BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
IN THE MATTER OF:
CITGO PETROLEUM CORPORATION,
)
1
Petitioner,
VS.
)
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
NO. PCB 07-10
NOTICE OF FILING
Dorothy M. Gunn, Clerk
Douglas Scott, Director
Illinois Pollution Control Board
Illinois Environmental Protection Agency
100 West Randolph
-
Suite 1 1-500
102
1 N. Grand Avenue East
Chicago, IL 60601
P.O. Box 19274
Springfield, IL 62794-9274
PLEASE TAKE NOTICE that on August 17,2006, we filed with the Illinois
Pollution Control Board the attached
Motion To Stav Effectiveness Of Certain Conditions In
Re-Issued NPDES Permit,
a copy of which is herewith served upon you.
CITGO PETROLEUM CORPORATION
By:
One of Its Attorneys
Jeffrey C. Fort
Elizabeth A. Leifel
Sonnenschein Nath
&
Rosenthal LLP
7800 Sears Tower
233 S. Wacker Drive
Chicago, IL 60606-6404
(3 12) 876-8000
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 17, 2006
BEFORE THE POLLUTION CONTROL BOARD
OF THE STATE OF ILLINOIS
IN THE MATTER OF:
CITGO PETROLEUM CORPORATION,
)
)
Petitioner,
)
)
VS.
)
1
ILLINOIS ENVIRONMENTAL
)
PROTECTION AGENCY,
1
)
NO. PCB 07- 10
MOTION TO STAY EFFECTIVENESS OF CERTAIN CONDITIONS
IN RE-ISSUED NPDES PERMIT
Citgo Petroleum Corporation ("Citgo")
operates a refinery located at 135" Street and
New Avenue in Lemont, Illinois (the "Refinery").
Citgo, by its attorneys Jeffrey C. Fort,
Elizabeth A. Leifel, and Sonnenschein Nath
&
Rosenthal LLP, hereby petitions the Illinois
Pollution Control Board (the "Board") to stay the effectiveness of certain conditions of NPDES
Permit No. IL0001589 (the "Permit"), pursuant to 415 ILCS 5140.2, and in accordance with 35
Ill. Admin. Code
5
105.304(b). In support of its motion, Citgo states as follows:
1.
On July 28,2006, the Illinois Environmental Protection Agency (the "Agency")
reissued NPDES Permit No. IL0001589 for the Refinery. On August 14,2006, Citgo filed a
Petition for Hearing to Review NPDES Permit Reissuance (the "Petition") in order to preserve
its right to appeal in this matter. In its Petition, Citgo challenged portions of Condition No. 1,
and Special Condition No. 17, Special Condition No. 18, Special Condition No. 19, and Standard
Condition No. 14(a)(4).
2.
Citgo hereby requests that the Board stay the effectiveness of Special Conditions
17, 18, and 19. Citgo is not requesting a stay as to the other conditions in the Permit. Some of
the provisions of the Permit are necessary in order for Citgo to implement the actions required
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 17, 2006
pursuant to a consent decree between Citgo, U.S. EPA, and the States of Illinois, Louisiana, New
Jersey, and Georgia. Special Condition Nos. 17, 18, and 19, however, are new to the Permit and
are not necessary for Citgo to implement the requirements under the consent decree.
3.
A
stay of these conditions is warranted according to the standards articulated by
the Board in granting a discretionary stay: (1) a certain ascertainable right needs protection; (2)
irreparable injury will occur without the injunction; (3) no adequate remedy at law exists, and (4)
there is a probability of success on the merits. See Nielsen
&
Bainbridge, L.L. C. v. IEPA, Docket
No. 03-98 (Ill. Pollution Control Bd. Feb. 6,2003); see also Saint-Gobain Containers, Inc. v.
IEPA, Docket No. 04-47 (Ill. Pollution Control Bd. Nov. 6,2003); Noveon, Inc. v. IEPA, Docket
No. 04-102 (Ill. Pollution Control Bd. Jan. 22,2004). It is not necessary for the Board to
determine that all four factors exist in order to grant a discretionary stay. See
Bridgestone/Firestone OffRoad Tire Company v. IEPA, Docket No. 02-3 1 (Ill. Pollution Control
Bd. Nov. 1,2001).
4.
A
stay of effectiveness of certain conditions of the Permit is necessary to protect
Citgo's right to appeal and to prevent the imposition of new permit conditions before Citgo is
able to exercise its right to appeal and be heard by the Board.
5.
Citgo has no adequate remedy at law other than to appeal its Permit to the Board.
6.
A stay of certain conditions of this Permit would not result in any harm to the
Agency, the public or the environment. Citgo would operate the Refinery in compliance with the
uncontested conditions of the Permit while the Petition is pending.
7.
Citgo is likely to succeed on the merits of the Petition. As detailed in the Petition,
the Permit contains conditions that do not represent "applicable requirements" under Illinois law.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 17, 2006
Specifically, Citgo has appealed Special Conditions 17, 18, and 19,' and the basis for each
challenge is set forth below.
SPECIAL
CONDITION NO. 17
8.
Special Condition No. 17 requires effluent at the Refinery's discharge point to be
less than 90°F during the months of April through November, never to exceed 93°F. This
condition, as written, is invalid because it is not based on an "applicable requirement." See
Appalachian Power Co. v. Envtl. Prot. Agency, 208 F.3d 1015 (D.C. Cir. 2000) (holding that
state permitting authorities may not use permits to require conditions more stringent than
applicable state or federal standards). The temperature standard contained in Special Condition
No. 17 applies only to discharges into General Use waters. The Chicago Sanitary
&
Ship Canal
is a Secondary Contact water. Thus, the temperature standard contained in the Permit is not an
applicable requirement, and the Agency has exceeded its authority by including it.
9.
The temperature standard contained in the Permit is not required pursuant to a
Board Order granting the Refinery a variance with respect to its discharges of total dissolved
solids ("TDS").
The Agency has apparently taken Citgo's commitment, made as part of the
variance proceeding, as a commitment to meet the temperature standards contained in the Permit
at the point of discharge to the Canal. See Citgo Petroleum Corp. v. Ill. Envtl. Protection
Agency, PCB 05-85 (Variance
-
Water), Board Order (April 21,2005) ("Purge water from the
wet gas scrubber will then be treated to remove suspended solids and ammonia, and cooled to
90°F.
. . .").
In reality, as the Board's order makes clear, Citgo's commitment related only
to
wastewater added by a wet gas scrubber, which will be installed at the Refinery to control air
emissions. Clearly the agreed temperature standard applies only to an internal discharge and
1
Citgo has also challenged a portion of Condition No. 1 and Standard Condition No. 14(a)(4).
These conditions are not new to the reissued Permit, and Citgo is not requesting a stay of these
conditions.
-3-
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 17, 2006
does not, as the Agency has required, apply to the Refinery's discharge point. Thus, because the
Agency has exceeded its authority by including Special Condition No. 17 in the Permit when it
has no basis under federal or state law to do so, Citgo is likely to succeed in its appeal of that
condition.
10.
Special Condition No. 18 provides that the Permit may be modified to include
"final limitations or monitoring requirements" that may result from the study Citgo will
undertake pursuant to the variance granted by the Board in PCB 05-85. Special Condition No.
18 is unnecessary and should be removed from the Permit. The TDS water quality standards
may be significantly changed in the near future. It is Citgo's understanding that the Agency is
proposing that the Board eliminate altogether the water quality standards for TDS for General
Use waters. The Agency is supporting a site-specific rule change for a General Use water
downstream of the Canal and southwest of the 1-55 Bridge.
See, e.g., In the Matter oj Revisions
to Water Quality Standards for Total Dissolved Solids in the Lower Des Plaines River for
ExxonMobil Oil Corporation: Proposed
35
Ill. Adm. Code
303.445, PCB R06-024. The
application of a similar adjustment to Secondary Contact waters is a logical next step. Because
Special Condition No. 18 is unnecessary as drafted, and the TDS standard may be removed in the
near future, the condition should be stayed pending a decision on the appeal.
SPECIAL CONDITION
NO. 19
1
1.
Special Condition No. 19 contains effluent limitations and associated monitoring
requirements for Total Residual Chlorine. Specifically, Special Condition No. 19 requires the
Refinery to continuously monitor its discharge to ensure that Total Residual Chlorine levels do
not exceed 0.05 mg/L. The Agency has purported to justify this condition as a Best Available
Technology ("BAT") standard, but there is no BAT standard under applicable federal law.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 17, 2006
While the U. S. EPA has promulgated BAT standards for petroleum refineries, 40 C.F.R. Part
419, there is no standard for Total Residual Chlorine. There is no authority allowing the Agency
to prescribe BAT standards where U.S. EPA has declined to do so.
12.
The effluent limitation of 0.05 mglL prescribed in Special Condition No. 19
represents an exceedance of the Agency's authority. The effluent limit is based on a water
quality standard for Total Residual Chlorine that applies only to General Use waters. As noted
above, the Refinery does not discharge to a General Use water; it discharges to the Chicago
Sanitary
&
Ship Canal, which is a Secondary Contact water. Thus, because the Agency has
exceeded its authority by including Special Condition No. 19 in the Permit, Citgo is likely to
succeed on the merits of its appeal of this condition.
WHEREFORE, for all of the foregoing reasons, Citgo respectfully requests that the
Board grant a stay of effectiveness of Special Condition Nos. 17, 18, and 19 of its NPDES permit
until the Board's final action in this matter.
Respectfully submitted,
CITGO PETROLEUM CORPORATION
By:
Dated: August 17,2006
Jeffrey C. Fort
Elizabeth A. Leifel
Sonnenschein Nath
&
Rosenthal LLP
7800 Sears Tower
Chicago, Illinois 60606
(3
12) 876-8000
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 17, 2006
CERTIFICATE OF SERVICE
The undersigned, an attorney, certify that I have served upon the individuals named on
the attached Notice of Filing true and correct copies of the
Motion To Stay Effectiveness Of
NPDES Permit,
via electronic filing and by First Class Mail, postage prepaid on August 17,
2006.
ELECTRONIC FILING, RECEIVED, CLERK'S OFFICE, AUGUST 17, 2006