)
PCB
03-95
DARD
(Permit Appeal
—
Air)
)
)
M~ECEIVED
CiFRR’S OFFICE
FEB
6
2003
STATE
OF IWNOIS
Pollution
Control
Board
NOTICE OF FILING
TO:
Division of Legal
Counsel
Illinois
Environmental
Protection
Agency
1021
North Grand Avenue
East
P.O.
Box
19276
Springfield, Illinois
62794-9276
Carol
Sudman
I Icaring Officer
Illinois Pollution
Control
Board
600
S.
Second
Street, Suite 402
Springfield.
Illinois 62704
PLEASE TAKE NOTICE that
I
have today filed with the Office ofthe Pollution Control
Board
the
JOINT MOTION
TO STAY THE EFFECTIVENESS OF SECTIONS 5.10
AND 7.1.13
OF ABITEC
CORPORATION’S CLEAN AIR ACT PERMIT
PROGRAM PERMIT
and
MEMORANDUM FOR JOINT MOTION
TO
STAY THE
EFFECTIVENESS OF
SECTIONS 5.10 AND 7.1.13
OF ABITEC
CORPORATION’S CLEAN AIR ACT
PERMIT PROGRAM
PERMIT, copies of which are herewith served upon you.
~
~
Neal
H. Weinfiel~
Neal
H. Weinfield, Esq.
Bryan
F.
Keyt. sq.
Thor W.
Ketzback, sq.
Bell, Boyd
&
Lloyd
LLC
Three First National
Plaza
70 West Madison Street
Chicago,
Illinois
60602
Telephone:
312.372.1121
Facsimile:
312.827.8000
BEFORE THE ILLINOIS
ABITEC
CORPORATION,
Petitioner,
v
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
344661/E/4
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rt ~
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FEB
67003
CERTII
IC
tTI
OF SI~
14
I
STATE OF ILLINOIS
Pollution
Control
Board
I. the undersigned, certify that
I
have served the
attached .JOINT MOTION TO STAY THE
EFFECTIVENESS OF SECTIONS 5.10 AND 7.1.13 OF ABITEC
CORPORATION’S
CLEAN AIR ACT
PERMIT PROGRAM
PERMIT
and
MEMORANDUM FOR JOINT
MOTION TO
STAY THE
EFFECTIVENESS OF SECTIONS 5.10 AND 7.1.13
OF
ABITEC CORPORATION’S CLEAN
AIR ACT PERMIT
PROGRAM
PERMIT
by
depositing said document in the
United States Mail via Certified
Mail
in Chicago.
Illinois on
February 6. 2003, upon:
the following persons:
Division of Legal
Counsel
Carol
Sudman
Illinois Environmental Protection
Agency
Hearing
Officer
1021
North Grand Avenue
East
Illinois
Pollution Control
Board
P.O.
Box
19276
600
S. Second
Street,
Suite 402
Springfield,
Illinois
62794-9276
Springfield,
Illinois
62704
~W~iifieI
344661/E/4
W(iYIM4
~ECEIVtt)
U
~H
ifti.~
~
II—~\I
BEFORE THE ILLINO~8L~&1~1d’~dFIthrhOARD
FEB
62003
SIAIE OF
ILLINOIS
ABITEC CORPORATION,
)
Pollution
Control Board
)
Petitioner,
)
)
v.
)
PCB 03-95
)
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
JOINT MOTION TO
STAY THE EFFECTIVENESS OF SECTIONS 5.10 AND 7.1.13 OF
ABITEC CORPORATION’S
CLEAN AIR ACT PERMIT PROGRAM PERMIT
Petitioner, ABITEC CORPORATION (“ABITEC”),
and
Respondent, THE ILLINOIS
ENVIRONMENTAL
PROTECTION AGENCY (“IEPA”)
submit its
Joint Motion to Stay the
Effectiveness ofSections 5.10
and
7.1.13 ofABITEC’s Clean
Air Act Permit Program
(“CAAPP”)
permit pursuant
to 35
III. Adm.
Code
101.514(c).
In support of this Motion,
ABITEC submits
its Memorandum to Stay the Effectiveness of Sections 5.10
and
7.1
.13
of
ABITEC Corporation’s Clean Air Act
Program
Permit.
WHEREFORE, ABITEC
and
IEPA respectfully request the IPCB to grant
a stay of
effectiveness ofsections 5.10
and
7.1.13 ofABITEC’s CAAPP
permit until this matter is
resolved either through a Final
IPCB
Order
or
through settlement.
Dated:
February
5,
2003
Respectfully submitted,
ABITEC CORPORATION
Z~?6
44~
Neal H. Weint~eld
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
Robb
L
yman
Neal H.
Weinuield, Esq.
Bryan
E. Keyt, Esq.
Thor W. Ketzback,
Esq.
Bell, Boyd
& Lloyd LLC
Three First National Plaza
70 West Madison Street
Chicago, Illinois
60602
Telephone:
312.372.1121
Facsimile:
312.827.8000
A&ECEIVED
Ci
FRK’S O~FJCE
FEB
62003
ABITEC
CORPORATION,
po~ioEnCon
trolBoard
Petitioner,
)
)
v.
)
PCB
03-95
)
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
MEMORANDUM FOR JOINT MOTION TO STAY THE
EFFECTIVENtSSTJF
SECTIONS 5.10 AND 7.1.13 OF ABITEC CORPORATION’S CLEAN AIR ACT
PERMIT PROGRAM PERMIT
Petitioner, ABITEC
CORPORATION (“ABITEC”)
submits its Memorandum For Joint
Motion to
Stay the Effectiveness of Sections 5.10
and
7.1.13 of ABITEC’s Clean
Air Act
Permit
Program (“CAAPP”)
permit pursuant to 35
III. Adm. Code
101.514(c).
In support ofthis
Memorandum, the parties state the following:
1.
On December 31, 2002, ABITEC filed a petition to appeal
sections 5.10 and 7.1.13 ofthe
CAAPP permit issued to
it by IEPA on November 26, 2002.
ABITEC argued in its petition
that IEPA’s Prevention of Significant Deterioration (“PSD”) determination regarding
ABITEC’s Paris,
Illinois facility (“Paris Facility”) was incorrect.
On page
25
ofABITEC’s
petition, it requested that the Illinois Pollution Control Board (“IPCB”) stay the effectiveness
ofthe November 26, 2002 CAAPP permit
for
the reasons referred to in
its petition.
2.
On January 27, 2002, ABITEC
and the Illinois Environmental
Protection Agency (“IEPA”)
participated in a teleconference with Hearing Officer
Sudman.
At the teleconference,
ABITEC and IEPA agreed to schedule a follow up teleconference on January 30, 2003 to
discuss, among other things,
whetherthe IEPA
would object to
a stay ofeffectiveness ofthe
above referenced sections of ABITEC’s CAAPP permit.
)
)
3.
On January 30, 2003, ABITEC
and IEPA held a teleconference to
discuss, among other
things, an
agreed motion
to stay the effectiveness ofsection 5.10 and 7.1.13 ofABITEC’s
CAAPP permit.
Both parties agreed that the remaining provisions of the permit are currently
in effect.
4.
Pursuant to previous IPCB
rulings, the IPCB has identified five factors that it may refer to
when deciding whether a stay ofeffectiveness is appropriate:
(1) a certain and clearly
ascertainable right that needs protection; (2)
an irreparable injury will occur without the
stay;
(3) no adequate remedy at law exists; (4) a probability ofsuccess on the merits; and
(5)
environmental harm.
See Bridgestone/Firestone
Off-Road Tire Company v.
illinois
Environmental Protection Agency,
2001
WL
1388357,
3
(2001).
Without a stay of
effectiveness ofthe CAAPP sections referred to
in paragraph
3 ofthis
memorandum,
ABITEC would be required to commit significant resources to
comply with PSD
requirements before a proper legal determination on whether ABITEC
is subject to PSD
in
the first place can be made on this
matter.
In addition, ABITEC
and preceding owners ofthe
Paris Facility have been subject to the 250 tons per year PSD threshold for volatile organic
material (“VOM”) emissions since the inception of the Paris Facility’s operations.
Allowing
ABITEC
to continue operating subject to the 250
tons per year PSD threshold for VOM
emissions will not cause harm to the environment by causing an exceedence ofthe applicable
National Ambient Air Quality Standard or other air quality provisions
in the attainment area
where the Paris Facility resides.
Moreover, ABITEC will continue to comply with all other
provisions ofABITEC’s CAAPP permit, including stringent emission limitations,
recordkeeping and reporting requirements currently in effect.
5.
As represented by legal counsel, the IEPA does not object to
a stay of both permit conditions
challenged by ABITEC.
6.
Pursuant to 35 IAC
§
101.514(a), ABITEC
is concurrently filing a 180 day waiver ofthe
statutory the statutory decision deadline in a separate petition.
WHEREFORE, ABITEC and IEPA respectfully request the IPCB to
grant a stay of
effectiveness ofsections
5.10 and 7.1.13 ofABITEC’s CAAPP permit until this matter is
resolved either through a Final
IPCB
Order or through settlement.
Dated:
February 6, 2003
Respectfully submitted,
ABITEC
CORPORATION
Neal H. Weinfield
Neal H.
Weinfield, Esq.
Bryan E. Keyt,
Esq.
Thor W. Ketzback, Esq.
Bell, Boyd &
Lloyd LLC
Three First National Plaza
70 West Madison
Street
Chicago, Illinois 60602
Telephone:
312.372.1121
Facsimile:
312.827.8000
