•REC
CLERK’S OFFr~~
DEC24
2003
BEFORE
THE ILLINOIS POLLUTION CONTROL
BOAROSTATE
OF ILLINOIS
Poliutj0i-, Control Board
Noveon,
Inc.
)
Petitioner,
)
)
)
V.
e.’q
~jcY’~
PCB
4-
)
(Permit Appeal
-
Air)
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
Ms. Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thomspon Center
100W. Randolph
-
Suite 11-500
Chicago,.IL
60601
PLEASE TAKE NOTICE
that on Wednesday, December 24, 2003, I have filed with the
Office ofthe Clerk ofthe Pollution Control Board the
Petition for CAAPP Permit Appeal
and
Hearing
and
Request to Stay Certain CAAPP Permit Conditions,
a
copy of which is attached
hereto and herewith served upon you.
Roy M. Harsch, Esq.
•Steven J. Murawski, Esq.
GARDNER CARTON & DOUGLAS LLP
191 North Wacker Drive
Suite 3700
Chicago, IL
60606
(312) 569-1000
By:
THIS FILING IS
SUBMITTED ON RECYCLED PAPER
CERTIFICATE OF SERVICE
The undersigned states that he caused a copy ofthe
Petition for CAAPP Permit Appeal
and Hearing
and
Request to Stay Certain CAAPP Permit Conditions
to be delivered via
messenger delivery this Wednesday, December 24, 2003
to the following:
Ms.
Dorothy Gunn
Clerk
-
Illinois Pollution Control Board
100 W.
Randolph Street,
Rm
11-100
Chicago, IL
60601
and deliveredvia United States Mail, postage prepaid, on this Wednesday, December 24, 2003
to
the following:
•
Division of Legal Counsel
Illinois
Environmental Protection Agency
•
1021 North Grand Avenue East
P.O. Box
CFIO2/22279686.l
~
CLERicS
OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOA~
24
2003
STATE
OF ILLIN
Noveon, Inc.
)
p
p
o
suuan
Contro/ Board
Petitioner,
)
)
v.
•
)
PCB~-
•
)
(Permit Appeal
-
Air)
Illinois Environmental Protection Agency,
)
•
)
Respondent.
)
PETITION FOR CAAPP PERMTT APPEAL
AND HEARING
•
•
AND
REQUEST TO
STAY CERTAIN CAAPP PERMIT
CONDITIONS
Petitioner, Noveon, Inc. (“Noyeon”),
hereby submits this Petition to Appeal certain
conditions of its Clean Air Act Permit Program (“CAAPP”) permit and for a related Hearing
pursuant to Section 40.2(a) ofthe Illinois Environmental Protection Act (“Act”),
415 ILCS
5/40.2(a),
and
35 Iii. Adm.
Code
§
105.300(c).
Petitioner also
requests an immediate stay of
certain CAAPP permit conditions pursuant to
35 IAC,~105.304(b),
as explained
and identified
below, until the Illinois Pollution Control Board (“Board”) takes final action pursuant to
Section
40.2 ofthe Act.
In support ofthis Petition, Noveon states as follows:
I.
Procedural History
On March
7,
1996, the Illinois Environmental Protection Agency (“Illinois EPA”)
received a timely application for a CAAPP permit (ApplicationNo. 96030152) forNoveon’s
facility located at
1550 County Road,
1450 N, Henry, Illinois,
Facility ID No.
123 8O3AAD
•
(“Facility”).
Attachment 1.
On September 17, 2003, the Illinois EPA issued a draft CAAPP
permit to the Facility and opened the 30-day public comment period soliciting comments
about
that permit.
Id.
During the public comment period, Noveon submitted detailed comments to the
Illinois EPA regarding certain draft permit conditions (“Comment Letter”).
Attachment 2.
On November 24, 2003, the Illinois EPA issued to Noveon a final CAAPP permit that
became effective upon issuance.
Attachment 1.
While the Illinois EPA modified some
conditions of the final CAAPP permit in response to
Noveon’s Comment Letter, it did not
modify the final CAAPP permit to respond to all ofNoveon’s significant comments.
The Illinois
EPA’s failure to modify the final CAAPP permit, as requested,.is inconsistent with the Illinois
Environmental Protection Act and the corresponding regulations.
Consequently, Noveon is
submitting this timely Petition for Hearing and Appealofits final CAAPP permit.
II.
Petition COntent Requirements
A.
Source Description
35 IAC~
105.304(a)(1)J
The source is
a petrochemical manufacturing facility located at 1550 County Road,
1450
N in Henry, Illinois.
The Facility manufactures organic chemicals, specifically antioxidánts and
accelerators to be used in the manufacture ofrubber and plastics, coatings used in the electronics
industry and personal care products used for personal hygiene such as hair conditioners.
In
• addition, the source houses storage tanks forraw material, intermediates and finished products
and operates a wastewater treatment facility and a small process fluid heater for process heat.
B.
CAAPP Permit Conditions To Which Noveon Objects
35
IAC
§
105.304(’&(2)
•
On October 17,
2003, Noveon ‘submitted its Comment Letter to the Illinois EPA by
Certified Mail (7002 2410 0001
1456 0630).
Attachment 2.
The Comment Letter included thirty
•detailed objections to the Illinois EPA’s draft ofthe Facility’s CAAPP permit.
Id.
As
discussed
in more detail below, the Illinois EPA failed to consider some of the most significant comments
raised in the Comment Letter prior to issuing the final CAAPP permit for the‘Facility, including
•Comments
4, 7, 9,
11,
13,
14,
19, 21, 22,
25,
26, 27, and 28 (“Objections~’).The final CAAPP
2
permit.
Specifically, the Illinois EPA issued the CAAPP permit on November 24, 2003
and the
permit became effective on that same date.
Therefore, from a legal standpoint, Noveon was
expected to begin complying with all ofconditions ofthe CAAPP permit on November 24, 2003.
However, by issuing the CAAPP permit and making it effective on the’same date, the
Illinois EPA made continuous compliance with all ofthe final permit’s terms and conditions
impossible.
To start, Noveon did not actually receive the CAAPP permit
from the Illinois EPA
until December
1, 2003.
Furthermore, once received, Noveon had insufficient time
to
adequately review
its entire eighty-page permit, ensure that it understood all ofthe conditions
with which it must begin to comply, and institute necessary changes at the Facility to
ensure
continuous compliance.
Consequently, by making the permit
effective before Noveon received it
and not allowing the Facility a reasonable time to review this
complex permit prior to mandating
compliance with its terms, the Illinois
EPA made continuous compliance with the permit as of
the effective date unattainable.
Thus, the additional issues for review by the Board are:
(5)
Whether the Illinois
EPA provided .a reasonable time after issuance for Noveon to
comply with the final CAAPP permit;
(6)
Whether the effective date ofthe final CAAPP permit should
havebeen
postponed after issuance to
allow the Facility a reasonable time to adequately
review the permit and implement the necessary compliance measures to
ensure
continuous compliance.
Ifthe Board resolves these issues in favor ofNoveon, as described below, the final
CAAPP permit should be modified to
allow Noveon‘until at least January 31, 2004,
to comply
with all ofthe conditions ofthe final CAAPP permit, other than the Disputed Conditions.
4
C.
Justification for Noveon’s Objections to Agency’s Decision
35
IAC
§
105.304(a)(3)
•
‘
The Illinois EPA’s failure to modify the final CAAPP permit consistent with Noveon’s
Objections related to
the Disputed Conditions lacks the support ofsubstantial facts and evidence,
lacks a rational basis,
and is arbitrary and capricious.
Furthennore, the Illinois
EPA’s
requirement for the Facility to begin complying with an eighty-page CAAPP permit for a
complex petrochemical manufacturing facility prior to
the Facility’s receipt and adequate review
of that permit is unreasonable
and arbitrary and capricious.
1.
,
The
Facility’s
Condensers are “Air Pollution Control Equipment”
“Air pollution control equipment” means “any equipment or apparatus ofa type intended
to eliminate, prevent, reduce or control the emission ofair contaminants into the atmosphere.”
35 IAC~’
211.410; see also Board Rule 101.
The condensers fall squarely within the Board’s
definition of “air pollution control equipment,” and,
since 1972, the Facility’s condensers and
other control devices have been properly designated as “air pollution control equipment” by the
Illinois EPA because they control more than ‘85 percent of the organic material that would
otherwise be emitted into the atmosphere from the Facility’s petrochemical processes.
In essence, the VOC recovery columns, made up of condensers and other control devices,
allow the Facility to recover a nOtable amount ofVOC and then reuse it in the process.
This
process has historically allowed the Facility to
emit organic material from individual emission
‘units in excess of 8
lbs/hr because the process meets the alternative standard ofcompliance with
the 8 lbs/hr rule authorized by the regulations.
It is beyond dispute that, without the condensers
and other control devices at issue,
the VOC currently
captured and controlled would be emitted
into the atmosphere rather than recycled.
Thus, the condensers and other control devices are air
5
pollution control equipment because they “eliminate, prevent, reduce or control the emission of
air contaminants into the atmosphere.”
See 35 IAC
§
211.410.
The Facility~s
views are consistent with the original rules promulgatedby the Board as
Rules 101
and 205(f)
and the related Board rules promulgated since then as
35 IAC
§~
211.410,
215.301 and 215.302.
Furthermore, the Illinois EPA has historically been aware ofthe Facility’s
position regarding its condensers’ and other control devices’ designation as air pollution control
equipment and has, in fact, approved ofthe Facility’s position on numerous
occasions
informally, after inquiry, and formally,
in past permits.
However, without any apparent or clear technical, legal or policy basis, the Illinois
EPA
is now attempting, through the CAAPP permitting process, to withdraw its historical acceptance
ofNove6n’s condensers
and other control devices as air pollution control equipment.
As
Noveon understands it, the Illinois EPA is now trying to limit designating condensers and other
control devices as air pollution control equipment based on their exact location in the
manufacturing process.
For example, under the Agency’s new position, primary condensers can
no longer be considered air pollution control equipment despite the fact that they capture VOCs
and prevent the emission ofsuch materials into the atmosphere.
In contrast, Noveon contends that all ofthe condensers and other control devices used at
the Facility that historically constituted “air pollution control equipment” continue to maintain
that designation.
That is because the exaát location of condensers and other control devices in
the manufacturing process (e.x. primary, secondary Ortertiary step) should not impact their
designation as air‘pollution control equipment.
The position of the condensers
and other control
devices in a series is irrelevant because theyhave the same function, albeit to a lesser extent,
regardless oftheir location.
Furthermore, installing devices to measure inlet or outlet
6
temperature on each condenser, as required by the Agency in several ofthe Disputed Conditions,
would require a complete redesign ofNoveon’s petrochemical manufacturing process.
Even if
that were possible, Noveon would incur a substantial cost with no improved removal ofVOC or
increased efficiency from the condensers.
Consequently, the Illinois EPA’s new position and the
related CAAPP permit conditions cannot be justified and should not stand.
2.
The Facility’s Existing Processes Remove Sulfur Compounds
Also since
1972, the Facility has operated processes designed to remove sulfur
compounds from the flue gases of petrochemical processes (“sulfur removal equipment”).
This
operational configuration has historically exempted the Facility from the general
SO2
emission
limitation of 2000 ppm found at
35IAC~214.301.
Pursuant to
35 JAG
§
214.382(a),
the general SO2
emission limitation of2000 ppm does
not apply to existing processes, like the Facility’s, that have sulfur removal equipment in place to
remove and recycle sulfur compounds from the flue gases ofits petrochemical processes.
The
emissions from the Facility’s
petrochemical batch reactor processes vent to condensers
that
remove hydrogen disulfide (H2S),
a sulfur compound,
from the emitted gases and recyclethat
material back into the process.
That recycling activity reduces approximately 23
‘percent ofthe
total
sulfur from
the batch process gases.
Importantly,
35 IAC~214.382
(a)
does not expressly
state a level of sulfur reduction that must be achieved for a source to be exempt from the 2000
ppm standard.
Therefore, in the absence of such a standard in the regulation, the Illinois EPA
may not
arbitrarily impose one in the CAAPP permitting process.
The Facility’s processes are ofthe type excluded from the general SO2 emission
limitation of2000 ppm since the Board promulgated the original rules as
Rule 204(f)
and
updated those rules
since then as
35 lAG
§~‘
214~301and 214.382.
Furthermore, the Illinois
EPA
7
has historically been aware ofthe Facility’s ability to remove sulfur compounds from the flue
gases ofits petrochemical processes so that the general 2000 ppm SO2 emission limitation
clearly did not apply.
In fact, the Agency has approved the Facility’s position on numerous
occasions informally, after inquiry, and formally, in past permits.
Now, without any apparent or clear technical, legal or policy basis,
the Illinois EPA is
attempting, through the CAAPP permitting process, to
withdraw its historical recognition and
acceptance ofNoveon’s sulfur removal process design.
Noveon understands
that, from now on,
the Illinois
EPA only wants to approve existing processes designed to remove sulfur compounds
that can achieve a specific minimum percentage ofsulfur removal.
However, the Illinois EPA
has not disclosed exactly what that sulfur removal efficiency must be
or what authorizes the
Agency to ignore the express regulatory language of35
IAC.~214.382(a)
outside ofthe
rulemaking process.
Consequently, the actions being taken by the Agency exceed its statutory
authority because it is,
in fact, rulemaking, which only the Board is allowed to do.
In contrast, Noveon contends that the Facility remains exempt from the general SO2
emission limit of2000 ppm in
35 IAC,~
214.301
pursuant to
35 IAC.~S’
214.382(a)
because its
existing processes qualify as systems designed to remove sulfur compounds from the flue gases
ofpetrochemical processes.
Therefore, the Illinois EPA’s new position and the related CAAPP
permit conditions cannot be justified.
•
3.
The CAAPP Permit Effective
Date Should be Briefly Postponed
As explained, above, the Illinois EPA made it impossible
to
comply with the CAAPP
permit as ofthe effective date ofNovember 24, 2003 because it did not provide the Facility with
a copy ofthe permit until after that date.
Furthermore, the Illinois EPA did not provide a
reasonable time between the issuance of the permit
and its effective date for the Facility to
8
adequately review the permit and institute necessary changes at the Facility to ensure continuous
compliance.
As a result, the Illinois’EPA’s position cannot be justified.
III.
Conclusion and Prayer for Relief.
‘
The Illinois EPA failed to
modify the final CAAPP permit to
address Noveon’s
Objections related
to’ the Facility’s historically accepted use ofcondensers as air pollution
control equipment to control VOC
emissions and use ofsulfur recovery equipment to control
SO2
emissions.
The Illinois EPA’s new interpretations relatedto these issues lack the support of
substantial facts and evidence, lacks a rational basis,
and is arbitrary and capricious.
Furthermore, by requiring Noveon’s compliance with the CAAPP permit terms and
conditions
on the date ofissuance, the Illinois EPA effectively made Noveon’s ability to comply
with all ofthe permit conditions impossible.
Consequently,
requiring Noveon to comply with
a
complicated CAAPP permit without allowing sufficient time to
review the permit and
ensure
compliance prior to the effective date is arbitrary and capricious and unreasonable.
WHEREFORE, for the foregoing reasons, Noveon respectfully petitions the Board for a
hearing to address the issues discussed in this CAAPP permit appeal and modify the final
CAAPP permit accordingly.
‘
FURTHERMORE, pursuant to
35 lAG
§
105.304(b),
Noveon requests that the Board:
(1)
‘‘
Stay the effectiveness ofthe final CAAPP permit Conditions 7.1.2,
7.1.3(d), 7.1.13, 7.2.1,
7.2.3(c), 7.2.7, 7.3.2,
7.3.8(b), 7.4.8(b),
7.5.2,
7.5.3(c),
7.5.8 (b), 7.6.2, 7.6.3(c), 7.6.5(b)-(c),
7.6.8(b), 7.6.9(f),
7.7.5(a),
and 7.7.8(b) until final action is takenby the Board pursuant to
Section 40.2 ofthe Act; and
9
(2)
Stay the remaining provisions ofthe CAAPP permit until January 31, 2004 to allow the
Facility ample time to begin complying with those provisions.
Respectfully submitted,
Noveo
c.
By:
Oneo
I~tsAo
eys
Roy M. Harsch, Esq.
‘Steven J. Murawski,
Esq.
GARDNER CARTON & DOUGLAS
LLP
191
North Wacker Drive
Suite 3700
Chicago, IL
60606
(312) 569-1000
•
10
Due
to
the
volume
of this
pleading,
please
contact
the
Clerk’s
Office
at
312/814—3629
to
view
this
file.