p
“5
0
CLLkK’S
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
iLL
U /
2005
STATE
OF ILLINOIS
Pollution Control
Board
DYNEGY MIDWEST GENERATION, INC.
)
(HENNEPIN POWER PLANT),
)
)
Petitioner,
)
)
V.
)
PCB No. 2006-072
)
(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 electionicai~~
filed with the Office of the
Clerk of the Pollution Control Board PETITIONER’S REPLY IN SUPPORT OF A PERMIT
STAY AND IN RESPONSE TO ILLINOIS EPA’S OPPOSITION
TO PETITIONER’S
REQUEST FOR A STAY
and
MOTION FOR LEAVE TO FILE REPLY INSTANTER,
copies of which
are
herewith served upon you.
I/itt
Kath een 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-
R
~TP’~ 0
CLERK’S OFFICE
BEFORE THE ILLINOIS
POLLUTION CONTROL
BOARD
fi~.
0225
STATE OF
ILLIr\t:s
DYNEGY MIDWEST GENERATION, INC.
)
Pollution Control
Board
(HENNEPIN POWER PLANT),
)
)
Petitioner,
)
)
V.
)
PCB No. 2006-072
)
(Permit Appeal
—
Air)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION FOR LEAVE TO
FILE REPLY
INSTANTER
Pursuant to
35
III. Adm.
Code
101.500(e),
DYNEGY MIDWEST GENERATION,
INC.
(HENNEPIIN POWER PLANT) (“Petitioner”), respectfully submits this Motion for Leave to File
Reply
Instanter.
In support of this Motion, Petitioner states as follows:
1.
Petitioner
will be
materially
prejudiced
unless
it
is
allowed to
file
the attached
Reply.
First,
in
its
Motion
in
Opposition to
Petitioner’s
Request for Stay,
Respondent
Illinois
Environmental
Protection
Agency
(“the
Agency”)
alleges
that
the
Administrative
Procedure
Act’s
(“APA”)
automatic
stay
provision,
Section
10-65(b),
does
not
apply.
In
the
attached
Reply, Petitioner responds to the Agency’s arguments and demonstrates why Section 10-65(b) of
the APA does apply.
2.
Second,
in
its Motion in Opposition,
the Agency argues
that Petitioner’s
asserted
justifications
for an entire stay 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.
(HENNEPIN 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-
Rr~csi’iso
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
DEC
022005
DYNEGY MIDWEST GENERATION, INC.
STATE OF
ILLINOI~
(HENNEPIN POWER STATION)
)
pollution
Control
Board
Petitioner,
)
)
v.
)
PCB No. 2006-72
)
(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.
(HENNEPIN
POWER
STATION)
(“Petitioner,”
“Hennepin,” 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) 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-CAA-PP-
permit
pursuant
to
the
Board’s
discretionary
stay
authority
fail
to
demonstrate
“a
clear
and
convincing need for a broader stay.”
ARGUMENT
The CAAPP permit
is
and
should
be
stayed
in
its
entirety, for the
reasons
discussed
below.
First, pursuant to
Section
10-65(b) of the APA,
the
entire CAAPP permit issued
by the
Agency does not become effective until
after a ruling by
the Board on the permit appeal
and,
in
time
for responses
to
be
filed and,
in its
conclusion, seeks no relief except that the Board
“deny
the Petitioner’s
request
for a
stay
of the
effectiveness
of the
CAAPP
permit
in
its
entirety.”
(Opp.
at
2, 20).
~ For
brevity,
the
effect
of Section
10-65(b)
of the
APA
is
referred
to
herein
as the
“automatic stay.”
2
the event of a remand, until the Agency
has issued the permit consistent
with the Board’s order.
In
addition,
to
the extent
necessary
in
light
of the automatic
stay
under
the
APA,
the Board
should exercise
its
discretionary authority
and
enter an
order
staying the
entire
CAAPP
permit
because an ascertainable right warrants protection, irreparable injury will
befall Petitioner in the
absence
of
an
entire
stay,
Petitioner
has
no
adequate
remedy
at
law,
Petitioner
is
likely
to
succeed on the merits of its appeal,
and the environment will
not be harmed if the
entire CAAPP
permit is stayed.
I.
THE
EFFECTIVENESS
OF
THE
ENTIRE
CAAPP
PERMIT
ISSUED
BY
ILLINOIS
EPA IS STAYED PURSUANT TO THE APA
As
the
Agency
recognizes,
the
automatic
stay
provision
of
the
APA
governs
administrative proceedings involving
licensing and
pursuant to
Borg-Warner,
under Section
10-
65(b) of the
APA,
the effectiveness of a license
is stayed until
a final administrative decision is
rendered by
the
Board.4
(Opp.
at
3-4).
Indeed,
the Agency
concedes
that
the
Borg- Warner
decision is consistent with the involvement of and the separate roles of the Board and the Agency
in
permitting
matters, that
it is
the “Board’s decision
.
.
.
that ultimately determines
when the
permit becomes final,” and the “CAAPP program itself does not
reveal the General Assembly’s
intentions to change this
administrative anangement.”
(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 ofthe 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 ofa stay.
The first
question before the Board
is one of statutory
construction.
The cardinal
rule of
statutory
construction
is
that
the
Board
must
ascertain
and
give
effect
to
the
intent
of the
legislature.
In re Marriage of King,
208
Ill.2d
332,
340,
280
Ill.
Dec.
695,
699
(Ill.
2003). “The
legislature’s
intent
can
be
determined by
looking at the language of the statute
and
construing
each section of the statute
together
as a whole.”
People
v.
Patterson,
308
Ill.App.3d
943,
947,
242
Ill. Dec.
518,
521
(2d Dist.
1999). Moreover, the language of the statute
should be
given its
plain and ordinary meaning.
Marriage ofKing,
208
Ill.2d at 340.
By construing Section 39.5(7)(i) of the Act along with each section of the Act together as
a whole,
it is
apparent that
Section
39.5(7)(i)
is not
intended to
address when a permit
is,
or
is
not,
in
effect,
the question addressed
by
Borg-Warner
and
the
APA.
Section
39.5(7)(i)
of the
Act provides that “ejach
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)(i)
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 of one contract term shall not
impact the validity of the
remainder of the contract.
Such severability provisions do
not affect the period during
which a
contract
is
in
effect,
only
the
terms
that
may be
enforced while the contract
is
in
effect.
This
view of Section 39.5(7)(i)
is supported
by the United States Environmental
Protection Agency’s
(“USEPA”)
interpretation
of the
model
severability
clause
upon
which
Section
39.5(7)(i)
is
based.
On
July
7,
1993,
the
USEPA
in
“Questions
and
Answers
on
the
Requirements
of
Operating
Permits
Program
Regulations”
explained
that
“the
severability
clause
(Section
39.5(7)(i)
of the Act)
is a provision that allows
the rest of the permit to be enforceable when a
part ofthe permit is judged illegal or void.”5
Undeterred by the plain language of Section 39.5(7)(i),
the Agency
attempts to
read into
the statutory language the key term the General Assembly chose not to
include.
According to the
Agency,
“implicit
in
the
statutory
language
is
an
unmistakable expression
aimed
at preserving
the validity and effectiveness of some segment of the CAAPP permit
during the appeal process.”
(Opp.
at
18,
emphasis
added).
However,
the
General
Assembly
did
not
include
the
term
“effectiveness”
in
Section
39.5(7)(i),
as discussed above,
and
the Agency’s
assertion does not
~ A
copy
of the relevant
pages
of the
July
7,
1993
“Questions
and
Answers
on
the
Requirements of Operating Permits
Program Regulations” are attached hereto as Exhibit
1.
The
remainder
of
the
document
can
be
found
at
http://www.epa.govlRegion7/programs/artdlair/title5/t5indexbyauthor.htm.
6
make it so.
Indeed, the Agency’s effort to import the term “effectiveness” into Section
39.5(7)(i)
merely
shows
that
validity
and
effectiveness
are
two
distinct
terms.
“Validity,” as previously
discussed connotes legality.
The common and
ordinary meaning of “effectiveness”
has no
such
connotation.
The applicable definition of the base word, “effect,” is “the quality or state of being
operational.”
Merriam
Webster’s
Collegiate
Dictionary
367
(1Øth
ed.
1997).
Therefore,
“effectiveness”
in
the CAAPP
permitting
context means the time
during
which the
obligations
set forth in the permit are put
into operation.
To
read “effectiveness”
into the
statutory language
when
the
legislature
chose
to
use
“validity”
results
in
an
impermissible
departure
from
the
unambiguous
statutory language.
Patterson,
308
Ill.App.3d at
948
(“When the
language of the
statute
is unambiguous,
the
Board
may not
depart from the
language
and read
into
the
statute
exceptions, limitations, or conditions.”).
The
Agency
also
misconstrues
the
effect
a
stay
will
have
on
the
legality
of
the
uncontested conditions.
The Agency asserts that because
a
component
of
a
CAAPP
permit
shall
retain
a
“continued
validity,”
...
uncontested
conditions
of
a
CAAPP
permit
must
continue
to
survive
notwithstanding
a
challenge
to
the
permit’s
other
terms.
This
language
“continued
validity”
signifies
an
unambiguous intent to exempt some segment of the CAAPP permit
from any
kind of protective stay during the permit
appeal process.
(Opp. at
5-6).
The Agency seems to assume
that a stay of the entire permit will somehow affect the “continued
validity”
or
“survival”
of the
uncontested
conditions.
This
is
a
flawed
assumption.
The
automatic stay under
the
APA does not depend on or consider the merits of the CAAPP permit
requirements,
but
rather
merely
suspends
the
time
required
for
performance
of the
CAAPP
permit
requirements.
A
stay of the
entire
CAAPP
permit,
therefore,
is
not
a challenge
to
any
7
portion
of the
CAAPP
permit
that
will
affect
the
“continued
validity”
or
“survival”
of
the
uncontested conditions.
Finally,
if the General Assembly intended to exempt the CAAPP from the automatic stay
provision
of
the
APA,
it
would
have
expressly
done
so.
One
example
of
this
exercise
of
legislative
discretion
is
found in
Section
31.1
of the
Act,
the very section the
Agency
cites in
support
of
its
proposition
that
the
severability
clause
exempts
the
CAAPP
from
the
APA.
Section
31.1
of the
Act
states
that “Sections
10-25 through
10-60 of the
Illinois
Administrative
Procedure Act
shall not apply
to
any
administrative citation
issued
under
subsection
(b) of this
Section.”
The General Assembly,
therefore,
knows
how to
explicitly
exempt provisions
of the
APA
from the Act.
In the present case it chose not to; there
is no explicit exclusion of the APA
in
Section
39.5(7)(i)
of
the
Act.
Since
the
language
of
Section
39.5(7)(i)
is
plain
and
unambiguous, the Board can not expand its meaning to
include an exemption from the automatic
stay
provision
of
the
APA.
To
do
so
would
be
an
improper
departure
from
the
statutory
language.
B.
The APA’s Grandfathering Clause Does Not Apply To the CAAPP.
The
Agency’s
second
argument
is
that,
pursuant
to
5
ILCS
100/1-5(a)
(“the
APA’s
grandfathering clause”), the APA does not apply to this 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 ofthe 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 ofthe contested
case provisions
of
the
APA
from
Section
31.1
of
the
Act.
The
Agency
argues
that
“it
is
the
procedures
applicable
to
contested
cases
and
their point
of origin
that
is
relevant
to
this
analysis,
not
the
advent of the permitting program itself.”
(Opp. at 6-7).
In other words, the Agency argues
that
the contested case provisions
of the APA
do
not apply
in
any contested
case
brought under
the
Act because the general procedural rules “point of origin”
is before July
1,
1977.
The legislature
was
certainly
aware
of
the
“point
of origin” of
the
general
procedural
rules
and
the
APA’s
grandfathering clause when it drafted the explicit exclusion of the APA from
Section
31.1
of the
Act.
If the legislature
intended for the
APA’s
grandfathering
clause
to
exclude
the contested
case provisions
of the
APA
from the
Act,
there would have
been
no
need for the
legislature to
have expressly excluded the
contested case provisions
of the APA from
Section
31.1
of the Act.
The
legislature,
therefore,
did
not
intend
for
the
APA’s
grandfathering
clause
to
limit
the
applicability of the MA
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 MA
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 right that needs protection,
(2) irreparable injury
in the absence of a
stay,
(3) the lack of an adequate remedy at law, (4) the probability of success
on
the merits, and
(5)
the likelihood of environmental harm if a stay is
granted.
See Bridgestone/Firestone
Off-road
Tire
Company
v.
illinois
Environmental Protection Agency,
PCB
02-3 1
(November
1,
2001).
While the Board may
look to these five factors in
determining whether or not to
granta 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-bobain
Containers,
Inc.
v.
IEPA,
PCB
04-47
(November
6,
2003);
Champion
Laboratories,
Inc.
v.
JEPA,
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 ofthe 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
ofthe five factors
the Board often looks
to and the two additional reasons Petitionerput 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
Ri2ht
Exists That Needs
Protection and
Absent
a
Stay of
the Entire CAAPP Permit, Petitioner Will Incur Irreparable Injury.
The
Agency’s
first
argument
is
that
because
Petitioner
is
not
challenging
the
entire
CAAPP
permit,
an ascertainable right does not exist as to the uncontested conditions that needs
6
One of the conditions the
Petitioner contests is
the effective
date.
Therefore,
a stay of
the contested conditions
will
result
in
a stay of the effective
date, thus
staying the effectiveness
ofthe entire CAAPP permit.
12
protection,
and
compliance with
the
uncontested
conditions
during the appeal
process will
not
result
in
irreparable harm.
(Opp.
at
10-11).
The
Agency
seems
to
assume
that the
contested
conditions
that
pertain
to
such
things
as
emissions
testing,
reporting,
reeordkeeping,
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 .10-2(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
(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(1)
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(1)
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(1) of the Act provides that “if
a complete application for a permit renewal
is submitted to the Agency at least 90 days prior to
expiration of the permit, all
ofthe terms
and
conditions of the permit
shall
remain in
effect until final administrative action has been taken on
the
application.”
The
Agency
argues
that
this
section
applies
only
to
New
Source
Review
construction
permits
because
the
context
of
Section
9.1
is
the
Clean
Air
Act.
In
actuality,
Section 9.1(0
ofthe Act is not limited
to permits issued because of Clean Air Act requirements,
or even if it is, it would apply in the case of CAAPP permits because they are required by Title V
of
the
Clean
Air
Act.
First,
New
Source
Review
permits
are
not
renewed.
They
are
preconstruction permits that
are followed by
an operating permit.
Therefore, Section
9.1(1) 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
case, the application for renewal was
the application for the CAAPP
permit.
See
Section 39.5(4)(a) of the Act.
In order for Sections
39.5(4)(a),
(b), and
(g) of the
Act to
make sense in the context of the entire Act,
which has not
been superseded by the CAAPP as discussed above, the state operating permit continues in effect
during the pendency ofthe appeal ofthe CAAPP permit thus creating administrative confusion if
a stay of the entire permit is not
granted.7
~Note that Section 39.5(5)(o) applies in appeals of renewal CAAPP permits.
15
C.
The Absence of a Statement of Basis Warrants
a
Stay of the Entire
CAAPP
Permit.
The Agency’s third argument
is that the lack of a statement 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 basisjustifies a stay
ofthe entire CAAPP permit.
Petitioner, therefore, will not address the merits ofwhy a statement
of basis
renders
the
entire
permit
defective in
this
reply, but
will
set
forth
why the
lack of a
statement of basis is
a reason to stay the entire permit.
Section
39.5(8)tb)
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 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
permittees
would
“effectively
shield”
the
entire
utility
sector
from
potential
16
enforcement.
(Opp. at
19)
This argument is completely specious.
The Act allows “any person”
to
file
a complaint with
the Board against any
person violating the
“Act,
any
rule
or regulation
adopted under the Act,
any permit, or any term or condition of a permit.”
See
Section
3 l(d)(i) of
the Act.
Therefore,
a stay
in this case or any of the other coal-fired CAAPP permit appeals will
not limit a citizen’s ability to bring an enforcement action.
The
Agency
also
argues
that
Petitioner
is
not
entitled
to
a
stay
of the
entire
CAAPP
permit because this appeal
along with the other coal-fired CAAPP
permit appeals are “protective
appeals.”
Petitioner takes exception
to
the accusation that
this
appeal
is
protective.
Petitioner
was active
in
the opportunities
for public participation and
issued written comments in
response
to
all
of the
iterations
of the
draft
CAAPP
permit.
Petitioner
filed this
appeal
because
the
Agency failed to
address serious issues
raised by Petitioner during public participation, resulting
in
a CAAPP
permit that
exceeds the Agency’s
statutory
authority.
Petitioner
and
the Agency
anticipate that some of these issues
will likely go to hearing.8
~The Agency in its
Motion For Extension of Time
to
File Record concedes that some of
this
issues will likely
go to hearing.
17
CONCLUSION
For the reasons set
forth above, Petitioner contends that the CAAPP permit on appeal
in
this proceeding
is not
in
effect,
pursuant to
the
APA,
while this
appeal is pending
and
until the
Agency
issues
the permit
after
remand,
and
requests,
in
the alternative, that
the Board
grant
Petitioner’s
request for a stay of the entire
CAAPP permit pursuant to the Board’s discretionary
stay authority.
Respectfully submitted,
DYNEGY MIDWEST GENERATION, INC.
(HENNEPIN POWER STATION)
by:
__________________
One of Its Attorneys
Dated: December
2, 2005
Sheldon A. Zabel
Kathleen C. Bassi
Stephen J. Bonebrake
Joshua R. More
Kavita M.
Patel
SCHIFF HARDIN, LLP
6600 Sears Tower
233
South
Wacker Drive
Chicago, Illinois
60606
312-258-5500
Fax:
312-258-5600
18
EXHIBIT
1
QUESTIONS AND ANSWERS
ON
THE REQUIREMENTS OF OPERATING PERMITS
PROGRAM REGULATIONS
Prepared
By:
The
U.
S. Environmental
Protection Agency
July
7,
1993
INTRODUCTION
This document summarizes questions and answers
(Q’s
& A’s)
on requirements and implementation of the Environmental
Protection Agency’s
(EPA)
final operating permits program
regulations.
The operating permits regulations were published on
July 21,
1992,
in Part 70 of Chapter
I of Title
40 of the Code of
Federal Regulations
(57 FR 32250).
These rules are mandated by
Title V of the Clean Air Act
(Act)
as amended in 1990.
The contents of this document reflect a wide range of
questions that have been asked of EPA concerning implementation
of the operating permits program.
In part,
the document reflects
audience questions and EPA’s responses
at workshops and
conferences sponsored by EPA and by other groups at which EPA
personnel participated as speakers.
Workshop attendees included
personnel from EPA Regional Offices,
State and local permitting
agencies, industry representatives,
and other individuals from
the interested public, including environmental groups.
Questions and answers
are organized in chapters primarily
according to the sections of the Part 70 regulations with
additional topics covered in
latter chapters.
This document is available in a WordPerfect 5.1 file on
EPA’s electronic bulletin boards and will be periodically updated
by addition of more questions and answers.
Each succeeding set
of additions to this document will be indicated so the user can
distinguish new material.
As new material is added,
it will be
designated in WordPerfect “redline”
font.
“Redline”
font appears
differently
(e.g.,
shading or dotted underline)
according to the
printer being used.
Example:
As each new addition of Q’s
&
A’s is made, the “redline”
font will be removed from the previous addition so that only the
latest material added will appear in
“redline”
font.
Document
updates will be recçrded as they are made.
This document responds to many requests for information
concerning implementation of Part 70.
The contents are based on
the Part 70 requirements and the requirements of Title V.
Answers to questions are intended solely as guidance representing
the Agency’s current position on Part 70 implementation.
The
information contained herein is neither rulemaking nor final
Agency action and cannot be relied upon to create any rights
enforceable by any party.
In addition,
due to litigation
underway, the Agency’s position on aspects of the program
discussed in this document may change.
If so,
answers will be
1
revised accordingly.
As with periodic updates to this document,
any change will be denoted with the Wordperfect “redline” font to
distinguish any revised answer from a previous version.
RECORD OF DOCUMENT UPDATES
Original document:
July
7,
1993
First Update:
_____________
ii
TABLE OF CONTENTS
1.0
PROGRAM OVERVIEW
.
Page
2.0
DEFINITIONS
2.1
Ap~licab1eRequirements
2.2
Affected States
2.3
Ma-’ior Source
2.4
Potential to Emit
2.5
Reaulated Air Pollutant
2.6
Reaulated 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 Sourcea
2—1
2—1
2—1
2—1
2—1
2—2
2—3
2—3
3—1
.
.
.
.
3—1
3—2
3—3
3—3
3—3
3—3
3—4
3—4
3—4
3—5
3—5
4.0
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 Oninion
4.6
Leaal 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
.
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
Com~1iancePlans
5—1
5—1
5—1
5—2
5—2
5—3
5—3
1—i
5.0
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—4
iii
5.8
Certification of Truth.
etc.
5.9
Cross—Referencing
5—4
5—4
6—1
.6—I
6—1
6—1
6—2
6—2
6—3
6—4
6—5
6—6
6—6
6—7
6—7
6—7
7.0
PERMIT PROCESSING
7.1
General Process
7.2
Administrative P~mendments
7.3
Minor Modifications
7.4
Significant Modifications
7.5
Application Shield
7.6
Public Participation
7.7
Renewals
7.8
Reopenings
7.9
Title
I MQdifications,
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
8.0
PERMIT
REVIEW
8.1
EPA Review
8.2
Affected State Review
8.3
Public Participation
8.4
Data Management
8—1
8—1
8—1
8—1
8—1
9.0
PERMIT FEES
9.1
Presumptive Minimum Proaram Cost
9.2
Fee Demonstration
9.3
Funded Program Costs
9.4
Fee Schedule
9.5
Small Business Program Funding
9.6
Phase I Source Fee Exemption
9—1
9—1
9—1
9—1
9—3
9—4
9—4
10.0 FEDERAL OVERSIGHT AND SANCTIONS
11.0 ENFORCEMENT AUTHORITY
11..
Enforcement Authority
11.2 Criminal Authority
10—1
11—1
11—1
11—1
6.0
PERMIT CONTENT
6.1
General Permit Content
6.2
Equivalency Determination
6.3
Federal Enforceability
6.4
Compliance Certification
6.5
Monitorinu. Recordkeeping. Reporting
6.6
Inspection Provisions
6.7
General Permits
6.8
Permit Shield
6.9
Alternative Scenarios
6.10 Emeruency Defense/Updates
6.11 Noncomplying Sources
6.12 Model Permits
6.13 Emissions Trading
iv
12.0 PROGRAM INTERFACE
.
12-1
12.1
au
12—1
12.2 Section 112
12—2
12.3 New Source Review
12—2
12.4 Acid Rain
12—3
12.5 Enhanced Monitoring
12—9
12.6 Stratospheric Ozone
12—9
13.0 MISCELLANEOUS
.
..
13—1
13.1 Indian Lands
13—1
13.2 Pollution Prevention
13—1
14.0 PART
7.
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
Equivalency Determination
6.3
Federal Enforceability
1.
what are the limits on the additional requirements
thAt
a
permitting authority can impose on a source in the non-
federally-enforceable portion of the permit?
A permitting authority is
free to add any “State—only”
requirements to the extent allowed by State or local law.
However, the permitting authority
is also responsible for
enforcing the federally—enforceably portion of the permit and
EPA will exercise its enforcement oversight with regard to
those terms and conditions.
2.
If
a facility takes a tighter limit
tb
create emission
credits, how is the new limit made federally enforceable?
The new limit is made federally enforceable by placing it
in
the federally—enforceable part of the Title V permit,
along
with appropriate compliance
terms
(e.g., monitoring,
reporting,
and recordkeeping)
3.
what is the mechanism to change or reverse “State-only”
conditions that became federally enforceable
back to “State-
only” status?
The mechanism for changing the designation from federally
enforceable to “State—only”
is the minor permit modification
process.
These
changes,
if “State—only,” should not involve
applicable requirements and could be removed from the
federally—enforceable portion of the permit
as long
as none of
the restrictions
on minor permit modifications in section
70.7(e) (2) (i) (A) are violated.
If any of the restrictions in
6—1
CERTIFICATE OF SERVICE
Thereby certi~’
that on the
2nd
day ofDecember 2005,1
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 STAYand
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
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
CH2\
1335672.1
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-
