May

13, 2009

Jack

Lavin,

Director

Department

of

Commerce

and

Economic

Opportunity

620

East Adams

Street,

S-6

Springfield,

Illinois

62704

Re:

Request for Economic

Impact

Study

for: Nitrogen

Oxide

(NOx)

Trading

Program

Sunset

Provisions

for Electric

Generating

Units

(EGU’s): New

35

III.

Adm.

Code 217.751, R09-20

Dear Director

Lavin:

On May 7, 2009, the

Board

accepted

for hearing an April

21, 2009

regulatory

proposal filed

by the Illinois Environmental

Protection

Agency

in

Nitrogen

Oxide

(NOx)

Trading

Program

Sunset Provisions for

Electric

Generating

Units

(EGU’s):

New 35 Ill. Adm.

Code 217.75

1, R09-20. I

am

writing

to request that your Department

conduct

an economic impact

study

concerning

this

proposal.

For reasons explained

below,

if

at all

possible,

we

would

appreciate your

response

to this request

no later than

June 30, 2009.

But,

due to

a

federal

court

ruling concerning the

federal CAIR

rules in

North

Carolina v.

USEFA,

531 F.3d

896

(C.A.D.C. Cir. 2008),

USEPA must

take

additional action

concerning its rules.

To solve the problem

of

applicability of

two

sets

of

rules,

in 40 CFR 51.123 (bb)(1)(i),

USEPA

has provided that states

such

as

Illinois

with

approved CAIR

programs may revise

their applicable

SIP so

that

the

provisions

of the NO,

SIP

Call Trading Program

do not

apply

to affected

EGUs.

IEPA’s

proposal

requesting

the Board to amend

the Illinois

rules

is

the

first

step to

revision of the SIP. IEPA

correctly

states that

EGUs must

comply

with two

sets of duplicative administrative

requirements

for the

2009

ozone

season

and

beyond: the Illinois

Clean Air

Interstate

Rule (CAIR)

requirements

at

Part 225

and the Illinois NOx

Trading Program at

Part 217. To

address and

remove the

duplication, the IEPA

proposes

to

sunset the provisions

of

the

NOx

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In its statement of

reasons, the IEPA

correctly states

that Illinois adopted

both the NOx Trading

Program

rules at 35

Ill. Adm.

Code

Part 217

and the

Clean

Air

Interstate

Rule

(CAIR)

at 35 Ill. Adm.

Code Part 225

after

adoption of similar

rules

by

the United

States

Environmental

Protection

Agency

(USEPA). USEPA

has approved both

sets of

rules

for inclusion

in the State Implementation

Plan

(SIP)

for ozone attainment.

As do the USEPA

rules,

the

Illinois CAIR provisions

as set forth

in 35 III.

Code

Part 225.Subpart

E include

a trading program

for

control

of NOx emissions

during

the ozone

season that replaces

the provisions

in

Part

217.Subpart

W for

EGUs

beginning

with the 2009 control

period (May

1

through

September

30)

and

thereafter.

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2

Trading

Program,

by

adding

a new

Part 217.75

1 to

sunset

the

rules beginning

with

the 2009

ozone

control

season.

The

Board

denied

an

JEPA

motion

for

expedited

consideration,

but

authorized

first-notice

publication

of

the proposal

without

comment

on

the

proposal’s

merits.

The

Board

stated

that it

simply

cannot

grant

expedited

consideration

to every

rulemaking,

noting

that

it

was currently

giving

expedited

treatment

to

three

other air

rulemakings.

But, the

Board

also

agreed

to

proceed

with

the proceeding

as quickly

as

possible.

Consequently,

hearings

are

scheduled

for

June 18,

2009

in Chicago

and

July 23,

2009

in

Springfield.

Since

1998,

Section

27

(b)

of the

Environmental

Protection

Act

has

required

the

Board

to:

(1) request

that the

Department

of

Commerce

and

Economic

Opportunity

(formerly

the

Department

of Commerce

and Community

Affairs)

conduct

a study

of

the

economic

impact

of

the proposed

rules.

The

Department

may

within

30 to

45 days

of such

request

produce

a study

of

the

economic

impact

of

the

proposed

rules.

At

a

minimum,

the

economic

impact

study

shall

address

a) economic,

environmental,

and

public

health benefits

that

may

be

achieved

through

compliance

with the

proposed

rules,

b)

the

effects

of

the

proposed

rules

on

employment

levels,

commercial

productivity,

the

economic

growth

of

small businesses

with

100

or

less

employees,

and the

State’s

overall

economy,

and c)

the cost

per

unit

of

pollution

reduced

and the

variability

of

company

revenues

expected

to

be

used

to implement

the

proposed

rules;

and

(2)

conduct

at least

one public

hearing

on the

economic

impact

of

those

rules.

At

least

20 days

before

the

hearing,

the

Board

shall notify

the

public

of the

hearing

and

make

the

economic

impact

study,

or

the

Department

of Commerce

and

Economic

Opportunity’s

explanation

for

not

producing

an economic

impact

study,

available

to

the public.

Such

public

hearing

may

be held

simultaneously

or

as

a part

of any

Board

hearing

considering

such

new

rules.

415

ILCS

5/27(b)

(2006).

There

is no

decision

deadline

in

this rulemaking,

but the

Board

intends

to

proceed

expeditiously.

The Board

has

scheduled

a hearing

on

this proposal

for

June

18 and

July 23,

2009,

and

due to

budget

constraints

does

not

intend

to

hold

a

third

hearing.

Under

these

circumstances,

the

Board

asks that

you

respond

to this

request

as

soon

as

you conveniently

can,

but

in any

event no

later

than June

30,

2009;

this

would

allow the

Board

to

give

the

public

the

20-day

notice

of

the

results

of

your decisionmaking

required

by Section

27(b) of

the

Act. If

I,

or

my

staff,

can

provide

you with

any

additional

information,

please

let

me

know.

---

3

Thank

you in advance for

your prompt response.

Sincerely,

cc: Warren

Ribley, DCEO

John T. Therriault,

Assistant

Clerk of the Board