BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS
OF THE STATE OF ILLINOIS

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

NOVEON, INC.

PCB 2004-102

(CAAPP Permit Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

NOTICE

John Therriault, Assistant Clerk

Roy M. Harsch

Illinois Pollution Control Board

Steven J. Murawski

100 West Randolph Street

Gardner Carton & Douglas

Suite 11-500

191 N. Wacker Drive

Chicago, Illinois 60601

Suite 3700

Chicago, Illinois 60606-1698

Bradley P. Halloran

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center, Suite 11-500

100 West Randolph Street

Chicago, Illinois 60601

PLEASE TAKE NOTICE that today I electronically filed with the Office of the

Clerk of the Illinois Pollution Control Board the

RESPONSE TO NOVEON’S

MOTION TO SUPPLEMENT THE RECORD

and

AFFIDAVIT

of the Respondent,

Illinois Environmental Protection Agency, a copy of which is herewith served upon the

assigned Hearing Office and the attorney for the Petitioner.

Respectfully submitted by,

________/s/______________

Sally Carter

Assistant Counsel

Dated: January 29, 2008

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

Electronic Filing - Received, Clerk's Office, January 29, 2008

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

PCB 2004-102

(Permit Appeal - Air)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent.

)

RESPONSE TO NOVEON’S MOTION TO SUPPLEMENT THE RECORD

The Respondent, Illinois Environmental Protection Agency (“Illinois EPA” or

“Agency”), by and through its attorneys and pursuant to 35 Ill. Adm. Code 101.500(d),

files with the Illinois Pollution Control Board (“Board”) this Response to Noveon’s

(“Noveon”) Motion to Supplement the Record in this cause.

Acting in accordance with its authority under the Clean Air Act Permit

Program (“CAAPP”) provisions of the Illinois Environmental Protection Act (“Act”),

415 ILCS 5/39.5(2002), the Illinois EPA issued a CAAPP permit to Noveon on

November 24, 2003. The permit authorized the operation of an organic chemical

manufacturing plant located in rural Henry, Marshall County, Illinois.

On December 24, 2003, Petitioner filed a petition before the Board

challenging certain permit conditions contained within the CAAPP permit issued by the

Illinois EPA. The significant issue for purposes of this appeal, and particularly, for this

Response, is Petitioner’s challenge that the facility’s condensers in the MBT-C process

are not subject to 35 Ill. Adm. Code 214.301 by virtue of the exemption found in 35 Ill.

Adm. Code 214.382 (hereinafter referred to as the “SO2 issue”).

Electronic Filing - Received, Clerk's Office, January 29, 2008

On March 29, 2007, the parties participated in a status call with the

Hearing Officer, wherein the Petitioner represented it would likely be withdrawing all

outstanding issues but the SO2 issue.

See, Hearing Officer Order,

dated March 29, 2007.

To date, Petitioner’s counsel has not yet filed a Motion to Voluntarily Dismiss the

remaining issues, however, Petitioner’s counsel reiterated its intention to drop all

contested issues excluding the SO2 issue in a status call with the Hearing Officer most

recently on January 24, 2008.

See also, Motion at page 3, ¶ 4.

Given that other information relied upon by the Illinois EPA was not

relevant to the SO2 issue but involved other non-contested sections of the CAAPP permit

or contested sections of the CAAPP permit that will be withdrawn by Noveon, and

involved a considerable amount of additional material, the Illinois EPA filed a Motion for

Leave to File Partial Administrative Record (“Motion for Leave”) to limit the

Administrative Record to the SO2 issue. The Illinois EPA filed its Motion for Leave and

submitted its Administrative Record to the Board on April 27, 2007. Petitioner

represented it had no objection to the Motion for Leave in a July 26, 2007, status call

with the Hearing Officer.

See, Hearing Officer Order, dated

July 26, 2007.

The Administrative Record included a Public Version, (ie., Volume I), and

a Trade Secret Version, (ie., Volume II) of the Record that generally included Noveon’s

CAAPP permit application, correspondence received by or exchanged with Petitioner

and, except for matters within its institutional knowledge, those documents that were

relied upon by the Illinois EPA’s Division of Air Pollution Control (“DAPC”)/ Permit

Section in the issuance of the CAAPP permit, particularly relevant to the SO2 issue.

Documentation contained within the Administrative Record was arranged

Electronic Filing - Received, Clerk's Office, January 29, 2008

chronologically, beginning with the submittal of the CAAPP permit application on March

7, 1996 and running through the date of the CAAPP permit’s issuance on November 24,

2003. The inclusion of such material in the Administrative Record fulfilled the express

requirements of 35 Ill. Adm. Code 105.302(f) requiring the filing consist of “the CAAPP

permit application, the hearing record, the CAAPP permit denial or issuance letter, and

correspondence with the applicant concerning CAAPP permit application”.

Case law authorities and prior Board rulings make clear that the Record

for a permitting decision must include materials generally relied upon the Illinois EPA in

its decision.

Joliet Sand and Gravel v. Illinois Environmental Protection Agency,

PCB

86-159, (February 5, 1987) at page 5. In this instance, the existence of prior permitting

decisions relating to the MBT-C process and particularly, the treatment of the SO2 issue,

was known to the applicant and was likewise part of the Illinois EPA’s institutional

knowledge. However, the notion that the Illinois EPA relied upon those earlier permits in

reaching its CAAPP permitting decision defies logic. The latter decision contradicted the

Illinois EPA’s historical interpretation of the SO2 issue. It did not, however, draw upon

those permits, for support or sustenance. The Illinois EPA’s recent departure from its

earlier decisions, which appears to serve as the pretext for Petitioner’s Motion, must

stand or fall on whether it is reasoned and supported by applicable law and regulations.

Compare, Alton Packaging Corp. v. PCB,

516 N.E. 2d 275, 280 (5

Dist. 1987) (review

of permitting decisions held to a consideration of material relied upon by the Illinois

EPA). And as such, no part of these earlier decisions (ie., operating permits) found their

way into the instant CAAPP permit.

7. Petitioner now contends that the Illinois EPA is, in the absence of any

Electronic Filing - Received, Clerk's Office, January 29, 2008

reliance on such material by the Agency, required to supplement the Administrative

Record for the subject application with materials from prior permit applications

submittals. Consistent with the principle that the Illinois EPA had no authority to act

until it received an application from the applicant, (ie., one application – one decision),

the Illinois EPA’s Record for this appeal from a CAAPP permit began with the submittal

of the CAAPP permit application on March 7, 1996 through the date of the permit’s

issuance on November 24, 2003.

See, Knapp Oil Company, Don’s 66 v. Illinois

Environmental Protection Agency,

PCB 06-52 (June 21, 2007) (denying motion to

supplement record as submitting documents related to “a prior corrective action plan

(CAP) submitted to the Agency for approval.”). Similar to the Board, the Illinois EPA is

a creature of statute with no independent authority to act until an appeal, or in the case of

the Agency, an application is pending before it.

See, Reichold Chemicals v. Illinois

Pollution Control Board,

204 Ill. App.3d 674, 677-678, 149 Ill. Dec. 647, 561 N.E.2d

1343, 1345-1346 (3

Dist. 1990) (administrative agencies possess no inherent authority

to act but must be authorized by statute to perform specified act);

accord., Caterpillar

Tractor Company v. Illinois EPA,

PCB 79-180, (July 14, 1983) (“Agency has no

jurisdiction to issue any subsequent permits once the disputed permit has been appealed

to the Board, just as the Board has no authority to modify its Orders once they have been

appealed to the courts.”).

Petitioner seizes upon the Illinois EPA’s inclusion of two

memorandums in the record from 1993 that pre-dated the application’s submittal on

March 7, 1996, in an attempt to bolster their argument that the Illinois EPA has

selectively inserted documents in the Record. This argument is not substantiated by the

Electronic Filing - Received, Clerk's Office, January 29, 2008

Record. Closer scrutiny of the 1993 memorandums and their placement in the

Administrative Record reveals the consistent approach taken by the Illinois EPA. In this

regard, each 1993 memorandum addressed an earlier state operating permit application

and was merely an attachment to a memorandum generated in 2001 from the assigned

permitting analyst.

See, Administrative Record

(the documents were collectively referred

to as “Memorandum from Don Sutton to Julie Armitage, dated January 12, 2001, and

attachments. [Pages 1473 - 1479]”). The two 1993 memorandums were included in the

Record because they were physically attached to a document generated during review of

the permit application. If the memorandums had not been instructive to the 2001

memorandum, they would not have been tied to, or otherwise connected with, the

CAAPP permit application. The placement of the two 1993 memorandums in the Record

are consistent with the Board’s procedural rule that the Illinois EPA’s answer shall

consist of the “entire Agency record of the CAAPP application. . . .”. 35 Ill. Adm. Code

105.302(f).

The additional documents referenced by Petitioner in its Motion to

Supplement, however, were not included in the CAAPP file for Application No.

96030152 but rather were included in the state operating permit file for Application No.

72110935.

See, Motion at page 3-4, ¶5.

As such, these documents were not part of the

The state operating permit file references one application number, 72110935 but, in fact,

includes a number of separate permit applications, supporting materials and resulting permits that

were issued for the SO2 process. Self-contained and referencing the same application number

(72110935) the file contains a separate administrative record for each permitting decision

consistent with 35 Ill. Adm. Code 105.212(b).

Petitioner’s reference to the statement in the April 1993 attachment, particularly, to page 1477,

that “[a]ttached are copies of former analysis notes and some responses from BFG to inquiries”

were not included in the Record is accurate.

See, Motion at page 4, ¶ 5.

These documents were

never attached to the 2001 Memorandum from the assigned permitting analyst. Consequently,

Electronic Filing - Received, Clerk's Office, January 29, 2008

“entire Agency record of the CAAPP application” and were not included in the CAAPP

permit record.

10.

Although Petitioners place significant emphasis on the Board’s May 18,

1995, Order in

Jack Pease, d/b/a Glacier Extraction v. Illinois Environmental Protection

Agency,

PCB 95-118, to support their claim that the “‘entire record’ essentially includes

everything existing in the Illinois EPA’s files that pre-dates the final decision on the

permit”, the decision did not, in fact, contemplate the matter-at-hand. In

Jack Pease

, the

petitioner challenged the Illinois EPA’s denial of a “non-NPDES mine-related pollution

control permit” pursuant to Section 40(a) of the Act.

Jack Pease, d/b/a Glacier

Extraction v. Illinois Environmental Protection Agency,

PCB 95-118 (July 20, 1995).

The

Jack Pease

petitioners sought to supplement the Administrative Record with certain

documents that were in the permit file for the pending application

; the Agency opposed

their inclusion on the basis that the record was specifically limited to the permit

application, the correspondence between the applicant and the Agency, and the denial

letter from the application file. The Board agreed with the petitioners, finding that:

While the Board’s procedural rule at Section 105.102(a)(4) sets forth the

minimum information that the Agency must provide as the “record” in a permit

appeal, there is nothing in the rule limiting the record solely to the permit

application, the correspondence between the applicant and the Agency, and the

denial letter. The rule states that the ‘entire record’ shall be filed with the Board

the referenced documents were only included in the state operating permit file 72110935, not the

Tile V file 96030152.

The request to supplement included: “(1) correspondence from 33 elected officials and citizens

to the Agency . . .; (2) 31 letters from the Agency to the elected and citizens . . ; (3) information

requested by Glacier pursuant to the Freedom of Information Act which was denied by the

Agency on ‘investigatory records’ grounds . . .; (4) September 28, 1994 ‘Complaint Receipt and

Report Form’ . . .; (5) and October 28, 1994 Analytical results of samples taken at Glacier Lake

Gravel Pit on September 28, 1994 compiled by the Agency.”

Jack Pease, d/b/a Glacier

Extraction v. Illinois Environmental Protection Agency,

PCB 95-118 (May 18, 1995) at fn. 1.

Electronic Filing - Received, Clerk's Office, January 29, 2008

and from our review of the documents, each pre-dates the Agency’s final denial

letter of February 24, 1995, and the documents therefore, were in the Agency’s

files, and available to the Agency when making its permitting decision. To the

extent the Agency did not rely on any such documents when it made its

determination, it can make those arguments at hearing.

Jack Pease, d/b/a Glacier Extraction v. Illinois Environmental Protection Agency,

PCB

95-118 (May 18, 1995) at page 2.

11.

As this discussion makes evident, the Board’s decision was based on

material in the Illinois EPA’s permitting files, that merely corresponded to the actual

decision pending Board review. This decision did not contemplate the inclusion of

materials in the record that pre-dated the application’s submittal. Nor does the Board’s

decision envision that its permit review of a CAAPP permit will be based on information

contained within the previous state operating permit files that are each centered on its

own distinct application material, correspondence and most importantly, Agency

decision. The Board’s procedural rules clearly contemplate that a separate record exists

for each permitting decision and corresponding application. For CAAPP permit appeals,

35 Ill. Adm. Code 105.302(f) requires the submittal of the “entire Agency record of the

CAAPP application”, while 35 Ill. Adm. Code 105.212(b) requires a record for “any

While in the context of documents in the application file corresponding to the decision pending

review, the Board stated that the Illinois EPA could argue it did not rely upon said documents at

hearing rather than excluding such documents.

See, Pease, supra.

However, in circumstances

more similar to the pending appeal, the Board has, instead, denied the request to supplement the

record. For instance, the Board denied the motion to supplement the record in

Knapp Oil

Company

finding that the tendered documents were not “correspondence, documents or materials

related to the application that is the subject of this appeal,” but related to a “prior corrective action

plan (CAP) submitted to the Agency for approval.”

See, Knapp Oil Company, Don’s 66 v. Illinois

Environmental Protection Agency,

PCB 06-52 (June 21, 2007). Meanwhile in

Land and Lakes

Company,

the Board denied a motion to supplement the record with information from other

permit files for the same applicant but different facilities because “[t]he Board will not put itself

in the position of second-guessing the Agency’s permit decision based upon information in other

permit files in the Agency’s possession.”

Land and Lakes Company v. Illinois Environmental

Protection Agency,

PCB 90-118 (November 8, 1990) at page 3.

Electronic Filing - Received, Clerk's Office, January 29, 2008

permit application or other request that resulted in the Agency’s decision” for non-

CAAPP permit appeals.

12.

Moreover, the Illinois EPA’s decision to include the 2001 memorandum

and all accompanying attachments in the Record should not subject the Illinois EPA’s

CAAPP permit decision to Board review based on material that not only clearly pre-dates

the CAAPP permit application’s submittal but only exists in files from previous

application submittals and permitting decisions. If the Board were to allow the Record

to be supplemented in such a fashion, the Board would risk interjecting all previous state

operating permits for this condenser dating back to the early 1970s. Prior permitting

decisions of the Illinois EPA are not before the Board today.

Accord., Panhandle

Eastern Pipe Line v. Illinois Environmental Protection Agency,

PCB 98-102 (January 21,

1999) at page 11 (prior permitting decisions of the Illinois EPA were not subject to Board

review as the permittee did not appeal these decisions when originally issued by the

Agency).

13.

For purposes of Noveon’s claim that the Illinois EPA held a contrary

permitting position for approximately twenty years with regard to the applicability of 35

Ill. Adm. Code 214.382, the Illinois EPA concedes the point.

See, attached affidavit of

Dan Punzak.

When coupled with the Illinois EPA’s admission that it previously

To open up prior permitting decisions of the Agency suggests that for every CAAPP appeal

presently before the Board, the Agency is obligated to include each and every underlying

permitting decision in the Administrative Record regardless of whether the Agency explicitly

relied upon it or not. Such an approach would be unduly burdensome on the Illinois EPA; it

could potentially require the Agency to copy files for countless permitting decisions prior to

receipt of the CAAPP permit application in the Administrative Record for the CAAPP permit.

Moreover, it would enhance the administrative burden on the Board, particularly the maintenance

and storage of countless additional boxes for each pending CAAPP permit appeal.

The Board may also take official notice of past permits pursuant to 35 Ill. Adm. Code 101.630.

Electronic Filing - Received, Clerk's Office, January 29, 2008

concurred in the applicability of 35 Ill. Adm. Code 214.382 to the source, is readily

apparent that supplementing the Record will do little to further substantiate Noveon’s

apparent estoppel claim.

See, Motion at page 2, ¶3.

The Board has previously declined

to supplement the Record based, in part, on the Illinois EPA’s decision not to contest

representations relevant to Petitioner’s claims of estoppel.

See, White & Brewer Trucking,

Inc. v. Illinois EPA,

PCB 26-250 (March 20, 1997) at page 4 (“Supplementing the record

with such documents is especially unwarranted given that the Agency has not contested

White & Brewer’s claims about those representations.”). Apart from the disparate

treatment of the SO2 issue between the earlier state operating permits and the recent

CAAPP decision, Petitioner offers no explanation as to why the proffered documents

should be incorporated into the Record. Indeed, there is no reason to believe that the

historical permitting documents are of any probative value beyond the point already

conceded by the Illinois EPA.

WHEREFORE, the Illinois EPA respectfully requests that the Board deny

Noveon’s Motion to Supplement the Record.

Respectfully submitted by,

________/s/_________________

Sally Carter

Assistant Counsel

Dated: January 29, 2008

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

Electronic Filing - Received, Clerk's Office, January 29, 2008

CERTIFICATE OF SERVICE

I hereby certify that on the 29

day of January 2008, I electronically filed the

following instrument

RESPONSE TO NOVEON’S MOTION TO SUPPLEMENT

THE RECORD

and

AFFIDAVIT

to:

John Therriault, Assistant Clerk

Illinois Pollution Control Board

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

I further hereby certify that on the 29

day of January 2008, I did send, a true and correct

copy of the same foregoing instrument, by electronic mail and by First Class Mail with

postage thereon fully paid and deposited into the possession of the United States Mail, to:

Illinois Pollution Control Board

Gardner Carton & Douglas

James R. Thompson Center

191 N. Wacker Drive

Suite 11-500

Suite 3700

100 West Randolph Street

Chicago, Illinois 60606-1698

Chicago, Illinois 60601

Roy.Harsch@dbr.com

hallorab@ipcb.state.il.us

______/s/__________________

Sally Carter

Assistant Counsel

Electronic Filing - Received, Clerk's Office, January 29, 2008

I, Dan Punzak, being first duly sworn, depose and slale that the following

statements set forth in this ins!l1Imcnt arc true and COITCCI, except as to matters therein

stated to on infonnation and belief and, as to such mailers, the undersigned certifies that

he believes the same

be true:

I am employed by the Illinois Environmental Protection Agency ("Illinois

EPA"') as a pennil analyst for the Division of Air Pollution Control's ("DAPC") Air

Permit Section located at 1021 North Grand Avenue East. Springfield, Illinois. I have

been employed by 'he Illinois EPA since 1978.

As a pennit analyst for the Illinois EPA's Clean Air Act Pcnnit Program

("CAAPP") Unit, my primary job responsibility is to conduct reviews of CAAPP permit

applications for major sources

of air pollution. Among other things, I prepare draft and

final versions of CAAPP permits. I am also involved in directing communications with

pemlil applicants and inlerested persons in Ihe permitting process, and researching, as

necessary, available records and documents and other associaled work lasks.

As part

of my responsibilities in the CAAPP Unit, I became the assigned

perm!lting analyst in lhc Illinois EPA's review of a permit application, CAAPP

Application No. 96030152 involving Noveon, Inc. for its operation of its Organic

Chemical Manufacturing Planl in Henry. Illinois.

Based on my recent review

of the permitting file for Operating Permit No.

72110935 for the

Acceleralor Crude Process. since al least 1975 through 1993. the

Illinois EPA issued permits authorizing the source to operate the process

exempt from the

Electronic Filing - Received, Clerk's Office, January 29, 2008

requirement in

35 111.

Adm. Code 214.30 1 based on the applicability of

Ill. Adm. Code

214.382.

Further affiant saycth not.

Subscribed and sworn

To cforc Me this 29

Electronic Filing - Received, Clerk's Office, January 29, 2008