ILLINOIS POLLUTION CONTROL BOARD
October 19, 2000
IN THE MATTER OF:
PROPOSED NEW 35 ILL. ADM. CODE 217.SUBPART
U,
NO
x
CONTROL AND TRADING PROGRAM FOR
SPECIFIED
NO
x
GENERATING UNITS, SUBPART X,
VOLUNTARY
NO
x
EMISSIONS REDUCTION
PROGRAM, AND AMENDMENTS TO 35 ILL. ADM.
CODE 211
)
)
)
)
)
)
)
)
)
)
R01-17
(Rulemaking – Air)
Proposed Rule. First Notice.
OPINION OF THE BOARD (by M. McFawn):
On October 16, 2000, the Illinois Environmental Protection Agency (Agency) filed a
proposal to amend 35 Ill. Adm. Code 211 and 217 of the Illinois air regulations. The Agency
proposes to have the Board add new Subparts U and X to Part 217, and to make various
amendments to Part 211. The rules at new Subpart U are proposed to control the emissions of
nitrogen oxides (NO
x
) from specified fossil fuel-fired stationary boilers, combustion turbines, and
combined cycle systems. The rules at new Subpart X are proposed to obtain voluntary reduction
of emissions of NO
x
from other specified sources for the purpose of transferring NO
x
allowances
created by those reductions from the non-trading portion of the statewide NO
x
budget, as
established in the NO
x
SIP Call, 73 Fed. Reg. 57356 (October 27, 1998),
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to either the electrical
generating unit (EGU) or non-EGU portion of the NO
x
trading budget. The controls would be
effective during the period May 1 through September 30 of each year, beginning in 2003.
The Agency has stated that the proposed amendments are intended to meet several
obligations of the State of Illinois (State) under the federal Clean Air Act Amendments of 1990
(CAA) (42 U.S.C. §§ 7401
et seq.
(1990)). Section 107(a) of the CAA (42 U.S.C. § 7407(a)
(1990)) imposes on the State the primary responsibility for ensuring that Illinois meet the National
Ambient Air Quality Standard (NAAQS) for ozone. It requires the State to submit a state
implementation plan (SIP) that specifies emission limitations, controls, and other measures
necessary for the attainment, maintenance, and enforcement of the NAAQS in this State. This
rulemaking will allow Illinois:
1.
to satisfy a portion of Illinois’ obligation to submit a State Implementation Plan
(SIP) to address the requirements of the so-called NO
x
SIP Call, 63 Fed. Reg.
57356 (Oct. 27, 1998), by implementing the NO
x
Trading Program, 40 C.F.R. 96,
and determining source NO
x
allowance allocations as part of that program; and
1
The NO
x
SIP Call (entitled “Finding of Significant Contribution and Rulemaking for Certain States in the Ozone
Transport Assessment Group Regions for Purpose of Reducing Regional Transport of Ozone”) is a regulation
promulgated by United States Environmental Protection Agency (USEPA) to address ozone transport in the area of
the country largely east of the Mississippi River, published on October 27, 1998, at 63 Fed. Reg. 57356.
2
2.
to meet the applicable requirements of Section 9.9 of the Environmental Protection
Act (Act) 415 ILCS 5/9.9 (1998).
The adoption by the Board of these amendments is authorized under Section 28.5 of the Act
(415 ILCS 5/28.5 (1998)). Section 28.5 provides for “fast-track” adoption of certain regulations
necessary for compliance with the CAA.
In accordance with the procedures in Section 28.5, most specifically
Section 28.5(f), the Board will adopt today the proposed amendments for first-notice publication in the
Illinois
Register
under the Illinois Administrative Procedure Act (5 ILCS 100 (1998)) without commenting on the merits of
the proposal.
These proposed rules and amendments are set forth in a separate Board order for
administrative ease of handling.
With the opening of this docket, the Board currently has four NO
x
rulemakings pending.
The Agency has previously filed two regulatory proposals in response to the NO
x
SIP Call, 63
Fed. Reg. 57356 (October 27, 1998). See also Proposed New 35 Ill. Adm. Code 217.Subpart W,
The NO
x
Trading Program For Electrical Generating Units, and Amendments to 35 Ill. Adm. Code
211 and 217 (July 13, 2000), R01-9, and Proposed New 35 Ill. Adm. Code 217.Subpart T, Cement
Kilns, and Amendment to 35 Ill. Adm. Code 211 and 217, (August 24, 2000), R01-11. At the same
time it filed this proposal, the Agency also filed a third regulatory proposal to amend Subpart V of
Part 217. See Proposed Amendments to 35 Ill. Adm. Code 217.Subpart V, Electric Power
Generation (October 19, 2000), R01-16.
PROCEDURAL MATTERS
Agency Motion for Alternative Filing Requirements
Along with the proposal, the Agency filed a motion to waive the filing requirements found
at 35 Ill. Adm. Code 102.120. First, the Agency requests that the Board waive the requirement that
the Agency provide an entire copy of the proposal to the Attorney General’s Office and the
Department of Natural Resources (DNR). The Agency assures the Board that it discussed the
matter with both the Attorney General’s office and the DNR and that both agreed that the Agency
does not need to supply their offices with a copy of the entire proposal, provided that both offices
are notified that a proposal has been made and where the proposal can be reviewed (Mot. for
Waiver of Req. at 2).
Second, the Agency requests that it be allowed to submit fewer copies of the documents
required pursuant to 35 Ill. Adm. Code 102.120 and Section 28.5(e)(7) of the Act. Pursuant to
Section 102.120 of the Board’s procedural rules the Agency is required to file an original and nine
copies of the proposal with the Board. The Agency asks that it be allowed to file instead one
original and four complete copies of the proposal, in addition to five partial copies that consists of
the following: the pleadings, the applicable federal guidance documents, and the text of the
proposed rules absent
supporting exhibits. Furthermore, the Agency requests that it be required to
provide the Board with less than the original and nine copies of documents it is required to file
pursuant to Section 28.5(e)(7) of the Act. The Agency is required by that Section of the Act to file
the documents it relied on in development of the proposal and intends to rely on at hearing. 415
ILCS 5/28.5(e)(7). Instead, the Agency proposes that it be allowed to provide the Board with five
copies of each of 11 documents listed as items (d) through (n) in paragraph 4 of its motion, and that
it file no copies of three additional documents (Mot. for Waiver of Req. at 2). Those three
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documents are the Clean Air Act, the Environmental Protection Act, and Title 35 of the Illinois
Administrative Code. The Agency requests a complete waiver for the three documents (listed as
items (a) through (c) in paragraph 4 of its motion because those documents are readily accessible
to the Board.
Id.
at 4.
The Board grants the Agency’s motion. The Agency does not need to file a copy of the
regulatory proposal with the Attorney General’s office or the DNR. The Board notes that the
Clerk of the Board will send a copy of this opinion and accompanying order that contains the
proposed amendments to both offices
. The Board accepts the Agency’s proposal to file one original and four
complete copies of its proposal, and five partial copies of the supporting documents. The Board also reduces the
number of supporting documents otherwise required to the number requested in the Agency’s motion.
Consecutive Hearings
As mentioned above, the Agency filed R01-16, a proposal to amend Subpart V of Part 217,
on the same day that it filed this rulemaking proposal. See Proposed Amendments to 35 Ill. Adm.
Code 217.Subpart V, Electric Power Generation (October 19, 2000), R01-16. The Board is
issuing separate first notices for these rulemakings. Because the two proposals both address No
x
controls and the participants interested in each proceeding overlap to a certain extent, the Board
will hold the hearings in both matters consecutively.
Scheduling Constraints
Pursuant to Section 28.5 of the Act (415 ILCS 5/28.5 (1998)), the Board is required to
proceed within set timeframes toward the adoption of the regulation. The Board has no discretion
to adjust these timeframes under any circumstances. Today the Board adopts this proposal for
first-notice publication in the
Illinois Register
under the Illinois Administrative Procedure Act (5
ILCS 100 (1998)) without commenting on the merits of the proposal. The following schedule
indicates the dates on which the Board will act as provided in Section 28.5 of the Act (415 ILCS
5/28.5 (1998)):
First Notice
on or before October 30, 2000
First Hearing
on or before December 10, 2000
Second Hearing
on or before January 9, 2001
Third Hearing (if necessary)
on or before January 23, 2001
Second Notice
(if 3rd hearing is canceled)
on or before February 23, 2001
(if 3rd hearing is held)
on or before March 15, 2001
Final Adoption
21 days after receipt of JCAR
certificate of no objection
The third hearing may be canceled if unnecessary, as specified at Section 28.5(g)(3). The
Board will proceed in this matter as required by Section 28.5 of the Act (415 ILCS 5/28.5 (1998))
and as discussed in the Board’s resolutions regarding Section 28.5 of the Act. See RES 92-2
(October 28, 1992, and December 3, 1992).
In conclusion, the Board adopts this proposal for first-notice publication in the
Illinois
Register
under the Illinois Administrative Procedure Act (5ILCS 100 (1998)) without commenting
on the merits of the proposal or any substantive change to the proposal as filed by the Agency. The
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Agency’s motion to modify the filing requirements found at Sections 101.103(b) and 102.120 of
the Board’s procedural rules and Section 28.5(e)(7) of the Act are granted. Additional detail
about the proceeding and the hearings will be contained in a hearing officer order that will be
issued shortly.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, hereby certify that the above opinion was
adopted on the 19th day of October 2000 by a vote of 7-0.
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
