BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

?

RECEIVED

CLERK'S OFFICE

In

2

5 2008

STATE OF ILLINOIS

Pollution Control

Board

PCB 2004-102

(CAAPP Permit Appeal)

ILLINOIS ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

NOTICE

To: John Therriault, Assistant Clerk

Illinois Pollution Control Board

100 West Randolph Street

Suite 11-500

Chicago, Illinois 60601

Bradley P. Halloran

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

Suite 11-500

100 West. Randolph Street

Chicago, Illinois 60601

Roy M. Harsch

Steven J. Murawski

Drinker Biddle Gamer Carton

191 N. Wacker Drive

Suite 3700

Chicago, Illinois 60606-1698

EMERALD PERFORMANCE MATERIALS,

L.L.C. (as purchaser of NOVEON, INC.)

Petitioner,

v.

---

PLEASE TAKE NOTICE that today I sent by Overnight Mail with postage

thereon fully paid and deposited into the possession of the United Parcel Service the

MOTION FOR WAIVER OF REQUIREMENTS, MOTION TO TEMPORARILY

SEAL RESPONDENT'S POST-HEARING BRIEF AS TRADE SECRET and

POST-HEARING BRIEF

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,

Sally tarter

Assistant Counsel

Dated: July 24, 2008

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

EMERALDL.L.C.

(as purchaser

?

PERFORMANCE

of NOVEON,

MATERIALS;

INC.).?

))

?

?

IFI

CLERK'S

EcERVED

OFFICE

Co

n

t

rol

i F

ILL

INBOIS

JILL2 5 2008

)

Petitioner,

)

STATE

v.?

))

?

PCB 2004-102

Po

llutionoard

Ii ton

)

?

(CAAPP Permit Appeal)

ILLINOIS ENVIRONMENTAL

?

)

PROTECTION AGENCY,?

)

)

Respondent.?

)

MOTION TO TEMPORARILY SEAL RESPONDENT'S POST-HEARING BRIEF

AS

TRADE SECRET

The Respondent, Illinois Environmental Protection Agency ("Illinois EPA" or

"Agency"), by and through its attorneys and pursuant to 35 Ill. Adm. Code 101.500,

hereby moves the Illinois Pollution Control Board ("Board") to Temporarily Seal

Respondent's Post-Hearing Brief as Trade Secret until Petitioner has been afforded the

opportunity to review Respondent's Post-Hearing Brief to confirm that statements within

such document do not jeopardize Petitioner's prior trade secret claims pending before the

Illinois EPA. In support of this Motion, Respondent states as follows:

1. 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. For purposes of this appeal, and particularly, for the Post-Hearing Brief,

the issue before the Board is Petitioner's challenge to the Agency's decision that the

facility's condensers in the mercapto-benzothiazole crude ("MBT-C") process are not

entitled to the exemption provided by 35 Ill. Adm. Code 214.382 and thus, are subject to

the 2,000 ppm SO2

limit in 35 Ill. Adm. Code 214.301 (hereinafter referred to as the "SO2

issue").

1

---

2.

During CAAPP permitting of the source, Petitioner submitted a number of

documents to the Agency, many of which included claims of trade secret by Emerald. At

all times and consistent with the mandate of 35 Ill. Adm. Code 130, the Illinois EPA has

protected those documents previously claimed trade secret by Petitioner. In order to

continue the protection afforded to material previously claimed as trade secret by

Petitioner to the Illinois EPA, the Agency filed a Public Version (i.e., Volume I), and a

Trade Secret Version, (i.e., Volume II) of the Administrative Record with the Board on

April 27, 2007.

See,

35 Ill. Adm. Code 130.

3.

While the Respondent has diligently protected such documents, the

Respondent had no choice but to extensively rely upon certain documents claimed as

trade secret by Petitioner in its Post-Hearing Brief given that the Illinois EPA relied upon

these documents in its ultimate permitting decision. Consequently, the Respondent's

brief cites to a variety of documents contained within the Trade Secret Version of the

Administrative Record and, moreover, provides a lengthy discussion of Petitioner's

MBT-C process that had previously been claimed trade secret in countless documents

submitted by the Petitioner to the Agency.

4.

What is not clear to the Agency is whether such statements in its brief

would impair Petitioner's prior trade secret claims particularly, due to recent statements

by Petitioner to the Board. Most recently, in Petitioner's Motion to Designate Transcript

as Non-Trade Secret, the. Petitioner assertedit had reviewed the transcript .from

5, 2008, hearing and the exhibits admitted into evidence concluding only one

exhibit (i.e., Exhibit 3) contained trade secret information.

Motion to Designate

Transcript as Non-Trade Secret,

April 14, 2008.

2

---

5. In

light of Petitioner's prior claims to the Agency and, more recently,

Petitioner's willingness to designate much of the same material as non-trade secret before

the Board, it is not clear to the Agency how to reconcile these apparent inconsistencies in

Petitioner's statements. To avoid the inadvertent disclosure of materials and/or

information claimed trade secret by Petitioner to the Agency, the safest course of action

is to provide Petitioner the opportunity to review Respondent's Post-Hearing Brief before

making it public. Consequently, the Illinois EPA requests that the Board temporarily seal

Respondent's Post-Hearing Brief as trade secret until Petitioner has the opportunity to

review the filing to confiim statements contained within such document do not jeopardize

Petitioner's prior trade secret claims to the Agency. In the event, Petitioner concludes

that certain statements within Respondent Post-Hearing Brief could impair its trade secret

Claims pending before the Agency, the Agency would propose submitting a Public (i.e.,

redacted) Version of Respondent's Post-Hearing Brief and a Trade Secret Version of

-

-

respondent's

Post-Hearing Brief to the Board.

3

---

WHEREFORE, for the reasons set forth above, the Respondent, Illinois

Environmental Protection Agency, respectfully requests that the Board Temporarily Seal

Respondent's Post-Hearing Brief as Trade Secret.

Respectfully submitted,

Assistant

Sall Y

. CarterCounsel

Dated: July 23, 2008

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois 62794-9276

(217)782-5544

4

---

BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

OF THE STATE OF ILLINOIS

RECEIVEDCLERK'S

OFFICE

EMERALD PERFORMANCE MATERIALS, )

L.L.C.

(as purchaser of NOVEON, INC.).

JUL 2

5 2008

STATE OF ILLINOIS

Petitioner,

Pollution Control Board

v.

?

PCB 2004-102

(CAAPP

Permit Appeal)

ILLINOIS ENVIRONMENTAL

)

PROTECTION AGENCY,

)

Respondent. )

MOTION FOR WAIVER OF REQUIREMENTS

The Respondent, Illinois Environmental Protection Agency ("Illinois EPA" or

"Agency"), by and through its attorneys and pursuant to 35 Ill. Adm. Code 101.500,

hereby moves the Illinois Pollution Control Board ("Board") to waive certain

requirements, namely that the Respondent's Post-Hearing Brief not exceed fifty (50)

pages as set forth in 35 Ill. Adm. Code 101.302. In support of this Motion, Respondent

states as follows:

1.

On.December 24, 2003, Petitioner filed a petitiombefore the Board

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

Illinois EPA. However, the issue for purposes of this appeal, and particularly, for this

Post-Hearing Brief, is Petitioner's challenge to the Agency's decision that the facility's

condensers in the mercapto-benzothiazole crude ("MBT-C") process are not entitled to

the exemption provided by 35111. Adm. Code 214.382 and thus, are subject to the 2,000

ppm SO2

limit in 35 Ill. Adm. Code 214.301 (hereinafter referred to as the "SO

2

issue").

2.

Admittedly, Respondent's Post-Hearing Brief, together with its

accompanying exhibits, is sixty-six (66) pages in length. Nonetheless, it is fairly

1

---

proportional in its response given both the complexity and, in some instances, the

potential significance of the issues raised by the Petitioner in its appeal. While one.

principle issue remains for this appeal, the number of off-shooting arguments and

miscellaneous issues raised by Petitioner was considerably greater. First, the Petitioner

contends that the Illinois EPA's review of the applicable regulatory language in

conjunction with its consideration of the Administrative Record subjected the source to

, the 2,000 ppm SO2

standard and in so doing, the Agency improperly reversed course on

twenty-five years of state operating permitting history exempting the source from this

standard.

[Petitioner's Post-Hearing Memorandum at 3-4, 10-18].

In support of such

argument, Petitioner argued that the Illinois EPA subjectively engaged in an

inappropriate rulemaking by incorporating additional requirements into 35 Ill. Adm.

Code 214.382.

[Petitioner's Post-Hearing Memorandum at 2-18].

Second, due to the

lack of any regulatory amendments to 35 Ill. Adm. Code 214.301 and 214.382, or the

lack of changed circumstances at the source, Emerald insists that the Il

linois EPA should

be estopped from subjecting it to 35 Ill. Adm. Code 214.301.

Petitioner's Post-Hearing

Memorandum at

15-18. Finally, in a related argument, the Hearing Officer purportedly

erred in denying Petitioner's Motion to Supplement the Record for the CAAPP permit

with documents contained in state operating permit files from 1972 through 1993.

Petitioner's Post-Hearing Memorandum at

19-26.

3. In

all instances, the. Illinois. EPA sought,to provide a detailed overview of

its permitting decision, together with relevant supporting facts from the Administrative

Record. At the same time, Respondent diligently attempted to restrict the length of

Respondent's Post-Hearing Brief and, in furtherance of these efforts, where possible, the

2

---

Illinois EPA sought to minimize its responses to trivial or collateral matters. Despite

these efforts, Respondent has found it impossible to abide by the fifty-page limit and

fully set forth the numerous complex matters that must be discussed by the Respondent to

provide a through analysis of the applicable law and facts in support of the Respondent's

position. In addition, as the Petitioner's Post-Hearing Brief is dispositive to the outcome

of the case, a thorough review of the applicable law and facts is warranted by the Illinois

EPA in this case.

4. Concurrently

with this Motion, Respondent is submitting Respondent's

Post-Hearing Brief to the Board for filing that is in excess of fifty pages in length.

WHEREFORE, for the reasons set forth above, the Respondent, Illinois

Environmental Protection Agency, respectfully requests that the Board provide approval

for the Respondent's Post-Hearing Brief for filing in excess of fifty pages.

Respectfully submitted,

Q.

eAtii4

Sally A. Carter

Assistant Counsel

Dated: July 23, 2008

Illinois Environmental Protection Agency

1021 North Grand Avenue East

P.O. Box 19276

Springfield, Illinois. 62794-9276

(217)782-5544

3

---

CERTIFICATE OF SERVICE

I hereby certify that on the 24

th

day of July 2008, I did send the following

instruments,

MOTION FOR WAIVER OF REQUIREMENTS, MOTION TO

TEMPORARILY SEAL RESPONDENT'S POST-HEARING BRIEF AS TRADE

SECRET

and

POST-HEARING BRIEF

by Overnight Mail with postage thereon fully

paid and deposited into the possession of the United Parcel Service, 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 24

th

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

copy of the same foregoing instruments, by Overnight Mail with postage thereon fully

paid and deposited into the possession of the United Parcel Service, to:

Bradley P. Halloran

Hearing Officer

Illinois Pollution Control Board

James R. Thompson Center

Suite 11-500

100 West Randolph Street

Chicago, Illinois 60601

Roy M. Harsch

Steven J. Murawski

Drinker Biddle Gardner Carton

191 N. Wacker Drive

Suite 3700

Chicago, Illinois 60606-1698

Sally Cater

Assistant Counsel

---

BEFORE THE

ILLINOIS

POLLUTION CONTROL BOARD

OF THE STATE

OF

ILLINOIS

EMERALD

PERFORMANCE MATERIALS,

)

L.L.C.

(as purchaser of

NOVEON,

INC.).

)

OLE

Petitioner,

)

JUL

2

5

2008

v.

)

PCB 2004-1 02

‘t1o

CojSd

)

(CAAPP Permit Appeal)

ILLINOIS

ENVIRONMENTAL

)

PROTECTION

AGENCY,

)

)

Respondent.

)

POST-HEARING

BRIEF

The

Respondent, Illinois Environmental

Protection Agency

(“Illinois EPA”

or

“Agency”), by

and

through its attorneys

files with the Illinois Pollution Control

Board

(“Board”) this

Post-Hearing Brief in this cause,

stating as follows:

I.

Introduction

The

Petition for Review

(“Petition”)

involves a Clean

Air Act

Permit

Program

(“CAAPP”)

permit

issuedbythe

IllinoisEPA onNovember.

24,2003

to.

Noveon,Jnc for

the

operation of an

organic chemical manufacturing

plant located in rural Henry,

Marshall County,

Illinois.1

Relevant Case

History

In May

2006,

Sun Capital

purchased the

polymer chemical

side of the manufacturing plant

including

the

mercapto-benzothiazole crude

(“MBT-C”) process in Henry,

illinois and

renamed

the

facility

Emerald

Performance Materials,

L.L.C. [Transcript at 12-13]. On February 7,

2008,

the Board

granted

Noveon

Inc.’s Agreed Motion

to Change Petitioner’s Name to Emerald

Performance

Materials,

L.L.C. For purposes

of Respondent’s Post-Hearing Brief all references

to this

source

shall be to

“Petitioner” or

“Emerald” regardless of the actual source

name

at

that

time.

V

1

---

To simply

give

a bit of an overview to the permit application

submittal

and the

permit

review,

Emerald submitted

a CAAPP

application

to

the Illinois EPA’s Division

of

Air

Pollution Control (“DAPC”)/Permit Section on March 7, 1996. [Trade

Secret

Version

ofRecord at 1-2115]. This application lacked requisite

details

to determine compliance

with certain regulatory requirements

at

issue

in this proceeding.

Consequently, the

Agency subsequently notified

the

source in a February 22, 2001, letter that the Illinois

EPA was reevaluating Emerald’s compliance with

the applicable SO

2

regulations. [See,

Public Version

of

Record at

1469-1471]. As a

result

of Petitioner’s

response

to this

letter,

and

the

Illinois EPA’s review

of the

pertinent regulations, the Agency determined

that

Emerald

was not in compliance

with the

SO

2

regulations.

Following

the February

Request for Additional Information, the Illinois EPA sent Petitioner a second

Request

for

Additional

Information on May

16, 2001, requesting the

submittal of a compliance plan

given the Illinois EPA’s determination that the condensers on the MBT-C

process

did not

quaJify

for

the

exemption in

35 Ill. Adnt Code 214.382 and

thus, were subject to the

requirements of 35

Ill.

Adm. Code 214.301. [See, Public Version of

Record at 1459-

1460; see also,

Transcript

at 113-116].

As will

be elaborated

upon in the body of this brief, the

Illinois EPA’s decision

not

only

centered

on a

detailed

review

of the workings of the MBT-C

process in light

of

the

applicable regulatory language

as well as

a consideration of the percent of

total

sulfur

compounds

recovered,

by the condensers; the Agency’ s..conclusion

was a1so based upon

its

institutional knowledge (i.e.,

the intent of the original rulemaking

for 35 Ill. Adm.

Code

214.382, particularly in light of the differences at sulfur

recovery units

at

petroleum

2

---

refineries,

the

units

meant

to

be covered

by

the

rulemaking,

verses

the

condensers

on

the

MBT-

C

process);

information

from

regulators

in

other

states;

and

USEPA

guidance.

The

Petitioner expressed

its

disagreement

with

the

Illinois

EPA

over

the

applicability

of

the

exemption

in various

meetings

and

in

letters

dated

June

14,

2001

and

October

17,

2003.

[See,

Trade

Secret

Version

of

Record

at 2116-2118;

see

also,

Public

Version

of

Record

at

1238-1252

¶7,

1276-1277,

1420;

see

also,

Transcrpt

at

40-41,

119-

120].

While

Petitioner

disagreed

with

the

Agency’s

conclusion

that

35

Ill.

Adm.

Code

214.301

was

applicable

to

the

MBT-C

process

at the

source,

the

USEPA

did

not

comment

on

this

applicable

requirement

during

its

45-day

review

period.

Rather,

any

concerns

expressed

by

the

USEPA

over

the

proposed

CAAPP

permit

were

limited

to

the

future applicability

of the

Miscellaneous

Organic

National

Emission

Standard

for

Hazardous

Air

Pdllütants

(“NESHAP.”)

(“MON”)

and,

in

the

context

of

the

New

Source

Performance

Standards

(“NSPS”),

various

proposed

applicability

determinations

made

by

the

Illinois

EPA.

[Public

Version

ofRecord

at

1842-1843,

1850-1851;

see

also,

Transcript

at

126-127].

Acting

in

accordance

with

its

authority

under

the

CAAPP

provisions

of

the

Illinois

Environmental

Protection

Act

(“Act”),

415

ILCS

5/39.5

(2002),

the

Illinois EPA

deliberately

considered

the

applicable

regulations

and

the

Administrative

Record when

it issued

a

CAAPP

permit

to

Emerald

on

November

24,

2003

subjecting

the

MBT-C process

to

35

Ill.

Adm.

Code

214.301.

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.

:While the

initial

petition

challenged

a

number

of

conditions,

on

January

30,

2008,

Petitioner

filed

an

Agreed

Motion

to Voluntarily

Dismiss

Certain

Claims;

said

motion

3

---

was

granted by the Board

on

February

7, 2008.

The

sole issue for purposes

of this

appeal,

and

particularly,

for this

Post-Hearing

Brief,is Petitioner’s

challenge

to

the

Agency’s decision that

the facility’s

condensers

in the MBT-C process

2

are not entitled

to

the exemption

provided by

35 Ill. Adm.

Code 214.382 and thus,

the process is

subject to

the 2,000

ppm 2

SO

limit in 35 Ill. Adm.

Code 214.301

(hereinafter referred

to as

the

“SO

2

issue”).

Given

that other information

relied

upon

by

the Illinois EPA

was not relevant

to

the

SO

2

issue

but involved other

noncontested

sections

of

the CAAPP

permit

or

other

sections

of the CAAPP permit

that

would ultimately

be withdrawn,

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

SO

2

issue.

The Illinois

EPA filed its Motion

for Leave and

submitted its

Administrative

Record

to the Board

on April 27,

2007. Petitioner had

no objection to

the

Motion for Leave.

[See, Hearing

Officer Order,

dated July 26, 2007],

The Administrative

Record included aPublic

Version

(i.e.,

Volume I), and

a

Trade

Secret

Version,

(i.e.,

Volume II) of the

record that generally

included

Emerald’s

CAAPP

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

DAPC/Permit

Section

in the issuance

of the CAAPP permit

relevant to

the

2

SO

issue.

Documentation

containedwithin>the.Administrative

Record

was

arranged chronologically,

beginning

with the submittal

of the CAAPP

application

on

2

As

discussed in Petitioner’s

case-in-chief,

Emerald produces,

in

addition

to other products,

accelerators

to speed the time required

to cure

tires.

Sodium

mercapto-benzothiazole

(MBT)

is

the

intermediate

employed

to

make the accelerators;

the first step

in

the

production

of

sodium

MBT

is the

MBT-crude process

at issue in this

appeal. [Transcript

at 14-15; see also,

Petitioner’s

Post-Hearing

Memorandum

at

5].

4

---

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 Iii.

Adm. Code 105.302(f) requiring the filing

consist of “the

entire Agency

record

ofthe CAAPF 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).

On

January

24, 2008, Petitioner filed a Motion

to Supplement the Record in this

cause,

arguing that

the Illinois EPA

was

required to supplement

the Administrative

Record for

the

subject CAAPP application with

material not specifically relied upon

by

the

Agency and,

in fact,

was information

derived from

prior state operating permit

application

submittals.

In its

January 29, 2008

response,

the Illinois

EPA explained that the record for the

CAAPP

permit

appropriately

began with

the submittal of the

CAAPP

application in

March 1996

and

ran through the

date

of the CAAPP

permit’s issuance in November

2003;

the

Agency’s

inclusion oftwornemoranda inthe

record that pre-dated the

submittal of

the

CAAPP

application

in 1996 were appropriate

given

they were physically

attached to a

2001

memorandum

included

within the

CAAPP permit file; and for

purposes

of

Petitioner’s

estoppel

claim that

the Illinois EPA

held a

contrary permitting

decision.

for.

approximately twenty yearswith regard

to the. applicability of.35 Ill. Adm.

Code

214.301 to the

source, the

Illinois

EPA

conceded

the

point. Hearing Officer

Halloran

concurred with

the Illinois EPA in

his February 4, 2008,

Hearing

Officer

Order

denying

Petitioner’s

Motion

to Supplement the

Administrative

Record.

5

---

A hearing

was

scheduled

by Hearing

Officer

Halloran

and held

on

February

5,

2008

in

Marshall

County,

Illinois.

At the

hearing,

the Petitioner

called

three

witnesses,.

David

Giffin

of Emerald,

Michael

Corn

of

AquAeTer,

Inc.,

and Bernard

Evans

of

Environmental

Resources

Management.

During

its case-in-chief,

the

Illinois

EPA

presented

the

testimony

of

Agency

permitting

engineer,

Dan

Punzak.

During

the

hearing,

the

Hearing

Officer

sustained

Agency

objections

to

Petitioner’s

repeated

efforts

to

introduce

documentation

relevant

to

previously-issued

state

operating

permits

from 1972

through

1993

that

pre-dated

the

March

1996

submittal

of

the CAAPP

application to the

Illinois

EPA.

Public

comments

were

to be

filed

with

the

Board

on or before

June

12,

2008.

No

member

of

the

public

commented

by

this

deadline.

IL

Argument

The

opening

salvo

in

Petitioner’s

challenge

to

the Illinois

EPA’s

permit

decision

is

a

highly-charged

and

caustic

denunciation

of the

assied

permitting

engineer’s,

Mr.

Dan

Punzak,

review

of

the

applicable

regulatory

language

in conjunction

with

his

review

of the

Administrative Record

in

this

proceeding,

particularly,

Petitioner’s

CAAPP

application.

The

Petition

presents

a

derisive

view

of Mr.

Punzak’s

role

in the

Agency’s

CAAPP

decision

to subject

the

source

to the

applicable

SO

2

standard

and

in so

doing,

reversing

course

on

twenty-five

3

years

of state

operating

permitting

history

exempting

the

Emerald’s

contention

that

over

a

span

of twenty-five

years,

the Illinois

EPA

consistently

approved

state

operating

permits

for

the source’s

MBT-C

process

exempt

from the

2,000

ppm

SO

2

standard

is

not

supported

by

evidence

before

the

Board.

[Petitioner’s

Post-Hearing

Memorandum

at

2, 4, 15,

26].

Rather,

evidence

indicates

that

the

fllinois

EPA

held

a

contrary

permitting

decision

for approximately

twenty

years. Elsewhere

in its

brief, Petitioner

references

documents

indicating

that

the

initial

permit

approving

the

exemption

from the

2,000

ppm

SO

2

standard

was

issued

in

1975 and

subsequently

renewed

until

1993.

[Petitioner’s

Post-Hearing

Memorandum

at

3, 4,

6 16

19;

see also,

Petitioner

Exhibit

1 (Affidavit

of

Dan Punzak

stating

6

---

source

from this standard.

[Petitioner’s

Post-Hearing

Memorandum at 3-4,

10-18].

Interestingly, the

gist of Petitioner’s

argument

is not directed against

the Illinois

EPA.

but.

generally focuses its attention

on the

“personal viewpoint”

of Mr. Punzak.

[Id.].

Petitioner would

have the Board

believe

that

Mr. Punzak single-handedly

convinced

the

Agency to

disregard twenty

years of state

operating

permitting

history

to subjectively

interject

extra

features

into

35

Ill. Adm.

Code

2 14.382 and

based upon such inappropriate

rulemaking,

the Illinois EPA arbitrarily

subjected

the

MBT-C

process to the 2,000

ppm

SO

2

standard.

[Petitioner’s Post-Hearing

Memorandum

at 2-18].

Based

on the foregoing

and the

lack

of any regulatory

changes to 35 Ill.

Adm.

Code 214.301

and 214.382, or

the lack

of any

changes

to

the source’s factual

circumstances, Emerald

insists that the Illinois

EPA should

be

estopped

from subjecting

the

source to 35 Ill. Adm.

Code

214.301.

[Petitioner’s

Post-Hearing

Memorandum

at

15-18].

Finally,

in a related argument,

the Hearing

Officer purportedly

erred in

denying

.

Petitioner’s

Motion

to Supplement

the Record

with documents

contained

in state

operating

permit files from

1972 through

1993. [Petitioner’s

Post-Hearing

Memorandum

at 19-26J. In

Petitioner’s

last argument,

allegations of wrong-doing

do

not

end

with

the assigned permitting

engineer,

as state

officials

from the Illinois

s

Freedom

of Information Act

(“FOJA”)

section are accused,

in essence, of

deceit

by

withholding

critical information

from Petitioner.

[Petitioner’s

Post-Hearing

Memorandum

at,20]...Aside.from.wonderful

hyperbole,

.the.Petitioners.

arguments.

do..not

that “since at least

1975

through 1993,

the illinois

EPA

issued permits authorizing

the source

to

operate

the process

exemptfrom the requirement

in 35111.

Adm. Code

214.301 based

on the

applicability of35

Ill. Adm.

Code 214.382.

‘9].

For

purposes

of

simplicity

before the Board,

all

references

shall

be

to a twenty-year period

as

admitted

by

the

Illinois

EPA in Petitioner’s

Exhibit

1.

7

---

contain evidence

showing

that

if the

CAAPP permit

had been issued as requested

by

Emerald,

the permit

would

have,

complied

with

the Actand. the

Board

regulations.

A.

Applicable

Standard

of Review

and

Burden

of Proof

The

Illinois

EPA

is

required

to

issue CAAPP

permits

consistent

with

the Clean

Air Act,

the

Illinois

Environmental

Protection

Act and

all

implementing

regulations. 415

ILCS 5/39.5(3)(a).

While recognizing

the Illinois

EPA’s obligation

to

issue

CAAPP

permits

consistent

with these statutory

and

regulatory dictates, the

burden of proof

rests -

with the

Petitioner in

an

appeal

of

a CAAPP

permit before the

Board.

415

ILCS

5/40.2(a)(2006).

Accord.,

Color

Communications,

Inc., v. Illinois

Environmental

Protection

Agency, (July 18, 1996),

PCB 96-125

(the appropriate

standard of

review

in

CAAPP permit

appeals filed

pursuant to

Section

40.2

of

the Act is the same as

that

routinely

applied by the

Board in

Section

40 permit appeals).

In such

matters:

the permit applicant

bears the

burden

of

proving that the application

as

submitted

to the Agency

will not violate

the Act

or the Board regulations.

(Browning-Ferris

Industries

of

Illinois,

Inc. v.

Pollution Control

Boa 179

111. App. 3d 598,

534

N.E. 2d 616,

(2nd

Dist.

1989);

John

Sexton Contractors

Co.

v. Illinois,

(February

23, 1989),

PCB 88-139.)

Color Communications

at 4.

The Board

furtherexplained “[i]n

most permit appeals,

a

petitioner must

show that the condition

imposed

by

the

Agency

is arbitrary and not

necessary to accomplish

the purposes

of the Act.

Stated alternatively,

a petitioner

must

establish that

its permit, absent

the

condition,

will not result in

any future violation

of the

Act and

the

condition. is,. therefore,..

arbitraryandunnecessary.”

Land.& Lakes.

Company

v.

Illinois

EPA,

(November

8, 1990),

PCB 90-118, at

p.

4; see also,

Illinois EPA v.

- Pollution Control

Board, 455

N.E.2d

188, 194

(1983). (“If the Agency

has granted

the

permit with conditions

to which

the petitioner

objects,

the

petitioner

must prove

that the

8

---

conditions

are not

necessary to accomplish

the purposes

of

the

Act and therefore were

imposed

unreasonably.”).

“[T]he

primary

focus must

remain on the adequacy

of the

permit

application

and the information

submitted

by the

applicant to the

Agency.” John

Sexton

Contractors

Company v. Illinois

EPA,

PCB

88-139, slip

op. at 5 (February

23,

1989).

More recently,

the Board has reaffirmed

this

standard

in

a

National Pollutant

Discharge

Elimination

System (“NPDES”)

permit appeal

stating

that

the “Board’s

standard

of

review

is whether the record

establishes

that the

issuance

of the permit will

not violate

the Act

or Board rules.” Des

Flames

River

Watershed

Alliance, Livable

communities

Alliance,

Prairie Rivers Networlc

and

Sierra

Club

v. Illinois

EPA

and

Village

ofNewLenox,

PCB 04-88,

slip op. 2 (July 12,

2007). “Tn

the case of

a permit

issued

with conditions,

the

Board

must

determine

that

as a

matter of law

the application

as submitted

to the

TEPA

demonstrates that

no

violation

of the

Act or

Board rules will

nccur

if the requested

permit

is

issued.”

Id., slip op: 14-15

(April 19,

2007),

citing

Jersey

Sanitation

v.

IEPA, PCB 00-82 (June

21,

2002) aff’d IEPA

v. Jersey

Sanitation and

PCB,

336111.

App. 3d

58Z

784 N.E. 2d 867

(

4

th

Dist. 2003).

Nor may a

petitioner fulfill

this

requirement

by merely

challenging the propriety

of

the

Illinois EPA’ s

decision without

establishing the

merits of

its requested permit.

See,

./ohn Sexton

Contractors

Company

v. Illinois

EPA,

PCB 8

8-139,

slip

op.

at 6-7 (February

3, 1989).

In Sexton,the

applicant

provided limited

support

for

its

proposed

p1an

to

manage leachate

but

rather

restricted

its

challenge to the

special

conditions

included

in

the

permit.

The Board

explained:

To

prevail, the

applicant must prove

how the

application

as submitted

was

environmentally

sound.

Whether

the Board affirms

or rejects

challenged

9

---

conditions

is primarily

dependent on the facts that the applicant made available

to

the Agency when the

Agency made its permit decision. Reiteration

of

the

desired

conclusion

offers no factual support for an independent

evaluation. Therefore,

conclusory

arguments do

not

prove

that

the Agency erred on the threshold issue:

did

the

facts available

to the Agency support a conclusion that

no

violation

of the

Act and Board regulations

would

have occurred

had the

permit

issued as

requested?

A permit applicant cannot prevail

by

simply limiting its arguments

to

the impropriety

of the Agency-imposed conditions

without showing the propriety

of its own

requested conditions.

Cf

Browning-Ferris

Industries

ofIllinois, Inc.

v.

EPA,

No. 2-88-0548, slip

op.

at 6-7

&

13-14 (2

Dist. Feb. 3, 1989).

Id.

at 5. In affirming the

permit, the

Board concluded that the petitioner failed to

establish its proposed

plan

was adequate based on the information

before

the

Illinois EPA

at

the time of the permitting

decision. Id. at page 7. The record

was “largely

devoid”

of

information that would support the

adequacy of the plan proposed

by

the applicant.

Id. at

page 14.

Similarly, as will be

elaborated upon in

the

following discussion, the record is

“largely

devoid” of material supporting Petitioner’s claim that

35 Ill. Adm. Code 2 14.382

is applicable to the condensers

on the MBT-C process. In fact, the record

is

replete with

evidence

that if

the

CAAPP permit had been issued as requested

by Emerald, the permit

would haveviolated the Act andBoard regulations: Theinformation:thatthelllinois

EPA drew upon in concluding that facility’s condensers

in

the

MBT-C process were, in

fact,

subject to 35 Ill. Adm. Code 214.301 was based in large part

upon the information

submitted by Emerald in its CAAPP application. [See, Trade

Secret Version ofRecord

at

1-2115].

As

such,

the Illinois EPA

is confident

that

Emerald has

not met its

burden

in

this matter.

B. The Condensers in the MBT-C Process Are

Reflux

Condensers Utilized to

Recover

CS

2

for

Additional Use as a Raw Material

in the Process

i.

The

MBT—C Process

---

Admittedly,

the following discussion

of Petitioner’s

MBT-C

process is detailed

and lengthy in

nature. Nonetheless,

it is fairly.

proportional.

in. its explanation

given

the

complexity

of

the reaction, and particularly,

the

steps that

the

relevant reactants,

product

and byproducts (waste

material)

follow

during

the

ultimate

production

of MBT-C.

Moreover,

given the

potential

significance

of the issues

raised

by Petitioner in

its appeal,

a

thorough

discussion

of

the MBT-C

process

in light

of

the pertinent

regulations,

35 Ill.

Adm. Code

214.301 and

214.382,

and the supporting

testimony

provided

by

Respondent’s

expert witness

is

vital

to the Board’s

understanding

of

these issues. In

issuing

Petitioner’s CAAPP

permit

consistent

with

the Clean

Air Act,

the Act, all

applicable

regulations

and

chemical

engineering

principles,

the Agency

not only took

into

account

the

Administrative

Record, its

institutional

knowledge,

information

from

regulators

in

other states, USEPA guidance,

but

also relied

upon

the work of Illinois

EPA

themical

permitting

engineer, Mr.

Dan

Punzak.

4

Mr. Dan

Punzak

has a bachelors

of science degree,

maj or in

chemical engineering,

from

CarnegieMellon

University...[Transcriptat.91].

Heis a:licensed

professional

engineerand,

in.,the.

context of

applicable

regulations

and USEPA

guidance,

drafts

and

issues

CAAPP permits for

major

sources

in illinois;

[Transcript at 93-95].

Mr. Punzak

has

approximately

thirty years

of

experience

in

the

field

of air permitting, most

recently

serving

in the

CAAPP

permit

unit since its

inception

in

the

mid-i 990s.

[Transcript at 92-93].

Given

his

educational

background and

extensive

permitting

experience, Mr. Punzak

is routinely

assigned

complex CAAPP

applications

typified by

chemical

process plants

such

as refineries,

organic

chemical

plants,

printing

and

coating plants,

etc.

[Transcript at

93]. While Petitioner

would

have the

Board

believe that Mr.

Punzak

single-handedly

convinced

the

Agency to

disregard twenty

years

of

state

operating

permitting

history,

“[a]

decision

of the Agency

to

grant or

deny a permit

is

indeed

the decision

of

the

Agency”

and does.

not merely

reflect

the

thoughts..

of

isolated

Agency.personnel..

West,

Suburban

Recycling

& Energy

Center

L.P. v. Illinois

EPA

(October

17, 1996), PCB 95-119

and

95-125, at

p.

6.

Petitioner’s

witnesses

are

not trained chemical

engineers.

Rather,

Mr. Dave Giffin holds

an

undergraduate

degree

in zoology

and a

master’s

degree

in

engineering

administration;

Mr.

Michael

Corn

has

a

bachelor’s

degree in nuclear

engineering

and

a

master’s degree in

environmental

and water

resources engineering;

and

Mr. Bernard

Evans holds a bachelor’s

degree

in engineering

and

a master’s degree in

environmental

engineering.

[Transcript at

58-59 66, 76-

77, 80].

Both Mr.

Corn’s

and Mr.

Evans’

experience

with

35

Ill. Adm.

Code

214.301

and 35 Iii.

---

As explained

by

Mr. Punzak, the

MBT-C process is a petrochemical

process,

that

generally reacts molten sulfur

(S), aniline (AN), and carbon disulfide

(CS2)

under high

pressure (1000 psig) and high temperatures

(5 00°F) to produce MBT-C

that is

subsequently transferred

to

another reaction

to aid in the production of sodium mercapto

benzothiozole

(NaMBT).

5

[Trade

Secret Version ofRecord at 138-140, 173 & 195; see

also, Transcript at 24, 52, 56, 72,

96-99, 130, 165]. After this general

overview

of the

MBT-C process, Mr. Punzak’s

testimony

focused on a detailed, but crucial discussion

of

the MBT-C process,6classified as a process emission unit

by

the Petitioner. For the

Board’s

ease of

reference, the

MBT-C process is delineated in further detail on page 141

in the Trade Secret Version of the Administrative Record. [Transcript at 98].

The sulfur, aniline and carbon disulfide enter

the MBT-C reactor

as liquids and

together, under

elevated

temperature

and pressure react to form mercapto-benzothiozole

Adm. Code

214.382 is limited to their

respective

permitting work at the Henry plant.

[Transcript

at

77.

88].

The above discussion will explain the MBT-C process prior to the installation of the

hydrosulfide

recovery.system (“NaSH.systern”)inapproximately 2006.. [Transcrit:at.

19]..

Emerald

installed the NaSH system

to alter the route of CS

2 and hydrogen sulfide (H2

S) from the

blow down tank

to a process designed

to remove sulfur compounds from those fluegases.

[Transcript at 105].

The

NaSH system separates CS

2from the

H2

S

thereby allowing the recovery

of any

remaining CS

2 for additional

MBT-C

production in the reactors. [Transcript at

19-21].

Meanwhile, the H2

S is purified, reacted

in

the distillation

column and

combined with a caustic

solution to form sodium hydrosulfide that is shipped to various NaSH customers. [Id.]. Any

remaining

H2

S is sent to the scrubber prior to being discharged

to

the atmosphere.

[Id.; see also,

Petitioner’s

Post-Hearing Memorandum

at 6 fn. 4]. Given that the NaSH system was installed in

2006,

for

purposes of 35 Iii. Adm. Code 214.382, the NaSH system is a new process, not entitled

to

the

exemption for

an. existing

process

designed to remove sulfur compounds from the flue

gases of

petroleum and petrochemical

process.

[Transcript

at 60-62].

The MBT-C

reactor process may consist

of two concurrent reactions; the first occurring in EU

711-001 made up of MET-C Reactor No. 1, Condenser

CU 711-0001

and MBT-C Blow Down

Tank

No.1

and the second reaction taking

place in EU71 1-0002 embracing MBT-C Reactor No.2,

Condenser

CU71

1-0002 and

MET-C Blow Down Tank No.2.

[See,

Trade Secret Version of

Record at 141; see

also, Transcript

at 52, 96 &

98].

12

---

crude that is

subsequently transferred to the

MBT-C

blow

down

tank. [Transcrzt

at 52,

56 98-99].

In the process, the sulfur, aniline and

carbon disulfide also

produce two

vapors,

hydrogen

sulfide

and

carbon disulfide;

the

MBT-C reactor does not release

the

vapor,

sulfur dioxide

2

(SO)

in the process. [Transcript

at 52,

99]. The vapors, H

2

S and

CS2,

are

later sent to a high temperature condenser

that maintains an inlet

gas

temperature

of 500 °F.

[See, Trade Secret Version ofRecord

at 173

&

195; see also,

Transcript

at

99].

The

following discussion tracks

each

vapor,

S

2

H and

2

CS,through the

MBT-C

process

beginning with the appearance

of

2

CS

in the condensers.

The condensers

target

a

lower temperature to condense the

vapor,

CS

2,

into a liquid

and in so doing,

allow the

recovery of CS2

before sending it back to the

reactor for additional use

as a raw

material

in the

MBT-C

process. [Transcript at 52, 56, 57, 99-100,

111]. Not surprising

then,

the

outlet gas

temperature of the condensers

is typically at a lower temperature,

approximately

300 °F, than the condensers’ inlet gas

temperature of 500

°F. [See, Trade

Secret

Version

of

Record at 173

&

195; see

also, Transcript at

99-100].

Prior to

Petitioner’

s

installation

of the NaSH system,

Petitioner estimated

that

75%

to 83% of

the

CS2

was recovered

by the condensers. [See, Trade

Secret

Version

of

Record

at 173 & 195;

see also, Public Version

ofthe Record at 1471;

see also,

Transcript

at 100-101]. Elsewhere in the record, Petitioner

estimated that the

condensers

recovered

70% of

the.

CS

2.

[Trade Secret

Version ofthe Record.

at 2120;. see

also,

Transcript at

26]. Central to the Agency’s

ultimate conclusion, the

condensers do

not

remove CS2

from the MBT-C process, rather

2

CS

is recovered

for additional

use as

a raw

material

in

the process and the remainder of the

CS2

is vented

to a blow

down tank

13

---

ultimately

expelling

to

the

flare.

[See, Trade

Secret

Version of

the Record

at 2120

(“the

condenser

operates

to conserve

the

loss

of

carbon

disuUlde

during the

reaction.

‘);

see

also

Public

Version

ofRecord

at 1235-1237;

see

also, Transcrzt

at

18

(“the condenser

returns

the

carbon

disufide’9,

52,

56,

57,

101-1

02, 104,

111,

113-114,

128-129].

Completing

the

reaction

for the second

vapor

that is released

from

the

MBT-C

reactor

with CS

2

,

H

2

S

is

more

aptly

characterized

as a byproduct

or

waste-material

with

no

value

in the

production

of MBT-C.

[Transcript

at

99,

119].

Given that

H

2

S is not

necessary

to facilitate

MBT-C

production,

it is

not surprising

then

that

the

condensers

do

not

recover H

2

S

but merely

vent S

2

H

to the

blow

down tank.

[Transcript

at

2&

57 101-

102].

Due to

CS2

condensing

at a higher

temperature

than

H

2

S,

2

CS

is recycled

back

to

the

reaction

by

the ambient

temperature

condensers

while

H

2

S,

once vented

to the blow

down

tank,

escapes to

the flare.

[See, Trade

Secret Version

of

Record

at 2120

¶2b;

see

also, Public

Version

of

Record

at 1545;

see

also, Transcript

at 101-1 02,

119].

SO

2 is not

rc

1

eased

from the

condensers

during this

process.

[Transcript

at

102].

In

the flare,

approximately

99% of

the vapors,

CS2

and H2

S,

are

converted

into

SO

2

and

by

means

of the flare,

2

SO

is

subsequently

emitted

into the

atmosphere

[See

Trade

Secret Version

ofRecord

at 139

&

207; see

also, Transcript

at

52,

104].

While

the

flare would

appear

to be removing

sulfur

compounds

in the

form

of

CS2 and

H

2

S,

the

flare

merely

acts

to convert

sulfur

compounds

from

2

CS

and H2

S,

to another

form,

SO

2

.

ii.

The ApplicableRegulatory

Text,.

35 III

Adm. Code

214.382,

Is

Clear On

Its Face

While the

Illinois

Administrative

Code

specifies

that

the

2000

ppm SO

2

limit does

not apply

to

“existing

processes

designed

to

remove

sulfur compounds

from

the flue

gases

of petroleum

and

petrochemical

processes,”

Petitioners’

interpretation

of the scope

14

---

and meaning

of this regulatory language

is misplaced. 35 Ill. Adm.

Code

214.382(a(emphasis added).

In,lieii

of this. unambiguously

expressed ground,. Petitioner.

repeatedly

overlooks

the requirement

in 35 Ill. Adm. Code 2 14.382 that

the “existing

process [be] designed to remove sulfur compounds” preferring

instead to focus

on

the

condensers’ purported removal (i.e., recovery) of sulfur

compounds regardless

of

whether

the condensers were, in fact, designed for such purpose.

[Petitioner’s Post-Hearing

Memorandum at

9,

11]. Consistent with such argument,

Petitioner would

have the Board

consider

any

process that recycled any sulfur compound,

regardless

of percent

removal,

as a

process designed to remove sulfur compounds.

[Petitioner Post-Hearing

Memorandum at 10-11].

When

analyzing the

applicability

of an exemption

to a statute, the analysis is

generally

“two-tiered.” Nokomis Quarmy Co. v. Department

of

Revenue,

692

N.E. 2d 855,

858, 295

Ill. App.

3d 264, 268. (Ill. App. 5 Dist. 1998).

First, the statute

must be

construed; second, the

applicability of the statutory

exemption

must be determined. Id.

The

objective in construing

the.

.. statute is to

determine and give

effect to the

legislature’s

intent.:

Thómas.MMadden&Cá., 272I1L

App. 3dat

.21:5,

209 111.

Dec. at

292, 651 N.E 2d at

220.

The court should

consider not only

the statute’s

language but also

its

purposes. Canteen Corp.

v. Department

ofRevenue, 123 Ill.

2d 95,

104, 121 Ill. Dec.

267, 271, 525

N.E.2d 73,

77 (1988).

Id. at page

859, 269; see also, ML G.

Investments,

Inc. v. Environmental

Protection

Agency, 122 Ill. 2d 392,

523 N.E. 2d 1, 119 Ill. Dec.

533 (1988). Given

that the

applicableregulatory

texts, i.e.,

35

Ill. Adm. Code 214.301.

and 214.382,arenot

ambiguous,

effect

must be

given to these expressed

terms. Envirite

Corporation v.

Illinois EPA, 158 Ill.

2d 210, 632 N.E. 2d 1035

(1994); [see also,

Petitioner’s Post

Hearing

Memorandum at 2 (recognizing that the

“regulation at issue

is plainly-worded

15

---

and

unambiguous.”)].

“The

law

is well

settled

that

the plain

language

of a statute

should

be

given

the

common

meanmg

of the

language.”

Saline

County

Landfihl

Inc.

v

Illinois

EPA,

County

ofSaline,

PCB

04-117,

(May

6,

2004),

slip

op. at

14,

citing

Pioneer

Processing,

Inc. v.

Illinois

EPA, 111111.

App.

3d

414,

444

N.E.

2d

211

(

4

th

Dist.

1952).

While

35

Iii. Adm.

Code

214.301

generally

subjects

a

source

such

as

Petitioner’s

to

a

2000

ppm

SO

2

limitation,

an

exemption

to

the

SO

2

standard

exists

in

35 Ill.

Adm.

Code 214.382

for “existing

processes

designed

to

remove

sulfur

compounds

from

the

flue

gases

of petroleum

and

petrochemical

processes.”

While

Petitioner

initially

suggests

that

the

exemption

requires

two elements

be

met,

(ie.,

the facility

must

possess

a

‘process’

that

is ‘designed

to

remove

sulfur

compounds’),

Petitioner

later

cites

testimony

of its witness,

Mr.

Corn,

stating

that

the

source

need only

meet

two

requirements

in order

to

qualify

for

the exemption

(ie.,

must be

a petrochemical

process

and it

must

remove

sulfur).

[Petitioner’s

Post-Hearing

Memorandum

at

2 and

9, citing

Testimony

ofM

Thrn.

72:7-11].

A closer

review

c.f the

applicable

la!guage

indicates

that

neither

interpretation

by

Petitioner

concerning

the

scope

and

meaning

of

the

regulatory

language

in

35 Ill.

Adm.

Code 214.3

82

is accurate.

For the

exception

to. apply,

the

source

must

arguably

meet four

basic

elements:

1)

be an

existing

process;

2)

be designed

to remove

sulfur

compounds;

3

&

4) those

sulfur

compounds

must

be derived

from flue

gases

originating

from

a petroleum

and petrochemical

process.

While,

the

Illinois

EPA

agrees

that the

MBT-C

process

is

an existingprocess

and

that

sulfur

compounds

stem

from the

flue

gases

of a

petroleum

and

petrochemical

process,

Petitioner

has not

only

failed

to

demonstrate

that

the condensers

on the

MBT-C

process

were

designed

to remove

sulfur

16

---

compounds

but has generally

glossed

over

the

requirement

all-together.

[Petitioner

Post-Hearing

Memorandum

at 9, 1]].

Given the

use of the phrase

“designed

to remove

sulfur compounds”

in 35 Ill.

Adm. Code

214.382,

the Illinois EPA

sought to give

effect

to

this phrase in

combination

with

the remaining

elements of the

exemption

as

set forth above.

Accord.,

Central

Illinois Public

Service

Company

v. Pollution

Control

Board, 165

Ill. App. 3d 354, 362,

518 N.

E.

2d

1354,

1359

(

4

th

Dist. 1988),

citing

Niven

v. Siqueira

(1985), 109

Ill. .2d 357,

94 Ill.

Dec. 60,

487

N.E. 2d

937 (“Rule

of construction

that

all words

of an enactment

should,

ifpossible, be given

some effect”).

Unfortunately,

the term

“design” has

not

been

defined by the applicable

regulations

and

thus,

some

degree

of subjectivity

is

necessarily

associated with

this term. Given

the lack

of

a

regulatory

definition,

a logical

place to begin is with

the plain and

ordinary

meaning

for

the

term “design,”

i.e., “devise

for a

specific function

or end.”

Webster

‘.s’ Ninth

New

Collegiate

Dictionary

343 (1st

ed.

1989).

in

addition, to eliminate

som of the

inherent

sübj ectivity assOciated

with

an

undefined

term,

the Illinois

EPA not only

considered

the term

“design” in the context

of

35

Ill. Adm. Code214.382

butdeliberatedupon

“design”

in

the context of the inner-

workings

of

the MBT-C process

as explained

above.

First,

the

evidence

indicates that

the specific

function

of the condensers is

not to

remove

sulfur

compounds

from the

flue

gases

of

petrochemical

processes

but rather to

recover

CS2

for.

additionaLusein

the.MBT-C

process.

[See, Trade Secret

Versionof.

Record

at

2120;

see also, Public

Version

ofRecord

at 1235-]237,

see also, Transcrzpt

at

18, 56, 57,

102, 104, 1]],

113-114, 128-129].

Meanwhile,

any non-recovered

CS2

and

the

waste

material, H2

S, is

merely vented

through

the

condensers

to the

blow down

tank

17

---

and

ultimately released

to the atmosphere

as

2

SO

by

means

of the flare.

[See, Trade

Secret Version

ofRecord

at

2120;

see also, Public

Version of

Record at 1235-123

7; see

also,

Transcript at

52, 57 102].

Nor can it be said

that the

flare

removes sulfur

compounds

given that

sulfur compounds

are not removed

by the flare but are

merely

converted

from

the vapors,

2

CS

and

H2

S, to

the

vapor,

.

2

SO

[See, Transcript

at 104].

One would

naturally

contemplate that

a process designed

to remove sulfur

• compounds

would minimize

emissions

to the greatest extent

possible

and that

emissions

of sulfur

compounds

from

such process

would not be significant.

However, the evidence

before

the Illinois

EPA and

now the Board

clearly

evinces

a

contrary conclusion

(i.e., that

the condensers

were

never

designed to remove

sulfur compounds).

Prior to the

installation

of the NaSH unit,

potential

flaring emissions of

SO

2from the

MBT-C process

while

the condensers were

operating were

significant,

4922

tons

per year

(tpy), while

typical flaring emissions

of

SO

2

were

also considerable,

3691 tpy

and 1123.79 lbs/hour.

[See, Trade Secret

Version

of

Record at

203;

Pubflc

Version

ofthe

Record at

1543;

see

also,

Transcript at

105].

If truth

be

told,

the

Petitioner, too, felt

there were

“a

lot

of

emissions

of sulfur dioxide” from

the

MBT-C

process priorto the

installation

of the

NaSH unit.

[Transcript

at

44].

Based

on

such

significant

emissions,

it is not surprising that

the Petitioner

determined

a mere 23% of total

sufur compounds

were recovered

from the

condensers,

an

appreciable

difference.

from,.the

estimated..70-83.%of

carbon

disuUlde

recovered.from

the

same condensers.

[See, Trade

Secret Version ofRecord

at

173 &

195, 211 7 2120;

see also,

Transcript

at 103-104, 113].

This difference

is generally attributed

to the

failure of the

condensers

to recover

those sulfur

compounds existing

as

H

2

S,

and

more

18

---

particularly, due

to the relative amount

of 2

H

S

vapors

converted into

SO

2

emissions

as

compared to the amount of

CS2

vapors

converted into

SO

2

emissions

(i.e., H2

S emissions

accounted

for approximately two-thirds

of the

2

SO

being emitted

from

the flare

while

CS2

emissions made

up only one-third of

SO

2

emissions

from

the flare). [See, Trade

Secret Version

of

Record

at 2120, ¶2 — c; see also, Public

Version ofRecord at 1545;

see

also, Transcript at

103-104].

Based on the applicable language

of 35

Ill.

Adm. Code 214.382 and

the

mechanics of the MBT-C process, including

each condenser’s total sulfur removal

efficiency

of a mere 23%, the Illinois EPA concluded

that the two condensers,

CU71 1-

0001 and CU711-0002, in the MBT-C reactor

process were aptly characterized

as reflux

or process condensers, a device designed to recover raw

materials — here

CS2

— and

return

them back to the production process

rather

than a control device,

one that is designed

to

eliminate, prevent or remove air contaminants.

7

[See, Public Version

of

Record

at 1144-

1234, Unit Specfic Conditions 40, 7.1.2, 7.1.3,

&

7.1.13,1235-1237,

1459-1461,1469-

1471, 1473; see also, Trade Secret Version ofRecord at 2120;

see also, Transcript

at

5&

57, 60, 102, 104, 106 111, 113-116,

128-1291.

Petitioner

seizes upon these

distinctions

familiar to the Illinois EPA between a reflux or process condenser

verses a control

device

that

necessarily built-in a consideration of the condensers’

sulfur removal efficiency

as

if

this recognition

was

tantamount to an unauthorized rulemaking

by the Agency.

Mr. Punzak

explained

the

difference

between a reflux condenser and a control

device as

follows:

Based on various types of guidance that the

U.S.

EPA

has provided to us in

regard

to

organic or

petrochemical

processes, that reflux condensers

are referred to as a

process

condenser. They are designed just to operate

the

process,

often to save raw

materials

and

not for the purposes

of

reducing emissions. .

[Transcript

at 106-107].

19

---

[Petitioner’s

Post-Hearing

Briefat

3-4,

9-14].

While

the regulation admittedly

does not

delineate

the “level

of sulfur reduction

that

must be achieved. .

. does not specify

how

the

process

must be designed,

how they

relate

to

the

rest

of

the

system, or

how they actually

function” and

does not employ

the terms

“pollution control device,”

“reflux

condenser”

or “process

condenser,”

the Illinois EPA’s

understanding

of the system

merely assisted

the Agency in

interpreting the

phrase

“designed

to remove sulfur

compounds”

in the

context

of

the applicable exemption.

8

[Petitioner’s

Post-Hearing

Briefat 2, 9,

12-14].

Contrary

to Petitioner’s

insinuations,

this does not imply

that the Illinois

EPA was

intent

on

reading additional elements

into the

exception but to

merely conduct

a “simple,

straightforward,

fact-based determination

as

to whether the processes.

.

. are so

designed.”

[Id.]. By

so doing, the Illinois EPA

reflected

upon the information

contained

within

the Administrative

Record,

particularly that the condensers

recovered

one sulfur

compound,

CS

2,

for additional use

in the production of

MBT-C, the condensers

neglected

to

remove

any

of the

second

sulfur

compound, H

and thus, only

removed a

minimal

amount of total

sulfur

compounds

from

the system.

The

operation

of the condensers

in

conjunction

with their percent

removal efficiency

supported

the Agency’s conclusion

that

8

Tn addition,

Petitioner suggests

that the Agency sought

to

write

into the regulation

Mr.

Punzak’

s belief “that if the

sulfur

was

returned

to the system during

the process

at any point,

rather

than

somehow

completely removed

from

the production

process, this

also disqualified the

process

from the

SO2exception, no matter

how much sulfur was

removed from

the flue gas.”

[Petitioner’s

Post-Hearing Briefat

11,

citing Testimony

of

D.

Punzak,

160:3-15

(emphasis

added)].

As an initial point of

clarification, Mr. Punzak’

s testimony

provides

at

best

tenuous

support for

such an argument.

A closer reading

of the transcript indicated

Mr. Punzak’

s

statement

that even

if all the

CS

2

returned to

the

system

this

would

not qualify

the source for the

SO

2

exemption

given

that the condensers

failed to control any

sulfur

existing

as H

2

S. [Transcrzt

at 160]. Regardless

of the

lack of support

for certain portions

of Petitioner’s

argument,

the

Illinois EPA

considered whether

the sulfur compounds

were

removed

from the system.

Such

review

was

consistent with

35 Ill. Adm.

Code 2 14.382 and

its application

to “existing

process

designed

to remove sulfur compounds

from

the flue

gases.”

Nothing

in the

regulation

suggests

that the exemption

applies

to a process designed

to merely recover

sulfur compounds

from

the

flue gases

for

further

use

in the production

process.

20

---

the

condensers were most

appropriately characterized

as reflux or process rather

than

control devices.

When the meaning

behind these terms

is read

in conjunction with

35

Ill.

Adm.

Code 214.382, it merely reinforces the appropriate

reading to be

ascribed to the text

of

the

exception. Again, the relevant exception

provides that the 2000

ppm

SO

2

limit

does

not apply to “existing processes designed to remove

sulfur compounds

from the flue

gases of petroleum

and petrochemical processes.”

35 Ill.

Adm. Code 214.382 (emphasis

added). Reflux or

process condensers do not

meet this

standard as they are merely

devices designed to

recover raw materials.

Meanwhile,

so

long

as it meets the other

elements of 35 Ill. Adm.

Code 214.382, an

existing control

device

qualifies

for the

exception;

consistent with the requirements of

35 Iii. Adm.

Code 214.382, a control

device is designed to

eliminate, prevent

or

remove

air

contaminants, here

SO

2.

Accord.,

Dean Foods Co. v.

Illinois Pollution Control Board,

143 Ill.

App. 3d 322, 334,

97

Ill.

Dec:471;492 N.E. 2d 1344 (1986)

(coi.xrt

to give effect

to language

in regulation when

clear on its face).

In fact, Petitioner’s

CAAPP application

characterizes

these. two condensers in the

same

manner as the

Agency, stating in response

to the following

question: “Is this a

reflux condenser, i.e.,

does condensed material return

directly

to the process from which

it was

generated? Yes. Condensed

material

returns to reactor

vessel.”

{See,

Trade

Secret

Version. of

Record at 173. &

195; see also, Transcrzpt

at

60, 102-1.03, 112]. Petitioner

also admitted that 2

CS

is generally recycled back to

the reactor

while 2

H

S is allowed to

pass through

to the flare

stack,

stating:

Note:

.. . Due to

normal venting

of the condenser,

some

CS2is lost during

reaction.

All

of

the excess

CS

2

is emitted to

theflare along

with the H

2

Seither

21

---

during

reaction

or

blowdown.

There

is no

2

CS

in

the reactor

at the

end

of

the

process.

Paragraph

2 — b:

.

. Approximately

65#/hr

of 2

CS

is

condensed

and

recycled

back

to the

reactor

resulting

in a recovery

rate

of 70%.

On

the

basis

of total

sulfur

removal

only,

the

total

sulfur

efficiency

of the

condensers

is 23%.

***

Paragraph

2

— d: The

condenser

operates

to conserve

the

loss of

carbon

disufide

during

the

reaction...

[See,

Trade

Secret

Version

ofRecord

at

2120 (emphasis

added);

see

also, Transcript

at

56,

113-114].

As

evidenced

by these

statements,

Petitioner

has

repeatedly

expressed

its

belief

that

these

condensers

recover

a

raw

material,

CS

2

,

for reuse

in

the

reactor

to

produce

a

final

or

intermediate

product

and

thus,

meet

the

definition

of

a reflux

or process

condenser.

[See,

Transcript

at

18 (“The

condenser

returns

the

carbon

disuUIde’);

57

(“its purpose

is

to

recover

CS

2

and also

to separate

the

1-125

from

the

CS

2

’)].

Consistent

with

this information

subiitted

by

the Petitioncr

in its application,

the

Illinois

EPA.

concluded

that

the condensers

serve

as a material

recovery

device

and

are not

designed

to

remove

sulfur

compounds

from

the.

flue

gas of

a petrochemical

process.

[See,

Public

Version

of

Record

at

Public

Version

ofRecord

at

1144-1234,

Unit

Specflc

Conditions

4.0,

7.1.2,

7.1.3, &

7.1.13,

1235-1237,

1461,

1545;

see

also,

Transcript

at

56, 57,

104,

113-114,

128-129].

Despite

these

statements

made by

Petitioner

during

the permitting

of the

source,.

Petitioner

relies

upon

Mr. Giffin’

s direct

testimony

that

the

condensers

were

originally

designed

to

recover

CS2 from

the vapors.

[Petitioner’s

Post-Hearing

Memorandum

at

5,

22

---

citing Testimony of

D.

G/fin, 15.13-16:6;

24.4-8].

In fact, a review of the

previously-

cited portions of Mr. Giffin’s testimony

reveal

that

he did not state (or

otherwise

imply)

that “[s]ince 1972, the facility has operated

processes

designed

to remove

sulfur

compounds

from

the

flue gases of petrochemical

processes as

part of its manufacture

of a

substance known as crude

sodium MBT.”

[Petitioner’s Post-Hearing

Memorandum

at

5].

Rather, under cross examination,

Mr. Giffin acknowledged

that he could

only

presume

the

source’s

rationale for installing the condensers

in 1957

or 1958, stating as

follows:

Q:

Is it

fair

to say that the condenser

was designed

to recover

CS2

for

purposes of reducing the

amount of virgin

CS2

used in the

process?

A:

I wasn’t back

in

that time

when

it was

installed. So I don’t

know exactly

the reason why the condenser

was installed.

I

presume

it was to

reduce

raw

material usage.

Q:

Have you ever- - -

A:

And also to control any

emissions.

[Transcript at 5 7-58 (emphasis

added)]. When

questioned further

on whether he

had

. :...•.

.

..

.

.::

..

...•

reviewed any design specifications for

the

condensers, Mr.

Giffin admitted that

he had

not nor was heawareof’the”existenceofany

such’desiguspecifications

[Transcript

at

58;

see also, Transcript at 79

&

165

(Mr. Corn admitted that

he did not review

any

specific

design specfications for the

MBT-Cprocess)].

Indeed, Petitioner does not

present a rational interpretation

of 35 Ill.

Adm.

Code

214.382 but, rather, simply asserts that the

exemption does not require

a specific

type

of

Nor does Mr.

Giffin’s testimony

support Petitioner’s

statement

that “since

prior to 1960

(which

also

predated the fllinois air emission

regulations),

the Facility has operated

processes

designed

to

remove sulfur compounds from the flue gases

of petrochemical

processes.” [Petitioner

‘.s Post-

Hearing

Briefat

8,

citing Testimony

ofD. Gzffin,

54:5-10]. Rather such testimony

merely

states

that the

condensers were

part of the original

MBT-C

process probably dating

back to 1958

or

1959.

[Transcrzpt at 54].

23

---

control equipment;

the

process

need

only

have

“some sort of a sulfur-reducing

device”

that

removes

sulfur compounds

from

the

flue gases to qualify

for

the exemption.’°

[Transcript

at

25-26;

see

also

Transcript

at

72-74

& 86-87 (to meet

the exemption

it

merely had

to remove

sulfur with

no

requirement

on the

percent removal);

see

also,

Petitioner ‘.s’ Post-Hearing

Memorandum

at 8-15].

Admittedly, 35 Ill.

Adm.

Code

214.3

82 does

not require

a specific category

of control, but contrary

to Petitioner’s

assertions, there

is

a connection

between

a process designed

to remove sulfur

compounds

and the percent

removal

achieved

by

a

process purportedly designed

to remove

such

compounds.

It can hardly

be stated that

a process was designed

to remove sulfur

compounds when

it admittedly

recovers

no more than 20 to

25 percent

of

sulfur

compounds.

Following Petitioner’s

argument

to its logical

end,

Petitioner

would have

the

Board

conclude that a

sulfur-reducing

device recovering

as little as 1% of

sulfur

compounds

should

be entitled to

an exemption from

the 2000

ppm

standard. Accepting

Petitioner’s reasoning

would

effectively

negate

the 2000 ppm standard

altogether

given

any

existing device

recovering

any

minute

amount of sulfur compounds

would

eliminate

such

requirement.

In light of

the

foregoing,

it

is

difficult

to envision how Petitioner

could

possibly

have met its burden,

particularly

given

that

in the

environmental

context, the

party

asserting

“the benefit

of exemption

from a

statute [generally] bears

the

burden

of

proof.”

10

Petitioner’s expert went

onto

assert

that “[m]ost environmental

regulations

do not specify

the

type of

control

equipment

you put

on to reduce emissions,

just that you reduce

emissions.”

[Petitioner’s Post-Hearing

Memorandum

at 14, citing

Testimony

ofM Corn, 73:5-74:15].

This

argument is not only

disingenuous

but

of little consequence,

where the

language

at issue

does

not

merely

require

the

installation

of additional emission

control technology

but so long as

the

process qualified

as a preexisting

process designed

to remove

sulfur compounds, a particular

source would be

entitled

to a

complete

exemption

from the applicable

requirements.

24

---

Sierra

Club

v. Morgan,

et al:,

2007

U.S. Dist.

LEXIS

82760

(W.D.

Wis.

2007),

citing

United

States

v.

Ohio

Edison

Co.,

276 F.

Supp.

2d

829,

856

(S.D.

Ohio

2003);

United

States

v.

E.

Ky.

Power

Coop.,

Inc.,

498 F.

Supp.

2d

976,

995 (E.D.

KY, 2007)

(party

claiming

routine

maintenance

and

repair

exemption

must

establish

that

the

work

performed

meets

this

exemption).

Outside

of

the

environmental

context, countless

Illinois

cases

reiterate

this

very

point.

In

Guider

v.

Bauer,

the

Northern

District

of

Iffinois

stated

that

“General

principles

of

statutory

construction

further

provide

that

those

who

claim

the

benefit

of

an exception

to

a

statutory

prohibition

have

the

burden

of

proving

that

their

claim

comes

within

the

exception.”

Guider

v

Bauer

865

F. Supp.

492,

495

N.D.

Ill. 1994)

citingMills

Music,

Inc.

v. Snyder,

469

U.S.

153,

188,11.

20,

105

S.Ct.

638,

65711.20,

83

L.Ed.

2d

556

(1985);

United

States

v. First

City

National

Bank,

386

U.S.

361,

366,

87

S.Ct.

1088,

1092,

18 L.Ed.

2d

151

(1967).

Consistent

therewith,

exceptions

to a “statute

are

to

be strictly

construed.”

Thoman

v. Village

ofNorthbroolç

499

N.E.

2d

507,

509,

148 Ill.

App.3d

356,

358 (Ill.

App.

1

Dist;

1986),

appeal

denied

505

N.E.

2d 363,

113

Ill.

2d

585;

see also,

People

v. Folkers,

466

N.E.

2d

311,

312,

112

Ill.

App.

3d

1007,

1009

(Ill.

App;

2 Dist.

1983);

People

v.

Chas,

Levy

Circulating

Co.,

161

N.E.

2d 112,

114,

17

Ill.

2d 168,

171

(Ill.

1959)

(“Exceptions

or

provisos

found

in a

statute

are

to be

strictly

construed.”).

Based

on

the

arguments

and

evidence

outlined

above,

Petitioner

has

failed

to

demonstrate

that

the

requested

permit

would

not

have

resulted

in

a

violation

of

the

Act

or

implementing

regulations.

Joliet

Sand

&

Gravel.

Company

v.

Illinois

EPA

&

Illinois

Pollution

Control

Board

163

Ill.

App.

3d 830,

516

N.E.

2d

955

(

3

rd

Dist.

1987).

C.

Additional

Support

for

the

Illinois

EPA’s

Conclusion

that

the Condensers

are

Subject

to

35 Ill.

Adm.

Code

214.301

25

---

i.

The Illinois

EPA

institutional

knowledge

While the

above discussion evinces

that Petitioner’s

CAAPP

permit

was

issued

in

accordance

with the

plain

language of the

Act and relevant

regulations,

due

to a degree

of

subjectivity

often

associated with an

undefined

regulatory

term,

i.e.,

“design”,

the Illinois

EPA

also drew

upon a number

of additional

sources

to

eliminate the inherent

subjectivity

associated

with this term.

These

sources

included

the

Illinois EPA’s

institutional

knowledge,

information

from regulators

in

other states

and USEPA

guidance to confirm

its

conclusion

that the condensers

at the

MBT-C

process

did not meet

the criteria required

to

qualify

for the exemption

in

35 Ill. Adm.

Code 2 14.382.

Accord.,

West Suburban

Recycling

and Energy

Center, L.P. v. Illinois

EPA, (October

17,

1996), PCB 95-119

and

95-125

at

p.

6 (“the

permit reviewer

will not conduct

the

review

with

blinders”

and as

such, the Agency

is not limited

to information

contained

within the

permit application,

but may also

gather information

from either

within or outside

the Agency”).

Based

upon the

Illinois EPA’s institutional

knowledge,

the

Agency

understoOd

the originairulemaking,

R71-23, to35 ill.

Adm. Code 214.382,

sought

to encompass

petroleum

refineries.

Notably:

Because

sulfur

recovery units in oil

refineries

serve

as pollution

control

equipment greatly

reducing

emissions

of noxious sulfur

compounds,

existing

sulfur recovery

systems are exempted

from meeting

the 2,000

ppm limit provided

they are equipped

with tall stacks.

Illinois Pollution, Control

Board,

R71-23,page. 37 (April

13,1972);

[Transcrztat

109-

110]. Similar

to the Illinois EPA’s

interpretation

of 35 Ill. Adm.

Code 214.382

that

an

existing control

device qualifies

for the exception,

the

regulatory

history

indicated that

it

intended to

cover sulfur recovery

devices that

served as

pollution

control

equipment.

The

26

---

exception was

also

generally

limited

to

those

processes

“greatly

reducing

emissions”

of

sulfur

compounds

consistent

with

USEPA

requirements

existing

at

the

time.

Part

51,

Appendix

B,

33

Sulfur

Recovery

Plants,

36 Fed.

Reg.

228,

p12407,

November

27,

1971

(“Existing (Sulfur

Recovery)

plants

typically

recover

90 to

97

percent

of the

sulfur.”).

This,

too,

is in

harmony

with

the

Illinois

EPA’

s

conclusion

that

there

is

a

connection

between

a

process

designed

to

remove

sulfur

compounds

and

the percent

removal

achieved

by

a

process

designed

to

remove

such

compounds.

In

light

of this

understanding,

the

Illinois

EPA

reflected

upon

the

operation

of

petroleum refineries

that

as

a

general

rule

produce

the contaminant,

SO

2

,

through

the

burning

of

H

2

S-contaminated

fuel.

[Transcript

at

107-109].

In order

to

minimize

emissions

of

SO

2

,

petroleum

refineries

are

typically

equipped

with

sulfur

recovery

units

that

scrub

contaminated

fuel

with

an

amine

scrubbant

prior

to

fuel combustion.

[Id.].

The

H2

S

is absorbed

by

the

amine

and

subsequently,

combusted

in

a

multi-step

process

involving various

catalysts

to convert

H

2

S

into

elemental

sulfur.

[Id.].

In such

units,

the

elemental

sulfur

does

not

return

to

the process

but

is completely

removed

from

the

process,

generally

recovering

anywhere

from

90%

of the

2

H

S

in

older

units

to

98%

of

the

H2

S

in

newer

units.

[Transcript

at

108-109].

A

comparison

between

sulfur

recovery

units

at

petroleum

refineries

and

the

condensers

on

the

MBT-C

reactor

process

readily

revealed

the following

differences

between

the

former.

and

the

latter:

a multi-step

process.

versus,

a

single-step

process.

(condensation);

distinct

and

separate

from

the

manufacturing

process

as

opposed

to an

integral

part

of

the

manufacturing

process;

the

removal

of elemental

sulfur

compared

to

CS2

recovery for further

use as

a reactant

in

the

production

process;

and

finally,

the

27

---

percent conversion and removal

of elemental sulfur at upwards

of 98%

versus the

recycling of approximately 20% to

25% of sulfur compounds entering

the

system.

[Transcrzt at 106-109]. In

conjunction with the Agency’s knowledge of the

underpinnings to 35 Ill. Adm. Code 2 14.382,

its understanding of the

differences

between

sulfur recovery units at petroleum refineries

and the condensers on the MBT-C reactor

process reaffirmed the

Illinois

EPA’s

conclusion

that the

condensers at the MBT-C

process did not qualify for the exemption

in 35 Ill. Adm. Code

214.382.

[Id.].

ii.

Information

from

regulators in other states

Additional information that the Illinois

EPA

drew

upon in

confirming its

conclusion was plainly documented in

material related to controls on

similar MBT-C

processes in

West Virginia, Louisiana

and South Carolina and Petitioner has articulated

no

legitimate reason,

then

or now, for such

information

to

be

treated as suspect.” [Public

Version of

Record at 1421-1452, 1510—1539,

1549, 1552-1553; Transcrzpt at 122-126,

158]. in West

Virginia,

the state regulated

i

procoss similar

to

the one being contested

in

this

proceeding; however,

a sulfur recovery

unit (similar to those at

petroleum

refineries)

acted to

control emissions on the

MBT-C process in West Virginia. [Public

Version

of

Record at 1549, 1552-1553; see also, Transcript

at 123]. It is not

surprising then that

the

sulfur

recovery device at the MBT-C

process in West Virginia

realized emission

‘

Petitioner only

countered the

Illinois EPA’s consideration of such information in its Post-

Hearing

Memorandum by suggesting

that the assigned permitting engineer did not conduct his

research with an

“open

mind” but sought data to

“confirm

his opinion that the condensers used

in

the Petitioner’s

process did not remove

enough sulfur for his satisfaction.” [Petitioner’s Post-

Hearing Memorandum

at

10,

citing

R-001553]. Admittedly, the basis for the Illinois EPA’s

electronic mail

message (“email”)

to West

Virginia

requesting such information could

have

been

more articulate,

however,

this is often one of the unfortunate consequences of email use.

Nonetheless, it cannot be disputed that the information gathered from regulators in West Virginia,

Louisiana and

South

Carolina clearly

supported the ultimate conclusion

reached

by

the Agency.

28

---

reductions

analogous

to

those

achieved

by

sulfur

recovery

devices

at

petroleum

refineries.’

2

[Public

Version

of

Record

at

1552-1553;

see

also,

Transcript

at

123].

In

addition

to and

similar

to West

Virginia,

the Illinois

EPA

noted

that

emissions

from

a

comparable

MBT-C

process

in Louisiana

vented

to

a

sulfur

recovery

unit.

[Public

Version

of

Record

at

1510-1539,

1549;

see also,

Transcript

at

124]. Further

support

for

the

Illinois

EPA’s

conclusion

came

from South

Carolina

where

the state

regulated

a

MBT-C

process

similar

to

Emerald

except

that the

former

controlled

sulfur

emissions

by.

means

of an off-gas

scrubber.’

3

[Public

Version

of

Record

at

1426,

1549;

see also,

Transcript

at

124-126].

When

these

respective

technology

differentials

at

the MBT-C

processes

in West

Virginia,

Louisiana

and

South

Carolina

verses

Emerald

(i.e., the

use

of

a sulfur

recovery

unit

or

an

off-gas

scrubber

versus

the

mere

operation

of

a condenser)

and

the respective

disparity

in

achieved

emission

reductions

(i.e.,

upwards

of

98%

sulfur

removal

compared

to

the recycling

of

20-25%

of sulfur

compounds)

were

taken

into

considerationby

the

Agency,

they

reinforced

the

Illinois

EPA’s

conclusion

that

the

condensers

at

Emerald’s

MBT-C

process

were not

designed

to

remove

sulfur

compounds

from

the

flue

gases

of petroleum

and petrochemical

processes.

[Transcript

at 126,

158].’

12

Based

on

information

supplied

by

West Virginia,

potential

emissions

from

the

MBT-C

process

in

its state

were

at 3825

tpy of

H

2

S

while

actual

emissions

were

significantly

lower,

0.8959

tons

of

H

2

S

(126

tons of

SO

2

)

in 2000.

[Public

Version

ofRecord

at

1552; see

also,

Transcript

at

123].

According

to

calculations performed

by

the

Illinois

EPA,

the

sulfur recovery

device

in

West Virginia

had a removal

efficiency

of

97

to

98.5%,

significantly

greater

than

the 23%

removal

efficiency

realized

by

Emerald’s

condensers.

[Public

Version

of

Record

at

1553; see

also,

Transcript

at

123].

An

off-gas

scrubber

typically

employs

a

chemical

to

absorb

H

2

S

emissions.

[Transcrzt

at

126].

An example

of

an

off-gas

scrubber

would

be the

NaSH

system

recently

installed

by

Emerald

to

control

sulfur emissions

from

the

MBT-C

process.

[Id.].

14

Such

findings

were

conveyed

to

Petitioner

in

July

2001.

[See,

Public

Version

ofRecord

at

1561;

see

also,

Transcrzt

at 41,

75].

In

response

to

this

meeting,

Petitioner

acknowledged

that

this information

gave

it a

better

“understanding

of

what other

companies

were

doing”

and,

due

to

29

---

Petitioner,

on

the

other

hand,

neglects

to counter

that

similar

MBT-C

processes

in

other

states

employed

a

sulfur

recovery

unit

or

an

off-gas

scrubber

designed

to

physically

remove

sulfur

compounds

including

H

2

S

from

the

flue gases

of

the

MBT-C

process

rather

than

a

condenser that

merely

recycled

a

small

percentage

of

sulfur

compounds,

only

CS

2

,

back

into

the

MBT-C

production process.

While

Petitioner

responded

at

hearing

that

the Illinois

EPA

neglected

to review

the underlying

regulations,

particularly

whether

or

not

an exemption

similar

to 35

Iii. Adm.

Code

214.3

82

existed

in

these

states

that

may

have

triggered

the

need

to install

such

control,’

5

such

review

was

simply

not

pertinent

to the

Illinois

EPA’s

consideration.

[Transcript

at

75-76;

140].

Such

information

was

merely

collected

to

confirm

the

Agency’s

understanding

that

the

condensers

were

not

designed

to

remove

sulfur

compounds.

And

no

evidence

exists

that

the

substance

of Petitioner’s regulatory

argument

was

raised

during

communications

between

Petitioner

and

the Illinois

EPA

after

the Agency informed

Petitioner

about

the

lise

of

devices

at

simIr

MBT-C

processec

in

.thcr

states.’

6

[Public

Ve;cic?

of

Record

at

1561;

see

also,

Transcript

at

75-76].

Rather,

the

illinois

EPA

learned

that

this

information

simply

aided

Petitioner

in

its ultimate decision,

to

install

the

NaSH

unit.

[See

footnote

14].

For

these

reasons,

the information garnered

from

West

Virginia,

Louisiana

the

extent

of

SO

2emissions

from

the MBT-C

process,

Petitioner

agreed

to

generally

evaluate

similar

add-on

control

measures.

Based

upon

such

evaluation,

Petitioner

ultimately

elected

to

install

the

NaSH

unit.

[Transcript

at 41-47].

15

Petitioner

asserts

that

its

review

of the

West

Virginia

and

Louisiana

regulations

found

both

states

possessed

a

requirement

similar

to

35

fli. Adm.

Code

214.301,

but neither

had

an

exemption

comparable

to

35 Iii.

Adm.

Code

214.382.

[Transcript

at

75-76].

Petitioner

did

not

review

whether

similar

regulations

existed

in South

Carolina.

[Transcript

at

78].

16

While

Mr.

Corn

testified

that

his

knowledge

of

Louisiana

regulations

originated

from prior

work

experience,

his

familiarity

with

West

Virginia’s

regulations

came

much

later,

during

witness

preparation

for

this

proceeding.

[Transcript

at

77-78].

30

---

and

South

Carolina

provided

further

support

towards

the

Agency’s ultimate

conclusion

that the

condensers

at the

MBT-C process

did not qualify

for

the

exemption

in 35

Ill.

Adm.

Code

214.382.

iii.

USEPA

guidance

Finally,

the

Illinois

EPA

also

reflected

upon federal

MON

definitions

as a type

of

guidance

to merely

confirm

that its

interpretation

of

various chemical

engineering

concepts

(i.e.,

reflux

condenser,

process condenser

and a control

device)

was

similar

to

the USEPA’s

perception

of the

same (which

also

happened

to include

reflux

condensers

as a process

condenser

not

a control

device).

[Public

Version

of

Record

at 1543;

see

also,

Transcript

at 116,

158]; see

also,

40 CFR §63.2550.

In

an email

message, the

Illinois

EPA

informed

Petitioner

that

the definition

of a

process

condenser

in

the existing

MON

or the

Pharmaceutical

Maximum

Achievable

Control

Technology

(MACT)

supported

the

Agency’s

conclusion

that

the MBT-C

condensers

were appropriately

identified

as

reflux

or process

condensers

rather than

control

devices.Notably:

Process

condenser

means

a condenser

whose

primary

purpose

is to recover

material

as

anintegralpart:ofaprocess

Thçcondensermust

supportavapor4o-

liquid

phase

change for

periods

of source

equipment

operation

that

are

at

or above

the boiling

point

or

bubble point

of

substance(s)

at the liquid

surface.

Examples

ofprocess

condensers

include distillation

condensers,

reflux

condensers,

and

condensers

used

in

stripping

or

flashing operations.

In a

series

of condensers

all

condensers

up to and

including

the first

condenser

with an exit

gas temperature

below

the

boiling or

bubble point

of the

substance(s)

at the

liquid

surface

are

considered

to be

process

condensers.

All

condensers

in

line

prior to

a

vacuum

source

are

included

in this definition.

[Public

Version of

Record

at 1841;

see also,

Transcript

at 12]].

The logical

outgrowth

of

this

guidance

is

that the condensers

are

rightly

identified

as reflux

or process

and

not

control

devices

owing

to the condensers’

primary

purpose,

the recovery

of

CS2

for

further

use in

the MBT-C

production

process.

[Transcript

at 122].

And

reflux

or process

31

---

condensers

do not

qualify

for the

exception

in 35

Iii. Adm.

Code 2

14.382

as such

devices

are merely

designed to

recover raw

material rather

than designed to remove

sulfur

compounds.

35

Iii. Adm.

Code

214.382

(emphasis added).

Moreover,

given that

the

MBT-C process

is a batch process

and involves a

volatile

organic

compound,

7the

Illinois EPA

also kept

in mind additional USEPA

guidance

for

Control

of Volatile Organic

Compound Emissions

from

Batch Processes.

[Public

Version ofRecord

at 2135-2510;

see also,

Trade Secret Version

of

Record at

173

&

195; see also, Transcript

at

97

116-119,

164].

In particular, such

guidance stated

that:

Note that condensers

servicing

reactors

and distillation colunms

often function

in

refluxing material.

This refluxing

is an integral

part

ofthe

process,

and these

condensers

are

often not

considered

to be

emission control devices.

Such

applications

often use secondary

condensers,

which operate

at still lower

temperatures and

function primarily

as control

devices.

[Public Version

ofRecord at 2236

(emphasis

added)].

This

passage reiterates the

TJSEPA

‘ s

view

that reflux

condensers

are

generally considered

to

be

a

vital

part

of the

production

process

and thus,

not

appropriately

chacterized

as emission

control.

[Transcript

at 118]. Given

the

USEPA’s

guidance that

reflux

condensers

are part

of the

production

process and thus,

not control,

it should come

as no surprise to

the Board

that

the USEPA

did not comment

on the Illinois

EPA’s

decision

that the condensers

in the

17

During CAAPP

permitting, Petitioner

contested the

Illinois EPA’s

review of guidance

pertaining

to pollutants beyond

sulfur compounds,

particularly

VOM. However, it was

entirely

appropriate

for the flhinois EPA

to take

into

account

guidance

applicable to volatile

organic

material

given that CS

2is

a volatile

organic

material.

[Public Version

of

Record

at 2116-2118;

see

also, Transcript

at

120-121].

In

fact, Petitioner

acknowledged in its

initial application

materials

the relationship

between

the

sulfur

compound,

CS

2,and VOM. [Trade

Secret Version

of

Record at 173, 195,

¶10, (“Efficiency

(VOM

reduction): CS

2

’);see

also, Transcript at 120-

121].

32

---

MBT-C process were not entitled to the 35

Iii. Adm. Code 214.382 exemption.

18 [Public

Version

of

Record at 1842-1843 and 1850-1851.;

see also, Transcript at 126-127].

In

an apparent effort to dispute statements

that

the condensers are integral to

the

MBT-C

production process, Petitioner

cites to the testimony

of Mr. Giffin

indicating

“that it was perfectly

possible to run the

MBT reactors without the condensers.”

19

[Petitioner

Post-Hearing Memorandum

at 9, fn. 6]. However, based on Respondent’s

review of the process

even in light

of Mr. Giffin’s

testimony

only

one plausible

18

As a

matter of course, the USEPA routinely reviews

draft CAAPP permits prior to issuance

by

the Illinois

EPA. 415 ILCS 5/39.5(9)(b) (2006). [Transcrzpt

at 126]. In this instance, the

USEPA

had

access to

the entire draft CAAPP permit for review

and comment but limited comments

to the

future applicability of the MON

and, in the

context

of the NSPS,

various

proposed applicability

determinations made by

the

Illinois EPA. [Public

Version

of

Record at 1842-1843;

see

also,

Transcript at 126-127].

The USEPA did

not provide comment

on

Conditions 4.0,

7.1.2, 7.1.3,

7.1.4or 7.1.13. (i.e.,

the applicability of 35 Ill.

Adm. Code 214.301 byvirtue

of

the

illinois EPA’s

decision

that the source

was not entitled to

the 35 Iii.

Adm. Code

214.382 exemption.

jPublic

-

Version

of

Record at 1850-1851; see also, Transcript

at 126-127].

‘

In his direct

examination, Mr. Giffin testified

that

the condensers require liquid water

in their

shells to properly

operate. When the vapors,

CS

2 and H

2

S, flow through the condenser, the

water

boils away.

[Transcript at 27].-The vaporization

of the water cools the

CS

2

llowing it

to return

to

the MBT-C

reactor as a liquid. [Id.]. Mr. Giffin

admitted running the condensers with various

levels of

water in their shells,

“anywhere

from

no level

all the way to about two thirds level in the

condensers” [Id.],.

Upon furtherexaminationfromcounsel;

Mr. Giffin suggested-that.this

occurred on more than

one occasion, stating

in response to the following question:

Q: During

that work - - during that time

period and then at any subsequent time period

where the

water, for example, wasn’t available

to the condenser, you were able

to

continue to

operate the MBT crude [reactors]?

A: We

were.

[Transcript at

27-28; see also,

Transcript

at 54

(“we have had occasions when we had tested

it”

and

“we. also

had occasions

when it ran

without water

in the

storage

tank.’)].

Even according

to Emerald’s strained definition

of compliance with 35 ill. Adm. Code 214.30

1,

the

operation of

an existing process designed to remove

any amount of sulfur compounds from

the

flue gas, Emerald

acknowledges that it has

not consistently operated the condensers within

its

own definition

of

compliance. [TranscrIpt

at 30-31,

(the regulation “allowed the sufur-reducing

device

to be

classified as compliance “for the

“applicable sufur dioxide emission limitation.’);

see

also,

Transcript at 72 (admitting to meet the

exemption, the source must operate the

condenser);

see also,

Transcript at 54].

33

---

conclusion

may be drawn,

the condensers

are clearly

integral

to

the process.

A closer

review

of Mr.

Giffin’s

testimony,

in totality,

particularly

his

statement

that

“[t]he process

utilizes

three

chemicals,

aniline,

sulfur

and carbon

disulfide”

is

illuminating

in

this

respect

and might

explain

why

Petitioner

ignored

the statement

in its

argument.

[Transcript

at

16;

see

also,

Transcript

at

52].

As one

of three

reactants,

CS2

is an

integral

component

to the

production

ofMBT-Cand,

in fact,

is

“added

in excess

to

the

reaction.”

[Transcript

at 165-1

66]. For

purposes of

the reaction

it is

not

significant

whether

CS2

originates

from

an

outside

source

of raw

materials

or is

recovered

from

the

process

by means

of the

condensers

for

reuse

in the

production

of

MBT-C.

2

°

Admittedly,

the condensers’

recovery

of

CS2 minimizesthe

influx

of

fresh

CS2necessary

to

continue

production,

however,

the condensers

do

not diminish

the significance

of

the

reactant,

CS

2

,

or

the absolute

need

for

the

reactant,

CS

2

,

in

the MBT-C

process.

Rather,

the

condensers

augment

the

amount

of

fresh

CS2

otherwise

required

for the reaction

to

continue

and

therchy,

provide

a reacta

integrI

to the

production

ofMEtT-C

2

’

[Transcript

at

52, 56 (concluding

the operation

ofthe

MBT-C

reactor

without

the

condenser

only

changed

the

amount

of

CS

2

consumed);

75

&

165

(confirming

CS

2

as a

reactant

in

the

process)].

In

light

of the foregoing,

it

is difficult

to

envision

how

Petitioner

could

possibly

have

met

its burden,

particularly

given

that

this

testimony

20

In fact,

Respondent’s

expert

witness

confirmed

that

the

condenser

“charge[s]

the

unit

with

additional

carbon

disulfide.

Whether

that

comes from

the condenser

or

from

the

raw

product

storage

tank, does

not

make

any

difference.

You

use more

carbon

disulfide

from

the raw product

storage

tank,

obviously,

but

it does

not make

any

difference

where

you get

that makeup

from.”

[Transcrzpt

at 75;

see also,

Transcript

at 162

2

(CS may be

provided

from the virgin

tank or

from

the

recycle’).].

21

The operation

of

the

condensers

as a

process

device

provides

an

economic benefit

to

Petitioner

by

enabling

it to

recycle

a

necessary

reactant,

CS

2

,

rather

than

purchasing

more

of

the

same.

34

---

supports one

inevitable

conclusion, the condensers act

as reflux or process condensers

integral to the production of MBT-C.

B.

Petitioner

Failed

to

Establish the Requisite

Elements

to Make an Estoppel

Claim Against the Illinois EPA.

Petitioner

argues that because

Emerald’s prior state

operating

permits

generally

exempted the MBT-C condensers from the 2000

ppm

SO

2

limit, the Illinois

EPA should

now

be estopped from subjecting the MBT-C

condensers to the 2000 ppm

SO

2

limit

in its

CAAPP

permit.

[Petitioner’s Post-Hearing

Memorandum at 15-18]. Consequently,

Emerald urges the Board to conclude that the

Illinois EPA waived its right to subject

the

MBT-C condensers to the 2000 ppm

2

SO

limit

in Petitioner’s CAAPP permit and

should

be further

estopped

from future permitting

of the

MBT-C condensers in such a fashion.

However, Emerald fails to present the requisite

evidence

vital to.support such, an

estoppel

claim

against the

government. At most,

Petitioner

has demonstrated that the Illinois EPA

historically

made erroneous state operating

permitting decisions. However,

prior

misguided permitting

decisions

by

government

employees

do not provide a sufficient

basis to

justify an

estoppel:ciaim

against the

State.

In

Hickey v. Illinois

Central

Railroad

Company, 35 Iii. 2d 427, 220 N.E. 2d

415

(1966),

cert. den. 386

U.S.

934, reh. den.

386

U.S. 1000, the Illinois Supreme Court

held

that under

usual circumstances, principles

of estoppel do not apply to public

bodies.

Courts

have generally

been reluctant to

estop

government

bodies

due to concerns that

such

a claim may

impede government operations

and thus,

jeopardize public policy. The

doctrine

“should not be invoked against a

public body except under

compelling

circumstance,

where such invocation would

not defeat the

operation of public policy.”

People

ofthe

State

of

illinois v. Panhandle

Eastern Pipe

Line Company, PCB 99-191,

35

---

(November

15, 2001),

slip op.

at 20,

citing

Georgees

v. Daley, 256

Iii. App. 3d

143,

147,

628

N.E.

2d

721, 725

(1st

Dist.

1993).

As further elaborated

upon by the

Illinois Supreme

Court,

the court’s

reluctance to

impose estoppel

against the

state

is

due

to

concerns

that

the

doctrine

“may impair

the functioning

of the State in

the

discharge

of its government

functions,

and that valuable

public

interests

may

be jeopardized

or lost by the negligence,

mistakes

or inattention

of

public officials.”

Hickey v. Illinois

Central R.R.

Co.,

35

Ill. 2d

427,

447-448,

220 N.E. 2d 415,

426 (1966).

Governmental

inmiunity

from claims

of estoppel

is not unqualified;

however,

a

number

of legal

standards must

be met before

an estoppel claim

may be made

against

the

government.

Brewer Trucking

v. Illinois Environmental

Protection Agency,

PCB 96-25

0,

(March 20,

1997), slip op.

at

9,

citing

Brown

s

Furniture,

Inc. v. Wagner;

171 Ill. 2d 410,

431,

665 N.E.2d 795, 806

(1996). As recognized

by

the Illinois

Supreme Court, “the

party

claiming the estoppel

must have

relied upon

the acts or representations

of the other

and have had no knowledge

or

convenient.m.ans

of knowing

the trte facts.”

Hicky,

35

Ill. 2d at 447, 220

N.E. 2d

at 425,

citing

Dill

v. Widman,

413 111. 448, 455-456,

109

N.E.

2d

765, 769.

A party,

by statements

or conduct,

must

lead

another to do something

he

would not otherwise

have

done.

In re Estate

of Castro, 289

Ill. App.3d 1071,

1078,

683

N.E. 2d 1255 (2’

Dist.),

appeal

denied 174

Ill. 2d 562

(1997).

In addition, mere

inaction on

the

part

of government

officers

is not sufficient

to justify an estoppel

claim

against the

government..

Hickey,

35 Ill, 2dat

448., .220

N.E. .2d at

426..

In Panhandle Eastern

Pze

Line v. Illinois

Environmental Protection

Agency,

the

Board

elaborated upon

the

burden that

must be met

before an

estoppel claim may

be

made

against the Illinois

EPA:

36

---

Like all parties

seeking to

rely on estoppel,

those seeking to estop the

government

must demonstrate that their reliance was

reasonable

and that they incurred some

detriment as

a result of the reliance.

A party seeking

to estop the government

also

must

show that the government

made a misrepresentation

with

knowledge that

the

misrepresentation was untrue. See Medical

Disposal Services,

Inc. v. IEPA, 286

Ill. App.

3d 562, 677 N.E. 2d 428

(1st

Dist. 1997).

Finally, before estopping

the

government, the

courts require

that the governmental

body must have taken

some

affirmative act;

the unauthorized

or mistaken

act of a ministerial officer will

not

estop the government.

“Generally,

a public

body cannot be estopped

by

an

act of

its agent beyond

the authority expressly

conferred

upon

that official, or made

in

derogation of

a statutory provision.”

Gorgees, 256

Ill. App. 3d at 147, 628

N.E.

2d at

725; see also Brown’s Furniture,

171 Ill. 2d at 431,

665 N.E. 2d at 806.

(“The State is not estopped by the mistakes

made or misinformation given

by the

Department’s

[of

Revenue] employees

with respect

to tax liabilities.”).

Panhandle

Eastern Pipe Line v. Illinois Environmental

Protection

Agency, PCB 98-102

(January 21, 1999), slip op.

at 14

15.22

It is well

established

that the Board has rarely

applied the

doctrine of estoppel against the State.

People v. Environmental Control

and

Abatement, Inc.,

95-170 (January 4, 1996);see

also, City

ofHerrin v. Illinois

Environmental

Protection Agency, PCB 93-195

(March 17, 1994).

Where the doctrine

has been

applied, the Board has

found the

Illinois EPA

affirmatively

misled a

party and

.

.. ...

•..

....

..

..

..

,.

•.

•••.

thereafter sought

enforcement against that party

for acting on the

Illinois EPA’s

recommendatiom

People.v. Environmental Control

andAbatement, Inc.,:

95:-I 7 0 at 11,

citing In the

Matter of

Pielet Brother’s Trading,

Inc., 101

PCB 131 (July 13, 1989), and

IEPA v.

Jack Wright, PCB

89-227, (August

30, 1990).

22

According to

the Third District

Appellate

Court, Petitioner

must prove,

by

a preponderance

of

the

evidence,

six

elements for the doctrine of estoppel to apply:

(1) words

or

conduct

by the party

against whom

the estoppel

is alleged constituting either

a misrepresentation

or concealment of

material, facts;. (2)

knowledge.on. the part of the party against

whom.

the estoppel is alleged that.

representations

made were untrue; (3) lack of knowledge

by the party claiming

benefit of an

estoppel that

representation

were false either at the

time they were

made or at the time they were

acted upon;

(4) the

intention or expectation by the party

that his conduct

or representations will be

acted upon by

the party asserting

the estoppel; (5)

reliance by the

party seeking the estoppel; and

6)

prejudice to the

party claiming the benefit of the estoppel

if the party

against whom the

estoppel

is

alleged is

permitted

to

deny the truth

of the representations

made. City

of

Mendota

v.

Pollution

Control

Board, 161 Ill. App. 3d. 203, 514

N.E. 2d218,

112 Ill. Dec. 752 (3’Dist.

1987).

37

---

In

Emerald’s

appeal

of

the

Illinois

EPA’s

permitting

decision,

the

Petitioner

has

visibly

framed

its

arguments

in a much

different

fashion

regarding

this

issue. On

the

whole,

Emerald

contends

that

over

a

span of

twenty

years,

the Illinois

EPA

consistently

approved

state operating

permits

for

the source’s

MBT-C

condensers

exempt

from 35

Ill.

Adm.

Code

2 14.301;

the

Petitioner

relied

upon

“this

exception

for decades”;

and,

subsequently,

in 2003,

despite

the

“lack

of

any change

in

the regulations

or

factual

circumstances”,

the Illinois

EPA

first

notified

Petitioner

of its

change

in

position

73

regarding

the

applicability

of

the

exemption

to the

source:

[Petitioner