In re ConocoPhillips Co.
American Bottom Conservancy and Sierra Club (“Petitioners”) petitioned the Environmental Appeals Board (“Board”) to review various aspects of a Clean Air Act
(“CAA”) Prevention of Significant Deterioration (“PSD”) permit that the Illinois Environmental Protection Agency (“IEPA”) issued to ConocoPhillips Company
(“ConocoPhillips”) on July 19, 2007. The permit authorizes the Coker and Refinery Expansion Project (“CORE Project”) at the Wood River Refinery in Roxana, Illinois.
On appeal, Petitioners argue that IEPA’s permit decision is deficient in five respects. First, Petitioners assert that IEPA failed to make its response to comments
document, or “Responsiveness Summary,” available to the public, as 40 C.F.R. § 124.17(c) requires, when IEPA did not include a copy of the Responsiveness Summary
with its notice of the permit decision. Second, Petitioners assert that IEPA failed to adequately identify and explain in its Responsiveness Summary the changes made to
permit provisions in the final permit decision in accordance with 40 C.F.R. § 124.17(a). Third, Petitioners challenge the adequacy of IEPA’s BACT analysis for CO emissions from flaring. Fourth, Petitioners challenge the enforceability of its flare-related controls and monitoring requirements. Finally, Petitioners argue that IEPA failed to conduct a BACT analysis and to impose corresponding emissions limitations for greenhouse gas emissions (namely, CO2 and methane).
Held: Under the circumstances of this case, where IEPA indisputably notified Petitioners by mail of the permit decision and explained that the Responsiveness
Summary could be obtained by telephone, fax, email request, as well as by viewing the documents at one of three repositories, or online at a specific agency website, IEPA appropriately made available the Responsiveness Summary in accordance with 40 C.F.R.§ 124.17(c).
IEPA failed, however, to specify in its Responsiveness Summary the provisions of the draft permit that had been changed in the final decision as 40 C.F.R. § 124.17(c)
requires. Also in contravention of 40 C.F.R. § 124.17(c), IEPA failed to provide adequate rationale for its changes to the final permit. The Board determined that these
omissions could neither be cured by viewing the Responsiveness Summary as a whole, nor by providing further clarification through briefing on appeal. As such, the permit
decision is remanded to IEPA to identify and explain the changed provisions of the permit in a manner consistent with the applicable regulations and this opinion.
Because the added provisions of the permit, which concerned flare-related emissions controls and monitoring requirements, were not appropriately identified or
explained by IEPA, the Board was unable to evaluate the reasonableness and adequacy of these provisions. Nevertheless, mindful of the time-sensitive nature of PSD
permitting, the Board provides certain observations for IEPA’s consideration on remand, including the need for a proper BACT analysis for CO emissions from flaring and, based on that analysis, appropriate, enforceable CO BACT controls.
Finally, the Board denies review of the issue of whether IEPA improperly failed to include emissions limitations for greenhouse gases (carbon dioxide and methane, in
particular) in the permit because, although this issue was reasonably ascertainable, it was not raised during the public comment period and therefore was not properly preserved for appeal.