BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
THE PREMCOR REFINING
)
GROUP, INC.,
)
)
Petitioner,
)
)
PCB No. 07-030
v.
)
(CAAPP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE
To:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
100 West Randolph Street
Suite 11-500
Chicago, Illinois 60601
Carol Webb
Katherine D. Hodge and Monica T. Rios
Hearing Officer
Hodge Dwyer Zeman
600 S. Second Street
3150 Roland Avenue
Suite 402
P.O. Box 5776
Springfield, Illinois 62704
Springfield, Illinois 62705-5776
PLEASE TAKE NOTICE that I have today electronically filed with the Office of
the Clerk of the Illinois Pollution Control Board the
APPEARANCE
and a
MOTION
TO DISMISS
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,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
______
/s/
_______________________
Robb H. Layman
Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217)524-9137
Dated: November 27, 2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 27, 2006
2
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
THE PREMCOR REFINING
)
GROUP, INC.,
)
)
Petitioner,
)
)
PCB No. 07-030
v.
)
(CAAPP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
APPEARANCE
NOW COMES Robb Layman, as an authorized legal representative, and enters
his appearance on behalf of the Respondent, ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY, in the above-captioned matter.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
______
/s/
_______________________
Robb H. Layman
Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217)524-9137
Dated: November 27, 2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 27, 2006
3
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
THE PREMCOR REFINING
)
GROUP, INC.,
)
)
Petitioner,
)
)
PCB No. 07-030
v.
)
(CAAPP Permit Appeal)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION TO DISMISS
NOW COMES the Respondent, ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY (“Illinois EPA”), by and through its attorney, and, pursuant to 35 Ill. Adm.
Code 101.506, moves the Illinois Pollution Control Board (“Board”) to dismiss the
Petition for Review (hereinafter “Petition”) filed by the Petitioner, THE PREMCOR
REFINING GROUP, INC., (hereinafter “Premcor”), in the above-captioned matter or, in
the alternative, compel the filing of an amended Petition that is consistent with the
pleading requirements set forth in the applicable Board’s regulations.
1.
The Illinois EPA issued a Clean Air Act Permit Program (“CAAPP”)
permit and Title I permit to Premcor on September 19, 2006, authorizing the operation of
a Marine Terminal facility located at 201 East Hawthorne, Hartford, Madison County,
Illinois.
2.
On or about October 24, 2006, Premcor’s attorneys filed a four-page
Petition for Review with the Board challenging the Illinois EPA’s September 14, 2006
CAAPP permitting decision.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 27, 2006
4
3.
The Illinois EPA was served with a copy of the Petition on October 25,
2006.
4.
Petitioner generally contends that the CAAPP permit issued by the Illinois
EPA does not reflect the most “current” applicable requirements or activities related to
the Petitioner’s facility.
See, Petition at page 4.
Petitioner further alleges that the
CAAPP permit contains conditions are seemingly unlawful because they are not
necessary to satisfy the statutory standards for issuance.
Id.
Both of these legal
objections apparently stem from the Illinois EPA’s failure to “make certain changes” to
the CAAPP permit that were requested by Petitioner’s earlier comments and the failure to
incorporate conditions from prior construction permits.
See, Petition at page 3.
Three
exhibits are attached to the Petition that purport to represent the Petitioner’s earlier
comments (i.e., Petitioner’s Exhibits A, B and C). Three exhibits attached to the Petition
identify earlier construction permits (i.e., Petitioner’s Exhibits E, F and G).
5.
In this Motion, the Illinois EPA challenges the sufficiency of the Petition
for the reason that it does not conform to the petition content requirements of the Board’s
Subtitle A regulations and therefore fails to provide adequate specificity to apprise either
the Board or the Illinois EPA of the subject matter of the appeal.
1
6.
Section 105.304(a)(2) of Title 35 of the Board’s procedural regulations
provides that a petition for appeal of a CAAPP permit, including the issuance of a
CAAPP permit with one or more conditions or limitations, must contain a “statement of
the Agency’s decision or part thereof to be reviewed.” 35 Ill. Adm. Code 105.304(a)(2).
Section 105.108 of Title 35 provides the Board with authority to dismiss any petition that
1
The Illinois EPA notes that the Petitioner, by a separate motion, has sought a stay of the effectiveness of
the CAAPP permit in its entirety. In view of the Board’s prior stay rulings in other CAAPP appeals, the
Illinois EPA will not contest Petitioner’s request for stay.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 27, 2006
5
fails to contain the “informational” requirements set forth in the afore-mentioned Section
105.304.
7.
Although the Petitioner generally cites to the Illinois EPA’s final decision
in issuing CAAPP permit, scant details can be drawn from the Petition as to which aspect
or part of the CAAPP permitting decision is to be reviewed. While Petitioner alludes to
“certain” conditions that do not reflect Petitioner’s requested changes or conditions from
prior construction permits, nothing in the Petition identifies any particular condition or
component of the CAAPP permit determination that is now being challenged.
8.
A petitioner seeking an appeal from a permit issuance by the Illinois EPA
should be required to plead, with some degree of specificity, the identity of the
challenged permit conditions. In the absence of such delineation, the Illinois EPA might
potentially never be certain as to which parts of the permit are being challenged on
appeal. In this case, the parts of the Illinois EPA permit decision being raised on appeal
are, at best, only noted indirectly (i.e., incorporated by reference to attached exhibits).
Even then, it is not clear which of the attached comments were satisfactorily addressed in
the Illinois EPA’s permitting decision and which were not. Such a vague and
inconclusive petition filing not only has the effect of complicating the Illinois EPA’s pre-
hearing posture as to the merits of the appeal but may also frustrate settlement
negotiations aimed at resolving the appeal prior to a final Board ruling.
9.
Petitioner might suggest that its attempt to incorporate prior comments, to
the extent that they are submitted as attached exhibits and contain references to specific
permit conditions, should suffice in meeting the petition content requirements of Section
105.304(a)(2). While those comments may identify certain permit conditions, it does not
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 27, 2006
6
resolve the issue of which comments, and thus, which permit conditions, are now being
challenged.
10.
In
Lone Star Industries, Inc., v. Illinois EPA, PCB No. 03-94 (March 6,
2003),
the Board issued an order denying the Illinois EPA’s motion seeking dismissal of
a CAAPP appeal, which, in part, had challenged the petition based on the failure to
articulate the nature or substance of the appeal. Several aspects of that case are arguably
similar here, including the allegations that certain comments by the petitioner were not
addressed by the Illinois EPA’s permitting decision. The one noteworthy distinction,
however, is that the petition in
Lone Star
at least identified the permit conditions by their
specific, numerical reference. The Board found that the petition satisfied the procedural
requirements of Section 105.304(a)(2), as the petition specifically identified those
portions of the permit for which review was sought.
Id. at page 3.
11.
In this instance, the Petition fails to clearly identify those conditions of the
CAAPP permit that are raised on appeal. By failing to pinpoint the relevant permit
conditions that are challenged on appeal, Petitioner has failed to comply with the petition
content requirements of 35 Ill. Adm. Code 105.304(a)(2). Moreover, the crux of the
Board’s ruling in
Lone Star
would suggest that, at a minimum, the Illinois EPA should be
entitled to know which component of its permitting decision is being challenged on
appeal.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 27, 2006
7
WHEREFORE, the Illinois EPA respectfully requests that the Board dismiss
Premcor’s Petition or, in the alternative, compel the filing of an amended Petition that
clearly articulates those permit conditions of the CAAPP permit that are being challenged
in this appeal.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
______
/s/
_______________________
Robb H. Layman
Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217)524-9137
Dated: November 27, 2006
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 27, 2006
8
CERTIFICATE OF SERVICE
I hereby certify that on the 27
th
day of November 2006, I did send, by electronic
mail, the following instruments entitled
APPEARANCE
and
MOTION TO DISMISS
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 instruments, by First Class Mail with
postage thereon fully paid and deposited into the possession of the United States Postal
Service, to:
Carol Webb
Katherine D. Hodge and Monica T. Rios
Hearing Officer
Hodge Dwyer Zeman
600 S. Second Street
3150 Roland Avenue
Suite 402
P.O. Box 5776
Springfield, Illinois 62704
Springfield, Illinois 62705-5776
_____/s/______________
Robb H. Layman
Assistant Counsel
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, NOVEMBER 27, 2006