ILLINOIS POLLUTION CONTROL BOARD

PROPOSAL AND BACKGROUND
MOTION FOR EXPEDITED CONSIDERATION AND EXPEDITED REVIEW
DISCUSSION
CONCLUSION
ORDER

June 22, 2006

IN THE MATTER OF:

AMENDMENTS TO 35 ILL. ADM. CODE

201 (NEW SECTION 201.501 PSD

CONSTRUCTION PERMITS)

)

R06-27

(Rulemaking - Air)

Proposed Rule. First Notice.

ORDER OF THE BOARD (by T.E. Johnson):

On June 20, 2006, the Illinois Environmental Protection Agency (Agency) filed a

proposal for rulemaking pursuant to Sections 27 and 28 of Environmental Protection Act (Act)

(415 ILCS 5/9.8, 27 and 28 (2004)). The Agency proposes the addition of a section to the air

regulations that would eliminate an automatic 30-day stay of the effectiveness of prevention of

significant deterioration of air quality (PSD) permits. Concurrent with the proposal, the Agency

filed a motion for expedited review and for a special meeting.

The Board is entering this order at a special meeting scheduled pursuant to Section 5(a)

of the Act (415 ILCS 5/5(a) (2004)) and held June 22, 2006, after due notice was given under the

Open Meetings Act.

See

5 ILCS 120/2.02(a) (2004). For the reasons more fully explained

below, the Board accepts the Agency’s proposal for hearing and grants the motion for expedited

consideration.

PROPOSAL AND BACKGROUND

In the statement of reasons, the Agency asserts that the PSD provisions of the Clean Air

Act, 42 U.S.C. §7401

et seq

., were enacted in 1977 to regulate new major stationary sources and

major modifications to existing sources. Stat. at 1. The PSD program applies in areas in the

country that are deemed to be attainment or unclassifiable with respect to national ambient air

quality standards (NAAQS).

Id.

The Agency administers the PSD program through a delegation

agreement with the United States Environmental Protection Agency (USEPA).

Id.

PSD

involves a preconstruction permitting process in which an applicant for a major new source or

modification must submit a permit application prior to commencing construction that

demonstrates that emissions from the proposed facility will not cause or contribute to an

exceedance of any applicable NAAQS or air quality increment, and that the proposed facility

will employ the Best Available Control Technology for all pollutants for which the source is

major

. Id.

The Agency asserts that an appeal of the PSD permit issued in Illinois is subject to the

procedural requirements of the federal regulations at 40 C.F.R. Part 124, which provide that final

permits decisions are automatically stayed for 30 days after issuance. Stat. at 2. The Agency

notes that in a number of other states, USEPA has approved state programs that do not provide

for an automatic 30-day stay.

Id.

The Agency is proposing to eliminate the automatic 30-day stay, thereby “leveling the

playing field” in Illinois while not causing any adverse impact to the environment. Stat. at 2.

The proposal would add a new Subpart M to Part 201, the Board’s general permit provisions.

New Section 201.501 in effect provides that PSD permits are effective upon issuance a) unless

the permit states otherwise by its terms, or b) an appeal has been filed and a stay of the permit

has been granted. Stat. at 4.

The Agency asserts that this is the sole purpose and effect of the regulatory proposal.

Stat. at 4. The Agency asserts that if adopted, the proposal will be subject to approval by

USEPA, and cannot be relied upon for PSD permits until USEPA has approved it as part of

Illinois’ State Implementation Plan.

Id.

MOTION FOR EXPEDITED CONSIDERATION AND EXPEDITED REVIEW

In the motion, the Agency asserts that in a number of states other than Illinois, the

USEPA has approved state programs that do not provide for an automatic 30-day stay after

issuance of a final PSD permit. Mot. at 1. The Agency argues that increasing interstate

competition for economic development places Illinois at a disadvantage in competing for new

projects because of the automatic stay disparity between its PSD delegated program and

surrounding states’ PSD approved programs.

Id.

The Agency asserts that this regulation needs to be adopted in an expedited manner.

Mot. at 2. In addition, the Agency requests that the Board hold a special meeting to accept this

rulemaking proposal and proceed to first notice under the Illinois Administrative Procedure Act

(5 ILCS 100/1-1

et seq

. 2004) (APA) without reaching a decision on the merits of the proposal

. The Agency also requests that the requisite public hearing be scheduled as soon as possible

in accordance with Section 28(a) of the Act.

. The motion is accompanied by the required

affirmation attesting that the facts cited in the motion are true. Mot. at 4.

DISCUSSION

Motions for expedited review are addressed at Section 101.512 of the Board’s

regulations. Pursuant to that section, in deciding such a motion the Board must consider all

statutory requirements and whether material prejudice will result from the granting of the

motion.

See

35 Ill. Adm. Code 101.512. Further, the Board will grant a motion for expedited

review consistent with available resources and decision deadlines.

. In addition, unless undue

delay or material prejudice would result, the Board will not grant any motion before expiration

of the 14-day response period except in deadline driven proceedings where no waiver has been

filed.

See

35 Ill. Adm. Code 101.500(d).

The Board finds that in this instance undue delay and material prejudice would result if

the Agency’s motion were not addressed prior to the expiration of the 14-day response period.

The Board will therefore consider the motion at this time. The Board is persuaded by the

Agency’s statement that the proposed rulemaking will serve to eliminate any competitive

disadvantage for Illinois caused by the automatic stay disparity between its PSD delegated

program and surrounding states’ PSD approved programs. The Board finds that the Agency has

demonstrated that expedited review is necessary under the considerations outlined in 35 Ill.

Adm. Code 101.512. Accordingly, the Board grants the Agency’s motion to expedite, and is

considering this proposal at a special Board Meeting scheduled today solely to address this

proposal.

The Board finds that the petition meets the content requirements of 35 Ill. Adm. Code

102.208 and 102.210. The proposal is accepted for hearing. In order to expedite the rulemaking

process, the Board is today sending this proposal to first notice under the APA without

commenting on the merits of the proposal. The Board has, however, made one non-substantive

changes to the proposal to conform it to codification requirements.

In its statement of reasons, the Agency did not provide an analysis of technical feasibility

and economic reasonableness, stating that such an analysis is not appropriate in this case because

the proposal does not impose new emission limitations or require new control devices on

affected sources. However, the Act requires the Board to take into account several factors in

promulgating regulations, specifically including the technical feasibility and economic

reasonableness of complying with the amended regulations.

See, e.g.,

415 ILCS 5/27(a) (2004);

Granite City v. PCB, 155 Ill. 2d 149; 613 N.E.2d 719 (1993); Commonwealth Edison v. PCB, 62

Ill. 2d 494; 343 N.E.2d 459 (1976).

The Agency is directed to provide an analysis of the technical feasibility and economic

reasonableness of this proposal. In addition, the Agency is directed to provide a summary of the

procedural aspects of the PSD program, including all relevant delegations and whether the

Agency has previously submitted a request to USEPA for approval of a State Implementation

Plan (SIP) for PSD.

Finally, the Agency has requested that the “requisite public hearing be scheduled as soon

as possible in accordance with Section 28(a) of the Act.” Mot. at 2. As the Agency is

proposing a state-wide regulation, hearings must be held in at least two areas of the state. 415

ILCS 5/28(b) (2004), and at least 30 days newspaper notice of these hearings must be published

in the State’s nine air regions to meet Clean Air Act notice requirements for rules that will be

part of a SIP submittal to USEPA. 35 Ill. Adm. Code 102.416. Some of these air regions do not

have daily newspapers of general circulation, so that publication must occur in weekly

newspapers. As a practical matter, then, the mechanics of causing notice publication dictate that

the first hearing will be held some 40-45 days from now.

In addition, the Board must follow the APA timeframes in its general rulemaking

process. The Board must accept public comment for at least 45 days following publication of

today’s first-notice proposal in the

Illinois Register;

the earliest possible date for such

publication is July 7. After completion of the hearings and Board adoption of a second-notice

proposal, the Board must submit a second notice proposal to the Joint Committee on

Administrative Review (JCAR), which has 45 days to review the proposal. Only then can the

Board proceed to adopt a rule.

See

35 Ill. Adm. Code 102.604, 102.606.

Consistent with the notice constraints and the fixed APA time periods, the Board will

proceed with this rulemaking in an expedited manner. The Board directs the hearing officer to

schedule public hearings as expeditiously as possible.

CONCLUSION

The Board today adopts the following first-notice order under the APA (5 ILCS 100/5-5

et seq.

(2004)) without commenting on the merits of the proposal. The proposal will be

published in the

Illinois Register

whereupon a 45-day comment period will begin. The Board

asks that parties interested in commenting on this proposal address any written comments to the

Clerk of the Board. At least two hearings will be held. Persons interested in information about

the scheduling and conduct of the hearings should contact John C. Knittle, the hearing officer

assigned to this matter.

Copies of this opinion, the proposed rules, and any hearing officer order may be viewed

and downloaded from the Board's Web site at http://www.ipcb.state.il.us/. Copies may also be

requested in writing from the Clerk of the Illinois Pollution Control Board, James R. Thompson

Center, 100 West Randolph, Suite 11-500, Chicago, Illinois 60601 or via telephone at

312.814.3620.

ORDER

The Board directs the Clerk to cause publication of the following rule in the

Illinois

Register

for first notice under the Administrative Procedure Act (5 ILCS 100/5-5

et seq

. (2004)):

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE B: AIR POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

SUBCHAPTER a: PERMITS AND GENERAL PROVISIONS

PART 201

PERMITS AND GENERAL PROVISIONS

SUBPART A: DEFINITIONS

Section

201.101

Other Definitions

201.102

Definitions

201.103

Abbreviations and Units

201.104

Incorporations by Reference

SUBPART B: GENERAL PROVISIONS

Section

201.121

Existence of Permit No Defense

201.122

Proof of Emissions

201.123

Burden of Persuasion Regarding Exceptions

201.124

Annual Report

201.125

Severability

201.126

Repealer

SUBPART C: PROHIBITIONS

Section

201.141

Prohibition of Air Pollution

201.142

Construction Permit Required

201.143

Operating Permits for New Sources

201.144

Operating Permits for Existing Sources

201.146

Exemptions from State Permit Requirements

201.147

Former Permits

201.148

Operation Without Compliance Program and Project Completion Schedule

201.149

Operation During Malfunction, Breakdown or Startups

201.150

Circumvention

201.151

Design of Effluent Exhaust Systems

SUBPART D: PERMIT APPLICATIONS AND REVIEW PROCESS

Section

201.152

Contents of Application for Construction Permit

201.153

Incomplete Applications (Repealed)

201.154

Signatures (Repealed)

201.155

Standards for Issuance (Repealed)

201.156

Conditions

201.157

Contents of Application for Operating Permit

201.158

Incomplete Applications

201.159

Signatures

201.160

Standards for Issuance

201.161

Conditions

201.162

Duration

201.163

Joint Construction and Operating Permits

201.164

Design Criteria

201.165

Hearings

201.166

Revocation

201.167

Revisions to Permits

201.168

Appeals from Conditions

201.169

Special Provisions for Certain Operating Permits

201.170

Portable Emission Units

SUBPART E: SPECIAL PROVISIONS FOR OPERATING PERMITS FOR CERTAIN

SMALLER SOURCES

Section

201.180

Applicability (Repealed)

201.181

Expiration and Renewal (Repealed)

201.187

Requirement for a Revised Permit (Repealed)

SUBPART F: CAAPP PERMITS

Section

201.207

Applicability

201.208

Supplemental Information

201.209

Emissions of Hazardous Air Pollutants

201.210

Categories of Insignificant Activities or Emission Levels

201.211

Application for Classification as an Insignificant Activity

201.212

Revisions to Lists of Insignificant Activities or Emission Levels

SUBPART G: EXPERIMENTAL PERMITS

(Reserved)

SUBPART H: COMPLIANCE PROGRAMS AND PROJECT COMPLETION

SCHEDULES

Section

201.241

Contents of Compliance Program

201.242

Contents of Project Completion Schedule

201.243

Standards for Approval

201.244

Revisions

201.245

Effects of Approval

201.246

Records and Reports

201.247

Submission and Approval Dates

SUBPART I: MALFUNCTIONS, BREAKDOWNS OR STARTUPS

Section

201.261

Contents of Request for Permission to Operate During a Malfunction, Breakdown

or Startup

201.262

Standards for Granting Permission to Operate During a Malfunction, Breakdown

or Startup

201.263

Records and Reports

201.264

Continued Operation or Startup Prior to Granting of Operating Permit

201.265

Effect of Granting of Permission to Operate During a Malfunction, Breakdown or

Startup

SUBPART J: MONITORING AND TESTING

Section

201.281

Permit Monitoring Equipment Requirements

201.282

Testing

201.283

Records and Reports

SUBPART K: RECORDS AND REPORTS

Section

201.301

Records

201.302

Reports

SUBPART L: CONTINUOUS MONITORING

Section

201.401

Continuous Monitoring Requirements

201.402

Alternative Monitoring

201.403

Exempt Sources

201.404

Monitoring System Malfunction

201.405

Excess Emission Reporting

201.406

Data Reduction

201.407

Retention of Information

201.408

Compliance Schedules

SUBPART M: PREVENTION OF SIGNIFICANT DETERIORATION (PSD)

CONSTRUCTION PERMITS

Section

201.501

PSD Construction Permits

201.APPENDIX A

Rule into Section Table

201.APPENDIX B

Section into Rule Table

201.APPENDIX C

Past Compliance Dates

AUTHORITY: Implementing Sections 10, 39, and 39.5 and authorized by Section 27 of the

Environmental Protection Act [415 ILCS 5/10, 27, 39, and 39.5].

SOURCE: Adopted as Chapter 2: Air Pollution, Part I: General Provisions, in R71-23, 4 PCB

191, filed and effective April 14, 1972; amended in R78-3 and 4, 35 PCB 75 and 243, at 3 Ill.

Reg.30, p. 124, effective July 28, 1979; amended in R80-5, at 7 Ill. Reg. 1244, effective January

21, 1983; codified at 7 Ill. Reg. 13579; amended in R82-1 (Docket A) at 10 Ill. Reg. 12628,

effective July 7, 1986; amended in R87-38 at 13 Ill. Reg. 2066, effective February 3, 1989;

amended in R89-7(A) at 13 Ill. Reg. 19444, effective December 5, 1989; amended in R89-7(B)

at 15 Ill. Reg. 17710, effective November 26, 1991; amended in R93-11 at 17 Ill. Reg. 21483,

effective December 7, 1993; amended in R94-12 at 18 Ill. Reg. 15002, effective September 21,

1994; amended in R94-14 at 18 Ill. Reg. 15760, effective October 17, 1994; amended in R96-17

at 21 Ill. Reg. 7878, effective June 17, 1997; amended in R98-13 at 22 Ill. Reg. 11451, effective

June 23, 1998; amended in R98-28 at 22 Ill. Reg. 11823, effective July 31, 1998; amended in

R02-10 at 27 Ill. Reg. 5820, effective March 21, 2003; amended in R05-19 and R05-20 at 30 Ill.

Reg. 4901, effective March 3, 2006; amended in R06-27 at 30 Ill. Reg. ____, effective

________________;

SUBPART M: PREVENTION OF SIGNIFICANT DETERIORATION (PSD)

CONSTRUCTION PERMITS

Section 201.501

PSD Construction Permits

This Section relates to any final permit decision by the Agency relating to a Prevention of

Significant Deterioration (PSD) construction permit issued pursuant to Sections 9.1 and

39 of the Act implementing Section 165 of the Clean Air Act.

Notwithstanding the provisions of 40 C.F.R. 124.15(b), a final PSD construction permit

shall become effective on the date of issuance unless otherwise stated in the final permit.

However, any person with standing in accordance with 40 C.F.R 124.19 may seek to file

an appeal with the United States Environmental Protection Agency’s Environmental

Appeals Board and may request a stay of the permit.

This Section applies to permits issued on or after the effective date of the approval of this

Subpart as part of Illinois’ State Implementation Plan under the Clean Air Act.

(Source: Added at 30 Ill. Reg. ____, effective ________________)

IT IS SO ORDERED.

I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control Board, certify that the Board

adopted the above order on June 22, 2006, by a vote of 4-0.

Dorothy M. Gunn, Clerk

Illinois Pollution Control Board