ILLINOIS POLLUTION CONTROL BOARD
September 17, 1998
PEOPLE OF THE STATE OF ILLINOIS,
Complainant,
v.
CLARK REFINING & MARKETING, INC.,
Respondent.
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PCB 95-163
(Enforcement - Air)
ORDER OF THE BOARD (by R.C. Flemal):
This matter is before the Board on cross motions for summary judgment filed by
complainant, People of the State of Illinois, by James E. Ryan, Attorney General of the State
of Illinois (complainant) on December 16, 1997 (complainant’s motion), and by respondent,
Clark Refining & Marketing, Inc. (Clark) on December 24, 1997
1
(Clark’s motion). The
issues before the Board are whether 35 Ill. Adm. Code 219, Subpart TT applies to Clark’s
industrial wastewater treatment facility, whether Clark failed to obtain a construction permit
before modifying part of its facility, and whether Clark operated its facility without an
operation permit.
On January 20, 1998, Clark filed a response to complainant’s motion. On January 21,
1998, complainant filed a response to Clark’s motion. On February 18, 1998, Clark filed a
reply to complainant’s response.
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Upon consideration of the arguments of the parties, the Board finds that Clark’s
industrial wastewater treatment facility is exempt from Part 219, Subpart TT’s requirements.
Additionally, the Board finds that Clark failed to obtain a construction permit before adding a
carbon canister to the dissolved air flotation (DAF) device at the facility. Further, Clark
operated its wastewater treatment facility without an operating permit for approximately seven
months. Accordingly, the Board grants both Clark’s motion for summary judgment in part
and complainant’s motion for summary judgment in part and sends the construction permit and
operating permit issues to hearing to assess the matters for penalties.
1
At the time of filing, Clark also filed a motion to file a memorandum of law in excess of the
page limit. The Board hereby grants Clark’s motion.
2
Complainant’s motion for partial summary judgment is cited as Comp. Mot. at __; Clark’s
memorandum in support of it motion for summary judgment is cited as Clark Mem. at __;
Clark’s reply brief is cited as Clark Rep. at __.
2
PROCEDURAL HISTORY
Complainant filed an action against Clark on June 6, 1995, and the instant five-count
amended complaint on November 12, 1996, alleging violations of various sections of the
Environmental Protection Act (Act) and the Board’s regulations. The parties subsequently
reached a proposed settlement agreement as to counts I, II, and III of the amended complaint
on January 23, 1997. Stip. at 2.
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Consequently, the cross motions for summary judgment
before the Board today address only those issues arising from counts IV and V of the amended
complaint.
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BACKGROUND
Since November 22, 1988, Clark has operated a petroleum refinery, also known as
Clark’s “Hartford Refinery.” Stip. at 2. The refinery converts crude oil into gasoline and
other petroleum distillates. Stip. at 2. Clark’s industrial wastewater treatment facility collects
and treats stormwater, sanitary sewage, and process wastewater generated by its refinery
operations. Stip. at 2. The wastewater treatment facility has been operated by Clark and prior
owners since 1973, in accordance with air pollution control operating permits issued by the
Agency. Stip. at 11. Most recently, the operating permit was renewed by the Agency in
April 1988 (permit number 72110683). Stip. at 11.
PARTIES’ ALLEGATIONS
Complainant raises five claims in support of its motion for summary judgment. The
first three claims all address the applicability of three sections in 35 Ill. Adm. Code 219,
Subpart TT, to Clark’s facility. Specifically, complainant argues that Section 219.986 applies
to the emissions from Clark’s wastewater treatment plant. Comp. Mot. at 14.
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Complainant
also contends that the sewage treatment plant exemption set forth in Section 219.980(e) does
not apply to Clark’s wastewater treatment facility. Comp. Mot. at 15. Further, complainant
asserts that Clark has not made the demonstration required by Section 219.991. Comp. Mot.
at 20. Moreover, complainant alleges that Clark did not obtain the necessary construction or
operating permit for the carbon canister it installed on the DAF device at its wastewater
treatment facility. Comp. Mot. at 22. Finally, complainant argues that Clark did not have an
operating permit for its facility. Comp. Mot. at 22.
3
On November 17, 1997, the parties filed a joint stipulation of facts which will be cited as
“Stip. at __;” Stipulation exhibits will be cited as “Stip. Exh. at __.”
4
The parties agreed to file the cross motions for summary judgment. Stip. at 3.
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Although the caption on page 14 reads “219.985 Applies to Emission Units in Clark’s
Wastewater Treatment System,” complainant’s argument addresses 219.986, and the Board
assumes the caption contains a typographical error.
3
Clark raises four claims in its motion for summary judgment. Clark first alleges 35 Ill.
Adm. Code 219, Subpart TT exempts Clark’s wastewater treatment plant. Clark Mem. at 3.
Second, Clark argues that some of the industrial components of its wastewater treatment plant
are exempt under Subpart TT, are otherwise not covered under Subpart TT, or are in
compliance with Subpart TT. Clark Mem. at 12. Third, Clark contends the Agency
improperly refused to grant Clark’s 1993 and 1994 Permit Applications. Clark Mem. at 17.
Lastly, Clark argues the Agency’s failure to act on Clark’s March 19, 1995 permit application
causes the permit to issue by operation of law. Clark. Mem. at 17.
Summary judgment is appropriate when there are no genuine issues of fact for the trier
of fact to consider and the movant is entitled to judgment as a matter of law. Sherex Chemical
v. IEPA (July 30, 1992), PCB 91-202; Williams Adhesives, Inc. v. IEPA (August 22, 1991),
PCB 91-112. For the reasons stated below, the Board finds that no genuine issues of fact exist
on Clark’s claim that its facility is exempt from Subpart TT’s regulations and finds the facility
exempt as a matter of law. However, the Board only grants complainant’s motion for
summary judgment, in part, because the Board finds that Clark failed to obtain a construction
permit and operated its facility without an operating permit.
APPLICABILITY OF SUBPART TT
Section 219.980(e) of the Board’s air pollution regulations provides that “ [T]he control
requirements of Subpart TT shall not apply to sewage treatment plants . . . .” The threshold
issue in this case is what is a “sewage treatment plant” in the context of the Subpart TT
regulations. If Clark’s facility is a sewage treatment plant for Subpart TT purposes, the
facility is exempt from the alleged violations of Subpart TT as a matter of law.
"Sewage treatment plant" is not defined in the Act. Neither is it defined in the Board's
regulations or in the United States Environmental Protection Agency (USEPA) regulations
from which Subpart TT is derived. Moreover, the definition cannot be derived from the plain
language of the term itself. Therefore, we rely on the regulatory history of Subpart TT to
determine the meaning of "sewage treatment plant" as used in Subpart TT.
When analyzing regulatory history, the Board is bound to apply rules used in
construction of statutes, as those rules apply when construing regulations promulgated by an
administrative agency. People v. Kilpatrick, 216 Ill. App. 3d 875, 576 N.E.2d 546 (2d Dist.
1991). If the language of the statute is clear and unambiguous, the Board like a court, may
not look to extrinsic aids of construction. In re Marriage of Logston, 103 Ill. 2d 266, 469
N.E.2d 167 (1984). Generally, a statute is ambiguous if it is capable of being understood by
reasonably well-informed persons in two or more different senses. Szpila v. Burke, 279 Ill.
App. 3d 964, 665 N.E.2d 357 (1st Dist. 1996); citing People v. Jameson, 162 Ill. 2d 282, 642
N.E.2d 1207 (1994). To the extent that the Board may find the language of the Act and the
Board’s regulations ambiguous, it is proper to consider various extrinsic aids, including the
regulatory history of Subpart TT, to give effect to the intent of the Board when it promulgated
its regulations. See
e.g.,
Szpila, 279 Ill. App. 3d at 970, 665 N.E.2d at 362, citing State v.
Mikusch, 138 Ill. 2d 242, 562 N.E.2d 168 (1990); People v. Ross, 267 Ill. App. 3d 711, 642
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N.E.2d 914 (3rd Dist. 1994), aff’d 168 Ill.2d 347, 659 N.E.2d 1319 (1995). Since the
meaning of “sewage treatment plant” is ambiguous, the Board relies on the regulatory history
of Subpart TT for guidance.
Genesis of Subpart TT
Subpart TT is found in 35 Ill. Adm. Code 219. It is one part of Illinois’ regulations
intended to control emissions of volatile organic material (VOM). The VOM control
regulations are found principally in 35 Ill. Adm. Code 215, 218, and 219. Part 219 specifies
VOM emission standards for the Metro-East Area of Illinois, where Clark’s facility is located.
Guideline documents developed by USEPA helped create most of the Illinois VOM
control regulations. These documents, called control technology guidance, or CTG
documents, set reasonable levels of VOM control by industrial category. Thus, for example,
there is a specific set of VOM control regulations governing pharmaceutical manufacturing
based on the CTG addressed to that activity. See 35 Ill. Adm. Code 219, Subpart T.
The Board adopted most of the Illinois VOM control regulations in the early- and mid-
1980s. Near the end of that process, when State rules had covered most of the industrial
categories, the Board also added a series of “generic” or “non-CTG” rules. See In the Matter
of: Organic Material Emission Standards and Limitations: Organic Emission Generic Rule
(April 7, 1988), R86-18. These rules were intended to define control requirements for
activities for which no CTG had been published, but which nevertheless constituted major
sources of VOM emissions. The Board promulgated four major non-CTG rules, now found in
Subparts AA, PP, QQ, and RR of Part 219.
USEPA oversaw the State’s entire effort to develop the Illinois VOM control
regulations. Relevant to the instant case is USEPA’s disapproval of the State’s VOM control
program, known as the State Implementation Plan, or SIP. On November 24, 1987, USEPA
notified Illinois that the Illinois SIP was “substantially inadequate.” 52 Fed. Reg. 45044
(November 24, 1987). USEPA disapproved the Illinois SIP in accordance with Section
111(a)(2)(H) of the Clean Air Act (42 U.S.C. § 7411(a)(2)(H)), which requires that states
demonstrate attainment by the end of 1987. 52 Fed. Reg. 45044 (November 24, 1987).
Furthermore, USEPA announced that it would assume regulatory authority and impose
upon Illinois a federal implementation plan, or FIP, that would supersede the SIP until such
time as Illinois could produce a SIP acceptable to USEPA. 54 Fed. Reg. 53080, 53083
(December 27, 1989). Illinois achieved a new, acceptable SIP by adopting the entire FIP into
State law. For the regulations at issue in the instant matter, this was done by the Board in the
rulemaking R91-8. See RACT Deficiencies in the Metro-East Area: Amendments to Part 215
and the Addition of Part 219 (July 25, 1991), R91-8.
USEPA’s FIP contained many of the same rules that the Board had promulgated
previously in the various VOM control rulemakings. Hence, in adopting the new SIP, the
Board simply readopted many of its old regulations. However, USEPA added a few new
regulations when it developed the FIP. Therefore when the Board adopted the new SIP rules it
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also added these FIP-generated rules into the State rules. Subpart TT was one of these rules
that had its genesis in the FIP.
Regulatory Intent to Exclude Industrial Wastewater Treatment Facilities
To assess whether there was an intent to exempt industrial wastewater treatment
facilities from Subpart TT, we first look at the genesis of Subpart TT under the FIP and then
under the SIP.
The FIP was developed in a two-stage process. First, USEPA presented a proposed
FIP, and then, due to stakeholder response, ultimately issued the adopted FIP. The proposed
FIP was published in the
Federal Register
on December 27, 1989. 54 Reg. 53080 (December
27, 1989). Notable in the proposed FIP was a new non-CTG rule governing “Other Emission
Units.” This was the first public manifestation of eventual Subpart TT. 54 Fed. Reg. at
53119. Further, the proposed FIP provided no specific exemption for “sewage treatment
plants.” Rather, the proposed exemption read:
The control requirements in paragraph (x) shall not apply to coke ovens. . . fuel
combustion sources, bakeries, barge loading facilities, jet engine test cells, non-
synthetic pharmaceutical manufacturing production of polystyrene foam
insulation board...production of polystyrene foam packaging...and iron and
steel production. 54 Fed. Reg. at 53119.
USEPA held a hearing on the proposed FIP on January 17, 1990. See In Re:
Proposed Federal Revisions to the Reasonably Available Control Technology (RACT) Rules
for Volatile Organic Compounds Contained in the Illinois State Implementation Plan for Ozone
Docket No.51-89-X.
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At hearing, Katherine Hodge, as counsel for the Illinois Environmental
Regulatory Group (IERG) questioned whether USEPA planned to exclude sewage treatment
plants from the generic rule. Tr. at 12. Daniel Goodwin, President of Goodwin and Brauns,
Inc., also inquired whether sewage treatment plants were covered by the generic rules’ 81%
capture and control requirement, and if so, what was the technical support, including
applicable control methods and costs, for subjecting these plants to the generic rules. Tr. at
41.
On June 29, 1990, USEPA approved the FIP. 55 Fed. Reg. 26814 (June 29, 1990).
Regarding exceptions from the proposed non-CTG rules, USEPA noted that it had received
two comments asking whether sewage treatment plants would be exempt. In response to those
inquiries, USEPA acknowledged, in pertinent part, that:
it did not intend, due to lack of available technical justification, to subject these
[sewage treatment plants] to the generic rules. USEPA has, therefore, added
sewage treatment plants to the list of exempt source categories specified in §
53.741(x). As such, sewage treatment plants are exempt from the federal
6
The transcript in this proceeding is cited as “Tr. at __.”
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generic rule and consequently will not be regulated at this time. 55 Fed. Reg.
at 26834.
In July 1991, Illinois adopted, as its SIP, the FIP for the Metro-East area in Board
docket R91-8. In so doing the Board retained the exact language of the FIP regarding the new
non-CTG rules for “Other Emission Sources,” as well as the specific exemption for “sewage
treatment plants.” See RACT Deficiencies in the Metro-East Area: Amendments to 35 Ill.
Adm. Code Part 216 and the Addition of Part 219 (July 25, 1991), R91-8. These are the rules
and exemptions found in 35 Ill. Adm. Code 219, Subpart TT.
In 1993, Illinois submitted the SIP for USEPA approval, incorporating therein Subpart
TT exactly as it appeared in the FIP and in the R91-8 rulemaking. In May of 1996, USEPA
approved and promulgated the SIP. 61 Fed. Reg. 20455 (May 7, 1996).
In approving the
SIP, the USEPA commented, in part, that Illinois’ SIP in Subpart TT:
exempts bakeries and sewage treatment plants from these major non-CTG
regulations. Major non-CTG regulations are, therefore, required for any
major bakeries and industrial wastewater treatment plants in the East St. Louis
area." 61 Fed. Reg. 20455 (May 7, 1996); see also Clark Rep. at 2.
(emphasis added).
These statements express USEPA’s belief that major non-CTG regulations (such as
Subpart TT) for industrial wastewater treatment plants are required in the Metro-East area.
This belief can be true only if industrial wastewater treatment plants are considered currently
unregulated under Subpart TT because they are exempt as either being bakeries or sewage
treatment plants. We thus find that the USEPA comments unambiguously show that USEPA
understands wastewater treatment facilities to fall within the exemption given to “sewage
treatment plants.”
We further find that Clark’s facility is now, and has been since Subpart TT’s inception,
exempt from Subpart TT. It is exempt because the “sewage treatment plant” exemption
language originated with USEPA when it adopted the FIP, and the Board used USEPA’s
exemption concept and language in adopting the same language in the SIP. As such, there is a
clear, connected regulatory history that shows Subpart TT exempts Clark’s facility.
In so finding, however, we note that in contexts other than the present, and perhaps
even the majority of contexts, “sewage treatment plant” does not necessarily have meaning
that encompasses wastewater treatment facilities generally. Regardless, it is the use of the
phrase in the context of air regulations generally and Subpart TT particularly, that we examine
today. In that context, Clark’s facility is exempt under Subpart TT.
Because Clark’s facility is exempt from Subpart TT’s regulations as a matter of law,
the Board rejects complainant’s first three claims regarding Subpart TT.
PERMIT ISSUES
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The following two permitting issues are before the Board: (1) whether Clark has an
operating permit by operation of law and (2) whether Clark installed air pollution control
equipment to its DAF device without a construction permit.
Operating Permit
On December 24, 1992, Clark submitted an initial application for renewal of Clark’s
operation permit number 72110683. Stip. at 5; Stip. Exh. 7. The Agency denied Clark’s
renewal operating permit application on June 10, 1993. Stip. at 6; Stip. Exh. 11. On
September 8, 1993, Clark submitted a second application for renewal of Clark’s operating
permit number 72110683. Stip. at 6; Stip. Exh. 12. The Agency denied Clark’s renewal
operating permit application on September 29, 1993.
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Stip. at 6; Stip. Exh. 13. On
November 8, 1993, Clark submitted a third application for renewal of Clark’s operating permit
number 72110683. Stip. at 6; Stip. Exh. 14. Clark provided the Agency with one 90-day
waiver of decision deadline on May 6, 1994. Stip. at 6; Stip. Exh. 18. The Agency did not
issue a letter granting or denying Clark’s November 8, 1993 application. On April 26, 1994,
the Agency sent Clark an “Enforcement Notice Letter,” highlighting alleged violations of the
Act and Board regulations. Stip. at 6-7; Stip. Exh. 16. On March 10, 1995, Clark submitted
a fourth application for renewal of Clark’s operating permit number 72110683. Stip. at 8;
Stip. Exh. 25.
8
A review of the parties’ stipulated facts reveals that on June 10, 1993, Clark received a
letter from the Agency denying its initial permit application to operate its facility. Clark did
not file a permit appeal within 35 days (or by July 15, 1993) as is required by Section 40 of
the Act (415 ILCS 5/40 (1996)). Filing a permit appeal would have enabled Clark to operate
its facility without a permit during the pendancy of the appeal. See 5 ILCS 100/10-65(b)
(1994). Instead, Clark operated its facility without a valid permit beginning July 15, 1993.
However, Clark submitted a revised operating permit application on September 8,
1993. Under Section 39(a) of the Act, the Agency was required to grant or deny Clark’s
permit application within 90 days of Clark’s September 8, 1993 permit application submittal,
or by February 8, 1994. Notwithstanding that the Agency obtained a waiver of decision
deadline on May 6, 1994, it did not obtain a proper waiver within 90 days of Clark’s submittal
of the November 8, 1994 permit application. Under Section 39(a) of the Act, the Agency
should have first sought a waiver on or before February 8, 1994.
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7
The Agency issued Clark a notice of incompleteness which the Board deems a denial.
8
Clark submitted another permit application on June 9, 1994; however, that application was
for construction of the carbon canister on the DAF device and was issued a separate permit
number (94060044) by the Agency on July 8, 1994. Stip. at 7; Stip. Exh. 21.
9
The Agency sought a waiver of decision deadline on February 7, 1994; however, that waiver
related to Clark’s permit application number 93110057. Stip. Exh. 15.
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The Board finds that, from the time Clark should have appealed the initial permit denial
(July 15, 1993) until the time the Agency should have issued a letter granting or denying
Clark’s third permit application (February 8, 1994), Clark operated its wastewater treatment
facility without a valid permit. Clark’s submittal of a fourth application on March 10, 1995, is
not relevant to the Board’s finding that the Agency failed to respond to Clark’s November 8,
1993 third permit application. While the Agency issued an enforcement letter to Clark on
April 26, 1994, it does not constitute a response in accordance with Section 39(a) of the Act.
The Board also finds that beginning February 9, 1994, to the present, Clark operated
the facility with a permit that was issued as a matter of law. Pursuant to Section 39(a) of the
Act, the Agency had 90 days to respond to Clark’s permit application filed November 8, 1993.
The Agency did not request a waiver within 90 days of the November 8, 1993 permit
application. When the Agency failed to grant or deny the permit pursuant to Section 39(a), the
permit was granted by operation of law.
The Board grants complainant’s motion for summary judgment on the issue regarding
Clark’s lack of an operating permit only to the extent that Clark operated its facility without a
permit from July 15, 1993, until February 8, 1994. The Board sends this matter to hearing to
address the penalties for this violation.
Construction Permit
In its September 8, 1993 second application for renewal of general operating permit
number 72110683, Clark mentioned that it had “installed a cover over the dissolved flotation
air device and are in the process of connecting the vent to an activated carbon system.” Stip.
at 13-14; Stip. Exh. 12 at 1. In its November 8, 1993 third application for renewal of general
operating permit number 72110683, Clark also applied for a construction permit for covering
the DAF device with a carbon canister. Stip. at 13; Stip. Exh. 14. In this application, Clark
stated “[w]e intend to build a new forebay which will be closed and have a carbon canister on
it, install two new aboveground floating roof tanks to replace the API separator, cover the oil
slump in that area and vent it to a carbon canister.” See Stip. Exh. 14. The Agency denied
the September 8, 1993 application and did not respond to the November 8, 1993 application.
Stip. at 14; Stip. Exh. 13.
10
On June 9, 1994, Clark notified the Agency of the following:
[w]e have begun operation of the modified BIO-Equalization unit. The
modifications made to the existing unit consisted of shutting down the Forebay
and the two API, also the covering of the DAF. Stip. at 15; Stip. Exh. 19 at 1.
10
In Clark’s November 8, 1993 application, it appears the Agency assigned Clark the
construction permit application number 93110057. Stip. Exh. 14B at 12.
9
The Agency issued a notice of incompleteness for the construction permit application on July
8, 1994, and assigned it a new permit number 94060044. Stip. at 15; Stip. Exh. 21.
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Complainant argues that Clark violated 35 Ill. Adm. Code 201.142 and 201.143 and
Section 9(b) of the Act (415 ILCS 5/9(b) (1994)) by installing and operating the carbon
canister on the DAF device without a construction permit or operating permit. Comp. Mot. at
22. In its memorandum of law in support of its motion for summary judgment, Clark
maintains that the allegation that Clark installed certain pollution control equipment on the
DAF device without a construction permit is not a Subpart TT issue and therefore is not a part
of its motion for summary judgment. Clark Mem. at 2. Clark did not directly respond to
complainant’s allegations regarding this issue.
The Board finds that Clark failed to obtain a construction permit to install the carbon
canister on the DAF device. Clark did not respond to complainant’s argument regarding this
issue and therefore has waived its objection with regard to this issue.
35 Ill. Adm. Code 201.142 requires:
No person shall cause or allow the construction of any new emission source or
any new air pollution control equipment, or cause or allow the modification of
any existing emission source or air pollution control equipment, without first
obtaining a construction permit from the Agency . . . .
The record before the Board demonstrates that Clark initiated installation of the carbon
canister on the DAF device in the Fall of 1993, prior to obtaining a proper construction
permit. See Stip. at 3. While Clark ultimately applied for the construction permit, it does not
negate the finding that Clark conducted the modifications to the DAF device without a
construction permit. Therefore, the Board finds Clark in violation of Section 201.142. The
Board sends this matter to hearing to address penalties for this violation.
Briefly, the Board will not address Clark’s third claim that the Agency improperly
denied Clark’s permit application in 1993 and 1994. Clark Mem. at 17. This enforcement
action is not the proper forum for such a claim. The method by which to challenge a permit
denial is a permit appeal. See 415 ILCS 5/40 (1996).
CONCLUSION
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The Board notes that on March 10, 1995, Clark submitted a revised “Application for
Modification to Existing Wastewater Treatment Facility and Permit to Operate.” In its cover
letter, Bill Irwin, Clark’s Environmental Manager, indicated that “Clark is seeking to amend
its current permit Number 72110683 to incorporate the process improvements found in this
application, and to be issued a permit to operate.” Stip. Exh. 25 at 1. While the revised
application suggests the application included the permit for modification, a review of the
permit confirms that the March 10, 1995 submittal was only for the permit to operate the
wastewater treatment facility. See Stip. Exh. 25.
10
In sum, the Board grants both motions for summary judgment in part. Subpart TT
exempts Clark’s facility, but Clark operated its facility without an operating permit for
approximately seven months and failed to obtain a construction permit for the addition to the
DAF device. The Board accordingly finds Clark has committed the violations as alleged.
This matter shall proceed to hearing to develop a record addressing issues of remedies and
penalties.
IT IS SO ORDERED.
Board Member K.M. Hennessey abstained.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that
the above order was adopted on the 17th day of September 1998 by a vote of 6-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
