In The Matter of:
Proposed New 35 111. Adm. Code 225
Control of Emissions from
Large Combustion Sources
TO
:
John J. Kim, Managing Attorney
Air Regulatory Unit
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St., Suite 11-500
Chicago, IL 60601-3218
PLEASE TAKE NOTICE that on March 15, 2006, 1 filed with the Office of the Clerk of the
Pollution Control Board on behalf of Dominion Kincaid, Inc., its Motion for the Board to Reject
the Illinois Environmental Protection Agency's Proposal to Add Mercury Rules Under Section
28.5 Fast-Track Rule Making Procedures . A copy of the Motion is herewith served upon you
.
Respectfully submitted,
DOMINION KINGAtID,._INC .
Bill S. Forcade
JENNER & BLOCK LLP
One IBM Plaza
Chicago, IL 60611
(312) 222-9350
ILLINOIS POLLUTION CONTROL BOARD
NOTICE OF FILING
No. R06-25
(Rulemaking - Air)
Virginia Yang
Deputy Legal Counsel
Ill. Dept. of Natural Resources
One Natural Resources Way
Springfield, IL 62702
Matthew Dunn
Chief
Division of Environmental Enforcement
Office of the Attorney General
188 West Randolph St., 20th Floor
Chicago, IL 60601
By:_
.a .
.
.
One-'its attorneys
THIS FILING IS SUBMITED ON RECYCLED PAPER
RECEIVED
CLERK'S OFFICE
MAR 15 2005
STATE OF ILLINOIS
Pollution Control Board
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
In The Matter of:
)
Proposed New 35111 .Adm. Code Part 225 )
R06-25
Control of Emissions from
)
(Rulemaking - Air)
Large Combustion Sources
)
RECEIVED
MAR 1 5 2006
STATE OF ILLINOIS
Pollution Control Board
DOMINION KINCAID, INC.'S MOTION FOR THE BOARD TO REJECT ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY'S PROPOSAL TO ADD MERCURY
RULES UNDER SECTION 28.5 FAST-TRACK RULE MAKING PROCEDURES
NOW COMES DOMINION KINCAID, INC ., by and through its attorneys, Jenner & Block,
LLP, and moves the Illinois Pollution Control Board ("Board") to reject the Illinois Environmental
Protection Agency's ("Agency") proposal to add mercury rules ("Mercury Proposal") under
procedures described as "Clean Air Act rules ; fast track" in Section 28 .5
, 415 ILCS 5/28 .5, of the
Illinois Environmental Protection Act ("Act") . 415 ILCS 5/1
el. seq. The Mercury Proposal does not
meet the Section 28 .5 prerequisites, and must be rejected
.
I
.
THE MERCURY PROPOSAL DOES NOT MEET THE PREREQUISITES OF
SECTION 28.5 OF THE ACT.
Section 28.5 of the Act authorizes the Board to employ expedited rule making procedures,
but only in certain circumstances
.
(c) For purposes of this Section, a "fast track" rulemaking proceeding is a proceeding
to promulgate a rule that the CAAA requires to be adopted . For purposes of this
Section,
"requires
to be adopted" refers only to those regulations or parts of
regulations
for which the United
States
Environmental
Protection Agency is
empowered to impose sanctions against the State
for failure to adopt such rules .
.
.
.
Section 28.5, 415 ILCS 5/28.5 (emphasis added). To qualify for fast-track procedures, the
Administrator ("Administrator") of the United States Environmental Protection Agency ("USEPA")
must have authority under the Clean Air Act ("CAA"), 42 U.S.C.A. §§ 7401 to 7671, to impose
sanctions against Illinois. The Mercury Proposal does not meet that standard .
II .
THE ADMINISTRATOR CANNOT IMPOSE SANCTIONS ON ILLINOIS FOR
FAILURE TO ADOPT A MERCURY RULE .
The CAA only authorizes the Administrator to impose sanctions in limited circumstances,
which are described in Section 179 of the CAA, 42 U .S.C.A. § 7509. The Administrator may
impose sanctions only if he or she
:
(1) finds that a State has failed, for an area designated nonattainment under section
7407 (d) of this title, to submit a plan, or to submit I or more of the elements (as
determined by the Administrator) required by the provisions of this chapter
applicable to such an area, or has failed to make a submission for such an area that
satisfies the minimum criteria established in relation to any such element under
section 7410 (k) of this title,
(2) disapproves a submission
under section 7410 (k) of this title, for an area
designated nonattainment under section 7407 of this title, based on the submission's
failure to meet one or more of the elements required by the provisions of this chapter
applicable to such an area,
(3)
(A) determines that a State has failed to make any submission as may be
required under this chapter, other than one described under paragraph (1) or
(2),
including an adequate maintenance plan, or has failed to make any submission, as
may be required under this chapter, other than one described under paragraph (1) or
(2), that satisfies the minimum criteria established in relation to such submission
under section 7410(k)(1)(A)of this title, or
(B) disapproves in whole or in part a submission described under
subparagraph (A), or
(4) finds that any requirement of an approved plan (or approved part of a plan) is not
being implemented
.
42 U .S.C.A. § 7509(a)(1), (2), (3), and (4)
. (emphasis added)
Each of these subsections specify deficiencies for a State Implementation Plan ("SIP") for
national primary and secondary ambient air quality standards ("NAAQS") submitted under Section
1 Section 110(m) of the CAA, 42 U .S.C.A. 7410(m) allows the Administrator to impose
sanctions on a less than State-wide basis, but refers the Administrator to Section 179, 42
U .S.C.A. § 7509, for the appropriate basis and procedures for imposing sanctions
.
2
110 of the CAA, 42 U.S.C.A. § 7410. To qualify for sanctions, the Administrator must determine
that all or a portion of such SIP is either missing, insufficient or not being enforced . The critical
factor is that sanctions are limited to deficiencies in a SIP to achieve compliance with NAAQS
adopted by USEPA under Section 109, 42 U .S.C. § 7409. USEPA has not adopted any NAAQS for
mercury . 2
Mercury is not a criteria pollutant. Controlling mercury does not come within the
purview of the SIP process in Section 110 of the CAA, 42 U
.S.C.A. § 7410, and is not subject to the
sanction provisions of Section 179 of the CAA, 42 U .S.C.A. § 7509. Therefore, USEPA may not
impose sanctions against Illinois for failure to adopt mercury rules
.
III .
USEPA HAS ADOPTED MERCURY RULES AS STANDARDS OF
PERFORMANCE FOR NEW AND EXISTING STATIONARY SOURCES UNDER
SECTION 111 OF THE CAA .
On March 15, 2005, the Administrator of USEPA signed the Clean Air Mercury Rule
("CAMR"), under authority of Section 111 of the CAA, 42 U .S.C.A. § 7411, which establishes
"standards of performance" limiting mercury emissions from new and existing coal-fired electric
utility steam generating units and creates a market-based cap-and-trade program to reduce
nationwide mercury emissions. 70 Fed. Reg. 28606 (May 18, 2006). Section 111(d), 42
U .S.C.A. § 7411(d), authorizes U .S. EPA to promulgate standards of performance that States must
adopt. If a State fails to submit a satisfactory plan, or fails to enforce its plan, U.S. EPA has the
authority to prescribe a plan for the State or USEPA may enforce the existing plan . Section
I I1(d)(2), 42 U.S.C.A. § 7411(d)(2). Prescribing a plan, or enforcing an existing plan, under
Section 111(d)(2), 42 U .S.C.A. § 741 1(d)(2), is not a sanction. USEPA has stated how it will act if
a State fails to submit a plan under the CAMR
:
2
See
40
CFR Part 50, for a list of the ambient air quality standards adopted by USEPA
3
If a State fails to submit a State plan as proposed to be required in today's final rule,
EPA will prescribe a Federal plan for that State, under CAA section 11I(d)(2)(A)
.
EPA proposes today's model rule as that Federal plan .
70 Fed. Reg. 28632. As described above, the CAA does not authorize USEPA to impose sanctions
for failure to submit an approvable State plan for mercury . If Illinois fails to submit an approvable
plan, USEPA will impose the Federal plan, not sanctions
.
Since CAMR was adopted under Section 111 of the CAA, 42 U .S.C.A. § 7411, no
regulation to implement CAMR in Illinois can proceed under Section 28 .5 of the Act, 415 ILCS
5/27 and, for this reason, the Board should reject the Mercury Proposal . Dominion Kincaid, Inc
.
does not object to the Agency filing a mercury proposal under other statutory provisions, such as
Section 27, 415 ILCS 5/27 .
CHICAGO 13807561
by :
Dated: March 15, 2006
Bill S. Forcade
Jenner & Block LLP
One IBM Plaza
Chicago, IL 60611
(312) 222-9350
Respectfully submitted,
DOMINION KINCAID, INC .
4
CERTIFICATE OF SERVICE
I, Bill S. Forcade, an attorney, hereby certify that I served a copy of the foregoing
document, via first-class mail, postage fully prepaid, upon the following this 15th day of March,
2006
:
John J. Kim
Managing Attorney
Air Regulatory Unit
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, IL 62794-9276
Dorothy Gunn
Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 W. Randolph St ., Suite 11-500
Chicago, IL 60601-3218
By :
Virginia Yang
Deputy Legal Counsel
Ill. Dept. of Natural Resources
One Natural Resources Way
Springfield, IL 62702
Matthew Dunn
Chief
Division of Environmental Enforcement
Office of the Attorney General
188 West Randolph St., 20th Floor
Chicago, IL 60601
THIS FILING IS SUBMITTED ON RECYCLED PAPER
