Days after Gov. Bruce Rauner appointed Alec Messina director of the Illinois Environmental Protection Agency, the new director’s powers have been altered due to a potential conflict with federal environmental regulations.
Prior to joining the Rauner administration as an adviser to the governor last year, Messina was executive director of the Illinois Environmental Regulatory Group, a consortium of firms that include coal mining companies, power companies and other entities that hold pollution permits issued by the state under the federal Clean Water Act. Under federal regulations, heads of state agencies charged with issuing such permits cannot have derived a “significant portion of income” directly or indirectly from permit holders or applicants for permits within two years of being appointed to lead state regulatory agencies.
In addition to heading the IERG, Messina, who was general counsel for the IEPA under former Gov. Rod Blagojevich, was also a lobbyist for the industry group.
In a Tuesday memo issued after Illinois Times inquired about the apparent conflict between Messina’s July 1 appointment and federal environmental regulations, John Kim, IEPA chief legal counsel and ethics officer, acknowledged that Messina’s prior employment with IERG fell within the provision of the federal ban on paid advocates for companies with pollution permits becoming heads of permitting agencies. As a result, Kim wrote, Messina will not play a role in issuing pollution permits under the federal Clean Water Act.
In the memo, Kim wrote that the agency’s Bureau of Water, not the director, is responsible for reviewing permit applications and issuing permits. While stating that Messina’s previous IERG employment “fall(s) within the relevant portions” of the federal ban, Messina also wrote that the federal prohibition isn’t applicable because the IEPA director doesn’t approve pollution permits. But “out of an abundance of caution,” Kim wrote, Messina “will not be involved in any discussions, decisions or other review steps” in the state’s permitting process for pollution permits issued under the Clean Water Act.
“This prohibition will include any part of the…permit approval process, including but not limited to discussions and decisions on whether to hold hearings on pending…permit applications, portions or conditions of possible…permits, issues associated with…permit applications, or responsive summaries generated as a result of hearings,” Kim wrote.
If an issue or decision related to a permit application needs to be reviewed or otherwise handled outside the agency’s Water Bureau, the IEPA deputy director will get involved, Kim wrote. The ban on Messina’s involvement with pollution permits issued under the Clean Water Act will last until January of next year, when two years will have passed since Messina worked for IERG, Kim wrote.
The federal regulation states: “State…programs shall ensure that any board or body which approves all or portions of permits shall not include as a member any person who receives, or has during the previous two years received, a significant portion of income directly or indirectly from permit holders or applicants for a permit. … Board or body includes any individual, including the director, who has or shares authority to approve all or portions of permits either in the first instance, as modified or reissued, or on appeal.”
A spokeswoman for state attorney general Lisa Madigan did not immediately respond to an inquiry as to whether the attorney general believes there is a conflict between federal law and Messina’s appointment and whether steps outlined in Kim’s memo can overcome any conflict that may exist. Messina’s appointment requires confirmation by the state Senate.
“He’s in the queue to be vetted,” said John Patterson, spokesman for
Senate president John Cullerton, D-Chicago. “This issue, which you’ve made us aware of, will be part of the review process.”
Messina could not be reached for comment.
Messina wins praise from both environmental interests and advocates for regulated industries.
“On its face, we’re not concerned about the appointment,” said Jennifer Walling, executive director of the Illinois Environmental Council, a Springfield-based environmental group. “He (Messina) understands he has to work with environmental organizations if he’s going to accomplish anything. In a lot of ways, we’re looking forward to working with him.”
Phil Gonet, president of the Illinois Coal Association, said that he doesn’t see a problem with Messina’s appointment. Gonet could recall just one instance in which an issue involving pollution discharge permits issued under the Clean Water Act required involvement of the IEPA director, and that was about eight years ago.
“Normally, (permitting) issues are fairly routine,” Gonet said. “I don’t see this as a problem. It should not be an obstacle.”
Here’s a link to the federal regulation that
includes a ban on persons who’ve worked for entities with pollution
permits from going to work for permitting agencies for a period of two
years. The pertinent regulation is near the bottom of the page.
https://www.law.cornell.edu/cfr/text/40/123.25
Contact Bruce Rushton at brushton@illinoistimes.com.
This article appears in Jun 30 – Jul 6, 2016.
