BEFORE THE ILLINOIS POLLUTION CONTROL BOAR~~~V~
rJN~’62004
GENERAL ELECTRIC COMPANY
)
b~AflUt~LWf~U~
d/b/aGEPlastics,
)
p~~jtJnoNcONTROL~OARö
)
Petitioner,
)
v.
)
PCB
___________________
(
)
(Permit Appeal-
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE OF FILING
To:
Division ofLegal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk ofthe Pollution
Control Board the Petition for Review, Motion to Appear Pro Hac Vice (by Alphonse
McMahon), Motion to Appear Pro Hac Vice (by Shannon S. Broome), Notice ofAppearance (of
Alphonse McMahon), Notice ofAppearance (ofShannon S. Broome), and Certificate of Service
of Petitioner General Electric Company, copies ofwhich are herewith served upon you.
~
Alphonse
)1~2~,4(L~
McMahon
December 30, 2003
Alphonse McMahon
Counsel
—
Environmental, Health & Safety Programs
General Electric Company
One Lexan Lane
Mount Vernon, IN 47620
Phone:
(812) 831-4688
Fax: (812) 831-7294
E-mail: al.mcmahon@gepex.ge.com
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD R~CE~VE~
GENERAL ELECTRIC COMPANY
)
~
rJA~-~2oo
U~~
4
d/b/a GE Plastics,
)
POU-UT~OP1CONTROL BOARE)
)
Petitioner,
)
t-
v.
)
PCB ot.1-i(S
)
(Permit Appeal-
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION TO APPEAR PRO HAC VICE
COMES NOW Alphonse McMahon and, pursuant to 35 IAC 101 .400(a)(3), requests
permission from the Illinois Pollution Control Board (“Board”) to appear on behalfofPetitioner
General Electric Company d/b/a GE Plastics and to represent the same as its attorney for all
matters before the Board regarding the Petition for Review filed in conjunction with this Motion.
In support ofthis Motion, Alphonse McMahon states as follows:
1.
He is an attorney, licensed to practice law in the State ofIndiana (Indiana Law
License No. 19723-65).
2.
He is in good standing with all courts to which he is admitted.
3.
He is employed by General Electric Company, and his office is located at One
Lexan Lane, Mount Vernon, Indiana 47620.
WHEREFORE, Alphonse McMahon requests that the Board grant this Motion and allow
him to represent Petitioner General Electric Company d/b/a GE Plastics in all matters before the
Board regarding the Petition for Review filed in
conjunction with this Motion.
Respectfully submitted,
~
~
Alpfonse McMahon
Counsel
—
Environmental, Health & Safety Programs
General Electric Company
Attorney for General Electric Company d/b/a
GE Plastics
One Lexan Lane
Mount Vernon, IN 47620
Phone:
812-831-4688
Fax: 812-831-7294
E-mail: al .mcmahon~gepex.ge. corn
Dated: December 30, 2003
2
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECE~V~
rjpj~~-62004
GENERALELECTRIC COMPANY
)
~gp,o~
~ARO
d/b/a GE Plastics,
)
)
Petitioner,
)
v.
)
PCB
__________________
)
(Permit Appeal-
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MOTION TO APPEAR PRO HAC VICE
COMES NOW Shannon S. Broorne and, pursuant to 35 IAC 101 .400(a)(3), requests
permission from the Illinois Pollution Control Board (“Board”) to appear on behalf ofPetitioner
General Electric Company d/b/a GE Plastics and to represent the same as its attorney for all
matters before the Board regarding the Petition for Review filed in conjunction with this Motion.
In support ofthis Motion, Shannon S. Broome states as follows:
1.
She is an attorney, licensed to practice law in the State of California (California
State Bar No. 150119).
2.
She is in good standing with all courts to which she is admitted and with the State
Bar ofCalifornia.
3.
She is employed by Shannon S. Broome, Professional Corporation, a law firm
located at 5001 Proctor Avenue, Oakland, CA 94618.
WHEREFORE, Shannon S. Broome requests that the Board grant this Motion and allow
her to represent Petitioner General Electric Company d/b/a GE Plastics in all matters before the
Board regarding the Petition for Review filed in conjunction with this Motion.
Respectfully submitted,
JL~
Shannon S.
4~~
Broome
s ~
Shannon S. Broome, PC
Attorney for General Electric Company
d/b/a
GE Plastics
5001 Proctor Avenue
Oakland, CA 94618
Phone:
(510)
985-1710
Fax:(510)985-1712
E-mail:
sbroome@pacbell.net
Dated: December 30, 2003
2
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECE~V~
GENERAL ELECTRIC COMPANY
)
r
d/b/a GE Plastics,
)
JAN
— 62004
)
~Alt(*
~WNU~
Petitioner,
)
POWJT1ON
NTP~OL~OARO
v.
)
PCB_____________
)
(Permit Appeal-
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE OF APPEARANCE
Alphonse McMahon hereby enters his appearance on behalfofPetitioner General
Electric Company d/b/a GE Plastics in the above-captioned matter.
Respectfully submitted,
Al~1honseMcMahon
Counsel
—
Environmental, Health & Safety Programs
General Electric Company
Attorney for General Electric Company d/b/a
GE Plastics
One Lexan Lane
Mount Vernon, IN 47620
Phone: 812-831-4688
Fax: 812-831-7294
E-mail: a1.mcmahon~gepex.ge.com
Dated: December 30, 2003
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
AECE~V~
‘JAN
-
62004
GENERAL ELECTRIC COMPANY
)
~AI~ U~IWM)~
d/b/a GE Plastics,
)
POIJJJT1OPI CONTROL BOARO
)
Petitioner,
)
v.
)
PCB
______________
)
(Permit Appeal-
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
NOTICE OF APPEARANCE
Shannon S. Broome hereby enters her appearance on behalfofPetitioner General Electric
Company d/b/a GE Plastics in the above-captioned matter.
Respectfully submitted,
yi~l~qAk~
Shannon S. Broome
I
k1~/~
Shannon S. Broome, PC
Attorney for General Electric Company d/b/a
GE Plastics
5001 Proctor Avenue
Oakland, CA 94618
Phone:
(510)
985-1710
Fax: (510) 985-1712
E-mail: sbroome@pacbell.net
Dated: December 30, 2003
REC.E~VED
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
rj~
-
62004
GENERAL ELECTRIC COMPANY
)
~oa~
~
d/bla
GE Plastics,
)
).
Petitioner,
)
v.
)
PCB______________
)
(Permit Appeal-
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
PETITION FOR REVIEW
I.
Introduction and Jurisdiction
1.
Pursuant to 415 ILCS 40.2 and 35 Illinois Administrative Code (“IAC”) Part 105,
Subpart C, General Electric Company d/b/a GE Plastics (“GE”), by and through its attorneys
Alphonse McMahon and Shannon S. Broome, respectfully requests the Illinois Pollution Control
Board (hereinafter “the Board”) for review of the Clean Air Act Permit Program (CAAPP)
Permit and Title I Permit (hereinafter “CAAPP Permit”) issued to GE on November 25, 2003. A
copy of the CAAPP Permit is attached hereto as Exhibit A.
2.
The Board has jurisdiction to hear this matter pursuant to Section 40.2 ofthe
Environmental Protection Act, 415 ILCS
5/40.2.
This section charges the Board with
responsibility to adjudicate disputes arising out of CAAPP Permit decisions. In particular, this
section states that if “the Agency refuses to grant or grants with conditions a CAAPP
permit.. .the applicant...may within 35 days afler final permit action, petition for a hearing before
the Board to contest the decision of the Agency.” 415 ILCS 5/40.2(a).
II.
Concise Description of the
CAAPP
Source
3.
GE owns and operates a plastics manufacturing plant located at 2148 North 2753rd
Road in Ottawa (LaSalle County), Illinois (I.D. No. 099829AAA) and is a Clean Air Act Permit
Program source. The operations at this facility include the tank storage ofraw materials, the
manufacture of thermoplastic resins and their subsequent blending with additives to make final
products, along with the operation ofboilers and a wastewater treatment plant in support ofthe
manufacturing activities.
III.
Procedural and Factual Background of this CAAPP Permit
4. GE was required to apply for a CAAPP permit for the Ottawa plant, which GE did in
1996.
5.
On October 10, 2003,
the Illinois Environmental Protection Agency (“Agency”)
caused a notice to be published ofan opportunity to comment on GE’s draft CAAPP permit.
6.
GE submitted comments on the draft CAAPP permit in a timely manner. Those
comments are attached hereto as Exhibit B and incorporated by reference.
7.
On November 25, 2003, the Agency issued the CAAPP Permit to GE.
8.
GE is appealing the Agency’s final action in issuing the CAAPP Permit.
9.
This Petition for Review is timely filed because it was filed within 35 days after final
permit action
by the Agency.
IV.
Legislative Background
10. “Title V” refers to Title V of the federal Clean Air Act, as codified at 42 USC §7661
et seq.
In the 1990
Amendments to the Clean Air Act, Congress enacted Title V, which
establishes the requirements for a federal operating permit program applicable to certain types of
industrial facilities.
11. In Section 502(b)
ofthe Clean Air Act,
42 USC §7661a(b), Congress directed the
United
States Environmental Protection Agency (“U.S. EPA”) to establish the elements ofthe
2
operating permit programs for state agencies that would implement them. Pursuant to this
directive, U.S. EPA adopted rules to govern the development of Title V permitting programs by
the states.
See 57
Fed. Reg. 32250, Part II (July 21, 1992). Those federal rules appear at 40 CFR
Part 70.
12. The
Illinois legislature passed legislation to create Illinois’
Clean Air Act Permit
Program. The legislation is codified at 415 ILCS 5/39.5 (the “Act”).
13. Accuracy of CAAPP Permit terms
is important because CAAPP sources are
prohibited from operating except in compliance with a CAAPP Permit and are required to certify
compliance on an annual basis with all permit terms and conditions. 415 ILCS 5/39.5(7)(p).
Moreover, if a permit term is inaccurate or conditions change at the CAAPP source, the permit
must be revised to include any new applicable requirements or correct such errors. 415 ILCS
5/39.5(13)-(14).
V.
Terms and Conditions Being Appealed
a.
The Agency failed to reference the origin and authority for each condition
14. Section 39.5(7)(n) ofthe Act provides that “each CAAPP permit issued under
subsection 10 ofthis Section shall specify and reference the origin ofand authority for each term
or condition, and identify any difference in form as compared to the applicable requirement upon
which the term or condition is based.” (emphasis added)
15. The following conditions in the CAAPP Permit do not specify and reference the
origin ofand authority for the condition: Conditions 5.2.5(a), 5.2.5(b), 5.5.1, 9.1.3, 9.2.2, 9.2.4,
9.3(e), 9.3(f), 9.4, 9.5.1, 9.5.2, 9.5.3, 9.5.4, and 9.6.1.
16. Accordingly, either a reference to the origin of and authority for each such condition
should be added to the CAAPP Permit, or each such condition for which no authority exists
should be removed from the CAAPP Permit.
3
b. The Agency included language in CAAPF Permit that was not in the underlying
construction permit
17. The Agency has included in the CAAPP Permit applicable requirements from state
construction permits, but has added language to several conditions ofthe CAAPP Permit
regarding the Prevention ofSignificant Deterioration (“PSD”) rule that is not in the respective
underlying construction permits.
18. In general, this new language provides that the limitations were established pursuant
to the PSD rule and ensure that the construction and/or modification addressed in the
construction permit does not constitute a new major source or majormodification (the “PSD
Provisions”).
19. The affected conditions ofthe CAAPP Permit containing the PSD Provisions are:
Conditions 7.2.5(f)(i); 7.2.5(f)(ii); 7.2.5(f)(iii); 7.2.5(g); 7.3.5(c); 7.3.5(d); 7.3.6(b)(i);
7.3.6(b)(ii); 7.3.6(b)(iii); 7.3.6(b)(iv); 7.3.6(b)(v); 7.3.6(b)(vi); 7.3.6(d); 7.3.8; 7.6.5(c); and,
7.6.6(a).
20. The Agency lacks authority to add the PSD Provisions, and acted in an arbitrary and
capricious manner in adding them.
21. Accordingly, the PSD Provisions should be removed from the CAAPP Permit.
c. The Agency removed appropriate non-applicability determinations that were in the
draft permit
22. Condition 7.1.4 ofthe draft CAAPP permit contained a provision stating that the
storage vessels associated with the affected latex area were not subject to 40 CFR 60 Subpart Kb.
23. Condition 7.5.4(c) ofthe draft CAAPP permit contained a provision stating that
Boilers 1 and 2 were not subject to 40 CFR 60 Subpart Db.
24. Condition 7.5.4(d) ofthe draft CAAPP permit contained a provision stating that
Boiler 3 was not subject to 40 CFR 60 Subpart Dc.
4
25. Each ofthese non-applicability determinations that was removed is factually correct.
26. In its comments on the draft CAAPP permit, GE requested changes to the language to
clarify the reasons for the inapplicability ofthese rules but did not request that these provisions
be removed.
27. The Agency did not include these provisions in the CAAPP Permit•
28. The Agency’s action in removing the provisions was arbitrary and capricious, and
without basis in law.
29. Accordingly, these provisions, as revised by GE in its comments to the draft CAAPP
permit, should be added to the CAAPP Permit
d.
The Agency used column headings that are inaccurate and misleading
30. The table in Section 4.0 ofthe CAAPP Permit contains four columns. The two left-
hand columns are labeled “Emission Unit/Group” and “Description”, respectively.
31. These headings are inaccurate and misleading. The information listed in the column
headed “Emission Unit/Group” is ofthe operating areas at the GE plant, not ofemission units or
emission groups. The information listed in the column headed “Description” is a list ofthe
emission units themselves, not a description ofthe emission unit/group or ofthe operating area.
32. The tables in Conditions 7.1.2, 7.2.2, 7.3.2, and 7.4.2 of the CAAPP Permit contain
three columns. The two left-hand columns are labeled “Emission Unit” and “Description”,
respectively.
33. These headings are inaccurate and misleading. The information listed in the columns
headed “Emission Unit” is ofa particular operating area at the GE plant, not of emission units.
The information listed in the columns headed “Description” is a list of the emission units
themselves, not a description ofthe emission unit.
5
34. Accordingly, the column headed “Emission Unit/Group” (in the case of Section 4.0)
or “Emission Unit” (in the case ofConditions 7.1.2, 7.2.2, 7.3.2, and 7.4.2) should be changed to
“Operating Area” and the column headed “Description” (in all five conditions) should be
changed to “Emission Units”.
e. The Agency improperly characterized descriptions ofoperating areas as permit
conditions
35. Conditions 7.1.1, 7.2.1, 7.3.1, 7.4.1, 7.5.1, and 7.6.1 each set forth a description ofthe
unit, or operating area, covered by the respective section of the CAAPP Permit.
36. None ofthese conditions is an applicable requirement or contains an applicable
requirement. They are merely general descriptions of the activities conducted at the respective
operating areas. However, the CAAPP Permit contains no indication that these conditions are not
enforceable permit conditions.
37. Accordingly, each condition heading should be changed from “Description” to
“Description (for informational purposes only)”.
J
The Agency failed to include language
in
the ~AAPP Permit
from
underlying
construction permits
38. Condition 7.3.6(b)(iii), which contains particulate matter emission limits, is based on
a condition in construction permit 97020059, which states that: “These limits are based on
maximum emission rates indicated in the permit application and the maximum hours of
operation (8,736 hr/yr).”
39. Condition 7.3.6(b)(v), which contains PM-b emission limits, is based on a condition
in construction permit 96030290, which states that: “These limits are based on maximum actual
emissions.”
6
40. Condition 7.3.6(c), which contains VOM and PM emission limits, is based on a
condition in construction permit 00110016, which states that: “These limits are based on
maximum production and the compliance procedures specified in condition 1.1.12.”
41. Each ofthese three construction permit provisions was omitted from the CAAPP
Permit. The omitted language from each construction permit forms an integral part ofthe
emission limits because it shows that the limits are based on potential emissions and were not
taken to avoid the application ofthe PSD rule.
42. Accordingly, the referenced language from these three construction permits should be
added to the CAAPP Permit.
g.
The Agency
mm
posedan overbroad coinpliance certification requirement
43. Condition 5.2.5(a) requires GE, as part ofits annual compliance certification, to
certify compliance with any regulation issued pursuant to 40 CFR Parts 60, 61, or 63, or pursuant
to 35 IAC, after the date the CAAPP Permit was issued.
44. This requirement is not in the Act.
45. The Agency’s action in including this provision was arbitrary and capricious, and
without basis in law.
46. Accordingly, Condition 5.2.5(a) should be revised by removing the phrase “and shall
certify compliance with the applicable requirements ofsuch regulation(s) as part ofthe annual
compliance certification”.
h.
The Agency improperly created emission limitations
47. Condition 5.5.1 states, in pertinent part, that: “The annual emissions from the source
shall not exceed the following limitations.”
48. While this condition contains no citation or reference to its authority, it appears that
the purpose ofthis provision is to implement the fee provision ofsection 39.5(18) ofthe Act.
7
Tbiat provision establishes a requirement to pay an annual fee based on allowable emissions. It
does not establish any emission limitations.
49. Accordingly, Condition 5.5.1 should be removed from the CAAPP Permit, and the
table ofallowable emissions should be moved to Condition 9.2.5, which sets forth the duty to
pay the annual fee. Corresponding changes in other portions of the CAAPP Permit will also need
to be made.
i.
The Agency improperly included a reference to the barge unloading system in
Condition 7.6.9(c)
50. Condition 7.6.9(c) requires GE to maintain records of~,among other things, the annual
(calendar year) VOM and HAP emissions from the barge unloading system.
51. The only emissions from the barge unloading system occur when the fill line is
disconnected after loading is completed. Any such emissions are fugitive emissions and are not
subject to an emissions limitation.
52. Accordingly, the reference to the bargeunloading system should be removed from
Condition 7.6.9(c).
j.
The Agency used an erroneous credible evidence provision
53. Condition 9.1.3 ofthe CAAPP Permit provides, in pertinent part, that “any person
(including the Permittee) may also use other credible evidence to establish compliance or
noncompliance with applicable requirements.”
54. As noted above, the Agency failed to state the authority for including this permit
term. To the extent that the Agency is relying on the U.S. EPA’s credible evidence rule (62
Federal Register 8314 (Feb. 24, 1997)) as the authority for including this permit term, the
CAAPP Permit’s language does not reflect that the credible evidence rule does not apply to
every federal standard (e.g., Part 63 standards) or any State standards, nor does the language in
the CAAPP PenTnit reflect a keyjudicial interpretation that leaves open the opportunity to
8
challenge the applicability ofthe credible evidence rule in any future enforcement action
(Clean
Air Implementation Project v. EPA,
150 F.3d 1200 (D.C. Cir. 1998)).
k.
The Agency included “liability” provisions that are not in the Act
55.
Section 9.5 contains five conditions. Only the last one (Condition 9.5.5) can be found
in the Act. The other four are not in the Act or in any other applicable requirement.
56. The Agency’s action in including these four provisions was arbitrary and capricious,
and without basis in law.
57. Accordingly, Conditions 9.5.1, 9.5.2, 9.5.3, and 9.5.4 should be removed from the
CAAPP Permit.
1.
Typographical errors that should be corrected
58. In Condition 7.1.12(b), the word “account” should be “amount”.
59. In Conditions 7.4.3(c) and 7.4.3(d), the term “primary clarify” should be “primary
clarifier”.
60. In Condition 7.4.9, the phrase “Conditions 5.5.1” should be “Condition 5.5.1”.
61. The accuracy ofthe CAAPP Permit would be improved by revising these provisions.
62. Accordingly, these typographical errors should be corrected.
63. GE does not, by reason ofany ofthe foregoing, limit the grounds that may be
advanced in this appeal, and reserves the right to amend and expand its assignments oferror.
WHEREFORE, GE requests that:
(A)
The Board declare that the Agency’s action imposing the CAAPP Permit terms
and conditions identified above to be arbitrary, capricious, unreasonable, unlawful
and/or beyond the regulatory and legislative authority ofthe Agency;
9
(B)
The Board vacate the Agency’s action imposing the CAAPP Permit terms and
conditions identified above and require the Agency to revise GE’s CAAPP Permit
to incorporate reasonable and lawful CAAPP permit terms and conditions; and
(C)
The Board grant GE such other and further relief as is just, necessary and proper.
Respectfully submitted,
GENERAL ELECTRIC COMPANY
By:________
Alphons~’McMahon
Counsel
—
Environmental, Health & Safety Programs
General Electric Company
One Lexan Lane
Mount Vernon, IN 47620
Phone: (812) 831-4688
Fax: (812) 831-7294
E-mail: al.mcmahon@gepex.ge.com
Shannon S. Broome, Esquire
Shannon S. Broome, PC
5001. Proctor Avenue
Oakland, CA 94618
Phone: (510) 985-1710
Fax: (510) 985-1712
E-mail: sbroome@pacbell.net
Of Counsel:
Matthew 0. Tanzer
Counsel, Air Programs
General Electric Company
3135 Easton Turnpike
Fairfield, CT 06431
Phone: (203) 373-3512
Fax: (203) 272-2289
Email: matthew.tanzer@corporate.ge.com
10
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD RECE~V~
-6
2004
GENERAL ELECTRIC COMPANY
)
d/b/a GE Plastics,
)
POLW~ONcONTROL ~OARO
Petitioner,
)
v.
)
PCB_________________
)
(Permit Appeal-
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I have served a copy ofeach ofthe following
documents:
1. Petition for Review
2. Motion to Appear Pro Hac Vice (by Alphonse McMahon)
3. Motion to Appear Pro Hac Vice (by Shannon S. Broome)
4. Notice ofAppearance (ofAlphonse McMahon)
5. Notice ofAppearance (ofShannon S. Broome)
6. Notice ofFiling
upon the Illinois Environmental Protection Agency at:
Division ofLegal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
by depositing them in the United States mail, first-class postage prepaid, this
~
day of
December, 2003.
Alph~nseMcMahon
-
~.ahon
Plastics Mt. Vernon, Inc.
I Lexan Lane.1
t. Vernon, IN 47620
p
-q ~
~
L~.
~IIIiTi~I__
.-_~_
Due to the volume of this pleading,
please contact the Clerk’s Office
at
312/814—3629
to view this file.
