RE
C E ~V ‘E
n
DEC
a
i
zoQz
BEFORE THE
ILLINOIS POLLUTION CONTROL BOARD
STAl~.
OF
ILLINQJS
ABITEC
CORPORATION,
)
Pollution Control Board
)
Petitioner,
)
)
v.
)
PCB xx-xxx
)
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
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
PLEASE TAKE NOTICE that I have today filed with the Office of the Pollution
Control Board
the ENTRY OF APPEARANCE OF NEAL H. WEINFIELD, BRYAN
E. KEYT,
THOR
W. KETZBACK
and
PETITION FOR
HEARING AND APPEAL, copies of which are
herewith served upon you.
Neal
~.
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
342360/F14
WXWZO4DOC
CERTIFICATE OF SERVICE
I, the undersigned, certify that I have served the attached ENTRY
OF APPEARANCES
FOR
NEAL H. WEINFIELD, BRYAN E. KEYT and THOR W. KETZBACK, and
PETITION
FOR HEARING AND APPEAL
by depositing said document in
the United States Mail in
Chicago, Illinois on December 31, 2002, upon:
the following persons:
Division of Legal Counsel
Illinois
Environmental Protection Agency
1021 North Grand Avenue
East
P.O.
Box
19276
Springfield,
Illinois
62794-9276
Neal H.
Wei
ield
342360/E/4
WXWZO4
.DOC
RECEIVED
C’
rripç~
OFFICF
BEFORE THE
ILLINOIS POLLUTION
CONTROL BOA1$~C3
12002
ABITEC CORPORATION,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
)
)
)
SiAi
L Ui-
ILLIINUIS
Pollut ion
Control Board
)
)
PCB xx-xxx
)
(Permit Appeal
—
Air)
)
)
)
)
ENTRY AND APPEARANCE OF NEAL H.
WEINFIELD
I hereby
file my appearance
in this proceeding, on behalf of ABITEC CORPORATION
Neal4l. Weinfield
Neal
H. Weinfield, Esq.
Bell, Boyd
& Lloyd LLC
Three First National Plaza
70 West Madison Street
Chicago, Illinois
60602
Telephone:
312.807.4282
Facsimile:
312.827.8182
342360/E/4
WXWZO4_.DOC
kttCEjVED
C’
‘~‘~s
CFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL
BOARDIJEC
312002
Sin,
t
Ur
ABITEC CORPORATION,
)
POllUtion
Control Board
Petitioner,
)
v.
)
PCB xx-xxx
Th
)
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
)
ENTRY AND APPEARANCE OF BRYAN E. KEYT
I hereby file my appearance in this proceeding, on behalfof ABITEC CORPORATION.
Bryan E.
Keyt
Bell, Boyd
&
Lloyd LLC
Three First National Plaza
70 West Madison Street
Chicago, Illinois
60602
Telephone:
312.372.4328
Facsimile:
312.827.8110
342360/E14
WXWZO4
.DOC
CL~~c’s
Ot~PICE
BEFORE THE
ILLINOIS POLLUTION CONTROL
Bc~Eth3
1
2002
ABITEC
CORPORATION,
)
SThit. Ut-
tLLtt’~UlS
Pollution
Control
Board
Petitioner,
)
)
v.
)
PCB xx-xxx
)
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
)
Respondent.
)
ENTRY AND APPEARANCE OF THOR W. KETZBACK
I hereby
file my
appearance in this proceeding, on behalf ofABITEC CORPORATION.
z;c&
~
Thor W.
Ketzback
U
Thor
W.
Ketzback
Bell, Boyd
& Lloyd LLC
Three First National Plaza
70 West Madison Street
Chicago, Illinois
60602
Telephone:
312.807.4437
Facsimile:
312.827.1298
342360/E/4
WXWZO4
.DOC
KtCEJtJED
CLrr#c~flt~PJCE
DEC
3
12002
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STAlL
OF
ILLINOIS
ABITEC
CORPORATION,
)
Pollution Control Board
)
Petitioner,
)
v.
)
PCB
)
(Permit Appeal
—
Air)
ILLINOIS ENVIRONMENTAL
)
—‘~~
~
1r’~
~
~
PROTECTIONAGENCY,
)
r\
DW!P~
1MJ
Respondent.
)
U
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~
PETITION FOR HEARING AND APPEAL
Petitioner, ABITEC CORPORATION (“ABITEC”), by and through its attorneys, Bell,
Boyd
& Lloyd LLC, submits its Petition for Hearing and Appeal (“Petition”) of certain
conditions within its Clean Air Act Permit Program (“CAAPP”) permit pursuant to
Section
40.2(a) ofthe Illinois Environmental Protection Act (“Act”), 415
ILCS 5/40.2(a), and 35
Ill.
Adm.
Code
105.300(c).
Under 415
ILCS
5/39.5(10),
the Illinois Environmental Protection
Agency’s (“IEPA” or “Agency”) issued a final CAAPP permit to
ABITEC on November 26,
2002 (“Final CAAPP
Permit”) which constitutes final agency action subject to appeal (Exhibit
I).
ABITEC appeals IEPA’s determination that ABITEC’s “sterol plant operations at the source
constitute a chemical process and are subject to a 100 ton per year TPY major source threshold,”
and the imposition ofpermit conditions
5.10 and 7.1.13.
In support of this Petition, ABITEC
states as follows:
I.
INTRODUCTION AND BACKGROUND
ABITEC owns a food processing plant in Paris, Illinois (“Paris Facility”). The Paris
Facility processes vegetable oils
and animal fats to produce
multiple food products,
including fat
derived products, vegetable shortenings and sterols.
Sterols, which are at issue in this
case, are
essential ingredients in certain margarine products sold on the market, such asBenecol® and
342360/E/4
wxwzo4_.DOC
Take Control®, as well as salad dressings.
Because the Paris Facility’s products are edible food
products used as ingredients by downstream food producers, it operates under Standard
Industrial Classification (“SIC”) Major
Group 20 (Food and Kindred Products) which includes
Shortening, Table
Oils, Margarine, and Other Edible Fats and Oils (SIC Code 2079), and Food
Preparations, Not Elsewhere Classified (SIC
Code 2099).
As a food production facility, the
Paris Facility is subject to regulation under the Clean Air Act’s (“CAA”) Prevention of
Significant Deterioration (“PSD”) program if it has the potential to emit 250 tons per year
(“TPY”) or more ofany
regulated pollutant.
CAA
§
169.
Nevertheless, on November 26,
2002,
based on
its misunderstanding of the Paris
Facility’s
sterol refining and
transesterification process, IEPA issued ABITEC a Final CAAPP
Permit that incorrectly characterizes
some portion (IEPA
is ambiguous as to
which
portion) of
the Paris Facility as a “chemical process plant,” subject to the PSD
program’s 100 TPY as
opposed to
250 TPY major source threshold.
Under the PSD regulations, a plant
is considered a
chemical process plant
if it falls within Standard Industrial Code
(SIC) Major Group 28.
Requirements for Preparation,
Adoption,
and Submittal of Implementation Plans; Approval
and
Promulgation ofImplementation Plans (“PSD Preamble”), 45
Fed. Reg.
52676,
52695 (August
7,
1980).
The IEPA itself has historically considered the Paris Facility’s
operations to be solely a
food processing plant
subject to the 250 tpy threshold.
The IEPA
issued a Joint Construction
and
Operating Permit in
1993
and a Revised Operating Permit in
1995 to the Paris Facility on the
basis that it was not a major source ofvolatile organic material (“VOM”) since it did not exceed
the
250
TPY PSD
threshold.
See
Joint Construction
and Operating Permit (July 29,
1993),
Operating Permit-Revised (September 22,
1995) and Construction Permit (June 2,
1998)
342360/E/4
WXWZO4
.DOC
2
(Exhibits 4,
5
and 6).
None ofthese permits made any mention ofthe
100 TPY limits applicable
to chemical process plants.
Further, before issuing the Paris Facility a National Pollution Discharge Elimination
System
(“NPDES”) permit under the Clean Water Act (“CWA”), IEPA examined whether the
Paris Facility’s
sterol refining operations could subject it to regulation under the Pharmaceutical
Manufacturing Point Source Category (40 C.F.R. Part 439).
The relevant issue involved in
that
inquiry was very similar to the inquiry in this case
—
whether the sterol operations constituted a
pharmaceutical plant
—
which,
like chemical process plants, are classified under
SIC Major
Group
28.
On March 29, 2001,
the Paris Facility submitted correspondence explaining that it
manufactures goods, including sterols, properly classified under SIC Code Major
Group 20 that
are food products rather than drugs or pharmaceuticals.
(Exhibit
16).
IEPA adopted the Paris
Facility’s position that its sterol refining operations produce food products,
rather than drugs, and
issued an NPDES permit on August
10, 2001
(No. 2001
EE 3931) regulating the Paris Facility as
a food processing plant.
In fact, IEPA still maintains that the sterol refining operations do not
manufacture pharmaceutical products subjecting it to CAA standards for hazardous air pollutants
for Pharmaceuticals Production (40 C.F.R. Part 63, Subpart GGG) in the Final CAAPP Permit at
pages
15
and
23.
(Exhibit
1).
However, IEPA is now attempting to
find a new path to
characterize the Paris Facility under SIC Major Group 28.
ABITEC
is appealing IEPA’s decision to classify any part of its
sterol refining process,
or its other food production operations, as a “chemical process plant” for PSD purposes.
Such a
determination is inconsistent with the expressed and implied purpose ofthe federal PSD
regulations.
As set
forth below, ABITEC contends that the sterol transesterification process
as
well as the sterol refining process, are food processes in and of themselves, as well as support
342360/E/4
WXWZO4
.DOC
3
processes for the other food ingredient manufacturing operations at the Paris
Facility.
Further,
in
issuing the Final CAAPP Permit, IEPA
failed to provide adequate notice to ABITEC
and the
public and an opportunity
to comment on the new CAAPP permit conditions allegedly required
by Illinois
and Federal law.
IEPA’s decision may have serious potential consequences for large
segments of the entire food industry where transesterification is a common
process.
This is not
what Congress or U.S.
EPA intended.
II.
DESCRIPTION OF THE SOURCE
The Paris Facility operates three different production processes: (1) vegetable shortening,
animal
fat, fat derivatives, and emulsifiers flaking (“Flaking”),’
(2) vegetable shortening, animal
fat, fat derivatives
and emulsifiers spray-chilling (“Spray-Chilling”);2 and (3) sterol refining and
prilling.
See
Sarrazin Affidavit, at
¶
4 (Exhibit 7) and Hinkle Affidavit, at
¶
4
(Exhibit 8).
Sterol
refining accounts for approximately
17
of the Paris Facility’s throughput.
See
Hinkle Affidavit
at
¶
9.
All three operations are food productionprocesses. Flaking takes hydrogenated vegetable
shortening, animal fat, fat derivatives and emulsifiers and subjects it to temperature changes that
convert it from a liquid into a solid so that it can then be
packaged and ultimately used by the
baking industry as a shortening chip.
Hinkle Affidavit, at
¶
6.
Similarly, Spray Chilling
converts hydrogenated vegetable shortening, animal
fat, fat derivatives and emulsifiers from a
liquid
to
a solid state for sale to the baking industry.
Hinkle Affidavit, at
¶
7.
This operation takes raw materials such as hydrogenated vegetable shortening, animal fat, fat
derivatives and emulsifiers, which are in
a molten
liquid state and pours the
raw materials
over a
chill roll (ammonia/glycol cooling
loop), where
the raw materials congeal and immediately flakes off
ofthe chill
roll.
The liquid raw materials flake because the process subjects it to temperature
changes that chill the materials.
The flakes are used as shortening “chips” by the baking
industry.
2
The same raw materials used in the
Flaking process can be subjected to Spray-Chilling.
The liquid
raw materials are sprayed using a high pressure pump into the top ofa large chamber.
Duringthe
process the raw materials
are cooled and become a solid. The Spray-Chilling operations produces a
finer and more spherical product than the Flaking operations.
Similar to the flakes, after these
materials are packaged, they are used as food additives and lubricants in
the baking
industry.
342360/E/4
WXWZO4_.DOC
4
Sterols, the food ingredient that IEPA has focused on, are complex groups of alcohols
that naturally occur in plants and vegetable oils and are used as food ingredients in margarine
and salad dressing.
Sarra.zin affidavit, at
¶
12.
The Paris Facility receives two basic raw
materials for its sterol
operations:
(1) crude free sterols, and
(2) sterol ester residues (“SER”).
Id.
at
¶
5.
Crude free sterols amount to approximately 64
ofthe sterols processed at the Paris
Facility.
Hinkle Affidavit at
¶
10.
SERs amount to approximately 36
ofthe sterols processed
at the Paris Facility.
Id.
Only SERs undergo the transesterification process which IEPA
contends subjects at the Paris Facility to the
100 TPY threshold.
The Paris Facility refines these
two raw materials using the methods described below to extract impurities leaving refined free
sterols.
Sarrazin affidavit, at
¶
5.
The refined free sterols are then
sent to the Paris Facility’s
prilling/chilling operations (“Prilling Department”) where they
are spray congealed into a solid
product that
is
sold to
other food producers who add these ingredients to
food products.
Sarrazin
affidavit, at
¶
11.
Because ABITEC
receives rawmaterial
in two separate forms (crude free sterols and
SERs), it uses two
separate sterol purification processes.
In the SER process, which occurs in
vessels Ki, K4, and K6,
crude free sterols are separated from the esters
in the SERs using
methanol and sodium
methylate in a heptane solvent via a transesterification process whereby
fatty acid methyl esters are detached from the crude free sterols.
Sarrazin affidavit, at
¶
6.
Transesterification is merely the separation ofan
ester from the crude free sterols. It is essentially
no different than the digestion process which breaks down certain foods in the human stomach.
After the transesterification process is completed, the crude free sterols
are physically
concentrated by recrystallization.
Id.
at
¶
9.
This
is followed by a series of washings and
filtrations
in vessels K2, K5 and K7.
Id.
at
¶
10.
After each washing, the material is physically
342360/E/4
WXWZO4_.DOC
5
filtered to
capture the free sterol product and remove impurities such as salts,
fatty acids, sterol
by-products,
squalene, and methanol.
Id.
The purified free sterols are then transferred in molten
form to the Prilling Department.
Id.
at
¶
11.
In the crude free
sterol process, the Paris Facility receives concentrated
sterol distillate
(crude free sterols)
in the form of solid blocks referred to as “pigs.”
The solid pigs are melted
down and
recrystallized in vessels K!, K4 and
K6.
Sarrazin Affidavit
¶
7.
They are then
transferred to vessels K2, KS
and K7 where they are washed using heptane to separate
the
impurities from free sterols.
Id.
at
¶
8.
The “pigs” do not undergo transesterification.
Id.
at
¶
5.
As in
the SER process, the final step in the crude free sterol process requires the purified free
sterols
to be
sent in molten form to the Prilling Department.
Id.
at
¶
11.
The Prilling Department takes the refined, purified free
sterols and
spray congeals them
into
small spheres or pellets called prills.
Sarrazin Affidavit, at
¶
11.
The molten sterols are first
pumped to
the top of a prilling tower where they are sprayed down through a silo
and cooled to
form a solid,
congealed free sterol substance which are sold to food manufacturers.
Id.
at
¶~J
11
and
12.
The sterol refining process emits VOM formed when heating methanol and heptane.
DeToro
Affidavit at
¶
4
(Exhibit 9).
Each vessel is connected to a primary condenser that
captures VOM.
Id.
The primary condensers are connected to two
secondary condensers, SC-i
and SC-2, which recover 99 percent ofall methanol emissions,
and 43.5 percent of heptane
emissions.
Id.
The maximum potential VOM emissions
from the entire sterol process, including
transesterification, crystallization and filtration,
is
176 TPY.
The maximum potential VOM
emissions resulting solely
from vessels Ki,
K4 and K6 (vessels where both
crystallization and
342360/E/4
WXWZO4
.DOC
6
transesterification occur) is 45.76
TPY.
Id.
at
¶
5.
The maximum potential VOM emissions
from just transesterification in
vessels Ki,
K4 and
K6 is 28.60 TPY.
Id.
III.
IEPA’s FINAL DECISION ON ABITEC’S
CAAPP PERMIT
The
Paris Facility3 applied for a CAAPP permit on March
12,
1997.
Five years later, on
April ii,
2002, the IEPA issued a notice
and draft CAAPP permit (“April
Draft Permit”) for
public comment for the Paris Facility.
(Exhibit 2).
The public comment period closed on
May
11, 2002.
As required by 415 ILCS
§
S/39.S(8)(b), the April Draft Permit contained the
legal
and factual
basis for the permit conditions.
However, notably absent from the April
Draft
Permit
(“April Draft Permit”) was any discussion of IEPA’s view that ABITEC’s sterol refining
process was a “chemical process” under
CAA
§
169 that would subject it a 100 TPY PSD
applicability threshold and
subject the Paris Facility to
a compliance plan and schedule.
(April
Draft
Permit, Exhibit 3).
After the close of the public comment period and only twelve days
before issuing the Final CAAPP Permit,
IEPA issued another draft CAAPP permit solely to
ABITEC
by e-mail on November 14,
2002.
(November Draft Permit, Exhibit 2).
The
November Draft Permit was not publicly noticed pursuant to 415 ILCS
§
5/39.5(8)(b).
However,
on pages
18-19 ofthe November Draft Permit,
IEPA imposed, for the first time,
a PSD
emissions threshold of 100 TPY4
on ABITEC’s sterol refining process and
imposed a costly
and
burdensome compliance plan and schedule.
The IEPA explained the basis for its
reasoning as
follows:
ABITEC purchased the Paris Facility from
ACI-I Food Companies,
Inc. (“ACI-l”) on September
1,
2002.
Prior to ABITEC, ACH purchased the
Paris Facility from Morgan Specialties, Inc.
on
September
I, 1998.
IEPA specifically imposed this
limit on the Volatile Organic Material (“VOM”) emissions
emanating from ABITEC’s sterol refining process.
VOM are precursor pollutants that
form
ozone
pollution.
342360/E/4
WXWZO4_.DOC
7
The Illinois EPA’s
imposition ofthis
requirement is authorized
pursuant to
Section 39.5.7(a) of the Act and is accompanied by a
more detailed schedule of compliance in Condition
7.1
.13 of this
permit.
This requirement is being imposed because the Illinois
EPA has determined that the sterol
plant operations at the source
constitute a chemical
process and are subject to a 100 tons per year
major source threshold under PSD.
In this regard, chemical
process plants are one ofthe 28 stationary source categories under
the
PSD program that are subject to a 100 tons per year major
source threshold, rather than a 250 tons per year threshold.
b.
Note:
The Illinois EPA has concluded that the sterol refining
operations constitute a “chemical process plant” by virtue of the
nature of sterol refining and a plain reading ofthe Standard
Industrial Classification (“SIC”) Manual.
The use ofmethanol and
heptane solvents to
convert crude sterol esters into crude free
sterols and
fatty
acid methyl esters is
a process known as
“transesterUication.
“~
component ofthe Permittee ‘s sterol
refining operations
is
a type of chemical processing that would
commonly be found in manufacturingfacilities regulated by the
“chemicalprocess plant” category ofthe PSD regulations.
The
operations are
also indicative of an industrial activity engaged in
the manufacture of industrial organic chemicals under the SIC
classification scheme adopted by the USEPA in administering the
PSD regulations.
A review ofthe
SIC codes reveals that sterol
manufacturing can reasonably be
classified under 2869, entitled
“Industrial
Organic Chemicals, Not Elsewhere Classified.”
The Illinois EPA has considered the Permittee’s assertions that the
primary activity of its facility is food manufacturing (processing of
edible vegetable oils and animal fats).
Even assuming that
some
portion ofthe stationary source is engaged in food manufacturing,
the
sterol manufacturing operations emit, or have the potential to
emit, VOM emissions of greater than
100 tons per year and
therefore constitute a major source by themselves.
Because the
sterol manufacturing operations represent an embedded part ofthe
source that
is distinguishable from,
and not essential to, those
activities that are otherwise classified as food manufacturing, they
may be considered by themselves for purpose of determining
whether they are a major source for purposes of PSD.
ISPA’s understanding of the process is incorrect.
Sodium methylate, heptane and methanol are used
to convert sterol ester residue into crude free sterols and fatty acid methyl esters.
This process
is
known as transesterification.
3423601E/4
W~WZO4.DOC
8
See
November Draft Permit, Condition ¶5.10 at
18-19 (Exhibit 2) (emphasis added).
The
IEPA
issued the November Draft Permit as a final permit on November 26, 2002.
See
Final CAAPP
permit (Exhibit 1).
The
legal and factual
basis for IEPA’s PSD determination is vague and ambiguous
regarding exactly what part of ABITEC’s food processing plant
is subject to
the
100 TPY PSD
major source threshold as a “chemical process plant.”
It is unclear if IEPA is attempting to apply
the
100 TPY threshold to:
(1)
the entire Paris Facility; (2) the entire
sterol refining process; (3)
vessels Ki, K4 and K6 where the transesterification and recrystallization occur; or (4) just the
transesterification operations in vessels Ki, K4,
and K6.
IEPA
appears to be.taking seemingly
irreconcilable positions.
On one hand, IEPA may be taking the position that transesterification,
which accounts for a minor percentage ofthe Paris Facility’s total activity and less than one-third
of the sterol refining process emissions, renders either or both of these operations, in their
entirety, a chemical process plant.
On the other hand, IEPA may be
taking the position that even
though the Paris Facility is a food processing plant under SIC Code 20, the transesterification
process (or
perhaps the entire sterols refining process) should be considered separate and distinct
from the Paris Facility’s other food processing operations, and regulated on its own.
IEPA either
wants the tail of the dog (the
transesterification process) to be considered an
animal unto
itself
(i.e., regulated under the
100 TPY threshold on its own) or to wag the dog (i.e., subject all
activities within vessels Ki, K4 and K6, the entire
sterol refining process, or even perhaps the
entire Paris Facility to the
100 TPY threshold).
The PSD regulations and U.S.
EPA guidance,
however, provides that it is the operations ofthe entire dog, the Paris
Facility as a whole which is
subject to 250
TPY threshold, not the operations of the tail, that determines which PSD threshold
applies.
Below,
ABITEC addresses each possible position taken by IEPA.
342360/E/4
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.DOC
9
IV.
THE PSD PROGRAM REGULATES THE PARIS FACILITY ACCORDING TO
THE NATURE OF THE
PRODUCTS IT PRODUCES AND
TRANSESTERIFICATION IS A SUPPORT ACTIVITY NOT SUBJECT TO
INDEPENDENT REGULATION
A.
The Paris Facility
is Regulated Based
on its Primary Activity, Food
Production, Classified
Under SIC Code 20 and Thus
is Subject
to 250 TPY
PSD Threshold
The CAA’s New Source Review (“NSR”) regulations are divided into
two programs:
(1)
PSD and
(2) Nonattainment NSR.
PSD regulations apply to “major” stationary sources that are
constructed or modified within areas that are in
compliance with the National Ambient Air
Quality Standards for a given pollutant (“Attainment Areas”).6 The Paris Facility is located in an
ozone Attainment Area.
A stationary
source must be “major” to
be subject to
PSD requirements.
CAA
§
169(1)
provides two
separate emission thresholds that trigger PSD requirements
for a “major emitting
facility.”7
A
chemical processingplant,
among other stationary sources specifically
listed at
CAA
§
169(1),
is subject to
PSD regulations if it has the potential to
emit
100 TPY or more of
any regulated pollutant.
Id.
On the other hand, stationary sources not specifically listed at CAA
§
169(1), including food production plants, are only subject to PSD requirement.~
if ithasthe
6
Pursuant to 40 C.F.R.
§
52.2 1(v), the United States Environmental Protection Agency (“U.S.
EPA)
can delegate to
a State the authority to implement and enforce the Federal PSD program.
Because
Illinois did
not create
its own PSD program, on
April
7,
1980, at Illinois’ request,
U.S. EPA
delegated to Illinois the authority to implement
and enforce the Federal
PSD program.
See 46
Fed.
Reg.
9582 (January
29,
1981).
According to the Illinois-U.S. EPA Agreement for
Delegation, IEPA
is
the Illinois
state agency with the authority to implement the Federal
PSD program.
ld.
For purposes ofPSD
requirements, a “major emitting facility”
is the same as a “major stationary
source.”
“Major stationary source”
is defined at 40
C.F.R.
§
51 .66(b)(1).
A comparison ofthe
language within CAA
§
169(1) and
40 C.F.R.
§
51 .66(b)(1) reveals that the language is virtually
identical.
Although the
CAA does not define “plant,” a common
interpretation of“plant”,
provided by
Webster’s
Dictionary,
is “an industrial or manufacturing establishment:
FACTORY.”
Webster’s
II,
New Riverside
University Dictionaiy,
(1988).
To
a reasonable person,
under the
PSD regulations,
ABITEC’s Paris
Facility would
be
a food processing plant.
3423601E14
wxwzo4_noC
10
potential to emit 250 TPY or more of any pollutant.
Id.
Because ABITEC’s Paris Facility is a
food processing plant, it must be subject to the 250 TPY PSD emissions threshold, not the
100
TPY threshold.
The transesterification process which occurs only in vessels Ki, K4 and
K6 is not, in and
of itself,
a chemical process plant,
and does not render the entire Paris Facility a chemical
process plant.
The PSD regulations
group air emission units together into a single “stationary
source” according
to the major industry group in which they belong.
The PSD regulations define
a “stationary source” as “any building, structure, facility, or installation which emits or may emit
any
air pollutant subject to regulation under the Act.”
40
C.F.R.
§
51.1 66(b)(5).
“Building,
structure, facility or installation” means the following:
all
ofthe pollutant-emitting activities which belong
to the same industrial
grouping, are located on one or more contiguous or adjacent properties, and are
under the control of the same person (or persons under common control) except
the activities of any vessel.
Pollutant-emitting activities
shall be considered as
part of the same industrial grouping if they belong to the same
Major Group
(i.e.,
which have the same two-digit code) as described in the
Standard Industrial
Classj/Ication Manual,
1972,
as amended by the
1977 Supplement (U.S.
Govemment Printing
Office stock numbers 4101-0066 and 003-005-00176-0,
respectively).
40 C.F.R.
§
51.1 66(b)(6) (emphasis added).
The definition of “plant” and “stationary source”
under the PSD regulations are akin.9
PSD Preamble, 45
Fed.
Reg. at 52694.
Thus, a stationary
source
includes all buildings that
are used to
produce a product contained in the same
SIC code
major grouping.
The categorization of the plant depends on the nature ofthe products produced
by the plant
—
in this case food ingredients
—
and not on the nature ofthe production process.
The PSD classifications are based on the first two digits ofthe SIC code section connoting the
As will be discussed
in Section V(B) ofthis CAAPP appeal, the definition of stationary
source
differs under the PSD
and Nonattainment NSR regulations.
34236OfEf4
WXWZO4
.DOC
11
major industrial group to which a facility belongs.
PSD Preamble, 45
Fed.
Reg.
at 52695.
The
preamble to
the PSD regulations provides that
“each
source is
classified according to
its
primary activity, which is determined by its
principal product, or group of products produced or
distributed, or services
rendered.”
Id.
U.S. EPA, Regions, has stated “if an entire source has the
potential
to emit of less than 250 TPY, then the existence of a major nested source
does not make
the entire source major for purposes of PSD applicability.”
Correspondence from
Cheryl
Newton, Chief, Permits and Grants Section to Robert Hodenbosi, Chief, Division of Air
Pollution Control, Ohio Environmental Protection Agency, at 2-3 (January 22,
1998) (Exhibit
10).
The Paris Facility produces food ingredients covered by
SIC Major Group
20 (Food and
Kindred Products) which includes Shortening, Table Oils, Margarine, and Other Edible Fats and
Oils (SIC Code
2079), and Food Preparations, Not Elsewhere Classified (SIC Code 2099), not
chemicals covered under
SIC Code 2869 (Industrial Organic Chemicals, not
elsewhere
classified).
Because transesterification produces food ingredients, is an essential
support activity
to the Paris Facility’s other food ingredient production processes, and
constitutes a minority of
the activities taking place
not only within the sterol refining process, but also the entire Paris
Facility, the transesterification process is considered a food production activity within an overall
“stationary source” and along with the rest ofthe plant
is subject to
the 250 TPY major source
threshold.
U.S.
EPA has specifically acknowledged that neither
it nor Congress intended the term
“chemical process plant” to
encompass every facility that contained a chemical process. In fact,
U.S.
EPA specifically limited the scope ofa “chemical process plant” to
SIC Major Group 28:
342360/E/4
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12
For several years the Agency has been faced with
the problem of defining certain
of the 28
listed categories of 100 TPY sources for PSD
in an objective and
comprehensive manner.
The case of the category chemical process plant is
particularly difficult since virtually any manufacturing
process
which combines
raw materials could, in some way, be
construed as a “chemical process plant.”
The Agency had to make ajudgment as to what it would consider as a “chemical
process plant.”
EPA, in the August 7,
1980 PSD rules,
refined the definition of
source to
include a reference to
the source’s industrial grouping.
This
was
defined as activities identified within the same first two digit
code of the Standard
Industrial Classification
(SIC) Manual.
For several reasons, including the desire
to maintain consistency with the aforementioned use ofthe SIC Major Group
listing,
the Agency decided to adopt the Major Group 28
listing as the definition
of “chemicalprocess plant.”
The Agency needed a definition that would be
objective and provide
an easy reference for industry as well as permitting
authorities.
The SIC manual is accepted and
used throughout industry, trade
associations and
government agencies for industrial groupings.
Major Group 28
provides a quick reference and comprehensive listing of chemical processes and
products.
Use ofthis definition would minimize any possible subjective
determinations when implementing the PSD rules....
In summary, the Agency
decided to
adopt the SIC Manual
Major Group 28
listing as the description of
chemical process plant for the purposes of PSD review and this
office has
consistently informed EPA’s Regional Offices of this policy
in order to
ensure
uniform regional implementation of this requirement.
See
Classification of the Bardstown Fuel Alcohol
Company under PSD, August 21,
1981
(emphasis added) (Exhibit 11).
When determining whether a facility fits within a particular SIC
Code, U.S.
EPA looks at the nature ofthe facility’s product,
not the nature of the facility’s
process.
In further support ofthis conclusion, U.S.
EPA has issued guidance and correspondence
asserting that sources outside ofSIC Major Group
28
are not “chemical process plants.”
For
instance,
a beverage distillery is not
a chemical process plant because they are SIC Major Group
20.
Correspondence from Thomas
W. Devine, Director Air and Hazardous Materials
Division,
United States Environmental Protection Agency, Region IV to
State/Local Director, at
3
(March
11,
1981).
(Exhibit
12).
Also,
U.S. EPA opined that it was not Congressional intent to cover
glass manufacturing plants under the chemical process plant category.
Correspondence from
342360/E/4
wxwzo4
.DOC
13
Walter C.
Barber, Director, Office ofAir Quality and Planning Standards to Roger Strelow,
Leva, Hawes, Symington, Martin & Oppenheimer, (December 21,
1979).
‘°
(Exhibit 13).
In addition, a plain reading of the SIC Manual
clearly indicates that facilities which
manufacture food products are not classified under Major Group 28—Chemicals and Allied
Products.
In describing a chemical product, the SIC Manual clearly distinguishes between
chemical
products and food products.
“This major group includes establishments producing
basic chemicals, and establishments manufacturing products by predominantly chemical
processes.
Establishments classified in this
major group manufacture three general
classes of
products:
(I) basic chemicals, such as acids, alkalis, salts, and organic chemicals;
(2) chemical
products to be
used in further manufacture, such as synthetic
fibers, plastics
materials, dry colors,
and
pigments;
and (3) finished chemical products to be used for ultimate consumption,
such as
drugs, cosmetics, and soaps;
or to be used as materials or supplies in other industries, such as
paints, fertilizers and explosives...
Those manufacturing bakingpowder,
other leavening
compounds, and starches are class?.fIed in Major Group 20...”
Standard Industrial Classification
Manual,
132 (1987) (emphasis added).”
The
Paris Facility produces shortening and
edible food
ingredients (Hinkle Affidavit, at
¶
6 and 7 and
Sarrazin Affidavit at
¶
12)rather than basic
chemicals, synthetics, drugs or explosives and thus
is classified under Major Group 20.
Thus,
the SIC Manual, which U.S. EPA relies on to
define “stationary sources” under its
PSD
regulations, categorizes ABITEC’s food ingredient refining process in the Major Group 20
‘°
The analysis in this
letter is based on
the
1977
CAA
§
169.
However, the
1990
CAA
§
169
is
virtually identical.
Further,
an examination ofthe
numerous industrial organic chemicals
listed at SIC Code 2869,
which IEPA contends
sterols can be classified as, reveals that sterols are not within that
list.
Standard Industrial Classification
Manual, at
145 (1987).
342360/E/4
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.DOC
14
which applies to
food manufacturers rather than chemical products manufacturers.listed in Major
Group 28.
Finally,
it should be noted
that if Congress or U.S.
EPA intended to impose the same
PSD emission threshold that applies to
“chemical processing plants” to
“food processing plants,”
it would
have listed food processing plants in CAA
§
169 as one of the 28 types offacilities to
which the
100 TPY emission threshold applies.
B.
The Paris Facility’s Primary SIC Code is 20 and the Transesterification
Process is a
Food Ingredient
Production Support Activity Not Subject to
Separate Regulation
Even if the transesterification process were to
fall within SIC Code 28, because it
supports other food processing operations that occurat the Paris Facility, the PSD regulations
provide that it is still not regulated separately from the Paris Facility’s other food manufacturing
operations.
The PSD regulations require that emissions units, such as vessels K1, K4, and K6,
be
considered within the context of the entire plant, not as a stand-alone units subject to their
own
set of regulations.
When U.S.
EPA evaluated whether emission units should be regulated individually under
the PSD regulation (applicable to Attainment Areas), as they are under the nonattainment NSR
(“NSR,” applicable to nonattainment areas), U.S. EPA concluded that whereas the nonattainment
NSR regulations can apply to
each individual emissions unit, the PSD regulations
would apply to
the entire plant.
PSD Preamble, 45
Fed.
Reg.
at 52697.
As a result, nonattainment NSR “would
bring
in more sources or modifications for review than would the plant-wide
definition used for
PSD purposes.”
Id.
Nonattainment NSR regulates a broader range of sources because the
purpose of its provisions are to
“positively reduce emissions,” not
merely hold emissions
constant.
Id.
On the other hand, the goal ofPSD
provisions are to maintain existing air quality.
Id.
Thus, a “stationary source” or “plant” is not an “emission unit” under PSD.
Rather, a
342360/E/4
wxwze4
.DOC
15
“stationary source” is an
aggregation of “emission units” which make up the “common sense
notion ofa plant.”
Id.
at 52694.
The preamble to
PSD regulations states that “one source classification encompasses both
primary and support facilities,
even when the latter includes units
with
a different two-digit SIC
code.”
Id.
The preamble to the PSD regulations defines
support facility as “those which convey,
store, or otherwise assist
in the production of the principal product.”
Id.
at 52695.
U.S.
EPA
Region
5
has stated a support facility is one
“where more than 50
ofthe output or services
provided by one facility is dedicated to
another facility that it supports.”
Correspondence from
Robert B. Miller,
Chief, Permits and Grants Section
to William Baumarm, Chief, Combustion
and Forest Products Section,
Wisconsin Department ofNatural Resources, at 2 (August 25,
1999) (regarding Oscar Meyer Foods) (Exhibit
14).
Any other interpretation would infringe on
the common sense notion of a plant.
See
PSD Preamble, 45
Fed. Reg. at 52695.
Here, all ofthe
transesterification process output is dedicated to the sterol refining process which, in turn
supports the prilling department which produces food ingredients.
In other situations similar to that
at the Paris Facility,
U.S. EPA has repeatedly
determined that a support facility is not to be regulated separately from the rest of the plant.
For
example, U.S.
EPA determined that an electrical power plant that supplied
all its electricity to
a
Coors brewery
must be considered a part of the brewery itself and thus a single source
because
the electrical power plant was a support facility for the primary economic activity of Coors,
brewing beer (which is
SIC Major Group 20).
Correspondence from Richard R.
Long, Director,
Air Division to Julie Wrend, Air Pollution Control Division, Colorado Department of Public
Health and Environment, (November 12,
1998) (Exhibit
15).
See also
Correspondence from
Robert B.
Miller, Chief, Permits and Grants Section to William Baumann, Chief, Combustion
34236 01E14
WXWZO4
.DOC
16
and
Forest Products
Section, Wisconsin Department of Natural Resources,
at 2 (August
25,
1999) (regarding Oscar Meyer Foods) (Exhibit
14).
Transesterification is a separate
support
activity
preceding sterol refining, and is the
classic example of a support process.
The Paris Facility receives SERs which must be
transesterified before they can be refined into purified free sterols.
Without transesterification,
the crude free sterols cannot be adequately refined to
mix with other ingredients that comprise
certain salad dressings and margarmnes.
Sarrazin Affidavit, at
¶
12.
Surely, if U.S. EPA
considers
an electrical power plant to be a support process for Coors’ brewing
facility, then
transesterification must be a support process for ABITEC’s food production facility.
Consequently, the PSD regulations that govern food producers apply
to
all ofthe Paris Facility’s
operations, including transesterification.
Because transesterification is
a minor portion ofthe
sterol refining “stationary source” under the PSD regulations, and that “stationary source”
produces
food ingredients, the 250 TPY emission threshold that applies to food producers in
SIC
Major Group 20
is applicable to transesterification and the rest of the sterol refining process.
As
discussed above,
all Paris Facility
activities are categorized under SIC Major Group
20, including the activities taking place in vessels Kl, K4, and K6, and are conducted to create
food ingredients.
When creating the PSD regulations, U.S.
EPA did not intend to regulate the
three vessels (K!, K4 and
K6) used for transesterification separately as “chemical process
plants” under the PSD regulations. U.S.
EPA intended for individual pollutant emitting activities
to
be
grouped when they can reasonably be grouped together within a common industrial
classification.
IEPA’s attempt to segregate
the transesterification activities in vessels Ki, K4
and K6 from the rest ofthe Paris Plant violates U.S.
EPA’s intent and the PSD regulations.
3423601E/4
wxwz04.DOC
17
V.
PURSUANT TO
THE PSD REGULATIONS, THE
TRANSESTERIFICATION
PROCESS, IN
AND OF ITSELF, DOES NOT TRIGGER PSD REGULATIONS
Even if the IPCB concludes that the transesterification process should be consideted a
separate emission source, the process still does not meet the definition of a ch~micaLprouess
plant set forth in Major Group
28.
Further, the process has a potential to emit
VOM of less than
100 tpy which is below the major source threshold applicable to chemical process~pFants.
A.
Transesterification is
not a chemical process plant.
First, the transesterification process does not “manufacture” the products covered by SIC
code Major Grouping 28:
(1) basic chemicals, such as acids, alkalis, salts and organic chemicals;
(2) chemical products to be used in further manufacture such as synthetic fibers, plastic
materials, dry colors,
and pigments; and (3) finished chemical products to
be used for ultimate
consumption,
such as drugs, cosmetics and soaps, or to be
used as materials or supplies inother
industries,
such as paints, fertilizers and explosives
.
.
.“
Standard Industrial Classification
Manual at
132 (1987).
Crude free sterols certainly do not fit the definition of “basic chemicals”
which is defined as “a chemical
produced in tonnage quantities, often in a relatively
impure
state.”
Hawley’s Condensed Chemical Dictionary at 587, (l2~”
ed.
1993).
The sterols do
not
exhibit characteristics similar to “synthetic fibers, plastic materials, dry colors and pigment.”
Moreover, IEPA has admitted that the sterols are not “drugs” or “pharmaceuticals,” and
has
never alleged that the sterols are “cosmetics or soaps,” nevermind “paints, fertilizers and
explosives.”
(See
Exhibit
1, Final Permit, Condition
5.3.1.)
Rather, as described throughout this
Petition, transesterification is a food production process.
342360/E/4
WXW~O4.DOC
18
B.
Transesterification has the potential to emit less than TPY VOM and does
not trigger PSD major source threshold.
Even if the vessels used for transesterification
in and ofthemselves constitute a
“chemical process plant,”2 which they do not, potential emissions from these three vessels are
less than the
100 TPY threshold. As described in his affidavit, ABITEC’s expert consultant, Jeff
DeToro, calculated the potential VOM emissions from Ki, K4, and K6 where transesterification
and crystallization occur and
the VOM emissions that result solely from
transesterification using
the same methodologies
and assumptions which
form the basis for the Final CAAPP Permit.
DeToro Affidavit, at
¶
5.
Mr. DeToro found that maximum potential VOM emissions of vessels
Ki,
K 4
and K6 are approximately
45.76
TPY (includes transesterification and crystallization)
and the VOM emissions from transesterification alone are 28.60 TPY, respectively.
Id.
Because
these emissions are less than
100 TPY, even if the PSD emissions threshold for “chemical
process plant” is employed, the vessels Ki, K4 and K6 are not a “major stationary source” under
PSD regulations.’3
2
IfIEPA insists
on
labeling the transesterification vessels a chemical process and regulated under SIC
Major Group 28, then they must
be carved out from the rest ofthe sterol refining operations in order
to
be consistent with the definition of“stationary source” or “plant” under the PSD
regulations.
These
regulations require an aggregation ofemission units with the same industrial grouping (SIC
Major Group classification).
PSD
Preamble,
45
Fed.
Reg. at 52694.
‘~
If IEPA
is arguing that the
entire sterol refining process (as opposed to just the transesterification
process) constitutes
a separate “chemical process plant,” IEPA’s argument fails because the
remainder ofthe sterol
refining process (i.e., after transesterification) does not constitute a
chemical
process.
Rather,
it
is
a series of
physical
processes.
The recrystallization, washing and filtration, and
prilling of sterols, which occur after transesterification
is complete, are
clearly “physical” processes
according to the fundamental principles of chemistry.
Chemical changes are defined as “a
rearrangement ofatoms, ions, or
radicals ofone or more substances resulting in the formation ofnew
substances often having entirely different properties.”
Hawley’s Condensed Chemical Dictionary
(12th
Ed.), at 250 (1993).
“Chemical changes should
be distinguished from physical changes,
in
which
only the state or condition of a substance
is modified,
its chemical nature remaining the
same.”
Id.
Dale Sarrazin (“Mr.
Sarrazin”), the supervisor of sterol refining activities at the Paris
Facility, explains that
recrystallization, washing and filtration, and prilling are physical processes.
Sarrazin affidavit, at
¶IJ
9-1 1.
According to Mr. Sarrazin, there are no chemical reactions associated
with recrystallization and the crude free sterols subjected to recrystallization
simply change from
a
342360/E/4
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19
VI.
IEPA FAILED TO SATISFY NOTICE AND PUBLIC COMMENT
REQUIREMENTS
Section 5/39.5(8) of the Act requires the IEPA to provide public notice and an
opportunity to comment on draft CAAPP permits.
415
ILCS
§
5/39.5(8).
Further, the draft
CAAPP permit must contain “a statement that
sets forth the legal and factual basis for the draft
CAAPP permit conditions.”
415
ILCS
§
5/39.5(8)(b).
See also
Procedures For Public Review at
35
Ill. Adm.
Code
§
252.201.
Moreover, the fact sheet accompanying a draft permit shall also
“describe
the basis for the IEPA’s decision to grant the permit including an explanation of the
source’s effect of ambient air quality.”
35
Ill. Adm. Code
§
252.203(a).
On April
11, 2002, the IEPA
issued a notice and the April Draft
Permit for public
comment on ABITEC’s Facility.
The public comment period closed
on May
11, 2002.
As
required by 415
§
5/39.5(8)(b), the April Draft Permit contained the legal and factual basis for
the permit conditions.
However, notably absent from the April Draft Permit was a discussion of
IEPA’s conclusion that ABITEC’s sterol refining process was a “chemical process” that would
subject its
refining activities to a
100 ton per year PSD
applicability threshold.
IEPA issued a
second
and final draft of the CAAPP
permit solely to ABITEC by e-mail on November
14,
2002.
The November Draft Permit did not
follow the applicable public comment and
notice
requirements.
IEPA finalized the November Draft Permit on November 26, 2002.
Consequently,
liquid to a solid state ofmatter.
Id.
at
¶
9.
Similarly, washing and filtration (filtration
is defined as
“the
operation ofseparating suspended solids from
a liquid (or gas) by forcing the mixture through
a porous barrier.”
Hawley’s Condensed Chemical Dictionary
(12th
Ed.), at 521
(1993)) ofcrude free
sterols
do
not involve a chemical change ofthe crude
free sterol.
Impurities attached to the crude
free sterols are separated from the sterol by washing, instead ofa chemical reaction.
Id.
at~
10.
Next, the crude free sterol
is separated from the liquid methanol used to wash the sterols
by
filtration.
Jd.
Finally,
after crude free sterols have undergone the Paris Facility’s sterol refining processes, they
are
sent to the Prilling Department to
be spray congealed from a liquid state
into solid mailer by
chilling the
sterols.
Id.
at
¶
11.
Once again, this only constitutes
a change in the state ofthe crude
free sterol, not a chemical reaction.
342360/E14
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.Doc
20
neither ABITEC nor any other potentially affected
food processing
source haclanopportunity
to
provide comment as required by Section 5/39.5 of the Act.
CAAPP permits are considered a “license” under the federal and
Illinois Administrative
Procedure Acts.
See
5
U.S.C.
§
55 1(8).
See also
Illinois Administrative Procedure Act at
5
ILCS
100/1-35.
While
a final permit issued by a regulatory agency is not required to be identical to
a
draft permit, a final permit must be a “logical outgrowth of the draft permit.”
Natural Resources
Defense Counsel
v.
UnitedStates Environmental Protection Agency (NRDC 1),
279 F.3d
1180 at
1185,
See Shell Oil Company v.
Environmental Protection Agency,
950 F.2d 741,
751
(D.C.
Cir.
1992) (discussing the logical outgrowth concept in a rulemaking context).
In other words, “the
essential inquiry focuses on whether the interested parties reasonably could have anticipated the
final rulemaking from the draft permit.”
Id.,
quoting
NRDC
v.
EPA (NRDC II),
863
F.2d at
1429
(9th
Cir.
1988).
An essential question that must be answered to
determine whether a final permit
is a logical outgrowth of a draft permit is “whether a new round ofnotice and comment would
provide the first opportunity for interested parties to offer comments that could persuade the
agency to modify its
rule.”
Id.,
quoting
American
Water
Works Ass
‘ii
v.
EPA,
40
F.3d
1266,
1274 (D.C.
Cir.
1994).
Finally, a decision made without adequate public notice
and comment is
arbitrary and an abuse ofdiscretion.
Id., citing
5 U.S.C.
§
706(2)(A).
In
NRDC I,
the Court concluded that U.S. EPA’s notice and comment procedures were
inadequate to
notify interested parties of a substantive change from the draft to
the final permit
National Priority Discharge Elimination System (“NPDES”) permits proposed for log
transfer
facilities (“LTF”).
NRDC
1950 F.2d. at
1186.
U.S.
EPA had issued a general NPDES permit
applicable
to nearly all LTFs
in Alaska which included a discussion regarding a “zone of
deposit” where bark and
other woody debris can be released without violating applicable water
342360/E/4
wxwz04_.DOC
21
quality standards.
Id.
at 1184.
U.S.
EPA then sought certification to
finalize the draft permit
from the Alaska Department of Environmental Conservation (“ADEC”), which required ADEC
to issue draft certifications to the public inviting public comment.
Id.
at
1185.
Before
U.S.
EPA
finalized the draft general permit, ADEC issued three draft certifications,
the last ofwhich was
not circulated to the public and replaced the concept of
“zone of deposit” with a new term,
“project area.”
Id.
The definition of “project area” greatly expanded the zone where LTFs could
deposit bark and
other
woody debris without violating applicable water quality regulations.
Id.
U.S.
EPA ultimately finalized the general permit for LTFs that included the definition of“project
area”
instead of “zone ofdeposit.”
Id.
The Court specifically noted that a change in
definition
of “zone ofdeposit” was a substantive
change that the petitioners did
not realize was “on the
table” because they were not adequately notified.
Id.
at
1188.
Indeed, the substantive change
in
the final permit issued by U.S. EPA
“.
.
.clearly caught petitioners.. .by
surprise.”
Id.,
quoting
Consumer
Energy Council ofAmerica v.
FERC,
673
F.2d 425, 446-47 (D.C.
Cir.
1982).
In
Village ofSauget,
the Appellate Court of Illinois,
5th
District, held that
IEPA
improperly
accepted late comments from U.S.
EPA and then modified Monsanto Company’s
(“Monsanto”) NPDES permit based on U.S.
EPA’s comments without providing Monsanto or
the Village adequate notice or an opportunity to comment upon the changed permit conditions
before the NPDES
permit was finalized.
Village ofSauget and Monsanto
Company v.
Pollution
Control Board,
207 Ill. App.3d 974, 979, 982
(5th
District,
1990).
The Court noted that 35
Ill.
Adm.
Code
§
309.108 required IEPA to
provide a description of special conditions and
a basis
for each NPDES
permit condition.
Id.
at 98 1-982.
However, the substantive changes to
Monsanto’s permit proposed by U.S. EPA were not included in any draft permit and
thus, neither
Monsanto nor the Village had an opportunity to comment until
after the close ofthe public
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comment period.
Id.
at 982.
Moreover, had U.S.
EPA submitted its
comments in a timely
manner, Monsanto and the Village may have requested a hearing regarding the proposed
changes.
Id.
at 980.
Finally, the final permit was issued only
11
days after the Village received
U.S. EPA’s final comment letter.
Id.
Accordingly, the Court vacated the disputed permit
conditions and ordered the IEPA to
issue a new draft permit.
Village ofSauget,
207
Ill. App.3d
at 982.
Finally,
in
American
Water
Works Association,
a rulemaking case, the Court held that
U.S.
EPA failed to provide the public an adequate opportunity
for notice
and comment and that
petitioners could not have anticipated the changes
in a final rule where U.S. EPA defined
“control” of a public water system in its
final rule for the first time.
American
Water
Works
Association v.
Environmental Protection Agency,
40 F.3d
1266,
1275
(D.C.
Cir.
1994).
Similar to the cases above, ABITEC, or any other potentially affected source
in the food
processing industry, could not have reasonably anticipated that IEPA consideredABlLTECs
sterol transesterification process or refining activities to be
a “chemical process” and thus,
subject to
a more stringent PSD emission threshold.
Like the change in crucial definitions in
NRDC
land
American
Water
Works,
IEPA’s decision to
regulate transesterification as a
chemical process was a substantive change that clearly caught ABITEC by surprise.
NRDC
I,
279 F.3d at
1185;
American
Water
Works,
40 F.3d at
1275.
When the IEPA issued the April
Draft Permit for public notice and comment, the draft permit
never even alluded to the possibility
that any
portion of ABITEC’s Paris Facility could constitute a chemical process plant.
Only on
November
14,
2002, did the Agency impose the
100 tons per year PSD emissions threshold in
ABITEC’s draft CAAPP permit for the first time.
Just like IEPA finalized the permit
11
days
after providing the Village notice in
Village ofSauget,
IEPA finalized ABITEC’s permit
12 days
342360/E/4
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23
after it first
notified ABITEC that its
sterol refining process was to
be regulated as a chemical
process plant.
Moreover,
as required for the NPDES permit in
Village ofSauget,
the IEPA was
also required to publicly notice the November Draft Permit and
issue to ABITEC and other
interested parties a statement that
sets forth the legal and factual basis
for the draft CAAPP
permit conditions.
See
415 ILCS
§
5/39.5(8)(b)
and
Village ofSauget,
207
III. App.3d at 98 1-82.
IEPA never issued the November Draft
Permit to the public.
As
a result, neither ABITEC nor
other potentially affected food processing
sources had an
adequate opportunity
to develop
comments to the IEPA or possibly seek a hearing on the permit.
Because ABITEC could not
“divine the IEPA’s
unspoken thoughts,”
Shell,
950 F.2d at
751,
the offending provisions should
be struck due o the procedural deficiencies alone.
VII.
REQUEST FOR RELIEF
By regulating food processing plants as chemical processing plants, IEPA overextends its
regulatory authority
under the PSD program.
The PSD program was designed to
aggregate for
regulation common sources that
have a common purpose.
All ofthe Paris Facility’s operations
are utilized
to
produce food ingredients—not chemical products.
IfCongress or U.S.
EPA
intended for food processors to be
regulated in the
same
manner
as chemical
processors,
it would
have clearly indicated that intent in the statute.
Instead, for PSD purposes, Congress and the
U.S.
EPA refer to the SIC Manual,
which clearly distinguishes between food and
chemical
manufacturers.
Moreover, an examination ofthe non-chemical nature ofthe Facility’s
products
as well as the notion of a “plant” under PSD, reveals that it is incorrect to characterize any
part of
the Paris Facility as a “chemical process plant.”
Even if IEPA can reasonably characterize the
transesterification activities at the Paris Facility’s sterol refining operations as a chemical
process, those activities are a necessary support activity to the Paris Facility’s food production
operations, and
not subject to independent regulation.
If regulated independently, the VOM
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emissions
from Ki, K4 and
K6, and solely from transesterification activities, are 43.5
TPY and
28.6
TPY, respectively, well below the allegedly applicable
100 TPY PSD threshold.
Finally, in
addition to these substantive
errors, IEPA failed to provide proper notice and opportunity
to
comment on the offending permit conditions 5.10 and 7.1.1.13.
WHEREFORE, for the foregoing reasons, ABITEC respectfully requests the IPCRto
make
the following determinations:
1.
Determine that all of the operations at ABITEC
are regulated as food
processing activities under the PSD program and therefore subject to a 250
TPY
emissions threshold for VOM emissions; or, alternatively
2.
If the IPCB concludes that Vessels Ki,
K4, and
K6 or the transesterification is
a chemical process plant, that VOM emissions from these sources is less than
100 TPY emissions threshold for VOM emissions applicable to
“chemical
processing plants.”
Additionally, ABITEC respectfully,
petitions the IPCB to:
1.
Hold a hearing regarding the matters
discussed in its appeal of the CAAPP
permit.
2.
Stay the effectiveness ofthe Final CAAPP permit until final action is taken by
the Board pursuant to Section 40.2 of the Act.
3.
Strike
Sections 5.10 and 7.1.13. of the CAAPP Permit, thereby deleting the
Compliance Plan/Schedule ofcompliance from the CAAPP Permit.
4.
Order the Agency to
include language in the CAAPP Permit which concludes
that the Paris
Facility is subject to the 250 ton PSD threshold found under 40
C.F.R.
§
52.21
(b)(l)(I)(b).
5.
Revise the CAAPP Permit to clarify any
language necessary to
make it
consistent with Federal Law.
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6.
Grant such other relief as the IPCB deems appropriate.
Dated:
December 31, 2002
Respectfully submitted,
ABITEC CORPORATION
Neal
.
Weinfield
Neal H. Weinfield, Esq.
Bryan
E.
Keyt, Esq.
Thor W.
Ketzback, Esq.
Bell, Boyd
& Lloyd LLC
Three First National Plaza
70 WestMadison Street
Chicago, Illinois
60602
Telephone:
312.372.1121
Facsimile: 312.827.8000
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