page

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

..

1—1

2—1

2—1

2—1

2—1

2—1

2—2

2—3

2—3

3—1

3—1

3—2

3—3

3—3

3—3

3—3~

3—4

3—4

3—4

3—5

3—5

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 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

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

Anplication Content

5.2

Timely and Complete Submittal

5.3

Application Review

5.4

Insignificant Activities

5.5

Emissions Reporting

5.6

Confidential Information

.

5.7

Compliance

Plans

5—4

iii

---

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. Recordkeepina. Reporting

6.6

Inspection Provisions

6.7

General Permits

6.8

Permit Shield

6.9

Alternative Scenarios

6.10 Emergency Defense/Undates

6.11 Noncomplying 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

Reopenings

7.9

Title

I Modifications

7.10 Permit Denial

7.11

Temporary

Sources

PERMIT

REVIEW

8.1

EPA Review

8.2

Affected State Review

8.3

Public Participation

8.4

Data Manaaement

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

5—4

5—4

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

10.0

FEDERAL

OVERSIGHT

AND

SANCTIONS

11.0

ENFORCEMENT

AUTHORITY

11.1 Enforcement Authority

11.2 Criminal Authority

10—1

11—1

11—1

11—1

5.8

Certification of Truth.

etc.

.

.

8.0

8—1

8—1

8—1

8—1

8—1

9—1

9—1

9—1

9—1

9—3

9—4

9—4

iv

---

12.0

PROGRAM INTERFACE

.

12-1

12.1

Lii

12—1

12.2 Section 112

12—2

12.3 New Source Review

12—2

12.4 Acid Rain

12—3

12.5 Enhanced Monitoring

.

12—9

12.6 Stratospheric Ozone

12—9

13.0 MISCELLANEOUS

13—1

13.1

Indian Lands

13—1

13.2 Pollution Prevention

13—1

14.0 PART 71

.

14—1

V

---

6.0

PERMIT

CONTENT

6.1

General Permit Content

1.

Must the SIP-approved emissions rate be included in the

permit, or is a Control Technology Guideline reasonably

available control technology limit sufficient?

The SIP—approved e~nissionsrate 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 2’~”

day ofDecember 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

Pollution Control Board

James R. Thompson Center

100 W.

Randolph Street

Suite

11-500

Chicago, Illinois 60601

Chicago, Illinois 60601

Bradley P. Halloran

Hearing Officer

Illinois Pollution ControlBoard

James R. Thompson Center

100 West Randolph Street

Suite

11-500

Chicago, Illinois 60601

Sheldon A.

Zabel

Kathleen

C.

Bassi

Stephen J. Bonebrake

Joshua R. More

Kavita M. Patel

SCHIFFHARDIN, LLP

6600 Sears Tower

233 South Wacker Drive

Chicago, Illinois

60606

312.258-5500

Fax:

312.258.5600

CH2\

1335660.1

Robb Lyman, Assistant Counsel

Sally Carter, Assistant Counsel

Division of Legal Counsel

Illinois Environmental Protection Agency

1021

North GrandAvenue, East

P.O. Box

19276

Springfield, Illinois 62794-9276

-5-