One of Its Attorneys
By
PARTYLITE WORLDWIDE, INC.,
Petitioner,
v.
PCB No. 08-32
RECEIVED
OFFICE
FEB 2 0
2008
D
SIATE
ollution
OF
Control
ILLINOISBoard
ILLINOIS ENVIRONMENTAL
?
(CAAPP-Permit Appeal)
PROTECTION AGENCY,
Respondent.
NOTICE OF FILING
TO: John T. Therriault
Illinois Pollution Control Board
James R. Thompson Center
Maureen Wozniak
Division of Legal Counsel
Illinois Environmental Protection Agency
100 W. Randolph Street, Suite 11-500
1021 North Grand Avenue East
Chicago, Illinois 60601
Post Office Box 19276
(Via
Hand
Delivery)
Springfield, Illinois?
62794
Julie Armitage
Gerald T. Karr
Division of Legal Counsel
Office of the Attorney General
Illinois Environmental Protection Agency
Environmental Bureau North
1021 North Grand Avenue East
69 West Washington Street, Suite 1800
Post Office Box 19276
Chicago, Illinois 60602
Springfield, Illinois 62794
PLEASE TAKE NOTICE
that
on February 20, 2008, we filed with the Illinois
Pollution Control Board an original and ten (10) copies of Post-Hearing Brief in the above-
referenced matter on behalf of PartyLite Worldwide, Inc., a copy of which is hereby served upon
you.
DATED: February 20, 2008?
Respectfully submitted,
PARTYLITE WORLDWIDE, INC.
Eric E. Boyd
Meagan Newman
SEYFARTH SHAW LLP
131 South Dearborn Street, Suite 2400
Chicago, Illinois 60603
(312) 460-5000
THIS FILING PRINTED ON RECYCLED PAPER
I 11418071.1
CLERK'S
OFF/CED
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD,
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ILLINOIS
PARTYLITE WORLDWIDE, INC.,?
)
Petitioner,?
)
) PCB No. 08-32
?
).'
C
ontrol
Board
v.
?
)
) (Air-Permit Appeal)
ILLINOIS ENVIRONMENTAL
? )
PROTECTION AGENCY,?
)
)
Respondent.?
)
POST-HEARING BRIEF
NOW COMES, Petitioner PartyLite Worldwide, Inc. (TartyLite"), by and through its
attorneys, SEYFARTH SHAW LLP, and for its post-hearing brief states as follows:
I.
INTRODUCTION
This matter arises from PartyLite's Petition for Hearing pursuant to Section 40.2(a) of the
Illinois Environmental Protection Act, 415 ILCS 5/40.2(a) (the "Act") and Section 105.304 of
the Illinois Administrative Code, 35 III. Adm. Code § 105.304. PartyLite seeks review of the
Illinois Environmental Protection Agency's (the "Agency's") failure to act on PartyLite's
CAAPP application. Moreover, PartyLite seeks an order from the Board requiring the Agency to
issue PartyLite's requested permit within 90 days.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On November 2, 2007, PartyLite timely filed a Petition for Hearing, pursuant to Section
40.2(a) of the Illinois Environmental Protection Act (the "Act"), 415 ILCS 5/40.2(a), and Section
105.304 of the Illinois Administrative Code, 35
?
Adm. Code § 105.304, the Petition for
Hearing sought review of the Illinois Environmental Protection Agency's (the "Agency's")
failure to act on PartyLite's CAAPP application.
THIS FILING PRINTED ON RECYCLED PAPER
CHI
11416641 1
On January 29, 2008, a hearing was held before Hearing Officer Bradley Halloran in this
matter. At the hearing, PartyLite presented the testimony of Robert Harrington, Ph.D., the
Director of Regulatory Safety and Analytical Sciences for PartyLite. [T. 6]' The Agency
presented no witnesses. The following facts were elicited at the hearing:
On September 28, 2005, PartyLite submitted an application for an initial FESOP
on a CAAPP application form to the Agency for its candlemaking facility located
at 601 Kingsland Drive, Batavia, Illinois, pursuant to Section 504 of the Clean Air
Act, 42 USC § 7661b(c), and Section 39.5 of the Act . [T. 6-8, Exhibit A].
(2)
On or about November 3, 2005, the Agency sent a notice to PartyLite informing
PartyLite that its CAAPP application was complete pursuant to Section 39.5 of
the Act. [T. 7, Exhibit A].
(3)
As of the date of the hearing, the Agency has failed to take any action on
PartyLite's initial CAAPP application. [T. 10, Exhibit A].
Each of these pertinent facts was further stipulated to by the Agency: "On behalf of the Illinois
Environmental Protection Agency, we stipulate to the fact that Party[L]ite did submit the
CA[A]PP application on September 28, 2005. They received a Notice of Completeness on or
about November 3, 2005, and as of the date of this hearing, there has been no determination
made by the Illinois Environmental Protection Agency on that permit application." [T. 10].
The Agency presented no testimony or evidence that might explain its failure to take
action with respect to PartyLite's CAAPP application. Moreover, the Agency presented no
testimony or evidence that would justify a denial of Partylite's requested permit.
•?
•
Citations to the hearing transcript shall be designated by T. followed by page numbers.
THIS FILING PRINTED ON RECYCLED PAPER
2
C111 11416641.1
III.
ARGUMENT AND REQUESTED RELIEF
Pursuant to 415 ILCS 5/39.5(5)(j), the Agency must act on initial CAAPP applications
within two (2) years after the date of a completed application. The two (2) year time period for
Agency action begins to run from the date that a complete application was submitted. Here,
PartyLite submitted its completed CAAPP application on September 28, 2005. More than two
years have elapsed since that time and the Agency has yet to make any determination with
respect to PartyLite's application.
If the Agency fails to act within two (2) years, its failure to act is treated as a final permit
action for purposes of judicial review pursuant to Sections 40.2 and 41 of the Act. 415 ILCS
5/39.5(5)(j). The applicant is then entitled to review of the Agency's "final" action pursuant to
Section 40.2(a) of the Act and Section 105.304 of the Illinois Administrative Code, 35 Ill. Adm.
Code § 105.304.
The Board has before it all of the facts and information necessary for it to reach a
determination regarding the Agency's failure to meet the statutory requirements for action on
PartyLite's initial CAAPP permit application. The Agency's delay has prejudiced PartyLite and
any further delay will cause PartyLite additional prejudice. PartyLite, therefore, requests that the
Board issue an Order requiring the Agency to issue PartyLite a FESOP permit, as requested in its
application submitted on September 28, 2005, within 90 days.
2
This timeframe allows the
Agency sufficient time to review PartyLite's CAAPP permit application and to comply with its
public notice and comment obligations. See e.g.
Waste Management, Inc. v. Illinois
2
Furthermore, the Agency has failed to file the record as required by the Board's procedural
rules. Pursuant to Section 101.800 of the Illinois Administrative Code, 5 III. Adm. Code §
101.800, the Board may enter a judgment by default against the Agency for failure to comply
with the Board's procedural rules.
THIS
FILING PRINTED
ON RECYCLED PAPER
3
011 /1416641.1
ne of Its Attorneys
By
Environmental Protection Agency,
PCB Nos. 84-45; 84-61; 84-68 (Consolidated)(November 26,
1984)(ordering the Agency to issue an operating permit and supplemental wastestream
authorization permits within 21 days of the Board's Order).
IV. CONCLUSION
PartyLite submitted its completed initial CAAPP application on September 28, 2005. It
has waited over two (2) years and four (4) months for the Agency to take action with respect to
its application. The Illinois Environmental Protection Act and the Board's regulations make
clear that the Agency must take action within two (2) years from the date of a completed
application. PartyLite seeks only to have the Agency do what it is required by law to do.
Therefore, PartyLite seeks an Order from the Board requiring that the Agency issue PartyLite's
requested CAAPP permit within 90 days.
WHEREFORE, PartyLite respectfully requests that the Board order that the Illinois
Environmental Protection Agency issue PartyLite's requested CAAPP permit within 90 days.
DATED: February
20, 2008
Respectfully submitted,
PARTYLITE WORLDWIDE, INC.
Eric E. Boyd
Meagan Newman
SEYFARTI-I SHAW LLP
131 South Dearborn Street
Suite 2400
Chicago, Illinois 60603
(312) 460-5000
Tins
FILING PRINTED ON RECYCLED PAPER
4
CIII 11416641.1
CERTIFICATE OF SERVICE
I, Meagan Newman, hereby certify that I caused copies of the attached
POST-
HEARING BRIEF
to be served on:
John T. Therriault
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph Street
Suite 11 -500
Chicago, Illinois 60601
(Via Hand Delivery)
Julie Armitage
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Post Office Box 19276
Springfield, Illinois 62794
Maureen Wozniak
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
Post Office Box 19276
Springfield, Illinois 62794
Gerald T. Karr
Office of the Attorney General
Environmental Bureau North
69 West Washington Street, Suite 1800
Chicago, Illinois 60602
by United States Mail, first-class postage affixed thereto, at 131 S. Dearborn Street, Chicago,
Illinois 60603, on February 20, 2008.
'11115 FILING PRINTED ON RECYCLED PAPER
CHI 11418070.1