IN THE MATTER OF :
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
R06-25
PROPOSED NEW 35 ILL
.ADM.CODE 255 )
(Rulemaking -
Air)
CONTROL OF EMISSIONS FROM LARGE)
COMBUSTION SOURCES (MERCURY)
)
To
: see attached service list
NOTICE OF FILING
Please take notice that today I filed with the Office of the Clerk of the Pollution Control
Board the Comments of the Illinois Public Interest Research Group and the
Environmental Law and Policy Center In Support of Fast-Track Rulemaking, a copy of
which is er
y served upon you .
aaa AV
Dated: March 29, 2006
Keith Harley
Chicago Legal Clinic, Inc
.
205 W
. Monroe, 4°i Floor
Chicago, IL 60606
(312) 726-2938
(312) 726-5206 (fax)
kharley@kentlaw
.edu
RECEIVED
CLERK'S OFFICE
-_ I
MAR 2 9 2006
STATE OF ILLINOIS
Pollution Control Board
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R . Thompson Center
Suite 11-500
100 West Randolph
Chicago, IL 60601
Marie Tipsord
Hearing Officer
Illinois Pollution Control Board
James R . Thompson Center
Suite 11-500
100 West Randolph
Chicago, IL 60601
Gina Roccaforte, Charles Matoesian,
John J . Kim
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O . Box 19276
Springfield, IL 62794-9276
Sheldon A . Zabel, Kathleen C . Bassi,
Stephen J . Bonebrake, Joshua R . More,
Glenna L. Gilbert
Schiff Hardin LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, IL 60606
James T
. Harrington, David Reiser
McGuire Woods LLP
77 West Wacker Drive, Suite 4100
Chicago, IL 60601
Bill Forcade
Jenner & Block
One IBM Plaza, 40th Floor
Chicago, IL 60611
William A . Murray
Regulatory Affairs Manager
Illinois Office of Public Utilities
800 East Monroe
Springfield, IL 62757
N. LaDonna Driver and Katherine D . Hodge
Hodge, Dwyer & Zeman
3150 Roland Ave .,
P.O . Box 5776
Springfield, IL 62705-5776
Service List
Christopher W . Newcomb
414 North Orleans Street
Suite 810
Chicago, IL 60610
S. David Farris
Manager, Environmental, Health and Safety
Office of Public Utilities
- City of Springfield
201 East Lake Shore Drive
Springfield, IL 62757
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF :
)
R06-25
PROPOSED NEW 35 ILL.ADM.CODE 255 )
(Rulemaking - Air)
CONTROL OF EMISSIONS FROM LARGE)
COMBUSTION SOURCES (MERCURY) )
COMMENTS OF THE ILLINOIS PUBLIC INTEREST RESEARCH GROUP AND
THE ENVIRONMENTAL LAW AND POLICY CENTER IN SUPPORT OF THE USE
OF FAST-TRACK RULEMAKING
I . Introduction
The Illinois Public Interest Research Group and the Environmental Law and Policy
Center strongly support conducting this proceeding as a fast-track rulemaking pursuant to
415 ILCS 5/28 .5 and 35 IAC 102
.300 et seq . Fast-track rulemaking is required to meet a
November 17, 2006 federal deadline for Illinois to submit a mercury reduction
implementation plan to the U
.S . EPA Administrator . Failure to meet this deadline could
divest Illinois of its authority to develop a mercury reduction implementation plan and
lead to other sanctions
. Accordingly, the Illinois Pollution Control Board ("Board") has
developed a schedule to meet the November 17, 2006 deadline while still prov ding a full
and complete opportunity for public participation in developing the record on which a
decision will be based . In doing so, the Board is avoiding the risk Illinois will be
divested of its authority to develop a mercury reduction implementation plan, while still
offering substantial opportunities for public participation
. Accordingly, this is a well-
considered and legally appropriate exercise of the Board's authority .
RECEIVED
CLERK'S
OFFICE
MAR 2 9 2006
Pollution
ControlBoard
1
II
. The Illinois Environmental Protection Agency and the Illinois Pollution Control Board
Are Acting Properly In Structuring This Rulemaking As A Fast-Track Rulemaking
Pursuant to 415 ILCS 5/28 .5 .
U .S
. EPA's final Clean Air Mercury Rule ("CAMR") imposes a non-discretionary
duty on Illinois to submit a mercury reduction plan to the U .S . EPA Administrator by
November 17, 2006 . 70 Fed. Reg. 28649 . Although the federal rule allows Illinois to
impose mercury emission reductions beyond those required by the state budget, this does
not alter the November 17, 2006 deadline . Id. at 28632 . Simply, although Illinois is
given discretionary authority to require greater mercury reductions as part of its plan, it
has no authority to adjust the November 17th deadline for submitting its plan to the U .S .
EPA Administrator .
Failure to act by November 17th may divest Illinois of its authority to develop an
implementation plan at all . Id. at 28632. Failure to meet the deadline allows U .S . EPA to
impose its own plan on Illinois by binding, unilateral prescription . This is a sanction
because it divests Illinois of a plaiming authority it possesses if it acts by the November
17th deadline . In addition, under 42 U .S .C. section 7509(3)(A), a state's failure to make
"any" required submission can be subject to sanctions including withholding of " . . .all or
part of the grants for support of air pollution planning and control programs that the
Administrator may award under section 7405 of this title ."
There are strong legal and policy reasons supporting the CAMR mandate for states to
develop and submit mercury implementation plans by a deadline
. Allowing states to
require greater mercury reductions is consistent with the requirements of section 116 of
the Clean Air Act
. 42 U.S
.C
. section 7416 . Mandating states to submit their plans by a
fixed deadline ensures there will be clarity about which regulatory regime will be
2
effective
. It will enable U.S . EPA to review and begin the process for approving state
implementation plans in a coordinated manner, and will provide clarity for potential
participants in a mercury trading market
. Within individual states, for members of the
public, regulators and especially regulated entities, it avoids the confusion that will ensue
if November 17th passes and a state rulemaking is still ongoing
.
Because it is acting within the mandate of an existing federal rule that includes a
deadline, and because of the risk of sanctions for failure to act, the Illinois Environmental
Protection Agency ("IL EPA") acted properly in submitting its proposal for fast-track
rulemaking
. Similarly, the Illinois Pollution Control Board acted properly and within its
authority under the Illinois Environmental Protection Act when it issued an Order
establishing a schedule consistent with fast-track rulemaking and with CAMR's
November 17, 2006 deadline .
III . The Illinois Pollution Control Board Is Offering a Full and Complete Opportunity for
Public Participation In This Fast-Track Rulemaking
As a practical matter, there is no evidence suggesting any participant in these fast-
track proceedings will be denied a full and complete opportunity to participate in the
creation of the record on which the final rule will be based . The Board has made
provision for three public hearings that will proceed "day-to-day" as necessary to ensure a
full and complete opportunity for public testimony, the submission of exhibits and the
cross-questioning of witnesses
. Any participant can freely submit written comments and
documentary evidence that will become part of the record
. The entire record of the
proceedings is freely available on the Board's website
. Even prior to the submission of
the rulemaking proposal, IL EPA's website provided an open, comprehensive record of
3
the development of its proposed rule, and it conducted a number of public sessions as part
of its deliberative process .
Because of the measures taken by the Board and the IL EPA, it is difficult if not
impossible to imagine any threat of harm to public participation by virtue of using fast-
track . The real threat of harm is if Illinois is divested of its authority to develop an
implementation plan because it engages in a protracted rulemaking that is not concluded
by November 17, 2006 . While delay may be in the self-interest of some participants in
this process, it will not enhance the development of a full and complete record . It will
threaten Illinois' authority to develop an implementation plan as mandated by the federal
Clean Air Mercury Rule, as proposed by the Illinois Environmental Protection Agency,
and as appropriately implemented by this Board .
IV . Conclusion
The Illinois Public Interest Research Group and the Environmental Law and Policy
Center respectfully urge the Illinois Pollution Control Board to conduct this rulemaking
consistently with 415 ILCS 5/28
.5, and with the November 17, 2006 deadline imposed by
the federal Clean Air Mercury Rule .
Res ec ly Submitted,
/V
Keith Harley
Attorney for Illinois Public Interest Group
Faith Bugel
Attorney for Environmental Law and Policy Center
4
Keith Harley
Chicago Legal Clinic, Inc .
205 W . Monroe, 4th Floor
Chicago, IL 60606
(312) 726-2938
(312) 726-5206 (fax)
kharley@kentlaw .edu
Faith Bugel
Environmental Law and Policy Center
35 East Wacker Drive, Suite 1300
Chicago, IL 60601
(312) 673-6500
(312) 795-3730 (fax)
fbugel(u, elpc.org
5
CERTIFICATE OF SERVICE
I, KEITH HARLEY, an attorney, hereby certify that true copies of the foregoing
Comments were delivered on March 29, 2006 to the following :
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R . Thompson Center
Suite 11-500
100 West Randolph
Chicago, IL 60601
Marie Tipsord
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center
Suite 11-500
100 West Randolph
Chicago, IL 60601
and that true copies of the foregoing Comments were mailed by First Class Mail, by
depositing the same in the U
.S . Mail depository located at 227 West Monroe, Chicago,
Illinois in an envelope with sufficient postage prepaid, on March 29, 2006, to the
following :
Gina Roccaforte, Charles Matoesian,
John J . Kim
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P
.O . Box
19276
Springfield, IL 62794-9276
Sheldon A
. Zabel, Kathleen C . Bassi,
Stephen J . Bonebrake, Joshua R . More,
Glenna L. Gilbert
Schiff Hardin LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, IL 60606
James T. Harrington, David Reiser
McGuire Woods LLP
77 West Wacker Drive, Suite 4100
Chicago, IL 60601
Bill Forcade
Jenner & Block
One IBM Plaza, 40th Floor
Chicago, IL 60611
William A . Murray
Regulatory Affairs Manager
Illinois Office of Public Utilities
800 East Monroe
Springfield, IL 62757
N. LaDonna Driver and Katherine D
. Hodge
Hodge, Dwyer & Zeman
3150 Roland Ave .,
P .O. Box 5776
Springfield, IL 62705-5776
Christopher W
. Newcomb
414 North Orleans Street
Suite 810
Chicago, IL 60610
S . David Farris
Manager, Environmental, Health and Safety
Office of Public Utilities
- City of Springfield
201 East Lake Shore Drive
Springfield, IL 62757
Keith Harley
Chicago Legal Clinic, Inc
.
205 W . Monroe, 4th
Floor
Chicago IL 60606
(312) 726-2938
(312) 726-5206 (fax)
kharley@kentlaw
.edu
