ILLINOIS POLLUTION CONTROL BOARD

June

2,

1983

IN THE MATTER OF:

)

ALTERNATIVE CONTROL STRATEGIES,

)

R8l—20

FINAL RULE,

)

FINAL RULE

CHAPTER

2:

AIR POLLUTION.

)

Docket A

Ad~2~R~e. Final Order.

OPINION AND ORDER OF THE BOARD

(by J.

Anderson):

This rulemaking

is undertaken pursuant to Section 9.3(c)

of the Environmental Protection Act (the Act),

as amended by

PA.

82—0540 on September 16,

1981.

P.A.

82—0540,

known as

the

“Bubble Bill” or HB

1354, was designed to enable owners

and operators of air pollution emission sources, either indi-

vidually or collectively, to utilize the most economically

advantageous mixture of control strategies to achieve environ-

mental goals.

This usually involves overcontrolling at one

emission source and undercontrolling at another.

The statute

provides that the mixture of control strategies used in an

“alternative control

strategy”

(ACS) permit must provide

equivalent protection for the environment.

The basic concept

is that an ACS should have no negative impact on the environ-

ment and should be economically beneficial

to owners and

operators.

To insure that the unique issues involved in ACS

permits are adequately addressed,

Section 9.3 requires the

Board to promulgate standards for issuance of permits and

a

permitting program for sources utilizing alternative control

strategies.

The Board acknowledges with appreciation the role of the

late Vice Chairman of the Pollution Control Board,

Irvin G.

Goodman,

in the development of these regulations.

Mr. Goodman’s

insights and hard work on these regulations over a period of two

years contributed greatly to the Board’s understanding of the

possibilities and pitfalls inherent

in this unique approach to

air pollution control.

The Board also acknowledges with appreciation the role of

Board Assistant,

Ms. Patricia

F.

Sharkey,

as hearing officer in

this proceeding and for her assistance in the drafting of this

Opinion and Order.

52-311

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2

Auth

ori~andProcedHistory

Section

9.3(b) requires the Board to issue “interim regula-

tions” within 120 days after the effective date of P.A. 82—0540

through an expedited rulemaking process which bypasses Title VII

requirements

of the Act.

An interim rule governing Alternative

Control

Strategies was adopted by the Board on May 13,

1982.

The

purpose

of this expedited proceeding was ~o provide regulatory

giudance

which would enable owners and operators to begin to plan

and implement ACS to meet imminent compliance deadlines.

The Board initiated public comment on the interim rules

by circulating a “public draft” proposal and inviting comments

and alternative proposals.

The Illinois State Chamber of Com-

merce

filed an alternative proposal which was consolidated for

review with the Board’s initial proposal under Docket R81—20

on

September

16,

1981.

The Illinois

Environmental Protection

Agency (IEPA) offered another alternative proposal on October

9,

1981.

These three proposals were labeled Exhibits

1,

2,

and 3,

respectively,

in the record of the proceeding.

(Additional

amendatory language was proposed and entered into the record

in

the course of the proceeding.)

Hearings were held on R81—20

on Octobe.r

15,

16,

and 19, 198? to consider the merits of all

proposals before the Board.

First Notice of the Interim Rule was

published

in the Illinois Register on January 18,

1982.

The

Joint Committee on Administrative Rules issued

a certification

of no objection on May 11,

1982.

The Interim Rule, which

contained

elements of each of the proposals before the Board, reflected

the public comment and testimony received,

and

incorporated

the

comments of the Joint Committee on Administrative Rules, became

effective on May 20,

1982.

Section 9.3(c),

also adopted in P.A.

82—0540, mandated that

the Board replace the Interim Rules with Final

Rules no later than

December 31,

1982.

To

fulfill this mandate,

the Board proposed on

its own motion on July

1,

1982 that the Interim Rule be adopted

as the Final Rule.

Public comment was initiated by First Notice

publication in the Illinois Register on July 30,

1982.

Combined

technical and economic hearings were held on September 7 and

9,

1982.

The record in the interim rulemaking was consolidated with

this Final rulemaking record to avoid unnecessary duplication.

After consideration of this combined record and all additional

comments on the Final

Rule,

a Second Notice Opinion and Order was

entered on December

2,

1983 and sent to the Joint Committee on

Administrative Rules.

However,

in deference to comments made by

the Joint Committee,

the adoption and filing of this rulemaking

was delayed until

after an Economic Impact Study was received

and considered.

(For further explanation see the Board Opinion

and Orders of December

2,

1982

(p.2) and February 10,

1983.)

The

Board retained jurisdication over the rule while additional

hearings were held on March

7 and 11,

1983 to consider the Economic

Impact Study (EcIS) and technical issues surrounding Section 202.145

of the Final rule.

52-312

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3

After consideration of additional information presented in

the March hearings

,

the Board has divided this rulemaking into

two dockets.

This Opinion and Order on Docket A contains the

text of the Final

Rule,

as proposed for Second Notice on

December 2,

1982.

The Board

finds that both the EcIS and the

comments received on the EcIS support adoption of the rule as

proposed, with the exception of one provision.

(See discussion

elsewhere in this Opinion.)

Due to the procedural posture of this

rulemaking

(post—APA Second Notice)

and the Board’s stated concern

that

U.S.

EPA approve this rule as a “Generic Bubble Rule”

as soon

as possible, the Board orders that Docket A be filed with the

Secretary of State without delay.*

In addition, due to technical

and economic issues raised in the March hearings,

the Board

is

simultaneously ordering that Docket

B,

a proposal to amend Section

202.145 of this rulemaking, be published in the Illinois Register

consistent with APA First Notice procedures.

(See First Notice

Order, R81—20,

Final Rule,

Docket

B,

June

2,

1983.)

I.

Overview

Basically,

these regulations establish a permitting program.

They describe the standards for Agency issuance of an ACS permit,

as well

as the information which must be contained

in an ACS per-

mit application to enable

the Agency to make its determination.

Due to the nature of ACS,

several aspects

of the ACS permit pro-

gram differ from the standard permitting requirements contained

in Part

I of Chapter 2.

For example,

an ACS application must

provide a demonstration of “equivalence” to other existing

requirements with regard to emissions,

environmental quality,

and methods of compliance.

In addition,

each ACS emission

source must comply with unique

limitations contained in its

permit.

These limitations are predicated on the compliance

with all other emission sources

in the ACS.

Thus,

specialized

provisions are necessary for recordkeeping and reporting,

revision, renewal, and describing the responsibilities and

liabilities of participants in multi-person ACS.

*

Although the Board did receive additional comment

in the March

hearings requesting a delay in the filing of the Final Rule,

this

comment did not raise any new or substantial arguments supporting

this request.

This request appears to be based on a misperception

on the part of the industrial community that it will

be more

difficult to amend the substance of a Final Rule, once adopted,

than it is to amend an Interim Rule.

As the Board stated

in its December

2,

1982 Opinion this is simply not true.

The

Board recognizes that subsequent amendments to these rules may

be needed as experience is gained in using ACS, and the Board

by statute cannot reject consideration of any non—frivolous and

non—duplicitous amendatory proposal made in the future.

No greater procedural burden will apply to such a proposal than

would apply to a proposal to amend the substance of the Interim

Rule.

52-313

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4

Because ACS permits are new and potentially more complex

than other Chapter

2 permits,

the Board anticipates that exten-

sive communication between the permit applicant and the Agency

will occur prior to issuance of an ACS permit.

The regulations

have been drafted to provide the flexibility necessary to tailor

ACS permits to the variety of strategies which may be proposed.

In response to comments received from the Joint Committee on

Administrative Rules,

Section 202.110(g)

has been modified to

require the Agency to demonstrate a need for any additional

information.

The application information, the recordkeeping

and reporting, and the monitoring and testing provisions pro-

vide that the Agency may request any reasonable additional

information which may be needed to make

a determination and

insure compliance under a particular ACS configuration.

For

example, an ACS proposal may include non—traditional emission

sources,

such as fugitive emission sources, or mobile sources.

Although these sources present special problems and will

undoubtedly require extensive documentation and safeguards

to insure equivalency and compliance,

(such as ongoing monitoring

and evaluation of ACS involving open dust trades),

it

is

unnecessary to address these special problems in the Board

regulations.

The Agency is responsible for reviewing such appli-

cations on a case—by—case basis within the context of these

regulations, and for insuring conformance with the predicted

air quality impacts.

The economic impact of the ACS regulations

is clearly

beneficial,

as documented by the economic study.

The Economic

Impact Study, entitled “The Economic Impact of Proposed Regulation

R81—20:

Alternative Control Strategies:

Bubble Policy;

Doc.

No.

83/09”

(Ex.

2 Econ.

Hearings),

concludes that annual cost savings

ranging

from $7.8

(low estimate)

to $25.6 million

(high estimate)

in 1985 may be attributable to adoption of these

rules.

A

median annual cost saving of $19.7 million is projected for 1988.

The EcIS also projects an increase in state and local government

revenues,

as well as an increase in total employment in Illinois

by 554 to 3,357 workers by 1992 due to adoption of these

rules.

(See EcIS pp.

x—xiii, pp.

35—80,

pp. 127—134).

II.

Definitions

Chapter 2 definitions are made applicable to this Part.

(The Board notes that definitions are contained in both

Parts

I and II of Chapter 2.)

In particular,

the definition

of “emission source”

(Rule

101),

i.e.,

“any equipment or

facility of a type capable of emitting specified air contami—

nents to the atmosphere,”

is important in the ACS context

because trades under an ACS would focus on each “emission

source” rather than an entire plant or “source.”

It should

also be noted that the definition of “person”

(Rule

101)

includes any “agency, political subdivision of this State,

any other state or political subdivision or agency thereof,”

Thus, governmental bodies,

as “owners or operators,” may

participate in an ACS.

52-314

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5

Several new definitions are made applicable to this Part

only.

Notably,

“Actual Emissions,”

“Allowable

Emission,”

“Emission Baseline,”

“Potential to Emit,” and “Alternative

Control Strategy (ACS)” are essential terms in an ACS context.

Some of these terms may also be relevant to sources subject to

“Part XI:

Major Source Review Programs.”

However, those sources

should refer to definitions contained in that part.

Definitions

of “Major Stationary Source” and “Stationary Source” were proposed

to be included in the ACS rules by Illinois EPA.

However, because

of the ACS focus on “emission sources,” the Board believes these

definitions are irrelevant to this rulemaking.

III.

Standards of Issuance

Each of the six standards in Section 202.120 must be met

for issuance of an ACS permit.

Sections 202.120(a)

and

(b)

reflect the statutory constraints contained

in Section 39.1(a)

of the Act.

Section 202.120(c)

requires that methods for

determining compliance must be equivalent to those associated

with otherwise applicable requirements.

The term “environmentally

equivalent” has been replaced with the term “equivalent”

in

this section in response to the comment that environmental

equivalence is confusing with regard to methodology.

The function

of this requirement is to insure appropriate mechanisms for

determining the environmental equivalence of the ACS as mandated

by the Act.

Section 202.120(d)

states that certain regulations

cannot be superseded by an alternative strategy.

These are:

New Source Performance Standards

(Part IX), National Emission

Standards for Hazardous Air Pollutants

(Part X),

and the Major

Source Permit Programs

(Part XI).

The constraint with regard

to new sources is required by the Clean Air Act as interpreted in

Federal case law.

(See ASARCO,

Inc.

V.

EPA,

11 ERC 1129

(D.C. Cir.

1978).)

Section 202.120(e)

allows issuance of an ACS permit only if

U.S. EPA has not disapproved it due to the existence of a federal

enforcement action pending against an ACS participant.

U.S.

EPA

commented that they would prefer that issuance be conditioned on

U.S. EPA approval

in these cases.

While recognizing U.S.

EPA’s

concern about these particular ACS, the Board is persuaded that

the disapproval mechanism provides the best alternative

for

protecting the interests of the applicant,

the State, and the federal

government.

Section 202.120(e)

allows U.S.

EPA to disapprove

any ACS or compliance schedule “due to the existence of a federal

enforcement action pending against a participant.”

If U.S. EPA

cannot complete its review and make

a positive finding that the

ACS is acceptable under federal

law within the time allowed,

it is authorized under this language, which becomes federal law once

it is approved in the SIP,

to disapprove the permit simply due

to the existence of the enforcement action.

This should protect

the federal enfOrcement interest.

As

a practical matter,

an ACS

applicant is likely to prefer to grant a waiver of its right to

issuance of the permit and federal approval within the statutory

52-315

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6

180 days,

rather than to have

the permit denied,

Due to the

existence of the 180 day deadline for IEPA action on the ACS

permit

(see Section 39.1(e)

of the Illinois Environmental

Protection Act), the IEPA would have no choice but to deny

a

ermit

which had

not been approved by U.S.

EPA at the end of

180 days anyway.

By statute,

failure of IEPA to act after 180

days would result

in the “default” issuance of the permit as applied

for, a result which would undermine both the state and federal

review process.

Thus, the Board cannot write

a regulation which

grants U.S. EPA more review time, but can only make the existence

of

federal

disapproval

a bar to issuance.

tn

response to a U.S.

EPA comment during the First Notice

period on the Final

Rules,

a sixth standard,

Section 202.120(f)

has been added which prohibits an increase in emissions of any

pollutant which is either

listed

or regulated pursuant to Section 112

of the Federal Clean

Air Act,

governing National Emission Standards

for Hazardous Pollutants

(NESHAP’s),

The Interim Rule had

anticipated that the standards of “environmental equivalence”

would insure against any increases in a hazardous emission which

endangered health or the environment.

This would conceivably

have allowed for an increase of a hazardous emission in exchange

for a decrease of a more hazardous emission.

However,

this determination

of greater and lesser hazards in the area of hazardous pollutants,

where studies and conclusions are hotly debated, would be difficult,

if

not impossible, to make in the permitting process.

Given this

problem, the Board finds clear standards must be provided in the

rule.

The listed and regulated NESHAP’s pollutants are identified

by federal regulations, and thus provide a verifiable standard for

the permit review.

Under this rule no emission source may increase

emissions of a pollutant which is listed or regulated under federal

regulations promulgated pursuant to Section 112 of the Clean Air

Act at

the

time the ACS permit is being reviewed.

IV.

~pjica

t

nforrnation

In addition to specific information with regard to each

emission source,

the

application

must contain an analysis of

emissions,

environmental

quality,

and methods of

assuring compliance.

This analysis will provide the basis for the

Agency determiniation of compliance with

the

standards of issuance

arid the overall equivalence of the ACS with other regulatory and

statutory requirements.

In

each

analysis

(Sections 202.111,

202.112, and 202.113) the applicant must compare the ACS with

a “base case,” i.e., the emissions,

impacts, or methods which would

exist or be allowed under existing regulations.

52-316

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7

The analysis of emissions should compare ACS emissions

to the “baseline emissions,”

for each source involved in an ACS.

Contrary to the argument of one commentor,

the comparison of

baseline and ACS emissions for each emission source is necessary

to insure the equivalence and enforceability of the ACS.

Notably

U.S. EPA commented they will require submittal

of the emission

limitations applicable to each emission source in a “generic” type

ACS to insure federal enforceability.

Air quality analysis is

too cumbersome to serve as a mechanism for ongoing oversight of an

ACS or any other permit.

To insure that emission reductions relied on

for other purposes are not “double-counted” and that other unanticipated

effects will not accompany the ACS, the analysis must also

describe emission increases from emission sources outside the ACS

which may accompany the proposed ACS.

In response to comments,

the additional phrase “or affect” has been deleted from Section 202.111(b).

Although the Agency may consider any emission increase from an

outside source which affects an ACS,

it is not necessary to place

the responsibility for identifying such outside sources on the

ACS applicant.

The environmental quality analysis must address air qual-

ity impacts, risk to the public health and welfare, and other

environmental impacts associated with the proposed ACS.

Con-

trary to the argument of one commentor,

the requirement that

the ACS applicant describe any other environmental impacts

which may accompany the ACS is not overly broad.

The scope

of this analysis is mandated by the language of P.A. 82—0540

which requires that ACS provide “equivalent protection of the

environment.”

The effect of ACS emissions on the environment

must be equivalent to that of emissions which would otherwise

occur or be allowed to occur.

V.

~

One component of the environmental quality analysis required

of an ACS permit applicant under these regulations

is a compari-

son of air quality under existing regulations and under the ACS.

Generally, dispersion modeling is required to predict the impact

of the ACS.

However, because modeling

is expensive and may not

be necessary to insure air quality in some situations,

Section

202.112(a) provides that the Agency may exempt an emission

source from the general modeling requirement if any one of

three specified demonstrations are made,

First, Section 202,l12(a)(l) provides that if the pollutant

which is the subject of the ACS is not susceptible

to modeling

or if, due to its nature, modeling will not identify its air

quality impacts, the Agency may dispense with the modeling

requirement.

This,

for example, may apply to VOC or NO

ACS

where modeling

is often considered to produce ambiguous’~results.

While providing flexibility, this provision also includes

specific standards for the use of administrative discretion,

52-317

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8

Second,

Section 202.ll2(a)(2) provides an exemption from

modeling requirements for sources located in close proximity

to one another.

The rationale for this exemption is that the

accepted modeling techniques do not distinguish the impact of

an ACS trade made between such sources

as long as plume heights

remained relatively the same.

(Local impacts are primarily a

function of plume heights, while

long distance impacts are

primarily a function of the distance between

emission sources.)

Although there is discussion in the record of various other

distances

(R.

129—140), the Board is persuaded by the logic

supporting a 250 meter exemption.

The 250 meter distance

represents

a reasonable estimate of the distance that could

occur between the location of the actual maximum impact and

the nearest modeled receptor

if a receptor grid with 500 meter

spacing is utilized,

This is the grid spacing generally

accepted by U.S.

EPA for modeling.

Thus,

it should be con-

sistent with modeling demonstrations made

in the SIP and

should provide equivalent protection of air quality.

U.S. EPA has commented that this rule should be revised to

clearly indicate that it applies to TSP and

SO., sources.

The

Board finds this to be unnecessary.

Although this modeling

exemption may be most useful to TSP and SO, sources,

there is no

need to limit the exemption in this fashion.

U.S.

EPA also commented that they believe that a better “rule

of thumb” for the plume height criteria of the modeling exemp-

tion in Section 202.112(a) (2)

would be that emission increases

must always be higher than emission decreases.

Although this

would generally insure greater dispersion,

it would preclude

reasonable use of this exemption where an increase occurred

slightly lower than its off-setting decrease.

It would also

allow a great difference in plume heights to be exempted from

modeling so long as the increase was the higher.

The use of

the “not significantly different” plume height criteria both

provides reasonable flexibility and more accurately addresses

situations

in which modeling is likely to be irrelevant than

does the U.S.

EPA’s proposed language.

It is anticipated that sources qualifying under the 250

meter exemption will

be considered to fall within the U.S. EPA

“Generic Bubble” guidelines.

U.S. EPA has indicated that it

will not require individual SIP review of ACS permits which

fall within the “Generic Bubble” guidelines.

(See

46 FR 20552,

April

6,

1981

(Exhibit #10).)

Included in those guidelines

is

a modeling exemption for emission sources located within

a specified distance from one another

(100 to 250 meters).

The Board has provided the 250 meter exemption as well as the

alternative exemption discussed below.

It is anticipated

that both should meet U.S.

EPA “general bubble” guidelines.

52-318

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9

Section 202.112(a) (3)

contains an alternative exemption

from the modeling requirement which allows a permit applicant

to demonstrate that the differences

in location, plume height,

etc. are not likely to significantly affect ambient air qual-

ity.

This option will enable applicants owning emission

sources which are greater than 250 meters apart to demonstrate

that modeling

is unnecessary for their particular ACS.

A

permittee may need to perform limited modeling or monitoring

to demonstrate that significance levels will not be exceeded.

Because this exemption references the actual concern, i.e.,

the impact of the ACS on air quality,

it need not specify

distances between emission sources.

This option is provided

because there

is controversy within U.S.

EPA itself as to the

appropriate distance between sources and because testimony from

modelers

in the record of this proceeding revealed that

in certain

situations distances between sources cannot be correlated to air

quality impacts.

It

is anticipated that emission sources qualifying

under this exemption will fall within current “generic bubble”

guidelines and may be exempt from individual

SIP review.

Impacts that are to be considered “significant” are estab-

lished in Section 202.ll2(a)(3).

These levels are taken from

the U.S.

EPA Emission Offset Interpretive Ruling,

Appendix

S

to 40 CFR 51.18(k).

IEPA indicated in the record that these

are the significance levels they would refer to in determining

whether modeling is necessary.

(B.

286,

490.)

(Also see

Exhibit #17.)

To provide an enforceable standard for all

parties,

these levels are included

in the Board rules.

The steel companies argue that the significance levels

in Section 202.112(3) should be used only to specify what is

not significant, while allowing the Agency the discretion to

determine that higher levels are not significant for other

reasons.

They argue that the fact that one or more receptor

points on a modeling grid exceed threshold levels may not be

conclusive evidence of

a significant impact.

(See p.

14—15,

P.C.

#26.)

CBE argues that there must not be a significantly

greater impact at any receptor.

They argue that local monitor-

ing sites are not necessarily the areas of greatest impact.

(See p.

10, PC.

*33.)

Whenever specifying criteria there

is always a danger of being overly restrictive.

However, the

purpose of including specific criteria in this rule

is to

provide a quick and easily enforceable “screening test”

to

determine if modeling is necessary to protect the environment.

It is improper to consider such a mechanism valid if it indi-

cates no impact, but consider it questionable

if it indicates

some impact.

The method for proving there is an error in this

procedure is to provide modeling.

52-319

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10

CBE commented that the “screening tests”,

which provide

exemptions from modeling, should be used only where traditional

stack sources are involved; that the Board should set specific

modeling criteria for fugitive emissions;

and that the Board

should specify that emission sources use the best and most

appropriate models.

(See pp. 7-10,

P.C.

#33.)

To insure that

the characteristics of the emission source are considered in

each of the “screening” tests,

Sections 202.1l2(a)(1) and

(2)

have been modified to require such consideration.

Also, Sec-

tion 202.112(a)

has been modified to state that all dispersion

modeling must be based on the best and most appropriate models

for the pollutant and emission sources involved.

USEPA drafts required that all emission points included in

the ACS be within a specified distance from one another

to take

advantage of the “close proximity” exemption.

However, the justi-

fication for this position is unclear in light of the fact that

the focus of both the required modeling and the exemption is on

the “emission sources” involved in a particular trade, rather than

the entire ACS.

(See the definition of “Emission Source,” Rule

101, Chapter 2.)

For example,

under a given ACS sources A and B

may increase emissions on the condition that source C reduces

emissions to the extent necessary to offset both increases.

Since

the emission “trades” are between “A and C” and

“B and C,” any

change in air quality is a function of those

trades.

The distance

between sources which are not “trading” emission increases and

decreases is irrelevant if the effect of each trade within the

ACS is adequately considered,

On a related point,

Illinois EPA’s proposal would require

dispersion modeling only for “major sources.”

Although the fact

that a source is a major source is critical

in the Major Source

Review Program context

(R81—16),

it should not affect an ACS.

This is because an ACS is based on trades between individual

“emission sources” rather than entire “sources,” as noted above.

The correct focus

in these

rules is on the amount of emissions

and location of the individual

emission source.

VI.

Baseline

The establishment of the proper emission baseline for the

crediting of emission increases and reductions under an ACS was

hotly debated in this proceeding.

The Board’s initial proposal

(Exhibit

1) tracked the language of USEPA Region V’s “Generic

Bubble Rule”

and,

among other things,

related the baseline

determination to the data base relied on in the SIP.

The initial

Illinois State Chamber of Commerce proposals (Exhibits

2 and 2(a))

proposed that existing Board emission limitations or

“allowable”

emissions be used as the baseline for ACS determinations.

The

Illinois EPA

(Exhibit 3) proposed that the lesser of the actual

or allowable emissions be used.

The second amended ISCC proposal

(Exhibit 2(b))

largely adopted the approach recommended by the

TEPA; however,

it proposed that the definition of actual emissions

52-320

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11

“reflect those emission levels existing prior to reductions beyond

the requirements of Board regulations which resulted from the

installation of pollution control equipment changes

in process

procedures, materials or shutdowns.”

To resolve this issue,

it

is necessary to review the purposes of P.A.

82—0540 and the

underlying assumptions of the air pollution control program.

A.

Statutory_Purpose

The legislative intent of P.A. No.

82—0540 is stated in the

findings of the General Assembly in Section 9.3(a).

That section

indicates an intent to authorize alternative control strategies

which are

“environmentally equivalent to

strategies

required

by Board regulations or the terms of this Act” and “assure

equivalent protection of the environment.”

(Section 9.3(a)).

In both their testimony and comments, industry repre-

sentatives have argued that this language is an “explicit”

rcquirement that the allowable emission limitations contained

in Board regulations be used as the emission baseline for ACS

permits.

Far from being explicit, the statutory language does

not mention emission baseline.

The General Assembly did speci-

fically state that alternative control strategies must provide

protection for the environment equivalent to that which would

exist under Board regulations.

A strategy which is environmen-

tally equivalent to Board regulations or emission limitations

would not generally utilize the allowable emission limitation

as the emission baseline.

In

fact,

if one reads into the statute

a requirement that allowable emissions be used as the emissions

baseline, the statute would be internally inconsistent because

it would result

in environmental degradation.

Testimony in the

record indicated that it owners of emission sources for which

actual emissions were utilized

in the SIP demonstration were

permitted to calculate decreases

in emissions from the maximum

allowable emissions limit set by Board rules,

emissions would

actually increase and that,

as

a result, several

areas of the

state which are currently attainment areas or unclassified areas

would become non—attainment areas.

(R.

201,

441—445.)

The Economic Impact Study(EcIS) supports the conclusion

that defining the emission baseline as allowable emissions

“would for all practical purposes, reverse the intent of many

air quality regulations adopted in Illinois heretofore.”

(EcIS p.

xiv)

The study found that total allowable emissions in

Illinois exceed actual emissions by 46.3

for VOC, 154.6

for

TSP, and 72.4

for SO,.

(EcIS p.

xiv,

pp.

81—85)

Use of an

allowable emissions baseline would enable Illinois industries to

take “paper credit”

for this difference between actual and allowable

emissions.

Use of such “paper credits” in an ACS trade obviously

results

in an actual

increase in emissions, rather than emission

equivalence.

Thus,

although greater cost savings would accrue

to ACS applicants by use of an allowable emission baseline,

the

certainty of environmental degradation

resulting from the general

use of an allowable emissions baseline dictates

that

the Board

must prohibit it.

52-321

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12

B.

Lesser of Actual

or Allowable Emissions as the Baseline

As aptly stated by the Agency in the record of this pro-

ceeding:

“The major

focus of air pollution control efforts has been

and continues to be on what is actually happening,

that

is,

the measurement of actual pollutant levels,

the assessment

of who is causing or contributing to those

levels,

and what

reductions

in emissions are necessary to ensure attainment

and maintenance of the national ambient air quality standards.”

(B.

417.)

The use of the lesser of actual or allowable emissions as the

baseline

to insure environmental equivalence is dictated by

the language and structure of the entire air pollution control

program.

The Clean Air Act,

the Environmental Protection Act,

the

T3oard’s Rules* and the State Implementation Plan all have

as their stated goal

the preservation of existing air resources

and the achievement of the national

air quality standards.

The

emission baseline utilized in an ACS must be established such

that attainment and maintenance of these air quality goals will

not be jeopardized by emission increases projected under the ACS.

Although this does not mean the emission baseline used must

aL;ays be “actual emissions,”

it does require,

as

a minimum,

that no emission reductions

be credited under an ACS which

are necessary for the achievement and maintenance of the air

quality goals

in Illinois.

*As stated in the earlier Opinion,

the Board’s existing

Rule

102 of Chapter

2 is a direct prohibition on the discharge

of contaminants “either alone or in combination with contami-

nants from other sources” which will prevent attainment or

maintenance of the AQS.

In the Opinion of the Board accom-

panying adoption of Rule 102, the Board emphasized the goal

of ensuring the air quality standards:

“Because even the tightest emission standards cannot assure

that emissions are clean enough to breathe,

the unlimited

proliferation of sources in a relatively small area could

result in violations of the air quality standards even if

each source met its emission standard

...

Clompliance

with

•the emission standards

is a minimum;

it

is essential

that whatever measures are necessary,

subject to proof

regarding economic reasonableness in the particular case,

be taken to ensure that the air quality standards are met.”

(See April

13,

1972 Opinion of the Board,

R7l—23, p.

4—5.)

52-322

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13

The State Implementation Plan

(SIP)

is the “blueprint”

utilized by the State to “define the process by which air

pollution goals will be achieved.”

(Illinois SIP, Executive

Summary, p.

1.)

The original emission limitations adopted by

the Board in R7l-23 were designed to be

a component of the State

Implementation Plan.

Both the SIP and the Board regulations

were designed to achieve and maintain the federally established

AQS.

(See Opinion of the Board, R7l—23, p.2.)

The air quality

data, modeling, and projections utilized in the SIP were a part

of the record in R7l—23,

and were relied upon in the Board’s

decision.

(See Opinion of the Board, R7l—23, pp.

2,

11,

17,

19,

27—29,

32—33,

38,

42, 44).

Therefore,

the data used as the basis

for both the emission limitations and the SIP should provide the

best available tool for determining which decreases under an ACS

can be credited without disrupting the air quality program.

The SIP relied upon modeling which utilized the lesser of

actual or allowable emissions for emission sources.

(See,

for

example,

SIP Volume

2,

p.

721;

SIP Volume

3,

p.

813; and R.

198.)

The Board takes notice of testimony received in the R7l-23 and

R74—2 proceedings which outlined the methodology relied upon in

the development of the SIP and the emission limitations.

(See

the abstracts of these proceedings prepared by Marder and Asso-

ciates

(the “Marder Report”), pp.

1—28 to

1—30,

1—51 to 1—53.)

Briefly, the following method was used:

1) the Federal AQS

were taken as the air quality goal;

2) existing air quality

data was compiled;

3)

an emission inventory of Illinois emission

sources was compiled;

4) growth projections were calculated for

each source;

5)

the air quality data, the emission inventory

(with growth projections) and the proposed emission limitations

were plugged into a dispersion model;

6)

the model produced a

graph indicating the air quality which could be expected from

use of the proposed emission limitations under these specific

circumstances.

Simply speaking, this method used actual air

quality, actual emissions (generally),

and a set of projections.

Actual emissions and actual background levels form the baseline

for the calculation of the appropriate allowable emission limita-

tion.

Thus, to assure the environmental equivalence of ACS

emissions,

it is necessary,

as a general

rule, to utilize the

lesser of actual or allowable emissions as the baseline for cal-

culating increases and decreases which will have an equivalent

effect.

C.

Allowable Emissions as the Emission Baseline

Use of the allowable emission limitations as the emission

baseline in ACS cannot assure achievement and maintenance of the

State’s air quality goals.

If the allowable emission rate is

substituted for actual emissions as the baseline in the modeling

equation described above, either the AQS would not be met or the

allowable emission limitation would differ from that in the Board

regulations.

The use of the allowable emission rate as the base-

line in general for emission sources using this Part would simi—

52-323

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14

larly distort the attainment equation and thus would not be

environmentally equivalent to existing regulations.

It is probable that pollution would increase if allowable

emissions were used as the baseline for ACS because increments

of emission reductions take on an economic value under an ACS.

If a banking system is eventually adopted, even emission sources

which are not involved in an ACS could “bank”

credit for an

artificial emission reduction equal to the currently unutilized

emission increment or the difference between their actual and

allowable emissions.

Thus,

use of an allowable emissions base-

line would create an economic incentive for emission sources

to utilize or “bank” currently unutilized emission increments

up to the maximum allowable emissions.

An increase in actual

pollution

is inevitable under these circumstances.

Such an

increase would be contrary to the equivalence intended by P.A.

82—0540 and the basic concept that ACS should be neutral.

D.

Mechanism for Demonstrating Equivalent Air Quality

Industry argues that an air quality analysis demonstrating

equivalent air quality would provide an adequate mechanism for

insuring “environmental equivalence.”

(See P.C.

#26,

#28.)

This is incorrect.

The very reason for having emission limita-

tions is the fact that air quality demonstrations do not provide

an adequate administrative and enforcement mechanism.

Modeling

and monitoring are too cumbersome and expensive to be performed

on a regular basis to insure continued compliance.

The admin-

istration of permits utilizing only air quality demonstrations

to show environmental equivalence would be unworkable.

Modeling

and monitoring are also less reliable indicators with regard

to the impact of a particular source or group of sources.

E.

More Representative Time Period

Several witnesses in this proceeding expressed concern that

businesses which are currently operating below their normal pro-

duction capacity would be penalized by use of an actual emission

baseline which reflected current conditions.

To insure that this

does not occur, the definition of actual emissions has been

drafted to require the Agency to utilize a more representative

time period upon finding that data from the preceding two years

does not represent normal source operation.

The burden of

demonstrating that another time period

is more representative

is on the permit applicant.

To clarify a point raised in the

comments,

“normal operations”

refers to historical operations,

rather than hypothetical operations.

If this were not the case,

a “paper” credit would exist for the increment between actual

operations and hypothetical operations,

52-324

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15

On a related point,

ACS permits should retain the same

degree of flexibility as a regular permit.

The use of actual

emissions as

a baseline should not be construed as a new lim-

itation on hours of operation or production levels.

For example,

an applicant may propose that emissions be calculated as a

function of units of production or process weight

(R.

203—205).

“Process standards”

such as these are currently used in Chapter

2,

e.g.,

Rule 203,

The calculations made from the baseline do

not create any new prohibitions on activities which are other-

wise allowable under existing permits.

Contrary to the argument

of one commentor, these rules do not “cap” existing emissions

nor usurp business decisions.

(P.C.

#26.)

Unlike the proposal

which the Board rejected in R79-3, the ACS provisions of the

Act and regulations allow businesses to voluntarily enter into

agreements

to trade emission increases and decreases.

No busi-

ness is required to do so, and business discretion is expanded,

not reduced.

The limitations that apply to a business that

decides to utilize an ACS are

1)

that equivalent protection

oF the environment be assured, and 2)

that reductions which

have

bee:n committed to “offset” ACS increases be maintained.

The first limitation is required by the Environmental Pro-

tection Act;

the second arises as a result of the contract

existing between persons utilizing an ACS.

VtI.

Additional Creditable Reductions

Notwithstanding the general baseline rule, there

is an

inequity created by disallowing emission reduction credits for

reductions achieved by virtue of pollution controls implemented

at a time or in a situation where ACS were not available.

Although it

is impossible to resolve all inequities, Section

202,105(b)

limits this inequity to the extent possible consis-

tent with the mandate of “environmental equivalence.”

Section

202.105(b)

creates an exception allowing emission reductions

to be credited under an ACS to the extent that

1) they were

achieved as a result of actions taken

to reduce emissions,

2)

they reduced emissions below required levels, and

3) they

were not relied upon by the Agency in the compliance year

demonstration under the SIP.

Such emission reductions are

creditable only “to the extent” that they meet the stated

conditions.

Thus,

that portion of a reduction which is

attributable to other factors or was predicted and relied

upon in the SIP is not creditable.

These three conditions,

taken together, provide an equitable approach to crediting

emission reductions which would not have been achieved but

for actions taken to reduce emissions beyond what is normally

required.

At the same time, the condition that an emission

reduction cannot have been relied on in the SIP demonstration

insures that the crediting of these reductions will not ii~iter—

fere with the State’s achievement of air quality goals.

By

crediting emission reductions whenever these conditions have

been met, this provision should encourage owners of sources

to reduce emissions as quickly as they are technologically

capable of doing

so,

52-325

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16

Two commentors suggested that Section 202.105(b)

be re

worded to state that emission reductions are “creditable to the

determination of actual emissions,” rather than “creditable under

an ACS.”

(pp.

23,

P.C.

#31; pp.

3,

Attachment to P.C.

#28.)

The

suggested rewording has several problems.

First,

the suggested

language is less rather than more clear.

Second,

it suggests

a

more limited concept.

Subsection

(b) provides

a framework for

the crediting of all emission reductions, rather than simply a

supplement to the computation of the actual emission baseline.

An increment of emission reduction should be creditable as an

emission reduc tion for emission sources using either an actual

or allowable emission baseline,

subject,

of course,

to the

limitation in Section 202.105(b)(2) that a reduction is creditable

only to the extent that

it takes emissions below the requirements

of Board regulations.

A.

Designcdto Reduce Emissions

Many of the comments received during the First Notice period

focused on the prerequisites to utilization of Section 202.105(b).

At

least one commentor argued that the “designed to reduce emission”

requirement is

a “motive test” which is both inappropriate and

unenforceable.

(P.C.

#28.)

This provi sion was not designed to

probe the permittee’s

intent.

Rather,

it was designed to insure

an air quality impact equivalent to that which would have otherwise

existed.

Under the existing rules, many reductions occur which

accrue to the benefit of the general public both in terms of

cleaner air and in improving the State’s margin for growth.

ACS

make it possible for this increment of air quality improvement to

accrue to the benefit of a private operator who can offset this

“naturally occurring” reduction with increases which would not

otherwise have occurred.

This would create a negative environmental

impact which is pro hibited by the statutory requirement of

equivalence.

However,

the ACS concept

is intended to allow

owners and operators to benefit from the creation of reductions

which would not have otherwise occurred.

For example,

if a piece

of equipment which would normally have to be replaced after ten

years

is replaced after five years with cleaner, new equipment,

the owner/operator has created

a reduction (of five years

in

duration) which would not have occurred except for the purpose of

creating an ERC.

Although determining the purpose for which an

action

is taken requires individual review of the situation, it

need not be a subjective decision.

Furthermore, the fact that

other factors

(such as economic benefits) influence the decision

does not necessarily mean

•the reduction cannot be credited.

To

make

it clear that the creation of an emission reduction need not

be the sole reason for taking

the action,

but must be deter

minative,

the language of Subsection 202.105(b) (1)

has been

modified to allow credit for emission reductions “which would not

have occurred but for the purpose of creating an emission reduction.”

52-326

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17

B.

Relied Upon in the SIP

Both industrial commentors and CBE have argued that the

“relied upon

in the SIP” parameter is problematic.

Industry

argues that the SIP was never intended to be used for this

purpose;

that it is too vague to be referenced as a standard

(e.g., categories of reductions are often relied upon);

that

this provision over-delegates authority to the Agency;

and that,

minimally,

only reductions “necessary”

to show attainment should

be unavailable.

On the other

side, CBE argues that actual air

quality and therefore actual emissions,

not what was relied on

in the SIP,

must serve as the maintenance strategy in attainment

areas due to the structure of the PSD increment program;

that

emission reductions made prior to the SIP monitoring should not

be available because they were reflected in the monitored back-

ground or basis

of the SIP;

that uninventoried sources should

be excluded from ACS permits until they are brought into the

inventory;

and that sources

in NAA’s without a SIP demonstrating

attainment should not be permitted to participate

in an ACS.

In its comments,

the IEPA agrees that the SIP criteria is

problematic, but states that it should be implementable within

the administration of the permit program.

The Agency states

that the actions on which it has relied to predict attainment in

the SIP are for the most part categorical rather than facility

specific,

for example:

1)

reduced emissions as

a consequence

of improved maintenance procedures, and

2) reduced fugitive

emissions through a reasonable fugitive control program.

The

Agency states it would also look at the assumptions underlying

the SIP demonstration as reflected in ambient air monitoring or

typical

industrial practice, and, with regard to specific facil-

ities,

it would primarily look at the presence of equipment or

control devices in the emission inventory.

(P.C.

#31.)

1.

The SIP as

A Decision-Making Standard

Recognizing the limitations of the SIP, the proposed

rule does not rely on the SIP inventory for the definition of

baseline emissions.

As a general rule,

actual emissions are to be

used as the baseline,

The SIP is only referenced to determine if

additional emission reductions, which are claimed to have been made,

were relied upon as

a part of the State’s air quality strategy.

For example,

if the SIP assumed the replacement of older equipment

with newer, cleaner equipment for a particular industry and the

State relied on that reduction as

a part of the demonstration,

the increment of reduction attributable to that action could

not be used as an ACS emission reduction credit by sources in

that industry.

The use of the SIP that is anticipated by this

rule,

and that the Agency has indicated it would make,

should

be of a general, but verifiable, nature.

52-327

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18

Given the fact that the SIP demonstration must include

a

certain margin for error

in its projections,

it would be unreal-

istic to say that only those reductions which were absolutely

necessary to show attainment or maintenance should be considered

to have been “relied upon.”

(See P.C.

#26.)

However, the burden

of proof with regard to reliance in the SIP is on the Agency.

At least one comrnentor argues that the reference to the

reductions relied upon

in the SIP in Section 202.105(b)(3)

represents an illegal

delegation to the Agency of the author-

ity to establish emission control requirements that are more

stringent than the Board’s regulations.

(P.C.

#26,)

In

Commonwealth_Edison Co.

v.

Pollution Control Board,

343 N.E.

2d 459,

461

(1976), the Illinois Supreme Court upheld a Board

rule authorizing the Agency to make case—by—case determinations

altering the otherwise applicable air quality requirements in

accordance with the Board—prescribed standards of “justified

by necessary economic and social developments and will not

interfere with or become injurious to human health or welfare.”

Section 202,105(b) (3) contains several

similar and,

in fact,

more definite standards,

Specifically,

a reduction must have

been

1)

“relied upon,.”

2)

“in the State Implementation Plan”

(which is a fixed and verifiable public document), and 3)

“to

demonstrate compliance with the ambient air quality standards”

or “maintenance of air quality.”

Section 202,105(c) provides

additional

insurance that the Agency’s case—by—case determina-

tions follow the prescribed standard by placing the burden of

proof on this issue on the Agency.

Lastly,

all Agency permit

determinations are reviewable by the Board under Section 40

of the Environmental Protection Act.

As written,

Section

202,l05(b)(3) provides both specific standards and procedural

safeguards adequately limiting Agency discretion.

U.S. EPA commented during the First Notice period on the

Final Rule that Section 202.105(c)

should be rewritten to make

it clear that the Agency must demonstrate that an ERC was not

relied on in the SIP in order to approve the permit,

rather than

demonstrate that an ERC was relied upon in order to disapprove

it.

To clarify the Agency’s responsibility to make a determination

with regard to reliance

in the SIP, rather than allow the

possibility that a permit could issue with no evidence on this

point,

the second sentence of Section 202,105(c)

has been changed

to read as follows:

“However,

for the purpose of subsection

(b)(3)

it shall

be the responsibility of the Agency to demonstrate

that the SIP demonstration either did or did not rely upon the

emission reduction in question, whether from the particular

emission source or the category to which it belongs~” Although

U.S.

EPA suggests that a “factual showing” be required,

it is

unclear what is meant by a “factual” showing with regard to

predictions made

in the SIP.

The required “demonstration” should

serve the same

function.

52-328

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19

2.

~~p~ibility_With

PSD Program

CBE argues that the additional creditable reductions

referred to in Section 202.105(b)

should not be available to

emission sources located in attainment areas because actual

emissions form the baseline for the PSD increment program.

If an industry took steps to improve air quality beyond the

“maintenance” level reflected in the SIP, that increment of

reduction would be added to the growth increment for new in-

dustry under the PSD program.

Therefore,

there is no apparent

inconsistency in providing that such a reduction can be used

for ACS purposes under these rules.

The PSD rules were not

intended to favor new industries over existing industries, but

simply to insure a margin for growth.

As written, the proposed

rule for additional creditable reductions contains adequate

safeguards

for maintenance of

a growth increment.

Of course,

a single emission reduction cannot be “double—counted” or used

both to offset new growth and ACS increases.

This “double-

counting” is prohibited by Section 202.111(b) and the Standards

of Issuance.

On a related point,

several commentors have pointed

out that both the Environmental Protection Act and the Federal

Clean Air Act require maintenance of air quality, as opposed to

just attainment of the AQS,

in attainment or clean areas.

One

of the standards of

issuance, Section 202.120(b),

states that

the impact of an ACS must be environmentally equivalent to that

which would otherwise be achieved and maintained.

However,

the

former proposed Section 202,105(b)(3) referenced only compliance

with the AQS and could be interpreted as allowing all attainment

area sources to utilize an “allowable” emissions baseline.

This was not the Board’s intention.

To remedy this,

Section

202.l05(b)(3) has been amended to reference “maintenance of

air quality” for areas other than non—attainment areas

(i.e.,

attainment and unclassified counties).

3.

Uninventoried Sources and Emission Levels Used

in the SIP

Monitored and modeled background emission levels form

the basis of the SIP.

Therefore,

emission reductions achieved

prior to or at the time of such monitoring are included in the

SIP and must be considered to have been “relied upon”

to project

attainment or maintenance.

Also, although not individually

identified, the existence of a certain number of malfunction

emissions and uninventoried sources are presumed in the

s:r~

calculations.

Projected emissions from these sources hav~

been included in the monitored background

levels.

(R.

373)

While these projections may be inexact, the margin of error

is limited by the fact that most large emission sources are

likely to have been inventoried.

7~nuninventoried source

should be considered subject to the same categories of

“relied upon” reductions as are similar inventoried sources.

52-329

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20

4.

NAA’s

for Which the SIP Does Not Demonstrate

Attainment

CBE points out that there is at least one NAA in Illinois

(Southeast Chicago)

for which the State has failed to specify

and commit to controls which will bring that area into attain-

ment (of the TSP AQS) by the deadlines mandated in the Clean Air

Act.

CBE argues that emission reductions made

in these areas

should not be allowed to be used in ACS because they are needed

for the attainment demonstration.

This argument implies that

these emission reductions would exist if the ACS were not avail-

able.

But,

to the extent that an ACS permit is based on an

“actual” emission baseline,

it would always involve the creation

of

a new emission reduction which would not have occurred but

for the ACS.

Thus,

an ACS based on actual emissions would not

“usurp” ERC’s which would otherwise be available for the SIP

demonstration. In

fact,

the availability of ACS in such

a NAA

may enable sources that are currently unable to reduce emissions

at one emission source to over—control another emission source

to come into compliance.

This could speed the attainment of the

AQS

for the area.

If further reductions are needed in an area to show attain—

ment by mandated deadlines,

substantive regulations requiring

those reductions will

be applicable to ACS permittees just as

they are to other permittees.

(R.

356,

492.)

Under Section

202.105(a), the emission baseline is the “lesser of the actual

emissions or the allowable emissions prescribed by this Chapter.”

Thus,

if the allowable emission limits are made more stringent,

the emission baseline

for ACS permits

is reduced and the ACS

permit must be revised pursuant

to Section 202.160(a)(2).

An

example of such an emission limitation would be future RACT

requirements.

CBE is correct in stating that the control

obligations

for ACS

articipants cannot be regarded as fixed

any more than the obligations of other permittees are fixed.

(See Rule

103(g)

of Chapter 2 re: the Agency’s authority to

revise permits upon the revision of the Act or Chapter

2

regulations.)

A unique problem does arise, however,

if an ACS participant

in a NAA which does not have a SIP demonstration proposes to

utilize an emission baseline which includes credit for reduc-

tions above its actual emissions pursuant to Section 202.105(b).

The difficulty is that

no SIP demonstration exists for such an

area and, therefore,

the condition in Section 202.105(b) (3)

cannot be complied with.

Absent a SIP demonstration, the

reductions which are required for attainment have not been

identified and thus “surplus” reductions that are not necessary to

assure attainment cannot be identified.

To clarify this and insure

that ACS permits do not create

an actual increase in emissions in

an area that is known to have unhealthy air, Section 202.105(d)

has been added to indicate that an emission reduction shall be

creditable beyond the baseline in subsection

(a) only if the

State Implementation Plan demonstrates attainment for the area

and pollutants involved by the compliance year.

52-330

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21

C.

Emission Reduction Credits from Shutdown Emission Sources

The proposal for the Interim Rule did not address the use of emission

reduction credits obtained from the shutdown of an emission source

because the Board felt that the issue had not been adequately

discussed in the record.

However, comments received during the

First Notice Period indicate that a clarification of the appii~

cability of the interim rule to shutdowns is necessary.

Some of

the arguments presented for crediting reductions from shutdowns

are that they represent a large number of available emission

reduction credits; that several industries have relied on the

availability of these credits;

and that to disallow these

credits would create an incentive for keeping older,

dirtier

plants and lines in service longer.

One commentor argues that

owners of emission sources have a property “right” to the emis~

slon increment and that State denial

of the use of this incre-

ment

is an unconstitutional

“taking” of property.

(P.C.

#26,)

Another commentor argues that reductions from a shutdown should

be creditable only if the plant or line is shut down before the

end of its expected life and that such reduction credits should

he limited

in duration to the difference in time between its

actual shutdown and its expected life.

(P.C.

#32,)

In response to these comments, Section 202.l05(b)(l)

in

the Interim Rule was amended to include shutdowns.

An emission

reduction created by the premature shutdown of an emission source

is not essentially different from that created by the modification oi~

process,

materials,

etc.

The duration of an ERC created by

a shutdown is determined by the duration of the ACS permit,

as

is the duration of any other emission reduction credit,

The

fact that an emission source is permanently shut down does not

mean it creates

a permanent ERC.

Rather,

an emission reduc-

tion credit i~available only in the context of the Board’s

permit rules and from permitted emission sources.

If a source

is prematurely shut down in order to create an emission reduc~

tion credit,

that emission source may be issued a “zero—discharqe~

ACS permit.

Section 202.145

in the Interim Rule was also amended

to

indicate that the duration of a permit and its ‘renewability

is

linked to the life expectancy of the emission source,

This

is

essential in order to preserve the “environmental equivalency” of

the ACS over time.

For example,

if

a product line is shut down three

years early, under its “zero discharge” permit,

its ERC

can be used to offset emission increases for three

years.

If

it

is shut down ten years early,

it can participate in a five

year ACS permit and renew the permit for an additional five

years.

When the lifetime of the emission source is exhausted,

the ERC is also exhausted and the ACS permit must be revised,

The burden of proving the useful life of the emission source

is on the applicant.

52-331

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22

The economic impact study (EcIS)

reviewed and quantified

the annual

cost—savings and environmental effects attributable to

the general

useful life limitation.

The study projected that

elimination

of the useful

life

limitation would increase cost

savings in 1988 by $11.8

(low estimate)

to $16.1 million (high

estimate).

However,

it also found that the useful life limitation

would avoid air quality degradation in

5 major urban areas, thereby

reducing damage to public health and the environment in 1988

by $6.7

(low estimate)

to $33.4 million (high estimate).

(See EcIS pp. xvi—xvii, pp.

86—104, and pp.

105—126),

Although th~

specific conclusions which can be drawn from the estimates

made in the EcIS must be qualified by the uncertainties surrounding

many of the assumptions made therein,

the study does document air

quality degradation which would occur absent the useful life

provision.

This,

in itself,

affirms the necessity of the useful

life limitation to achieving the statutory requirement of

“environmental equivalence.~ Even if the cost savings associated

with elimination of this provision outweighed the consequent

environmental damage,

the Board is not at liberty to eliminate a

provision which is necessary to insure environmental equivalence.

After reviewing testimony and comments generated in the

proceeding on the Final Rule,

the Board in this Docket

A, has

limited the duration of an emission reduction credit contributed

by a shutdown emission source to its useful life but “no more

than five years.”

The Board notes that

it

is not the purpose

of

these rules

to create an ERC which “lives on” beyond the emission

source itself, indefinitely preserving

the right at the existing

level of pollution.

Rather,

the availability of an ACS should

provide one more incentive to shut down

a marginal emission s~iurce

in

favor of a more innovative or cleaner alternative,

The five

year maximum is used because this coincides with the duration of

ACS and other operating permits.

(See Rule 103(b)(8),)

The Board finds that specifying a maximum lifetime for ~

ERC generated by a shutdown, although admittedly inequitable

for some emission sources,

is a reasonable temporary solution

‘to eliminating administrative difficulties in determining useful

life until the proposal to amend this section contained in Docket B

can be considered and refined in light of public comment.

(See Opinion and Order of the Board, Proposed Rule,

First

Notice,.

R81—20,

Final

Rule,

Docket

B, June

2,

1983.)

That proposal suggests

a more flexible and equitable approach to determining useful

1ffe~

while retaining the requirement that a definite duration he

established for ERC’s generated by shutdowns,

It also delineates

minimum considerations in determining useful

life.

This more

flexible approach is suggested by comments and testimony generated

by the March

7 and 11,

1983 hearings.

tlowever, comment on the

specific language proposed,

as well

as compliance with APA

procedures, are necessary before this language can be adopted.

52-332

---

23

The Board finds that there will be no harm in adopting in

Docket A the 5—year maximum limit on useful life until

such time

as it can be amended,

Any ACS applicant adversely affected by

this provision may request reconsideration of an unduly limited

useful

life determination under the new provison.

(The revised

provision is anticipated to be promulgated within 3-4 months.)

In the Final Rule,

the Board has also attempted to clarify

that it is the period or increment of useful life which is the

limitation, not when it

is used.

Thus, an ERC with a five year

life may possibly be “banked” for several years

(presuming the

existence of ERC banking rules)

and still retain

its full five

year value,

VIII.

Com2~1ianceDates

Section 202,130(a) provides that sources utilizing

an Alter

native Control Strategy generally must meet the same compliance

deadlines which are otherwise required by Chapter

2.

The term

“as expeditiously as practicable”

is intended to indicate that

sources which can achieve compliance before the stated deadline

are required to do so.

Section 202,130(b) provides an exception to the general

rule

for sources which are subject to certain portions of Rule 205 of

Chapter

2

(VOC emissions).

This exception is consistent with

Section 172 of the Clean Air Act,

as amended in

1977, which

allows states

to extend the compliance date for attainment of the

ozone standard until December 31, 1987,

The record in the early

part of this proceeding was replete with testimony to the effect

that many RACT

I sources which would otherwise be eligible to

utilize an alternative control strategy would be precluded from

doing so in the absence of such an extension due to the complexity

of preparing and setting up an Alternative Control Strategy

before applicable December 31,

1982 compliance deadlines,

(See

R.

2930,

40,

4953,

5960,

87.)

Early comments also pointed out

that if the ACS permit actually had to be issued before December

31,

1982, there would be very little time for application review.

Therefore,

the rule requires that the complete application must

have been submitted prior to that date.

The Board realizes that if precluded from utilizing an ACS,

many of these sources would be

forced to purchase more expensive

controls to achieve the same emission reductions,

Such a result

would be contrary to the intent of P.A.

820540,

and would result

in injury to the Illinois economy without yielding significant

environmental benefits,

However, Section 202,130(b)

is intended

to provide a narrow exception

to the general rule, and is not

intended for use by sources which have adequate time to meet

applicable compliance deadlines.

The Board has tailored standards

for the issuance of ACS permits containing alternative compliance

plans to insure that this exception is no broader than absolutely

necessary.

To

fall within this limited exception,

the compliance

52-333

---

24

plan must be contained in an Agencyapproved permit which is

applied for before December 31, 1982,

and be subject to the

Agency’s public participation procedures.

To approve such a plan

the Agency must find that an extension is genuinely necessary,

environmentally beneficial, and consistent with the Clean Air

Act.

In determining the necessity for extending the compliance

deadline, the Board anticipates that the Agency will consider

factors such as the complexity of the proposed ACS, the time

required for equipment purchase and installation, and the good

faith efforts of the permittees to implement the ACS as quickly

as possible.

In addition,

the Agency must find that the ACS will

result in a net benefit to the environment, either in terms of

faster or greater emission reductions than would otherwise be

achieved.

Finally, the requirement of “consistency with the

Clean Air Act” requires the Agency to find, among other things,

that reasonable further progress “toward attainment of the ambient

air quality standard” is not jeopardized.

The Agency points out that the compliance dates

for many

sources subject to Rule 205 of Chapter

2 have already passed.

(See Rule 205(j).)

The extension provision

is not intended to

protect emission sources which are in violation of applicable

compliance deadlines,

Therefore, the extension provision has

been modified to make it clear that it applies only to emission

sources with compliance deadlines of December

31,

1982 or later.

One commentor argues that the condition in Section

202.130(b) (2), that the ACS result in greater or faster over all

emission reductions,

is more restrictive

than the Federal Clean

Air Act because U.S.

EPA’s position papers have only ap plied

this prerequisite to compliance extensions for sources in non—

attainment areas.

(P.C.

#28.)

This argument is convoluted in

several respects.

First, it overlooks the fact that U.S.

EPA’s

position papers on this topic are merely guidance and do not rise

to the level of a requirement under the Clean Air Act.

Second,

it overlooks the fact that Illinois emission sources

in both

attainment and nonattainment areas are sub ject to Rule 205

requirements and compliance deadlines.

If anything,

Section

202.130 relaxes existing requirements for emission sources in

attainment areas,

The

function of the requirement in Section

202.130(b) (2)

is, as stated in the proposed opinion,

to “offset”

the delay in emission reduc tions and to insure that the ACS

provisions

do not become an avenue

for avoidance of existing

deadlines.

In response to another related comment,

it is not incon

sistent to expect that faster overall emission reductions may be

achieved by use of an ACS containing a delayed compliance schedule

than might otherwise be achieved.

(See P.C.

#31,)

If,

for example,

a source could not otherwise meet the appli cable compliance

deadline and would require an individual variance, an ACS may

provide

a faster achievement strategy.

52-334

---

25

Although the December 31,

1982 application deadline has

passed as of the date of this Opinion and Order, the language

with regard to compliance date extensions

(Section 202,130(b)) is

retained in the Final Rule for the protection of any parties who

may have such a delayed compli-ance ACS application pending.

IX,

“Generic Bubble Determination

These rules will be reviewed by U.S.

EPA for compliance with

the federal

“Generic Bubble” policy.

As stated above, the

“Generic Bubble” policy defines

a type of relatively simple

ACS which

U.S. EPA

has determined will not require individual SIP

revisions.

Although several provisions of these rules go beyond

the current approved U.S.

EPA policy,

it is the function of these

rules, as

a whole, to provide a framework for all ACS, not just

simple “Generic Bubbles.”

Rather than attempt to anticipate

changes in U.S. EPA policy on an issue aver which the State has

no jurisdiction, the Board is promulgating the rule as a whole

and will allow

U.S.

EPA to designate

those portions which meet

their requirements for Generic Rules,

For example,

these rules

make a general provision for fugitive emission sources to par

ticipate in ACS.

U.S.

EPA may designate the specific type of

fugitive emission trades which fall under their “Generic Bubble”

policy.

ACS falling within those designated provisions will not

require individual SIP revisions.

X.

~

Section 202.190 has been added to the rules stating that the

provisions of Part 202 are not severable.

This provision is

essential due to the interdependence of emission sources operating

under ACS, the careful balancing of emission increases

and

decreases which is necessary to insure environmental pro tection,

and the interdependence and balance within the rules themselves,

XI.

Miscellaneous Revisions to the Rule

The following miscellaneous revisions to the rule were made

in response to comments received during the First Notice Period

on the Final Rule:

1.

The definition of “Actual Emissions” has been slightly

amended in the final version of the rules,

To close a potential

“loophole”

in Subsection

(b),

the term “allowable emissions” has

been replaced with “potential

to emit.”

A rule requiring use of

the allowable emission baseline where there is inadequate inform-

ation to determine actual emissions would provide a dis incentive

for good bookkeeping.

The use of “potential to emit,” a defined

term, will also more accurately reflect the capacity of the

particular equipment to emit.

The same standard can be used for

sources which have been in operation less than two years,

thus

subsection

(c) has been deleted as unnecessary.

52-335

---

26

2.

section 202.102 has been amended to clarify the fact

that all emission sources are within the scope of this Part.

In response to a U.S.

EPA

comment, section 202.110(f)

has been

amended

in the Final Rule to require that an ACS emission

source which is the subject of a federal notice of violation

(as well as those subject to federal enforcement actions) send

a copy of the ACS application to U.S.

EPA.

3.

section 202.125 (Public Participation) has been amended

to clarify the standard for when a public hearing is required.

The availability of a public hearing should be determined pur-

suant to

the

criteria in applicable Agency public participation

procedures, rather than pursuant to a potentially conflicting

Board

criteria.

Contrary

to

the

argument

of

one

commentor,

ACS

permits

do

not

establish

less

stringent

emission

limitations

and

public hearings may not be necessary or beneficial in all cases.

4.

section 202.170

(Revocation)

has

been deleted as un-

necessary because both the

Act

and

Chapter

2

currently

for

permit

revocation

and

other

appropriate

sanctions.

5.

section 202.211(d)

has

been

deleted

as

unnecessary.

The

full

text

of

this

final

Opinion

and

Order

will

appear

in

the

Board’ s

printed

Opinion

volumes

•

The

proposed

Opinion

and

Order of

the

Board

and

Hr.

Dumelle’s

Concurring

Opinion

dated December 2,

1982 will be retained in the files of the

Clerk

and

will continue to be available for inspection and

copying,

but

will

not

appear in the Opinion volumes.

52-336

---

27

ORDER

It is the Order of the Illinois Pollution Control Board

that Chapter 2:

Air Pollution Regulations be amended by the

addition of Part 202:

Alternative Control Strategies,

as

follows:

TITLE

35:

ENVIRONMENTAL PROTECTION

SUBTITLE

B:

AIR POLLUTION

CHAPTER I:

POLLUTION CONTROL BOARD

SUBCHAPTER A:

PERMITS AND GENERAL PROVISIONS

PART 202:

ALTERNATIVE CONTROL STRATEGIES

SUBPART A:

ALTERNATIVE CONTROL STRATEGIES INVOLVING ONE PERSON

Section 202.101

Definitions

Unless a different meaning of

a term

is clear from its context,

the definitions of terms used for this Part shall be the same as

those used in the Pollution Control Board Rules and Regulations,

Chapter

2:

Air Pollution.

Actual Emissions:

The actual rate of annual emissions of a pol-

lutant from an operational emission source for a particular date

equal to the mean rate at which the emission source actually

emitted the pollutant during the two-year period which immediately

precedes the particular date and which is determined by the Agency

to be representative of normal emission source operation; however:

a)

The Agency

shall allow the use of

a different time

period upon a determination that it

is more repre-

sentative of normal emission source operation.

The

burden shall be on the applicant to demonstrate that

another time period

is more representative.

Actual

emissions shall be calculated using the emission

source~sactual operating hours, production rates,

and types of materials processed,

stored, or com—

busted during the selected time period.

b)

If the Agency determines that there

is inadequate

information to determine actual emissions

as indi-

cated

in the preceding paragraphs, the Agency shall

use the potential

to emit of the emission source.

Allowable Emissions:

a)

The emissions rate of an emission source calculated

using the maximum rated capacity of the emission

52-337

---

28

source

(unless the emission source is subject to

permit conditions or other enforceable limits which

restrict the operating rate, or hours of operation,

or both)

and the more stringent of the following:

1)

the applicable emission standard or limitation

contained

in this Chapter, including those with

a future compliance date;

or

2)

the emissions rate specified as a permit condition

including those with a future compliance date.

b)

The allowable emissions may be expressed as a permit

condition limiting annual emissions or material or

fuel throughput.

c)

Allowable emissions shall include a reasonable esti-

mate of emissions in excess of applicable standards

during start~~’up,malfunction,

or breakdown,

as

appropriate, only if the provisions of

Rule 105 of

this Chapter have been complied with.

d)

If an emission source

is not subject to an emission

standard under provision

(a)

and is not conditioned

pursuant to provision

(b), the allowable emissions

shall be the source’s potential to emit,

Alternative Control Strategy (ACS):

A specific program of

emissions limitations and requirements which is environmentally

equivalent to that which would otherwise be required by appli-

cable statutes or regulations, and under which the owner or

operator of an emission source increases emissions

of a regu-

lated pollutant beyond the emission baseline at one or more

emission sources and correspondingly reduces emissions of the

same pollutant below the emission baseline at other emission

sources.

Chapter:

References to “this chapter” or “Chapter 2” in this

Part shall mean Pollution Control Board air pollution rules

and regulations as contained in Chapter 2:

Air Pollution

Regulations and as codified under Title 35,

Part 200, ~

of the Illinois Administrative Code,

Emissions Baseline:

The starting point or reference level

from which increases and decreases in emissions are measured.

The

rules

governing determination of emission offsets, calcula-

tion of net emission increases, and evaluation of alternative

control

strategies

specify the particular emission baseline

that

applies

for that purpose.

Multi-~person

ACS:

An Alternative Control Strategy which

includes

emission sources which are owned and controlled by

different persons who have formed a joint venture for purposes

of the ACS.

---

29

Potential to Emit:

The maximum capacity of an emission source

to emit a pollutant under its physical and operational

design.

Any physical or operational limitation on the capacity of the

emission source to emit a pollutant,

including air pollution

control equipment and restrictions on hours of operation or on

the type or amount of material combusted,

stored,

or processed,

shall be treated as part of its design only

if the limitation

or the effect it would have on emissions is enforceable.

Secondary emissions do not count in determining the potential

to emit of a stationary source.

ug:

Micrograms.

Section 202.102

Scope

Pursuant to a permit issued by the Agency under this Part,

a

person or persons may use an alternative control strategy

(ACS)

for emission sources,

including fugitive emission sources,

in

lieu of compliance with conflicting requirements which would

otherwise be applicable under this Chapter.

Section 202.105

Emission Baseline for Alternative Control

Strategies

a)

The baseline for reviewing decreases or increases of

emissions from emission sources which are the subject

of an alternative control strategy shall be the lesser

of the actual emissions or the allowable emissions

prescribed by this Chapter.

b)

Notwithstanding subsection

(a), an increment of

emission reduction shall be creditable under an ACS

to the extent that

it:

1)

was achieved

as a result of the installation of

pollution control equipment, changes

in process,

procedures,

or materials,

or the shutdown of an

emission source which would not have occured but

for the purpose of creating an emission reduction;

2)

reduced emissions beyond the requirements of

Board regulations; and

3)

was not relied upon

in the State Implementation

Plan demonstration to demonstrate compliance with

ambient air quality standards

in the compliance

year in non—attainment areas or maintenance of

air quality in other areas.

c)

For purposes of subsection

(b), the burden shall

generally be on the permit applicant.

However,

for

52-339

---

30

the

purpose of subsection (b)(3) the~eN-9ha-~e-o~

~

~

~

~

it shall be the

bili~y

the Aenc

to

demo

rate

that

the

SIP

demonstration

either did or did not rely upon the emis-

~

ar

~

belong~s.

d)

Notwithstanding subsection (b)(3), if an emission

source

is located in an area for which the State

Implementation Plan does not demonstrate attainment

of the air quality standards by the compliance year

for the pollutant which

is the subject of the ACS,

it may utilize an emission reduction credit only to

the extent that that reduction reduces its emissions

below actual emissions.

Section 202.110

Permit Application Information

In addition to other information which may be

required

under

this chapter,

a

permit

application

under

this

subpart shall:

a)

List the emission sources to be included in the ACS,

the emission baseline the applicant believes

to be

applicable to each emission source,

and the remaining

useful life of each emission source.

b)

Describe the proposed modifications to the emission

sources and quantify the emission increases and

decreases anticipated to occur

as

a

result

of

each

modification,

C)

Identify

the Board regulations and the terms

of the

Environmental Protection

Act

to

which

the

applicant

believes

the

ACS

provides

an

alternative,

d)

Describe the methods currently used to assure

com-

pliance

and the methods proposed to be used under the

ACS.

Such

methods may include, but are not limited

to

recordkeeping, equipment or emissions monitoring,

source testing,

and material or process specifications.

e)

Provide

an

analysis

of

the

ACS

pursuant

to Sections

202.111,

202.112,

202,113.

f)

Contain a certification, signed by all

ACS

applicants,

stating

that a copy of the

ACS

application

has

been

sent

~~fiedm~!l

to U.S. EPA if any of the emission

sources included in the ACS are presently the subject

of

a federal notice

of

violation

or federal enforcement

52-340

---

31

actione under the provisions of the Clean

Air Act,

as

amended August,

1977 (including civil actions filed

under 5113(b), criminal actions filed under 5113(c),

a notice imposing non-compliance penalties issued under

5120, administrative orders issued under 5113(a), or a

citizen suit filed under 5304 where EPA has intervened).

g)

Provide such other information as the

Agency

can

demonstrate

to

be

necessary

for

the

determination

of

compliance

with

the

standards

of

issuance

in

Section

202.120,

including

the

results

of

any

source

Section 202.111

Analysis of Emissions

a)

A permit application under this subpart shall provide

a comparison of the baseline emissions and the emis-

sions which would be permitted under the proposed ACS

for each emission source involved in the ACS.

Where

appropriate, this analysis shall address differences

between the emission sources to be covered by the ACS

with

regard

to:

1)

methods

of

determining

emissions;

2)

consistency

and

reliability of the performance

control devices;

3)

frequency and duration of operation during

during start—up;

4)

methods

of operation, including operating

schedules, range of raw materials or products,

etc.;

and

5)

other

characteristics

of

the

emission

sources

or

their operation

which

may affect

equivalance

of

emissions.

b)

The analysis shall describe any increases in emissions

from

emission sources outside the ACS

which

Section 202.112

Analysis of Environmental Quality

a)

A permit application under this subpart shall provide

a comparison of the

ambient

air quality under existing

52-341

---

32

requirements

and

the

ambient

air

quality

which

would

exist

under

the

proposed

ACS.

This analysis shall

include dispersion modeling based on the best

and

most

appropriate models for the pollutant

and

emission

sources involved, unless the

Agency

finds that:

1)

due

to the characteristics of the pollutant

and emission source, dispersion modeling is

inappropriate or

unnecessary

for

determining

effects

on air quality; or

2)

the location of emission sources included in the

ACS

are

not

more

than

250

meters

apart,

the

ef—

fective

plume

height

of

the

emission

increases

and decreases are not significantly different

and the differences in the characteristics of

the emission sources are not likely to affect

ambient air quality, or

3)

differences in location, plume height, operating

practice, and other characteristics of the emis-

sion sources subject to the ACS are not likely

to significantly affect ambient air quality.

An effect on ambient air quality is significant

if it equals or exceeds the levels specifiedin

Pollutant

Annual

24-Hour

8—Hour

3—Hour

1—Hour

SO

1.0 ug/m3

5 ug/m3

25 ug/m3

TS$

1.0 ug/m3

s

ug/m3

2

.ugm

3

3

CO

0.5 mg/m

2 mg/m

b)

The applicant shall analyze the air quality impacts

resulting from trades between emission sources, in-

cluding the impact of emissions which differ in their

qualitative

impact

on health or the environment.

c)

The analysis shall describe any other impacts on the

environment which may accompany the proposed ACS.

Section 202.113

Analysis of Methods of Assuring Compliance

A

permit

application under this subpart shall provide a corn—

parison

of

the

methods

of

assuring

compliance

under existing

requirements

and

the

methods

of

assuring

compliance

which

would

be

used

under

the

proposed

ACS.

As

a

minimum,

the

analysis

shall

address

the

effectiveness,

reliability,

and

accessibility

of

these

methods

52-342

---

33

Section 202.120

Standards for Issuance

The Agency shall issue a permit containing an ACS

if, and only

if, the permit applicant demonstrates that:

a)

The ACS provides,

in the aggregate with respect to

each regulated pollutant, equivalent or less total

emissions than would otherwise be required.

b)

The impact of the ACS is environmentally equivalent

to that which would otherwise be achieved and main-

tained under existing requirements.

c)

The methods for assuring compliance with the condi-

tions and requirements of the permit under the ACS

are equivalent to those that are associated with

otherwise

applicable

requirements.

d)

The ACS complies with any applicable requirements

contained in Parts IX, X, or XI of this chapter.

e)

U.S.

EPA has not disapproved the proposed ACS or any

compliance schedule it may contain due to the existence

of a federal

enforcement action pending against a parti-

cipant in the ACS.

f)

The

ACS does not permit an increase in emissions of

any pollutant which is listed or regulated pursuant

to Section

112 of the Federal Clean Air Act,

as amended

August

1977

(42 U.S.C.

1857,

et seq.).

Section 202.125

Public Participation

The initial issuance of a

permit

containing

an

ACS

shall

be

subject to applicable Agency public participation procedures

prior to issuance,

At a minimum,

the Agency shall provide an

opportunity for public comment,

Section 202.130

Compliance Dates

a)

No owner or operator subject to a

permit

utilizing

an Alternative Control Strategy is relieved of the

responsibility for achieving and maintaining a re-

duction of emissions

as expeditiously as practicable,

but not later than the compliance date required under

other applicable regulations.

b)

Notwithstanding subsection

(a), an owner or operator

may demonstrate compliance with Rule 205 of this

Chapter pursuant to an Agency-approved alternative

compliance plan contained in a permit utilizing an

Alternative Control Strategy which is applied for

prior to December 31,

1982.

The Agency shall approve

such an alternative compliance plan if, and only if,

the applicant demonstrates that:

52-343

---

34

1)

the alternative compliance plan extends the com-

pliance date for each emission source subject

to the ACS no longer than necessary to enable

that emission source to utilize the ACS, but

in no case later than December 31,

1987;

3)

the emission source belongs to a category of

emission sources having a compliance date of

December 31,

1982 or later under Rule

205;

3)

the use

of an ACS will result in either greater

or faster overall emission reductions than would

otherwise be achieved;

and

4)

such extension

is consistent with the require-

ments of the federal Clean Air Act,

as amended

in

1977.

Section 202.140

Records and Reports

a)

The Agency shall

require that a permittee operating

under an ACS maintain such records as necessary to

determine compliance with the requirements of the ACS.

1)

These records shall include, but not be limited

to the actual and allowable emission rates,

or the parameters from which these rates are

determined or related operational parameters of

the equipment.

2)

The records shall be maintained

as precribed

in

the permit.

3)

These records shall he available to the Agency

and copies of these records shall be sent to

the Agency upon written request.

The Agency

shall make such records available to the public

pursuant to Sections

7 and 7.1

of the Act and

regulations promulgated hereunder.

b)

A permittee operating under an ACS shall submit to

the Agency reports containing such reasonable infor-

mation and at such reasonable frequency as the Agency

may specify pursuant to a condition of a permit or

general procedures established by the Agency,

to

assure that the terms of the ACS are met.

c)

A permittee operating under an ACS shall notify the

Agency within 72 hours by telephone or telegram of

circumstances, which will make compliance with the

requirements of the ACS impossible.

52-344

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35

1)

This notice shall be followed within ten days

by written confirmation which describes the cir-

cumstances which prevent compliance with the re-

quirements of the ACS and supplies a preliminary

Compliance Program which will result in com-

pliance with this Chapter.

2)

The permittee shall take all reasonable steps

to come into compliance with the ACS or this

Chapter as expeditiously as possible.

Section 202.145

Duration

A permit containing

an ACS shall be issued for no longer than

five years, or for such shorter period as the Agency may specify

as necessary for periodic review of the ACS or to accomplish the

purposes of the Act or of this Chapter.

However, an ACS permit

may not be issued for a period ~

of time which is

greater than the useful life of an emission source which contri-

butes an emission reduction to the ACS.

The burden of proving

the useful life of the emission source

is on the applicant.

For the purpose of this section, a shutdown emission source shall

be deemed to have a useful life of no more than five years.

Section 202.150

Permit Conditions

a)

The permit shall specify:

1)

All emission

limits

which

apply to emission sources

under the ACS,

and

2)

Any compliance procedures which shall be followed

by the permittee.

b)

The

permit may be conditioned so that compliance with

the terms of the

ACS

will

continue

in

the event of

change of ownership of emission sources, and such

terms will be made applicable to the new owner.

c)

The Agency may impose such other permit conditions in

a permit as are necessary to accomplish the purposes

of the Act or of this Part.

Section 202.155

Monitoring and Testing

The Agency may require that equipment testing and monitoring,

as

authorized elsewhere

in this chapter,

accompany the construction

or operation of emission sources under a permit containing an ACS.

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Section

202.157

Notification to U.S.

EPA

Upon issuance of an ACS permit,

the

Agency shall notify U.S. EPA

of emission limitations,

alternative compliance plans, and any

other permit conditions applicable to emission sources under an

ACS.

Section 202.160

Revision

a)

Timing

1)

An

application for revision of a permit containing

an ACS shall be submitted at

least

180 days prior

to

the

date

on

which

the revision

is required to

go into

effect.

2)

If

the

standard

under

this Chapter for an emission

source

included

in

the

ACS

is

changed

and

a

revised

ACS

is

being

proposed~

an

application

for

revision

of

a

rermit

containing

the

ACS

shall

be

submitted

at

least

90

days

prior

to

the

date

a Compliance

Plan

must

he

suhmitted~

b)

The applicant shall submit the information specified

in Section 202,110 which is necessary to show that the

revised ACS will meet the standards of permit issuance

specified in Section 202.120.

c)

Unless the

Agency

finds

that

the

proposed revisions to

the ACS

are

not

substantive

in

nature

and

do not alter

fundamental

details

of

the

ACS

which

was approved under

the prior

permit,

issuance

of

the

revised permit shall

be subject to

public

participation

pursuant

to

Section

202.125.

Section 202.165

Renewal

a)

An application

for

renewal

of a permit containing an

ACS

shall

he

submitted

at

least

180

clays

prior

to

the

expiration

of

the

previous

permit.

b)

Applications

for

renewal

shall

contain the

information

specified

in

Section

2O2~110,

However,

an

analysis

of

the

effect

of

the ACS

on

air quality

pursuant

to

Section 202,112 need be provided only if:

1)

The other

information

submitted

pursuant to this

Subsection is different from the information upon

which the permit was previously issued,

and

2)

the differences may include

a change

in the

applicable

emission

limit

or

operation

of

the

source

or

may

otherwise

significantly affect

air

quality.

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31

c)

Unless the Agency finds that changes in the applica-

tion are not substantive in nature and do not alter

fundamental details of

the

ACS

which

was

approved

under the prior permit, renewal of the permit shall

be subject to public participation pursuant to

Section 202.125.

Section 202.190

Severability

Notwithstanding

Rule 113 of this Chapter,

if any provision of

Part 202

is

stayed or declared invalid by a final

order,

no

longer subject to appeal, of any court of competent jurisdic-

tion, then the entirety of Part 202 shall be deemed stayed or

invalidated until the stay is lifted or the Board acts to

revalidate the Part,

SUBPART B:

ALTERNATIVE CONThOL STRATEGIES INVOLVING MORE THAN

ONE PERSON

Section 202.201

Applicability

Persons who propose or participate in a multi—person ACS shall

be subject to the rules

found in Subparts A and B of this Part.

Section 202,202

Permit Application

In addition to the information required in Section 202.110,

persons who propose

a multi—person ACS shall:

a)

Identify

the

persons having ownership and control

of

the emission sources to be included in the ACS.

b)

Provide a written agreement showing

the

participants’

intent to pursue the multi-person

ACS

and

to

be

jointly

bound by the terms and conditions of any permits which

are issued pursuant to the application.

Section 202.204

Duration

All permits issued

under

a multi-person ACS shall

have

the

same

expiration

date,

Section

202.206

Permit Conditions

Each

participant

in

a

multi-person ACS shall

be

issued

an

individual permit which shall be conditioned on

the

continuing

compliance of the other participants with the limitations

in

their permits.

Section 202.208

Records and Reports

All records and reports of the participants

in a multi-person

ACS which are not confidential

in nature shall be available for

inspection to

the

other

participants

upon

reasonable

notice

of a request to inspect.

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Section 202.210

Revocation

Permit revocation or other sanctions may be initiated before

the Board against any and all persons in the multi—person ACS,

regardless of the ownership and control of the emission source

at which the violations occurred or any contracts or other

agreements between the participants.

Section 202,211

Termination

a)

If

a participant in a multi—person ACS intends to

terminate involvement in the ACS,

it shall give

written notice to the Agency and the other partici-

pants in the ACS at least 180 days prior to the

anticipated termination date,

b)

If the ACS will not meet the standards of issuance

with only the remaining participants,

they

may:

1)

Propose a revised ACS to include the remaining

sources and persons; this proposal shall be

submitted to the Agency at least 120 days before

new permits are required;

or

2)

Apply for revised permits, pursuant to the other-

wise applicable regulations

in this Chapter; such

applications

shall

be submitted at least

90 days

before the permits are

required.

c)

If the notice of termination of the multi—person ACS

does not allow sufficient time to meet the time periods

in Subsection 202.211(b)

above, the participants may

seek variance relief from the

Board

from

the

require-

ments of this Chapter and of the Act.

IT IS SO ORDERED,

I, Christan L.

Moffett,

Clerk of the Illinois Pollution Control

Board, hereby certify that the above Opinion and Order were ~dopted

on the

~jsi~

day of~_~&._-

,

1983

by

a

vote of

21-C

52-348