ILLINOIS POLLUTION CONTROL BOARD

ILLINOIS POLLUTION CONTROL BOARD
1. DISCUSSION AND CONCLUSION

April 2, 2009

IN THE MATTER OF:

NITROGEN OXIDES EMISSIONS FROM

VARIOUS SOURCE CATEGORIES:

AMENDMENTS TO 35 ILL. ADM. CODE

ORDER OF THE BOARD (by A.S. Moore):

On May 9, 2008, the Illinois Environmental Protection Agency (Agency) filed a proposal

under the general rulemaking provisions of Sections 27 and 28 of the Environmental Protection

Act (Act) (415 ILCS 5/27, 28 (2006)). The Agency proposes to amend Parts 211 and 217 of the

Board’s air pollution regulations (35 Ill. Adm. Code 211, 217) to control nitrogen oxides (NO

)

emissions from various source categories. On March 20, 2009, the Agency filed a “Motion for

Expedited Review” (Mot.). Below, the Board summarizes that motion before deciding it.

SUMMARY OF MOTION TO EXPEDITE

On May 9, 2008, the Illinois Environmental Protection Agency (Agency) filed a proposal

under the general rulemaking provisions of Sections 27 and 28 of the Environmental Protection

Act (Act) (415 ILCS 5/27, 28 (2006)). Mot. at 1 (¶1). Generally, the Agency proposes to amend

Parts 211 and 217 of the Board’s air pollution regulations (35 Ill. Adm. Code 211, 217) to

control nitrogen oxides (NO

) emissions from various source categories such as industrial

boilers, process heaters, glass melting furnaces, cement kilns, lime kilns, furnaces used in

steelmaking and aluminum melting, and fossil fuel-fired stationary boilers.

. The Board has

held three hearings on this proposal: the first on October 14, 2008, in Springfield; the second on

December 9 and 10, 2008, in Chicago; and the third on February 3, 2009, in Edwardsville.

The Agency states that Section 110 of the Clean Air Act (CAA) requires states to submit

to the United States Environmental Protection Agency (USEPA) for its approval state

implementation plans (SIP) “that provide for the attainment and maintenance of standards

established by USEPA through control programs directed to sources of the pollutants involved.”

Mot. at 1-2 (¶2), citing 42 U.S.C. § 7410. The Agency further states that “[t]he CAA also

provides for the State to address emissions sources on an area-specific basis though such

requirements as reasonably available control measures (RACM) and reasonably available control

technology (RACT).” Mot. at 2(¶2), citing 42 U.S.C. §§ 7502, 7511a. The Agency also states

that,

[f]or each nonattainment area, the CAA requires the State to demonstrate that it

has adopted ‘all reasonably available control measures as expeditiously as

possible (including such reductions in emissions from existing sources in the area

as may be obtained through the adoption, at a minimum, of reasonably available

control technology) and shall provide for attainment of the nation primary

ambient air quality standards.’ Mot. at 2 (¶¶2, 5), citing 42 U.S.C. § 7502(c)(1).

The Agency indicates that its proposal is intended to meet Illinois’ obligation under the

CAA to submit a State Implementation Plan (SIP) addressing major sources of NO

in areas

designated as nonattainment with respect to National Ambient Air Quality Standards (NAAQS).

Mot. at 1 (¶1), citing 42 U.S.C. §§ 7502, 7511a. NO

is one of the two primary precursors to the

formation of ozone, and NO

is also a precursor to the formation of fine particulate matter

(PM

2.5

). Mot. at 2 (¶3). USEPA has designated two areas of Illinois as nonattainment for both

ozone

and PM

2.5

The Agency states that, by letter dated March 12, 2009, USEPA reiterated that Illinois

must still “address the findings of failure to submit the required ozone SIP element previously

identified by the USEPA. . . .” Mot. at 4 (¶12), citing 73 Fed. Reg. 15416;

see

Mot., Att. B

(letter from USEPA Acting Regional Administrator). The Agency states that USEPA’s letter

. Mot. at 2, 3 (¶¶4, 7, 8), citing 40 C.F.R. 81.314.

The Agency characterizes RACT as a “subset” of RACM. Mot. at 2 (¶6). The Agency

states that “RACT is defined as the lowest emission limitation that a particular source can meet

by applying a control technique that is reasonably available considering technological and

economic feasibility.”

., citing 44 Fed. Reg. 53762 (Sept. 17, 1979). The Agency further

states that the CAA requires Illinois “to adopt RACT rules for all areas designated nonattainment

for ozone and classified as moderate or above.” Mot. at 2 (¶6), citing 42 U.S.C. § 7511a.

The Agency argues that, by September 15, 2006, Illinois was required to submit “a SIP

demonstrating that sources specified under the CAA were subject to RACT requirements.” Mot.

at 3 (¶9), citing 70 Fed. Reg. 71612, 71652 (Final Rule to Implement the 8-Hour Ozone National

Ambient Air Quality Standard; Final Rule). The Agency states that, on March 24, 2008, USEPA

found “that Illinois, among other states, failed to make a RACT submittal required under Part D

of Title I of the CAA for its two moderate nonattainment areas.” Mot. at 4 (¶11), citing 73 Fed.

Reg. 15416 (Mar. 24, 2008);

see also

Mot., Att. A (letter from USEPA Regional Administrator).

The Agency further states that “[s]uch a finding starts the 18-month emission offset sanctions

clock and 24-month highway funding sanctions clock . . . and the 24-month clock for the

promulgation by USEPA of the Federal Implementation Plan . . . .” Mot. at 4 (¶11), citing 42

U.S.C. §§ 7509(a), (b), 7410(c).

For the eight-hour ozone NAAQS, the following jurisdictions comprise the greater Chicago

nonattainment area: Cook, DuPage, Kane, Lake, McHenry, and Will Counties, Aux Sable and

Goose Lake Townships in Grundy County, and Oswego Township in Kendall County. Mot. at 3

(¶7). The following counties comprise the Metro-East/St. Louis nonattainment area: Jersey,

Madison, Monroe, and St. Clair.

For the PM

2.5

NAAQS, the following jurisdictions comprise the greater Chicago nonattainment

area: Cook, DuPage, Kane, Lake, McHenry, and Will Counties, Aux Sable and Goose Lake

Townships in Grundy County, and Oswego Township in Kendall County. Mot. at 3 (¶8). The

following jurisdictions comprise the Metro-East/St. Louis nonattainment area: Madison,

Monroe, and St. Clair Counties and Baldwin Township of Randolph County.

emphasized the risk of sanctions and requested that the Agency and the Board expedite their

processes to adopt the ozone SIP and avoid those sanctions. Mot. at 4 (¶13), citing Mot., Att. B.

Specifically, the Agency claims “that if, by September 24, 2009, Illinois has not

submitted all of the required SIP elements,” the new source offset sanction will apply in the two

nonattainment areas, making it more difficult for new sources to locate there. Mot. at 5 (¶15).

The Agency further claims that, if Illinois has not submitted the required SIP elements within six

months after imposition of the first sanction, then Illinois will suffer highway sanctions. Mot. at

5 (¶16), citing 40 C.F.R. 52.31. The Agency also claims that, if Illinois has not submitted the

required SIP elements and received USEPA approval by March 24, 2010, then USEPA may

promulgate a FIP to replace the SIP elements that Illinois lacks. Mot. at 5 (¶17).

The Agency concludes by arguing that, “due to the impending date of September 24,

2009, so as to avoid the imposition of sanctions, the regulations need to be adopted in an

expedited manner.” Mot. at 6 (¶21). Specifically, the Agency requests that the Board proceed to

First Notice as expeditiously as possible. Mot. at 6 (¶23), citing 5 ILCS 100/1-1

et seq

. (Illinois

Administrative Procedure Act). The Agency expresses the belief that “the Board possesses the

information necessary for the Board to proceed to First Notice. . . .” Mot. at 6 (¶24). In the

event that the Board requires additional information, the Agency states that it “will fully

cooperate to expeditiously provide the same to the Board and its hearing officer.

DISCUSSION AND CONCLUSION

Section 101.500(d) of the Board’s procedural rules provides in pertinent part that

[w]ithin 14 days after service of a motion, a party may file a response to the

motion. If no response is filed, the party will be deemed to have waived objection

to the granting of the motion, but the waiver of objection does not bind the Board

or the hearing officer in its disposition of the motion. Unless undue delay or

material prejudice would result, neither the Board nor the hearing officer will

grant any motion before expiration of the 14 day response period. . . . 35 Ill.

Adm. Code 101.500(d).

Based on the circumstances described in the Agency’s motion, the Board finds that undue delay

would result from awaiting the expiration of the 14-day response period. In this regard, the

Board notes that, on March 24, 2009, in order to avoid undue delay, the hearing officer issued an

order directing any participant wishing to respond to the Agency’s motion to do so on or before

March 30, 2009.

Before deciding the motion, however, that Board notes that it received from Midwest

Generation, LLC (Midwest Generation) on March 20, 2009, a response to the Agency’s motion

(MG Resp.). Midwest Generation states that it has participated actively with both the Agency

and the Board in this rulemaking. MG Resp. at 1. Midwest Generation further states that it

“supports the Agency’s Motion to Expedite Review and urges the Board to adopt the proposal as

it has been amended over the course of the rulemaking as soon as possible.”

The Board also notes that it received from the Illinois Environmental Regulatory Group

(IERG) on March 26, 2009, a response to the Agency’s motion (IERG Resp.). IERG states that

it “supports the Illinois EPA’s Motion for Expedited Review.” IERG Resp. at 2.

Section 101.512 of the Board's rules addresses requests for expedited review.

See

35 Ill.

Adm. Code 101.512. Such requests must include, among other elements, “a complete statement

of the facts and reasons for the request.” 35 Ill. Adm. Code 101.512(a). In acting on a motion for

expedited review, the Board considers, at a minimum, “all statutory requirements and whether or

not material prejudice will result from the motion being granted or denied.” 35 Ill. Adm. Code

101.512(b). In addition, the Board will only grant a motion for expedited review consistent with

available resources.

See

35 Ill. Adm. Code 101.512(c).

In denying a recent motion for expedited review filed by the City of Galva, the Board

stated that its “limited resources in light of its current and future decision deadlines render the

granting of a motion for expedited review unlikely in all but the most dire circumstances.”

In the

Matter of: City of Galva Site-Specific Water Quality Standard for Boron Discharges to Edwards

River and Mud Creek: 35 Ill. Adm. Code 303.447 and 303.448, R9-11, slip op. at 3 (Feb. 5, 2009).

The Board can only conclude, however, that USEPA’s implementation deadline and the risk of

federal sanctions constitute “dire circumstances.”

The Agency’s motion for expedited review is

granted. The Board will proceed to adopt a first-notice opinion and order in this rulemaking as

expeditiously as it able to do so with its current resources.

IT IS SO ORDERED.

I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that

the Board adopted the above order on April 2, 2009, by a vote of 5-0.

___________________________________

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board