)FH CE
LJ~~
(I
2J05
BEFORE THE ILLINOIS POLLUTION CONTROL BOA~TATEOF
ILLINOIS
ution Contiol Board
DYNEGY MIDWEST GENERATION, INC.
)
(HAVANA POWER PLANT),
)
)
Petitioner,
)
)
v.
)
PCB No. 2006-071
)
(Permit Appeal
—
Air)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE
To:
Dorothy Gunn, Clerk
Robb
Lyman, Assistant Counsel
Pollution Control Board
Sally Carter, Assistant Counsel
James
R.
Thompson Center
Division of Legal Counsel
100
W.
Randolph Street
Illinois Environmental Protection Agency
Suite
11-500
1021
North Grand Avenue, East
Chicago, Illinois 60601
P.O.
Box
19276
Chicago, Illinois 60601
Springfield, Illinois 62794-9276
Bradley P. Halloran
Hearing Officer
Illinois
Pollution Control
Board
James
R.
Thompson Center
100 West Randolph Street
Suite
11-500
Chicago, Illinois 60601
PLEASE TAKE NOTICE that I have today
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 served upon you.
Kat
leen C.
Bassi
Dated: December 2, 2005
SCHIFF
HARDIN
LLP
Sheldon A. Zabel
Kathleen
C.
Bassi
Stephen J. Bonebrake
Joshua R. More
Kavita M. Patel
6600
Sears Tower
233
South Wacker Drive
Chicago, Illinois
60606
312-258-5567
FAX:
312-258-5600
-2-
RE C
V
r~
D
CLERK’S OFFICE
DEC
022005
BEFORE THE ILLINOIS POLLUTION CONTROL BOA*W~TEOF ILLINOIS
rollution
Controi Board
DYNEGY MIDWEST GENERATION, INC.
)
(HAVANA POWER PLANT),
)
)
Petitioner
)
)
V.
)
PCB No. 2006-071
)
(Permit
Appeal
—
Air)
)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION FOR LEAVE
TO FILE REPLY
INSTANTER
Pursuant
to
35
Ill. Mm.
Code
101.500(e), DYNEGY MIDWEST GENERATION,
INC.
(HAVANA POWER PLANT) (“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 Dynegy Midwest
Generation,
Inc., respectfully requests that the Board grant its Motion for Leave to
File Reply
Instanter.
Respectfully submitted,
DYNEGY MIDWEST GENERATION, INC.
(HAVANA POWER PLANT)
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-
fl ~
~V ~
D
CLERK’S
OFFICE
DEC
022Qfl5
BEFORE
THE ILLINOIS POLLUTION CONTROL BOA~WATE
OF ILLINOIS
oHu~,o,~
Con~,oI
Board
DYNECY MIDWEST GENERATION, INC.
)
(HAVANA
POWER STATION)
)
)
Petitioner,
)
)
v.
)
PCB No. 2006-7 1
)
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITIONER’S REPLY IN SUPPORT
OF A PERMIT
STAY AND IN RESPONSE TO
THE AGENCY’S OPPOSITION TO PETITIONER’S REOUEST FOR A STAY
Petitioner,
DYNEGY
MIDWEST
GENERATION,
INC.
(HAVANA
POWER
STATION)
(“Petitioner,” “Havana,” 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.’
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, 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 stayed3) pursuant to
Section
10-
65(b)
ofthe 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
CAAPP
permit
is
and
should
be
stayed
in
its
entirety,
for
the reasons
discussed
below.
First, pursuant to
Section
10-65(b) ofthe
APA,
the entire CAAPP
permit issued
by the
Agency
does not become effective
until
after a ruling by the Board
on
the permit appeal
and,
in
time
for responses
to
be
filed and,
in its conclusion, seeks no relief except that the Board “deny
the
Petitioner’s
request
for
a
stay of the
effectiveness 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 ofthe Board andtheAgencyr
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)(i) 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
permit effectiveness, let alone the APA, the General Assembly intended to change Illinois law so
that
the entire
permit must
remain in
effect during the
appeal.
(Opp.
at.
5-6,
18).
The Agency’s
4
strained
interpretation
of the
severability
clause
is
premised upon
a
misunderstanding
of the
applicability ofthe severability clause and the effect of a stay.
The
first question before the Board
is
one of statutory
construction.
The cardinal rule of
statutory
construction
is
that
the
Board
must
ascertain
and
give
effect
to
the
intent
of the
legislature.
In re Marriage of King,
208
Ill.2d 332,
340, 280
III. Dec.
695,
699 (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
should be givenits
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 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
395(7)0) of the
Act provides that “each
CAAPP permit issued under subsection
10 of this
Section
shall
include
a
severability clause to
ensure
the
continued
validity of the
various
permit
requirements
in
the
event
of a
challenge
to
any
portions
of the permit.”
First,
as
conceded
by
the
Agency,
the
severability clause establishes CAAPP permit content and
is, therefore,
applicable to the Agency
but
not
binding
on
the
Board.
(Opp.
at
18).
Second,
the
choice
of the
term
“validity”
is
important
and
clearly
demonstrates
that
the
General
Assembly
was
not
addressing
in
this
provision
when permits
are
effective but,
instead, was
addressing
potential
problems of legal
enforceability of the remainder of a permit when a portion of a permit is determined to be invalid
(e.g., inconsistent with the governing law).
As
the
Agency concedes,
Section 39.5(7)0) was
included
in
the Act so
that uncontested
conditions
would “continue
to
survive
notwithstanding
a
challenge to
the permit’s other terms.”
5
(Opp. at
5).
Survival of some permit terms when others are challenged has nothing to
do
with
when
a
permit
is
effective
under
Illinois’
administrative
scheme.
The
plain
and
ordinary
meaning
of
“validity”
in
legal
settings
is
“legal
sufficiency,
in
contradistinction
to
mere
regularity.”
Black’s Law Dictionary
1548
(7th
ed.
1999).
Section 39.5(7)(i) 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 ofone
contract term shall
not impact the validity ofthe
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)0)
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)0) of the
Act)
is
a provision that allows
the rest of the permit to
be
enforceable when a
part of the permit is judged illegal or void.”5
Undeterred by the plain language of Section 39.5(7)(i),
the Agency attempts to
read into
the statutory language the key termthe General Assembly chose
not to include.
According to the
Agency, “implicit
in
the
statutory
language
is
an
unmistakable expression
aimed
at preserving
the validity and effectiveness of some segment of the CAAPP permit during the
appeal process.”
(Opp.
at
18,
emphasis
added).
However,
the
General
Assembly
did
not
include
the
term
“effectiveness” in
Section
39.5(7)0),
as
discussed
above,
and the Agency’s
assertion does
not
A
copy
of the
relevant
pages
of the
July
7,
1993
“Questions
and
Answers
on
the
Requirements of Operating Permits Program Regulations” are attached hereto as Exhibit
1.
The
reaminder
of
the
document
can
be
found
at
http://www.epa.gov/Region7/programs/artd/air/titles/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 ofbeing
operational.”
Merriam
Webster’s
Collegiate
Dictionary
367
(10th
ed.
1997).
Therefore,
“effectiveness”
in
the CAAPP
permitting
context
means
the
time
during
which
the
obligations
set forth in the permit are put
into operation.
To read “effectiveness” into the
statutory language
when
the
legislature
chose
to
use
“validity”
results
in
an
impermissible
departure
from
the
unambiguous statutory
language.
Patterson,
308
Ill.App.3d
at 948
(“When the
language of the
statute
is unambiguous, the
Board
may not depart from the
language
and read
into the
statute
exceptions, limitations, or conditions.”).
The
Agency
also
misconstrues
the
effect
a
stay
will
have
on
the
legality
of
the
uncontested conditions.
The Agency asserts that because
a
component
of
a
CAAPP
permit
shall
retain
a
“continued
validity,”
...
uncontested
conditions
of
a
CAAPP
permit
must
continue
to
survive
notwithstanding
a
challenge
to
the
permit’s
other
terms.
This
language
“continued
validity”
signifies
an
unambiguous intent to exempt some segment ofthe CAAPP permit
from
any kind 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)Q)
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 Grandfatherine Clause Does Not Apply To the CAAPP.
The
Agency’s
second
argument
is
that,
pursuant
to
5
ILCS
100/1-5(a)
(“the
APA’s
grandfathering clause”), the APA does not apply to this
proceeding because the Board had issued
some
procedural
rules
prior
to
July
1,
1977.
More specifically,
the Agency
suggests that
the
Board’s
procedural
rules
adopted
on
October
8,
1970,
in
the
R70-4
rulemaking
(“general
procedural
rules”)
preclude
APA
applicability
to
CAAPP
permit
appeals
because the
general
procedural
rules were adopted before
July
1,
1977.
(Opp.
at 6-7).
That argument,
however, is at
odds
with
the
appellate
court’s
ruling
in
Borg-Warner
and
the
General
Assembly’s
intended
reach ofthe APA’s grandfathering clause.
8
The court in
Borg-Warner
upheld the APA’s automatic stay provision in the context of a
renewal of a National
Pollutant
Discharge Elimination
System
(“NPDES”)
permit
sought from
the
Agency.
Borg-Warner,
427
N.E. 2d
415, 421,
56
Ill.
Dec.
335,
341
(3d
Dist.
1981).
The
court
ruled
that the APA’s grandfathering
clause did
not
apply
because there were
no
existing
procedures for NPDES
licensing
prior to
July
1,
1977,
the pertinent date
for exceptions
to
the
applicability
of the
APA.
Id.
at
418.
The
NPDES
rules
at
issue
were
written in
a way that
conditioned
their effectiveness upon
a
future
event.
The
Agency
argues
that
this
fact makes
Borg-Warner
“inapposite
here.”
(Opp.
at
7
n.2).
The
Agency misconstrues the significance of
the
Borg-Warner
decision.
The
APA
applied
in
Borg-Warner
because there were
no
NPDES
permitting
procedures
in
effect
as
of
July
1,
1977.
There
were
not
CAAPP
permitting
procedures
in
effect
before
July
1,
1977,
either.
The
Agency
apparently
believes
that
Borg-
Warner
was
incorrectly decided
but that
is
a question the
Agency will
have to
take up with
the
appellate
court.
Here,
of course,
that
decision
is
controlling.
Under
Borg-Warner,
the
APA
applies in this permit appeal proceeding.
Consistently,
the
Board
has
cited
and
followed
Borg-Warner,
issuing
opinions
recognizing the applicability of the automatic stay provision
in the
permitting context despite the
fact
that
the
general
procedural
rules
were
promulgated prior
to
July
1,
1977.
See
e.g.,
Arco
Products
Company
v.
Illinois Environmental Protection Agency,
PCB
89-5 (February
2,
1989);
Village 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 ofthe 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 ofthe 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);
ElectricEnergy
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
ôonsiders
several
factors
including
(1)
existence ofan ascertainable right that needs protection, (2) irreparable injury in the absence of a
stay,
(3) the lack ofan
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
02-3
1
(November
1,
2001).
While the Board may look to
these five factors
in determining whether or not to grant a stay,
it is
not confined exclusively to these factors nor must each one be satisfied.
Id.
The Board’s recent practice in
other CAAPP permit appeals, which practice has not been
opposed
by
the
Agency,
has been
to
grant
stays of the
entire
CAAPP permit
when requested,
even when the entire permit
was not contested.
See Lone Star Industries,
Inc.
v.
IEPA,
PCB 03-
94
(January
9,
2003);
Nielsen
&
Brainbridge,
L.L.C.
v.
IEPA,
PCB
03-98
(February
6,
2003);
Saint-Gobain
Containers,
Inc.
v.
IEPA,
PCB
04-47
(November
6,
2003);
Champion
Laboratories,
Inc.
v.
IEPA,
PCB
04-65
(January
8,
2004);
Midwest Generation,
LLC
—
Collins
Generating
Station
v.
IEPA,
PCB
04-108 (January
22, 2004);
Ethyl Petroleum Additives,
Inc.,
v.
IEPA,
PCB
04-113 (February
5,
2004);
Board of Trustees ofEastern Illinois
University v.
IEPA,
11
PCB
04-110
(February
5,
2004).
Notwithstanding
the Board’s
recent
practice
in
the
above-
referenced
appeals and
the Agency’s position
in
those
appeals, the Agency
now asserts that it
“has come to regard blanket stays of CAAPP permits
as incongruous with
the aims of the Illinois
CAAPP and needlessly over-protective in light of attributes common to these appeals.”
(Opp.
at
8).
The catalyst for the Agency’s
sudden change
of position appears
to
be
a phone
call
from
USEPA.
(Opp.
at
16).
Although
the Agency argues
that
its
“weighty concerns”
are
based
on
state law,
it
is clear that
it was
not until
the USEPA
called
the Agency
that the
Agency had
the
epiphany that an entire
stay of
a
CAAPP permit is improper.
(Opp. at
16).
The Agency suggests that the reasons for an entire
stay put
forward by Petitionerjustify
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 ofthe 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 ofthe CAAPP permit reveals that a stay ofjust
the
contested
conditions
would
create
conffision
and
leave
at
least
some
of the
uncontested
conditions
virtually meaningless.
Further, such a limited stay would require Petitioner to
comply
with
provisions that
are incorrect applications
of legal
requirements.
For example,
Conditions
7.1 .3(b)(iii),
7.1 .3(c)(iii),
7.1 .7(a)(iv),
7.1.1 0-2(a)(i)(D),
7.1.12(f),
which were
not
contested, are
linked
to
contested
conditions.
Therefore,
if
the
Board
were
to
only
stay
the
contested
conditions, these
uncontested conditions would become meaningless.
Petitioner’s
right of appeal
should
not
be
cut
short
or even
rendered moot by
a
limited
stay that would result in Petitioner having to comply with certain conditions before a legal ruling
that
will
or
may
affect
the
meaning
of those
conditions.
Furthermore,
as
admitted
by
the
Agency,
Petitioner
should
not
be
required
to
expend
exorbitant
costs
in
complying
with
conditions
whose
meaning
will
be
affected
by
the
appeal
process.
(Opp.
at
9).
Since
the
contested
conditions
are
beyond
the
scope
of the
Agency’s statutory
permit
authority
and
are
interwoven with the
remainder of the
CAAPP
permit,
a stay of the
entire permit
is necessary
to
protect an ascertainable right and avoid irreparable injury.
B.
The
Absence
of
a
Stay
of
the
Entire
CAAPP
Permit
Would
Cause
Administrative Confusion.
The
Agency’s second
argument is that, even though the
permit
appeal
process
is part of
the administrative
continuum, no
administrative confusion
will
result if
a partial
stay is
granted
because the
state
operating
permits
become
a
“nullity”
upon
the issuance/effectiveness of the
13
CAAPP permit.
(Opp.
at
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.
Kraft
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
takes
issue
with
Petitioner’s
reliance
upon
both
Sections
39.5(4)(b)
and
9.1(f) of the
Act
for the continuation of the
state operating
permit
during the pendency of the
appeal.
(Opp.
at
11).
However, in
ascertaining
the meaning of a
statute,
the statute
should
be
read as a
whole
with
all
relevant
parts
considered.
Patterson,
308
Ill.App.3d
at
947,
242
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
fbll
force
and
effect
until
issuance of the CAAPP
permit.
See
Section
39.5(4)(b)
of the
Act.
Once
the
CAAPP
permit
has been
issued,
at least
this
portion of the
transition
from
the
state
operating
permit
program
to
the
CAAPP
has
occurred.
However,
Section
39.5(4)(g) says
that
the
“CAAPP
permit
shall
upon
becoming
effective supersede
the
State operating permit.”
(Emphasis
added.)
Under Illinois
law, as discussed above, the CAAPP
permit
is not
effective if it has
been appealed.
If the Agency
is correct in
its
argument, there
is
no
permit
in
effect
under
which
the
source
can
operate
if a
stay
is
issued
by
the
Board.
The
General Assembly could not have reasonably intended for a source
to operate without a permit.
Section
9.1(f)
of
the
Act
supports
the
distinction
between
Sections
39.5(4)(b)
and
39.5(4)(g) of the
Act
in
the context of appeals of CAAPP
permits,
and
confirms
that
the
state
14
operating
permits
remain
in
effect
until
“final
administrative
action”
is
taken
on
the
CAAP
permit.
Section 9.1(0 of the Act provides that “if
a complete application for a permit renewal
is submitted to the Agency at least 90
days prior to expiration of the permit, all of the terms
and
conditions of the permit shall remain
in effect until final administrative
action has been taken on
the
application.”
The
Agency
argues
that
this
section
applies
only
to
New
Source
Review
construction
permits
because
the
context
of Section
9.1
is
the
Clean
Air
Act.
In
actuality,
Section
9.1(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 39(a) of the Act.
Therefore,
it
is not
limited
only to
permits
required by
the
Clean Air
Act.
A
state operating permit, pursuant to
Section 9.1(0 of the Act,
continues in effect after its
expiration if the
application for renewal is timely.
In this ease, the
application
for renewal was
the
application
for the CAAPP permit.
See
Section 39.5(4)(a) of the Act.
In order for Sections
39.5(4)(a), (b),
and (g) of the Act to
make sense
in the context of the entire Act,
which
has not
been superseded by the CAAPP as discussed above, the state operating permit continues in effect
during the pendency ofthe appeal 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 ofrenewal CAAPP permits.
15
C.
The Absence of a Statement of Basis Warrants
a
Stay of the Entire CAAPP
Permit.
The Agency’s third argument is that the lack of a statement ofbasis
does not
support the
need for a stay of the entire CAAPP permit
because it does not render the entire permit defective.
(Opp. at
14).
The current issue before the Board, however, is not
whether the lack of a statement
of basis renders the permit defective, but
whether the lack of a statement of basis justifies
a stay
ofthe entire
CAAPP permit.
Petitioner, therefore, will not address the merits of why a statement
of basis
renders
the
entire
permit defective
in
this
reply,
but
will
set
forth
why the lack
of a
statement ofbasis
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
permittce
to
fully understand
the rationale behind
each permit
condition
and
ultimately affects
whether
the pcrmittee
finds
a
condition to
be
objectionable.
Since
the Agency
did
not
issue
a
statement of basis,
denying the
permittee
notice of the
Agency’s decision-making rationale and
the
opportunity
to
comment
thereon,
Petitioner effectively
objects
to
each
and
every
CAAPP
permit condition.
The
Agency concedes that the reasons put forward by Petitioner in its Petition
justify
a
stay
of the
contested
conditions.
Accordingly,
the
Agency’s
failure
to
provide
a
statement ofbasis justifies
a stay ofthe entire CAAPP permit.
III.
THE
STATUTORY
OBJECTIVES
OF
THE
CAAPP
AND
THE
COMMON
ATTRIBUTES OF PERMIT APPEALS DO NOT WARRANT
THE DENIAL OF A
STAY OF THE ENTIRE CAAPP PERMIT.
The
Agency
argues,
without
providing
any
support
for
its
argument,
that
the
Board
should
not issue
a stay ofthe
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
permittces
would
“effectively
shield”
the
entire
utility
sector
from
potential
16
enforcement.
(Opp. at
19)
This argument is completely specious.
The Act allows
“any person”
to
file a complaint with
the Board
against any person violating the “Act,
any
rule or regulation
adopted under the
Act, any permit, or any term or condition of a permit.”
See
Section 31(d)(i) of
the Act.
Therefore,
a
stay in this case or any of the other coal-fired CAAPP permit appeals will
not
limita 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
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,
DYNEGY MIDWEST GENERATION, INC.
(HAVANA POWER STATION)
by:
4AtoJjJAf~&4tA~:
One of Its Attorneys
Dated:
December 2, 2005
Sheldon A. Zabel
Kathleen
C.
Bassi
Stephen J. Bonebrake
Joshua R.
More
Kavita M. Patel
SCFIIFF HARDIN, LLP
6600
Sears Tower
233
South Wacker Drive
Chicago, Illinois
60606
312-258-5500
Fax:
312-258-5600
CH2\ 1335630.1
18
EXHIBIT
1
QUESTIONS AND ANSWERS ON
THE REQUIREMENTS
OF OPERATING PERMITS
PROGRAM REGULATIONS
Prepared By:
The
U.
S. Environmental Protection Agency
July
7,
1993
INTRODUCTION
This document summarizes questions and answers
(Q’s
& A’s)
on requirements and implementation of the Environmental
Protection Agency’s
(EPA)
final operating permits program
regulations.
The operating permits regulations were published on
July
21,
1992,
in Part 70 of Chapter
I of Title 40 of the Code of
Federal Regulations
(57
FR 32250)
.
These rules are mandated by
Title
V of the Clean Air Act
(Act)
as amended in 1990.
The contents
of this document reflect
a wide range of
questions that have been asked of EPA concerning implementation
of the operating permits program.
In part,
the document reflects
audience questions and EPA’s responses
at workshops
and
conferences sponsored by EPA and by other groups at which EPA
personnel participated
as speakers.
Workshop attendees included
personnel from EPA Regional Offices,
State and local permitting
agencies,
industry representatives,
and other individuals from
the interested public,
including environmental groups.
Questions and answers are organized
in chapters primarily
according to the sections of the
Part
70 regulations with
additional topics covered in latter chapters.
This document
is available in
a WordPerfect
5.1
file on
EPA’s electronic bulletin boards and will be periodically updated
by addition of more questions and answers.
Each succeeding
set
of additions to
this document will be indicated so the user can
distinguish new material.
As new material
is added,
it will
be
designated in WordPerfect
“redline”
font.
“Redline”
font appears
differently
(e.g.,
shading or dotted underline)
according to the
printer being used.
Example:
~
)•~
As each new addition
of Q’s
& A’s
is
made,
the “redline”
font will be removed from the previous addition
so that only the
latest material added will appear in “redline”
font.
Document
updates will be recorded
as they are made.
This document responds
to many requests
for information
concerning implementation
of Part
70.
The contents
are based on
the Part
70 requirements
and the requirements
of Title
V.
Answers to questions
are intended solely as guidance representing
the Agency’s current position on
Part 70 implementation.
The
information contained herein is neither rulemaking nor final
Agency action and cannot be relied upon
to create any rights
enforceable by any party.
In addition,
due to litigation
underway,
the Agency’s position on aspects of
the program
discussed in this document may change.
If
so,
answers will be
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 previods version.
RECORD OP DOCUMENT UPDATES
Original document:
July
7,
1993
First Update:
_____________
ii
TABLE OF CONTENTS
Page
1.0
PROGRAM
OVERVIEW
1—1
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
2—1
2—1
2—1
2—1
•
.
2—1
2—2
2—3
•
.
2—3
3.0
APPLICABILITY
3.1
Sources Covered
—
General
3.2
Source Cateaory 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
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
Interim Approval
4.4
Equivalent
Program Elements
4.5
Attorney General’s Opinion
4.6
Legal Authority
4.7
Partial Proarams
4.8
Operational Flexibility
4.9
“Off Permit”
4.10 Transition
Plan
4.11 Judicial Review
4.12 Implementation Agreements
.
5.0
PERMIT APPLICATIONS
5.1
Application Content
5.2
Timely and Complete Submittal
5.3
Aoplication Review
5.4
Insignificant Activities
-
5.5
Emissions Reporting
-
.
5.6
confidential
Information
5.7
Compliance Plans
4—1
4—1.
4—2
4—2
4—3
..
4—3
4—3
4—4
4—4
4—5
4—5
4—6
4—7
5—1
5—1
5—1
5—2
5—2
5—3
5—3
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
Monitorina.
Recordkeeoina.
Renort
6.6
Inspection Provisions
6.7
General
Permits
6.8
Permit Shield
6.9
Alternative Scenarios
-
6.10 Emergency Defense/Updates
6.11 Noncomplying Sources
-
6.12 Model Permits
6.13 Emissions Trading
-
7.0
PERMIT PROCESSING
7.1
General Process
7.2
Administrative Amendments
7.3
Minor Modifications
7.4
Significant Modifications
75
Application Shield
-
7.6
Public Participation
7.7
Renewals
7.8
Reoneninas
7.9
Title
I Modifications
-
7.10 Permit
Denial
7.11 Temporary Sources
-
8.0
PERMIT
REVIEW
8.1
EPA Review
8.2
Affected State Review
8.3
Public Participation
-
8.4
Data Management
-
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
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
10.0 FEDERAL OVERSIGHT AND SANCTIONS
-
5.8
Certification
of Truth.
etc.
5—4
7—1
7—1
7—1
7—1
7—2
7—2
7—2
7—3
7—3
7—3
7—3
7—3
8—1
8—1
8—1
8—1
8—1
9—1
9—1
9—1
9—1
9—3
9—4
9—4
11.0 ENFORCEMENT AUTHORITY
11.1 Enforcement Authority
11.2 Criminal Authority
10—1
-
11—1
11—1
11—1
iv
-
12—1
-
12—1
____________
-
12—2
____________________
•
12—2
__________
-
12—3
______________________
-
12—9
______________________
-
12—9
13.0 MISCELLANEOUS
13.1 Indian Lands
13.2
Pollution Prevention
14.0 PART 71
14—1
12.0 PROGRAM INTERFACE
12.1 ~
12.2 Section
112
12.3 New Source Review
12.4 Acid Rain
12.5 Enhanced Monitoring
12.6 Stratospheric Ozone
13—1
13—1
13—1
v
6.0
PERMIT
CONTENT
6.1
General Permit Content
1.
Must
the SIP-approved emissions rate be included in the
permit, or is
a Control Technology Guideline reasonably
available control technology limit sufficient?
The SIP—approved emissions rate
is the applicable requirement
and must be included in the permit.
2.
What
is
a severability clause?
The severability clause
is
a provision that allows
the
rest of
the permit to be enforceable
when
a part of the permit
is
judged illegal or void.
6.2
Equivalency Determination
6.3
Federal Enforceability
1-
What are the limits on the additional requirements
that
a
permitting authority can impose on
a source in the non-
federally-enforceable portion of
the permit?
A permitting authority is free
to add any “State—only”
requirements to the extent allowed by State or local law.
However,
the permitting authority
is
also responsible
for
enforcing the federally-enforceably portion of the permit and
EPA will exercise
its enforcement oversight with regard to
those terms and conditions.
2.
If a facility takes
a tighter limit to create emission
credits, how is the new limit made federally enforceable?
The new limit
is made
federally enforceable by placing it in
the federally—enforceable part
of the Title V permit,
along
with appropriate compliance
terms
(e.g.,
monitoring,
reporting,
and recordkeeping)
-
3.
What is the mechanism to change or reverse “State-only”
conditions
that became federally enforceable back to “State-
only” status?
The mechanism
for changing the designation
from federally
enforceable
to “State—only”
is the minor permit modification
process.
These changes,
if “State—only,”
should not involve
applicable requirements
and could be removed from the
federally—enforceable portion of the permit as long
as none of
the restrictions
on minor permit modifications
in section
70.7(e)
(2) (i)
(A)
are violated.
If any of the restrictions in
6—1
CERTIFICATE OF SERVICE
I hereby certify
that on the
2nd
day of December 2005, I did serve,
by electronic
filing, by
electronic mail, and by U.S.
Mail postage prepaid, a
tnie
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 Control Board
James R.
Thompson Center
100 West Randolph Street
Suite
11-500
Chicago, Illinois 60601
fiMba
/stti
Kathleen C.
Bassi
Sheldon A. Zabel
Kathleen C.
Bassi
Stephen J. Bonebrake
Joshua R. More
Kavita M. Patel
SCuFF HARDIN, LLP
6600 Sears Tower
233
South
Wacker Drive
Chicago, Illinois
60606
312-258-5500
Fax:
312-258-5600
C12\
T335668.I
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.
