BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PARTYLITE WORLDWIDE, INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
Respondent.
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PCB No. 08-32
(Air-Permit Appeal)
TO:
Attached Service List
NOTICE OF FILING
PLEASE TAKE NOTICE that on February 20, 2008, I filed with the Clerk of the Illinois
Pollution Control Board, Respondent's Post-Hearing
Brief and Certificate of Service, a copy of
which is attached and served upon you.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY.
DATED: February 20, 2008
BY:~~==-=-=--~--=---=-=_~--=-'--L..-~~Il...£-.1
_
Gerald T. Karr
Senior Assistant Attorney General
Environmental Bureau
69 West Washington Street
Suite 1800
Chicago, Illinois 60602
(312) 814-3369
THIS FILING IS SUBMITTED ON RECYCLED PAPER
Electronic Filing - Received, Clerk's Office, February 20, 2008
SERVICE LIST
Eric Boyd
Meagan Newman
Seyfarth Shaw
131 South Dearborn Street
Suite 2400
Chicago, Illinois 60603-5803
Bradley
P. Halloran
Hearing Officer
Illinois Pollution Control Board
James
R. Thompson Center, Suite 11-500
100 West Randolph Street
Chicago, Illinois 60601
Electronic Filing - Received, Clerk's Office, February 20, 2008
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PARTYLITE WORLDWIDE, INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
Respondent.
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)
)
)
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PCB No. 08-32
(Air-Permit Appeal)
RESPONDENT ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY'S
POST-HEARING BRIEF
Introduction
The facts are not in dispute, Petitioner, Partylite Worldwide, Inc. ("Partylite"), on or about
September 28, 2005, applied for a Federally Enforceable State Operating Permit ("FESOP"),
utilizing a Clean Air Act Permit Program ("CAAPP") application for its candle making operation.
(January 29,2008, Hearing Transcript, p. 8 and Exhibit A to the transcript). On or about November
3,2005, Respondent, Illinois Environmental Protection Agency ("Illinois EPA"), issued a CAAPP
Application Completeness Determination. (January 29,2008, Hearing Transcript, p. 8). Finally, at
the time
ofthe January 29,2008 hearing, Illinois EPA had not acted on Partylite'spermit application.
(January 29, 2008, Hearing Transcript,
p. 8).
Applicable Statutes
Illinois
EPA's CAAPP became effective
upon
approval from the United States
Environmental Protection Agency ("US EPA").
US EPA approved Illinois' CAAPP on December 4,
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Electronic Filing - Received, Clerk's Office, February 20, 2008
2001. (66 FR 62946). Illinois' CAAPP is contained in Section 39.5 of the Illinois Environmental
Protection Act,
("the Act") 415 ILCS5/39.5 (2006). A source can seek an exclusion from CAAPP
pursuant to paragraph
1.1 of Section 39.5 of the Act. 415 ILCS 5/39.5 (1.1) (2006). To take
advantage
ofthis exclusion a source had to seek apermit containing federally enforceable conditions
within a State operating permit issued pursuant
to Section 39(a) of the Act. 415ILCS 5/39.5 (1.1)
(a). This application had to be submitted no later than 9 months after the effective date
of Illinois'
CAAPP or by September
4,2002. Thereafter, a source could still seek to be excluded from CAAPP
and obtain a FESOP but the Act requires that this be done through the CAAPP application process.
See Sections 39.5 (3)
(c) and 39.5 (5) (u) of the Act. 415 ILCS 5/39.5 (3) (c) and (5) (u) (2006).
Section 39.5
(3)(
c) also includes a requirement that, "The public notice requirements ofthis Section
applicable to CAAPP permits shall also apply to the initial issuance
ofpermits under this paragraph."
415 ILCS 5/39.5 (3) (c) (2006). In other words,
if a source sought exclusion from the CAAPP by
obtaining a FESOP, a public hearing would still be required.
Argument
The CAAPP permit process is involved and very complicated. Petitioner had the opportunity
to be excluded from this process by filing its permit application on or before September 4, 2002.
Petitioner did not file its application until November 28, 2005. For this reason Petitioner's
application must be processed and reviewed pursuant to the CAAPP process. See Section 39.5(3)
of
the Act. 415ILCS 5/39.5 (3) (2006). Petitioner cannot now complain about a process that it must
proceed under due to its own inaction. Part and parcel with this process is the public notice
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Electronic Filing - Received, Clerk's Office, February 20, 2008
requirements of the CAAPP. In particular Section 39.5(8)
(a)
provides in part:
a.
The Agency shall provide notice to the public, including an opportunity for
public comment and a hearing, on each draft CAAPP permit for issuance,
renewal or significant modification, subject to Sections 7(a) and
7.1 of this
Act.
Petitioner seeks an order from this Board requiring the Illinois EPA to run roughshod over
this process. Petitioner argues that this process can be accomplished in ninety days. However, to
grant the reliefthat Petitioner seeks would be contrary to the stated purpose
ofthe Act and the public
policy
of the State as embodied in the State Constitution.
This overview was set out by the Illinois Supreme Court in the case,
People ofthe State of
.
Illi~lOis
1'.
NL Industries,
152
Ill. 2d
8],
60./ NE. 2d
3./9, 178
Ill. Dec.
93
(Ill. Sup.
1992). The
" Supreme Court stated in part as follows:
The Illinois Constitution
of 1970 provides that every citizen has a right to a healthful
environment. (Ill. Const. 1970, art. XI,
§ 2.) Section 1 ofarticle XI, in fact, declares it
to be the public policy
of the State to provide and maintain a healthful environment
for the benefit offuture generations. (Ill. Const. 1970, art. XI,
§ 1.) Prior to enactment
ofthe Constitution of 1970, however, common law remedies were available to abate
and enjoin public nuisances which caused pollution. At the same time, in 1970, the
Illinois General Assembly enacted the Illinois Environmental Protection Act
(Ill.Rev.Stat.1989, ch.
111 1/2 , par. 1001
et seq.).
Repealing several statutes,
including the sanitary water board act (Ill.Rev.Stat.1969, ch. 19, § 145.1
et seq.)
and
the Illinois Air Pollution Control Act (Ill.Rev.Stat.1969, ch.
111 1/2, § 240.1
et seq.),
the Act established a unified statewide program to restore, protect and enhance the
quality
of the environment in the State.
The purpose
of this Act was set forth as follows:
"(b)
It
is the purpose of this Act, as more specifically described in later sections, to
establish a unified, statewide program supplemented by private remedies, to restore,
protect and enhance the quality
of the environment, and to assure that adverse
effects
upon the environment are fully considered and borne by those who cause
them." Ill.Rev.Stat.1987, ch. 111 1/2, par. 1002(b).
(c) The terms
a.t:J.d provisions of this Act shall be liberally construed so as to
effectuate the purposes
ofthis Act as set forth in subsection (b) ofthis Section, but to
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Electronic Filing - Received, Clerk's Office, February 20, 2008
the extent that this Act prescribes criminal penalties, it shall be construed
In
accordance with the "Criminal Code of 1961", as amended.
Withregard to Air Pollution the General Assembly made the following declaration in Section
8
of the Act:
The General Assembly finds that pollution
of the air of this State
constitutes a menace to public health and welfare, creates public
nuisances, adds to cleaning costs, accelerates the deterioration
of
materials, adversely affects agriculture, business, industry, recreation,
climate, and visibility, depresses property values, and offends the senses.
It
is the purpose of this Title to restore, maintain, and enhance the purity of
the air of this State in order to protect health, welfare, property, and the
quality
of life and to assure that no air contaminants are discharged into
the atmosphere without being given the degree
of treatment or control
necessary to prevent pollution.
415 ILCS 5/8 (2006).
One way in which the Illinois EPA achieves the stated declaration is through its various
permit programs. The obligation
of the Illinois EPA is to fulfill the mandate of the Illinois. State
Constitution and the Illinois General Assembly by fully and completely reviewing Partylite'spermit
application. This includes soliciting public comments and holding a public hearing to assure that no
adverse effects are imposed upon the environment and more importantly upon the citizens
of the
State
ofIllinois through Partylite's'operations. There would be absolutely no prejudice to Petitioner
in allowing the Illinois EPA the opportunity to fully and
completelY.. fulfill this mandate from the
General Assembly. In fact Petitioner has contradicted itselfon the issue
ofprejudice. In its Motion
for Expedited Review, Petitioner asserts that the Agency'sfailure to act has impacted Petitioner in its
ability to conduct its business. (Partylite'sMotion to Expedite Pg 2,Para. 4). But yet at the hearing
Petitioner's own witness, Doctor Robert Harrington, answered in the affirmative, the question
of
whether operations have continued at the facility during the pendency of the permit application
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Electronic Filing - Received, Clerk's Office, February 20, 2008
(January 29, 2008 Board Hearing Transcript, Page 9).
Doctor Harrington further testified that outside engineers were utilized in the preparation
of
the permit application (January 29,2008 Board Hearing Transcript, Page 9). No doubt this was done
due to the complicated nature
of a CAAP Application.
To force the Agency to act on this complicated application in the time frame suggested by the
Petitioner would deprive the citizens
of the State the opportunity to be heard.
It
would also be
contrary to the Act and public policy
of the State as embodied in its Constitution. A reasonable
timeframe to allow the Illinois EPA to act upon Petitioner'sapplication would be to allow the Illinois
EPA to and until September 20, 2008 to complete the application process.
WHEREFORE, Respondent, Illinois Environmental Protection Agency, respectfully request
the Illinois Pollution Control Board enter an order giving Respondent to and until September 20,
2008 to act
on the application.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
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By:
~~.-4'~/
Gerald T. Karr
Senior Assistant Attorney General
Environmental Bureau
69 West Washington Street
Suite 1800
Chicago, Illinois 60602
.
(312) 814-3369
Electronic Filing - Received, Clerk's Office, February 20, 2008
CERTIFICATE OF SERVICE
I, GERALD T. KARR, an Assistant Attorney General in this case, do certify that on this 20th
day
of February, 2008, I caused to be served by First Class Mail the foregoing Notice of Filing and
Respondent's Post-Hearing Brief upon the individuals listed on the attached service list, by
depositing the same in the U.S. Mail depository located at 100 West Randolph Street, Chicago,
Illinois in an envelope with sufficient postage prepaid.
GERALD
~~.~~
T. KARR
Electronic Filing - Received, Clerk's Office, February 20, 2008