BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
LENK’s
OF’F(~E0
kc
022095
DYNEGY MIDWEST GENERATION, INC.
)
OF
Ij.jjp~
(WOOD RIVER POWER PLANT),
)
°~~~Ofl
Con~g~
8oard
)
Petitioner,
)
)
V.
)
PCB No. 2006-074
)
(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 of which are herewith served
upon you.
Kathleen C.
Bassi
Dated: December 2, 2005
SCHIFF FIARDIN 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-
flEe
EH
‘!Fr-
D
CLERK’s
OFFj~5jE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD~~.~-~
+
LIE
~..
022005
STATE OF
(Li
U
~‘
DYNEGY MIDWEST GENERATION, INC.
)
~0liutionConta~3;
~J~SL~
(WOOD
RIVER
POWER PLANT),
)
C,
0
)
Petitioner,
)
)
v.
)
PCB No. 2006-074
)
(Permit Appeal
—
Air)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION FOR LEAVE TO FILE REPLY
INSTANTER
Pursuant to
35
Ill.
Adm.
Code
101.500(e),
DYNEGY MIDWEST GENERATION,
INC.
(WOOD
RIVER POWER PLAND (“Petitioner”), respectfully
submits this Motion
for Leave to
File Reply
Instanter.
In support ofthis Motion, Petitioner states as follows:
1.
Petitioner
will
be
materially
prejudiced unless
it
is
allowed to
file the
attached
Reply.
First,
in
its
Motion
in
Opposition
to
Petitioner’s
Request for Stay,
Respondent
Illinois
Environmental
Protection
Agency
(“the
Agency”)
alleges
that
the
Administrative
Procedure
Act’s
(“APA”)
automatic
stay
provision,
Section
10-65(b),
does
not
apply.
In
the
attached
Reply, Petitioner responds to the Agency’s arguments and demonstrates
why Section
10-65(b)
of
the APA does apply.
2.
Second, in its
Motion in Opposition,
the Agency argues that
Petitioner’s asserted
justifications for an entire stay of the Clean Air Act Permit Program (CAAPP) permit pursuant to
the Board’s
discretionary stay
authority
fail to
demonstrate
“a
clear
and
convincing
need for
a
-3-
broader stay.”
The Motion in Opposition reflects a
significant change
in the Agency’s position
concerning
requests
for
permit
stays,
and
Petitioner
will
be
prejudiced
unless
it
has
an
opportunity to respond to these new arguments.
WHEREFORE,
for the reasons set
forth
above, Petitioner Dynegy Midwest
Generation,
Inc., respectfully requests that the Board grant its Motion for Leave to File Reply
Instanter.
Respectfully submitted,
DYNEGY MIDWEST GENERATION, INC.
(WOOD RIVER POWER PLANT)
By:
_________
One ofIts 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-
E ~
~
0
BEFORE THE ILLINOIS POLLUTION CONTROL BOAR8
ERIc’3
OFFICE
DYNEGY MIDWEST GENERATION, INC.
)
“~-
Uz.
2005
(WOOD
RIVER
POWER
STATION)
)
STATE 0C~
ILL.INOI3
onL:o
Board
Petitioner,
)
)
V.
)
PCB No. 2006-74
)
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITIONER’S REPLY IN SUPPORT OF A PERMIT
STAY AND IN RESPONSE
TO
THE AGENCY’S
OPPOSITION TO PETITIONER’S REQUEST FOR A STAY
Petitioner,
DYNEGY
MIDWEST
GENERATION,
INC.
(WOOD
RIVER
POWER
STATION)
(“Petitioner,”
“Wood
River,” 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
III.
Dec.
335
(3d Dist.
1981).
In the alternative,
Petitioner requested that
the
Board,
consistent
with
its
grants
of
stay
in
response
to
stay
requests
in
other
CAAPP
permit
appeals,
exercise
its
discretionary
stay
authority
and
stay
the
entire
CAAPP
permit.
On November
18,
2005,
the
Agency
filed a “Motion in
Opposition” to Petitioner’s conclusion that the entire CAAPP permit
is
stayed pursuant
to
Section
10-65(b)
of the
APA
and
to
Petitioner’s
alternative request
for a
stay.
The Agency incorrectly asserts
that the APA’s automatic stay provision, Section
10-65(b),
does
not
apply, and
that the
Petitioner’s
asserted justifications
for an
entire
stay of the CAAPP
permit
pursuant
to
the
Board’s
discretionary
stay
authority
fail
to
demonstrate
“a
clear
and
convincing need for a broader stay.”
ARGUMENT
The
CAAPP
permit
is
and
should
be
stayed
in
its
entirety, for the reasons discussed
below.
First, pursuant to
Section
10-65(b) of the
APA,
the entire
CAAPP permit
issued by the
Agency does not become
effective until
after a ruling by the Board
on the permit
appeal
and,
in
time
for responses to be
filed and,
in its
conclusion, seeks no relief except that the Board
“deny
the
Petitioner’s
request
for a
stay
of the
effectiveness
of the
CAAPP
permit
in
its
entirety.”
(Opp.at
2,20).
~ For brevity,
the
effect
of Section
10-65(b)
of the
APA
is
referred
to
herein
as
the
“automatic stay.”
2
the event ofa remand, until
the Agency has issued the permit consistent with
the Board’s order.
In
addition,
to
the
extent
necessary
in
light
of the
automatic
stay
under
the
APA,
the
Board
should
exercise
its
discretionary authority
and
enter an
order
staying the entire
CAAPP
permit
because an
ascertainable right warrants protection, irreparable injury will
befall Petitioner in the
absence
of
an
entire
stay,
Petitioner
has
no
adequate
remedy
at
law,
Petitioner
is
likely
to
succeed on the merits of its appeal, and the environment will not be harmed if the entire
CAAPP
permit is stayed.
I.
THE
EFFECTIVENESS
OF
THE
ENTIRE
CAAPP
PERMIT
ISSUED
BY
ILLINOIS EPA IS STAYED PURSUANT TO THE APA
As
the
Agency
recognizes,
the
automatic
stay
provision
of
the
APA
governs
administrative proceedings involving
licensing and
pursuant to
Borg-Warner,
under
Section
10-
65(b)
of the
APA,
the effectiveness of a license
is
stayed until
a final administrative decision is
rendered by
the
Board.4
(Opp.
at
3-4).
Indeed, the Agency
concedes that
the
Borg-Warner
decision is consistent with the involvement of and the separate roles of the Board and the Agency
in
permitting matters,
that
it is
the “Board’s
decision
.
.
.
that
ultimately
determines when the
permit becomes final,” and
the “CAAPP program itself does not
reveal the General Assembly’s
intentions to
change this administrative arrangement.”
(Opp.
at 4).
Nonetheless,
the Agency
asserts
that
the
automatic
stay
provision
of
the
APA,
as
applied
by
Borg-Warner
to
environmental
permits,
does
not
apply
because
the
General
Assembly
somehow
exempted
CAAPP
permit
appeal
proceedings
in
particular
from
the
APA
under
415
ILCS
39.5(7)(i)
without referring to either the APA or
Borg-Warner,
and that the APA’s grandfathering clause,
5
ILCS
100/10-1-5(a), excludes the applicability of the APA from this proceeding even though the
‘~
The
APA
also
ensures
that
the
Petitioner
continues
to
abide
by
the
terms
of the
underlying state operating permits.
5
ILCS
100/10-65(b)
and (Opp. 3-4).
3
CAAPP program, like the NPDES permitting program at issue in
Borg-Warner,
was not in effect
prior
to
July
1,
1977.
These
assertions
ignore
controlling
law,
misinterpret
the
Illinois
Environmental Protection Act (the “Act”) and are incorrect.
A.
The General Assembly Did Not Exempt the CAAPP from
the Automatic Stay
Provision of the APA.
The
Agency’s
first
argument
is
that,
even
though
the
General
Assembly
included
no
express exemption
from the APA
in Section
39.5
of the Act,
the General Assembly nonetheless
signaled
its
intention
to
make
CAAPP
permits
effective
immediately
upon
issuance
by
the
Agency,
in
derogation
of
the
APA’s
automatic
stay
of
effectiveness,
by
including
a
“severability” provision in
Section 39.5(7)(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 ofKing,
208
Il1.2d
332,
340,
280
Ill.
Dec.
695,
699
(III. 2003). “The
legislature’s
intent
can be
determined by
looking at the language of the statute
and
construing
each section of the
statute
together
as a whole.”
People
v.
Pauerson,
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 “elach
CAAPP permit issued under subsection 10 of this
Section shall include
a severability clause
to
ensure
the continued validity of the various
permit
requirements
in
the
event of a
challenge
to
any
portions of the
permit.”
First,
as conceded
by
the
Agency,
the
severability clause establishes CAAPP permit content and is, therefore, applicable to the Agency
but
not
binding
on
the
Board.
(Opp.
at
18).
Second,
the
choice
of the
term
“validity”
is
important
and
clearly
demonstrates
that
the
General
Assembly
was
not
addressing
in
this
provision
when permits
are
effective but,
instead, was addressing
potential
problems of legal
enforceability ofthe remainder ofa 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
“liegal
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 ofthe
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/artd/air/title5/tsindexbyauthor.htm.
6
make it so.
Indeed, the Agency’s effort to
import the term “effectiveness” into Section 39.5(7)(i)
merely
shows
that
validity
and
effectiveness
are
two
distinct
terms.
“Validity,” as previously
discussed connotes legality.
The common and ordinary meaning of “effectiveness”
has no such
connotation.
The applicable definition of the base word, “effect,” is “the quality or state of being
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 Boardj
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 ofthe entire permit will somehow affect the “continued
validity”
or
“survival”
of the
uncontested
conditions.
This
is
a
flawed
assumption.
The
automatic
stay under the
APA does not
depend
on or consider the merits of the CAAPP permit
requirements,
but rather
merely
suspends
the
time
required
for
performance
of the
CAAPP
permit
requirements.
A
stay of the
entire
CAAPP
permit,
therefore,
is
not
a
challenge to
any
7
portion
of the
CAAPP
permit
that
will
affect
the
“continued
validity”
or
“survival”
of the
uncontested conditions.
Finally,
if the General Assembly intended to exempt the CAAPP from the automatic stay
provision
of
the
APA,
it
would
have
expressly
done
so.
One
example
of
this
exercise
of
legislative
discretion
is
found in
Section
31.1
of the
Act,
the
very
section the Agency
cites in
support
of its
proposition
that
the
severability
clause
exempts
the
CAAPP
from
the
APA.
Section
31.1
of the Act states that
“Sections 10-25 through
10-60 of the
Illinois
Administrative
Procedure Act shall
not
apply
to
any
administrative
citation
issued
under
subsection
(b) of this
Section.”
The General Assembly,
therefore,
knows
how to explicitly
exempt
provisions
of the
APA from the Act.
In the present case it chose
not to; there is
no explicit exclusion of the APA
in
Section
39.5(7)(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 Grandfatherin2 Clause Does Not Apply To the CAAPP.
The
Agency’s
second
argument
is
that,
pursuant
to
5
ILCS
100/1-5(a)
(“the
APA’s
grandfathering clause”), the APA does not apply to this proceeding because the Board had issued
some
procedural
rules
prior
to
July
1,
1977.
More specifically,
the Agency
suggests
that
the
Board’s
procedural
rules
adopted
on
October
8,
1970,
in
the
R70-4
rulemaking
(“general
procedural
rules”) preclude
APA
applicability
to
CAAPP
permit
appeals
because the
general
procedural rules were adopted before July
1,
1977.
(Opp. at 6-7).
That argument,
however, is at
odds with
the
appellate
court’s
ruling
in
Borg-Warner
and
the
General
Assembly’s
intended
reach ofthe APA’s grandfathering clause.
8
The court in
Borg-Warner
upheld the APA’s automatic stay provision in the context ofa
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 ofJuly
1,
1977.
To hold otherwise would be contrary to
Borg-Warner
and the Board’s own precedent.
Furthermore, if the Agency’s argument is correct, there would have been no needfor-the
General Assembly
to have expressly excluded the applicability of the contested
case provisions
of
the
APA
from
Section
31.1
of
the
Act.
The
Agency
argues
that
“it
is
the
procedures
applicable
to
contested
cases
and their
point of origin that
is
relevant
to this
analysis,
not
the
advent of the permitting program itself”
(Opp.
at 6-7).
In other words, the Agency argues
that
the contested
case provisions ofthe
APA
do
not
apply
in
any
contested case
brought
under
the
Act because the general procedural rules
“point oforigin” is before July
1,
1977.
The legislature
was
certainly
aware
of the
“point of origin” of the
general
procedural
rules
and
the
APA’s
grandfathering clause when it drafted the explicit exclusion of the APA
from Section
31.1
ofthe
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
beforethat 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 ofenvironmental harm if a stay
is granted.
See Bridgestone/Firestone Off-road
Tire
Company
v.
illinois
Environmental
Protection Agency,
PCB
02-31
(November
1,
2001).
While
the Board may look to these five factors
in determining whether or not to grant a stay, it is
not confined exclusively to these factors normust 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.
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 ofCAAPP 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 Petitionerjusti~
a
stay
of the contested
conditions,6 but
that
certain
reasons
do
not justi&
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 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,
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
confusion
and
leave
at
least
some
of the
uncontested
conditions
virtually meaningless.
Further,
such a limited stay would require Petitioner to comply
with
provisions
that
are incorrect applications
of legal
requirements.
For example, Conditions
7.1 .3(b)(iii),
7.1 .3(c)(iii), 7.1 .7(a)(iv),
7.1.1 0-2(a)(i)(D), 7.1.12(0, which were not
contested,
are
linked
to
contested
conditions.
Therefore,
if
the
Board
were
to
only
stay
the
contested
conditions, these uncontested conditions would become meaningless.
Petitioner’s
right of appeal
should
not
be
cut
short or even rendered moot
by
a limited
stay that would result in Petitioner having to
comply with certain conditions before a legal ruling
that
will
or
may
affect
the
meaning
of those
conditions.
Furthermore,
as
admitted
by
the
Agency,
Petitioner
should
not
be
required
to
expend
exorbitant
costs
in
complying
with
conditions
whose
meaning
will
be
affected
by
the
appeal
process.
(Opp.
at
9).
Since
the
contested
conditions
are beyond
the
scope
of the Agency’s
statutory
permit
authority
and
are
interwoven with the remainder of the CAAPP permit,
a stay of the entire permit is
necessary to
protect an ascertainable right and avoid irreparable injury.
B.
The
Absence
of
a
Stay
of
the
Entire
CAAPP
Permit
Would
Cause
Administrative Confusion.
The Agency’s second
argument is that,
even though the permit appeal
process
is part of
the administrative continuum, no
administrative confusion
will result if a partial
stay
is granted
because the
state
operating
permits
become
a
“nullity”
upon
the issuance/effectiveness
of the
13
CAAPP
permit.
(Opp.
at
11).
The Agency’s interpretation of the Act contravenes
a basic canon
of statutory construction because it results in a superfluous interpretation ofstatutory language
--
if effectiveness
and
issuance are synonymous
as the Agency alleges,
Section 39.5(4)(b) or (g) of
the Act
becomes
superfluous.
Krafl
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
(III. Ct. Cl.
1995).
The
Agency
takes
issue
with
Petitioner’s
reliance
upon
both
Sections
39.5(4)(b)
and
9.1(0 of the
Act
for the continuation of the
state
operating permit
during
the pendency of the
appeal.
(Opp.
at
11).
However, in
ascertaining the meaning of a statute,
the statute
should be
read as
a whole
with
all
relevant parts
considered.
Patterson,
308
Ill.App.3d
at
947,
242
Ill.
Dec.
at
521.
Petitioner’s
reliance on
both
sections
is
necessary
and,
therefore,
appropriate in
order
to
give
effect
to
the
language
in
the
statute.
Section
39.5(4)
of the Act
addresses
the
transition
from
the
state
operating permit
program
to
the CAAPP.
A
source’s
state
operating
permit
is
to
remain in
full
force
and
effect
until
issuance of the CAAPP
permit.
See
Section
39.5(4)(b) of the
Act.
Once
the
CAAPP
permit
has been
issued,
at
least this
portion
of the
transition
from
the
state
operating
permit
program
to
the
CAAPP
has
occurred.
However,
Section
39.S(4)(g)
says
that
the
“CAAPP
permit
shall
upon
becoming
effective supersede
the
State operating permit.”
(Emphasis added.)
Under Illinois law,
as discussed above, the CAAPP
permit is
not effective if it has been appealed.
If the Agency is
correct
in
its argument, there
is
no
permit
in
effect
under
which
the
source
can operate if a
stay
is
issued
by
the
Board.
The
General Assembly could not have reasonably intended for a source to
operate without a permit.
Section
9.1(0
of
the
Act
supports
the
distinction
between
Sections
39.5(4)(b)
and
39.5(4)(g) of the
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
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 of the Act is not limited to
permits issued because of Clean Air Act requirements,
or even if it is, it would apply in the case of CAAPP permits because they
are required by Title V
of
the
Clean
Air
Act.
First,
New
Source
Review
permits
are
not
renewed.
They
are
preconstruction permits that are followed by an operating
permit.
Therefore,
Section 9.1(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
3 9(a) of the
Act.
Therefore,
it is
not limited
only to permits
required by
the Clean Air
Act.
A state
operating permit, pursuant to
Section
9.1(f) of the
Act,
continues in effect after its
expiration if the application for renewal
is timely.
In this case, the application
for renewal was
the application for the CAAPP
permit.
See
Section 39.5(4)(a) of the Act.
In order
for Sections
39.5(4)(a),
(b), and
(g) of the
Act
to
make sense
in
the context 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 ofthe 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 ofa statement of basis does not support the
need for a stay ofthe entire CAAPP permit because it does not render the entire permit defective.
(Opp.
at
14).
The current issue before the Board, however, is
not whether the lack ofa statement
of basis renders the permit defective, but whether the lack of a statement of basis justifies a stay
of the entire
CAAPP permit.
Petitioner, therefore,
will not address the merits ofwhy 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
permittee
to
fully
understand
the
rationale behind
each permit
condition
and
ultimately affects
whether
the permittee
finds
a condition
to
be
objectionable.
Since the Agency
did
not
issue a
statement of basis,
denying
the permittee notice of the Agency’s decision-making rationale
and
the
opportunity
to
comment thereon,
Petitioner effectively
objects
to
each
and
every
CAAPP
permit condition.
The
Agency concedes that the reasons put forward by Petitioner in
its Petition
justify
a
stay
of the
contested
conditions.
Accordingly,
the
Agency’s
failure
to
provide
a
statement ofbasis justifies a stay of the entire CAAPP permit.
III.
THE
STATUTORY
OBJECTIVES
OF
THE
CAAPP
AND
THE
COMMON
ATTRIBUTES
OF PERMIT APPEALS DO NOT WARRANT THE
DENIAL OF A
STAY OF THE ENTIRE
CAAPP PERMIT.
The
Agency
argues,
without
providing
any
support
for
its
argument,
that
the
Board
should not
issue a stay of the entire
CAAPP permit because it could lessen the opportunities for
citizen enforcement against Petitioner and the “cumulative
effect” of stays sought by other coal-
fired
CAAPP
permittees
would
“effectively
shield”
the
entire
utility
sector
from
potential
16
enforcement.
(Opp. at
19)
This argument is completely specious.
The Act
allows “any person”
to
file a complaint with the Board
against any person violating the
“Act,
any
rule or regulation
adopted under the Act, any permit, or any term or condition ofa permit.”
See
Section
3 1(d)(i) of
the Act.
Therefore,
a stay in this
case or any of the other coal-fired CAAPP permit appeals will
not limit a citizen’s ability to bring
an enforcement action.
The Agency
also
argues
that
Petitioner
is
not
entitled
to
a
stay
of the
entire
CAAPP
permit because this appeal
along with the other coal-fired CAAPP permit appeals are “protective
appeals.”
Petitioner takes exception
to
the accusation
that this
appeal
is
protective.
Petitioner
was active
in the opportunities for public participation
and issued
written comments
in
response
to
all
of the
iterations
of the
draft
CAAPP
permit.
Petitioner
filed
this
appeal
because the
Agency failed to
address serious issues
raised by
Petitioner during public participation, resulting
in
a CAAPP
permit
that
exceeds the Agency’s
statutory
authority.
Petitioner
and
the Agency
anticipate that some ofthese issues will likely
go
to hearing.8
CONCLUSION
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
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.
(WOOD RIVER POWER STATION)
by:
__________________
One ofIts Attorneys
Dated: December 2, 2005
Sheldon A. Zabel
Kathleen C. Bassi
Stephen J. Bonebrake
Joshua R. More
Kavita M. Patel
SCHIFF HARDIN, LLP
6600 Sears Tower
233
South Wacker Drive
Chicago, Illinois
60606
312-258-5500
Fax:
312-258-5600
CH2\
1335311.1
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..
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 recvrded 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:
_____________
i-i.
TABLE OF CONTENTS
Page
1.0
PROGR.A14
OVERVIEW
1—.
2.0
DEFINITIONS
2.1
Applicable Reauirements
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
3.3.0 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
Proaram Submittal Content
4.2
EPA Review of Program Submittals
4.3
Interim Approval
4.4
Equivalent Program Elements
4.5
Attorney General’s Opinion
4.6
Legal Authority
4.7
Partial Programs
4.8
Operational Flexibility
4.9
“Off Permit”
4.10 Transition Plan
4.11 Judicial Review
4.12 Implementation Agreements
.
5.0
PERMIT APPLICATIONS
5..
Application Content
5.2
Timely and Complete Submittal
5.3
Application Review
5.4
Insignificant Activities
5.5
Emissions Reporting
5.6
Confidential
Information
5.7
Compliance Plans
iii
4—1
4—.
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
6—1
6—1
6—1
6—1
6—2
6—2
6—3
6—4
6—5
6—6
6—6
6—7
6—7
6—7
9.0
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
10—1
11.0 ENFORCEMENT AUTHORITY
11.1 Enforcement Authority
11.2 Criminal Authority
11—1
11—1
11—1
5—4
5—4
5.8
Certification of Truth.
etc
5.9
Cross—Referencing
6.0
PERMIT
CONTENT
6.1
General
Permit Content
6.2
Equivalency
Determination
6.3
Federal Enforceability
6.4
Compliance Certification
6.5
Monitoring. Recordkeeping. Reporting
6.6
Inspection Provisions
6.7
General Permits
6.8
Permit Shield
6.9
Alternative Scenarios
6.10 Emergency Defense/Uodates
6.11 Noncomplyina Sources
6.12 Model Permits
6.13 Emissions Trading
7.0
PERMIT PROCESSING
7.1
General Process
7.2
Administrative Amendments
7.3
Minor Modifications
7.4
Significant Modifications
7.5
Application Shield
7.6
Public Participation
7.7
Renewals
7.8
Reooeninus
7.9
Title
I Modifications
7.10 Permit Denial
7.11 Temporary Sources
.
8.0
PERMIT
REVIEW
8.1
EPA Review
8.2
Affected State Review
8.3
Public Participation
8.4
Data Manaaement
.
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
iv
12.0
PROGRAM
INTERFACE
12.1 Lii
12.2 Section 112
12.3 New Source Review
12.4 Acid Rain
12.5 Enhanced Monitoring
12.6 Stratospheric Ozone
12—1
12—1
12—2
12—2
12—3
12—9
12—9
13.0 MISCELLAREOUS
13.1 Indian Lands
13.2 Pollution Prevention
13—1
13—1
13—1
14.0
PART
71
14—1
v
6.0
PERMIT
CONTENT
6.1
General Permit Content.
1.
Must the SIP-approved emissions rate
be
included
in
the
permit, or
is
a Control Technology Guideline
reasonably
available
control
technology
limit
sufficient?
The SIP-approved emissions rate is the applicable requirement
and
must
be
included
in
the
permit.
2.
What
is
a
severability
clause?
The severability clause is a provision that allows the rest of
the
permit
to
be
enforceable
when
a
part
of
the
permit
is
judged illegal or void.
6.2
Ecruivalency
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~on1yU
conditions that became federally enforceable back to “State-
only”
status?
The mechanism for changing the designation from federally
enforceable to “State—only”
is the minor permit modification
process.
These changes,
if “State—only,” should not involve
applicable requirements and could be removed from the
federally-enforceable portion of the permit as
long as none of
the restrictions on minor permit modifications in section
70.7(e) (2) (i) (A) are violated.
If any of the restrictions in
6—1
CERTIFICATE OF SERVICE
I hereby
certify
that on
the 2’~”day
ofDecember 2005,1 did serve, by electronic filing,
by
electronic mail,
and
by U.S.
Mail
postage prepaid, a true and correct copy of the attached
PETITIONER’S REPLY IN SUPPORT OF A PERMIT
STAY AND IN RESPONSE TO
THE AGENCY’S OPPOSITION TO PETITIONER’S REQUEST
FOR A STAY
and
MOTION FOR LEAVE TO
FILE REPLY
INSTANTER,
upon the following persons:
Dorothy
Gunn,
Clerk
Pollution Control Board
James R. ThompsonCenter
100W.
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
SCHIFF HARDIN, LLP
6600 Sears Tower
233
South Wacker Drive
Chicago, Illinois
60606
312-258-5500
Fax:
312-258-5600
CH2\
1335675.
RobbLyman, 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.
