OPINION AND ORDER OF THE BOARD (by M.E. Tristano):

 This matter comes before the Board on a proposal for rulemaking filed by the Illinois Environmental Protection Agency (Agency) on November 30, 2001. The Agency proposed that the Board amend its permitting rules for the control of air pollution section 201.142 and add section 201.170 (35 Ill. Adm. Code 201.142). As these rules are not required by the Clean Air Act, the Agency proposed the rules under the regular rulemaking provision of Section 27 of the Environmental Protection Act (Act), rather than the fast track procedures of Section 28.5 (415 ILCS 5/27, 285).

 The proposal seeks to exempt certain smaller emissions sources from the requirement for owners and operators to obtain new construction permits that are currently required by Section 39 of the Act (415 ILCS 5/39 (2000)) each time the site of small emission units are changed.

By today’s action the Board adopts, with modifications, the Agency proposal for first notice. As two hearings have been held on the proposal, the Board does not presently plan to hold an additional hearing unless one is requested during the first-notice period under Section 5-40 of the Administrative Procedure Act.

PROCEDURAL HISTORY

The Board has held two hearings in this matter. The first was held in Springfield, Illinois on March 20, 2002, and the second in Chicago on April 9, 2002. At the first hearing two Agency employees presented testimony in support of the proposal. Included was the testimony of Rachel Doctors, Assistant Counsel and Mr. Harish B. Desai, Unit Manager of the State Operating Permit Unit of the Permit Section of the Illinois Environmental Protection Agency.

At the second hearing the Agency offered additional testimony and additional questions were asked by the Board.

Three exhibits were admitted at hearing: Exhibit 1. ERRATA Sheet by proponents; Exhibit 2. testimony of Mr. Harish Desai; Exhibit; and 3. Addendum to the testimony of Mr. Harish Desai.

There were no members of the public in attendance at the hearings. The Board received no public comments regarding the proposed rule.

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PROPOSAL DEVELOPMENT

 In 1997, Section 39 of the Act (415 ILCS 5/et. seq.) was amended to establish a lifetime permit program. Pursuant to P.A. 90-367, eff. June 17, 1998, the Board adopted revised rules providing that emission sources not subject to Section 39.5 of the Act or required to have a federally enforceable state operating permit (“FESOP”) shall have operating permits that are required to be renewed only upon request by the Agency or if circumstances warrant a revised permit. Amendments to General Permitting Provisions to Require Perpetual Permits for Certain Sources: Amendment to 35 Illl. Adm. Code 201, R98-13 (June 17, 1998). Circumstances requiring a revised operating permit or construction permit include change in ownership, construction or modification of an emission unit at a source pursuant to Section 201.169(c). “Construction” is defined as “commencement of on-site fabrication, erection or installation of an emission source or of air pollution control equipment.” 35 Ill. Adm. Code 201.102.

The Agency has identified a subset of emission units that despite having a lifetime operating permit, are required to repeatedly apply and obtain new construction and lifetime operating permits solely because of a change in location of the emission unit or units. The Agency believes that the new permit applications for portable emission units contain essentially the same information as previously submitted only modifying the address to the new location or site. The Agency has stated that there are approximately 500 emission units that could change sites at least once annually without increasing their emissions or changing their operations. Stat. of Reasons at 2. The Agency expects 15 to 20% of the eligible units will take advantage of this rulemaking. The amendments are intended to cover rock crushers, concrete batch plants, debris grinders, and portable generators as well as certain solvent recovery or tank cleaning operations. Stat. of Reasons at 7.

Pursuant to Section 39 of the Act, the Agency has 90 days to take final action on a permit application. This timeframe has caused problems for some owners or operators inhibiting them from accepting a contract or completing a contractual activity within the dates specified. The Agency suggests this is an unnecessary administrative burden on both parties. Stat. of Reasons at 2-3.

The Agency proposal would exempt an owner or operator from the requirements to obtain a new construction/operating permit for certain portable emission units solely based on location change. This concept of issuing a single permit to an emission unit that may operate at multiple sites is consistent with provisions for temporary sources under the Clean Air Act Permit Program (CAAPP). Section 39.5(231) of the Act provides: The Agency may issue a single permit authorizing emission from similar operations by the same source owner or operator at multiple temporary locations, except for sources which are affected sources for acid deposition under Title IV of the Clean Air Act. 415 ILCS 39.5(21)(a). Stat. of Reasons at 3.

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PROPOSAL OVERVIEW

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Section 201.142 – Construction Permit Required

 Currently, this Section prohibits persons from constructing or modifying emission units without first obtaining a construction permit from the Agency, unless the emission unit or units is exempt pursuant to Section 210.146. When an owner or operator changes the site of an emission unit or units, the owner or operator is required to obtain a new or revised permit. The Agency is proposing to amend Section 201.142 to reference the proposed new Section 201.170 exempting portable emission units from this requirement under certain circumstances.

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Section 201.170 – Portable Emission Units

 The Agency is proposing to add Section 201.170 which specifies conditions under which an owner/operator holding a lifetime permit for an emission unit may be exempted from obtaining a new construction or operating permit each time the location of the unit or units is changed or modified.

Section 201.170(a) outlines the criteria which must be met to be eligible for exemption.

These criteria are:

Section 201.170(b) specifies conditions under which the owner or operator may change the site of an emission unit without obtaining a new construction or operating permit pursuant to Sections 201.142, 201.143, and 201.169. There are six conditions to qualify:

At the second hearing, the Agency offered an amendment to Section 201.170(b)(5) which included a three day pre-relocation notification and clarifying language. Tr. 2 at 10-11. The Agency rejected the usage of E-Mail and alternative private delivery services because of processing concerns. Tr. 2 at 14-16.

Section 201.170(c) requires owners or operators of portable emission unit or units to obtain new or amended construction and operating permits containing special conditions for changing the site pursuant to Sections 201.142, 201.143, and 201.169 prior to the initial site change. It, also, mandates a yearly relocation of said portable emission unit or units to remain eligible for consideration under Section 201.170.      

 Another issue raised at hearing was whether the proposed rule should include a reference to 35 Adm. Code, Section 201.144 for existing units constructed or modified prior to April 14, 1972. The Agency rejected the need to offer such a reference inclusion. The Agency’s rationale was that the portable emissions unit or units subject to these proposed rule revisions would not be subject to review under 35 Adm. Code, Section 201.144. Rather, the permit application would be reviewed instead under 35 Adm. Code, Sections 201.142 and 201.143 for the new emission unit rules. The existing emission unit becomes subject to the “new” emission unit rules by virtue of its change in location. Tr. 2 at 10-11.

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ECONOMIC CONSIDERATIONS

 The only economic evidence currently in the record is that adoption of the proposed amendments would have a beneficial economic impact on both the Agency and owner/operators of portable emission unit or units. The Agency estimated savings to the State of $150,000 per year. Stat. of Reas. at 8. Owners and operators would still be required to pay a site fee of $100 for each location pursuant to Section 9.6(b) of the Environmental Protection Act. Prefiled Testimony of Desai at 6. No estimate was given as to savings benefiting the owner or operator due to more efficient permit processing for the portable emission units.

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CONCLUSION

 Based on the record developed to date in this matter, the Board finds that adoption of the following amendments, as requested by the Illinois Environmental Protection Agency, for the purposes of first notice is warranted. As two hearings have been held on the proposal, the Board does not presently plan to hold an additional hearing unless one is requested during the first-notice period under Section 5-40 of the Administrative Procedure Act.

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ORDER

The Board directs the Clerk to cause the filing of the following with the Secretary of State for first-notice publication in the Illinois Register.

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE B: AIR POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

SUBCHAPTER a: PERMITS AND GENERAL PROVISIONS

PART 201

PERMITS AND GENERAL PROVISIONS

SUBPART A: DEFINITIONS

Section

201.101  Other Definitions

201.102  Definitions

201.103  Abbreviations and Units

201.104  Incorporations by Reference

Section

201.121  Existence of Permit No Defense

201.122  Proof of Emissions

201.123  Burden of Persuasion Regarding Exceptions

201.124  Annual Report

201.125  Severability

201.126  Repealer

Section

201.141  Prohibition of Air Pollution

201.142  Construction Permit Required

201.143  Operating Permits for New Sources

201.144  Operating Permits for Existing Sources

201.146  Exemptions from State Permit Requirements

201.147  Former Permits

201.149  Operation During Malfunction, Breakdown or Startups

201.150  Circumvention

201.151  Design of Effluent Exhaust Systems

Section

201.170  Portable Emission Units

Section

Section

Section

Section

Section

Section

Section

AUTHORITY: Implementing Sections 10, 39, and 39.5 and authorized by Section 27 of the Environmental Protection Act [415 ILCS 5/10, 27, 39, and 39.5].

SOURCE: Adopted as Chapter 2: Air Pollution, Part I: General Provisions, in R71-23, 4 PCB 191, filed and effective April 14, 1972; amended in R78-3 and 4, 35 PCB 75 and 243, at 3 Ill. Reg.30, p. 124, effective July 28, 1979; amended in R80-5, at 7 Ill. Reg. 1244, effective January 21, 1983; codified at 7 Ill. Reg. 13579; amended in R82-1 (Docket A) at 10 Ill. Reg. 12628, effective July 7, 1986; amended in R87-38 at 13 Ill. Reg. 2066, effective February 3, 1989; amended in R89-7(A) at 13 Ill. Reg. 19444, effective December 5, 1989; amended in R89-7(B) at 15 Ill. Reg. 17710, effective November 26, 1991; amended in R93-11 at 17 Ill. Reg. 21483, effective December 7, 1993; amended in R94-12 at 18 Ill. Reg. 15002, effective September 21, 1994; amended in R94-14 at 18 Ill. Reg. 15760, effective October 17, 1994; amended in R96-17 at 21 Ill. Reg. 7878, effective June 17, 1997; amended in R98-13 at 22 Ill. Reg. 11451, effective June 23, 1998; amended in R98-28 at 22 Ill. Reg. 11823, effective July 31, 1998; amended in R02 -10, at ________ Ill. Reg_______, effective ___________.

SUBPART C: PROHIBITIONS

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No person shall cause or allow the construction of any new emission source or any new air pollution control equipment, or cause or allow the modification of any existing emission source or air pollution control equipment, without first obtaining a construction permit from the Agency, except as provided in Sections 201.146 or Section 201.170(b) of this Part.

(Source: Amended at _____ Ill. Reg. __________, effective ______________________)

SUBPART D: PERMIT APPLICATIONS AND REVIEW PROCESS

Section 201.170    Portable Emission Units

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