ILLINOIS POLLUTION CONTROL BOARD

PROCEDURAL BACKGROUND
CONCLUSION

January 26, 2007

THE PREMCOR REFINING GROUP INC.,

Petitioner,

ILLINOIS ENVIRONMENTAL

(CAAPP Permit Appeal – Air)

ORDER OF THE BOARD (by T.E. Johnson):

This matter is before the Board today on a number of pleadings filed by the parties. On

October 24, 2006, the Premcor Refining Group Inc. (Premcor) timely filed a petition asking the

Board to review a September 19, 2006 determination of the Illinois Environmental Protection

Agency (Agency) to issue a Clean Air Act Permit Program (CAAPP) permit (415 ILCS 5/40.2(a)

(2004)); 35 Ill. Adm. Code 105.302(e). The CAAPP permit application concerns Premcor’s

petroleum bulk storage and loading terminal at 201 East Hawthorne, Hartford, Madison County.

Premcor filed a motion to stay the effectiveness of the CAAPP permit concurrently with the

petition. The Board accepted the petition for review on November 16, 2006, but reserved ruling

on Premcor’s motion to stay.

PROCEDURAL BACKGROUND

On November 27, 2006, the Agency filed a motion to dismiss the petition for review. On

November 28, 2006, the Board hearing officer issued an order noting that the Agency does not

object to Premcor’s motion to stay the effectiveness of the CAAPP permit. The Agency filed the

record, accompanied by a motion for leave to file

instanter

, on December 7, 2006. On

December 12, 2006, Premcor filed a motion for extension of time to respond to the Agency’s

motion, and an open waiver of the statutory 120-day decision deadline. The Board hearing

officer granted the motion for extension of time on December 18, 2006.

On December 22, 2006, Premcor filed an amended petition, accompanied by a motion for

leave to file. On January 9, 2007, the Agency filed a response to the motion for leave to file the

amended petition for review.

In its motion to dismiss, the Agency asserts that the petition did not sufficiently identify

the challenged permit conditions. Mot. at 5. The Agency sought dismissal of the petition or, as

alternative relief, that an amended petition that identified the specific permit conditions

challenged on appeal be filed. Mot. at 6.

To address the motion to dismiss, Premcor filed the aforementioned motion for extension

of time, the amended petition, and a motion for leave to file the amended petition. In the motion

for leave to file the amended appeal, Premcor asserts that it has consulted with the Agency

regarding the concerns as described in the motion, and based on those discussions, it is

Premcor’s understanding that filing an amended petition reiterating in detail the comments listed

in Premcor’s exhibits to the original petition will resolve the Agency’s concerns. Mot. for Leave

at 2. Premcor notes that while it does not concur with the Agency’s position that the original

petition is inadequate, Premcor is seeking leave to file the amended petition in order to address

the Agency’s concerns.

Id.

Premcor asserts that the amended petition would not change the

bases of the appeal, but rather restates those bases in a form more acceptable to the Agency.

Id.

In its response to the motion for leave to file the amended petition, the Agency asserts

that it does not object to Premcor’s motion for leave to file, but that it expects to exercise its right

to object to the sufficiency of the amended petition, as authorized pursuant to 35 Ill. Adm. Code

101.506, following the Board’s final action on the motion for leave to file the amended petition

for review. Resp. at 3.

DISCUSSION

Initially, the Board grants the Agency’s motion for leave to file the administrative record

instanter

, and accepts the administrative record. As noted earlier, the Agency does not object to

Premcor’s motion for leave to file an amended petition, and the Board grants Premcor’s motion.

The Agency’s motion to dismiss is thereby rendered moot, and will not be ruled upon.

In the amended petition, Premcor alleges that the Agency failed to make certain changes

to the CAAPP permit, as requested by Premcor, and failed to appropriately incorporate

provisions from construction permits, ultimately resulting in duplicative and inconsistent

requirements. Am. Pet. at 3. Premcor specifically lists concerns raised by Premcor prior to the

issuance of the final CAAPP permit, but not incorporated by the Agency into the final CAAPP

permit. Am. Pet. at 4-13. Premcor also lists additional comments for consideration by the

Agency. Am. Pet. at 13-17.

Section 40.2(a) of the Illinois Environmental Protection Act (Act) (415 ILCS 5/40.2(a)

(2004)) allows several persons to appeal Agency CAAPP permit determinations: permit

applicants; persons who participated in the Agency’s public comment process under Section

39.5(8) of the Act (415 ILCS 5/39.5(8) (2004)); and persons who could obtain judicial review

under Section 41(a) of the Act (415 ILCS 5/41(a) (2004)). 415 ILCS 5/40.2(a) (2004);

see also

35 Ill. Adm. Code 105.302(c). Premcor is the CAAPP permit applicant. Premcor appeals on the

grounds that the CAAPP permit does not reflect the current applicable requirements or the

current operations of the facility, and thus is not consistent with the Clean Air Act and

regulations promulgated thereunder. Am. Pet. at 4, 17. Further, Premcor appeals because certain

conditions as discussed in the amended petition are not required to accomplish the purposes and

provisions of the Act and to assure compliance with applicable requirements. Am. Pet. at 17.

The Board accepts the amended petition for hearing. Premcor has the burden of proof.

415 ILCS 5/40.2(a) (2004);

see also

35 Ill. Adm. Code 105.112(a). Hearings will be scheduled

and completed in a timely manner, consistent with the decision deadline (

see

415 ILCS 5/40.2(c)

(2004)), which only Premcor may extend by waiver (

see

35 Ill. Adm. Code 101.308). If the

Board fails to take final action by the decision deadline, “the permit shall not be deemed issued;

rather, the petitioner shall be entitled to an Appellate Court order pursuant to Section 41(d) of

this Act [415 ILCS 5/41(d) (2004)].” 415 ILCS 5/40.2(c) (2004). As noted above, Premcor has

filed an open waiver of the decision deadline.

The Agency has already filed the record of its determination. In addition, the Board

notes that the Agency will have the ability to object to the sufficiency of the amended petition as

authorized under the Board’s procedural rules.

As stated, Premcor filed a motion to stay the effectiveness of the CAAPP permit

concurrently with the original petition. Although the amended petition does not contain a similar

motion, the initial motion is still pending.

In Nielsen & Bainbridge v. IEPA, PCB 03-98 (Feb. 6, 2003), the Board found that

motions to stay must be accompanied by sufficient information detailing why a stay is needed.

In the motion to stay, Premcor asserts that a stay of effectiveness of the CAAPP permit is needed

to prevent irreparable harm to Premcor and to protect Premcor’s certain and clearly ascertainable

right to appeal permit conditions. Mot. to Stay at 1. Premcor contends that the Agency, the

public, and the environment will not be harmed if a stay is granted. Mot. to Stay at 2. As noted

above, the Agency does not object to the motion to stay. The Board grants Premcor’s motion to

stay effectiveness of CAAPP permit until the Board’s final action in this matter or until the

Board orders otherwise.

CONCLUSION

The Board grants Premcor’s motion for leave to file an amended petition, and accepts the

amended petition for review. The Agency’s motion to dismiss is moot, and not considered by

the Board. The Board also grants Premcor’s motion to stay the effectiveness of the CAAPP

permit. Further, the Board grants the Agency’s motion for leave to file the administrative record

instanter

, and accepts the administrative record.

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on January 26, 2007, by a vote of 4-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board