Response in Opposition to Petitioner’s Request for Stay…

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

MIDWEST GENERATION, LLC,

)

WILL COUNTY GENERATING STATION )

)

Petitioner,

)

PCB No. 2006-156

)

(Permit Appeal - Air)

)

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

Kavita M. Patel

Chicago, Illinois 60601

Schiff Hardin, LLP

6600 Sears Tower

Bradley P. Halloran

233 South Wacker Drive

Hearing Officer

Chicago, Illinois 60606

James R. Thompson Center,

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

APPEARANCES AND

RESPONSE IN OPPOSITION TO PETITIONER’S REQUEST FOR STAY

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: April 25, 2006

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 APRIL 25, 2006

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

MIDWEST GENERATION, LLC,

)

WILL COUNTY GENERATING STATION )

)

Petitioner,

)

PCB No. 2006-156

)

(Permit Appeal - Air)

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

APPEARANCE

NOW COMES Robb H. Layman and enters his appearance on behalf of the

Respondent, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, as one of its

attorneys in the above-captioned matter.

Respectfully submitted by,

_____/s/______________

Robb H. Layman

Assistant Counsel

Dated: April 25, 2006

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 APRIL 25, 2006

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

MIDWEST GENERATION, LLC,

)

WILL COUNTY GENERATING STATION )

)

Petitioner,

)

PCB No. 2006-156

)

(Permit Appeal - Air)

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

APPEARANCE

NOW COMES Sally Carter and enters her appearance on behalf of the

Respondent, ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, as one of its

attorneys in the above-captioned matter.

Respectfully submitted by,

_____/s/______________

Sally Carter

Assistant Counsel

Dated: April 25, 2006

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217) 782-5544

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE APRIL 25, 2006

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

MIDWEST GENERATION, LLC,

)

WILL COUNTY GENERATING STATION )

)

Petitioner,

)

PCB No. 2006-156

)

(Permit Appeal - Air)

)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

RESPONSE IN OPPOSITION TO PETITIONER’S

REQUEST FOR STAY

NOW COMES the Respondent, ILLINOIS ENVIRONMENTAL PROTECTION

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

to 35 Ill. Adm. Code 101.500(d), files with the Illinois Pollution Control Board (“Board”)

this Response in Opposition to the Petitioner’s, MIDWEST GENERATION, LLC,

(hereinafter “Midwest Generation” or “Petitioner”), request for stay filed in conjunction

with this cause. In support of this Response, the Respondent states as follows:

On March 3, 2006, the Illinois EPA granted a construction permit,

Construction Permit No. 06020009, to Midwest Generation for the construction of new

wet dust extractor control devices for the Unit 3 and Unit 4 coal bunkers at the Will

County Generating Station located in Romeoville, Illinois.

On or about April 7, 2006, Petitioner filed a petition with the Board

seeking an appeal of the Illinois EPA’s permitting decision. The Illinois EPA received an

electronic version of the appeal on the same date. Formal notice of the appeal was served

on the Illinois EPA on April 11, 2006.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE APRIL 25, 2006

As part of its Petition, Petitioners seek a stay of the construction permit’s

contested conditions. Among other things, the Petition devotes several paragraphs to the

purported effectiveness of the permit and the Board’s recent rulings in the Clean Air Act

Permit Program (“CAAPP”) appeal proceedings for various coal-fired utility plants in

Illinois, including one involving Midwest Generation’s Will County Generating Station.

In the Board’s CAAPP proceeding for this same facility, Petitioner argued

that the CAAPP permitting decision by the Illinois EPA was subject to the Illinois

Administrative Procedure Act’s automatic stay provision,

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

thus precluding any of the CAAPP permit’s conditions from becoming effective until the

Board renders a final ruling on the appeal.

In contrast with the aforementioned CAAPP appeal, Petitioner does not

seek a blanket stay of the construction permit in this cause. Instead, Petitioner seeks only

a limited stay of the permit, presumably because there are certain provisions of the

construction permit that Midwest Generation desires to be effective immediately, rather

than awaiting the final judgment of the Board regarding the issues raised in the appeal.

The permit’s construction authorization, which provides a permittee with the requisite

legal authority to commence construction of an emission source, may well be a

motivating factor for Midwest Generation.

Petitioner relies exclusively on the Board’s prior CAAPP rulings to

support its request for a partial stay of the construction permit. Specifically, Petitioner

points to the language contained in a footnote of the Board’s ruling, wherein the Board

sought to distinguish a prior stay ruling tailored only to a permit’s permit conditions.

See, Petition at pages 3-4, citing Midwest Generation, LLC, Will County Generating

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE APRIL 25, 2006

Station v. Illinois EPA,

PCB No. 06-60, note 3 (February 16, 2006). In that instance, the

Board explained that it could find “nothing in the Act or the APA that prevents a

permittee from electing

not

to avail itself of the APA stay.”

Id.

According to the

Petitioner, this language confirms the existence of the Board’s discretionary stay

authority, as distinct from the automatic stay provision under the APA, whenever the

“permittee so requests.”

Petition at page 4

. The Illinois EPA believes such an

interpretation is plainly erroneous and, in any event, is irrelevant here.

The footnote from the Board’s order in the earlier CAAPP proceeding was

purely

dictum

and, judging from its context, was simply a passing remark. The passage

reads as though the Board was merely distinguishing its pronouncement regarding the

applicability of the APA’s automatic stay provision from an earlier exercise of

discretionary stay authority in

Soyland Power Cooperative, Inc., v. Illinois EPA,

PCB 06-

55 (January 5, 2006). Indeed, nothing in the footnote, either factually or legally, was

essential to the Board’s embrace of the automatic stay provision to the pending CAAPP

appeals.

Even if the footnote did not constitute

dictum

, it should not be relied upon

as good authority. Unless the Board’s reliance upon

Borg-Warner Corporation v. Mauzy,

427 N.E.2d 415 (3

Dist. 1981) is fundamentally misplaced, the APA’s automatic stay

provision, which is codified within a section devoted to licenses, is independent of the

statute’s contested case procedures. While the APA contains a waiver clause for any

provisions “concerning contested cases,” it does not expressly allow for such a

mechanism for licensing procedures.

See, 5 ILCS 100/10-70

(2004). This distinction is

significant in the context of statutory construction, where the express mention of one

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE APRIL 25, 2006

thing or object implies the exclusion of all others.

Compare, Mattis v. State Universities

Retirement System,

816 N.E.2d 303 (Ill. 2004);

Browning-Ferris Industries, Inc. of Iowa

v. Pollution Control Board,

468 N.E.2d (3

Dist. 1984). In this regard, the General

Assembly cannot be said to have authorized waiver of the APA’s automatic stay

provision through language that specifically speaks only to contested cases.

The present case does not come before the Board as an appeal of a

CAAPP permit, which is tantamount to a new permit for a major source that has

demonstrated an on-going existence. Rather, the appeal evolves from the issuance of a

state construction permit. This latter category of permits does not possess the attributes

of continuity that resulted in the Board’s rulings regarding the APA’s applicability in

CAAPP appeals.

See, 5 ILCS 10/65(b)(2004).

As such, the APA’s automatic stay

provision does not manifestly apply to construction permits. Lacking the statutory

dictates of the APA, the Board retains its discretion to review a request for stay in

accordance with its historical practice.

10.

In view of the analytical framework discussed above, the Board should

evaluate Petitioner’s stay request by looking to the traditional factors frequently

considered by the Board in prior proceedings.

See, Bridgestone/Firestone Off-road Tire

Company v. Illinois EPA,

PCB 02-31 at page 3 (November 1, 2001);

Community Landfill

Company and City of Morris v. Illinois EPA,

PCB No. 01-48 and 01-49 (consolidated) at

page 5 (October 19, 2000), citing

Junkunc v. S.J. Advanced Technology &

Manufacturing,

498 N.E.2d 1179 (1

Dist. 1986).

Because the Board’s rulings in the recent CAAPP appeals are clearly inapposite here, the Petitioner’s

attack on the Illinois EPA’s conduct in issuing the subject permit (i.e., characterized as “subversive and

disrespectful of the Board’s [stay order]… regarding the applicability of the APA to appealed permits”) is

shown to be specious.

See, Petition at page 7.

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE APRIL 25, 2006

11.

Some of those traditional factors are undoubtedly presented in the Petition.

The Illinois EPA generally acknowledges that Petitioner should not be required to expend

significant costs, or run the risk that its appeal rights be cut short, in complying with the

contested conditions of the permit prior a Board ruling on the merits of the appeal. And

for the reasons discussed in the responsive pleadings from the CAAPP appeals, the

Illinois EPA generally favors an approach of limiting stay relief to a permit’s contested

conditions.

12.

Notwithstanding the aforementioned, stay requests should be reviewed on

a case-by-case basis. A careful review of the contested conditions raised in this case

reveals that the requested relief is overly-broad. Petitioner’s stay request would

unnecessarily afford stay protection to matters unrelated to the substance of the appeal.

The Illinois EPA is therefore unable to support the Petitioner’s request in this cause due

to the slipshod manner in which relief has been pled.

13.

One example of this problem is found in Petitioner’s discussion of Special

Condition 5(a)(i). The challenged portion of the condition is found in the second

sentence and addresses the type of personnel (i.e., those not directly involved the day-to-

day operations) that must be involved in periodic inspections of the affected operations.

See, Petition at page 7

. However, the heart of the provision is the establishment of the

inspections themselves, as shown by the first sentence of the condition.

See, Petitioner’s

Exhibit 1, page 3.

Petitioner does not challenge this portion of the permit condition and,

judging from those conditions that will not be subject to stay protection, Petitioner

appears to embrace some of the record-keeping obligations set forth in the subsequent

sub-paragraph. Nonetheless, Petitioner seeks a stay from the entire provision, thereby

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE APRIL 25, 2006

attempting to evade the unchallenged part of the condition relating to periodic

inspections.

14.

Petitioner challenges Special Condition 6(a)(i)(A) of the permit, together

with another stand-alone subpart of the same condition, on the grounds that the Illinois

EPA has erroneously applied the New Source Performance Standards for Coal

Preparation Plants found at 40 CFR Part 60, Subpart Y.

Petition at pages 13-14.

Special

Condition 6(a)(i)(A) of the permit also generally provides that opacity be determined in

accordance with 40 CFR 60.8.

Petitioner’s Exhibit 1, page 4.

The Petition is silent with

respect to the latter testing requirements and the Petitioner’s selective challenge to only

that portion of Special Condition 6 relating to Subpart Y clearly implies that it intends

that the general testing obligations remain enforceable. However, instead of separating

out the contested portion thereto, Petitioner inexplicably seeks a stay of Special

Condition 6(a)(i)(A) in its entirety.

15.

Petitioner appeals one of the record-keeping requirements in Special

Condition 7(d)(ii) on the basis that Midwest Generation lacks the ability to measure the

“magnitude” of PM emissions whenever the affected operation is operated in the absence

of control measures.

See, Petition at page 6.

The same subpart also calls upon Midwest

Generation to maintain records regarding circumstances surrounding the incident itself.

See, Petitioner’s Exhibit 1, page 6.

Despite the outward appearance from the Petition

that nothing objectionable lies with the latter requirements,

Petitioner seeks a stay from

the entire permit condition. As with the previous examples, the language concerning the

broader reporting requirements is not so interwoven or connected with the contested

It is also apparent that Petitioner does not wish to stay the related record-keeping requirements of Special

Condition 7(d)(i), (iii), (iv), (v) and (vi).

ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE APRIL 25, 2006

language as to likewise require a stay; the objectionable part of the permit condition can

easily be segregated from the larger part of the condition.

16.

No good cause can exist for Petitioner to obtain stay relief beyond the

scope of the appeal’s contested language. Because of the unnecessarily broad scope of

stay relief sought in the Petition, the Illinois EPA cannot support Petitioner’s request at

this time.

WHEREFORE,

the Illinois EPA urges the Board to deny Petitioner’s request for

stay or order such other relief as is deemed just and appropriate.

Respectfully submitted by,

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

_____/s/______________

Robb H. Layman

Assistant Counsel

Dated: April 25, 2006

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 APRIL 25, 2006

CERTIFICATE OF SERVICE

I hereby certify that on the 25

day of April 2006, I did send, by electronic mail,

the following instruments entitled

APPEARANCES and RESPONSE IN

OPPOSITION TO PETITIONER’S REQUEST FOR STAY

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, 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 APRIL 25, 2006