BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
NOVEON, INC.
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent
RECEIVEDCLERK'S
OFFICE
JAN 2
it
2008
STATE OF ILLINOIS
PCB 04-102?
Pollution Control Board
(Permit Appeal – Air)
NOTICE OF FILING
TO: Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 W. Randolph Street
Chicago, IL 60601
Sally A. Carter
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Sallv.Carterillinois.gov
PLEASE TAKE NOTICE
that on
Thursday, January
24, 2008, we filed the attached
Notice of
Filing
and
Motion to Supplement The
Record with the Hearing Officer, a copy of
which is herewith served upon you.
Roy M. Harsch, Esq. ARDC #1141481
DRINKER BIDDLE GARDNER CARTON, LLP
191 N. Wacker Drive – Suite 3700
Chicago, IL 60606
312-569-1441
THIS FILING IS BEING SUBMITTED ON RECYCLED PAPER
C1102/ 22510654.1
BEFORE THE ILLINOIS POLLUTION CONTROL BOA
WE
CLERK'S OFFICE
JAN 2
i
t
2008
STATE OF ILLINOIS
Pollution Control Board
(Permit Appeal - Air)
PETITIONER NOVEON'S MOTION TO SUPPLEMENT THE RECORD
Petitioner, Noveon, Inc. ("Petitioner"), hereby moves to supplement the record before the
Illinois Pollution Control Board ("Board") with certain documents that the Illinois
Environmental Protection Agency ("IEPA") relied upon in making its determination as to
Petitioner's application for its Clean Air Act Permit Program ("CAAPP") permit, but which
documents were not included in the IEPA's compilation of the record. In support of its Motion,
Petitioner states as follows:
1. On March 7, 1996, IEPA received a timely application for a CAAPP permit
(Application No. 96030152) for Petitioner's facility located at 1550 County Road, 1450 N,
Henry, Illinois, Facility ID No. 123803AAD ("Facility"). The Facility manufactures organic
chemicals, specifically antioxidants and accelerators to be used in the manufacture of rubber and
plastics, coatings used in the electronics industry and personal care products used for personal
hygiene such as hair conditioners.
Noveon, Inc.
Petitioner,
v.
Illinois Environmental Protection Agency,
Respondent.
PCB 04-102
THIS FILING SUBMITTED ON RECYCLED PAPER
2.
On September 17, 2003, the IEPA issued a draft CAAPP permit to the Facility
and opened the 30-day public comment period soliciting comments about that permit. During
the public comment period, Petitioner submitted detailed comments to the IEPA regarding
certain draft permit conditions ("Comment Letter"). On November 24, 2003, the IEPA issued a
final CAAPP permit that became effective upon issuance. While the IEPA modified some
conditions of the final CAAPP permit in response to Petitioner's Comment Letter, it did not
modify the final CAAPP permit to respond to all of Petitioner's significant comments. Petitioner
filed the instant permit appeal, claiming that IEPA's failure to modify the final CAAPP permit,
as requested, is inconsistent with the Illinois Environmental Protection Act and the
corresponding regulations.
3.
While there are several issues involved in the permit appeal, for the purposes of
this Motion, the relevant issue is the exemption concerning regulation of SO
2 emissions that the
IEPA had historically applied to the Facility. This exemption applied because the Facility's
processes are of the type excluded from the general SO2
emission limitation of 2000 ppm since
the Board promulgated the original rules as
Rule 204(f)
and updated those rules since then as
35
IAC 551¢ 214.301 and 214.382.
Furthermore, the IEPA has historically been aware of the
Facility's ability to remove sulfur compounds from the flue gases of its petrochemical processes
so that the general 2000 ppm SO 2
emission limitation clearly did not apply. In fact, the IEPA
has approved the Facility's position on numerous occasions informally, after inquiry, and
formally, in past permits.'
As set forth in detail in Petitioner's Petition for CAAPP Permit Appeal, the IEPA is attempting
(without any apparent or clear technical, legal or policy basis), through the CAAPP permitting
process, to withdraw its historical recognition and acceptance of Petitioner's sulfur removal
process design. Since at least 1975, the Facility has operated its processes designed to remove
2
4.
As required under the Act and applicable Board regulations, IEPA prepared the
Record on Appeal and submitted the Record to the Board on April 26, 2007. Pursuant to an
agreement with Petitioner, the IEPA filed only those documents that were relevant to this issue
regarding the applicability of the exemption to Petitioner's facility. Petitioner is in the process of
preparing an appropriate motion to either strike or withdraw the other issues which were raised
in its Petition.
5.
Upon receipt of the Record, Petitioner reviewed the documents that were included
in the Record and found two internal Memoranda that predate the filing of the CAAP
Application on March 7, 1996 which pertain to the issue of whether Petitioner is entitled to the
exemption. These documents are a Memorandum with the subject of Request for Legal
Interpretation of Rule 214 Subpart K from Don Sutton and Dan Punzak to Robert Sharpe, dated
April 13, 1993 (Record 001477-001479) and a Memorandum with the subject of Legal
Interpretation of Rule 214 Subpart K, from Rachel Doctors to Kathleen Bassi, dated May 13,
1993 (Record 001474-00176). These internal IEPA documents are clearly relevant to the issue
on appeal and were included in the record by the IEPA as part of the basis for IEPA's permitting
analysis and decision. These documents pertain to the issuance of a renewal of the state
operating permit NO. 72110935 for the facility ( See Record 001477 ). Furthermore, these
sulfur compounds from the flue gases of petrochemical processes pursuant to Operating Permits
issued by the IEPA. This operational configuration has historically relied upon in exempting the
Facility from the general SO
2
emission limitation of 2000 ppm found at
35 JAC § 214.301.
In the
present appeal, Petitioner contends that the Facility remains exempt from the general SO2
emission limit of 2000 ppm in
35 IAC § 214.301
pursuant to 35
IAC § 214.382 (a)
because its
existing processes qualify as systems designed to remove sulfur compounds from the flue gases
of petrochemical processes. Therefore, the IEPA's new position and the related CAAPP permit
conditions cannot be justified.
See generally,
Petition, at 7-8.
3
documents clearly state that the IEPA had questioned the application of the exemption as part of
the application for an operating permit in 1973, subsequent issuance in 1975 and subsequent
issuance of operating permit renewals in 1975, 1978, 1983 (See Record 001474). Finally the
Request for Legal Interpretation of Rule 214 Subpart K, from Don Sutton and Dan Punzak to
Robert Sharpe, dated April 13, 1993, states that: "Attached are copies of former analysis notes
and some responses from BFG to inquiries."(See Record at 001477). These referenced
attachments are not included in the Record that was filed by IEPA.
6.
Clearly, these earlier internal IEPA documents contained in the operating permit
file relate to the issue of whether the Facility, in the opinion of IEPA personnel, qualified for the
SO2
emission exemption.
7.
Petitioner was not aware of the existence of these two Memoranda nor the
apparent concern regarding the application of the exception prior to the filing of its CAAP
application. As will be established by testimony at hearing, these documents were not produced
by IEPA in response to a Freedom of Information Act ("FOIA") request submitted to review the
operating permit files in advance of the preparation of the CAAP application. Nor were they
produced by IEPA in response to a FOIA request submitted to review the operating permit files
as they pertain to the exemption issue which was submitted during the pendency of the CAAP
application when it became apparent that IEPA did not then believe the exemption applied.
8.
Upon review of the record, Petitioner began discussions with the Attorney for the
IEPA regarding the previous IEPA internal documents from the operating permit files that had
not been included in the Record as filed. In lieu of formal discovery pursuant to agreement of
Council, Ms. Carter sent a letter dated October 3, 2007, voluntarily providing a number of
documents from the operating permit files pertaining to the process. This letter and its enclosures
4
are found at Exhibit A to this Motion. Petitioner requests that Attachment A be included in the
Record as a supplement to that which was filed by the IEPA. These documents are clearly
relevant to the issue at hand, were referenced in documents included in the Record by IEPA and
may in fact have been actual attachments to one such document. Thus, while some of the
documents from the operating permit file relevant to the SO 2
emission exemption were included
in the Record, the IEPA, in preparing the Record, apparently picked and chose among a group of
relevant documents when preparing the Record it submitted.
9.
Under applicable Board regulations for CAAPP permit appeals, the IEPA has the
responsibility for preparing the Record, and within 30 days after service of the appeal petition,
must file "an answer consisting of
the entire Agency record
of the CAAPP application
including the CAAPP permit application, the hearing record, the CAAPP permit denial or
issuance letter, and correspondence with the applicant concerning the CAAPP permit
application." (emphasis added). 35 Illinois Adm. Code 105.302(f).
10.
Board decisions interpreting the scope of the IEPA's duty to prepare the Record
and what it must contain have held that "the entire record" essentially includes everything
existing in the IEPA's files that pre-dates the final decision on the permit.
See, e.g., Jack Pease,
d/b/a Glacier Lake Extraction v. Illinois Environmental Protection Agency,
PCB 95-118, 1995
WL 314505 (May 18, 1995). Thus, the IEPA is not allowed to pick and choose among
documents in its file to determine what it would like to include in the Record, and what it would
like to exclude. Even if the IEPA might intend to argue before the Board that certain documents
may not be relevant to the issue on appeal, in that the IEPA did not "rely" on such documents in
making its permit decision, such a position is not grounds for excluding such documents. As the
5
Board has stated, "To the extent the [Illinois EPA] did not rely on any such documents when it
made its determination, it can make those arguments at the hearing."
Id.
11.
The Board has also previously held that petitioners have broad latitude in
requesting that the Record be supplemented in cases where the Record prepared by the IEPA is
incomplete. For example, in
Joliet Sand and Gravel v. Illinois Environmental Protection
Agency,
PCB
86-159, 1987 WL 55908
(February
5, 1987),
the Board held that:
To the extent that the [Illinois EPA] has relied upon information
beyond that contained in the application, such information must be
included in the permit record filed with the Board; if it is not, the
applicant may properly submit such information to the Board
during the course of the Board's hearing. Additionally, if there
was information in the [Illinois EPA's] possession upon which it
reasonably should have relied, the applicant may also submit such
information to the Board for the Board's consideration.
12.
The specific documents in Exhibit A that Petitioner seeks to add to the Record are
all part of the IEPA's operating permit file. As noted above, these documents relate to the
internal discussions and analysis of SO2
emission exemption. While some documents from the
operating permit file were included in the Record, most of the documents in Exhibit A were not.
The operating permit program for major sources was replaced by the CAAP program. Not only
should these documents have been included in the Record simply due to their presence in the
IEPA air pollution permit files,
Jack Pease, supra,
but these documents are of the type that IEPA
relied on, or should have relied on, in making its permitting decision.
Joliet Sand and Gravel,
supra.
6
NOVEON, INC.
I■
WHEREFORE, for the foregoing reasons, Petitioner respectfully petitions the Hearing
Officer or, alternatively, the Board, for leave to supplement the Record (or, alternatively, to order
the IEPA to do so) to include the documents attached as Exhibit A hereto.
Respectfully submitted,
Dated: January 24, 2008
Roy M. Harsch (ARDC # 1141481)
Lawrence W. Falbe (ARDC# 6224888)
Drinker Biddle Gardner Carton, LLP
191 North Wacker Drive - Suite 3700
Chicago, IL 60606
312-569-1000
CHOI/ 12528179.1
7
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing
Notice of
Filing
and Motion
to
Supplement The Record
were filed by hand delivery with the Hearing Officer and served upon the
parties to whom said Notice is directed by first class mail, postage prepaid, by depositing in the U.S. Mail
at 191 North Wacker Drive, Chicago, Illinois on Thursday, January 24, 2008 and by e-mail to Ms. Sally
A. Carter. Sally.Carter@illinois.gov
C1102/ 22510654.1