Days after Gov. Bruce Rauner appointed Alec Messina director of the Illinois Environmental Protection Agency, an ethics officer for the state ruled that the new chief won’t be involved in issuing some regulatory decisions to avoid running afoul of federal government rules.

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. The permits, often issued to industrial businesses, allow a specific amount of pollution to be dumped into the state’s waterways.

Alec Messina, left, and Gov. Bruce Rauner

Under federal guidelines, state regulators 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 joining the state agencies.

In addition to heading the industry group, Messina, who was general counsel for the Illinois EPA under former Gov. Rod Blagojevich, was also its lobbyist.

>> A version of this story also appears on Illinois Times’ website

In a Tuesday memo issued after Illinois Times inquired about a possible conflict between Messina’s July 1 appointment and federal environmental regulations, John Kim, Illinois EPA chief legal counsel and ethics officer, said Messina’s prior employment with the industry group 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 Clean Water Act, a federal law initially passed in 1972.

View the memo here.

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 employment falls “within the relevant portions” of the federal ban, Messina also wrote that the federal prohibition isn’t applicable because the Illinois EPA 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, 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 state EPA 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 the industry group, Kim wrote. 

According to the federal regulation, 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.”

Messina’s appointment requires confirmation by the Illinois Senate.

Messina is “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,” he said.

A spokeswoman for the Illinois EPA said Messina was not available to comment.

Phil Gonet, president of the Illinois Coal Association, said he recalls just one instance in which an issue involving pollution discharge permits issued under the Clean Water Act required involvement of the state EPA 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.”

At least one Downstate environmental activist said she doesn’t see an impediment to working with Messina.  

“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. 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.”

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