On March 2, 2011, the Environmental Appeals Board (EAB) remanded the prevention of signification deterioration (PSD) permit issued by IEPA to Vulcan Construction Materials, Inc. LP (Vulcan) for its lime plant in Manteno, IL. Vulcan's Manteno plant was originally permitted under a PSD permit issued by IEPA on May 16, 1996 and began operating in 1998. The plant ceased operation in 2003 as a part of a consent decree between IEPA and Vulcan. Vulcan reapplied for a PSD permit on October 27, 2003. IEPA issued a draft permit for public comment on April 17, 2009, held a public hearing on the draft permit on June 4, 2009, and issued the final permit on April 9, 2010. The final permit was appealed by the Sierra Club on May 9, 2010. In its remand on March 2, 2011, the EAB agreed with the Sierra Club on: 1) IEPA's failure to provide sufficient justification for concluding that the best available control technology (BACT) limitations for PM10 also constitute BACT for PM2.5 and for concluding that the plant's emissions of PM2.5 will comply with applicable NAAQS; 2) failure to provide sufficient justification for the use of regional data in conducting required preconstruction monitoring and analyses; and 3) failure to provide sufficient justification for the permit's BACT limitations for NOx and CO2 particularly the inclusion of margin of compliance for NOx and CO or the size of the margin.
With this permit remand, the EAB required IEPA to revise and reissue the permit after considering the above issues and after reopening the permit for public comment. Further, the EAB notes that "under the facts of this case, where the significant issues to be addressed on remand will necessitate reopening the comment period, IEPA must comply with all applicable standards in effect at the time the permit is issued on remand. Since EPA has authority to lawfully exercise, "through an appropriate process, any discretion it has to interpret what 'all applicable standards in effect' means to a particular source being permitted," IEPA should confer with the EPA as to whether EPA plans to exercise any such discretion that would affect Vulcan." Since the issuance of Vulcan's PSD permit in April 2001, significant regulations have come into effect including the new 1-hour NAAQS for NO2 and SO2 effective on April 12, 2010 and August 23, 2010, respectively, and the greenhouse gas (GHG) tailoring rule issued in May 2010 and effective on January 2, 2011. These new regulations may need to be considered before reissuance of the Vulcan permit. Further, the EAB appears to leave the door open for EPA to use its discretion on "all applicable standards in effect" at the time of issuance of a permit.
In contrast is IEPA's response on April 29, 2011 to the Sierra Club's petition for review of the PSD permit issued to Mississippi Lime Company, Prairie Du Rocher, IL on December 30, 2010. In response to the Sierra Club's petition concerning requirements for IEPA to apply regulations retroactively if the Mississippi Lime PSD permit is remanded, IEPA responded that if the EAB remands the permit, IEPA should not be required to retroactively apply any regulation since the original permit was issued, unless U.S. EPA clearly states the intent to retroactively apply any regulation.
Further information on the remand order can be found here.
More information on the Mississippi Lime permit appeal can be found here.