N yr
D
CLEF~Ks
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARDr~
e
2005
STATE OF ILLINOIS
DYNEGY MIDWEST GENERATION,
INC.
)
Pofluuon
Coniwi Board
(BALDWIN ENERGY COMPLEX),
)
)
Petitioner,
)
)
V.
)
PCB No. 2006-063
)
(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 ofLegal
Counsel
100
W.
Randolph Street
Illinois Environmental Protection Agency
Suite
11-500
1021
North Grand Avenue, East
Chicago, Illinois 60601
P.O. Box
19276
Chicago, Illinois 60601
Springfield, Illinois 62794-9276
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite
11-500
Chicago, Illinois 60601
PLEASE TAKE NOTICE that
I
have today
t~.
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 PETITIONFJ1?S
REQUEST FOR A STAY
and
MOTION FOR LEAVE TO FILE REPLY INSTANTER,
copies of which
are
herewith served upon you.
KSassi~~~”
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-
fl
r.
~
N V
rr~
D
CLERK’S OFFICE
DEL’
02
2005
BEFORE THE ILLINOIS POLLUTION CONTROL BOAROSTATE
OF
ILLINOiS
l-’Ollution
Contiol Board
DYNEGY MIDWEST GENERATION, INC.
)
(BALDWIN ENERGY COMPLEX),
)
)
Petitioner,
)
)
V.
)
PCB No. 2006-063
)
(Permit Appeal
—
Air)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION FOR LEAVE TO FILE REPLY
INSTANTER
Pursuant to 35
Ill.
Adm.
Code
101.500(e),
DYNEGY MIDWEST GENERATION,
INC.
(BALDWIN
ENERGY COMPLEX)
(“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 Dynegy Midwest
Generation,
Inc., respectfully requests that the Board grant its Motion for Leave to File Reply
Instanter.
Respectfully submitted,
DYNEGY MIDWEST GENERATION, INC.
(BALDWIN ENERGY COMPLEX)
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-
CLERK’S
OFFICE
DEC
02
20D~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE
OF lLL!NO~s
DYNEGY MIDWEST GENERATION, INC.
)
Pollution
Contro~
Boc:rd
(BALDWIN ENERGY COMPLEX)
)
)
Petitioner,
)
)
V.
)
PCB No. 2006-63
)
(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,
DYNEGY
MIDWEST
GENERATION,
INC.
(BALDIN
ENERGY
COMPLEX)’
(“Petitioner,”
“Baldwin,”
or “DMG”),
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.2
This reply also responds to
The Agency incorrectly identifies the Baldwin Energy Complex.
The correct address is
#1
Chessen Lane, Alton, Madison County, Illinois
62002.
2
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.
the Agency’s “Motion in
Opposition to
Petitioner’s Request for Stay” (the
“Opp.”).3
A
motion
for leave to file this reply is attached hereto and is filed herewith.
INTRODUCTION
On November 2, 2005, DMG 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,
DMG
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 stayed4) pursuant to
Section
10-
65(b)
of the APA
and the holding in
Borg-Warner Corp.
v.
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
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
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
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
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 ifihe 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.5
(Opp.
at
3-4).
Indeed, the Agency
concedes
that
the
Borg-Warner
decision is consistent with the involvement of and the separate roles ofthe Board and the Agency
in
permitting matters,
that
it
is
the “Board’s
decision
.
.
.
that
ultimately determines
when the
permit becomes final,” and the
“CAAPP program itself does not
reveal the
General Assembly’s
intentions to
change this
administrative arrangement.”
(Opp. at 4).
Nonetheless, the Agency
asserts
that
the
automatic
stay
provision
of
the
APA,
as
applied
by
Borg- Warner
to
environmental
permits,
does
not
apply
because
the
General
Assembly
somehow
exempted
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
permit
appeal
proceedings
in
particular
from
the
APA
under
415
ILCS
39.5(7)0)
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
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) ofthe 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
4
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
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 ofKing,
208
Ill.2d 332,
340, 280
Ill. Dec.
695, 699 (Ill.
2003). “The
legislature’s intent
can
be
determined
by
looking
at the
language of the
statute
and
construing
each section of the
statute
together
as a
whole.”
People
v.
Patterson,
308
Ill.App.3d
943,
947,
242
Ill. Dec.
518,
521
(2d Dist.
1999). Moreover,
the
language of the
statute shou!dbe given its
plain and ordinary meaning.
Marriage ofKing,
208 Ill.2d at 340.
By construing Section
39.5(7)(i) ofthe Act along with each section ofthe 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)0)
of the
Act provides
that “each
CAAPP permit issued under subsection
10 ofthis Section
shall include
a
severability clause
to
ensure
the
continued
validity of the various
permit requirements
in
the
event
of a
challenge
to
any
portions
of the
permit.”
First,
as
conceded
by
the
Agency,
the
severability clause establishes CAAPP permit content and
is, therefore, applicable to the Agency
but
not
binding
on
the
Board.
(Opp.
at
18).
Second,
the
choice
of the
term
“validity”
is
important
and
clearly
demonstrates
that
the
General
Assembly
was
not
addressing
in
this
provision
when permits
are
effective but,
instead,
was
addressing
potential
problems of legal
enforceability ofthe remainder of a permit when a portion of a permit is determinediobeinvalid
(e.g., inconsistent with the governing law).
S
As the Agency
concedes, Section
39.5(7)(i)
was
included
in the
Act
so that uncontested
conditions would
“continue
to
survive notwithstanding a challenge to the permit’s other terms.”
(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)
ofthe 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)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
(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.”6
Undeterred by the plain language of Section
39.S(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.”
6
A
copy
of the
relevant
pages
of the
July
7,
1993
“Questions
and
Answers
on
the
Requirements of Operating Permits Program Regulations”
are attached hereto
as Exhibit
1.
The
remainder
of
the
document
can
be
found
at
http://www.epa.gov/Region7/programs/artd/air/title5/t5indexbyauthor.htm.
6
(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
make it so.
Indeed, the Agency’s effort to import the term “effectiveness” into Section 39.5(7)0)
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
(l0th
ed.
1997).
Therefore,
“effectiveness”
in
the CAAPP
permitting
context
means the
time
during
which
the obligations
set forth in the permit are put into operation.
To read
“effectiveness” into the statutory language
when
the
legislature
chose
to
use
“validity”
results
in
an
impermissible
departure
from
the
unambiguous statutory
language.
Patterson,
308
Ill.App.3d at 948
(“When the
language of the
statute
is unambiguous,
the
Board
may not depart from
the
language
and
read
into
the statute
exceptions, limitations, or conditions.”).
The
Agency
also
misconstrues
the
effect
a
stay
will
have
on
the
legality
of
the
uncontested conditions.
The Agency asserts that because
a
component
of
a
CAAPP
permit
shall
retain
a
“continued
validity,”
...
uncontested
conditions
of a
CAAPP
permit
must
continue
to
survive
notwithstanding
a
challenge
to
the
permit’s
other
terms.
This
language
“continued
validity”
signifies
an
unambiguous intent to exempt some segment ofthe CAAPP permit
from any
kind 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
7
permit requirements.
A
stay of the
entire
CAAPP permit,
therefore,
is
not
a challenge
to
any
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 Grandfatherinp Clause Does Not Apply To the CAAPP.
The
Agency’s
second
argument
is
that,
pursuant
to
5
ILCS
100/1-5(a)
(“the
APA’s
grandfathering clause”), the APA does not apply to this proceeding because the Board had issued
some
procedural
rules
prior
to
July
1,
1977.
More specifically,
the Agency
suggests
that the
Board’s
procedural
rules
adopted
on
October
8,
1970,
in
the
R70-4
rulemaking
(“general
procedural
rules”)
preclude
APA
applicability
to
CAAPP
permit
appeals because
the
general
procedural rules were adopted before July
1,
1977.
(Opp. at 6-7).
That argument, however,
is at
odds
with
the
appellate
court’s
ruling
in
Borg-Warner
and
the
General
Assembly’s
intended
reach ofthe APA’s grandfathering clause.
8
The court in
Borg-Warner
upheld the APA’s automatic stay provision in
the context of a
renewal of a National
Pollutant
Discharge
Elimination
System (“NPDES”)
permit
sought
from
the
Agency.
Borg-Warner,
427
N.E.
2d
415,
421,
56
Ill.
Dec.
335,
341
(3d Dist.
1981).
The
court ruled
that
the APA’s grandfathering
clause did
not apply
because there were
no
existing
procedures for NPDES
licensing
prior
to
July
1,
1977,
the pertinent date for exceptions
to
the
applicability of the
APA.
Id.
at
418.
The NPDES
rules
at
issue
were
written
in
a
way that
conditioned
their effectiveness
upon
a
future
event.
The
Agency
argues
that
this
fact makes
Borg-Warner
“inapposite here.”
(Opp.
at
7 n.2).
The
Agency
misconstrues the significance of
the
Borg-Warner
decision.
The
APA
applied
in
Borg-Warner
because there were
no NPDES
permitting
procedures
in
effect
as
of
July
1,
1977.
There
were
not
CAAPP
permitting
procedures
in
effect
before July
1,
1977,
either.
The
Agency
apparently believes
that
Borg-
Warner
was
incorrectly decided
but that
is a question the Agency will
have
to
take up with the
appellate
court.
Here, of course,
that
decision
is
controlling.
Under
Borg-Warner,
the
APA
applies in this permit appeal proceeding.
Consistently,
the
Board
has
cited
and
followed
Borg-Warner,
issuing
opinions
recognizing the applicability of the automatic stay provision in the permitting
context despite the
fact that
the
general
procedural
rules
were
promulgated prior
to
July
1,
1977.
See
e.g.,
Arco
Products
Company v.
Illinois
Environmental Protection Agency,
PCB
89-S
(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).
The
Agency
has offered
no
contrary
decision of this
Board
or
any
court.
The
Board
should
therefore
continue to follow
Borg-Warner
and determine that the APA’s grandfathering clause is
9
inapplicable because there were no existing procedures for CAAPP permitting as of July
1,
1977.
To hold otherwise would be contrary to
Borg-Warner
and the Board’s own precedent.
Furthermore, if the Agency’s argument is correct, there would have been no
need for the
General Assembly to have expressly
excluded the applicability of the
contested
case provisions
of the
APA
from
Section
31.1
of the
Act.
The
Agency
argues
that
“it
is
the
procedures
applicable
to
contested
cases
and
their point of origin
that
is
relevant
to
this
analysis,
not the
advent of the permitting program itself”
(Opp. at
6-7).
In other words, the Agency
argues that
the
contested
case provisions of the APA
do
not
apply in
any
contested
ease
brought under the
Act because the general procedural rules “point oforigin” 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,
DMG
requests,
in
the
alternative,
that
the Board
exercise
its
discretionary
authority
pursuant
to
35
Ill.Adm.Code
§
105.304(b) and enter an order staying the entire
CAAPP permit.
The
Board
frequently
grants
requested stays of entire
permits,
often referring to
various
factors
considered
under
common
law.
The
Board
considers
several
factors
including
(1)
existence of an ascertainable rightthat needs protection, (2) irreparable injury in the absence ofa
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
Generating Station
v.
IEPA,
PCB 04-108
(January
22, 2004);
Ethyl Petroleum Additives,
Inc.,
v.
1EPA,
PCB
04-113 (February
5,
2004);
Board of Trustees of Eastern illinois
University
v. IEPA,
II
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 ofCAAPP
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 ofa 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,7
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 Rieht Exists That Needs Protection
and
Absent
a
Stay of
the Entire CAAPP Permit, Petitioner Will Incur Irreparable Injury.
The
Agency’s
first
argument
is
that
because
Petitioner
is
not
challenging
the
entire
CAAPP permit,
an
ascertainable right does not exist as to the uncontested conditions
that needs
~ One of the conditions the Petitioner contests
is
the effective date.
Therefore,
a stay of
the
contested
conditions will result
in
a
stay of the effective date,
thus
staying
the
effectiveness
of the entire CAAPP
permit.
12
protection,
and
compliance
with
the
uncontested
conditions
during
the
appeal
process
will not
result
in
irreparable harm.
(Opp.
at
10-1 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
7.1 .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 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(Ill. Ct.
Cl.
1995).
The
Agency
takes
issue
with
Petitioner’s
reliance
upon
both
Sections
39.5(4)(b)
and
9.1(0 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 (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 ofthe permit,
all of the terms and
conditions of the permit shall remain in effect until
final administrative action has been taken on
the
application.”
The
Agency
argues
that
this
section
applies
only
to
New
Source
Review
construction
permits
because
the
context
of Section
9.1
is
the
Clean Air
Act.
In
actuality,
Section
9.1(0 of the
Act is not
limited
to permits issued
because ofClean 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
3 9(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 ofthe
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 of the CAAPP permit thus creating administrative confusion if
a stay ofthe entire permit is not granted.8
8
Note that Section 39.5(5)(o) applies in appeals of renewal CAAPP permits.
15
C.
The Absence of a Statement of Basis Warrants
a Stay of the Entire CAAPP
Permit.
The Agency’s third argument is that the lack of a statement of basis does not
support the
need for a stay ofthe
entire CAAPP permit because it does not render the entire permit defective.
(Opp. at
14).
The current issue before the Board, however, is not whether the lack ofa statement
of basis renders the permit defective, but
whether the lack of a statement of basis justifies
a stay
of the entire CAAPP permit.
Petitioner, therefore, will not
address the merits of why a statement
of basis
renders
the
entire permit
defective
in
this
reply,
but
will
set
forth
why
the
lack
of a
statement of basis is
a reason to
stay the entire permit.
Section
39.5(8)(b)
requires
the
Agency
to
explain the Agency’s rationale
for the terms
and
conditions
of the
CAAPP
permit.
A
statement of basis
is,
therefore,
necessary
for
the
permittee
to
fully understand the rationale behind
each permit
condition
and
ultimately affects
whether
the
permittee
finds
a
condition to
be
objectionable.
Since
the Agency
did
not
issue
a
statement of basis,
denying
the
permittee
notice of the
Agency’s decision-making rationale and
the
opportunity
to
comment thereon,
Petitioner effectively
objects
to
each and
every
CAAPP
permit condition.
The Agency concedes that the reasons put forward by Petitioner
in its Petition
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 cornmentr 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.9
~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,
DYNEGY MIDWEST GENERATION, INC.
(BALDWIN ENERGY COMPLEX)
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
Ci-12\
1335632.1
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
Co’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:
~a:n±
~
As each new addition
of
Q’5
&
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 recprded 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
0? DOCUMENT UPDATES
Original
document:
July
7,
1993
First
Update:
_____________
ii-
TABLE OF CONTENTS
Page
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
Applicability Duration
3.7
Section 112(r~ Sources
3.8
Area HAP’s Sources
3.9
Acid Rain Source Obligations
3.10 Non—Act Requirements
.
3.11 Radionuclide Sources
1—1
2—1
2—1
2—.
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
4.0
PROGRAM
SUBMITTALS
4.1
Program Submittal Content
4.2
EPA Review of Program Submittals
4.3
Inter~..mApproval
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
Application 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—1
5—1
5—1
5—2
5—2
5—3
5—3
5—4
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
iii
5.9
Cross—Referencing
5—4
5—4
8.0
PERMIT
REVIEW
8.1
EPA Review
8.2
Affected State Review
8.3
Public Participation
8.4
Data Manacement
9.1
Presumptive Minimum Program Cost
9.2
Fee Demonstration
9.3
Funded Program Costs
9.4
Fee Schedule
9.5
Small Business Proaram Funding
9.6
Phase
I Source Fee Exemption
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
9—1
9—1
9—1
9—1
9—3
9—4
9—4
10.0
FEDERAL
OVERSIGHT
MID
SANCTIONS
10—1
11.0
ENFORCEMENT
AUTHORITY
11.1 Enforcement Authority
11.2 Criminal Authority
11—1
11—1
11—1
5.8
Certification of Truth.
etc.
6.0
PERMIT
CONTENT
6.1
General
Permit
Content
6.2
Equivalency
Determination
6.3
Federal
Enforceability
6.4
Compliance
Certification
6.5
Monitorina.
Recordkeeping.
Reporting
6.6
Inspection Provisions
6.7
General Permits
6.8
Permit Shield
6.9
Alternative Scenarios
6.10 Emergency DefenselUodates
6.11 Noncomolving Sources
6.12 Model Permits
6.13 Emissions Trading
7.0
PERMIT
PROCESSING
7.1
General Process
7.2
Administrative Thmendments
7.3
Minor Modifications
7.4
Significant Modifications
7.5
Application Shield
7.6
Public Participation
7.7
Renewals
7.8
Reooenings
7.9
Title
I Modifications
7.10
Permit Denial
7.11 Temporary Sources
.
7—1
7—1
7—1
7—1
7—2
7—2
7—2
7—3
7—3
7—3
7—3
7—3
9.0
PERMIT
FEES
8—1
8—1
8—1.
8—1
8—1
iv
12.0
PROGRAM
INTERFACE
.
12-1
12.1 LIE
12—1
12.2 Section112
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 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
Ecmivalency 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 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.
Flalloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph Street
Suite
11-500
Chicago, Illinois
60601
athleen C. Bass
Sheldon A. Zabel
Kathleen
C.
Bassi
Stephen J. Bonebrake
Joshua R.
More
Kavita M. Patel
SCHIFF HARDIN, LLP
6600 Sears
Tower
233 South WackerDrive
Chicago, Illinois
60606
312-258-5500
Fax:
312-258-5600
CH2\
1335664.1
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-
