~CEiLVED
~‘f~OF~E
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
DEC 2 2 2003
OF TEE STATE OF ILLINOIS
STAlE OF ILLINOIS
Pollution Control Bo~rd
PCB No. 2001-46
(Permit Appeal
—
Air, Third Party)
GEORGIA-PACIFIC TISSUE, LLC
V.
Petitioner,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
Respondent.
)
)
)
)
)
)
)
)
)
)
NOTICE
TO:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph Street, Suite 11-500
Chicago, Illinois 60601
Mr. Michael S. McCauley
Ms. Monica M. Tynan
Quarles & Brady LLP
411 E. Wisconsin Avenue
Milwaukee, Wisconsin
53202-5525
PCB No. 2001-51
(Permit Appeal
—
Air)
(Consolidated)
Mr. Bradley Halloran,
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph Street, Suite 11-500
Chicago, Illinois 60601
Mr. James T. Harrington
McGuire Woods Ross & Hardies
150 N. Michigan Avenue
Suite 2500
Chicago, Illinois
60601-7567
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Pollution
XCTC LIMITED PARTNERSHIP,
)
)
Petitioner,
)
)
v.
)
)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
Control Board the APPEARANCE, MOTION TO DISMISS AND MOTION FOR LEAVE
TO FILE INSTANTER ofthe Illinois Environmental Protection Agency, a copy ofwhich is
herewith served upon you.
By:
~ 47 ~-
Robb H. Layman
Special Assistant Attorney General
ARDC
#6205498
Date: December 17, 2003
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Telephone:
217/782-5544
Facsimile: 217/782-9807
THIS FILING IS SUBMITTED ON RECYCLED PAPER
RECEIVED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOA1~
C 2 22003
OF THE STATE OF ILLINOIS
STATE OF ILLINOIS.
XCTC LIMITED PARTNERSHIP,
)
Pollution
Control Board
)
Petitioner,
)
)
PCB No. 2001-46
v.
)
(Permit Appeal
—
Air, Third Party)
)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
GEORGIA-PACIFIC TISSUE, LLC
)
)
Petitioner,
)
-
)
PCBNo.2001-51
v.
)
(Permit Appeal
—
Air)
)
(Consolidated)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY
)
)
Respondent.
)
APPEARANCE
I hereby file my Appearance in this proceeding on behalf ofthe Illinois Environmental
Protection Agency.
By:
Robb H. Layman
~6~
Special Assistant Attorney General
ARDC
#6205498
DATED: December 17, 2003
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Telephone: 217/782-5544
Facsimile: 217/782-9807
THIS FILING IS SUBMITTED ON RECYCLED PAPER
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOAJ~J~
OF THE STATE OF ILLINOIS
UrC
2 22003
STATE OF ILLINOIS
XCTC LIMITED PARTNERSHIP,
)
Pollution Control Board
Petitioner,
)
)
PCB No. 2001-46
v.
)
(Permit Appeal
—
Air, Third Party)
)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
GEORGIA-PACIFIC TISSUE, LLC
)
)
Petitioner,
)
-
)
PCBNo.2001-51
v.
)
(Permit Appeal
—
Air)
)
(Consolidated)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY
)
)
MOTION TO DISMISS
NOW COMES the Respondent, ILLiNOIS ENVIRONMENTAL PROTECTION
AGENCY (“Illinois EPA”), by and through its attorneys, and moves the ILLINOIS
POLLUTION CONTROL BOARD (“Board”) to dismiss the Petitioner’s, GEORGIA-
PACIFIC TISSUE, LLC, (“Georgia-Pacific”), Amended Permit Appeal relating to the Clean
Air Act Permit Program (“CAAPP”) permit decisionby the Illinois EPA in the above-
captioned matter. In support thereof, the Illinois EPA states as follows:
1.
The Illinois EPA issued a CAAPP permit to Georgia-Pacific on August 4, 2000,
for the operation ofa tissue manufacturing facility located at 13101 South Pulaski Road, Alsip,
Cook County, Illinois.
2.
XCTC LIMITED PARTNERSHIP (“XCTC”) filed a third-party petition for
appeal ofthe CAAPP permit with the Board on September 1, 2000, and the Board accepted the
petition for hearing in an order dated September 7, 2000.
3.
Georgia Pacific filed a petition seeking review ofthe CAAPP permit with the
Board on September 8, 2000. The Board accepted the petition for hearing and consolidated the
separate appeals into the above-referenced proceeding on September 21, 2000.
4.
The permit appeal has been pending with the Board since the date of its initial
filing, at the request ofthe parties, so as to allow foron-going settlement discussions
concerning compliance, permitting and related enforcement issues.
5.
Georgia-Pacific recently filed a petition before the Board entitled “Amended
Permit Appeal from Title V
—
Clean Air Act Permit Program Permit, Application No.
95090118, I.D.No. O31003ADF, Date Issued: August 4, 2000.” The Board received the
petition on November 24, 2003, and the Illinois EPA received a copy ofthe petition on or
-
about that same date. The Illinois EPA notes that Georgia-Pacific does not appear to have
sought leave from the Board for the filing ofits petition.
6.
Georgia-Pacific’s Amended Permit Appeal seeks to incorporate a CAAPP
permit provision concerning Subpart G ofthe Board’s Subtitle B air pollution regulations into
-
this appeal proceeding. The relevant provision is contained at Permit Condition 7.1.3(c),
which has its origins from the organic material usage requirements of 35 Ill. Adm. Code
218.301. Commonly known as the “8 pounds per hour” rule, the permit condition simply
recites the Board’s regulatory language requiring that “no person shall cause or allow the
discharge ofmore than 3.6 kg/hr (8 lbs/br) of organic material into the atmosphere from any
emission unit.”
7.
The Illinois EPA does not dispute that Subpart G has become a topic of
settlement discussions between the parties over the course ofthe last several months. Even so,
the newfound relevance ofthis regulation to settlement discussions does not create a
jurisdictional nexus by which Georgia-Pacific can obtain Board review for its Amended Permit
Appeal.
8.
The Board’s past rulings certainlydo not support Georgia-Pacific’s attempt to
amend its earlier appeal in order to challenge yet another component ofthe Illinois EPA’s
permitting decision. The Board has occasionallyallowed appellants the opportunity to amend
their initial petitions to cure certain defects revealed at the time of the original filing.
See,
Randall Industries v. Illinois EPA,
PCB No. 03-219 (September 18, 2003); St.
Clair Properties
Development, Inc., v. Illinois EPA,
PCB No. 98-72 (November 20, 1997);
THFBelleville
Development, L.P., v. Illinois EPA,
PCB No. 96-99 (November 16, 1995). The narrow reaches
ofthose Board decisions, however, should not be construed to apply here, especially where the
petition comes three years after the initial filing and the new matter involves a wholly unrelated
permit condition.
-
9.
The Illinois EPA acknowledges that the CAAPP-related provisions ofthe Act
may eventually give rise to the Board’s consideration ofother post-appeal period petitions.
Section 40.2(a) of the Act, 415 ILCS 5/40.2(a)(2002), provides, in pertinent part:
***
Notwithstanding the preceding requirements, petitions for a hearing before the Board
under this subsection maybe filed after the 35-day period, only if such petitions are
based solely on grounds arising after the 35-day period expires. Such petitions shall be
filedwithin 35 days after the new grounds forreview arise.
*
*
*.
The Board’s regulations are consistent with the statute’s requirements. See, 35 Ill. Adm. Code
105.302(e).
10.
Even assuming that a “petition” is defined so as to enable a petitioner to raise
additional points ofcontention about a disputed permit’s terms several months or years after
the timely filing ofan initial appeal, Georgia-Pacific cannot, in this instance, bring itself into
the statute’s fold for several reasons.
11.
First, Georgia-Pacific has not alleged any grounds for seeking review ofthe
challengedpermit condition. Secondly, Georgia-Pacific has not pled facts sufficient to
demonstrate that any such grounds arose within the 35 day period occurring immediately prior
to its filing ofthe Amended Permit Appeal. Moreover, Georgia-Pacific has not substantiated
whether such grounds derive from a controversy that is drawn from the permit itself or, rather,
from other peripheral circumstances. The latter case, in the Illinois EPA’s view, should not
warrant consideration in these types ofcases because such circumstances will always fall
outside ofthe purview of, and be distinctly unrelated to, the Illinois EPA’s permit decision.
WHEREFORE, the Illinois EPA respectfully requests that the Board dismiss Georgia-
Pacific’s filing ofthe Amended Permit Appeal or, in the alternative, order such relief as may
be deemed appropriate.
-
Respectfully submitted,
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
By: ____________________
Robb H. Layman
Special Assistant Attorney General
ARDC #6205498
DATED: December 17, 2003
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Telephone: 217/782-5544
Facsimile: 217/782-9807
THIS FILING IS SUBMITTED ON RECYCLED PAPER
CL~RK’~O~i~
BEFORE THE ILLINOIS POLLUTION CONTROL BOARUJEC
22 2003
OF THE STATE OF ILLINOIS
STATE OF ILLINOIS
XCTC LIMITED PARTNERSHIP,
)
Pollution Control Board
)
Petitioner,
)
)
PCB No. 2001-46
v.
)
(Permit Appeal
—
Air, Third Party)
)
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
GEORGIA-PACIFIC TISSUE, LLC
)
)
Petitioner,
)
)
PCBNo.2001-51
V.
)
(Permit Appeal
—
Air)
)
(Consolidated)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY
)
)
Respondent.
)
MOTION FOR LEAVE TO FILE INSTANTER
NOW COMES the Respondent, ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY (“Illinois EPA”), by and through its attorneys, and moves the POLLUTION
CONTROL BOARD (“Board”) to allow leave for the Respondent to file the accompanying
Motion to Dismiss with respect to the Petitioner’s, GEORGIA-PACIFIC TISSUE, LLC,
(“Georgia-Pacific”), Amended Permit Appeal. In support thereof, the Illinois EPA states as
follows:
1.
The Illinois EPA received a copy ofthe petition filed by Georgia-Pacific on or
about November 24, 2003.
2.
In accordance with the Board’s procedural regulations, the Illinois EPA was
required to have responded to a formal motion within 14 days after service. See, 35 Ill. Adm.
Code 101.500(d).
3.
Due to the press ofenforcement case responsibilities handled by the
undersigned attorney during the last several weeks, the Illinois EPA has been unable to respond
to Georgia-Pacific’s filing until the present date.
4.
No hardship ormaterial prejudice will result to the Petitioner or any other
person by the Board’s granting ofleave for the filing ofthe Illinois EPA’s motion.
WHEREFORE, the Respondent respectfully requests that the Board grant leave for the
filing ofthe accompanying Motion To Dismiss in this cause.
Respectfully submitted,
ILLiNOIS ENVIRONMENTAL PROTECTION AGENCY
By:
Robb
~
H. Layman
?V/~4,~_
Special Assistant Attorney General
ARDC#6205498
DATED: December 17, 2003
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Telephone: 217/782-5544
Facsimile: 217/782-9807
THIS FILING IS SUBMITTED ON RECYCLED PAPER
PROOF OF SERVICE
I, the undersigned, certify that I have served the attached Appearance and
Recommendation upon the person to whom it is directed, by placing them in an envelope
addressed to:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph Street, Suite 11-500
Chicago, Illinois 60601
Mr. Michael S. McCauley
Ms. Monica M. Tynan
Quarles & Brady LLP
411 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202-5525
Mr. Bradley Halloran,
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph Street, Suite 11-500
Chicago, Illinois 60601
Mr. James T. Harrington
McGuire Woods Ross & Hardies
150 N. Michigan Avenue
Suite 2500
Chicago, Illinois 60601-7567
and mailing it by First Class Mail from Springfield, Illinois on December 18, 2003. As per
authorization from the assigned Hearing Officer, a copy ofthe attached documents was also
filed by facsimile with the Board on the afternoon ofDecember 17, 2003.
Robb H. Layman
Special Assistant Attorney General
ARDC#6205498
TO:
THIS FILING IS SUBMITTED ON RECYCLED PAPER