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ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 30, 2005
BEFORE THE ILLINOIS POLLUTION CON'T'ROL BOARD
MIDWEST GENERATION, LLC,
WILL COUNTY GENERATING STATION
Petitioner,
V,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent
.
To
:
Dorothy Gums_ 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
PLEASE TAKE NOTICE that I have today electronically tiled with the Office of the
Clerk of the Pollution Control Board RESPONSE TO AGENCY MOTION FOR LEAVE TO
FILE A SURREPLY, copies of which are herewith served upon you
.
NO'T'ICE
IZobb Layman, Assistant Counsel
Sally Carter, Assistant Counsel
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North (hand Avenue, Fast
P.O. Box 19276
Springfield, Illinois 62794-9276
PCB No. 2006-60
(Permit Appeal - Air)
 
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 30, 2005
Dated: December -',0,2005
SCI IFF I IARDIN LLP
Sheldon A . Zabel
Kathleen C . 13assi
Stephen J. Bonebrake
Joshua R. More
Kavita M. Patel
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 00606
312-255-5567
FAX: 312-255-5000
 
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 30, 2005
BEFORE THE ILLINOIS POLLUTION CONTROL. BOARD
MIDWEST GENERATION, LLC,
)
WILL COUNTY GENERATING STATION
)
Petitioner,
)
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
)
Respondent
.
)
PCB No. 2006-60
(Permit Appeal - Air)
RESPONSE TO AGENCY MOTION FOR LEAVE TO FILE A SURREPLY
Petitioner, MIDWEST' GENERATION, LLC, WILL COUN I Y GENERATING
STATION ("Petitioner"), by and through its attorneys, submits this Response in
opposition to Respondent ILLINOIS ENVIRONMENTAL, PROTECTION AGENCY's
(the "Agency'), motion for leave to file a surreply to Petitioner's December 2, 2005 reply
regarding the issue of a stay . In support of this Response, the Petitioner states as follows
:
On November 3, 2005 . attorneys for the Petitioner filed this appeal with
the Illinois Pollution Control Board ("Board") challenging certain permit conditions
contained within the Clean Air Act Permit Program ("CAAPP") permit issued with
respect to Petitioner by the Agency on September 29, 2005
.
2
.
As part of its appeal Petition, Petitioner stated that the CAAPP permit is
not effective until completion of the administrative process, which includes this appeal,
pursuant to the Administrative Procedure Act ("APA") (5 ILCS 100/10-65), but, as a
protective matter, Petitioner in the alternative, moved for a stay of the effectiveness of the
 
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 30, 2005
entire CAAPP permit pursuant to the Board's discretionary authority (collectively
referred to as a "request for stay")
.
3
.
On November 18, 2005, the Agency responded to Petitioner's request for
stay by filing a document entitled "Motion in Opposition to Petitioner's Request for
Stay." As acknowledged by the Agency, the November I S, 2005 `Motion` was
inarttitlly titled, and the pleading was not a motion but instead a "response" to the
Petition. Sec Respondent's Motion for Leave, ! ; 6 n . 1 .
4 .
On December 2, 2005, Petitioner filed a reply to the Agency's November
18, 2005 filing. The Agency received an electronic version of Petitioner's December 2,
2005 reply the same date .
5
Under date of December 19, 2005, the Agency filed with the Board, and
served by mail on December 20, 2005 a surreply with an attached Motion for Leave to
file the surreply .
6 .
The asserted basis for the Agency's motion is that Petitioner's December
2, 2005 reply contains misstatements concerning the Agency's arguments and that the
Agency will be unduly prejudiced if it is not provided the opportunity to file a surreply
.
The only diseernable, alleged misstatements by Petitioner were Petitioner's refusal to
agree with, in fact, affirmative disagreement with the Agency's rather strained
interpretation of the Illinois Environmental protection Act ("Act") (415 ILCS 5/40 .2) .
7 .
Upon a close examination of the surreply, it becomes clear that the
surreply does nothing more than repeat the arguments previously set forth in the
Agency's November 18, 2005 response
.
2
 
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 30, 2005
8
.
First, the Agency once again asserts that implicit within Section 39
.5(7)(i)
of the Act is an exemption from Section 10-65(b) of the APA . See Agenev's Surreply at
pages 2-4 . (Sometimes it even appears the Agency is arguing the General Assembly
simply amended the APA, by language in the Act, to limit the automatic stay of the APA
tbr CAAPP permits just to the contested provisions, while the uncontested provisions
remain in effect: "implicitly revealing that the non-challenged portion of the permit
should remain in effect during the appeal period
Agency's Surreply at 3 (emphasis
added). This stretches statutory construction beyond all breaking points.) As set forth in
Petitioner's Reply, to read into Section 39.5(7)(i) of the Act an exclusion of the APA's
automatic stay provision when the legislature chose not to include an exemption is an
impermissible departure from the unambiguous statutory language . See Petitioner's
Reply at pages 4-8 . If the legislature had intended to accomplish the result espoused by
the Agency, it could easily have done so by specifying that the APA does not apply in
the CAAPP permit appeal context
.
Id .
It chose not to do so, however . '['his illustrates
that the Agency is simply re-arguing an issue that has already been briefed
.
9 .
Second, the Agency asserts that a stay of the effective date should not run
to the entire permit because Petitioner's challenge of the effective date is somehow
limited in scope . See Agency's Reply at pages 4-5. The Agency's argument misstates
the nature of the issue raised in Petitioner's appeal . Petitioner is concerned with the fact
that the effective date set forth in the permit
is
the same date as the issuance date . For
the reasons set forth in its Petition and Reply, is unreasonable to expect Petitioner to
have anticipated the final permit to the degree necessary for it to have been in
compliance on the issuance date
. See Petitioner's Petition at pages 12-14 and Reply at
3
 
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 30, 2005
page 12 . Theretbre, the effective date should not he the issuance date . Again, the
Agency is arguing an issue that was, or certainly should have been argued in its
November 18, 2005 response
.
10
.
Third. the Agency once again asserts that a stay of the entire permit is not
necessary because the uncontested conditions are not interwoven or linked with the
contested conditions
. See Agency's Surreply at pages 5-6. This argument, as more fully
discussed in Petitioner's Reply, misconstrues the facts. See Petitioner's Reply at 12-13
.
Several uncontested conditions arc, in fact, linked to contested conditions, and it the
Board were to stay only the contested conditions, these uncontested conditions would
become meaningless,
11 .
Finally, the Agency once again asserts that administrative confusion will
not occur if a partial stay is granted because the underlying state operating permits
become a nullity upon the issuance of the CAAPP permit .
See
Agency's Reply at pages
6-7. If the Agency is correct in its argument, there is no permit in effect under which a
source can operate if a stay is issued by the Board, as has been the Board's practice in
other CAAPP permit appeals . Even the partial stay that the Agency seems to support
would result in a gap in permit coverage under the Agency's interpretation of the Act
.
The General Assembly could not have reasonably intended for a source to operate
without permit coverage
.
12
.
'the Board's rules, which do not even authorize a reply as a matter of
right, clearly disfavor endless pleadings on a matter. Here, the Agency has shown no
material prejudice and is merely trying to re-argue or support positions it argued or
should have argued in its prior pleading .
4
 
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 30, 2005
WIIERFFORF. the Petitioner respectfully requests than the Board deny the
Agency's Motion for Leave to File Surreply
.
Respectfully submitted .
Dined: December 30, 2005
Sheldon A . Zabel
Kathleen C . Bassi
Stephen
.1. Bonehrake
Joshua I2. More
Kavita M . Patel
SCHIFF HARDIN, LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
312-258-5500
Fax: 312-258-5600
('IC13 112 5' 3
MIDWEST GENFRA LION, LL.C`
WILL(OUhN
,XY GFNFRA1ING STA IION
7
One of Its Attorneys
S
 
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, DECEMBER 30, 2005
CERTIFICATE, OF SERVICE
I hereby certify that on the 30 °i day of December 2005, 1 did serve, by electronic tiling,
by electronic mail. and by U .S. Mail postage prepaid, a true and correct copy of the attached
RESPONSE TO AGENCY MOTION FOR LEAVE TO FILE A SURREPLY, upon the
following persons
:
Dorothy (iunn, Clerk
Pollution Control Board
James R. Thompson Center
100 W. Randolph Street
Suite 11-500
Chicago, Illinois 60601
Chicago, Illinois 60601
Bradley P. t-lalloran
Itearing OPiicer
Illinois Pollution Control Board
James R. Thompson ('enter
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
Joshua R. More
Sheldon A . label
Kathleen C . l3assi
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
ciu
13381061
Robb Layman, Assistant Counsel
Sally Carter. Assistant Counsel
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue, Last
P.O. Box 19276
Springfield, Illinois 62794-9276

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