ILLINOIS POLLUTION CONTROL BOARD
October 19, 2000
IN THE MATTER OF:
PROPOSED AMENDMENTS TO 35 ILL. ADM.
CODE 217.SUBPART V, ELECTRIC POWER
GENERATION
)
)
)
)
)
R01-16
(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 Subpart V of 35 Ill. Adm. Code 217: Electric Power Generation. The proposed regulations include a
rate based emission limit and other controls for nitrogen oxides (NO
x
) from fossil fuel-fired electrical
generating units (EGUs). The controls are to be effective during the period May 1 through September 30 of
each year, beginning in 2003. As explained below, the Agency is proposing these amendments because the
State is required to submit to the United States Environmental Protection Agency (USEPA) NO
x
control
strategies necessary to demonstrate attainment of the 1-hour National Ambient Air Quality Standard for
ozone (NAAQS) by May 1, 2003, in the Metro East/St. Louis moderate nonattainment area (NAA). Failure to
do so could result in sanctions on the State of Illinois (State) by the USEPA under the Clean Air Act
Amendments of 1990 (CAA) (42.U.S.C.7401
et seq
. (1990)).
For that reason, as further explained below, the Agency filed this rulemaking proposal pursuant to
Section 28.5 of the Environmental Protection Act (Act) (415 ILCS 5/28/5). Section 28.5 specifically provides
for “fast track rulemaking” by the Board to promulgate rules that are required to be adopted under 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 amendments are set forth in a separate Board order for administrative ease of handling.
In its Statement of Reasons, the Agency explained that the amendments to Subpart V of Part 217 are
intended to meet several obligations of the State under the federal CAA. 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
NAAQS for ozone. The State is required thereunder to submit a state implementation plan (SIP) that
specifies emission limitations, controls, and other measures necessary for the attainment, and enforcement of
the NAAQS for ozone in this state.
Originally the Agency had intended to satisfy these obligations with the rulemaking
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
, filed with the
Board on July 11, 2000. On August 30, 2000, the United States Court of Appeals for the D.C Circuit issued an
order that changed the implementation date incorporated into R01-09 from May 1, 2003, to May 31, 2004. See
Michigan v. EPA No. 98-1497, 2000 WL 180650 (D.C. Cir. 2000). Subsequently, the Agency moved to amend
its proposal in R01-9 changing, among other things, the implementation date for Subpart W from May 1,
2003, to May 31, 2004. Because the State is required to submit control strategies necessary to demonstrate
attainment of the 1-hour NAAQS for the Metro-East/St. Louis NAA by May 1, 2003, this obligation can no
longer be satisfied by Subpart W due to its newly proposed later implementation date of May 31, 2004.
The Agency explains that the purposes of the Subpart V proposed amendments are twofold. First,
the proposal is intended to satisfy the State’s SIP obligations for the Metro-East/St. Louis NAA. Second, it is
intended to comply with representations by the State to the U.S. District Court for the District of Columbia in
a case brought by the Sierra Club against the USEPA in 1998. The Sierra Club’s complaint alleges that
USEPA failed to perform certain nondiscretionary duties under the CAA regarding failure of the Metro-
East/St. Louis NAA to achieve attainment.
1
Shortly thereafter, on March 19, 1999, USEPA published a
proposed rule entitled “Clean Air Reclassification and Notice of Potential Eligibility for Attainment Date
Extension, Missouri and Illinois, St. Louis Nonattainment Area; Ozone” (Extension Policy).
2
In the proposed
1
The Sierra Club and the Missouri Coalition (Sierra Club) for the Environment filed this complaint on
November 11, 1998. Civil Action Nos. 98-2733 and 99-388. These actions are still pending. As of the date of
2
this
Under
order,
the
the
Extension
Court has
Policy,
not yet
the
ruled
State
on
has
a
agreed
motion
to
by
submit
the Sierra
adopted
Club
rules
for summary
to USEPA
judgement.no
later than December
31, 2000. The Agency has represented that USEPA understands that these amendments will not be adopted
until after this date has passed, and the USEPA will accept the continued progress made in these proceedings
as satisfying the State’s obligation to submit adopted rules.
2
rule, USEPA found that the Metro-East/St. Louis NAA had not met the attainment date applicable to
moderate NAAs, and that upon a final finding of nonattainment, the area would by operation of law be
reclassified to a serious ozone NAA. 64 Fed. Reg. 13384 (March 18, 1999). USEPA also proposed to offer final
action in this proposed finding of non-attainment based upon its Extension Policy.
In October 1999, the State committed in a draft supplement to its attainment SIP for the Metro-East
NAA to implement statewide reductions of NO
x
from sources within the State. The State submitted this
supplemental attainment SIP to USEPA in February 2000. The State’s adopted rules are due to the USEPA by
December 31, 2000. These proposed amendments to Subpart V of Part 217 are necessary to fulfill the
representations made in this draft supplement.
In sum, this rulemaking will allow Illinois to:
1.
submit control strategies necessary to demonstrate attainment of the 1-
hour ozone National Ambient Air Quality Standard (NAAQS) for the Metro-East/St. Louis
moderate ozone nonattainment area (NAA); and
2.
satisfy Illinois’ obligation to submit adopted rules to USEPA under the Extension Policy
Again, 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.
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 add Subparts U and X to Part 217, and make various amendments to Part 211. See
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 (October 19, 2000), R01-17.
PROCEDURAL MATTERS
Agency Motion for Alternative Filing Requirements
Along with the proposal, the Agency filed a motion to waive the filing requirements at 35 Ill. Adm.
Code 101.103(b) and 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 bot
h 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 (o) in paragraph 4
of its motion, and that it file no copies of three additional documents (Mot. for Waiver of Req. at
3
2). Those three 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 R01-17, a proposal to add Subparts U and X to
Part 217, and amend Part 211, on the same day that it filed this rulemaking proposal. See
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 (October 19, 2000), R01-17. 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 (5 ILCS 100 (1998)) without commenting on the merits of the
proposal or any substantive change to the proposal filed by the Agency. The Agency’s motions to modify the
filing requirements found at Sections 101.103(b) and 102.120 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.
4
Dorothy M. Gunn, Clerk
Illinois Pollution Control Board
