BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

 

MIDWEST GENERATION, LLC, )

JOLIET GENERATING STATION )

 

  

  

  

  

  

)

Petitioner, )

) PCB No. 2006-058

v. ) (CAAPP Permit Appeal)

)

ILLINOIS ENVIRONMENTAL )

PROTECTION AGENCY, )

 

  

  

  

  

  

)

Respondent. )

 

NOTICE

 

To: Dorothy Gunn, Clerk Sheldon A. Zabel

Illinois Pollution Control Board Kathleen C. Bassi

100 West Randolph Street Stephen J. Bonebrake

Suite 11-500 Joshua R. More

Chicago, Illinois 60601 Kavita M. Patel

Schiff Hardin, LLP

Bradley P. Halloran 6600 Sears Tower

Hearing Officer 233 South Wacker Drive

James R. Thompson Center, Chicago, Illinois 60606

Suite 11-500

100 West Randolph Street

Chicago, Illinois 60601

 

  

  

  

  

  

  

  

PLEASE TAKE NOTICE that I have today electronically filed with the Office of

the Clerk of the Illinois Pollution Control Board the

MOTION FOR LEAVE TO FILE

SURREPLY and SURREPLY

of the Respondent, Illinois Environmental Protection

Agency, a copy of which is herewith served upon the assigned Hearing Officer and the

attorneys for the Petitioner.

Respectfully submitted by,

 

_____/s/______________

Robb H. Layman

Assistant Counsel

Dated: December 19, 2005

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

 

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2005

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

 

MIDWEST GENERATION, LLC, )

JOLIET GENERATING STATION )

 

  

  

  

  

  

)

Petitioner, )

) PCB No. 2006-058

v. ) (CAAPP Permit Appeal)

)

ILLINOIS ENVIRONMENTAL )

PROTECTION AGENCY, )

 

  

  

  

  

  

)

Respondent. )

 

 

MOTION FOR LEAVE TO FILE SURREPLY

 

NOW COMES the Respondent, ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY (“Illinois EPA” or “Respondent”), by and through its attorneys, and moves the

Illinois Pollution Control Board (“Board”) for leave to file a Surreply to the Petitioner’s,

MIDWEST GENERATION, LLC, (hereinafter “Midwest Generation” or “Petitioner”),

recent responsive pleading regarding the issue of stay. In support of this Motion, the

Respondent states as follows:

1. On November 2, 2005, attorneys for the Petitioner filed this appeal with

the Board challenging certain permit conditions contained within the Clean Air Act

Permit Program (“CAAPP”) permit issued by the Illinois EPA on September 29, 2005.

The Illinois EPA received an electronic version of the appeal on the same date. Formal

notice of the appeal was served upon the Illinois EPA on November 4, 2005.

2. As part of its Petition, Midwest Generation sought a stay of the

effectiveness of the entire CAAPP permit.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2005

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3. On November 18, 2005, the Illinois EPA responded to Midwest

Generation’s request for stay.

1

     

4. On December 2, 2005, the Petitioner filed a responsive pleading and an

attached Motion for Leave with the Board. The Illinois EPA received service of the

filing on December 5, 2005.

5. In accordance with the Board’s procedural requirements, the Illinois EPA

possesses no formal right to file additional responsive pleadings except as may permitted

by the Board or a hearing officer to prevent material prejudice. Any such reply or

surreply must be filed with the Board within 14 days after service of the response.

See,

35 Ill. Adm. Code 101.500(e).

   

6. In its December 2

nd

pleading, Petitioner addressed several arguments

raised by the Illinois EPA in opposition to the applicability of the Illinois Administrative

Procedure Act (“APA”),

5 ILCS 100/10-65(b)(2004)

and the Board’s granting of a

blanket stay of the entire CAAPP permit pursuant to its discretionary stay authority. The

Illinois EPA asserts that Petitioner’s pleading contains improper, or perhaps inadvertent,

misstatements concerning the Respondent’s arguments. This filing is necessary to avoid

undue prejudice arising from those misstatements. The Board has previously held that a

surreply is an appropriate filing when brought to correct misstatements contained in

briefing documents.

See, Illinois Ayers Oil Company v. Illinois EPA, PCB No. 03-214,

UST Appeal (August 5, 2004).

 

1

In addition to the filing of Appearances on November 18, 2005, the Illinois EPA filed a document

entitled “Motion in Partial Opposition To, And Partial Support Of, Petitioner’s Request for Stay.” In

subsequent responsive pleadings, it was noted that the Illinois EPA’s filing did not request relief beyond

that which was already being sought, and therefore the document was merely a responsive pleading. In

retrospect, the Illinois EPA acknowledges that the caption of its “Motion” document was not artfully stated

and should have instead been identified as a Response. To this end, and hopefully without adding to the

confusion, the Illinois EPA is identifying this pleading as a Surreply to Petitioner’s most recent responsive

filing.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2005

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WHEREFORE, the Illinois EPA respectfully seeks leave from the Board to file

the attached Surreply in the above-captioned matter.

Respectfully submitted by,

 

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

 

 

_____/s/______________

Robb H. Layman

Assistant Counsel

 

Dated: December 19, 2005

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217) 524-9137

 

 

  

 

 

 

 

 

 

 

 

 

 

 

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2005

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1

 

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

 

MIDWEST GENERATION, LLC, )

JOLIET GENERATING STATION )

 

  

  

  

)

Petitioner, )

) PCB No. 2006-058

v. ) (CAAPP Permit Appeal)

)

ILLINOIS ENVIRONMENTAL )

PROTECTION AGENCY, )

 

  

  

  

  

  

)

Respondent. )

 

SURREPLY

 

NOW COMES the Respondent, ILLINOIS ENVIRONMENTAL PROTECTION

AGENCY (“Illinois EPA”), by and through its attorneys, and files this Surreply to correct

several misstatements expressed by the Petitioner, MIDWEST GENERATION, LLC,

(hereinafter “Midwest Generation” or “Petitioner”) in its responsive pleading

1

filed with

the Board on December 2, 2005.

ARGUMENT

In its Reply, Petitioner challenges assertions by the Illinois EPA that were made

with respect to the applicability of the Illinois Administrative Procedure Act (“APA”),

5

ILCS 100/10-65(b)(2004),

and the exercise of the Board’s discretionary stay authority in

Clean Air Act Permit Program (“CAAPP”) appeals. In doing so, Petitioner presents

certain arguments that misstate the Illinois EPA’s arguments or applicable law.

 

1

As addressed in the accompanying Motion to this filing, the Illinois EPA’s prior captioning of pleadings

was less than artful and, for the reasons explained therein, this responsive pleading is being identified as a

Surreply. The Illinois EPA will refer to the Petitioner’s most recent December 2

nd

filing in the general

manner it was captioned (i.e., “Petitioner’s Reply”). Reference to the Illinois EPA’s earlier Motion in

Partial Opposition To, And Partial Support Of, Petitioner’s Request For Stay, will be abbreviated herein as

“Respondent’s Motion.”

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2005

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2

 

I. The CAAPP program’s severability provision can be construed as an

exemption to the APA’s automatic stay requirements.

 

One of the arguments raised by the Illinois EPA in its responsive pleading

asserted that the severability provision of Section 39.5(7)(i) of the Act could be construed

as an exemption from the APA’s automatic stay requirements. The main point addressed

in this argument is that the statute’s reference to “continued validity” is indicative of a

statutory intent to preclude a blanket stay of all CAAPP permit conditions during the

appeals process.

See, Respondent’s Motion at pages 5-6.

   

 

Petitioner charges that the severability provision cannot be relied upon by the

Illinois EPA as proof that the State legislature “intended to change Illinois law so that the

entire permit must remain in effect during the appeal.”

Petitioner’s Reply at pages 4-5.

  

This contention flatly misstates the Illinois EPA’s argument. The Illinois EPA’s position

simply advocated that “some segment of the CAAPP permit” (i.e., the uncontested

provisions) should not be subject to the APA’s automatic stay provision by virtue of the

CAAPP’s severability provision.

Respondent’s Motion at pages 5-6.

The argument did

not evince any sort of declaration, express or implied, that the entire permit must remain

effective during the appeal period.

Petitioner generally claims that the statutory language only addresses “potential

problems of legal enforceability” and is analogous to contractual severability clauses that

operate to protect against the invalidity of certain contractual terms whenever one or

another terms are deemed invalid.

See, Petitioner’s Reply at pages 5-6.

The Illinois EPA

admits that the CAAPP severability provision has something in common with contractual

severability clauses. It is not disputed, even in light of the 1993 USEPA document

unearthed by Petitioner, that the provision provides a “saving” mechanism for

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2005

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3

 

uncontested permit conditions. However, while Section 39.5(7)(i) assures that the

remaining portions of a permit remain viable when and if challenged conditions are

struck down, the Illinois EPA maintains that the provision’s language also achieves the

practical effect of foreclosing the APA’s automatic stay provision. It does so by

contemplating a continuation of the uncontested permitting requirements

contemporaneous with the permit appeal.

The wording of the statutory language in Section 39.5(7)(i) does not require that

its force and effect be delayed until the legal challenge is exhausted and a final decision is

rendered. Rather, the language emphasizes the “continued validity” of the uncontested

permit conditions, implicitly revealing that the non-challenged portion of the permit

should remain in effect during the appeal period itself, not simply at its conclusion.

See,

Respondent’s Motion at pages 5-6.

If the uncontested provisions are somehow left in

abeyance until the end of the appeal process, then the “continued validity” of the

uncontested provisions could never truly be assured.

Petitioner contends that the General Assembly did not make its intentions

sufficiently explicit to create an exemption for CAAPP from the APA’s automatic stay

requirements.

See, Petitioner’s Reply at page 8.

Petitioner also seizes upon a statement

from the Illinois EPA’s responsive pleading that conjoined the terms “validity” and

“effectiveness” in describing the effect of the severability provision.

See, Petitioner’s

Reply at page 6-7.

Petitioner refutes the reference to permit effectiveness in this context,

arguing that a permit’s validity addresses its “legality,” while the permit’s effectiveness

addresses when the permit becomes operational (i.e., “the time during which the

obligations set forth in the permit are put into operation”).

Id. at page 7.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2005

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4

 

Petitioner’s argument does not accurately depict applicable law or the Illinois

EPA’s arguments concerning the proper interpretation of the CAAPP’s severability

clause. The Illinois EPA cited the Act’s administrative citation provisions as one

example of the legislature’s intent for exempting the APA from certain provisions of the

Act. It is not disputed that the General Assembly’s intentions in Section 31.1(e) of the

Act are expressly and unambiguously stated therein. However, the thrust of the Illinois

EPA’s argument rests on an implicit meaning of Section 39.5(7)(i), imparted by its

language and surrounding statutory text.

See, Respondent’s Motion at pages 5-6, 11-13,

17-19.

Petitioner’s argument concerning the lack of explicitness is not fatal. A statutory

exemption can be “inferred by clear implication,”

Holda v. County of Kane, 410 N.E.2d

552 (Ill. App. 2

nd

Dist., 1980).

  

Moreover, Petitioner’s distinction between validity and effectiveness does not

hold water. One meaning attributed to the base word “valid” is “effective” or “effectual.”

Webster’s New World Dictionary of American English (Third College Edition).

  

See also,

The American Heritage Dictionary (Second College Edition)

(showing the term “valid” to

mean “legally sound and effective”). If a permit’s validity can mean the same thing as its

effectiveness, then Petitioner’s argument is based on semantics.

II. A stay of a permit’s contested conditions pursuant to the Board’s

discretionary stay authority is not at odds with the CAAPP’s statutory

scheme.

 

In discussing issues surrounding the Board’s discretionary stay authority,

Petitioners present several arguments that misstate the relevant facts or applicable law.

One such misstatement concerns one of the permit conditions appealed in this proceeding

relating to the permit’s effective date. According to Petitioner, a challenge to the

permit’s effective date is tantamount to a stay of all other permit conditions, seemingly

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2005

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5

 

because none of the permit conditions can be said to become effective until the issue

surrounding the effective date is first resolved.

See, Petitioner’s Reply at page 12.

   

Petitioner’s argument is gimmickry. While the Illinois EPA has evidenced its

acceptance of a limited stay of the permit’s contested conditions, it has opposed a blanket

stay of all of the permit’s terms. Construing an isolated issue that was raised on appeal so

as to affect, or run to, the entire permit does not alter the Illinois EPA’s opposition to a

blanket stay.

More significantly, the argument misstates the nature of the issue raised in the

Petitioner’s appeal. The bailiwick of Petitioner’s challenge regarding the permit’s

effective date involves the timing of the permit’s effectiveness relative to the date of

permit issuance. Specifically, Petitioner has objected to the permit being deemed

effective on September 29, 2005, because a signed version of the permit was not received

in the mail until the first week of October 2005.

See, Petition at pages 12-14.

Petitioner

appears to be particularly concerned with the implications posed by the permit being

issued in late September, as it would purportedly cause hardship with respect to the

permit’s quarterly record-keeping and/or reporting requirements.

Id.

The narrow

emphasis of this issue is placed on whether the permit became effective on the date of the

Illinois EPA’s issuance or, alternatively, on the date that the Petitioner received its permit

in the mail a few days later. This issue is wholly distinct from the discussion that is

accompanying the merits of the stay issue, the latter of which is addressing a permit’s

effectiveness as it relates to the pendancy of this appeal.

Petitioner criticizes the Illinois EPA for wrongly assuming that the challenged

emissions testing, reporting, record-keeping and monitoring requirements of the CAAPP

permit are severable from the permit’s uncontested conditions. Petitioner contends that

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2005

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6

 

the challenged conditions are too “interwoven” with the rest of the permit and, similarly,

that several conditions that were not appealed are so “linked” with the contested

conditions as to render the former terms meaningless.

Petitioner’s Reply at page12-13.

 

  

Petitioner’s argument exaggerates the relevant facts of this appeal. In general, it

could be argued that any one of the CAAPP permit’s conditions relate to, or are

interwoven with, the aims or objectives of the overall permit, but that does not suggest

that contested conditions cannot be severed for purposes of a stay. Moreover, this

characterization defies the obvious nature of Petitioner’s appeal. With limited

exceptions, Petitioner’s appeal deals with compliance assurance requirements that are

mainly associated with particulate matter emissions and, to a lesser degree, carbon

monoxide emissions. Indeed, the permit’s conditions governing other regulated

pollutants are largely unaffected by the reach of this proceeding. If some conditions that

are purportedly linked with contested conditions were not appealed, such an oversight is a

self-imposed hardship brought about by the Petitioner, not the CAAPP’s statutory

scheme.

Petitioner also misstates applicable law relating to the effect of a CAAPP permit’s

issuance upon any underlying state operating permits. Petition purports to rely upon both

Sections 39.5(4)(b) and 9.1(f) of the Act in construing the relationship between issued

CAAPP permits and underlying operating permits.

See, Petitioner’s Reply at pages 14-

15.

However, the former provision does not lead to administrative confusion in this

proceeding if it is construed to have nullified the former state operating permits upon the

Illinois EPA’s issuance of the CAAPP permit. Indeed, most of the alleged “gap-filling”

conditions challenged by the Petitioner were not even present in earlier operating permits.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2005

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On the other hand, Section 9.1 applies only to New Source Review (“NSR”)

permits. No permit program has ever been promulgated in Illinois for the PSD

component of the Clean Air Act’s NSR program. The non-attainment area program is

reflected in the Board’s Part 203 regulations, however, it does not address requirements

for operating permits. More fundamentally, Section 9.1 has no more bearing upon this

CAAPP proceeding than those procedures governing general operating permits issued

pursuant to Section 39 of the Act. The requirements concerning the CAAPP program

represent a stand-alone permitting program that is exclusive of general permitting

requirements for either the state’s NSR or general state operating permit requirements.

For these reasons, the provision cited by Petitioner is inapposite to this CAAPP appeal.

CONCLUSION

 

The Illinois EPA urges the Board to consider the afore-mentioned arguments in its

deliberations of the stay issue and to ultimately reject a blanket stay of the CAAPP

permit.

Respectfully submitted by,

 

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

 

 

_____/s/______________

Robb H. Layman

Assistant Counsel

 

Dated: December 19, 2005

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217) 524-9137

 

 

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2005

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CERTIFICATE OF SERVICE

I hereby certify that on the 19th day of December 2005, I did send, by electronic

mail, the following instruments entitled

MOTION FOR LEAVE TO FILE

SURREPLY and SURREPLY

to:

Dorothy Gunn, Clerk

Illinois Pollution Control Board

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

and a true and correct copy of the same foregoing instrument, by First Class Mail with

postage thereon fully paid and deposited into the possession of the United States Postal

Service on the next business day, to:

Bradley P. Halloran

Hearing Officer

James R. Thompson Center

Suite 11-500

100 West Randolph Street

Chicago, Illinois 60601

 

  

  

  

  

  

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

 

 

  

  

_____/s/_________________

Robb H. Layman

Assistant Counsel

 

 

 

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 19, 2005