BEFORE
TIlE
)
(Enforcement
-
Air)
)
)
RECE~VED
CLERK’S OFFICE
PEOPLE OF
THE
STATE OF~
FEB
15
2005
Complainant,
STATE OF
ILLINOIS
Pollution
Control Board
V.
OASIS INDUSTRIES iNC.
)
Respondent.
)
NOTICE OF
FILING
To:
Mr. Zemeheret Bereket-AB
Environmental Bureau
Office ofthe Attorney General
188 West Randolph, 20th Floor
Chicago, IL
60601
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe
Pollution Control Board the original and nine copies ofRespondents ANSWERAND
AFFIRMATIVE DEFENSES
,
a copy ofwhich is hereby served upon you.
Respectfully submitted,
Heidi E. Hanson
Dated
-
February 11,
2005
Heidi E. Hanson
H.
E. Hanson, Esq. P.C.
4721
FranklinAye, Suite 1500
Western Springs, IL 60558-1720
(708) 784-0624
This
filing is
submitted on recycledpaper.
)
PCB
#
05-98
)
)
)
BEFORETHE
BOARD
RECE~VED
CLERK’S
OFFICE
PEOPLE OF
THE
STATE OF
FEB
152005
Complainant,
STATE OF
ILLINOIS
Pollution Control Board
v.
(Enforcement
-
Air)
OASIS INDUSTRIES
INC.
)
)
Respondent.
)
ANSWER AND AFFIRMATIVE DEFENSES
NOW COMES
Oasis
Industries,
Inc.
(“Oasis”) by and
through its attorney, H.
E.
HANSON ESQ. P.C.
and for its
Answer to the Complaint and its Affirmative Defenses
states as follows:
COUNT I
OPERATING A MAJOR SOURCE WITHOUT
A CAAPP PERMIT
1.
Respondent lacks knowledge or information sufficient to admit or deny the
allegations contained in Paragraph 1.
2.
The Illinois Environmental Protection Act speaks for itself;
therefore no answer is
required.
3.
Respondent admits the allegations contained in paragraph 3.
4.
Respondent denies that emission units at the facility include
fiberglass/resin lay-up
stations.
Respondent admits all other allegations ofparagraph 4.
5.
Respondent admits that the emission units in the aggregate, emit or have the
potential to
emit more than 10 tons per year ofvolatile organic material from 1998 to the
present however the emission units at the Facility did not emit or have the potential to
emit more than
10 tons per year ofVOM for calendar year
1997.
The remainder ofthe
paragraph alleges legal conclusions to which no answer is required.
6.
This paragraph alleges legal conclusions to which no answer is required.
7.
Oasis denies that it “did not file a CAAPP permit application until September 22,
1999,
two years after it was required to
do so”.
Oasis admits that a Clean Air Act Permit
Program (“CAAPP”) permit was issued to it, but denies that
it was issued on November
20, 2003.
8.
On informationand belief Oasis admits that the Illinois EPA inspected the Facility
on May 17, 2002.
What the it discovered is better known to the Illinois EPA, so Oasis
can neither admit nor deny allegations relating to Illinois EPA’s discovery.
9.
The Illinois Environmental Protection Act speaks for itself, therefore no
answer is
required.
10.
Respondent admits the allegations contained in paragraph 10.
11.
Respondent admits the allegations contained in paragraph 11.
12.
The Illinois Environmental Protection Act speaks for itself; therefore no
answer is
required.
13.
Respondent denies that “Section
39.5(4)(x)
ofthe Act,
415
ILCS
5/39.5(4)(x)(2002)”
exists in the Iffinois Environmental Protection Act.
14.
The Iffinois Environmental Protection Act speaks for itself; therefore no answer is
required.
15.
Respondent denies that it emitted
15.7 tons per year of Styrene Resin.
It denies
that Styrene Resin is a Hazardous Air Pollutant.
It denies that
it has a potential to emit of
greater than 25
tpy, but it admits that its potential to
emit has exceeded 25 tpy in the past.
Respondent admits that the Facility is located in an area currently classffied severe
nonattainment for ozone.
The remainder ofthis paragraph alleges legal conclusions to
which no answer is required.
With regard to “construction” of the source it should be
noted that the Board’s regulations
contain two different deflnitions of“construction.
Since
no definition is specffied here the ambiguity created renders the relevant segment ofthe
paragraph unanswerable.
16.
Oasis denies that it filed a CAAPP application on September 22,
1999 but admits
that it submitted an update to a CAAPP application on or about September 22,
1999.
The
remainder ofthe paragraph alleges legal conclusions to which no answer is required.
17.
This paragraph 17
alleges legal conclusions to which no
answer is required.
WHEREFORE, Respondent prays that Count I ofthe Complaint be dismissed.
FIRST AFFIRMATIVE DEFENSE TO COUNT I
-
VALID
PERIIVIIT APPLICATION
TRANSFER
1.
Count I ofthe Complaint is premised on the argument that Respondent did not file
a CAAPP application for the Aurora facility until September of 1999.
2
2.
This affirmative defense is being raised to introduce new facts, specifically that an
earlier application which was originally fled for the Batavia facility, was validly transferred
to the Aurora facility sometime in
1997.
Therefore, the fact that Oasis did not file a
CAAPP application for the Aurora facility prior July 31,
1998, to the one
year anniversary
ofthe transfer ofoperations, does not constitute a violation.
3.
Oasis submitted a CAAPP application on or about November 24,
1995
for its
Batavia Facility.
Illinois EPA received, the application and issued a completeness
determination for it.
4.
In July of 1997 Oasis moved its equipment from Batavia to Aurora.
It was Oasis’
understanding, based on correspondence and discussions with the Illinois EPA, that the
Batavia application was being transferred to the Aurora facility.
5.
There are no Illinois rules or regulations prohibiting or limiting the transfer ofa
CAAPP permit application.
6.
Section
39.5(4)
ofthe Illinois Environmental Protection Act (“Act”), 415
ILCS5/39.5(4)(c) provides that
An owner or operator of a CAAPP
source seeking to
make a modification
to
a
source
prior
to
issuance of its
CAAPP
permit
shall be
required to
obtain
a
construction
and/or
operating
permit
as
required
for
such
modification in
accordance with
the
State
permit
program under
Section
39(a) ofthis Act, as amended,
and shall be
considered an amendment to the
CAAPP application submitted for such source.”
7.
On July
17,
1997 Oasis submitted state permit application forms for the Aurora
operation in order to
continue to operate the same equipment, at the
same emission level,
that it had been operated at in Batavia.
On July 25 of 1997 the Illinois EPA issued a state
construction and operating permit for the Aurora location for the equipment that had been
moved from Batavia and on July 30,
1997 the Aurora location began production.
8.
The Illinois EPA continued to act on the CAAPP application in such a way as to
indicate that it had been transferred to the Aurora site, and that the September
25,
1997
permit would be treated as an amendment.
These actions included processing an April
1998 Supplement to the CAAPP application, and issuing a Notice ofERMS status to the
Aurora site on April 21,
1998, which included the statement that the Agency was
proceeding with the development ofa draft permit.
3
9.
The Illinois EPA also issued a second state construction and operating permit to
the Aurora facility on August 31,
1998 more than one month after July 31,
1998, the date
on which the CAAPP application would have been due if it had not been transferred.
The
issuance ofthe 98
state permit on that date would also indicate that the CAAPP
application was in fact, transferred and pending.
10.
It was not uncommon for the Iffinois EPA to take more than the two years allotted
by 415 ILCS 5/39.5(j) to process a CAAPP application.
Pursuant to
5/39.5(h)
Oasis’
failure to have a permit would not be considered a violation until the Illinois EPA took
final agency action,
so the lengthy wait for the issuance ofthe CAAPP permit did not
indicate to Oasis that the Illinois EPA had decided not to recognize the transfer ofthe
permit.
11.
Section
5/39.5(x)
ofthe Act, 415 ILCS
5/39.5(5)(x)
provides that
“the owner or
operator ofa new CAAPP source shall submit its complete CAAPP
application consistent
with this subsection within 12 months after commencing operation.”
12.
Because it had been misled into believing that it had a pending application Oasis
allowed the one year grace period that it would have had pursuant to 415 ILCS
5/39.5(5)(x)
to lapse, thus arguably, subjecting it to enforcement.
13.
In September of 1999 at the Illinois EPA’s request Oasis submitted an updated
application marked “modification”.
The Illinois EPA issued Oasis a CAAPP permit for the
first time in 2003.
14.
The transfer ofthe CAAPP application from Batavia to Aurora was effective as a
matter oflaw and
was evidenced and repeatedly ratified by the Illinois EPA’s
correspondence and permit actions afterthe transfer therefore
Oasis was not operating
without a CAAPP application.
SECOND
AFFIRMATIVE DEFENSE TO COUNT I
-
ESTOPPEL
1.-13.
Respondent realleges and incorporates by reference paragraphs
1-13 ofits First
Affirmative Defense to Count I ofthe Complaint as paragraphs 1-13 ofits
Second
Affirmative Defense to Count I ofthe Complaint.
14.
As an alternative to its First Affirmative defense, in the event the Board should find
the transfer to be not effective, Oasis pleads that Complainant
should be equitably
estopped from pursuing its claim that Oasis
did not submit a permit
application prior to
September 22,
1999.
15.
Oasis reasonablyrelied on the statements and correspondence regarding its
CAAPP application status made by Illinois EPA, the Agency charged with analyzing
permit applications and issuing permits.
4
16.
Such reliance acted to its detriment because it would have been a simple matter to
retype the
1995 CAAPP
application, changing the address to Aurora, and resubmit it prior
to the one year anniversary ofbeginning operations in Aurora.
Balancing the ease of
revising the application against the risk ofenforcement Oasis clearly would have revised
the application had it believed that it had reason to
do so.
Instead it is now facing
enforcement and must incurfees for legal services to remedythis situation.
17.
The Illinois EPA took such repeated, official, affirmative
acts, better described
above, as issuing the
1998 permit, reviewing the ERMs application and issuing the ERMS
letter, all ofwhich indicated to Oasis that its
CAAPP application had been transferred and
was still pending.
18.
Ifthe words and actions described above do
not, as plead in the First Affirmative
Defense, constitute evidence that the permit was transferred, then alternatively, the words
and actions are official and knowing affirmative misrepresentations ofthe CAAPP permit
application status.
19.
The Iffinois EPA must have known or expected that Oasis would continue to act
on the beliefthat its
application was pending and in fact Oasis did
so act, and Oasis will be
prejudiced, in that it will be
subject to enforcement ifthe Complainant
is allowed to deny
the truth ofits misrepresentation.
20.
Furthermore, invoking equitable reliefto restore
Oasis to its proper position will
not in any way defeat the operation ofpublic policy because Oasis’ case is unique, and no
harm befell the environment or the State ofIllinois as a result ofOasis
acting on its
reasonable belief that it had a pending CAAPP permit application.
21.
The trust that Oasis reposed in the Illinois EPA as the agency charged with
handling permits and permit
applicatiOns, together with the repeated indications that the
transferred permit application was pending
and the ease ofsubmitting a new application,
for the same process, constitute exceptional and compeffing circumstances warranting
application of equitable estoppel.
THIRD AFFIRMATIVE DEFENSE TO COUNT I
-
LACI-ES
1 .-20.
Respondent realleges and incorporates by reference paragraphs
1-20 ofits
Second
Affirmative Defense to
Count I ofthe Complaint as paragraphs
1-20 ofits Third
Affirmative Defense to
Count I ofthe Complaint.
21.
As an alternative to its First Affirmative Defense, in the event the Board should
find the transfer to be not effective Oasis pleadsthat Complainant should be barred by the
doctrine oflaches from pursuing its claim.
5
22.
Ifthe
1995
CAAPP application was not transferred then Oasis was misled and
prejudiced by Complainant’s failure to assert its right to a CAAPP application within one
year ofthe date that Oasis began operations on the new site.
23.
Oasis acted with due diligence by continuing to communicate with the Illinois EPA
and responding to each ofthe Agency’s requests for permit forms beginning in Mayof
1997.
24.
As
described above the Illinois EPA had, in various contacts with Oasis, after
operations were moved from Batavia to Aurora, indicated that the CAAPP application
was transferred and still pending.
Oasis had no way ofdetermining otherwise.
The
Complainant failed to act with due diligence in that it took no steps to remedy its apparent
misrepresentation prior to issuing a Violation Notice.
24.
Ifthe permit application was not transferred, the Illinois EPA delayed in asserting
its “right” to
a new permit application, it misled
Oasis into believing that its permit
application had been transferred, and prejudiced Oasis by inducing it not to file another
permit application thereby subjecting it to enforcement.
FOURTH AFFIRMATIVE DEFENSE TO COUNT I
-
WAIVER
1.-20.
Respondent realleges and incorporates by reference paragraphs
1-20 ofits Second
Affirmative Defense to Count I ofthe Complaint as paragraphs 1-20 ofits Fourth
Affirmative Defense to Count I ofthe
Complaint.
21.
As an alternative to its First Affirmative Defense,
in the event the Board should
find the transfer to be not effective, Oasis pleads that Complainant
should be barred from
pursuing its claim because its
conduct warrants an inference that it has knowingly and
intentionally waived the right to do
so.
22.
The Illinois EPA has, by its
actions described above, given repeated assurances to
Oasis that its
1995
CAAPP application was transferred and pending, therefore
Complainant has waived the “right” to now claimthat the transfer did not occur, as well as
the
“right” to pursue enforcement against Oasis for failure to have timely fled a permit
application.
COUNT II
CONSTRUCTION OF A MAJOR SOURCE IN VIOLATION OF NEW SOURCE
REVIEW
1-6.
Respondent realleges and incorporates by reference its answer to Paragraphs
1
through
5
and Paragraph 15 ofCount I herein as its
answer to Paragraphs
1 through 6 of
this Count II.
6
7.
The Illinois Environmental Protection Act speaks for itselftherefore no answer to
this allegation is required.
8.
The Illinois Environmental Protection Act speaks for itselftherefore no answer to
this allegation is required.
9.
Respondent admits the allegation contained in paragraph 9.
10.
The Illinois Pollution Control Board Rules
speak for themselves therefore no
answer to this allegation is required.
However Respondent notes that paragraph 10 fails
to accurately quote 35
III. Adm.
Code 203.20 1.
11.
Respondent denies that in
1997 its Facility was a major stationary source, but
admits that
it was located in an area designated as severe nonattainment for ozone.
The
Board’s regulations contain two different definitions of“construction”.
Since no definition
is specified here, the ambiguity created renders the allegation in the first sentence
unanswerable as it relates to construction.
Respondent admits that it modified the source
in
1998.
12.
Respondent admits that on July
25,
1997 the Illinois EPA issued Oasis joint
construction and operating permit #97070058
which established a yearly limit ofVOM
emissions.
Respondent denies that the limit was
15.75.
13.
Respondent admits the allegations contained in paragraph
13.
14.
Respondent admits that on January 6, and March
15,
2003, it submitted data to the
Illinois EPA.
Respondent lacks knowledge sufficient to form a belief and as a result can
neither admit nor deny that such data documented emissions for calendar years
1999, 2000
and 2001
because USEPA repudiated and withdrew the applicable
emissions factor and no
other, sanctioned, emission factor was offered to replace
it, therefore there was no
approved way to calculate Oasis’ emissions.
However Respondent admits that the
emissions
were calculated using the method that was given in its permit and that had
been
initially approved but later repudiated.
Respondent denies that such data documented
total VOMtons per year emissions for calendar year 2002 because on January 6, 2003
Oasis had not completed calculations for the year 2002 and submitted only partial data
clearly marked as such.
15.
Oasis admits that the data submitted to the Illinois EPA showed the listed numbers
ofVOM for years
1999, 2000, and 2001, but lacks knowledge sufficient to form a belief
and so can neither admit nor deny that they “show” emissions, in the absence ofan
approved method ofcalculating emissions.
Oasis denies that the data submitted showed
34.13
(T/Yr) as the total VOM emissions for 2002.
7
16.
.
Respondent denies that the “above datesic
shows that Oasis emitted VOM in
excess ofthe permitted levels” for years
1999, 2000 and 2001.
Adding the permitted
levels alleged in paragraphs 12 and
13 ofCount II yields a total of24.55
(T/Yr) VOM
which is greater than the total emissions shown for years
1999, 2000 and 2001
in
paragraph
15.
With regard to the data shown for 2002,
in paragraph
15,
Respondent
admits that the number is greater than 24.55 but denies that the number shows the total
emission ofVOM for the year.
The remainder ofthe paragraph alleges a legal conclusion
to which no answer is required.
17.
This paragraph 17 alleges legal conclusions to which no answer is required.
WHEREFORE, Respondent prays that Count II ofthe Complaint be
dismissed.
COUNT III
FAILURE TO MEET WITH
SICI
THE LOWEST ACHIEVABLE
EMISSION
RATE (LAER)
REQUIREMENTS
1-6.
Respondent realleges and incorporates by reference its answer to Paragraphs
1
through
5
and Paragraph 15 ofCount I herein as its
answer to Paragraphs
1
through 6 of
this
Count III.
7.
The Illinois Pollution ControlBoard Rules
speak forthemselves therefore no
answer to this
allegation is required.
8.
The Illinois Pollution Control Board Rules
speak for themselves therefore no
answer to this
allegation is required.
9.
Oasis admits that it operates in an area currently designated as severe
nonattainment for ozone.
10.
The Board’s regulations contain two different
definitions of“construction”.
Since
no definition is specified here the ambiguity created renders this part ofthe allegation
unanswerable.
Oasis admits that it obtained construction permits with monthly and annual
emission limits.
It
denies that the total ofthe limits was set at a level below that required
for “major sources for purposes ofnew source review” in the period between August
31,
1998 and November 26, 2003, but admits that they were set at a level below that required
for “major sources for purposes ofnew source review” before and after that period.
11.
Oasis admits that it emitted VOM in excess ofthe permitted levels.
Oasis lacks
sufficient knowledge to form a belief and so can neither admit nor deny at
this time that it
produced the lowest achievable emissionrate.
Oasis admits that it has not provided
emissionoffsets as required by
35 Ill Adm.
Code 203.302(a)(1)(D).
The remainder ofthe
paragraph alleges legal conclusions to which no answer is required.
8
12.
This paragraph alleges legal conclusions to which no answer is required.
WHEREFORE, Respondent prays that Count III ofthe Complaint be dismissed.
COUNT IV
FAILURE TO TIMELY SUBMIT AN EMISSION REDUCTION MARKET
SYSTEM
(ERMS) APPLICATION
1-6.
Respondent realleges and incorporates by reference its
answer to Paragraphs
1
through
5
and Paragraph
15 ofCount I herein as its answer to Paragraphs
1 through 6 of
this Count
IV.
7.
The Iffinois Environmental Protection Act speaks for itself; therefore no answer is
required.
8.
The Illinois Pollution Control Board Rules speak for themselves therefore
no
answer to this allegation is required.
However, Respondent notes that Complainant has
failed to fully and accurately quote 35 Ill Adm.
Code Section 205.130 in material part.
9.
The Illinois Pollution Control Board Rules speak for themselves therefore no
answer to this allegation is required.
10.
Oasis admits that it was operating prior to May
1,
1999.
Oasis admits that it is
located in the “Chicago ozone nonattainment area” as that term is defined in Board Air
Pollution Regulation 35
Ill Adm.
Code 205.130.
Oasis admits that it has in the past been
“required to obtain a CAAPP permit” but denies any implication that it does not currently
have a CAAPP permit.
Oasis is without sufficient knowledge to form a belief and
so can
neither admit nor deny that it
is a participating
source or that it “has a baseline emission of
at least
10 tons in any sôasonal allotment period beginning in 1999”, because pursuant to
35 III Adm Code 205.320 “baseline emissions shall be determined by the
Illinois
Environmental Protection
Agency” and that Agency has not yet informed Oasis ofany
such determination.
11.
Oasis lacks sufficient information to form a belief and so can neither admit nor
deny that its
seasonal emissions exceeded
10 tons per season beginning in 2001, because
USEPA had repudiated the
applicable emission factor that was reflected in Oasis permit,
therefore
in the relevant time period there was no acceptable method ofdetermining
emissions from Oasis’ process.
Oasis provided the Illinois EPA with a number of
estimates for 2001
tons per season ranging from
10.45 for the repudiated factor, to
8.44
based on numbers Oasis received from the resin manufacturer.
The term “beginning in at
least” is unclear as to whether it refers to other years before or after 2001
and so to that
extent the paragraph is incapable ofbeing answered.
9
12.
This paragraph alleges legal conclusions to which no
answer is required.
13.
Oasis admits that it submitted its
ERIVIs baseline application on January 14, 2003.
The remainder ofthe allegation alleges a legal conclusionto which no
answer is required.
14.
This paragraph alleges legal conclusions to which no answer is required.
WHEREFORE, Respondent prays that Count IV ofthe Complaint be
dismissed.
COUNT
V
EXCEEDING PERMIT LIMITS
1-6.
Respondent realleges and incorporates by reference its answer to Paragraphs
1
through
5
and Paragraph 15 ofCount I herein as its answer to Paragraphs
1 through 6 of
this Count V.
7.
The Illinois Environmental Protection Act speaks for itself; therefore no answer is
required.
8.
Respondent admits the allegations contained in paragraph 8.
9.
Respondent denies that paragraph 9 ofthe Complaint accurately quotes the
emission limits for VOM tons per month final coat resin.
10.
With regard to the total annual emissions Respondent denies that its
Total tons per
year VOM emissions exceeded its permit prior to 2001.
The remainder ofthe allegation is
incapable ofbeing answered because it is not clear whether it refers to the annual and
monthly limits for the booths individually or collectively.
11.
This paragraph ii
alleges legal conclusions to which no answer is required.
WHEREFORE, Respondent prays that Count V ofthe Complaint be dismissed.
COUNT VI
FAILURE TO FILE ACCURATE AND COMPLETE ANNUAL
EMISSION
REPORTS
1-6.
Respondent realleges and incorporates by reference its answer to Paragraphs
1
through
5
and Paragraph
15 of Count I herein as its answer to Paragraphs
1 through 6 of
this
Count VI.
7.
The Illinois Pollution Control Board Rules speak for themselves therefore no
answer to this allegation is required.
10
8.
Respondent denies that 35 Ill Admin. Code 254.132(a) is a Board rule.
9.
This allegation is not capable ofbeing answered because the term “correctly” is
undefined and ambiguous given that the emission factor that was reflected in Oasis
1997
permit, and used to prepare the Annual EmissionReports in
1999, 2000 and 2001, was
repudiated by the USEPA after it was written into the
1997 permit and no replacement
emission factor was developed in the relevant time period.
Therefore it is unclear whether
the permit emission factor would be
consideredthe “correct” factor for purposes of
answering this allegation.
10.
Respondent denies this allegation.
11.
Respondent admits that it has not ified corrected AERs for calendar years
1999
through 2001.
12.
This paragraph 12 alleges legal conclusions to which no answer is required.
WHEREFORE, Respondent prays that Count VI ofthe Complaint be dismissed.
AFFIRMATIVE DEFENSE TO COUNT VI
1.
Rule 35 Ill Adm.
Code Part 254 was not adopted by the Illinois Pollution Control
Board.
2.
Rule 35 Ill. Adm. Code 254.132(a) is an Illinois EPA rule.
3.
Complainant asks the Board to find a violation of 35 III Adm. Code 243.132(a),
however noncompliance
with an Iffinois EPArule does not constitute an enforceable
violation under the Illinois Environmental Protection Act, therefore the Board has no
authority to
find a violation ofthat Illinois EPA rule.
4.
Furthermore the Illinois Environmental Protection Act does not authorize penalties
for “violations” ofIllinois EPA rules.
FIRST GENERAL AFFIRMATIVE DEFENSE TO COUNTS II THROUGH VI OF
THE COMPLAINT
EMISSION FACTOR ISSUE
-
LACHES
1.
Every violation in the Counts II through VI ofthe Complaint is predicated on
allegations regarding the amount ofVOM emissions at Oasis’ Aurora facility.
2.
Counts II and III are premised on Oasis emitting VOM in an amount
in excess ofa
level that would trigger new source review.
Count IV is premised on Oasis having
exceeded season emission of 10 tons in the ozone seasOn.
Count V alleges emissions
11
exceeding permit emission limits.
Count VI alleges that the VOM emission numbers
submitted for Oasis’
annual emission reports were not “correct”.
3.
As a result ofUSEPA’s repudiation ofthe emission factor listed in Oasis’ permit
and Illinois EPA’s failure to (until the issuance ofthe CAAPP permit in 2003) revise the
permit or otherwise specif~,r
how to calculate emissions, there was no
“correct” wayto
calculate çmissions forregulatory purposes.
4.
The permit that Illinois EPA issued to
Oasis in
1997 stated that emissions shall be
“calculated based upon ...the emission factors
(VOM
Loss) provided in Condition 2.”
Condition 2 ofthe permit does not provide any emission factors, however Condition
1
lists an emissions factor (13)
and states that it was obtained from USEPA publication
AP-42 (Table 4.12-2).
5.
On March 18,
1998, USEPA repudiated and withdrew those AP-42 emission
factors that applied to Oasis; the emissionfactors for open molding ofcomposites.
USEPA’s website (http://www.epa.gov/ttn/cheillap42/chO4/related/c04s04.html (1/4/03)~
states that “at this time there is no
‘AP-42 factor’ or estimation method forthis category.”
6.
On March 23, 2000,
the Illinois EPA sent a letter to Oasis with a copy ofthe
USEPA announcement ofthe emission factor withdrawal and a request for comments on
three alternative means ofcomputing emissions.
The Illinois
EPA’s letter cautioned Oasis
that” these
new
values should not be used directly to calculate emissions.”
The letter
also stated, quoting with approval from the USEPA website, that “users must
evaluate
their own application to determine the most appropriate method ofestimating emissions.”
7.
Thus,
Oasis’
1997 permit which remained in effect until 2003, required it to report
its
emissions on the basis ofnonexistent emission factors and Illinois EPA gave Oasis no
guidance regarding how it was to determine emissions.
8.
The repudiation by USEPA ofthe AP-42 emissions factors raised an industry-wide
question regarding howto calculate emissions.
In response to that information void,
the
Composites Fabricators Association drafted several different versions ofemissions factors
(the Unified Emissions Factors or UEFs) however, no UEF was developed for the
aqueous benzyol peroxide catalyst that Oasis was using.
9.
Initially the repudiation ofthe AP-42
factor was not a cause for concern because
Oasis’ emissions were so much lower than either AP-42 or the UEFs.
However Oasis
recognized the need to definitively determine its emissions for regulatory purposes so it
voluntarily initiated testing at Purdue University’s CARL laboratory in order to determine
a process specific emission factor.
10.
Some initial testing was done in November of2000
for Eastman Chemical, the
producer ofthe aqueous BPO catalyst,
at Purdue’s CARL
lab.
The testing was flawed but
still yielded some preliminary data.
Based on that Oasis concluded that 9
VOM loss was
12
a reasonable, conservative,
estimate ofemission losses and used it the calculations that
were provided as Attachment #2 to the January 6, 2003 letter.
That letter cautioned that
the numbers were only estimates and were being provided for information purposes only.
11.
The manufacturer ofthe aqueous BPO catalyst stated that based on extrapolation
from previous tests it believes that its catalyst as used in Oasis’ process could result in
emissions of”7
or less” ofstyrene.
Oasis also provided an estimate ofOasis’ 2001
and
2002 emissions using the 7
figure.
12
In2001,
for example,
Oasis provided at the Illinois EPA’s request, four different
sets ofemission calculations using each ofthe four alternative means ofcalculating
emissions
(AP-42, 9,
7,
and the process specific emission factor).
AP-42 had been
repudiated, but none ofthe other methods had been formally approved.
13.
For purposes ofdetermining ERMs seasonal emissions, the method ofdetermining
emissions is supposed to be established in the permit, pursuant to 35 Ill Adm.
Code
205.330.’ In Oasis’ case it was established but later withdrawn with no replacement
offered.
Therefore for the remaining life ofthe
1997 permit Oasis had no formal direction
on how to calculate its VOM emissions.
14.
For purposes ofthe annual emissions report, 35 Ill Adm.
Code 254.107 (as
effective from May 14,
1993 to
July
16, 2001, and 35 Ill Adm.
Code 254.103
effective
7/17/0 1) the emission determination method is to be “the method generally accepted or
used by those persons engaged n the field ofairpollution control.”
At the relevant time
there was no
generally accepted factor although efforts were being made to
develop the
UEFs.
15.
For purposes ofthe remaining counts,
the determination ofemissions is controlled
by 35
Ill Adm Code 201,.l22 which provides for the use ofstandard emissions factors or
other factors generally accepted as true by persons in the field.
Again, there was no
standard emission factor or generally accepted factor during the relevant time period.
16.
Not having a state approved method to calculate its VOM emissions has
prejudiced Oasis in that it is impossible to satisf~r
the state’s demand for a “correct” annual
emissions report.
It also
cannot determine when or whether, it has exceeded key
thresholds.
In addition it has been placed in a position where it must
guess at which
emission level it may operate.
17.
The Illinois EPA did not act with due diligence in remedying this problem until the
Oasis CAAPP permit was issued in 2003.
Oasis however, was diligent in providing
calculations ofVOM emissions using a variety ofmethods, to the Illinois EPA at the
Illinois EPA’s request.
‘
18
By its lack ofdue
diligence in failing to choose a method for Oasis to use in
determining its emissions the Illinois EPAprejudiced Oasis by forcing to act in a
13
regulatory vacuum in which it could not determine whether programs were applicable to
it, or how much product it could make without exceeding its permit, or how to report its
emissions.
As a result Complainant should hot be allowed to pursue its claims against
Oasis to the extent they turn on the need to know, report, or act on, its VOM emissions
levels.
SECOND GENERAL AFFIRMATIVE DEFENSE TO COUNTS II THROUGH VI OF
THE COMPLAINT
EMISSION FACTOR ISSUE
-
WAIVER
1.-17.
Respondent realleges and incorporates by reference paragraphs 1-11 ofits
First
General Affirmative Defense to Count II through VI ofthe Complaint as paragraphs
1-11
ofits Second General Affirmative Defense to Count II through VI ofthe
Complaint.
18.
Since there was no Illinois EPA approved “correct” way to determine emissions,
and the Illinois EPA was fully aware ofthat situationand the position into which Oasis
was placed, the Complainant has as a matter ofgeneral equity knowingly and intentionally
waived its right to pursue its
claims against Oasis, to the extent those claims turn on the
need to know, report, or act on, specific VOM emissions numbers.
Respectfully submitted.
on behalfofOasis Industries, Inc.
Dated:
February 11, 2005
Heidi E. Hanson
H. E.
Hanson, Esq. P.C.
4721 Franklin Aye, Suite 1500
Western Springs, IL 60558-1720
(708) 784-0624
14
RECE~VED
CLERK’S OFFICE
CERIFICATE OF SERVICE
FEB
15
2005
I, the
undersigned, certif~r
that i
.
~~OEl~IN~Sd
AFFIRMATIVE DEFENSES,
ii,
upon
the
following
persons:
originaland nine copies
to:
Clerk, Illinois Pollution Control Board
100
W. Randolph
Street
James R.
Thompson Center, Suite
11-500
Chicago,
Illinois
60601-3218
one copy
each
to:
Mr. Brad
Halloran
Hearing
Officer
Illinois
Pollution Control Board
James R.
Thompson Center Center
100
W.
Randolph Street, Suite 11-500
Chicago, Illinois
60601-3218
Mr. Zemeheret
Bereket-AB
Environmental Bureau
Office
ofthe
Attorney
General
188 WestRandolph, 20thFloor
Chicago,
IL
60601
Dated: February
11,2005
Heidi E.
Hanson
H. E.
Hanson, Esq.
P.C.
4721
FranidinAve, Suite
1500
Western Springs, IL 60558-1720
(708) 784-0624
This filing is submitted
on recycled
paper.
RECE~V~D
H.
E. HANSON, ESQ. P.C.
CLERK’S OFFICE
i~)
E.il
(L
j24~ra~Ln
Ave
Suite
1500
FEB
152005
LJ~
h~
L~
~
STATE OF IWNOIS
U
Ii \\
LI
L
Ii
\JTL~Iei~~7o8)
Th4-0824
pollution Control k3oard
Fax
(708) 784-0827
February
10,2005
Clerk, Illinois
PollutionControl Board
100 W. Randolph Street
James R.
Thompson Center,
Suite 11-500
Chicago, Illinois
60601-3218
RE:
People v. Oasis Industries, Inc.~.05-98
Dear
Clerk:
I have
enclosed an extra copy ofthe Respondent’s
ANSWER AN)
AFFIRMATIVE
DEFENSES.
Please date-stamp and return
it to me in the enclosed
self-
addressed stamped
envelope.
Thank
ou.
Heidi E.
Hanson
End.
