ILLINOIS POLLUTION CONTROL BOARD

December

6,

1984

It’I

 THE MATTER OF:

MAJOR

SOURCE

CONSTRUCTION

)

 R81-16

MODIFICATION

)

DOCKET

ATTAINMENT

AREAS;

PSD

)

OPINION

AND

ORDER

OF

THE

BOARD

(by

J.

Dumelle):

On

May

1,

1981

the Illinois Environmental Protection Agency

(Agency) filed a regulatory proposal outlining a permit program

for new and modified major stationary sources in both attainment

and nonattainment areas.

 Merit hearings were held on July 20 and

21,

 1981 in Springfield and Chicago, respectively, and again on

November

 2 and

6,

 1981 in the same locales.

 Economic hearings

were held on September 20 and 27,

 1982 in Chicago and Springfield,

the Economic Impact Study having been received on August

6,

 1982.

A final hearing was held on November 16,

 1982 in Chicago to

consider

 outstanding

 issues.

 At the outset of this rulemaking

the

subject

matter

was

separated

into

two

 dockets.

 The rules

pertaining to permitting new sources

 in attainment areas, the

Prevention of Significant Deterioration

 (PSD) permit program,

were assigned

 to Docket A.

 Docket B was reserved for the permit-

ting rules

 for major sources and modifications

 in nonattainment

areas,

commonly

 referred to as New Source Review (NSR).

The

rules

 for permitting sources subject to NSR were adopted by the

Board at 35

 Ill. Mm. Code 203 on July 14,

1983

 (53 PCB 45).

Federal review and approval of the same

 is still pending.

 This

Opinion

and

Order

 disposes of the remainder of this rulemaking,

that

Docket

PSD.

Section

110

Clean

Air

Act

(42

U.S.C.

7401

seq.)

(herein-

after

~ICAAVV)

requires

that

the

State

Implementation

Plan

include

permitting

program

for

new

sources

which

insures

that

(1)

national

ambient

air

quality

standards

are

achieved

and

maintained,

(2) that the applicability of the Section 111

new

source

 perform-

ance standards is reviewed, and

 (3) that the PSD program for

other states

 is not jeopardized by new sources

42

 U.S.C.

7410(a)(2)(D)(i)and (ii);

 (a)(2)(E);

 (a)(4).

 It further pro-

vides that the Administrator shall approve

 a State Implementation

Plan if it meets the requirements of Part C of the CAA relating

to prevention of significant deterioration of air quality and

visibility protection

42

 U.S.C.

 7410 (a)(2)(J)

Pursuant to Section 161 of the CAA, contained in Part C,

each State Implementation Plan “shall contain emission limita-

tions and such other measures as may be necessary,

 as determined

under regulations promulgated under this part,

 to prevent signif—

61-363

—2—

icant deterioration of air

quality

 in each

region

 (or portion

thereof)

 identified

 as unclassified or attainment areas.”

Part

 also

contains

 definitions

(42

 tl.S,C.

7479),

 the increments

and ceilings allowable under the PSD program

(42

 U.S.C.

 7473),

and the preconstruction permitting recpire~ents

~42

 U.S.C.

 7475)

included

 in the State Implementation Plan.

 The latter,

Section

 165,

contains

 specific preconstruction requirements,

and

prohibits the construction of

 a new source unless a permit has

been issued containing emission limits conforming to the remainder

 the part.

 It further provides that a proposed permit be

subject

review

 in accordance with the Section and that an

analysis he conducted

 in accordance with the regulations promul-

gated

 by the Administrator

the

 United States Environmental

Protection Agency (USEPA).

 At subparagraph (e)

(3)

 of this

Section,

 the Administrator is required to adopt regulations with

respect to

the

 analysis required, and

 given

 four mandates as

to

the

contents

of

 those regulations, most specifically pertain—

log

to

 air ~uaiity analysis.

In addition

 to instructing the Administrator of the USEPA,

Section

165

contains

certain

mandates

the

 owners and

operators

the

 new sources

and

the

reviewing

 authority,

be

it

the State

or

 the USEPA.

 For example,

the

owner

 or operator of

the new sources is required to demonstrate

that

the

 emission from

the

facility

 will not cause or contribute

air

 pollution

in

excess of any applicable emission standard

 standard of per—

forinance

under

the

 CAA and must agree to

conduct

 necessary monitor-

in~i.

Either

the

source’s

owner

operator

the

reviewing

authority

nust

undertake

air

quality

analysis

the

impacts

due

the

emissions

from

the

facility

and

any

resulting

from

associated growth in the area.

 It must

demonstrated

that

the

facility

will

utilize

the

best

available

control

technology

(BACT) before

 a permit

can

 be issued.

 There are,

 of course,

other

requirements

 such as those pertaining

increments

and

visibility

protection

included

Section

165.

Most

importantly

subparagraph

(d)

(1)

Section

165

requires

the

State

transmit

the

Administrator

“a

copy

each

permit

application

relating

to

a

major

 emitting facility received by such State and provide

notice to the Administrator

of

every

action

the

con-

sideration

such

permit.”

U.S.C.

7475

(d)

(1).

September

1980

the

Environmental

Protection

Act

(Ill.

Rev.

 Stat.

 1983,

ch.

 111½,

 pars.

 1001 et.

 seq.)

 (hereinafter

“Act”) was amended to include Section 9.1, with the

 p.irpose

of

avoiding duplicative, overlapping or conflicting state and federal

regulatory

systems.

The

General

Assembly

found

that

the

provi-

sions

the

CAA

and

 the regulations adopted thereunder providing

for the

PSD

program,

among

other

things,

could

not

conveniently

set

forth

the

Act.

Ill.

Rev.

Stat.

1983,

ch.

111½, par.

1009.1(a).

insure

 that the new source performance

 standards

(NSPS)

o1~ the

CAA~ which

are

necessary

part

 of the PSD program

(c.f.

U.S~.C, 7410)

are

consistent

both

the

state

 and federal

61-364

—3—

levals,

the

Act

 provides

that

the

provisions

Section

lii

the

CAA

“are

 applicable in this State and enforceable under this

~ct,”

III.

 Rev.

Stat.

 1983,

ch,

 111½,

 pars. 1009.1(b)

Section

9.1(f)

the

 enforcement and

permitting

 provisions

 for this

program

are

 restated,

 and the same are provided

for

 the national

e~rtissionstandards for hazardous air

pollutants

 (NESHAP) program,

the PSO

program,

 and the NSR program.

Specifically,

 subparagraph

Nf) provides

that:

No person shall:

1.

 Violate

any

 provisions

of

 Sections

 111,

 112,

165

or 173 of the Clean Air Act or

federal

 regulations

adopted pursuant thereto; or

2.

 Construct,

 install,

 modify or

 operate

 any equip-

ment,

 building,

 facility,

 source ~

 installation

which

 is subject to regulation

under

Sections in,

112,

165

or

173

of

the

 Clean

Air~Act

 except

in

compliance

 with the requirements

of

such

 Sections

and

federal

 regulations

adopted pursuant

thereto,

and

 such

 action

 shall

undertaken

 without

a

permit

 granted

by

the

Agency

in

violation

of

any

conditions

imposed

such

permit.

Any

denial

such

 permit or

any

conditions

imposed

such

a

permit

 shall

be

reviewable

the

 Board

in

accordance

with

 Section 40

this

 Act.

The Act provides for the Board to adopt regulations identi-

cal to those promulgated by the USEPA

for the NESHAPS

and

 NSPS

programs at Section 9.1(c).

 For the NSR

program,

the Act pro-

vides that the necessary regulations be adopted by October

1,

1981.

 The Board~sactions pertaining to those rules was dis-

cussed

 in the July

 14, 1983 Opinion and Order

 in Docket B, as

already mentioned

(53

PCB 45).

 As for the PSD program,

 the Act

only provides that the Board adopt regulations establishing

a

permit program meeting the requirements of Section 165

 of the

CAA, as amended, presumably in accordance with the purpose of

Section 9.1,

 Ill.

 Rev. Stat.

 1983,

 ch. 111½, par, 1009.1(d)

and

 (e).

As already discussed, Section 165 of the

 CArt has

 numerous

requirements which must be specifically contained in any state

plan.

 Likewise the federal regulations adopted thereunder,

 found

at 40 CFR 51.18 and 51.24, must be adopted.

At

40 CFR 51.18

(k)

the CArt’s mandate is

 restated:

Each plan

 shall

 adopt

 a preconstruction review permit

program or

 its ~~~~lent

to

 satisfy

the

requirements

of llO(a)(2)(D)(i)

 of the

CAA

 for any area

 designated

as attainment

 or unclassifiable for any national ambi-

ent

 air quality

 standard under

 40 CFR

 81.300

et

 seq.

Such a program or its ~~lent

 shall apply

to

 any new

major

 stationary

 source

or

 major

 modification

 that

would

 locate in a designated attainment or unclassifi—

61~365

—4—

able

 area and

 would

 exceed

the

significant

increments

specified

in

 Section

 III.

A.

of

the

 Emission

 Offset

Interpretation

Ruling,

Appendix

this

part.

~.Emphasisa1~ed~

The

federal

regulations

contained

CFR

51.24

require

that

‘the

state

 adopt definitions identical to those contained at

Section 51.24(h), with the admonitions that deviations

 in “wording

will be approved only

 the state specifically demonstrates that

the submitted definition is more stringent, or at least as stringent,

in all

 respects’~ Furthermore, throughout Section 51.24 the

federal regulations begin with “The plan shall provide

Not only are the areas for exercising discretionary options

minimal, hut as has been experienced

 in the NSR program, the

USEPA

is

reluctant

to

ap~rove regulations

 which

are

not

identical

in language, as wel1~,s~n substance,

Although

the

regulations

adopted by the Board

for

that

program

were

 more comprehensive,

coherent,

and

better

integrated

with

regulations

for

other

programs,

approval of those

 rules deviating from the federal

language

unlikely.

The

USEPA

 apparently disagrees

with

the

flexibility

provided to the owners and operators of new sources

 in nonattainment

areas, although the applicability of the NSR program was, at the

outset, more expansive than federally

required.

 Furthermore, the

flexibility

 was conditioned on a

demonstration

that

the

 lowest

emission

rates

would

 achieved in all cases and that air quality

would he improved or, at the least, maintained until emission

offsets become available.

 In effect these rec~uire.ment~are s~ore

stringent than the federal requirements,

and

they

are,

 especially,

more stringent than the bubble for new sources

being

 contemplated

by the USEPA.

 Nevertheless,

 the USEPA is proposing to disapprove

parts of the NSR regulations.

To fulfill the stated purpose of Section 9.1, the Board

would

have

adopt

regulations

identical

the

federal

regula-

tions.

Even

 if the regulations were adopted, the permit applica-

tions, proposed permits, and the review analysis would be subject

to federal review pursuant to Section 165(d)(1) of the

 CArt.

Currently the federal program is being administered by the Agency,

which means that the USEPA is involved directly with the permit

applications and approval process.

 State regulations, even if

approved federally, would only serve as an unnecessary second

step, delaying the process.

 It is

unlikely

that

Federal

review

could be accomplished concurrently within the state’s ninety day

statutory review period.

 Adopting a state scheme identical to

the

federal

scheme

would

thwart

the

purpose

 of the Act which

is

to avoid the existence of duplicative or overlapping State and

federal

regulatory

schemes.

legislative

 amendment may be neces-

sary to eliminate the PSD provisions of Section 9,1(d)

 so that the

purpose of the entire Section is served.

Finally, major amendments to the

 CArt are under consideration

Congress

and

probable

that

the

PSD

program

will

61-366

—5—

affected.

 Until such

time

the

CArt

 amended, Section 168 of

the

 CArt provides for delay in adopting a PSD program as part of

the Illinois State Implementation Plan.

That

Section

provides

Eor

 the federal regulations to remain in effect, which

 is the

very program the Agency is now authorized

 to implement on behalf

of the USEPA.

Sections

 and 9.1 of the Act as

 a whole provide the neces-

sary parts of the State Implementation Plan to satisfy the

 CArt.

Pursuant

 Section

 9, all sources of air pollution must have

permits and are prohibited from violating the air quality stan-

dards

 as adopted by the Board.

 Pursuant

 to Section 9.1 of the

rtct, the permits granted must insure that Section 165 of the CAA

and federal regulations adopted thereunder are not violated.

Combined, these sections along with the Board regulations prohib-

 iting

 interstate pollution and general permitting requirements

sufficiently establish a program equivalent to the PSD program

outlined by the federal ±egulationsto satisfy Sections 110,

 161,

and 165 of the CAA.

 The Board hereby dismisses Docket A of this

proceeding.

 The information, including the Economic Impact

Study, contained

 in the record

 is, of course available for another

rulemaking pertaining to PSD should one prove necessary

 in the

future.

IT

 IS SO ORDERED.

I,

 Dorothy

M.

 Gunn, Clerk of the Illinois Pollution Control

Board, hereby certify ~thatthe above Opinion and Order was adopted

on the

 day of

 1984 by a vote of

‘C—

/1

.,:~

Dorothy MiGunn

Illinois

Pollution

Control

Board

61-367