ILLINOIS POLLUTION CONTROL BOARD
March 20, 2008
PARTYLITE WORLDWIDE INC.,
Petitioner,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
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PCB 08-32
(Permit Appeal - Air)
OPINION AND ORDER OF THE BOARD (by G.T. Girard):
Pursuant to Section 39.5 of the Environmental Protection Act (Act) (415 ILCS 5/39.5
(2006)), PartyLite Worldwide, Inc. (PartyLite) filed an application for a Clean Air Act Permit
Program (CAAPP) permit with the Illinois Environmental Agency (Agency). Under Section
39.5(5)(j)(ii) of the Act (415 ILCS 5/39.5(5)(j)(ii) (2006)), the Agency must act on the permit
application within two years. PartyLite appeals to the Board arguing that the Agency has not
acted on the permit application in that timeframe. As discussed below, the Board agrees with
PartyLite and pursuant to Section 40.2 of the Act (415 ILCS 5/40.2 (2006)) the Board directs the
Agency to act on the permit within 120 days of the date of this order.
The opinion begins with a recitation of the procedural background, followed by the facts.
Next the Board delineates the statutory background. The Board will then summarize the
arguments of the parties and conclude with a discussion of those arguments.
PROCEDUREL BACKGROUND
On November 2, 2007, PartyLite timely filed a petition asking the Board to review the
Agency’s alleged failure to act on PartyLite’s CAAPP permit application.
See
415 ILCS
5/40.2(a) (2006); 35 Ill. Adm. Code 105.302(c), (e). The CAAPP permit application concerns
PartyLite’s candlemaking facility located at 601 Kingsland Drive in Batavia, Kane County. The
Board accepted PartyLite’s petition for hearing on November 15, 2007.
Pursuant to Section 105.300(f), the Agency “must file within 30 days. after service of the
petition, an answer” which must include the entire Agency record. The Agency did not file an
answer to the petition or the record; however, the Agency participated at hearing and filed a brief
post hearing.
The Board held a hearing (Tr.) before Board hearing officer Bradley P. Halloran on
January 29, 2008, in Elmhurst, DuPage County. At that hearing, the Agency stipulated to facts
on the record and Robert M. Harrington, Director of Regulatory Safety and Analytical Sciences
2
for PartyLite, testified. Tr. at 6-11. On February 20, 2008, the parties simultaneously filed
closing briefs
1
.
FACTS
The parties have stipulated to certain facts regarding this permit appeal. Specifically,
PartyLite submitted a CAAPP permit application on September 28, 2005 and received a notice of
completeness pursuant to Section 39.5(5)(f) of the Act (415 ILCS 5/ Section 39.5(5)(f) (2006))
on November 3, 2005. Tr. at 7, 10; Pet. at 1. The Agency, as of this date, has not acted on the
petition. Tr. at 7, 10.
STATUTORY BACKGROUND
Section 39.5 of the Environmental Protection Act (Act) (415 ILCS 5/39.5 (2006)) sets
forth the CAAPP, reflecting the requirements of Title V of the federal Clean Air Act
Amendments of 1990 (42 U.S.C. §§ 7661-7661f). Generally, a CAAPP permit is designed to be
a single, comprehensive document of all air pollution obligations that apply to the facility. The
Agency decides whether to approve CAAPP permit applications, and Agency decisions may be
appealed to the Board by, among others, the permit applicant and persons who participated in the
Agency’s public comment process.
See
415 ILCS 5/40.2(a) (2006); 35 Ill. Adm. Code
105.SubpartC.
Section 39.5(5)(j) provides:
The Agency shall issue or deny the CAAPP permit within 18 months after the
date of receipt of the complete CAAPP application, with the following
exceptions:
(i)
permits for affected sources for acid deposition shall be issued or denied
within 6 months after receipt of a complete application in accordance with
subsection 17 of this Section;
(ii)
the Agency shall act on initial CAAPP applications within 24 months after
the date of receipt of the complete CAAPP application;
(iii)
the Agency shall act on complete applications containing early reduction
demonstrations under Section 112(i)(5) of the Clean Air Act within 9
months of receipt of the complete CAAPP application.
Where the Agency does not take final action on the permit within the required
time period, the permit shall not be deemed issued; rather, the failure to act shall
be treated as a final permit action for purposes of judicial review pursuant to
Sections 40.2 and 41 of this Act. 415 ILCS 5/30.5(5)(j) (2006).
1
PartyLite’s brief will be cited as “Br. at” and the Agency’s brief will be cited as “Resp. at”.
3
Section 40.2(a) of the Act provides:
Subsection (a) of Section 40 does not apply to any permit which is subject to
Section 39.5. If the Agency refuses to grant or grants with conditions a CAAPP
permit, makes a determination of incompleteness regarding a submitted CAAPP
application,
or fails to act on an application for a CAAPP permit
, permit renewal,
or permit revision
within the time specified in paragraph 5(j) of Section 39.5
of
this Act, the applicant, any person who participated in the public comment
process pursuant to subsection 8 of Section 39.5 of this Act, or any other person
who could obtain judicial review pursuant to Section 41(a) of this Act,
may,
within 35 days after final permit action, petition for a hearing before the Board to
contest the decision of the Agency
. However, the 35-day period for petitioning for
a hearing may be extended by the applicant for an additional period of time not to
exceed 90 days by written notice provided to the Board from the applicant and the
Agency within the initial appeal period. If another person with standing to appeal
wishes to obtain an extension, there must be a written notice provided to the
Board by that person, the Agency, and the applicant, within the initial appeal
period. Notwithstanding the preceding requirements, petitions for a hearing
before the Board under this subsection may be filed after the 35-day period, only
if such petitions are based solely on grounds arising after the 35-day period
expires. Such petitions shall be filed within 35 days after the new grounds for
review arise.
If the final permit action being challenged is the Agency’s failure to
take final action, a petition for a hearing before the Board shall be filed before
the Agency denies or issues the final permit
.
The Agency shall appear as respondent in such hearing. At such hearing the rules
prescribed in Sections 32 and 33(a) of this Act shall apply, and the burden of
proof shall be on the petitioner. [emphasis added] (415 ILCS 5/40.2(a) (2006)).
DISCUSSION
The following discussion will begin with a summary of PartyLite’s arguments. Next the
Board will summarize the Agency’s position. The Board will then delineate the Board’s findings
and reasons for those findings.
PartyLite Arguments
PartyLite seeks an order from the Board requiring the Agency to issue PartyLite’s
requested permit within 90 days of the Board’s order. Br. at 1. PartyLite argues that the Agency
has stipulated to the pertinent facts and that the Agency has presented no testimony or evidence
that would justify a denial of the requested permit. Br. at 2. PartyLite points out that Section
39.5(5)(j) of the Act (415 ILCS 5/39.5(5)(j) (2006)) requires the Agency to act within two years
after a completed permit application is filed. Br. at 3. PartyLite maintains that the completed
application was submitted on September 28, 2005 and more than two years have elapsed.
Id
.
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PartyLite further points out that the 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 5/40.2, 41
(2006)). Br. at 3. PartyLite asserts that the Board has before it all the facts and information
necessary to reach a determination regarding the Agency’s inaction.
Id
. PartyLite asserts that
the delay has prejudiced PartyLite and further delay will cause additional prejudice.
Id
.
PartyLite argues that 90 days offers the Agency sufficient time to review the permit application
and fulfill public comment and notice obligations.
Id
. PartyLite cites to Waste Management of
Illinois v. IEPA, PCB 84-61, 84-68 (consld.) (Nov. 26, 1984) to support the request for a 90 day
timeframe.
Agency Arguments
The Agency asserts that the CAAPP permit process is an involved and complicated
process and that PartyLite seeks an order that would require the Agency to “run roughshod over”
the process. Resp. at 2-3. The Agency opines that for the Board to grant such relief would be
contrary to the stated purposes of the Act. Resp. at 3. The Agency maintains that there would be
no prejudice to PartyLite in allowing the Agency the opportunity to fully and completely review
the permit application. Resp. at 4. The Agency points out that PartyLite has continued operation
throughout the permit process. Resp. at 4. The Agency argues that a reasonable timeframe
would be to allow the Agency until September 20, 2008, to complete the application process.
Resp. at 5.
Board Discussion
Before proceeding with a discussion of the merits of this case the Board first will address
how the Board will review this appeal as this is the first time the Board has been asked to review
the Agency’s activities under Section 39.5(5)(j) of the Act (415 ILCS 5/39.5(5)(j). Next the
Board will explain the reasons for the Board’s decision.
Standard of Review
When reviewing a permit decision by the Agency to grant, grant with conditions or deny
a permit under Section 39 of the Act (415 ILCS 5/39 (2006)), the Board’s review is pursuant to
Section 40 of the Act (415 ILCS 5/40 (2006)). Under those statutory provisions the law is well
settled that the question before the Board is whether the applicant proves that the application, as
submitted to the Agency, demonstrated that no violation of the Act would have occurred if the
requested permit had been issued. ESG Watts v. IEPA, PCB 01-63, 64 (consld.) (Apr. 4, 2002);
Joliet Sand & Gravel Co. v. PCB, 163 Ill. App. 3d 830, 833, 516 N.E.2d 955, 958 (3rd Dist.
1987), citing IEPA v. PCB
, 118 Ill. App. 3d 772, 455 N.E. 2d 189 (1st Dist. 1983). Further
under Section 40 of the Act (415 ILCS 5/40 (2006)), the Agency’s denial letter frames the issues
on appeal and the burden of proof is on the petitioner. ESG Watts, Inc. v. PCB, 286 Ill. App. 3d
325, 676 N.E.2d 299 (3rd Dist. 1997). And under Section 40 of the Act (415 ILCS 5/40 (2006)),
the Board’s review of permit appeals is limited to information before the Agency during the
Agency’s statutory review period, and is not based on information developed by the permit
applicant, or the Agency, after the Agency’s decision. Alton Packaging Corp. v. PCB
, 162 Ill.
App. 3d 731, 738, 516 N.E.2d 275, 280 (5th Dist. 1987).
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In this case, the Agency’s decision is made pursuant to 39.5 of the Act (415 ILCS 5/39.5
(2006)) and the Board is authorized to review the Agency’s decision under the provisions of
Section 40.2 of the Act (415 ILCS 5/40.2 (2006)), which specifically states that Section 40(a) of
the Act (415 ILCS 5/40(a) (2006)) does not apply. For many of the Agency’s actions under
Section 39.5 of the Act (415 ILCS 5/39.5 (2006)), the standard of review followed by the Board
need not change and the Board can follow the well-settled precedent. However, when reviewing
the Agency’s inaction under Section 39.5(5)(j) of the Act (415 ILCS 5/39.5(5)(j) (2006)), there is
no denial letter and no actual decision by the Agency on the permit. In fact Section 39.5(5)(j) of
the Act (415 ILCS 5/39.5(5)(j) (2006)) specifically states that “the permit shall not be deemed
issued” by the Agency’s failure to act. Thus, the well-settled law can offer only guidance in the
Board’s review of the Agency’s inaction under Section 39.5(5)(j) of the Act (415 ILCS
5/39.5(5)(j) (2006)).
The Board notes that the burden of proof remains on the applicant pursuant to Section
40.2 of the Act (415 ILCS 5/40.2 (2006)). In this case, the Board will look to the provisions of
the Act and the arguments of the parties to determine if PartyLite has demonstrated that the
Agency failed to take action and, if so, what relief is appropriate. The Board cannot examine the
record as the Agency has failed to file the permit record as required by Section 105.302(f) of the
Board regulations (35 Ill. Adm. Code 105.302(f)). Thus, the Board’s decision will be based on
the evidence as presented at hearing and the arguments in the briefs.
Board’s Findings
Section 39.5(5)(j) of the Act (415 ILCS 5/39.5(5)(j) (2006)) unequivocally requires the
Agency to act on initial CAAPP permit applications within 24 months. The failure to take such
action can be appealed to the Board pursuant to Section 40.2 of the Act (415 ILCS 5/40.2
(2006)). The facts before the Board clearly establish that the Agency has not acted on
PartyLite’s application within 24 months or two years. Thus, PartyLite is entitled to a review of
the Agency inaction.
The Board can only review the record placed before the Board and in this case the record
is limited. The Agency has failed to file the permit record as required by Section 105.302(f) of
the Board regulations (35 Ill. Adm. Code 105.302(f)). Further, the Agency has offered no
explanation of the failure to act on the permit application. Therefore, the record before the Board
simply indicates that a complete application was filed on September 28, 2005 and was deemed
complete by the Agency on November 3, 2005. Thus, pursuant to the statutory provisions of
Section 39.5(5)(j) of the Act (415 ILCS 5/39.5(5)(j) (2006)), PartyLite was entitled to action by
the Agency.
PartyLite seeks an order requiring action within 90 days of the date of this order. The
Agency seeks an additional six months, until September 20, 2008, to complete the review
process. PartyLite asserts that prejudice has occurred and will continue if action is not taken
within 90 days. The Board disagrees that PartyLite will be prejudiced if action is not taken on
the permit in 90 days. PartyLite’s own witnesses testified that the facility is operating and
offered no testimony that would support the claimed prejudice. Therefore the Board finds that
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PartyLite has not established that PartyLite will be prejudiced if the decision on the permit is not
made in 90 days.
However, the Board is equally unconvinced that the Agency is entitled to an additional
six months. The Agency has had a complete application since November 3, 2005 and the statute
allows the Agency 24 months to review an initial CAAPP permit. The statute does not give the
Agency nearly 35 months. The Agency has offered broad policy arguments to support the
request for an additional six months, but no evidence as to why that much time is needed.
As stated PartyLite has not demonstrated that 90 days is required and the Board believes
that timeframe is too short given public notice and comment requirements. Therefore, to ensure
that sufficient time is available for public notice and comment, the Board directs the Agency to
take action on the PartyLite permit application within 120 days of this order. The Board notes
that a 120 day decision deadline is the time imposed on the Board in Section 40.2(c) of the Act
(415 ILCS 5/40.2(c) (2006)) and longer than the 90 days imposed on the Agency under Section
39(a) of the Act (415 ILCS 5/39(a) (2006)). Thus, the Agency must take action by July 18,
2008.
CONCLUSION
The Board finds that the Agency failed to take action on PartyLite’s completed
application for a CAAPP permit as required by Section 39.5(5)(j) of the Act (415 ILCS
5/39.5(5)(j) (2006)). Therefore, PartyLite is entitled to a review of that inaction. The Board
further finds that an additional 120 days is sufficient to allow the Agency to fulfill the public
notice and comment requirements for CAAPP permits and for the Agency to complete the
review of the permit. The Board directs the Agency to take action on the permit by July 18,
2008, which is within 120 days of this order.
ORDER
The Illinois Environmental Protection Agency is directed to take action on PartyLite
Worldwide, Inc’s application for a clean air act permit program permit by July 18, 2008.
IT IS SO ORDERED.
Section 41(a) of the Environmental Protection Act provides that final Board orders may
be appealed directly to the Illinois Appellate Court within 35 days after the Board serves the
order. 415 ILCS 5/41(a) (2006);
see also
35 Ill. Adm. Code 101.300(d)(2), 101.906, 102.706.
Illinois Supreme Court Rule 335 establishes filing requirements that apply when the Illinois
Appellate Court, by statute, directly reviews administrative orders. 172 Ill. 2d R. 335. The
Board's procedural rules provide that motions for the Board to reconsider or modify its final
orders may be filed with the Board within 35 days after the order is received. 35 Ill. Adm. Code
101.520;
see also
35 Ill. Adm. Code 101.902, 102.700, 102.702.
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I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that
the Board adopted the above opinion and order on March 20, 2008, by a vote of 4-0.
___________________________________
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
