2

After analyzing the issues raised, the Board concludes that part of the proposal is not

“required to be adopted” by the CAA. Accordingly, the Board bifurcates this proposal by

continuing to consider the portion applicable to the 28 internal combustion engines affected by

the NO

x

SIP Call Phase II under Section 28.5 in docket R07-18. The Board will consider the

remainder of the proposal in a separate docket, R07-19, under Section 27.

PROCEDURAL HISTORY

Rulemaking Proceeding

On April 6, 2007, the Agency submitted to the Board a rulemaking proposal intended to

reduce emissions of NO

x

from stationary reciprocating engines and turbines. The Agency’s

submission included a technical support document (TSD). In its accompanying statement of

reasons (Statement), the Agency invoked as statutory authorities for its submission Sections 9.9,

10, and 27 of the Act. Statement at 1, 7-8;

see

415 ILCS 5/9.9, 10, 27 (2004)). The Agency also

invoked Section 28.5 of the Act, which provides for “fast-track” proceedings applying “solely to

the adoption of rules proposed by the Agency and required to be adopted by the State under the

Clean Air Act as amended by the Clean Air Act Amendments of 1990 (CAAA).” Statement at

8-11, citing 415 ILCS 5/28.5(a) (2004).

On April 16, 2007, ANR Pipeline Company, Natural Gas Pipeline Company, Trunkline

Gas Company, and Panhandle Eastern Pipeline Company (collectively, the Pipeline Consortium)

filed their “Objection to Use of Section 28.5 Fast Track Procedures for Consideration of

Nitrogen Oxide Proposal as Filed” (Pipeline Obj.). On April 17, 2007, IERG filed its “Objection

to Use of Section 28.5 ‘Fast-Track’ Rulemaking for the Illinois Environmental Protection

Agency’s Proposed Rules” (IERG Obj.).

On April 19, 2007, the Board adopted an order accepting the Agency’s proposal for

hearing without commenting on its merits and sending the proposed rule to first notice under

Illinois Administrative Procedure Act.

See

5 ILCS 100/1-1

et seq.

(2004). In the same order, the

Board noted that it had received objections to the Agency’s reliance on Section 28.5 procedures

both from the Pipeline Opponents and from IERG. The Board directed that any response to the

two objections be filed by May 1, 2007, and allowed the objectors to reply to the responses by

May 8, 2007.

On May 1, 2007, the Agency filed a “Response to the Pipeline Consortium’s Objection to

Use of Section 28.5 Fast Track Procedures for Consideration of Nitrogen Oxide Proposal”

(Agency Pipeline Resp.), accompanied by the affidavit of Robert Kaleel. Also on May 1, 2007,

the Agency filed a “Response to the Illinois Environmental Regulatory Group’s Objection to Use

of Section 28.5 Fast Track Procedures for Consideration of Nitrogen Oxide Proposal” (Agency

IERG Resp.), accompanied by an affidavit of Robert Kaleel.

On May 8, 2007, the Pipeline Consortium filed a “Reply to the Illinois Environmental

Protection Agency’s Responses to Objections to the Use of Section 28.5 Fast-Track Rulemaking

Procedures in this Matter” (Pipeline Reply). Also on May 8, 2007, IERG filed a “Reply to

Response to Objection to Use of Section 28.5 ‘Fast-Track’ Rulemaking for the Illinois

---

3

Environmental Protection Agency’s Proposed Rules” (IERG Reply), accompanied by an

affidavit of Deirdre K. Hirner.

Circuit Court Complaint

The Board notes that, on May 14, 2007, the Pipeline Consortium filed in Sangamon

County Circuit Court a complaint seeking declaratory and injunctive relief regarding the R07-18

rulemaking proceeding before the Board. The Pipeline Consortium asserts it brings the suit in

Circuit Court “as a result of IPCB’s illegal rulemaking procedure and the IEPA’s illegal filing of

a proposed rule with the IPCB.”

ANR Pipeline Company, Natural Gas Pipeline Company,

Trunkline Gas Company, and Panhandle Eastern Pipe Line Company v. Illinois Pollution

Control Board and Illinois Environmental Protection Agency, No. 07MR190 (Sangamon County

Circuit Court). Generally, Plaintiffs allege that Section 28.5 of the Act (415 ILCS 5/28.5

(2004)), under which Clean Air Act “fast-track” rulemaking is carried out, is unconstitutional

and cannot be used to adopt certain portions of IEPA’s regulatory proposal in R07-18. The

Plaintiffs seek a preliminary and permanent injunction barring IEPA and the Board from

continued action under Section 28.5 of the Act concerning specified sections of the Agency’s

proposal and enjoining the Agency and the Board from proceeding on the Board’s expedited

hearing schedule under Section 28.5 with respect to those specified sections.

The Board notes that in its order dated April 19, 2007, in R07-18, two days after it

received the last objection to the use of Section 28.5 procedures, it set an expedited schedule for

briefing the issue in order “[t]o ensure that this rulemaking proceeds expeditiously.” The Board

received the final replies on that issue on May 8, 2007. Pursuant to the expedited schedule, the

Board placed this docket on the agenda of its regularly-scheduled closed deliberative session on

May 10, 2007. For its regularly-scheduled May 17, 2007 meeting, the Board placed this docket

on its tentative agenda, which was first distributed on May 9, 2007, and on its final agenda. At

all times, the Board has set and followed a schedule allowing it to resolve these objections before

the first hearing begins.

STATUTORY BACKGROUND

Section 28.5 of the Act provides in pertinent part as follows:

(a) This Section shall apply solely to the adoption of rules proposed by the

Agency and required to be adopted by the State under the Clean Air Act as

amended by the Clean Air Act Amendments of 1990 (CAAA).

* * *

(c) For purposes of this Section, a “fast-track” rulemaking proceeding is a

proceeding to promulgate a rule that the CAAA requires to be adopted. For

purposes of this Section, “requires to be adopted” refers only to those regulations

or parts of regulations for which the United States Environmental Protection

Agency is empowered to impose sanctions against the State for failure to adopt

such rules. All fast-track rules must be adopted under procedures set forth in this

Section, unless another provision of this Act specifies the method for adopting a

specific rule.

---

4

(d) When the CAAA requires rules other than identical in substance rules to be

adopted, upon request by the Agency, the Board shall adopt rules under fast-track

rulemaking requirements.

(e) The Agency shall submit its fast-track rulemaking proposal in the following

form:

(1) The Agency shall file the rule in a form that meets the requirements of

the Illinois Administrative Procedure Act and regulations promulgated

thereunder.

(2) The cover sheet of the proposal shall prominently state that the rule is

being proposed under this Section.

(3) The proposal shall clearly identify the provisions and portions of the

federal statute, regulations, guidance, policy statement, or other document upon

which the rule is based.

(4) The supporting documentation for the rule shall summarize the basis

for the rule.

(5) The Agency shall describe in general the alternative selected and the

basis for the alternative.

(6) The Agency shall file a summary of economic and technical data upon

which it relied in drafting the rule.

(7) The Agency shall provide a list of documents upon which it directly

relied in drafting the rule or upon which it intends to rely at the hearings and shall

provide such documents to the Board. Additionally, the Agency shall make such

documents available at an appropriate location for inspection and copying at the

expense of the interested party.

(8) The Agency shall include in its submission a description of the

geographical area to which the rule is intended to apply, a description of the

process or processes affected, and a list of sources expected to be affected by the

rule to the extent known to the Agency.

* * *

(j) The Board shall adopt rules in the fast-track rulemaking docket under the

requirements of this Section that the CAAA requires to be adopted, and may

consider a non-required rule in a second docket that shall proceed under Title VII

of this Act. 415 ILCS 5/28.5 (2004).

AGENCY STATEMENT OF REASONS

In its Statement of Reasons, the Agency argues that “[t]his regulatory proposal is

properly submitted to the Board under Section 28.5 of the Act as a fast-track rulemaking

proceeding.” Statement at 8. The Agency notes that Section 28.5 “shall apply solely to the

adoption of rules proposed by the Agency and required to be adopted by the State under the

Clean Air Act as amended by the Clean Air Act Amendments of 1990 (CAAA).”

Id

., citing 415

ILCS 28.5(a) (2004). The Agency further notes that

---

5

[f]or purposes of this Section, a ‘fast-track’ rulemaking proceeding is a proceeding to

promulgate a rule that the CAAA requires to be adopted. For purposes of this Section,

‘requires to be adopted’ refers only to those regulations or parts of regulations for which

the United State Environmental Protection Agency is empowered to impose sanctions

against the State for failure to adopt such rules.” Statement at 8, 9, citing 415 ILCS

5/28.5(c) (2004).

The Agency also cites section 28.5(d) of the Act, which provides that, “[w]hen the CAAA

requires rules other than identical in substance rules to be adopted, upon request by the Agency,

the Board shall adopt rules under fast-track rulemaking requirements.” Statement at 8, 9, citing

415 ILCS 5/28.5(d) (2004).

The Agency states that it filed its proposal in order to satisfy Illinois’ obligations under

Phase II of the NO

x

SIP Call of the United States Environmental Protection Agency (USEPA).

Statement at 1. The Agency argues that satisfaction of these obligations “is clearly required” by

the Clear Air Act (CAA). Statement at 9. Specifically, the Agency claims that “[t]he NO

x

SIP

Call was promulgated under Section 110(a)(2)(D) of the CAA, which requires states to develop

SIPs to ensure that emissions from a source or group of sources do not significantly contribute to

nonattainment, or interfere with the maintenance, of a NAAQS [National Ambient Air Quality

Standard] in other states.”

Id

., citing 42 U.S.C. 7410(a)(2)(D). The Agency also claims that the

state must adopt Phase II rules and NO

x

emission control regulations for engines and turbines in

order to satisfy “the requirements of Section 172 and 182 of the CAA for submitting attainment

demonstrations, RACT, and RFP.” Statement at 9, citing 42 U.S.C. 7502, 7511a.

The Agency argues that “[i]f a state fails to submit plans as required for the NO

x

SIP Call

Phase II, attainment demonstrations, RACT, or RFP, [then] USEPA has the authority to impose a

Federal Implementation Plan (FIP) pursuant to its authority under Section 110(c)(1) of the

CAA.” Statement at 9, citing 42 U.S.C. 7410(c)(1). The Agency further argues that USEPA

could impose two different sanctions upon Illinois if the state fails to adopt rules allowing it to

submit an approvable SIP. Statement at 10, citing 42 U.S.C. 7509. Specifically, the Agency

claims that failure to adopt those rules could result in the loss of highway funds and in “the

increase in the emissions offset requirement for New Source Review to 2:1.” Statement at 10,

citing 42 U.S.C. 7509(b)(1), 7509 (b)(2).

The Agency states that USEPA triggers the application of sanctions by finding that a

state’s plan for any area “is substantially inadequate to attain or maintain the relevant NAAQS.”

Statement at 10, citing 42 U.S.C. 7410 (k)(5). The Agency argues that, without the adoption of

these proposed regulations, “Illinois will not be able to submit a plan that would demonstrate

attainment or meet RACT or ROP requirements for the PM

2.5

or 8-hour ozone NAAQS.”

Statement at 10. The Agency suggests that, by definition, “a plan that fails to demonstrate

attainment would be substantially inadequate and would trigger [CAAA] Section 179 sanctions.”

Id

., citing 42 U.S.C. 7509(a).

The Agency states that implementation of the federal Clean Air Interstate Rule (CAIR)

will not be sufficient to attain those NAAQS and that Illinois requires the additional reduction

proposed in this rulemaking. Statement at 10;

see

Proposed New Clean Air Interstate Rule

---

6

2

, NO

x

Annual and NO

x

Ozone Season Trading Programs, 35 Ill. Adm. Code 225,

Subparts A, C, D, E, and F, R06-26 (Apr. 19, 2007) (first-notice opinion and order). The

Agency claims that “[t]he Board has determined in the past that regulations adopted in order to

obtain the reductions needed for attainment demonstrations and meeting other requirements

under Section 182 of the CAA warranted the use of Section 28.5 of the Act to avoid sanctions.”

Statement at 10;

see

42 U.S.C. 7511a. The Agency further claims that “the Board has the

authority to adopt regulations to avoid sanctions for a failure to meet the requirements of Section

172 of the CAA as it is also contained in Part D of the CAA.” Statement at 10-11 (citations

omitted);

see

42 U.S.C. 7502. The Agency concludes this claim by arguing that, “through past

practice and as confirmed by relevant case law, the Board has recognized that failure to adopt

regulations proposed for the purposes of meeting the requirements of Part D of the CAA would

satisfy the requirements for a Section 28.5 rulemaking.” Statement at 11.

The Agency notes that fast-track procedures do not apply to “identical in substance”

rules. Statement at 11;

see

415 ILCS 5/28.5(d) (2004). The Agency argues that it proposes

Subpart Q in order to meet three federal requirements under the CAA and not to “mirror any

federal guidance or rule.” Statement at 11. The Agency argues that its “proposal is not identical

in substance” and therefore not ineligible for consideration under the procedures of Section 28.5.

Id

.

PIPELINE CONSORTIUM’S OBJECTION

The Pipeline Consortium seeks to have the Board reject the Agency’s request to consider

the proposed rulemaking under the fast-track procedures of Section 28.5 of the Act. Pipeline

Obj. at 1, citing 415 ICLS 5/28.5 (2004). The Pipeline Consortium argues that the proposal, “to

the extent it applies to units other than NO

x

SIP Call Phase II affected units, does not satisfy the

requirements of Section 28.5 because application of the rule statewide is not ‘federally required

to be adopted’ by the Clean Air Act, 42 U.S.C. § 7401,

et seq

.” Pipeline Obj. at 1. The Pipeline

Consortium claims that reliance on Section 28.5 in considering the Agency’s proposal would be

contrary to the legislature’s intent in adopting that section and “an improper exercise” of that

authority.

Id

. However, the Pipeline Consortium states that it:

is willing to set aside its objection as to the portion of the Agency’s proposal that

applies to NO

x

SIP Call Phase II affected units, but only if the Board grants the

request of the Pipeline Consortium to bifurcate and move the portion of the

Agency’s proposal that does not apply to NO

x

SIP Call Phase II affected units to a

separate docket that proceeds under Section 27 of the Act.

Id

. at 1-2;

see

415

ILCS 5/27 (2004).

The Pipeline Consortium states that “[t]he Board has, in the past, segregated portions of a

proposed rule into a separate docket where the Board determines that it needs additional

information.” Pipeline Obj. at 10 n.8, citing Tiered Approach to Corrective Action Objectives

(TACO), 35 Ill. Adm. Code Part 742, R97-12(A) (April 17, 1997). The Pipeline Consortium

submitted as Exhibit A an edited version of the Agency’s proposal including NO

x

SIP Call Phase

II units “that may proceed under Illinois’ fast track process.” Pipeline Obj. at 10. The Pipeline

Consortium states that “[t]he proposal that should proceed under Section 27 of the Act could

---

7

similarly be fashioned by addressing units and associated provisions excluded from Exhibit A

and removing the Exhibit A affected units.”

Id

.

The Pipeline Consortium argues that Section 28.5 “allows certain rules required under

the federal Clean Air Act to proceed in an expedited schedule to prevent imposition of sanctions

by the United States Environmental Protection Agency.” Pipeline Obj. at 3. The Pipeline

Consortium further argues that “[t]he intent and history of Section 28.5 demonstrate that the fast

track procedures were meant as a narrow solution to a very particular problem,

i.e.

, that lengthy

formal rulemaking processes could hinder the Board from promulgating rules required under the

Clean Air Act in accordance with federally-imposed deadlines.”

Id

. (citation omitted). The

Pipeline Consortium notes that fast-track procedures are available only for consideration of rules

required to be adopted by the CAA.

Id

.;

see

415 ILCS 5/28.5(a) (2004). The Pipeline

Consortium further notes that a proposed rule is “required to adopted” only if failure to adopt it

would expose the state to the risk of federal sanctions. Pipeline Obj. at 3, citing 415 ILCS

5/28.5(c) (2004).

NO

x

SIP Call

The Pipeline Consortium states that, after concluding that 23 jurisdictions contribute to

the nonattainment of ozone standards in states downwind from them, USEPA “took final action

in the NO

x

SIP Call Rule to prohibit specified amounts of emissions of NO

x

.” Pipeline Obj. at 4.

Specifically, the Pipeline Consortium states that USEPA “used its authority under Sections

110(a)(1) and 110(k)(5) and issued a SIP Call, requiring those 23 states to amend their SIPs to

reduce NO

x

emissions so as not to adversely affect the ozone attainment status of downwind

states.”

Id

.;

see

63 F.R. 57,355 – 57,538 (Oct. 27, 1998).

The Pipeline Consortium states that, after various entities challenged the NO

x

SIP Call in

federal court, USEPA responded to the court’s order by dividing the NO

x

SIP Call into Phases I

and II. Pipeline Obj. at 4. The Pipeline Consortium further states that, under Phase II, USEPA

“required all states with large reciprocating internal combustion engines to develop SIPs by

April 1, 2005 to achieve NO

x

reductions commensurate with Phase II rule requirements.”

Id

.

The Pipeline Consortium argues that USEPA has allowed states to meet the NO

x

emissions

reduction requirements of the NO

x

SIP Call either by regulating large internal combustion

engines to meet NO

x

reduction targets or by allowing individual companies to meet emissions

reduction targets set for them.

Id

.

The Pipeline Consortium notes that USEPA has “found that Illinois had failed to submit

the required SIP revisions in response to Phase II of the SIP Call.” Pipeline Obj. at 5. As a

consequence of this failure, claims the Pipeline Consortium, USEPA intends to develop a

Federal Implementation Plan (FIP) that would become effective if the state failed to amend its

SIP on a timely basis.

Id

., citing 71 Fed. Reg. 6347 (Feb. 8, 2006);

see

42 U.S.C. 7410(c).

The Pipeline Consortium clams that “the NO

x

SIP Call affected only large engines, with

average ozone season emission in 1995 greater than one ton per day, which is equivalent to

approximately 2,400 hp with 100% utilization for the entire 153-day season.” Pipeline Obj. at 5.

The Pipeline Consortium argues that IEPA has inappropriately concluded that the SIP Call

---

8

applies to engines equivalent to 1,500 hp.

Id

., citing TSD at 17. The Pipeline Consortium

disputes IEPA’s argument “that all elements of the proposal, including the regulation of

all

engines 500 hp and larger and turbines 3.5 MW [megawatt] and larger, regardless of their

location, are authorized to proceed as a Section 28.5 fast track rulemaking.” Pipeline Obj. at 5

(emphasis in original).

NO

x

RACT

The Pipeline Consortium states that the Agency intends its proposal to satisfy the State’s

obligation under Phase II of the NO

x

SIP Call “

as well as

the Clean Air Act’s requirements for

reasonable further progress, reasonably available control technology (RACT), rate-of-progress

(ROP), and attainment demonstrations for the 8-hour ozone and PM

2.5

National Ambient Air

Quality Standards (NAAQS).” Pipeline Obj. at 5 (emphasis in original), citing Statement at 1-2.

Characterizing the Agency’s proposal as a “veritable bundle of emission reduction strategies,”

the Pipeline Consortium argues that only those reductions applying to units in Phase II of the

NO

x

SIP Call are “even arguably federally necessary.” Pipeline Obj. at 5.

The Pipeline Consortium argues that “[t]he Agency cannot use Phase II of the NO

x

SIP

CALL to justify the imposition of NO

x

RACT.” Pipeline Obj. at 6. The Pipeline Consortium

claims that, “while additional NO

x

reductions may eventually be necessary to address PM and

ozone nonattainment, there is nothing under the NO

x

SIP Call Phase II, or other existing federal

law, that requires a state specifically to regulate internal combustion engines and turbines, let

alone requires control of these engines statewide, or control of units as small as 500 hp and 3.5

MW.”

Id

. at 5-6. The Pipeline Consortium further claims that “NO

x

RACT is predominantly

implemented in non-attainment area only, and USEPA only requires that the state

consider

NO

x

RACT for sources in nonattainment areas.”

Id

. at 6 (emphasis in original).

The Pipeline Consortium further argues that “the SIP Call clearly is based only on the 1-

hour ozone NAAQS.” Pipeline Obj. at 6, citing 69 Fed. Reg. 21,604-05 (April 21, 2004).

Consequently, the Pipeline Consortium argues that “there is not an immediate time constraint or

threat of federal sanctions pertaining to deficiencies associated with 8-hour ozone or fine

particulate SIPS.” Pipeline Obj. at 6. Consequently, the Pipeline Consortium claims that “the

NO

x

RACT provisions are not appropriate for a Section 28.5 proceeding to the extent they go

beyond what is required for Phase II units.”

Id

. If the Board accepts the Agency’s claim that the

NO

x

RACT proposal is federally required by general SIP requirements, then the Pipeline

Consortium urges “that at the very least, the portion of the NO

x

RACT proposal that applies in

attainment areas is not federally required and should be moved to a separate docket.”

Id

. n.6.

The Pipeline Consortium disputes the Agency’s claim that “it cannot ‘submit a plan that

would demonstrate attainment or meet RACT or ROP requirements for the PM

2.5

or 8-hour

ozone NAAQS’ without the proposed rule.” Pipeline Obj. at 6, citing Statement at 10. The

Pipeline Consortium claims that the Agency has not justified the control of all units at the

proposed thresholds on a statewide basis or compared other approaches. Pipeline Obj. at 6. The

Pipeline Consortium further claims that “[a]ny number of other measures or combinations of

measures could be proposed that would achieve similar or greater reductions.’

Id

.

---

9

Furthermore, the Pipeline Consortium argues that Illinois would only experience

consequences for failing to meet USEPA requirements if IEPA is tardy in addressing Phase I

units. Pipeline Obj. at 6. The Pipeline Consortium further argues that “even those consequences

may not be considered ‘sanctions’ within the meaning of Section 28.5.”

Id

. Although USEPA’s

Finding of Failure indicates that “it will pursue a FIP should a submission to address Phase II of

the SIP Call not be forthcoming,” the Pipeline Consortium argues that “[i]t is well-established

that the imposition of a FIP does not constitute a ‘sanction’ under the Clean Air Act.”

Id

. at 7,

citing Virginia v. EPA, 74 F.3d 517, 521 (4th Cir. 1996); Dynegy Midwest Generation, Inc. v.

PCB, No. 06-CH-213 (Sangamon County Circuit Court) (May 1, 2006) (Order on Motion for

Preliminary Injunction).

The Pipeline Consortium continues by arguing that “the Agency has also failed to

demonstrate the rule’s importance to protecting air quality.” Pipeline Obj. at 7. Referring to

modeling performed by the Lake Michigan Air Directors Consortium (LADCO), the Pipeline

Consortium argues that “emission reductions for all units need not be adopted statewide to

improve air quality in Illinois.”

Id

., citing TSD, Attachment A (Assessment of Regional NO

x

Emission in the Upper Midwest). Specifically, the Pipeline Consortium claims that “modeling

shows that attainment area emissions from non-electricity generating units have a relatively

minor impact relative to emissions within the nonattainment area, which have a far greater

impact.” Pipeline Obj. at 7. The Pipeline Consortium further claims that “[f]urther modeling is

already underway that will refine the existing data.”

Id

. The Pipeline Consortium claims that

“[b]ifurcating this rulemaking by moving portions applicable to non-Phase II units to a separate

docket will allow the Board to consider this new modeling before making a final decision on

non-Phase II units and will not compromise the State’s obligation to address Phase II of the SIP

Call, in any way.”

Id

.

Procedural Requirements

The Pipeline Consortium argues that the Board’s recent mercury rulemaking proceeding

illustrates the consequences “of allowing a proposed rule that is more stringent than required by

federal law to proceed as a fast track rulemaking.” Pipeline Obj. at 8, citing

Proposed New 35

Ill. Adm. Code Part 225 Control of Emissions from Large Combustion Sources, R06-25. The

Pipeline Consortium argues that, because the proposed rule is not in its entirety federally

required, it is likely to succeed in arguing that it will suffer irreparable harm if the entire

proposal proceeds on a fast track and in obtaining an order enjoining the Board from proceeding

on that basis. Pipeline Obj. at 8-9;

see

Dynegy Midwest, No. 06-CH-213 (Sangamon County

Circuit Court) (May 1, 2006) (Order on Motion for Preliminary Injunction). The Pipeline

Consortium further argues that it “is entitled to a formal and complete rulemaking process, and

the interest of the public will be better served by having costs of statewide application fully

considered.” Pipeline Obj. at 9, citing Dynegy Midwest, No. 06-CH-213 (Sangamon County

Circuit Court) (May 1, 2006) (Order on Motion for Preliminary Injunction). The Pipeline

Consortium claims that “[t]o do otherwise may only invite Court intervention, when it could

have easily and appropriately been avoided.” Pipeline Obj. at 9.

The Pipeline Consortium argues that “[i]n addition to a court proceeding to stop the

rulemaking from going forward, appellate courts are also able to overturn a rule that is

---

10

promulgated outside of the Board’s statutory authority.” Pipeline Obj. at 9, citing Waste

Management of Illinois, Inc. v. PCB, 595 N.E.2d 1171 (1st Dist. 1992). The Pipeline

Consortium claims that, because “Section 28.5 is an exception to the Board’s general rulemaking

authority under the Act,” an appellate court may set aside the rule if it believes “that the Board

incorrectly misused its authority by adopting a statewide rule when there is no federal

requirement to do so.” Pipeline Obj. at 9, citing Ill. State Chamber of Commerce v. PCB, 384

N.E.2d 922 (1st Dist. 1978).

The Pipeline Consortium suggests that the Board should be particularly cautious about

using fast track procedures in this case “because a number of features of the traditional Section

27 rulemaking procedure were eliminated under Section 28.5 to afford a truncated procedure.”

Pipeline Obj. at 9;

see

415 ILCS 5/ 27, 28.5 (2004). The Pipeline Consortium argues that

Section 28.5 “eliminated . . . the Board’s responsibility to obtain an economic impact study.”

Pipeline Obj. at 9. The Pipeline Consortium expresses the belief that “the cost to the natural gas

industry of application of the rule to non-Phase II units would exceed $80 million.”

Id

. The

Pipeline Consortium states that it and the “public interest must not be deprived of the ability to

obtain an economic impact study to weigh the cost benefit of the State’s proposal.”

Id

. at 9-10.

IERG OBJECTION

IERG states that it “does not believe that the Proposed Rules are appropriate for a Section

28.5 ‘fast-track’ rulemaking proceeding.” IERG Obj. at 1. Noting the position taken by the

Pipeline Consortium in its objection, IERG states that it “does not object to the use of Section

28.5 rulemaking for the 28 internal combustion engines that are affected by the NO

x

State

Implementation Plan Call Phase II.” IERG Obj. at 2-3, citing Pipeline Obj. at 1-2. IERG further

states, however, that “[a]ll other requirements in the Proposed Rules that would affect units other

than the Phase II NO

x

SIP Call Engines are non-required rules, and must be considered under a

second docket that should proceed under Title VII of the Act. IERG Obj. at 2-3.

IERG argues that the Illinois General Assembly in enacting Section 28.5 “chose to limit

fast-track proceedings to rules required to be adopted by the CAA where sanctions can be

imposed for failure to adopt such rules.” IERG Obj. at 4;

see

415 ILCS 5/28.5 (2004). IERG

claims that, without this limit, any rulemaking proposal related to the CAA could be placed on a

fast track, resulting in less deliberation and fewer opportunities for public comment. IERG Obj.

at 4.

IERG argues that the Agency’s proposal should be bifurcated according to Section

28.5(j) of the Act, which provides that “[t]he Board shall adopt rules in the fast-track rulemaking

docket under the requirements of this Section that the CAAA requires to be adopted, and may

consider a non-required rules in a second docket that shall proceed under Title VII of this Act.”

IERG Obj. at 3-4, citing 415 ILCS 5/28.5(j) (2004). IERG states that the Board has severed an

Agency rulemaking proposal into two dockets “because it concluded that sections of the

proposed rulemaking were not federally required.” IERG Obj. at 4, citing

RACT Deficiencies –

Amendments to 35 Ill. Adm. Code Parts 211 and 215, R89-16, slip op. at 8 (Feb. 8, 1990). In

addition, IERG distinguishes this proposal from a recent fast-track rulemaking proposal in which

the Board stated that “the approach taken by the Agency to meet the federal mandate is not

---

11

conducive to identifying and ‘separating out’ portions of the proposal for consideration under

Section 27.” IERG Obj. at 5, citing Proposed New 35 Ill. Adm. Code Part 225 Control of

Emissions from Large Combustion Sources, R06-25, slip op. at 18 (April 20, 2006). IERG

argues that, “[i]n the matter at hand, such a ‘separating out’ process is not difficult.” IERG Obj.

at 6. IERG proposes that a:

first docket would be applicable only to the 28 listed Phase II NO

x

SIP Call

Engines and could proceed under Section 28.5 without the delay that could be

caused by judicial review. The second docket would be applicable to the other

potentially affected units and could proceed under the traditional rulemaking

procedures provided in the Act.

Id

.;

see

415 ILCS 5/27, 28.5 (2004).

IERG claims that “the Proposed Rules are intended to perform three primary regulatory

functions and therefore affect three types of emission units.” IERG Obj. at 6, citing Statement at

12-13. IERG further claims that USEPA “is not currently empowered to impose sanctions

against the State for failure to adopt rules to meet such requirements.” IERG Obj. at 7.

Attainment of the 8-hour Ozone and PM

2.5

NAAQS

In the first category, IERG places those units identified by the Agency as “units where

emission ‘reductions [are] needed for attainment of the [8-hour ozone and PM

2.5

] NAAQS.’”

IERG Obj. at 7, citing Statement at 12. IERG states that this category appears to include

“internal combustion engines over 500 bhp [brake horsepower] and specified turbines at minor

sources in nonattainment area and at all sources in attainment areas statewide” (Contested

Sources). IERG Obj. at 7 (characterizing these as the “Improperly Affected Units”). IERG

argues that, as applied to the Contested Sources, the Agency’s proposed regulations “1) are nor

required by the CAA; 2) could not trigger sanctions if not approved; and 3) are, in any case, not

ripe for promulgation under Section 28.5 because the rules are based on preliminary modeling

and have been drafted without the benefit of finalized guidance from the USEPA.”

Id

.

IERG states that the Agency’s Statement of Reasons “repeatedly notes the general duty

of the Illinois EPA to provide attainment demonstrations, and to eventually include such

demonstrations in the State’s SIP.” IERG Obj. at 8. IERG traces this duty to Sections 172 and

182 of the CAA.

Id

, citing 42 U.S.C. 7502, 7511a. IERG argues that, although both sections

discuss items that must be included in attainment demonstrations and specific requirements for

major sources in nonattainment areas, “neither Section requires any specific action with regard to

any sources and/or emission outside a nonattainment area.” IERG Obj. at 8. IERG claims that

the specific circumstances under which USEPA may impose sanctions under Section 179 of the

CAA do not apply to the controls that the Agency seeks to apply to the Contested Sources.

Id

. at

8-9, citing 42 U.S.C. 7509. Without the risk of USEPA sanctions, argues IERG, application of

the Agency’s proposal to the Contested Sources “is not required by the CAA.” IERG Obj. at 8-9.

IERG concludes by arguing that the Agency cannot avail itself of fast-track procedures for

consideration of this element of its proposal.

Id

. at 9.

IERG discounts the Agency’s claim that its entire proposal “must be implemented almost

immediately or sanctions may be imposed.” IERG. Obj. at 9. IERG notes the Agency’s

---

12

statement that “[m]oderate nonattainment areas are required to submit attainment demonstrations

by June 15, 2007, addressing how the State will achieve the 8-hour ozone standard by the

attainment date of June 15, 2009 . . . .”

Id

., citing Statement at 5. IERG further notes the

Agency’s claim that SIP revisions such as attainment demonstrations for ozone and PM

2.5

must

be fully adopted. IERG Obj. at 9, citing Statement at 3;

see

42 U.S.C. 7410. Responding to these

claims, IERG states that “rulemaking to incorporate a State regulation in SIP may also be

initiated when a rule has been proposed by the State but not yet adopted.” IERG Obj. at 9, citing

47 F.R. 27073 (June 23, 1982). IERG argues that that USEPA recently restated this

interpretation with regard to the Phase II NO

x

SIP Call: “[w]e note that State can submit draft

plans (i.e., plans that have not completed the final steps in the State administrative process) for

parallel processing.” IERG Obj. at 9, citing 69 F.R. 21604, 21633. IERG claims that these

authorities persuasively demonstrate that, since the Agency has proposed rules regarding the

Contested Sources, USEPA would not impose sanctions for failure to adopt the portions of the

proposal applying to them. IERG Obj. at 9.

IERG argues that the Agency has not completed the air modeling on which it bases the

proposed rules applicable to the Contested Sources. IERG Obj. at 10,citing Statement at 12.

IERG discounts the relevance of two documents submitted by the Agency on the issue of air

modeling. IERG characterizes the TSD for the CAIR rule as, “at best, only peripherally related

to the matters addressed by the Proposed Rules.” IERG Obj. at 10;

see

TSD, Attachment 11a.

IERG also argues that the Attainment Strategy Options document prepared by LADCO is only a

draft document and is nearly 18 months old. IERG Obj. at 10;

see

NO

x

Emissions from

Stationary Reciprocating Internal Combustion Engines and Turbines: Amendments to 35 Ill.

Adm. Code Section 210.146, Parts 211 and 217, R07-18 (April 6, 2007) (TSD Attachment 11b).

IERG acknowledges that TSD Attachment A includes additional modeling information

but that it “apparently does not model the impact of the Proposed Rules.” IERG Obj. at 10;

see

TSD, Att. A. IERG notes that the TSD Attachment A states that, “with regard to NO

x

in relation

to the 8-hour ozone standard, ‘[t]he source region results show that nearby emission generally

have the highest impacts.’” IERG Obj. at 10, citing TSD at 67. IERG also notes the statement

that “with regard to NO

x

in relation to PM

2.5

, ‘[t]he source region results show that emission

from nearby/local sources are large contributors to PM

2.5

concentrations.’” IERG Obj. at 10,

citing TSD at 72. IERG argues that the TSD does not support the Agency’s claim that

immediate statewide reductions from the Contested Sources are required by air modeling or by

the CAA. IERG Obj. at 10. IERG further argues that USEPA guidance for implementing the

PM

2.5

NAAQS has yet to be finalized.” IERG Obj. at 11. In the absence of this guidance and

complete modeling addressing the proposed rules, IERG contends that “[i]t is difficult to

understand how a rule may be ‘required to be adopted’ by the CAA.”

Id

.

IERG also discounts the Agency’s claim that “the ‘Board has the authority to adopt

regulations to avoid sanctions for a failure to meet the requirements of Section 172 of the CAA

as it is also contained in Part D of the CAA.’” IERG Obj. at 11, citing Statement at 11;

15%

ROP Plan Control Measures for VOM Emissions – Part II Marine Vessel Loading:

Amendments to 35 Ill. Adm. Code Parts 211, 218, and 219, R94-15 (Oct. 25, 1994); Visible and

Particulate Matter Emissions – Conditional Approval and Clean Up Amendments to 35 Ill. Adm.

Code Parts 211 and 212, R96-5 (May 22, 1996). IERG first argues that R94-15 “involved

---

13

Section 218 and 219 and, therefore, by definition was not applicable statewide.” IERG Obj. at

11. Second, IERG argues that R96-5 stated that, although it applied statewide, its major changes

applied to specific and limited areas of the state.

Id

. IERG contends that the authorities cited by

the Agency lend no support to a proposed statewide rule affecting the Contested Sources.

Id

.

IERG acknowledges that the Board has applied RACT rules similar to the statewide rules

proposed in this proceeding beyond the boundaries of nonattainment areas. IERG Obj. at 12,

citing Proposed Amendments to 35 Ill. Adm. Code 215.204, 215.211, and 215.212: Heavy Off-

Highway Vehicle Products, R86-36 (June 25, 1987); RACT II Rules, Chapter 2: Air Pollution,

R80-5 (May 27, 1982). IERG notes that, in R86-36, the Board stated “that emissions in certain

attainment counties can impact on the ozone air quality in adjacent nonattainment counties via

the phenomenon of transport. The significance of

the transport phenomenon has been

extensively developed in the instant record

. . . .” IERG Obj. at 12 (emphasis in original), citing

Proposed Amendments to 35 Ill. Adm. Code 215.204, 215.211, and 215.212: Heavy Off-

Highway Vehicle Products, R86-36, slip op. at 37 (June 25, 1987). IERG further notes that, in

R80-5, the Board found “

strong logic and evidence in the record of his proceeding of

hydrocarbon transport

.” IERG Obj. at 12 (emphasis in original); citing RACT II Rules, Chapter

2: Air Pollution, R80-5 (May 27, 1982). Unlike those two matters, IERG argues “there has been

no ‘extensive’ development of the potential for transport of NO

x

from Attainment Rea Units into

nonattainment areas” and that the record in this proceeding is insufficient to demonstrate that

emission reductions at the Contested Sources will affect nonattainment area. IERG Obj. at 12.

NO

x

RACT for Large Engines and Turbines at Major Sources in Nonattainment Areas

In the second category of emission units addressed by the Agency’s proposal IERG

places “units where reductions are needed to comply with NO

x

RACT requirements for ozone

and PM

2.5

.” IERG Obj. at 13, citing Statement at 13. Specifically, IERG characterizes as the

affected units in this category as “internal combustion engines and turbines located at major

sources in nonattainment areas” (Major Source Nonattainment Area Units). IERG Obj. at 13.

IERG notes the Agency’s statement that “States are required to submit SIPs addressing

RACT for precursors of ozone, which includes NO

x

. Major sources in moderate nonattainment

areas are defined as those that have the potential to emit 100 tons or more of NO

x

in a

nonattainment area.” IERG Obj. at 13, citing Statement at 13. IERG argues that

[t]he federally required nonattainment plan provisions include “the

implementation of all reasonably available control measures as expeditiously as

practicable (including such reductions in emissions

from existing sources in the

area

as may be obtained through the

adoption, at a minimum, of reasonably

available control technology

) and shall provide for attainment of the national

primary ambient air quality standards.” IERG Obj. at 13-14 (emphasis in

original), citing 42 U.S.C. 7502(c).

IERG argues that, “[w]hile this language in the CAA indicates that NO

x

RACT for major sources

in nonattainment areas may be required at some point,” it does not conclusively determine

“whether the USEPA could impose sanctions on the State for failure to impose RACT on the

---

14

Major Source Nonattainment Area Units.” IERG Obj. at 14. IERG further argues that the

Agency “has not properly demonstrated that reductions from the Major Source Nonattainment

Area Units would be required by admittedly incomplete air modeling or by the CAA.”

Id

. IERG

concludes that, to the extent the proposal requires RACT for those units, it is not eligible to

proceed under Section 28.5.

Id

.;

see

415 ILCS 5/28.5 (2004).

Phase II NO

x

SIP Call

In the third category of emission units addressed by the Agency’s proposal IERG places

“units where reductions are needed to comply with the Phase II NO

x

SIP Call.” IERG Obj. at 14.

IERG notes that USEPA has found that Illinois has failed to submit its Phase II SIP

revisions. IERG Obj. at 14, citing 71 F.R. 6347 (Feb. 8, 2006). IERG further notes that “this

finding defines the start of a clock for [US]EPA to develop a federal implementation plan (FIP)

under section 110(c) of the CAA. IERG Obj. at 14, citing 71 F.R. 6347 (Feb. 8, 2006). IERG

expresses doubt as to whether imposition of a FIP constitutes a “sanction” and therefore “does

not believe that portions of the Proposed Rule that would affect Phase II NO

x

SIP Call Engines

may be properly promulgated under Section 28.5.” IERG Obj. at 14-15, citing Dynegy Midwest,

No. 06-CH-213 (Sangamon County Circuit Court) (May 1, 2006) (Order on Motion for

Preliminary Injunction). Based on the position taken by the Pipeline Consortium (

infra

at 3-4),

however, IERG states that it “does not oppose the use of Section 28.5 for the promulgation of the

portions of the Proposed Rules that affect” those units. IERG Obj. at 15.

Compliance with Procedural Requirements

IERG states that “Section 28.5 includes several procedural requirements that must be

followed by the Illinois EPA and the Board for the promulgation of regulations under that

Section.” IERG Obj. at 15. IERG further states that “[p]ortions of the Proposed Rules and the

associated materials fail to conform to the statutory procedural requirements.” IERG Obj. at 16.

Arguing that “

agency action that is inconsistent with the statute or regulations must be

overturned

” (IERG Obj. at 15 (emphasis in original), citing

IEPA v. PCB, 219 Ill. App. 3d 975,

977, 759 N.E.2d 1215, 1217 (5th Dist 1991)), IERG claims that specific portions of the proposal

must either proceed under Section 27 of the Act or require additional data before proceeding

under Section 28.5.

See

IERG Obj. at 16-22;

see also

415 ILCS 5/27, 28.5 (2004).

Identification of Federal Basis of Rule

IERG states that, when the Agency files a fast-track rulemaking, “[t]he proposal shall

clearly identify the provisions and portions

of the federal statute, regulations, guidance, policy

statement, or other documents on which the rule is based.” IERG Obj. at 16 (emphasis in

original), citing 415 ILCS 5/28.5(e)(3) (2004). IERG notes that the Agency filed its proposal to

satisfy the State’s obligations under USEPA’s NO

x

SIP Call and to meet the requirements for

RACT, RFP, ROP, and attainment demonstrations for the 8-hour ozone PM

2.5

NAAQS under the

CAA. IERG Obj. at 16, citing Statement at 1-2; 42 U.S.C. 7401

et seq

. IERG further notes that

the Agency’s proposal “contains general references to Part D, subparts 1 and 2; Section 172, and

Section 182.” IERG Obj. at 16, citing Statement at 6;

see

42 U.S.C. 7502, 7511a.

---

15

IERG states that it “does not oppose the proposition that the Phase II NO

x

SIP Call is a

clearly identified document upon which the portion of the Proposed Rules affecting the Phase II

NO

x

SIP Call Engines could be based.” IERG Obj. at 17. Continuing, IERG states that it “has

no opinion on whether the reference to the RACT provisions of the CAA may include enough

specificity that the Illinois EPA has clearly identified the provision of the CAA that requires

RACT for the Major Source Nonattainment Area Units.”

Id

. Concluding, IERG argues that the

Agency’s general references “to the CAA, and the RFP, ROP, and NAAQS provisions of the

CAA, do not

clearly identify the provisions and portions

of the CAA that form the basis of the

portions of the Proposed Rules that would affect” the Contested Sources.

Id

.

In support of this claim, IERG states that seven separate provisions of the CAA refer to

RFP, 41 separate provisions refer to the NAAQS, and no provision refers to ROP. IERG Obj. at

17. IERG states that the portions of the Agency’s proposal affecting the Contested Sources

“are clearly not based on every provision or portion of the CAA that references RFP or the

NAAQS and must be based on some other document than the CAA with regard to ROP”.

Id

.

Although IERG acknowledges that it may be possible to determine the Agency’s specific bases

for its proposal, IERG argues that the Agency has failed in its duty to “

clearly identify the

provisions and portions

” of the federal authorities on which the proposal is based.

Id

. (emphasis

in original). IERG concludes that “the portions of the Proposed Rules that would affect any

units other than the Phase II NO

x

SIP Call Engines do not meet the required form of filing for a

[Section] 28.5 rulemaking and must be separated from the provisions of the Proposed Rules that

would affect the Phase II NO

x

SIP Call Engines, and treated as a separate rulemaking under

Section 27.” IERG Obj. at 18;

see

415 ILCS 5/27, 28.5(e)(3) (2004).

List of Units

IERG states that, when the Agency files a fast-track rulemaking, the proposal must

include “an

identification by classes

of the entities expected to be affected, and

a list of sources

expected to be affected by the rules to the extent known to the Agency

.” IERG Obj. at 18

(emphasis in original), citing 415 ILCS 5/28.5(e)(8) (2004). IERG notes that the Agency

identified 28 engines subject to the NO

x

SIP Call and listed them in both the TSD and in the

proposed Appendix G to Part 217. IERG Obj. at 18-19; citing TSD at 80-81; Statement, Exh.

9.c. IERG also notes that:

[o]ther engines that will be affected by this proposal are those that are rated at 500

bhp or greater. There are 1,200 engines rated at or greater than 1,500 bhp, and

175 engines rated between 500 bhp and 1,500 bhp. Of these,

202 of the larger

engines are potentially impacted as are 44 of the smaller engines

. Turbines that

will be affected are those rated at 3.5 MW or greater. . . . There are 205 turbines

rated at 3.5 MW or greater. Of these, 36 are expected to be affected by the rule.

IERG Obj. at 19 (emphasis in original), citing TSD at 54-55.

IERG notes that the Agency has listed the 202 larger impacted engines and 36 impacted turbines.

IERG Obj. at 19, citing TSD at 83-85.

---

16

IERG notes that “[n]either the Proposed Rules nor any of the supporting documents

includes a list of the 44 smaller engines that would be affected by the Proposed Rules.” IERG

Obj. at 19. IERG acknowledges that Section 28.5 only requires these engines to be listed “to the

extent known to the Agency.”

Id

., citing 415 ILCS 5/28.5(e)(3) (2004). IERG argues, however,

that “[t]he definitiveness of the number ‘44’ clearly indicates that the Illinois EPA knows which

specific 44 units could be affected.” IERG Obj. at 19. IERG concludes that the Agency has

failed to meet the filing requirements of Section 28.5(e)(8) and argues that “the portions of the

Proposed Rules that may affect these 44 units may not be promulgated under Section 28.5. Such

rules must be promulgated under Section 27.” IERG Obj. at 19;

see

415 ILCS 5/27, 28.5 (2004).

IERG claims that “the Illinois EPA’s lists of 202 affected engines and 36 affected

turbines do not distinguish between engines or turbines that would be Major Source

Nonattainment Area Units and those that would be Minor Source Nonattainment Area Units or

Attainment Area Units.” IERG Obj. at 20. Because the Agency proposes different compliance

dates based upon engine size and location, IERG claims that the Agency “should identify the

classes of entity that would be expected to be affected by the Proposed Rules with respect to the

major/minor source classification and attainment/nonattainment location” for the 202 engines

and 36 turbines listed.

Id

. Without that listing, IERG argues that the Board and the potentially

affected sources cannot accurately assess the impact of the Agency proposal and that the

proposal does not satisfy Section 28.5(e)(8).

Id

.;

see

415 ILCS 5/28.5(e)(8) (2004).

Summary of Economic Data

IERG states that, when filing a fast-track rulemaking, “[t]he Agency shall file a summary

of economic and technical data upon which it relied in drafting the rule.” IERG Obj. at 20,

citing 415 ILCS 5/28.5(e)(6) (2004). With regard to changes proposed for 35 Ill. Adm. Code

201.146, IERG notes the Agency’s estimate that “the Illinois EPA will incur annual costs of

approximately $100,000, and affected sources will incur no costs.” IERG Obj. at 21, citing

Statement, Exh. 5.a. With regard to changes proposed for 35 Ill. Adm. Code 201.111, IERG

notes the Agency’s estimate that “neither the Illinois EPA nor affected sources will incur any

costs due to the proposed changes.” IERG Obj. at 21, citing Statement, Exh. 5.b. With regard to

changes proposed for 35 Ill. Adm. Code 201.217, IERG notes the Agency’s estimate that

“Illinois EPA will incur annual costs of approximately $150,000.” IERG Obj. at 21, citing

Statement, Exh. 5.c. That same estimate states that the total average annual cost of the proposed

changes “will be $15,270,000 with an average annual cost per affected emission unit of $855.”

IERG Obj. at 21, citing Statement, Exh. 5.c.

IERG argues that “the economic data upon which the Illinois EPA relied in drafting the

rule is simply incorrect.” IERG Obj. at 21. IERG claims that, if the proposed rules affects 28

NO

x

SIP Call engines, 202 large engines, 44 smaller engines, and 36 turbines, and if the total

average annual cost of the program is $15,270,000, then “the average annual cost to each of the

310 affected units would be $49,258.06. On the other hand, if the Illinois EPA’s annual cost

estimate of $855 per unit is correct, the total average annual cost of the Proposed Rules should

be $265,050.”

Id

. Consequently, IERG argues that the Agency has either submitted incorrect

economic data or has not filed the actual data on which it relied.

Id

. at 21-22;

see

415 ILCS

5/28.5(e)(6) (2004). IERG claims that “the Proposed Rules cannot proceed for the Phase II NO

x

---

17

SIP Call Engines under Section 28.5 until the Illinois EPA cures the incorrect economic data.”

IERG Obj. at 22.

AGENCY RESPONSE TO PIPELINE CONSORTIUM

Proposed RACT Requirements

The Agency argues that federal regulations “for 8-hour ozone nonattainment areas

require that NO

x

RACT be adopted on major sources of NO

x

in the nonattainment area pursuant

to Section 182(b) and 182(f) of the CAA. Agency Pipeline Resp. at 4, citing 42 U.S.C.

7511a(b), 7511a(f); 40 C.F.R. 51.912. The Agency claims that sources generally consist of

several emissions units, and the major source threshold in moderate nonattainment areas is

defined as emission of 100 tons per year. Agency Pipeline Resp. at 4, citing TSD at 17. The

Agency argues that “NO

x

RACT applies to engines rated at 500 bhp or more and turbines rated

at 3.5 MW or more that are located in one of Illinois’ two 8-hour ozone nonattainment area.”

Agency Pipeline Resp. at 4.

The Agency further claims that “[f]or each PM

2.5

nonattainment area, the State shall

submit with the attainment demonstration a SIP revision demonstrating that it has adopted all

reasonable available control measures (including RACT for stationary sources) necessary to

demonstrate attainment as expeditiously as practicable and to meet any RFP requirements.”

Agency Pipeline Resp. at 4, citing 40 C.F.R. 51.1010. The Agency states that it has determined

that NO

x

RACT is needed to attain the PM

2.5

NAAQS in Illinois’ two nonattainment areas.

Agency Pipeline Resp. at 4, citing 42 U.S.C. 7502(c); 40 C.F.R. 51.1010. The Agency further

states that it “has evaluated the cost effectiveness of controlling these sources.” Agency Pipeline

Resp. at 4, citing TSD at 29-44. The Agency argues that “the Proposal properly covers engines

rated at 500 bhp or more and turbines rated at 3.5 MW or more that are located in Illinois two

PM

2.5

nonattainment areas.” Agency Pipeline Resp. at 4-5.

Proposed RFP Measures

The Agency claims that Illinois must meet federal requirements for RFP in order to

demonstrate attainment of the NAAQS for 8-hour ozone and PM

2.5

. Agency Pipeline Resp. at 5,

citing 42 U.S.C. 7502(c)(2), 7511a(b)(1), 7511a(c)(2)(C); 40 C.F.R. 51.910, 51.1009. The

Agency argues that “Illinois is required to submit a SIP revision that includes measures that

ensure RFP toward the emissions reductions targets needed for attainment.” Agency Pipeline

Resp. at 5. The Agency claims that USEPA modeling performed for CAIR “concluded that the

reductions from power plant boilers would not be enough for the Metro-East/St. Louis PM

2.5

nonattainment area or greater Chicago PM

2.5

and 8-hour ozone nonattainment areas to achieve

the NAAQS by the attainment dates in 2010.” Agency Pipeline Resp. at 5;

see

Proposed New

Clean Air Interstate Rule (CAIR) SO

2

, NO

x

Annual and NO

x

Ozone Season Trading Programs,

35 Ill. Adm. Code 225, Subparts A, C, D, E, and F, R06-26. The Agency further claims that

modeling it performed with LADCO “shows that reductions in NO

x

from outside of the

nonattainment areas will be necessary to attain the PM

2.5

NAAQS.” Agency Pipeline Resp. at 5,

citing TSD at 19-25. The Agency further claims that “reductions of NO

x

from inside the

nonattainment area, implementation of federal measures, and CAIR, will not be enough for

---

18

attainment of the 8-hour ozone NAAQS in the Chicago nonattainment area.” Agency Pipeline

Resp. at 5-6. The Agency concludes on these bases that “it is appropriate to control sources that

have the potential to emit 100 TPY or more of NO

x

in both nonattainment and attainment areas

of the State.”

Id

. at 6.

In support of this conclusion, the Agency states that USEPA “anticipated that states

would need to include NO

x

emissions reductions from attainment area sources in order [to]

demonstrate attainment of the 8-hour ozone and PM

2.5

NAAQS.” Agency Pipeline Resp. at 6.

Specifically, the Agency states that USEPA continues to follow a “policy of allowing

substitution of VOC from within an 8-hour ozone nonattainment area and NO

x

from within a

PM

2.5

nonattainment area with emission reduction from controlling NO

x

sources from outside the

nonattainment area but within 200 kilometers of the nonattainment area to meet the RFP, and

therefore, the attainment demonstration requirement.”

Id

, citing 70 Fed. Reg. 71616, 71647; 70

Fed. Reg. 66015; 72 Fed. Reg. 20637-38. The Agency notes that this 200 kilometer range “is

essentially the entire State of Illinois.” Agency Pipeline Resp. at 6. In addition, the Agency

states that the rule implementing the PM

2.5

NAAQS requires states “to evaluate control of NO

x

sources in attainment area unless the state demonstrates that these sources do not significantly

contribute to PM

2.5

concentration in nonattainment area.”

Id

. n.1, citing 40 C.F.R. 51.1002(c)(2).

The Agency concludes by claiming that, because it has proposed control of NO

x

emissions in

attainment areas under federal requirements for RFP and attainment, “the rules are federally

required.” Agency Pipeline Resp. at 6.

SIP Revisions

The Agency claims that federal authorities “require states with 8-hour ozone and PM

2.5

nonattainment areas to submit attainment demonstrations with fully adopted measures.” Agency

Pipeline Resp. at 6-7, citing 42 U.S.C. 7502(c), 7511a(b), 40 C.F.R. 51.908, 51.1010. The

Agency argues that the final rules implementing the 8-hour ozone and PM

2.5

NAAQS both

“require states to submit SIP revisions containing fully adopted rules for both RACT, RFP, and

attainment demonstrations.” Agency Pipeline Resp., citing 70 Fed. Reg. 71659 (Nov. 29,2005),

72 Fed. Reg. 20666 (April 25, 2007).

The Agency argues that USEPA under Section 179(a) of the CAA “has the authority to

impose sanctions on states for failing to submit any plan or revision or in response to a finding of

inadequacy.” Agency Pipeline Resp. at 7, citing 42 U.S.C. 7509(a). Noting that Section 179(a)

refers to a plan or plan revisions required under “this part,” the Agency claims that this refers to

Part D. Agency Pipeline Resp. at 8;

see

42 U.S.C. 7509(a). The Agency further claims that Part

D includes “the requirements for RACT, RFP/ROP, and attainment demonstrations, as well as

mandatory sanctions.” Agency Pipeline Resp. at 8. Noting that Section 179(a)(3)(A) of the

CAA refers to state submissions required “under this Act,” the Agency claims that this language

“includes other implementation plans, including the overall SIP Revision required by Section

110(a) of the CAA or other plan.”

Id

., citing 40 C.F.R. 52.31;

see

42 U.S.C. 7509(a)(3)(A).

Specifically, the Agency argues that failing to meet these requirements “could result on the

imposition of both highway and offset sanctions” contained in Section 179(b) of the CAA.

Agency Pipeline Resp. at 7-8, citing 42 U.S.C. 7509(a), 7509(b).

---

19

Imposition of FIP

The Agency dismisses as “irrelevant” the Pipeline Consortium’s argument that

imposition of a FIP is not a sanction under the CAA. Agency Pipeline Resp. at 9, citing Pipeline

Obj. at 7. The Agency states that USEPA has claimed “the authority to impose sanctions on

states that fail to address the provisions of the NO

x

SIP Call, one of whose requirements is the

adoption of provisions to address emission from large stationary reciprocating internal

combustion engines.” Agency Pipeline Resp. at 9, citing 63 Fed. Reg. 47452 (Oct. 27, 1998).

The Agency notes that the state has already received a finding that it had failed to submit a plan.

Agency Pipeline Resp. at 9, citing 71 Fed. Reg. 6347 (Feb. 8, 2006). Because USEPA has stated

that it will not subject states to mandatory sanctions until 18 months after a finding of a failure to

submit, the Agency argues that USEPA has “the authority to impose sanctions – that even the

Pipeline Consortium would admit agree the type of sanctions contemplated within the language

of Section 28.5 – on or after September 8, 2007.” Agency Pipeline Resp. at 9, citing 69 Fed.

Reg. 21633 (April 21, 2004). The Agency concludes by arguing that, since Section 28.5 requires

only that USEPA have authority to impose sanctions if the proposed rules are not adopted, “the

portion of the Illinois EPA’s proposal that addresses the emissions from large reciprocating

internal combustion engines is properly submitted [] under Section 28.5 of the Act as a federally

required rule that would subject the State to sanctions by USEPA if the rule is not adopted.”

Agency Pipeline Resp. at 10;

see

415 ILCS 5/28.5 (2004).

The Agency dismisses as untrue the Pipeline Consortium’s allegation “that regulations

proposed to meet the federal NO

x

RACT, rate-of-progress, and attainment demonstrations for the

8-hour ozone NAAQS are not federally required because there is no federal requirement that

engines and turbines be controlled.” Agency Pipeline Resp. at 10. Within nonattainment area,

the Agency claims that federal authorities require adoption of RACT.

Id

., citing 42 U.S.C.

7511a(b), 7511a(f); 40 C.F.R. 51.911, 51.1010. Outside nonattainment areas, the Agency claims

that “states must evaluate control of NO

x

sources in attainment areas unless the state

demonstrates that these sources do not significantly contribute to PM

2.5

concentrations in

nonattainment areas.” Agency Pipeline Resp. at 10, citing 40 C.F.R. 51.1002(c)(2). The Agency

reiterates that USEPA modeling performed for CAIR concluded that reductions from utility

boilers would not be sufficient to achieve the PM

2.5

NAAQS in the Metro-East/St. Louis or

Chicago nonattainment areas. Agency Pipeline Resp. at 11;

see

Proposed New Clean Air

Interstate Rule (CAIR) SO

2

, NO

x

Annual and NO

x

Ozone Season Trading Programs, 35 Ill.

Adm. Code 225, Subparts A, C, D, E, and F, R06-26. The Agency also restates that its own

preliminary modeling showed that NO

x

reductions from outside of the nonattainment areas will

be necessary to attain the PM

2.5

NAAQS.” Agency Pipeline Resp. at 11. The Agency concludes

that it “is federally required to evaluate controlling these sources.”

Id

.

The Agency states that “Part D of the CAA contains the requirements for RFP, RACT,

and attainment demonstrations.” Agency Pipeline Resp. at 11. The Agency restates its argument

that “USEPA has the authority to impose mandatory sanctions for a state’s failure to complete a

SIP or SIP revision as required by Part D” and suggests that the entire scope of the proposal is

properly submitted under Section 28.5.

Id

.;

see

415 ILCS 5/28.5 (2004).

---

20

Factual Issues

The Agency states that the Pipeline Consortium has made a number of factual claims

with regard to the proposal. Agency Pipeline Resp. at 8, 11, citing Pipeline Obj. at 5-7. The

Agency states that these claims “and other factual questions regarding the content and impact of

the Proposal are best addressed at hearing where witnesses can be cross examined.” Agency

Pipeline Resp. at 8-9. The Agency suggests that, since it has demonstrated that its proposal is a

federally required rule, the Pipeline Consortium’s factual claims are not relevant to determining

whether the Board should proceed under Section 28.5.

See id

.

Economic Impact Study

The Agency disputes the Pipeline Consortium’s claim that Section 28.5 eliminates the

Board’s responsibility to obtain an economic impact study. Agency Pipeline Resp. at 12, citing

Pipeline Obj. at 9. The Agency argues that the general rulemaking provision of the Act “simply

requires that the Board request that the Department of Commerce and Economic Opportunity

(DCEO) conduct an economic impact study of the rule.” Agency Pipeline Resp. at 12;

see

415

ILCS 5/27(b)(1) (2004). The Agency argues that, since DCEO may decline the Board’s request,

proceeding under the Section 27 would not necessarily result in the performance of a study.

Agency Pipeline Resp. at 12. The Agency further argues that it has provided economic data on

its proposed rules and that the Pipeline Consortium may address that issue during the hearings.

Id

. at 12-13.

---

21

AGENCY RESPONSE TO IERG

The Agency dismisses IERG’s objection to the Agency’s position that the proposed rules

addressing RACT, RFP, and attainment demonstrations are federally required rules and its

position that failure to adopt those rules would expose the state to the type USEPA sanctions

contemplated by Section 28.5 of the Act. Agency IERG Resp. at 9;

see

415 ILCS 5/28.5 (2004).

The Agency characterizes these objections as “wholly without substance” and states that they

“fail to acknowledge relevant statutory and regulatory authority.” Agency IERG Resp. at 9.

Phase II NO

x

SIP Call

The Agency states that “[t]he NO

x

SIP Call Phase II required the named states to address

NO

x

emissions from large stationary reciprocating internal combustion engines.” Agency IERG

Resp. at 11. The Agency further states that Illinois received notice from USEPA on October 13,

2005 that the State “had failed to make the necessary implementation plan submission.”

Id

.,

citing Statement, Att. B (letter from USEPA Regional Administrator). Since Illinois did not

make the required submission within 18 months, argues the Agency, “USEPA has the authority

to impose sanctions listed in Section 179(b) of the CAA.” Agency IERG Resp. at 11;

see

42

U.S.C. 7509(b) (listing available sanctions).

While the Agency acknowledges that the USEPA notice refers only to the imposition of a

FIP, the Agency argues that “this does not preclude USEPA’s authority under Section 179 of the

CAA to impose sanctions because Illinois has failed to respond to within the statutory timeframe

to USEPA’s finding pursuant to Section 11(k)(5) of the CAA.” Agency IERG Resp. at 11;

see

42 U.S.C. 7410(k)(5), 7509. The Agency notes USEPA’s statement that “it has the authority to

impose sanctions on states that fail to address the provisions of the NO

x

SIP Call, one of whose

requirements is the adoption of provisions to address emissions from large stationary

reciprocating internal combustion engines.” Agency IERG Resp. at 11, citing 63 Fed. Reg.

47452 (Oct. 27, 1998). The Agency further notes that USEPA has reaffirmed this authority with

regard to Phase II of the NO

x

SIP Call. Agency IERG Resp. at 11, citing 69 Fed. Reg. 21633

(April 21, 2004).

The Agency claims that, since Illinois received a finding of failure to submit a plan on

February 8, 2006, “USEPA would thus have the authority to impose sanctions – that even IERG

would admit are the type of sanctions contemplated within the language of Section 28.5 – on or

after September 8, 2007.” Agency IERG Resp. at 12. Although the Agency notes language

indicating that it could submit a rule that has not been fully adopted for parallel processing, the

Agency claims that this does not determine whether a rule is federally required or whether

USEPA would use its authority to impose mandatory sanctions.

Id

., citing IERG Obj. at 9. The

Agency also argues that Section 28.5 requires only the USEPA have authority to impose

sanctions if the proposed rules are not adopted and does not require that USEPA have already

imposed sanction. Agency IERG Resp. at 12;

see

415 ILCS 5/28.5 (2004). Consequently, the

Agency concludes that its proposal “is properly submitted pursuant to Section 28.5 of the Act as

a federally required rule that could subject the State to sanctions by USEPA if the rule is not

adopted.” Agency IERG Resp. at 12.

---

22

NO

x

RACT

The Agency disputes as untrue IERG’s claim that proposed NO

x

RACT regulations are

not federally required because there is no federal requirement to control engines and turbines.

Agency IERG Resp. at 12. The Agency argues that “[f]ederal requirements for 8-hour ozone

nonattainment area require that NO

x

RACT be adopted on major sources of NO

x

in the

nonattainment area pursuant to Section 182(b) and 182(f) of the CAA.” Agency IERG Resp. at

13, citing 42 U.S.C. 7511a(b), 7511a(f); 40 C.F.R. 51.912. In this proposal, therefore, the

Agency states that it applies NO

x

RACT to engines rated at 500 bhp or more and turbines rated

at 3.5 MW or more that are located in one of Illinois’ two 8-hour ozone nonattainment areas.

Agency IERG Resp. at 13.

With regard to PM

2.5

nonattainment areas, the Agency argues that the final

implementation rule requires states to adopt RACT as necessary to demonstrate attainment.

Agency IERG Resp. at 13, citing 40 C.F.R. 51.1010. The Agency further argues that it “has

determined that NO

x

RACT is necessary for its two PM

2.5

nonattainment area to attain the

NAAQS pursuant to Section 172(c) of the CAA and 40 C.F.R. 51.101 and has evaluated the cost

effectiveness of controlling those sources. Agency IERG Resp. at 13, citing 42 U.S.C. 7502(c);

TSD at 29-44. The Agency states that its proposal “properly covers engines rated at 500 bhp or

more and turbines rated at 3.5 MW or more that are located in Illinois two PM

2.5

nonattainment

area.” Agency IERG Resp. at 14.

Proposed RFP Measures

The Agency argues that federal authorities “require that states meet RFP to demonstrate

attainment for 8-hour ozone and PM

2.5

NAAQS.” Agency IERG Resp. at 14, citing 42 U.S.C.

7502(c)(2), 7511a(b)(1), 7511a(c)(2)(C), 40 C.F.R. 51.910, 51.1009. The Agency further argues

that Illinois must “submit a SIP revision that includes measures that ensure RFP towards the

emissions reductions targets need for attainment.” Agency IERG Resp. at 14, citing 40 C.F.R.

51.910. Specifically, the Agency states that “[t]he SIP revisions for PM

2.5

are due April 2008.”

Agency IERG Resp. at 14.

The Agency restates its claim that USEPA modeling performed for CAIR “concluded

that the reductions from power plant boilers would not be enough for the Metro-East/St. Louis

PM

2.5

nonattainment area or greater Chicago PM

2.5

and 8-hour ozone nonattainment areas to

achieve the NAAQS by the attainment dates in 2010.” Agency IERG Resp. at 14;

see

Proposed

New Clean Air Interstate Rule (CAIR) SO

2

, NO

x

Annual and NO

x

Ozone Season Trading

Programs, 35 Ill. Adm. Code 225, Subparts A, C, D, E, and F, R06-26. The Agency also restates

its claim that modeling it performed with LADCO “shows that reductions in NO

x

from outside of

the nonattainment areas will be necessary to attain the PM

2.5

NAAQS.” Agency IERG Resp. at

14, citing TSD at 19-25. The Agency further repeats its claim that “reductions of NO

x

from

inside the nonattainment area, implementation of federal measures, and CAIR, will not be

enough for attainment of the 8-hour ozone NAAQS in the Chicago nonattainment area.” Agency

IERG Resp. at 14-15. The Agency concludes on these bases that “it is appropriate to control

sources that have the potential to emit 100 TPY or more of NO

x

in both nonattainment and

attainment areas of the State.”

Id

. at 15.

---

23

In support of this conclusion, the Agency repeats its statement that USEPA “anticipated

that states would need to include NO

x

emissions reductions from attainment area sources in order

[to] demonstrate attainment of the 8-hour ozone and PM

2.5

NAAQS.” Agency IERG Resp. at 15.

Specifically, the Agency restates that USEPA continues to follow a “policy of allowing

substitution of VOC from within an 8-hour ozone nonattainment area and NO

x

from within a

PM

2.5

nonattainment area with emission reductions from controlling NO

x

sources from outside

the nonattainment area but within 200 kilometers of the nonattainment area to meet the RFP, and

therefore, the attainment demonstration requirement.”

Id

, citing 70 Fed. Reg. 71616, 71647; 70

Fed. Reg. 66015; 72 Fed. Reg. 20637-38. The Agency again notes that this 200 kilometer range

“is essentially the entire State of Illinois.” Agency IERG Resp. at 15. In addition, the Agency

restates that the final rule implementing the PM

2.5

NAAQS requires states “to evaluate control of

NO

x

sources in attainment areas unless the state demonstrates that these sources do not

significantly contribute to PM

2.5

concentration in nonattainment areas.”

Id

. n.4, citing 40 C.F.R.

51.1002(c)(2). The Agency concludes by claiming that, because it has proposed control of NO

x

emissions in attainment areas under federal requirements for RFP and attainment, “the rules are

federally required.” Agency IERG Resp. at 15.

SIP Revisions

The Agency argues that federal authorities “require states with 8-hour ozone and PM

2.5

nonattainment area to submit attainment demonstrations with fully adopted measures.” Agency

IERG Resp. at 15-16, citing 42 U.S.C. 7502(c), 7511a(b); 40 C.F.R. 51.908, 51.1010. The

Agency claims that, in support of its argument “that USEPA would not exercise its authority to

impose mandatory sanctions for failing to adopt RACT, RFP, and attainment demonstrations,”

IERG “cites guidance that is more than 20 years old.” Agency IERG Resp. at 16, citing IERG

Obj. at 9. The Agency argues that that guidance does not appear to require full adoption at the

time a state submits a SIP in order to meet NAAQS requirements. Agency IERG Resp. at 16.

The Agency notes that IERG also cites the NO

x

SIP Call Phase II for this proposition, although

the Agency claims that USEPA in that case allowed only 12 months for adoption of a rule.

Id

.,

citing 69 Fed. Reg. 21633. In this case, stresses the Agency, “states have been given at least 27

months for adopting measures meeting the requirements for RACT, RFP, and attainment

demonstrations.” Agency IERG Resp. at 16.

The Agency argues that “USEPA’s final implementation rules for both 8-hour ozone

(2005) and PM

2.5

(proposed and final (2007)) require states to submit SIP revisions containing

fully adopted rules for both RACT, RFP, and attainment demonstrations. Agency IERG Resp. at

16, citing 40 C.F.R. 51.908, 51.1010; 70 Fed. Reg. 71659 (Nov. 29, 2005), 72 Fed. Reg. 20666

(April 25, 2007). The Agency claims that “IERG is incorrect in arguing that USEPA will only

impose sanctions if USEPA has already found that the SIP was inadequate.” Agency IERG

Resp. at 17. The Agency insists that, “if Illinois fails to submit SIPs addressing RACT, RFP, or

the attainment demonstration without fully adopted measures, USEPA will have the authority to

impose sanctions.”

Id

.

Scope of Agency Proposal

---

24

The Agency disputes IERG’s claim that “section 28.5 of the Act does not apply to

regulations that affect units or types of sources not specifically required to be controlled by the

CAA or have a statewide effect.” Agency IERG Resp. at 7-8. The Agency responds by stating

that the Board has acted under Section 28.5 to adopt “regulations controlling emissions from

source types not specifically required by the CAA.”

Id

at 8. The Agency claims that, in R94-15,

the Board adopted the Agency’s proposal for marine vessel loading solely for the purpose of

meeting the 15 percent requirements of the CAA when neither the CAA nor any RACT guideline

required Illinois to control emissions from the source.

Id

.;

see

15% ROP Plan Control Measures

– Part II: Marine Vessel Loading: Amendments to 35 Ill. Adm. Code 211, 218, and 219, R94-

15. The Agency further claims that the Board has properly used Section 28.5 to promulgate

other federally required rules applying statewide, including sources located in attainment area.

Agency IERG Resp. at 8, citing Proposed New 35 Ill. Adm. Code 217, Subpart T, Cement Kilns,

and Amendment to 35 Ill. Adm. Code 211 and 217, R01-11; Municipal Solid Waste Landfills –

Non-Methane Organic Compounds 35 Ill. Adm. Code 201.103, 201.146 and Part 220, R98-28.

Compliance with Procedural Requirements

Noting IERG’s objection that its proposal does not satisfy the requirements of Section

28.5, the Agency claims that IERG has assumed “that the Board has a broader scope of review in

deciding whether to accept a “fast-track” rulemaking proposal than is actually conferred by

Section 28.5.” Agency IERG Resp. at 2;

see

415 ILCS 5/28.5 (2004). Citing a 1992 Board

resolution, the Agency argues that “[t]he Board has made clear its position that its review of a

proposal filed pursuant to Section 28.5 of the Act is limited to determining whether all items

found on the checklist in Section 28.5 are present.” Agency IERG Resp. at 3, citing Clean Air

Act Rulemaking Procedures Pursuant to Section 28.5 of the Environmental Protection Act, as

Added by P.A. 87-1213, RES 92-2 (Oct. 29, 1992). The Agency further argues that, in its more

recent adoption of procedural rules, the Board “did nothing to question the view of [its] authority

described in Resolution 92-2.” Agency IERG Resp. at 3, citing Revision of the Board’s

Procedural Rules: 35 Ill. Adm. Code 101-130, R00-20. The Agency claims that the Hearing

Officer Order dated April 20, 2007 assessed that “the proposal met the regulatory and statutory

checklist for proceeding under Section 28.5 of the Act.” Agency IERG Resp. at 3-4, citing 415

ILCS 5/28.5(e) (2004); 35 Ill. Adm. Code 102.302(a).

The Agency argues that it has satisfied the its procedural requirements under Section 28.5

of the Act and continues by addressing IERG’s claims that that the statutory basis for the

proposal is not clearly identified, that the list of affected units has not been specified, and that the

economic data submitted was incorrect.

See

IERG Obj. at 15-22.

Identification of Federal Basis of Rule

The Agency argues that neither Section 28.5 nor the Board’s procedural rules requires

that the legal basis for the proposed rules must be contained in the statement of reasons and that

the basis need be included within the proposal. Agency IERG Resp. at 4. The Agency further

argues that “[i]nformation within the TSD should be read in concert with the information found

within the S[tatement] o[f] R[easons], as both documents are components of the overall

---

25

Proposal.”

Id

. The Agency claims that such a reading shows that it has provided the references

required by Section 28.5(e)(3).

Id

.;

see

415 ILCS 5/28.5(e)(3) (2004).

With respect to RACT, the Agency claims that the TSD states that RACT for ozone

nonattainment areas is implemented under Section 182(b)(2) and 182 (f) of the CAA. Agency

IERG Resp. at 4-5, citing 42 U.S.C. 7511a(b)(2), 7511a(f). The Agency further claims that the

submission date for its proposal complies with 40 C.F.R. 51.912. The Agency also states that the

TSD refers to an ozone guidance document at 70 Fed. Reg. 71612. IERG Resp. at 5,

see

TSD At

64.

With regard to PM

2.5

nonattainment, the Agency claims that states with such areas “must

address NO

x

RACT requirements.” Agency IERG Reps. at 5. The Agency further claims that

“[t]he TSD indicates that the authority and obligation arise from Section 172 of the CAA . . . .”

Id

., citing TSD At 18. The Agency also claims that the TSD indicates that the proposal is also

based upon the PM

2.5

implementation rule, which was not final on the date it submitted the

proposal. Agency IERG Resp. at 5, citing TSD at 18. The Agency states, however, that USEPA

published the final implementation rule on April 27, 2007. Agency IERG Resp. at 5 n.2, citing

72 Fed. Reg. 20589.

With regard to 8–hour ozone RFP/ROP requirements, the Agency states that the TSD

refers to specific authorities including Sections 172(c)(2) and 182(c)(2)(C) of the CAA and 40

C.F.R. 51.910. Agency IERG Resp. at 5, citing 42 U.S.C. 7502(c)(2), 7511a(c)(2)(C); 40 C.F.R.

51.910; TSD at 18. With regard to PM

2.5

RFP requirements, the Agency states that it used a

general reference to Section 172 of the CAA. Agency IERG Resp. at 5, citing 42 U.S.C. 7502.

The Agency further states this it is necessary to control units in attainment areas in order to meet

this requirement. Agency IERG Resp. at 5, citing 70 Fed. Reg. 66015; 70 Fed. Reg. 71616,

71647; 72 Fed. Reg. 20637-38.

With regard to attainment demonstration for 8-hour ozone and PM

2.5

NAAQS, the

Agency states that it provided “general statutory references to Sections 110, 172, and 182 of the

CAA.” Agency IERG Resp. at 5, citing 42 U.S.C. 7410, 7502, 7511a. The Agency also cites

“more particular reference.” Agency IERG Resp, at 5, citing 42 U.S.C. 7511a(b), 7511a(j); 40

C.F.R. 51.908. For PM

2.5

, the Agency refers specifically to additional authorities. Agency

IERG Resp. at 5-6, citing 42 U.S.C. 7502(c), 40 C.F.R. 51.1007. The Agency also argues that

“[t]he TSD provides extensive analysis of the need for intrastate reduction of NO

x

for attainment

of both the 8-hour ozone and PM

2.5

NAAQS.” Agency IERG Resp. at 5-6, citing TSD at 19-25.

List of Units

In response to IERG’s objection that it failed adequately to list to the extent known those

sources expected to be affected by the rule, the Agency states that the TSD lists more than 200

engines and turbines known as potentially affected units. Agency IERG Resp. at 6, citing TSD

at 80-86;

see

415 ILCS 5/28,5(e)(8) (2004). The Agency states that, because engines less than

1,500 bhp do not now require permits to operate and its NO

x

emissions inventory does not now

include all engines of this size, CEO conducted a survey of 10,025 businesses. Agency IERG

Resp. at 6. On the basis of the results of that survey, the Agency reports that it 175 emission

---

26

units may be affected but that many would qualify for exemptions.

Id

. The Agency reports that

it thus reduced the estimated number of units to approximately 44 engines sized from 500 bhp to

1,5000 bhp.

Id

. The Agency concludes that this estimate satisfies the requirements of Section

28.5(e)(8) by listing affected sources to the extent known.

Id

.;

see

415 ILCS 5/28.5(e)(8) (2004).

The Agency argues that “[q]uestions pertaining to the mere use of ‘44’ as a number, and Illinois

EPA’s methodology, are best left for hearing,” do not prevent the Board from considering the

proposal under Section 28.5. Agency IERG Resp. at 6.

Summary of Economic Data

The Agency disputes IERG’s claim that it has not filed a sufficient summary of the

economic data upon which it relied in drafting the rule by noting that it provided extensive data

of this nature in its TSD. Agency IERG Resp. at 7;

see

415 ILCS 5/28.5(e)(6) (2004); TSD at

37-44 (Cost Effectiveness of Controls). However, the Agency acknowledges that there was an

error in its Economic and Budgetary Form.

Id

. The Agency states that, where it has indicted an

average annual cost per emission unit

of $855, it should have indicated a cost of $855

per ton of

NO

x

reduced annually

.

Id

. (emphasis in original). The Agency states that it reports costs on the

basis of tons reduced “because of the differences in sizes of units and the amount of time per

year different units are utilized.”

Id

. The Agency characterizes this error as a minor one that

should not prevent the Board from considering the proposal under Section 28.5.

Id

.;

see

415

ILCS 5/28.5 (2004).

The Agency also notes IERG’s argument “that it is premature to propose controls before

the modeling is complete.” Agency IERG Resp. at 7, citing IERG Obj. at 7. The Agency

suggests that this claim is not relevant “to whether the Illinois EPA has provided the technical

information that the draft rules are based [upon] or whether the rules are federally required.”

Agency IERG Resp. at 7. The Agency argues that issues related to modeling should be

addressed at hearing by questioning the Agency’s witnesses.

Id

.

Opportunities for Public Comment

The Agency disputes IERG’s assertions that, when the Board follows the procedures of

Section 28.5, it is “bypassing the deliberative proceedings of a regular rulemaking” and

providing “less meaningful opportunities for public comment on the proposed rulemaking.”

Agency IERG Resp. at 8;

see

415 ILCS 5/28.5 (2004). The Agency claims that the General

Assembly adopted Section 28.5 in response to a report “addressing reservations by USEPA

about Illinois’ capacity to comply with the strict time frames under the CAA.” Agency IERG

Resp. at 8, citing

Report of the Attorney General’s Task Force of Environmental Resources 1992

at 30. The Agency states that Section 28.5 alleviates these concerns by providing a series of

stringent rulemaking deadlines. Agency IERG Resp. at 8-9. The Agency argues that these

stringent deadlines are inherent in a Section 28.5 proceeding and are irrelevant in determining

whether this proposal should proceed under Section 28.5.

Id

. at 9. The Agency further argues

that the procedures of Section 27 do not eliminate the possibility of expedited rulemakings.

Id

.;

see

415 ILCS 5/27 (2004).

---

27

PIPELINE CONSORTIUM’S REPLY

The Pipeline Consortium reiterates its position that the Board cannot properly consider

Sections 217.392(a)(3) and (4) of the proposed rules under Section 28.5 of the Act. Pipeline

Reply at 1;

see

415 ILCS 5/28.5 (2004). The Pipeline Consortium argues that the Board can

proceed under Section 28.5 only when USEPA “may impose sanctions for the state’s failure to

adopt a federally-required

rule

. Pipeline Reply at 1 (emphasis in original). The Pipeline

Consortium elaborates by stating that

Section 28.5 does not confer jurisdiction when USEPA may impose sanctions for

the state’s failure to make a federally-required submittal that is something other

than a rule, such as an attainment demonstration or plan for reasonable further

progress (“RFP”) or rate of progress (“ROP”) or monitoring deployment plan or

any of a number of other components of the state implementation plan (“SIP”)

that are not rules.

Id

. at 1-2.

Attainment Demonstrations

The Pipeline Consortium argues that the Agency has failed to satisfy the Board’s

procedural rules, which require that the Agency submit various legal, technical and economic

support with its rulemaking proposal. Pipeline Reply at 3;

see

35 Ill. Adm. Code 102.302. The

Pipeline Consortium states that the Agency has provided “no support” for its claim that it is

necessary to include attainment area sources for attainment demonstrations. Pipeline Reply at 3.

The Pipeline Consortium argues that, because the Agency has provided no “overall description

of the mix of sources that will be included in the attainment demonstrations,” the Board lacks

any factual basis on which to determine that including the attainment area sources in the

attainment demonstration is necessary or appropriate.

Id

.

The Pipeline Consortium dismisses the Agency’s view “that this is an issue of fact that is

properly addressed at hearing and is not necessary for inclusion in the initial submittal.”

Pipeline Reply at 3. The Pipeline Consortium argues that, when the Agency proposes a rule

under Section 28.5, it must initially submit information sufficient to resolve factual issues

relating to the Board’s jurisdiction under that section.

Id

. “If it cannot, then the Board lacks

jurisdiction under [Section] 28.5.”

Id

. Because the Agency has not identified any Congressional

or USEPA authority requiring the regulation of attainment area sources, the Pipeline Consortium

argues that including those sources in an attainment demonstration “requires a far more complete

initial submittal with an adequate justification for [Section] 28.5 jurisdiction.”

Id

. Arguing that

the Agency has failed to provide that justification, the Pipeline Consortium claims that the Board

has “no jurisdiction to proceed with the rules as it pertains to the attainment area sources,

because the rule is not federally required and USEPA cannot impose sanctions if the Board fails

to adopt it.”

Id

. at 4.

The Pipeline Consortium acknowledges that “an attainment demonstration SIP is

federally required, and USEPA can impose sanction on the state if the Agency does not submit

an approvable attainment demonstration.” Pipeline Reply at 4, citing 42 U.S.C. 7410, 7509. The

Pipeline Consortium argues, however, that the specific rules comprising an attainment

---

28

demonstration cannot be described as federally required “unless and until the attainment

demonstration is approved as part of Illinois’ SIP.”

Id

. The Pipeline Consortium further argues

that USEPA can only impose sanctions for failing to submit an approvable attainment

demonstration and “cannot ever impose sanctions for the state’s failure to adopt any rule

component of an attainment demonstration SIP if those rules are not specifically identified and

required by Congress or USEPA.”

Id

. at 4-5, citing 42 U.S.C. 7509. Consequently, the Pipeline

Consortium claims that the portion of the Agency’s proposal regulating sources in attainment

areas is not federally required and is not subject to USEPA sanctions, leaving the Board without

jurisdiction to consider that portion of the rule under Section 28.5. Pipeline Reply at 5. The

Pipeline Consortium thus argues that the Board must sever Sections 217.392(a)(3) and (4) and

related language from the remainder of the proposal.

Id

. at 4, 5.

RFP/ROP

The Pipeline Consortium notes the Agency’s claims that it must regulate sources in

attainment areas in order to demonstrate RFP and ROP and that such regulations would be

approvable under federal guidance. Pipeline Reply at 5. The Pipeline Consortium responds,

however, that “the federal requirements are (1) that the state

consider

attainment area regulation

and (2) that it

justify

reliance on attainment area regulation if it chooses to rely on attainment

area regulation in its RFP/ROP.”

Id

. (emphasis in original), citing 72 Fed. Reg. 20586, 20636-

39 (April 25, 2007). The Pipeline Consortium claims that the Agency has failed to describe how

it complies with these factors. Pipeline Reply at 5. The Pipeline Consortium further argues that,

even if the Agency had complied with those factors, that compliance would not itself give the

Board jurisdiction to consider the proposed rules under Section 28.5.

Id

.

The Pipeline Consortium claims that the Agency cannot rely upon RFP/ROP with regard

to the Chicago area for ozone “because the area attains the ozone standard.” Pipeline Reply at 5

(citations omitted). The Pipeline Consortium expresses doubt that the Agency can justify

regulation of sources in attainment areas that are not upwind of the Metro-East/St. Louis ozone

nonattainment area.

Id

. at 6. The Pipeline Consortium further argues that “the Agency did not

include in its submittal any discussion of the impact of attainment area sources all over the state

on the Metro-East/St. Louis ozone nonattainment area.

Id

.

With regard to PM

2.5

implementation, the Pipeline Consortium argues that the final rule

“requires that a state specifically justify the inclusion of attainment area sources in an RFP

submittal.” Pipeline Reply at 6. The Pipeline Consortium claims that the Agency only

submitted as justification admittedly preliminary modeling performed by LADCO.

Id

.,

see

TSD

at 65-78. The Pipeline Consortium further claims that the TSD includes regional modeling that

“does not focus on Illinois sources, let alone attainment area sources and, therefore, is

insufficient justification for inclusion of the attainment area sources for RFP.”

Id

.

The Pipeline Consortium suggests that, even if the Agency had justified including

attainment area sources in the RFP demonstration, “it is not possible for a rule intended to satisfy

an RFP plan requirement to proceed under [Section] 28.5. Pipeline Reply at 6. The Pipeline

Consortium argues that the rule does not become federally required until USEPA approves the

RFP plan.

Id

. at 6-7. The Pipeline Consortium further argues that it is only the failure to adopt

---

29

an RFP plans that may lead to sanctions and not the failure to adopt a rule that may be an

element of an RFP plan.

Id

. at 7.

As it had claimed with regard to an attainment demonstration SIP, the Pipeline

Consortium argues that, “[u]ntil and unless USEPA has approved the RFP plan submittal as a

part of an SIP, the rules included in the RFP plan are not federally required.” Pipeline Reply at

7. The Pipeline Consortium further argues that “USEPA cannot impose sanctions for a state’s

failure to include a rule not specifically required by Congress or USEPA.”

Id

., citing 42 U.S.C.

7410, 7509.

The Pipeline Consortium states that “[w]ith respect to the ozone and PM

2.5

NAAQS,

USEPA has not required that any specific attainment area sources be controlled other than those

identified in Phase II of the NO

x

SIP Call and in the CAIR.” Pipeline Reply at 7. The Pipeline

Consortium argues that the PM

2.5

implementation rule requires that states consider sources in

attainment areas but does not require that

any

attainment sources be regulated.

Id

., citing 72 Fed.

Reg. 20586, 20636 (April 25, 2007). Arguing that the portions of the rule that apply to

attainment area sources are neither federally required nor include the risk of sanctions, the

Pipeline Consortium suggest that the Board lacks jurisdiction to consider them under Section

28.5.

Id

.

Additional Agency Arguments

First, the Pipeline Consortium discounts the Agency’s claim that “the Board has accepted

other rules intended as parts of RFP/ROP plans or attainment demonstrations without the

Agency including in its initial submittal sufficient support.” Pipeline Reply at 8. The Pipeline

Consortium suggests that this claim does not relieve the Board of its responsibility to ensure that

this proposal is sufficient and that it can be considered under Section 28.5.

Id

.

The Pipeline Consortium questions the Agency’s reliance on its Technical Support

Document and the significance of its Statement of Reasons.

See

Pipeline Reply at 8-9.

Although acknowledging that legal and technical arguments may necessarily overlap, the

Pipeline Consortium expresses doubt about the weight the Agency has placed on its TSD and

about the relevance of its Statement of Reasons.

Id

. at 9.

Finally, the Pipeline Consortium dismisses the Agency’s complaint “that the federal

clock is ticking with respect to the requirement that this rule be adopted.” Pipeline Reply at 9.

Noting that USEPA finalized Phase II of the NO

x

SIP Call in 2005 and that the Agency last met

with interested parties about this proposal more than one year ago, the Pipeline suggest that the

Agency’s time constraints are self-created.

See id

. While it acknowledges that a federal

enforcement clock is ticking with regard to the Phase II NO

x

SIP Call portion of the proposal, the

Pipeline Consortium claims that “[t]here is plenty of time for a Section 27 rulemaking,

particularly with respect to the attainment area sources.”

Id

.;

see

415 ILCS 5/27 (2004).

IERG’S REPLY

---

30

IERG incorporates by reference and reiterates its objection to the use of fast-track

procedures in the consideration of this proposed rule, with the exception of that portion of the

proposal addressing sources that are affected by Phase II of the NO

x

SIP Call. IERG Reply at 1,

n.1.

Procedural Requirements

Board Authority

IERG argues that the Agency has ignored a recent Board holding regarding the Board’s

ability to review rulemaking proposals filed under Section 28.5. IERG Reply at 1-2. IERG

notes the Agency’s claim that “the Board may only make a cursory examination of a proposal

under Section 28.5 to determine if the items listed in a ‘statutory checklist’ found in Section

28.5(e) have been included in the proposal.”

Id

. at 2, citing Agency IERG Resp. at 2-4. IERG

stresses the Board’s recent statement that, “[w]hen the Agency argues that the Board’s review of

this proposal [under Section 28.5] is limited to technical or procedural issues, it disregards well-

settled case law providing an agency has authority to determine whether it has jurisdiction over a

proceeding.” IERG Reply at 2-3, citing Proposed New 35 Ill. Adm. Code 225 Control of

Emissions from Large Combustion Sources (Mercury), R06-25, slip op. at 14 (April 20, 2006).

IERG further stresses the Board’s recent finding that “the language of the Act and case law

clearly authorize the Board to consider whether or not a proposal filed pursuant to Section 28.5

may proceed under that provision.” IERG Reply at 3, citing Proposed New 35 Ill. Adm. Code

225 Control of Emissions from Large Combustion Sources (Mercury), R06-25, slip op. at 15

(April 20, 2006). IERG characterizes the Agency’s position on this issue as “simply incorrect.”

IERG Reply at 3.

Identification of Federal Basis of Rule

IERG states that the Agency’s response identifies references in the TSD to provisions of

the CAA and regulations but argues that “the ‘references’ are merely generalizations that certain

provisions of the CAA require general emission reductions.” IERG Reply at 3. IERG claims

that, “[w]ith the possible exception of the Phase II NO

x

SIP Call Engines, the Illinois EPA has

failed to ‘clearly identify the provisions and portions of the federal statute, regulations, guidance,

policy statement, or other documents

upon which the rule

is based.’”

Id

. (emphasis in original),

citing 415 ILCS 5/28.5(e)(3) (2004). IERG concludes that [g]eneral references to portions of the

CAA that require a state implementation plan or reasonable further progress do not provide a

basis for

the Proposed Rule

. IERG Reply at 3 (emphasis in original).

List of Units

IERG notes the Agency’s response that “a portion of the Proposed Rule would be

applicable to

approximately 44 engines

.” IERG Reply at 4, citing Agency IERG Resp. at 6.

IERG notes that the Agency reached this conclusion on the basis of a survey of 10,025

businesses and that “some number of responses must have included information on engines that

would be affected by the Proposed Rule, or the Illinois EPA would have been unable to make

any extrapolation at all.” IERG Reply at 4. IERG decries the Agency’s claim that questions

---

31

about the estimate that a portion of the proposed rule would apply to approximately 44 engines

should be deferred to the hearings.

See id

. IERG characterizes this as a claim that the Board

may not look into the accuracy of the Agency’s proposal until the hearing.

Id

. at 4-5.

Summary of Economic Data

IERG notes that the Agency has conceded making and has corrected a minor error in

summarizing the economic and technical data on which it relied in drafting the rule. IERG

Reply at 6. IERG claims, however, that it finds no legal support for the suggestion that Section

28.5 allows “minor” exceptions from its specific requirements.

Id

. In addition, IERG notes that

the Agency’s corrected reference to the annual cost of reducing a ton of NO

x

emissions does not

squarely respond to a question requesting the “[e]conomic effect on

persons

affected by the

rulemaking.”

Id

. at 7 (emphasis in original). Consequently, IERG argues that “[i]t is impossible

to assess the impact of the Proposed Rules when the cost per person has not been supplied.”

Id

.

IERG also argues that, because the overall projected cost and the annual cost of reducing a ton of

NO

x

emissions do not appear in the TSD, “the economic data on which the Illinois EPA relied in

drafting the Proposed Rule is inadequate.”

Id

.

Regulatory Analysis

IERG notes that the Agency’s survey of businesses that may be affected by the proposed

rules includes businesses with engines less than 1,500 bhp because those engines do not require

operating permits. IERG Reply at 5,

see

Agency IERG Resp. at 6. IERG assumes that many of

these sources are small businesses. IERG Reply at 5.

IERG notes that, under Section 28.5, the Agency must file its proposal “in a form that

meets the requirements of the Illinois Administrative Procedure Act” (APA). IERG Reply at 5,

citing 415 ILCS 5/28/5(e)(1) (2004);

see

5 ILCS 100/1-1

et seq

. (2004). IERG notes that the

APA requires that the Agency’s first notice proposal must include an initial regulatory flexibility

analysis containing various specific elements. IERG Reply at 5, citing 5 ILCS 100/5-40(b)(4)

(2004). IERG argues that the Agency failed to provide this analysis so that “the Board’s action

to move the Proposed Rules to first notice is in violation of the APA.” IERG Reply at 6.

However, IERG states that, “[s]ince the Phase II NO

x

SIP Call Engines are all located at large

sources, IERG will not object to the continued application of the Section 28.5 rulemaking

process to the portion of the Proposed Rule that includes the 28 Phase II NO

x

SIP Call Engines.”

Id

.

Statewide Applicability

IERG notes that the Agency’s response “cites three rulemakings for the proposition that

Section 28.5 rulemaking is an accepted practice for rules that are not specifically required by the

CAA or that are applicable statewide.” IERG Reply at 7 (citations omitted);

see

Agency IERG

Resp. at 8. IERG stresses that none of these cases involved an objection to proceeding under

Section 28.5 and therefore “do not stand for any proposition regarding the appropriate use of

Section 28.5.” IERG Reply at 8;

see

415 ILCS 5/28.5 (2004).

---

32

Opportunities for Public Comment

IERG disputes the Agency’s statement that a “shortened period for public participation

and review by the Board are inherent in a proceeding under Section 28.5; however, this issue is

irrelevant to a Section 28.5 analysis.” IERG Reply at 8, citing Agency IERG Resp. at 9. In

response, IERG cites a circuit court order granting a preliminary injunction to stop a Section

28.5 proceeding. IERG Reply at 8, citing Dynegy Midwest Generation, Inc. v. IPCB and IEPA,

06-CH-213 (Sangamon County Circuit Court) (May 1, 2006).

Applicability of Section 28.5

IERG argues that the Agency fails to demonstrate that its proposed rule is “‘required by

the CAA’ and that sanctions may be applied by the USEPA if the Proposed Rule is not adopted.”

IERG Reply at 9, citing 415 ILCS 5/28.5(a), (c) (2004). IERG acknowledges that RACT, the

SIP, and RFP are “clearly required by the CAA,” but it argues that “the Proposed Rule is not

RACT, the SIP or RFP.” IERG Reply at 9. IERG claims that “[t]he most that could be claimed

for the Proposed Rule is that its provisions may some day need to be included in NO

x

RACT

rules, the SIP and/or for RFP purposes.”

Id

.

IERG claims that, before the proposed rule could be included in NO

x

RACT rules or the

SIP or to demonstrate RFP, the Agency will require more definite modeling results ensuring that

the rule will have its intended desirable effect. IERG Reply at 9-10. IERG emphasizes the

Agency’s statement that this modeling “is ongoing, and the

attainment targets for emissions

reductions have not yet been fully identified.

”

Id

. at 10 (emphasis in original). Without the

identified emissions reductions, suggests IERG, the Agency cannot claim “that these specific

Proposed Rules are required by the CAA because they constitute RACT, the SIP and RFP.”

Id

.

Specifically with regard to a SIP, IERG argues that the lack of final modeling makes it

“impossible to tell whether the requirements of the Proposed Rule are requirements that are

‘

necessary or appropriate

to meet the applicable requirements of this Act.’”

Id

., citing 42

U.S.C. 7410(a)(2)(A), 7502(c)(4), 7511a(b)(1)(A)(i). IERG thus characterizes the Agency’s

argument on this point in this fashion:

preliminary modeling indicates that NO

x

emission reductions somewhere in the

State will be required, [and that] the modeling might eventually indicate that the

emission reductions that would occur due to the Proposed Rule would be

advantageous; therefore, the Proposed Rule is required by the CAA and the State

would face sanctions if the Proposed Rules is not adopted. IERG Reply at 10

Characterizing the Agency’s claim that that this proposal is required by the CAA and

thus eligible for consideration under Section 28.5 as “unsubstantiated,” IERG expresses the fear

that “there may be no end to such claims by the Illinois EPA in the future.” IERG Reply at 11.

IERG claims that, “if the Illinois EPA is allowed to offer the Proposed Rules under Section 28.5,

there would seem to be no rule that would be inappropriate for rulemaking under Section 28.5.”

Id

. at 12.

---

33

BOARD ANALYSIS

In this section, the Board first addresses arguments concerning the scope of the Board’s

review in determining whether to accept a rulemaking proposal under Section 28.5. The Board

then determines whether it has authority to proceed to consider the Agency’s proposal under

Section 28.5. The Board then addresses arguments concerning various procedural aspects of the

Agency’s filing.

Board Authority

In its response to IERG, the Agency claims that IERG assumes “that the Board has a

broader scope of review in deciding whether to accept a ‘fast-track’ rulemaking proposal than is

actually conferred by Section 28.5.” Agency IERG Resp. at 2. The Agency argues that the

Board is limited to a minimal technical review to determine whether the Agency has submitted

all the information required by the “checklist” at Section 28.5(e).

Id

.;

see

415 ILCS 5/28.5(e)

(2004).

To that end, the Agency claims that a hearing officer order issued in this proceeding on

April 20, 2007 constitutes the Board’s assessment “that the proposal met the regulatory and

statutory checklist for proceeding under Section 28.5 of the Act.” Agency IERG Resp. at 3-4.

Reviewing that order, the Board finds that it addresses only procedural issues such as scheduling

hearings and prefiling testimony. The order does not substantively assess or determine whether

the Agency has submitted all of the information required by the checklist at Section 28.5(e) of

the Act. The order does not assess or determine whether submitting all of the information

required by the checklist is itself sufficient to allow the Board to proceed under Section 28.5.

Furthermore, the order notes the Board’s statement in its first notice order and opinion that, until

ruling on the pending objection to the use of Section 28.5 procedures, the Board would continue

to proceed under the strict deadlines imposed in that section. The Agency’s emphasis upon the

hearing officer order to suggest that the Board has already accepted jurisdiction of this proposal

under Section 28.5 is, at best, misplaced.

Furthermore, in a recent order addressing objections to proceeding under Section 28.5 in

another docket, the Board stated that, “[w]hen the Agency argues that the Board’s review of this

proposal is limited to technical or procedural issues, it disregards well-settled case law providing

an agency has authority to determine whether it has jurisdiction over a proceeding.” Proposed

New 35 Ill. Adm. Code 225 Control of Emissions from Large Combustion Sources (Mercury),

PCB 06-25, slip op. at 14-15 (April 20, 2006). After reviewing case law, a Board resolution on

Section 28.5 procedures, and its own procedural rules, the Board found in that case “that both the

language of the Act and well-settled case law authorize the Board to consider whether or not a

proposal filed pursuant to Section 28.5 may proceed under that provision.”

Id

. at 16.

Accordingly, the Board will consider below whether it may continue to proceed with the entirety

of the Agency’s proposal under Section 28.5.

Use of Section 28.5 “Fast-Track” Procedures

NO

x

RACT, RFP, ROP, and SIP Revisions

---

34

The “fast-track” procedures of Section 28.5 apply only “to the adoption of rules proposed

by the Agency and required to be adopted by the State” under the CAA. 415 ILCS 5/28.5(a)

(2004). “For purposes of this Section, ‘requires to be adopted’ refers only to those regulations or

parts of regulations for which the United States Environmental Protection Agency is empowered

to impose sanctions against the State for failure to adopt such rules.” 415 ILCS 5/28.5(c) (2004).

Generally, the objectors argue that, to the extent that the Agency’s proposal applies to emission

units other than those addressed in the NO

x

SIP Call Phase II, USEPA is not authorized to

impose sanctions on the State for failure to adopt them and they are therefore not “federally

required to be adopted.”

See, e.g.

, Pipeline Obj. at 1; IERG Obj. at 7.

The Agency states that it filed its proposal in part to meet requirements for RFP, RACT,

ROP, and attainment demonstrations for the 8-hour ozone and PM

2.5

NAAQS. Specifically, the

Agency claims that it is necessary for the Board to adopt its proposal “to meet the requirements

of Section 172 and 182 of the CAA for submitting attainment demonstration, RACT, and RFP.”

The Agency further claims that, without adoption of its proposal, Illinois cannot submit a plan

that would satisfy these various requirements. The Agency has concluded that, if it fails to

submit plans meeting these requirements, USEPA has authority under Section 110 of the CAA to

impose a FIP on the state. The Agency also argues that USEPA could, under Section 179 of the

CAA, impose sanctions, resulting in a loss of highway funds and an increase in emissions offset

requirements.

To the extent that the Agency’s proposal applies to emissions sources other than those

addressed in the NO

x

SIP Call Phase II, the Board finds that the proposal does not encompass

rules that are required to be adopted by the State under the CAA. Although the Agency has

stressed that the final rules implementing the 8-hour ozone and PM

2.5

NAAQS both require SIP

revisions containing fully-adopted rules for RACT, RFP, and attainment demonstrations, the

Agency has not persuasively traced the language of this portion of its proposal to a specific rule

that is required to be adopted by the State under the CAA. Even assuming that the USEPA may

impose sanctions for the State’s failure to submit a required attainment demonstration or

approvable SIP, the Board is not persuaded that the State faces sanctions as a consequence of

failing to adopt regulations other than those addressed in the NO

x

SIP Call Phase II as an

element of those submissions.

Accordingly, based on this record and as further discussed below, the Board finds that it

has authority to proceed under the Section 28.5 “fast-track” rulemaking procedures only with

respect to that portion of the Agency’s proposal required by USEPA’s NO

x

SIP Call Phase II.

The General Assembly contemplated this very situation. Section 28.5(j) provides:

(j) The Board shall adopt rules in the fast-track rulemaking docket under the

requirements of this Section that the CAAA requires to be adopted and may

consider a non-required rule in a second docket that shall proceed under Title VII

of this Act. 415 ILCS 5/28.5(j) (2004).

The Board therefore finds that this proceeding should be bifurcated. The Board will consider the

portion of the Agency’s proposal applicable to emissions sources other than those addressed in

---

35

the NO

x

SIP Call Phase II in a separate docket proceeding under Section 27. By today’s order,

the Board will send that portion of the Agency’s original proposal to first notice without

commenting on its merits.

Phase II NO

x

SIP Call

The Agency states that it filed its proposal in order to satisfy Illinois’ obligations under

Phase II of USEPA’s NO

x

SIP Call, which was promulgated under Section 110(a)(2)(D) of the

CAA and which requires the state to address NO

x

emissions from large stationary reciprocating

combustion engines. In a letter dated October 13, 2005, USEPA notified the State that it had not

provided the required Phase II NO

x

SIP, and USEPA subsequently published this finding.

See

71 Fed. Reg. 6347-50. Since Illinois has not submitted a timely SIP, the Agency argues that

USEPA now has the authority to impose a FIP under Section 110(c)(1) of the Act or to impose

sanctions listed in Section 179(b) of the CAA.

See

69 Fed. Reg. 21633.

Although the Pipeline Consortium claims that proceeding in this docket under Section

28.5 would not be a proper exercise of the Board’s authority, the Pipeline Consortium states that

it would set aside its objection as to the portion of the proposal applicable to the NO

x

SIP Call

Phase II units if the Board bifurcates the proposal and addresses the portion of the proposal that

does not apply to those units in a separate docket considered under the provisions of Section 27.

Similarly, although IERG does not believe that the Agency’s proposal is appropriate for

consideration under the “fast-track” provisions of Section 28.5, IERG notes the position taken by

the Pipeline Consortium. Specifically, IERG states that, with regard to 28 engines affected by

Phase II of the NO

x

SIP Call, it does not object to the use of Section 28.5 procedures.

Consequently, on the basis of the facts and arguments in the record before it, the Board

will consider the Agency’s proposal with regard to the 28 sources affected by Phase II of the

NO

x

SIP Call under the procedures of Section 28.5. Solely for the convenience of the

participants in this proceeding, and in the interest of focusing testimony and questions at hearing

upon the language the Board will consider under Section 28.5, the Board attaches to this order

Attachment A. That attachment, based upon the Agency’s original proposed amendments to Part

217, strikes through language the Board will no longer consider in this docket and will instead

consider in a new docket proceeding under Section 27.

Although the Board will continue to consider in this docket the Agency’s original

proposed changes to Part 201 and Part 211, the Board notes that the Agency’s proposed

amendments to Part 211 may now include definitions of terms that will no longer be employed

or addressed in this docket. Similarly, the Board believes that the Agency’s proposed

amendments to Part 217 may now include cross-references to language that will no longer be

considered in this docket. Accordingly, the Board seeks comment from the participants on

amendments that the Board may wish to incorporate into a second notice opinion in this docket.

Finally, the Board states that, in preparing Attachment A, it has made simple formatting changes

in the interest of clarity.

See

1 Ill. Adm. Code 100.340(f).

Procedural Requirements

---

36

The Board below separately addresses IERG’s procedural arguments and concludes that

they provide no basis to prevent the Board from considering the Phase II NO

x

SIP Call engines

under Section 28.5. To the extent that these arguments may apply in the bifurcated docket R07-

19, IERG or another participant may renew them there.

Identification of Federal Basis for Rule

In its objection, IERG stated that it “does not oppose the proposition that the Phase II

NO

x

SIP Call is a clearly identified document upon which the portion of the Proposed Rules

affecting the Phase II NO

x

SIP Call Engines could be based.” Above, the Board has bifurcated

this rulemaking so that it will continue to consider under Section 28.5 only the portion of the

Agency’s proposal applicable to the Phase II NO

x

SIP Call Engines. Accordingly, the Board

concludes that the Agency has complied with Section 28.5(3) by sufficiently identifying the

federal authority on which its proposal is based.

See

415 ILCS 5/28.5(3) (2004).

List of Units

In its objection, IERG noted that the Agency’s proposal identified 28 engines subject to

the Phase II NO

x

SIP Call and listed them both in the TSD and as proposed Appendix G to Part

217. Above, the Board has bifurcated this rulemaking so that it will continue to consider under

Section 28.5 only the portion of the Agency’s proposal applicable to the Phase II NO

x

SIP Call

Engines. Accordingly, the Board concludes that the Agency has complied with Section 28.5(8)

by listing the sources expected to be affected by the proposal to the extent known to the Agency.

See

415 ILCS 5/28.5(8) (2004).

Summary of Economic Data

In its objection, IERG claimed that the Board could not consider the Phase II NO

x

SIP

Call engines under Section 28.5 until the Agency corrected an error in economic data it had

submitted. The Board notes that, in responding to IERG’s objections, the Agency acknowledged

and corrected an error by stating that the cost of its proposed changes would be $855 per ton of

NO

x

reduced annually. The Board concludes that this correction provides no basis to prevent the

Board from considering the Phase II NO

x

SIP Call engines under Section 28.5.

Regulatory Analysis

In its objection, IERG stated that the Agency had failed to include with its proposal a

small business regulatory flexibility analysis. The Board notes IERG’s statement that, since the

Phase II NO

x

SIP call engines are all located at large sources, it would not object to continuing to

consider those engines under Section 28.5. Above, the Board has bifurcated this rulemaking so

that it will continue to consider under Section 28.5 only the portion of the Agency’s proposal

applicable to the Phase II NO

x

SIP Call Engines. Accordingly, the Board concludes that this

argument provides no basis to prevent the Board from considering the Phase II NO

x

SIP Call

engines under Section 28.5.

---

37

CONCLUSION

The Board has carefully examined the arguments presented concerning the Board’s

authority under Section 28.5 of the Act (415 ILCS 5/28.5 (2004)), and the limits on what may be

proposed as a “fast-track” rule. On the basis of that examination, the Board finds that this

proceeding should be bifurcated, and the Board will continue to consider under Section 28.5 in

docket R07-18 only the portion of the Agency’s proposal applicable to the Phase II NO

x

SIP Call

engines. As to that portion of the Agency’s proposal, the Board will proceed as set forth in the

April 19, 2007 opinion and order of the Board and the April 20, 2007 hearing officer order.

For the convenience of the participants in this proceeding, and in the interest of focusing

testimony and questions at hearing upon the language the Board will continue to consider under

“fast-track” procedures, the Board attaches to this order Attachment A. That attachment, based

upon the Agency’s original proposal, strikes through language the Board will no longer consider

in R07-18.

With regard to the remainder of the Agency’s proposal, the Board will direct the Clerk to

cause publication of the remainder of the Agency’s proposal for first notice under Sections 27

and 28 of the Act in docket R07-19 without commenting on the merits of the proposal.

ORDER

The Board directs the Clerk to open docket R07-19 and in that docket cause the

publication of the following rule for first notice in the

Illinois Register

.

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE B: AIR POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

SUBCHAPTER c: EMISSION STANDARDS AND LIMITATIONS FOR

STATIONARY SOURCES

PART 211

DEFINITIONS AND GENERAL PROVISIONS

SUBPART A: GENERAL PROVISIONS

Section

211.101

Incorporations by Reference

211.102

Abbreviations and Conversion Factors

SUBPART B: DEFINITIONS

Section

211.121

Other Definitions

211.122

Definitions (Repealed)

211.130

Accelacota

211.150

Accumulator

---

38

211.170

Acid Gases

211.210

Actual Heat Input

211.230

Adhesive

211.240

Adhesion Promoter

211.250

Aeration

211.270

Aerosol Can Filling Line

211.290

Afterburner

211.310

Air Contaminant

211.330

Air Dried Coatings

211.350

Air Oxidation Process

211.370

Air Pollutant

211.390

Air Pollution

211.410

Air Pollution Control Equipment

211.430

Air Suspension Coater/Dryer

211.450

Airless Spray

211.470

Air Assisted Airless Spray

211.474

Alcohol

211.479

Allowance

211.484

Animal

211.485

Animal Pathological Waste

211.490

Annual Grain Through-Put

211.495

Anti-Glare/Safety Coating

211.510

Application Area

211.530

Architectural Coating

211.550

As Applied

211.560

As-Applied Fountain Solution

211.570

Asphalt

211.590

Asphalt Prime Coat

211.610

Automobile

211.630

Automobile or Light-Duty Truck Assembly Source or Automobile or Light-Duty

Truck Manufacturing Plant

211.650

Automobile or Light-Duty Truck Refinishing

211.660

Automotive/Transportation Plastic Parts

211.670

Baked Coatings

211.680

Bakery Oven

211.685

Basecoat/Clearcoat System

211.690

Batch Loading

211.695

Batch Operation

211.696

Batch Process Train

211.710

Bead-Dipping

211.730

Binders

211.750

British Thermal Unit

211.770

Brush or Wipe Coating

211.790

Bulk Gasoline Plant

211.810

Bulk Gasoline Terminal

211.820

Business Machine Plastic Parts

---

39

211.830

Can

211.850

Can Coating

211.870

Can Coating Line

211.890

Capture

211.910

Capture Device

211.930

Capture Efficiency

211.950

Capture System

211.953

Carbon Adsorber

211.955

Cement

211.960

Cement Kiln

211.970

Certified Investigation

211.980

Chemical Manufacturing Process Unit

211.990

Choke Loading

211.1010

Clean Air Act

211.1050

Cleaning and Separating Operation

211.1070

Cleaning Materials

211.1090

Clear Coating

211.1110

Clear Topcoat

211.1120

Clinker

211.1130

Closed Purge System

211.1150

Closed Vent System

211.1170

Coal Refuse

211.1190

Coating

211.1210

Coating Applicator

211.1230

Coating Line

211.1250

Coating Plant

211.1270

Coil Coating

211.1290

Coil Coating Line

211.1310

Cold Cleaning

211.1312

Combined Cycle System

211.1316

Combustion Turbine

211.1320

Commence Commercial Operation

211.1324

Commence Operation

211.1328

Common Stack

211.1330

Complete Combustion

211.1350

Component

211.1370

Concrete Curing Compounds

211.1390

Concentrated Nitric Acid Manufacturing Process

211.1410

Condensate

211.1430

Condensible PM-10

211.1465

Continuous Automatic Stoking

211.1467

Continuous Coater

211.1470

Continuous Process

211.1490

Control Device

211.1510

Control Device Efficiency

211.1515

Control Period

---

40

211.1520

Conventional Air Spray

211.1530

Conventional Soybean Crushing Source

211.1550

Conveyorized Degreasing

211.1570

Crude Oil

211.1590

Crude Oil Gathering

211.1610

Crushing

211.1630

Custody Transfer

211.1650

Cutback Asphalt

211.1670

Daily-Weighted Average VOM Content

211.1690

Day

211.1710

Degreaser

211.1730

Delivery Vessel

211.1740

Diesel Engine

211.1750

Dip Coating

211.1770

Distillate Fuel Oil

211.1780

Distillation Unit

211.1790

Drum

211.1810

Dry Cleaning Operation or Dry Cleaning Facility

211.1830

Dump-Pit Area

211.1850

Effective Grate Area

211.1870

Effluent Water Separator

211.1875

Elastomeric Materials

211.1880

Electromagnetic Interference/Radio Frequency Interference (EMI/RFI) Shielding

Coatings

211.1885

Electronic Component

211.1890

Electrostatic Bell or Disc Spray

211.1900

Electrostatic Prep Coat

211.1910

Electrostatic Spray

211.1920

Emergency or Standby Unit

211.1930

Emission Rate

211.1950

Emission Unit

211.1970

Enamel

211.1990

Enclose

211.2010

End Sealing Compound Coat

211.2030

Enhanced Under-the-Cup Fill

211.2050

Ethanol Blend Gasoline

211.2070

Excess Air

211.2080

Excess Emissions

211.2090

Excessive Release

211.2110

Existing Grain-Drying Operation (Repealed)

211.2130

Existing Grain-Handling Operation (Repealed)

211.2150

Exterior Base Coat

211.2170

Exterior End Coat

211.2190

External Floating Roof

211.2210

Extreme Performance Coating

211.2230

Fabric Coating

---

41

211.2250

Fabric Coating Line

211.2270

Federally Enforceable Limitations and Conditions

211.2285

Feed Mill

211.2290

Fermentation Time

211.2300

Fill

211.2310

Final Repair Coat

211.2330

Firebox

211.2350

Fixed-Roof Tank

211.2360

Flexible Coating

211.2365

Flexible Operation Unit

211.2370

Flexographic Printing

211.2390

Flexographic Printing Line

211.2410

Floating Roof

211.2420

Fossil Fuel

211.2425

Fossil Fuel-Fired

211.2430

Fountain Solution

211.2450

Freeboard Height

211.2470

Fuel Combustion Emission Unit or Fuel Combustion Emission Source

211.2490

Fugitive Particulate Matter

211.2510

Full Operating Flowrate

211.2530

Gas Service

211.2550

Gas/Gas Method

211.2570

Gasoline

211.2590

Gasoline Dispensing Operation or Gasoline Dispensing Facility

211.2610

Gel Coat

211.2620

Generator

211.2630

Gloss Reducers

211.2650

Grain

211.2670

Grain-Drying Operation

211.2690

Grain-Handling and Conditioning Operation

211.2710

Grain-Handling Operation

211.2730

Green-Tire Spraying

211.2750

Green Tires

211.2770

Gross Heating Value

211.2790

Gross Vehicle Weight Rating

211.2810

Heated Airless Spray

211.2815

Heat Input

211.2820

Heat Input Rate

211.2830

Heatset

211.2850

Heatset Web Offset Lithographic Printing Line

211.2870

Heavy Liquid

211.2890

Heavy Metals

211.2910

Heavy Off-Highway Vehicle Products

211.2930

Heavy Off-Highway Vehicle Products Coating

211.2950

Heavy Off-Highway Vehicle Products Coating Line

211.2970

High Temperature Aluminum Coating

---

42

211.2990

High Volume Low Pressure (HVLP) Spray

211.3010

Hood

211.3030

Hot Well

211.3050

Housekeeping Practices

211.3070

Incinerator

211.3090

Indirect Heat Transfer

211.3110

Ink

211.3130

In-Process Tank

211.3150

In-Situ Sampling Systems

211.3170

Interior Body Spray Coat

211.3190

Internal-Floating Roof

211.3210

Internal Transferring Area

211.3230

Lacquers

211.3250

Large Appliance

211.3270

Large Appliance Coating

211.3290

Large Appliance Coating Line

211.3310

Light Liquid

211.3330

Light-Duty Truck

211.3350

Light Oil

211.3370

Liquid/Gas Method

211.3390

Liquid-Mounted Seal

211.3410

Liquid Service

211.3430

Liquids Dripping

211.3450

Lithographic Printing Line

211.3470

Load-Out Area

211.3480

Loading Event

211.3483

Long Dry Kiln

211.3485

Long Wet Kiln

211.3487

Low-NOx Burner

211.3490

Low Solvent Coating

211.3500

Lubricating Oil

211.3510

Magnet Wire

211.3530

Magnet Wire Coating

211.3550

Magnet Wire Coating Line

211.3570

Major Dump Pit

211.3590

Major Metropolitan Area (MMA)

211.3610

Major Population Area (MPA)

211.3620

Manually Operated Equipment

211.3630

Manufacturing Process

211.3650

Marine Terminal

211.3660

Marine Vessel

211.3670

Material Recovery Section

211.3690

Maximum Theoretical Emissions

211.3695

Maximum True Vapor Pressure

211.3710

Metal Furniture

211.3730

Metal Furniture Coating

---

43

211.3750

Metal Furniture Coating Line

211.3770

Metallic Shoe-Type Seal

211.3780

Mid-Kiln Firing

211.3790

Miscellaneous Fabricated Product Manufacturing Process

211.3810

Miscellaneous Formulation Manufacturing Process

211.3830

Miscellaneous Metal Parts and Products

211.3850

Miscellaneous Metal Parts and Products Coating

211.3870

Miscellaneous Metal Parts or Products Coating Line

211.3890

Miscellaneous Organic Chemical Manufacturing Process

211.3910

Mixing Operation

211.3915

Mobile Equipment

211.3930

Monitor

211.3950

Monomer

211.3960

Motor Vehicles

211.3965

Motor Vehicle Refinishing

211.3970

Multiple Package Coating

211.3980

Nameplate Capacity

211.3990

New Grain-Drying Operation (Repealed)

211.4010

New Grain-Handling Operation (Repealed)

211.4030

No Detectable Volatile Organic Material Emissions

211.4050

Non-Contact Process Water Cooling Tower

211.4055

Non-Flexible Coating

211.4065

Non-Heatset

211.4067

NOx Trading Program

211.4070

Offset

211.4090

One Hundred Percent Acid

211.4110

One-Turn Storage Space

211.4130

Opacity

211.4150

Opaque Stains

211.4170

Open Top Vapor Degreasing

211.4190

Open-Ended Valve

211.4210

Operator of a Gasoline Dispensing Operation or Operator of a Gasoline Dispensing

Facility

211.4230

Organic Compound

211.4250

Organic Material and Organic Materials

211.4260

Organic Solvent

211.4270

Organic Vapor

211.4290

Oven

211.4310

Overall Control

211.4330

Overvarnish

211.4350

Owner of a Gasoline Dispensing Operation or Owner of a Gasoline Dispensing

Facility

211.4370

Owner or Operator

211.4390

Packaging Rotogravure Printing

211.4410

Packaging Rotogravure Printing Line

211.4430

Pail

---

44

211.4450

Paint Manufacturing Source or Paint Manufacturing Plant

211.4470

Paper Coating

211.4490

Paper Coating Line

211.4510

Particulate Matter

211.4530

Parts Per Million (Volume) or PPM (Vol)

211.4550

Person

211.4590

Petroleum

211.4610

Petroleum Liquid

211.4630

Petroleum Refinery

211.4650

Pharmaceutical

211.4670

Pharmaceutical Coating Operation

211.4690

Photochemically Reactive Material

211.4710

Pigmented Coatings

211.4730

Plant

211.4740

Plastic Part

211.4750

Plasticizers

211.4770

PM-10

211.4790

Pneumatic Rubber Tire Manufacture

211.4810

Polybasic Organic Acid Partial Oxidation Manufacturing Process

211.4830

Polyester Resin Material(s)

211.4850

Polyester Resin Products Manufacturing Process

211.4870

Polystyrene Plant

211.4890

Polystyrene Resin

211.4910

Portable Grain-Handling Equipment

211.4930

Portland Cement Manufacturing Process Emission Source

211.4950.1

Portland Cement Process or Portland Cement Manufacturing Plant

211.4960

Potential Electrical Output Capacity

211.4970

Potential to Emit

211.4990

Power Driven Fastener Coating

211.5010

Precoat

211.5015

Preheater Kiln

211.5020

Preheater/Precalciner Kiln

211.5030

Pressure Release

211.5050

Pressure Tank

211.5060

Pressure/Vacuum Relief Valve

211.5061

Pretreatment Wash Primer

211.5065

Primary Product

211.5070

Prime Coat

211.5080

Primer Sealer

211.5090

Primer Surfacer Coat

211.5110

Primer Surfacer Operation

211.5130

Primers

211.5150

Printing

211.5170

Printing Line

211.5185

Process Emission Source

211.5190

Process Emission Unit

---

45

211.5210

Process Unit

211.5230

Process Unit Shutdown

211.5245

Process Vent

211.5250

Process Weight Rate

211.5270

Production Equipment Exhaust System

211.5310

Publication Rotogravure Printing Line

211.5330

Purged Process Fluid

211.5340

Rated Heat Input Capacity

211.5350

Reactor

211.5370

Reasonably Available Control Technology (RACT)

211.5390

Reclamation System

211.5410

Refiner

211.5430

Refinery Fuel Gas

211.5450

Refinery Fuel Gas System

211.5470

Refinery Unit or Refinery Process Unit

211.5480

Reflective Argent Coating

211.5490

Refrigerated Condenser

211.5500

Regulated Air Pollutant

211.5510

Reid Vapor Pressure

211.5530

Repair

211.5550

Repair Coat

211.5570

Repaired

211.5580

Repowering

211.5590

Residual Fuel Oil

211.5600

Resist Coat

211.5610

Restricted Area

211.5630

Retail Outlet

211.5650

Ringelmann Chart

211.5670

Roadway

211.5690

Roll Coater

211.5710

Roll Coating

211.5730

Roll Printer

211.5750

Roll Printing

211.5770

Rotogravure Printing

211.5790

Rotogravure Printing Line

211.5810

Safety Relief Valve

211.5830

Sandblasting

211.5850

Sanding Sealers

211.5870

Screening

211.5880

Screen Printing on Paper

211.5890

Sealer

211.5910

Semi-Transparent Stains

211.5930

Sensor

211.5950

Set of Safety Relief Valves

211.5970

Sheet Basecoat

211.5980

Sheet-Fed

---

46

211.5990

Shotblasting

211.6010

Side-Seam Spray Coat

211.6025

Single Unit Operation

211.6030

Smoke

211.6050

Smokeless Flare

211.6060

Soft Coat

211.6070

Solvent

211.6090

Solvent Cleaning

211.6110

Solvent Recovery System

211.6130

Source

211.6140

Specialty Coatings

211.6145

Specialty Coatings for Motor Vehicles

211.6150

Specialty High Gloss Catalyzed Coating

211.6170

Specialty Leather

211.6190

Specialty Soybean Crushing Source

211.6210

Splash Loading

211.6230

Stack

211.6250

Stain Coating

211.6270

Standard Conditions

211.6290

Standard Cubic Foot (scf)

211.6310

Start-Up

211.6330

Stationary Emission Source

211.6350

Stationary Emission Unit

211.6355

Stationary Gas Turbine

211.6360

Stationary Reciprocating Internal Combustion Engine

211.6370

Stationary Source

211.6390

Stationary Storage Tank

211.6400

Stencil Coat

211.6410

Storage Tank or Storage Vessel

211.6420

Strippable Spray Booth Coating

211.6430

Styrene Devolatilizer Unit

211.6450

Styrene Recovery Unit

211.6470

Submerged Loading Pipe

211.6490

Substrate

211.6510

Sulfuric Acid Mist

211.6530

Surface Condenser

211.6540

Surface Preparation Materials

211.6550

Synthetic Organic Chemical or Polymer Manufacturing Plant

211.6570

Tablet Coating Operation

211.6580

Texture Coat

211.6590

Thirty-Day Rolling Average

211.6610

Three-Piece Can

211.6620

Three or Four Stage Coating System

211.6630

Through-the-Valve Fill

211.6650

Tooling Resin

211.6670

Topcoat

---

47

211.6690

Topcoat Operation

211.6695

Topcoat System

211.6710

Touch-Up

211.6720

Touch-Up Coating

211.6730

Transfer Efficiency

211.6750

Tread End Cementing

211.6770

True Vapor Pressure

211.6790

Turnaround

211.6810

Two-Piece Can

211.6830

Under-the-Cup Fill

211.6850

Undertread Cementing

211.6860

Uniform Finish Blender

211.6870

Unregulated Safety Relief Valve

211.6880

Vacuum Metallizing

211.6890

Vacuum Producing System

211.6910

Vacuum Service

211.6930

Valves Not Externally Regulated

211.6950

Vapor Balance System

211.6970

Vapor Collection System

211.6990

Vapor Control System

211.7010

Vapor-Mounted Primary Seal

211.7030

Vapor Recovery System

211.7050

Vapor-Suppressed Polyester Resin

211.7070

Vinyl Coating

211.7090

Vinyl Coating Line

211.7110

Volatile Organic Liquid (VOL)

211.7130

Volatile Organic Material Content (VOMC)

211.7150

Volatile Organic Material (VOM) or Volatile Organic Compound (VOC)

211.7170

Volatile Petroleum Liquid

211.7190

Wash Coat

211.7200

Washoff Operations

211.7210

Wastewater (Oil/Water) Separator

211.7230

Weak Nitric Acid Manufacturing Process

211.7250

Web

211.7270

Wholesale Purchase - Consumer

211.7290

Wood Furniture

211.7310

Wood Furniture Coating

211.7330

Wood Furniture Coating Line

211.7350

Woodworking

211.7400

Yeast Percentage

Appendix A Rule into Section Table

Appendix B Section into Rule Table

AUTHORITY: Implementing Sections 9, 9.1, 9.9 and 10 and authorized by Sections 27 and

28.5 of the Environmental Protection Act [415 ILCS 5/9, 9.1, 9.9, 10, 27, and 28.5].

---

48

SOURCE: Adopted as Chapter 2: Air Pollution, Rule 201: Definitions, R71-23, 4 PCB 191,

filed and effective April 14, 1972; amended in R74-2 and R75-5, 32 PCB 295, at 3 Ill. Reg. 5, p.

777, effective February 3, 1979; 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. 13590; amended in R82-1 (Docket A) at 10 Ill. Reg. 12624, effective

July 7, 1986; amended in R85-21(A) at 11 Ill. Reg. 11747, effective June 29, 1987; amended in

R86-34 at 11 Ill. Reg. 12267, effective July 10, 1987; amended in R86-39 at 11 Ill. Reg. 20804,

effective December 14, 1987; amended in R82-14 and R86-37 at 12 Ill. Reg. 787, effective

December 24, 1987; amended in R86-18 at 12 Ill. Reg. 7284, effective April 8, 1988; amended

in R86-10 at 12 Ill. Reg. 7621, effective April 11, 1988; amended in R88-23 at 13 Ill. Reg.

10862, effective June 27, 1989; amended in R89-8 at 13 Ill. Reg. 17457, effective January 1,

1990; amended in R89-16(A) at 14 Ill. Reg. 9141, effective May 23, 1990; amended in R88-

30(B) at 15 Ill. Reg. 5223, effective March 28, 1991; amended in R88-14 at 15 Ill. Reg. 7901,

effective May 14, 1991; amended in R91-10 at 15 Ill. Reg. 15564, effective October 11, 1991;

amended in R91-6 at 15 Ill. Reg. 15673, effective October 14, 1991; amended in R91-22 at 16

Ill. Reg. 7656, effective May 1, 1992; amended in R91-24 at 16 Ill. Reg. 13526, effective August

24, 1992; amended in R93-9 at 17 Ill. Reg. 16504, effective September 27, 1993; amended in

R93-11 at 17 Ill. Reg. 21471, effective December 7, 1993; amended in R93-14 at 18 Ill. Reg.

1253, effective January 18, 1994; amended in R94-12 at 18 Ill. Reg. 14962, effective September

21, 1994; amended in R94-14 at 18 Ill. Reg. 15744, effective October 17, 1994; amended in

R94-15 at 18 Ill. Reg. 16379, effective October 25, 1994; amended in R94-16 at 18 Ill. Reg.

16929, effective November 15, 1994; amended in R94-21, R94-31 and R94-32 at 19 Ill. Reg.

6823, effective May 9, 1995; amended in R94-33 at 19 Ill. Reg. 7344, effective May 22, 1995;

amended in R95-2 at 19 Ill. Reg. 11066, effective July 12, 1995; amended in R95-16 at 19 Ill.

Reg. 15176, effective October 19, 1995; amended in R96-5 at 20 Ill. Reg. 7590, effective May

22, 1996; amended in R96-16 at 21 Ill. Reg. 2641, effective February 7, 1997; amended in R97-

17 at 21 Ill. Reg. 6489, effective May 16, 1997; amended in R97-24 at 21 Ill. Reg. 7695,

effective June 9, 1997; amended in R96-17 at 21 Ill. Reg. 7856, effective June 17, 1997;

amended in R97-31 at 22 Ill. Reg. 3497, effective February 2, 1998; amended in R98-17 at 22

Ill. Reg.11405, effective June 22, 1998; amended in R01-9 at 25 Ill. Reg. 128, effective

December 26, 2000; amended in R01-11 at 25 Ill. Reg. 4597, effective March 15, 2001; amended

in R01-17 at 25 Ill. Reg. 5900, effective April 17, 2001; amended in R05-16 at 29 Ill. Reg. 8181,

effective May 23, 2005; amended in R05-11 at 29 Ill. Reg.8892, effective June 13, 2005;

amended in R04-12/20 at 30 Ill. Reg. 9654, effective May 15, 2006; amended in R07-19 at 31

Ill. Reg. _______, effective ____________.

SUBPART B: DEFINITIONS

Section 211.1740

Diesel Engine

“Diesel engine” means for the purposes of 35 Ill. Adm. Code 217, Subpart Q, a compression

ignited two- or four-stroke engine in which liquid fuel injected into the combustion chamber

ignites when the air charge is compressed to a temperature sufficiently high for auto-ignition.

(Source: Added at 31 Ill. Reg._____________, effective ______________)

---

49

Section 211.1920

Emergency or Standby Unit

“Emergency or Standby Unit” means, for a stationary gas turbine or stationary reciprocating

internal combustion engine, a unit that:

a)

Supplies power for the source at which it is located but operates only when the

normal supply of power has been rendered unavailable by circumstances beyond

the control of the owner or operator of the source and only as necessary to assure

the availability of the engine or turbine. An emergency standby unit may not be

operated to supplement a primary power source when the load capacity or rating

of the primary power source has been reached or exceeded.;

b)

Operates exclusively for firefighting or flood control or both.; or

c)

Operates in response to and during the existence of any officially declared

disaster or state of emergency.

d)

Operates for the purpose of testing, repair or routine maintenance to verify its

readiness for emergency standby use.

The term does not include equipment used for purposes other than emergencies, as described

above, such as to supply power during high electric demand days.

(Source: Amended at 31 Ill. Reg._____________, effective ______________)

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE B: AIR POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

SUBCHAPTER C: EMISION STANDARDS AND LIMITATIONS

FOR STATIONARY SOURCES

PART 217

NITROGEN OXIDES EMISSIONS

SUBPART A: GENERAL PROVISIONS

Section

217.100

Scope and Organization

217.101

Measurement Methods

217.102

Abbreviations and Units

217.103

Definitions

217.104

Incorporations by Reference

SUBPART B: NEW FUEL COMBUSTION EMISSION SOURCES

Section

---

50

217.121

New Emission Sources

SUBPART C: EXISTING FUEL COMBUSTION EMISSION SOURCES

Section

217.141

Existing Emission Sources in Major Metropolitan Areas

SUBPART K: PROCESS EMISSION SOURCES

Section

217.301

Industrial Processes

SUBPART O: CHEMICAL MANUFACTURE

Section

217.381

Nitric Acid Manufacturing Processes

SUBPART Q: STATIONARY RECIPROCATING INTERNAL COMBUSTION

ENGINES AND TURBINES

Section

217.386

Applicability

217.388

Control and Maintenance Requirements

217.390

Emissions Averaging Plans

217.392

Compliance

217.394

Testing and Monitoring

217.396

Recordkeeping and Reporting

SUBPART T: CEMENT KILNS

Section

217.400

Applicability

217.402

Control Requirements

217.404

Testing

217.406

Monitoring

217.408

Reporting

217.410

Recordkeeping

SUBPART U: NO

x

CONTROL AND TRADING PROGRAM FOR

SPECIFIED NO

x

GENERATING UNITS

Section

217.450

Purpose

217.452

Severability

217.454

Applicability

217.456

Compliance Requirements

217.458

Permitting Requirements

217.460

Subpart U NO

x

Trading Budget

217.462

Methodology for Obtaining NO

x

Allocations

217.464

Methodology for Determining NO

x

Allowances from the New Source Set-Aside

---

51

217.466

NO

x

Allocations Procedure for Subpart U Budget Units

217.468

New Source Set-Asides for “New” Budget Units

217.470

Early Reduction Credits (ERCs) for Budget Units

217.472

Low-Emitter Requirements

217.474

Opt-In Units

217.476

Opt-In Process

217.478

Opt-In Budget Units: Withdrawal from NO

x

Trading Program

217.480

Opt-In Units: Change in Regulatory Status

217.482

Allowance Allocations to Opt-In Budget Units

SUBPART V: ELECTRIC POWER GENERATION

Section

217.521

Lake of Egypt Power Plant

217.700

Purpose

217.702

Severability

217.704

Applicability

217.706

Emission Limitations

217.708

NO

x

Averaging

217.710

Monitoring

217.712

Reporting and Recordkeeping

SUBPART W: NO

x

TRADING PROGRAM FOR ELECTRICAL

GENERATING UNITS

Section

217.750

Purpose

217.752

Severability

217.754

Applicability

217.756

Compliance Requirements

217.758

Permitting Requirements

217.760

NO

x

Trading Budget

217.762

Methodology for Calculating NO

x

Allocations for Budget Electrical

Generating Units (EGUs)

217.764

NO

x

Allocations for Budget EGUs

217.768

New Source Set-Asides for “New” Budget EGUs

217.770

Early Reduction Credits for Budget EGUs

217.774

Opt-In Units

217.776

Opt-In Process

217.778

Budget Opt-In Units: Withdrawal from NO

x

Trading Program

217.780

Opt-In Units: Change in Regulatory Status

217.782

Allowance Allocations to Budget Opt-In Units

SUBPART X: VOLUNTARY NO

x

EMISSIONS REDUCTION PROGRAM

Section

217.800

Purpose

---

52

217.805

Emission Unit Eligibility

217.810

Participation Requirements

217.815

NO

x

Emission Reductions and the Subpart X NO

x

Trading Budget

217.820

Baseline Emissions Determination

217.825

Calculation of Creditable NO

x

Emission Reductions

217.830

Limitations on NO

x

Emission Reductions

217.835

NO

x

Emission Reduction Proposal

217.840

Agency Action

217.845

Emissions Determination Methods

217.850

Emissions Monitoring

217.855

Reporting

217.860

Recordkeeping

217.865

Enforcement

Appendix A Rule into Section Table

Appendix B Section into Rule Table

Appendix C Compliance Dates

Appendix D Non-Electrical Generating Units

Appendix E Large Non-Electrical Generating Units

Appendix F

Allowances for Electrical Generating Units

Authority: Implementing Sections 9.9 and 10 and authorized by Sections 27 and 28.5 of the

Environmental Protection Act [415 ILCS 5/9.9, 10, 27, and 28.5 (2004)].

Source: Adopted as Chapter 2: Air Pollution, Rule 207: Nitrogen Oxides Emissions, R71-23, 4

PCB 191, April 13, 1972, filed and effective April 14, 1972; amended at 2 Ill. Reg. 17, p. 101,

effective April 13, 1978; codified at 7 Ill. Reg. 13609; amended in R01-9 at 25 Ill. Reg. 128,

effective December 26, 2000; amended in R01-11 at 25 Ill. Reg. 4597, effective March 15, 2001;

amended in R01-16 and R01-17 at 25 Ill. Reg. 5914, effective April 17, 2001; amended in R07-

19 at 31 Ill. Reg. ___________, effective _______________.

SUBPART Q: STATIONARY RECIPROCATING INTERNAL COMBUSTION ENGINES

AND TURBINES

Section 217.386

Applicability

a)

A stationary reciprocating internal combustion engine or turbine that meets the

criteria in subsection (a)(1) or (a)(2) of this Section is an affected unit and is

subject to the requirements of this Subpart Q.

1)

The engine at nameplate capacity is rated at equal to or greater than 500

bhp output; or

---

53

2)

The turbine is rated at equal to or greater than 3.5 MW (4,694 bhp) output

at 14.7 psia, 59

o

F, and 60 percent relative humidity.

b)

Notwithstanding subsection (a) of this Section, an engine or turbine will not be an

affected unit and is not subject to the requirements of this Subpart Q, if the engine

or turbine is or has:

1)

Used as an emergency or standby unit as defined by 35 Ill. Adm. Code

211.1920;

2)

Used for research or for the purposes of performance verification or

testing;

3)

Used to control emissions from landfills, where at least 50 percent of the

heat input is gas collected from a landfill;

4)

Used for agricultural purposes including the raising of crops or livestock

that are produced on site, but not associated businesses like packing

operations, sale of equipment or repair;

5)

A nameplate capacity rated at less than 1500 bhp (1118 kW) output,

mounted on a chassis or skids, designed to be moveable, and moved to a

different source at least once every 12 months; or

6)

Regulated under Subpart W or a subsequent federal NO

x

Trading program

for electrical generating units.

c)

If an exempt unit ceases to fulfill the criteria specified in subsection (b) of this

Section, the owner or operator must notify the Agency in writing within 30 days

after becoming aware that the exemption no longer applies and comply with the

control requirements of this Subpart Q.

d)

The requirements of this Subpart Q will continue to apply to any engine or turbine

that has ever been subject to the control requirements of Section 217.388, even if

the affected unit ceases to fulfill the rating requirements of subsection (a) of this

Section or becomes eligible for an exemption pursuant to subsection (b) of this

Section.

(Source: Added at 31 Ill. Reg. _______________, effective __________________.)

Section 217.388

Control and Maintenance Requirements

On and after the applicable compliance date in Section 217.392, an owner or operator of an

affected unit must inspect and maintain affected units as required by subsection (d) of this

Section and comply with either the applicable emissions concentration as set forth in subsection

---

54

(a) of this Section, or the requirements for an emissions averaging plan as specified in subsection

(b) of this Section or the requirements for operation as a low usage unit as specified in

subsection (c) of this Section.

a)

The owner or operator must limit the discharge from an affected unit into the

atmosphere of any gases that contain NO

x

to no more than:

1)

150 ppmv (corrected to 15 percent O

2

on a dry basis) for spark-ignited

rich-burn engines;

2)

210 ppmv (corrected to 15 percent O

2

on a dry basis) for spark-ignited

lean-burn engines, except for existing spark-ignited Worthington engines

that are not listed in Appendix G;

3)

365 ppmv (corrected to 15 percent O

2

on a dry basis) for existing spark-

ignited Worthington engines that are not listed in Appendix G;

4)

660 ppmv (corrected to 15 percent O

2

on a dry basis) for diesel engines;

5)

42 ppmv (corrected to 15 percent O

2

on a dry basis) for gaseous fuel-fired

turbines; and

6)

96 ppmv (corrected to 15 percent O

2

on a dry basis) for liquid fuel-fired

turbines.

b)

The owner or operator must comply with the requirements of the applicable

emissions averaging plan as set forth in Section 217.390.

c)

The owner or operator must operate the affected unit as a low usage unit pursuant

to subsection (c)(1) or (c)(2) of this Section. Low usage units are not subject to

the requirements of this Subpart Q except for the requirements to inspect and

maintain the unit pursuant to subsection (d) of this Section, and retain records

pursuant to Sections 217.396(b) and (c). Only one of the following exemptions

may be utilized at a particular source:

1)

The potential to emit (PTE) is no more than 100 TPY NO

x

aggregated

from all engines and turbines located at the source that are not otherwise

exempt pursuant to Section 217.386(b), and not complying with the

requirements of subsection (a) or (b) of this Section and the NO

x

PTE

limit is contained in a federally enforceable permit; or

2)

The aggregate bhp-hr/MW-hr from all affected units located at the source

that are not exempt pursuant to Section 217.386(b), and not complying

with the requirements of subsection (a) or (b) of this Section, are less than

or equal to the bhp-hrs and MW-hrs operation limit listed in subsection

(c)(2)(A) and (c)(2)(B) of this Section. For units not located at a natural

---

55

gas transmission compressor station or storage facility that drive a natural

gas compressor station, the operation limits of subsections (c)(2)(A) and

(B) of this Section must be contained in a federally enforceable permit.

A)

8 mm bhp-hrs or less on an annual basis for engines; and

B)

20,000 MW-hrs or less on an annual basis for turbines.

d)

The owner or operator must inspect and perform periodic maintenance on the

affected unit, in accordance with a Maintenance Plan that documents:

1)

For a unit not located at natural gas transmission compressor station or

storage facility either:

A)

The manufacturer’s recommended inspection and maintenance of

the applicable air pollution control equipment, monitoring device,

and affected unit; or

B)

If the original equipment manual is not available or substantial

modifications have been made that require an alternative procedure

for the applicable air pollution control device, monitoring device,

or affected unit, the owner or operator must establish a plan for

inspection and maintenance in accordance with what is customary

for the type of air pollution control equipment, monitoring device,

and affected unit.

2)

For a unit located at a natural gas compressor station or storage facility,

the operator’s maintenance procedures for the applicable air pollution

control device, monitoring device, and affected unit.

(Source: Added at 31 Ill. Reg. _______________, effective __________________.)

Section 217.390

Emissions Averaging Plans

a)

An owner or operator of certain affected units may comply through an emissions

averaging plan.

1)

The unit or units that commenced operation before January 1, 2002, may

be included in an emissions averaging plan as follows:

A)

Units located at a single source or at multiple sources in Illinois, so

long as the units are owned by the same company or parent

company where the parent company has working control through

stock ownership of its subsidiary corporations. A unit may be

listed in only one emissions averaging plan;

---

56

B)

Units that have a compliance date later than the control period for

which the averaging plan is being used for compliance; and

C)

Units which the owner or operator may claim as exempt pursuant

to Section 217.386(b) but does not claim exempt. For as long as

such a unit is included in an emissions averaging plan, it will be

treated as an affected unit and subject to the applicable emission

concentration limits, testing, monitoring, recordkeeping and

reporting requirements.

2)

The following types of units may not be included in an emissions

averaging plan:

A)

Units that commence operation after January 1, 2002, unless the

unit replaces an engine or turbine that commenced operation on or

before January 1, 2002, or it replaces an engine or turbine that

replaced a unit that commenced operation on or before January 1,

2002. The new unit must be used for the same purpose as the

replacement unit. The owner or operator of a unit that is shutdown

and replaced must comply with the provisions of Section

217.396(d)(3) before the replacement unit may be included in an

emissions averaging plan.

B)

Units which the owner or operator is claiming are exempt pursuant

to Section 217.386(b) or as a low usage unit pursuant to Section

217.388(c).

b)

An owner or operator must submit an emissions averaging plan to the Agency by

the applicable compliance date set forth in Section 217.392. The plan must

include, but is not limited to:

1)

The list of affected units included in the plan by unit identification number

and permit number.

2)

A sample calculation demonstrating compliance using the methodology

provided in subsection (f) of this Section for both the ozone season and

calendar year.

c)

An owner or operator may amend an emissions averaging plan only once per

calendar year. An amended plan must be submitted to the Agency by May 1 of

the applicable calendar year. If an amended plan is not received by the Agency

by May 1 of the applicable calendar year, the previous year’s plan will be the

applicable emissions averaging plan.

d)

Notwithstanding subsection (c) of this Section, an owner or operator, and the

---

57

buyer, if applicable:

1)

Must submit an updated emissions averaging plan or plans to the Agency

within 60 days, if a unit that is listed in an emissions averaging plan is

sold or taken out of service.

2)

May amend its emissions averaging plan to include another unit within 30

days of discovering that the unit no longer qualifies as an exempt unit

pursuant to Section 217.386(b) or as a low usage unit pursuant to Section

217.388(c).

e)

An owner or operator must:

1)

Demonstrate compliance for both the ozone season (May 1 through

September 30) and the calendar year (January 1 through December 31) by

using the methodology and the units listed in the most recent emissions

averaging plan submitted to the Agency pursuant to subsection (b) of this

Section; the higher of the monitoring or test data determined pursuant to

Section 217.394; and the actual hours of operation for the applicable

control period;

2)

Notify the Agency by October 31 following the ozone season, if

compliance cannot be demonstrated for that ozone season; and

3)

Submit to the Agency by January 31 following each calendar year, a

compliance report containing the information required by Section

217.396(d)(4).

f)

The total mass of actual NO

x

emissions from the units listed in the emissions

averaging plan must be equal to or less than the total mass of allowable NO

x

emissions for those units for both the ozone season and calendar year. The

following equation must be used to determine compliance:

N

act

≤

N

all

Where:

N

act

=

∑

=

n

i1

EM

act(i)

N

all

=

∑

=

n

i1

EM

all(i)

N

act

=

Total sum of the actual NO

x

mass emissions from units

included in the averaging plan for each fuel used (lbs per

ozone season and calendar year).

---

58

N

all

=

Total sum of the allowable NO

x

mass emissions from units

included in the averaging plan for each fuel used (lbs per

ozone season and calendar year).

EM

all(i)

=

Total mass of allowable NO

x

emissions in lbs for a unit as

determined in subsection (g)(2), (g)(3), (g)(4), (g)(5),or

(g)(6) of this Section.

EM

act(i)

=

Total mass of actual NO

X

emissions in lbs for a unit as

determined in subsection (g)(1), (g)(3), (g)(5) or (h) of this

Section.

i

=

Subscript denoting an individual unit and fuel used.

n

=

Number of different units in the averaging plan.

g)

For each unit in the averaging plan, and each fuel used by a unit, determine actual

and allowable NO

x

emissions using the following equations, except as provided

for in subsection (h) of this Section:

1)

Actual emissions must be determined as follows:

EM

act(i)

=

E

act(i)

x H

i

m

20.9 %O

C

xF x

20.9

E

m

j 1

2d(j)

d(act( j))

d

act(i)

∑

⎟

⎟

⎠

⎞

⎜

⎜

⎝

⎛

−

=

=

2)

Allowable emissions must be determined as follows:

EM

all(i)

=

E

all(i)

x H

i

m

20.9 %O

C

xF x

20.9

E

m

j 1

2d(j)

d(all)

d

all(i)

∑

⎟

⎟

⎠

⎞

⎜

⎜

⎝

⎛

−

=

=

Where:

EM

act(i)

=

Total mass of actual NO

x

emissions in lbs for a unit.

EM

all(i)

=

Total mass of allowable NO

x

emissions in lbs for a unit.

E

act

=

Actual NO

x

emission rate (lbs/mmBtu) calculated

according to the above equation.

E

all

=

Allowable NO

x

emission rate (lbs/mmBtu) calculated

according to the above equation.

H

=

Heat input (mmBtu/ozone season or mmBtu/year)

calculated from fuel flow meter and the heating value of

the fuel used.

---

59

C

d(act)

=

Actual concentration of NO

x

in lb/dscf (ppmv x 1.194 x 10

-

7

) on a dry basis for the fuel used. Actual concentration is

determined on each of the most recent test run or

monitoring pass performed pursuant to Section 217.394,

whichever is higher.

C

d(all)

=

Allowable concentration of NO

x

in lb/dscf (allowable

emission limit in ppmv specified in Section 217.388(a),

except as provided for in subsection (g)(6) of this Section,

if applicable.

multiplied by 1.194 x 10

-7

) on a dry basis for the fuel used.

F

d

=

The ratio of the gas volume of the products of combustion

to the heat content of the fuel (dscf/mmBtu) as given in the

table of F Factors included in 40 CFR 60, Appendix A,

Method 19 or as determined using 40 CFR 60, Appendix

A, Method 19.

%O

2d

=

Concentration of oxygen in effluent gas stream measured

on a dry basis during each of the applicable test or

monitoring runs used for determining emissions, as

represented by a whole number percent, e.g., for 18.7%O

2d

,

18.7 would be used.

i

=

Subscript denoting an individual unit and the fuel used.

j

=

Subscript denoting each test run or monitoring pass for an

affected unit for a given fuel.

m

=

The number of test runs or monitoring passes for an

affected unit using a given fuel.

3)

For a replacement unit that is electric-powered, the allowable NO

x

emissions from the affected unit that was replaced should be used in the

averaging calculations and the actual NO

x

emissions for the electric-

powered replacement unit (EM

(i)act elec

) are zero. Allowable NO

x

emissions for the electric-powered replacement are calculated using the

actual total bhp-hrs generated by the electric-powered replacement unit on

an ozone season and on an annual basis multiplied by the allowable NO

x

emission rate in lb/bhp-hr of the replaced unit.

The allowable mass of NO

x

emissions from an electric-

powered replacement unit (EM

(i)all elec

) must be determined

by multiplying the nameplate capacity of the unit by the

hours operated during the ozone season or annually and the

allowable NO

x

emission rate of the replaced unit (E

all rep

) in

lb/mmBtu converted to lb/bhp-hr. For this calculation the

following equation should be used:

EM

all elec(i)

= bhp x OP x F x E

all rep(i)

---

60

Where:

EM

all elec(i)

=

Mass of allowable NO

x

emissions from the electric-

powered replacement unit in pounds per ozone season or

calendar year.

Bhp

=

Nameplate capacity of the electric-powered

replacement unit in brake-horsepower.

OP

=

Operating hours during the ozone season or calendar year.

F

=

Conversion factor of 0.0077 mmBtu/bhp-hr.

E

all rep(i)

=

Allowable NO

X

emission rate (lbs/mmBtu) of the replaced

unit.

i

=

Subscript denoting an individual electric unit and the fuel

used.

4)

For a replacement unit that is not electric, the allowable NO

x

emissions

rate used in the above equations set forth in subsection (g)(2) of this

Section must be either:

A)

Prior to the applicable compliance date for the replaced unit

pursuant to Section 217.392, the higher of the actual NO

x

emissions as determined by testing or monitoring data or the

applicable uncontrolled NO

x

emissions factor from Compilation of

Air pollutant emission Factors: AP-42, Volume I: Stationary Point

and Area Sources, as incorporated by reference in Section 217.104

for the unit that was replaced; or

B)

On and after the applicable compliance date for the replaced unit

pursuant to Section 217.392, the applicable emissions

concentration for the type of unit that replaced pursuant to Section

217.388(a).

5)

For a unit that is replaced with purchased power, the allowable NO

x

emissions rate used in the above equations set forth in subsection (g)(2) of

this Section must be the emissions concentration as set forth in Section

217.388(a) or subsection (g)(6) of this Section, when applicable, for the

type of unit that was replaced. For owners or operators replacing units

with purchased power, the annual hours of operations that must be used

are the calendar year hours of operation for the unit that was shutdown

averaged over the three-year period prior to the shutdown. The actual

NO

x

emissions for the units replaced by purchased power (EM

(i)act

) are

zero. These units may be included in any emissions averaging plan for no

more than five years beginning with the calendar year that the replaced

unit is shut down.

6)

For units that have a later compliance date, allowable emissions rate used

in the above equations set forth in subsection (g)(2) of this Section must

be:

---

61

A)

Prior to the applicable compliance date pursuant to Section

217.392, the higher of the actual NO

x

emissions as determined by

testing or monitoring data, or the applicable uncontrolled NO

x

emissions factor from Compilation of Air Pollutant Emission

Factors: AP-42, Volume I: Stationary Point and Areas Sources, as

incorporated by reference in Section 217.104; and

B)

On and after the units applicable compliance date pursuant to

Section 217.392, the applicable emissions concentration for that

type of unit pursuant to Section 217.388(a).

h)

For units that use CEMS the data must show that the total mass of actual NO

x

emissions determined pursuant to subsection (h)(1) of this Section is less than or

equal to the allowable NO

x

emissions calculated in accordance with the equations

in subsections (f) and (h)(2) of this Section for both the ozone season and

calendar year. The equations in subsection (g) of this Section will not apply.

1)

The total mass of actual NO

x

emissions in lbs for a unit (EM

act

) must be

the sum of the total mass of actual NO

x

emissions from each affected unit

using CEMS data collected in accordance with 40 CFR 60 or 75, or

alternate methodology that has been approved by the Agency or USEPA

and included in a federally enforceable permit.

2)

The allowable NO

x

emissions must be determined as follows:

EM

Cd flowstack

all

i

i

i

x

m

()

(*

=

* .

−

∑

=

1194 10

7

1

)

Where:

EM

all(i)

=

Total mass of allowable NO

x

emissions in lbs for a unit.

Flow

i

=

Stack flow (dscf/hr) for a given stack.

Cd

i

=

Allowable concentration of NO

x

(ppmv) specified in

Section 217.388(a) of this subpart for a given stack. (1.194

x 10

-7

) converts to lb/dscf).

j

=

subscript denoting each hour operation of a given unit.

m

=

Total number of hours of operation of a unit.

i

=

Subscript denoting an individual unit and the fuel used.

(Source: Added at 31 Ill. Reg. _______________, effective __________________.)

Section 217.392

Compliance

---

62

a)

An owner or operator of an affected unit may not operate that unit unless it meets

the applicable concentration limit in Section 217.388(a), or is included in an

emissions averaging plan pursuant to Section 217.388(b), or meets the low usage

requirements pursuant to Section 217.388(c), and complies with all other

applicable requirements of this Subpart Q by the earliest applicable date listed

below:

1)

On and after May 1, 2007, an owner or operator of an affected engine

listed in Appendix G may not operate the affected engine unless the

requirements of this Subpart Q are met or the affected engine is exempt

pursuant to Section 217.386(b);

2)

On and after January 1, 2009, an owner or operator of an affected unit and

that is located in Cook, DuPage, Aux Sable Township and Goose Lake

Township in Grundy, Kane, Oswego Township in Kendall, Lake,

McHenry, Will, Jersey, Madison, Monroe, Randolph Township in

Randolph, or St. Clair County, and is not listed in Appendix G may not

operate the affected unit unless the requirements of this Subpart Q are met

or the affected unit is exempt pursuant to Section 217.386(b);

3)

On and after January 1, 2011, an owner or operator of an affected engine

with a nameplate capacity rated at 1500 bhp or more, and affected turbines

rated at 5 MW (6,702 bhp) or more that is not subject to subsection (a)(1)

or (a)(2) of this Section, may not operate the affected unit unless the

requirements of this Subpart Q are met or the affected unit is exempt

pursuant to Section 217.386(b); or

4)

On and after January 1, 2012, an owner or operator of an affected engine

with a nameplate capacity rated at less than 1500 bhp or an affected

turbine rated at less than 5 MW (6,702 bhp) that is not subject to

subsection (a)(1), (a)(2) or (a)(3) of this Section, may not operate the

affected engine or turbine unless the requirements of this Subpart Q are

met or the affected unit is exempt pursuant to Section 217.386(b).

b)

Owners and operators of an affected unit may use NO

x

allowances to meet the

compliance requirements in Section 217.388 as specified below. A NO

x

allowance is defined as an allowance used to meet the requirements of a NO

x

trading program administered by USEPA where one allowance is equal to one ton

of NO

x

emissions.

1)

NO

x

allowances may only be used under the following circumstances:

A)

An anomalous or unforeseen operating scenario inconsistent with

historical operations for a particular ozone season or calendar year

that causes an emissions exceedance.

---

63

B)

To achieve compliance no more than twice in any rolling five-year

period.

C)

For a unit that is not listed in Appendix G.

2)

The owner or operator of the affected unit must surrender to the Agency

one NO

x

allowance for each ton or portion of a ton of NO

x

by which

actual emissions exceed allowed emissions. For noncompliance with a

seasonal limit, a NO

x

ozone season allowance must be used. For

noncompliance with the emissions concentration limits in Section

217.388(a) or an annual limitation in an emissions averaging plan, only a

NO

x

annual allowance may be used.

3)

The owner or operator must submit a report documenting the

circumstances that required the use of NO

x

allowances and identify what

actions will be taken in subsequent years to address these circumstances

and must transfer the NO

x

allowances to the Agency’s federal NO

x

retirement account. The report and the transfer of allowances must be

submitted by October 31 for exceedances during the ozone season and

March 1 for exceedances of the emissions concentration or the annual

emission averaging plan limits. The report must contain the NATS serial

numbers of the NO

x

allowances.

(Source: Added at 31 Ill. Reg. _______________, effective __________________.)

Section 217.394

Testing and Monitoring

a)

An owner or operator of an engine or turbine must conduct an initial performance

test pursuant to subsection (c)(1) or (c)(2) of this Section as follows:

1)

By May 1, 2007, for affected engines listed in Appendix G. Performance

tests must be conducted on units listed in Appendix G, even if the unit is

included in an emissions averaging plan pursuant to Section 217.388(b).

2)

By the applicable compliance date as set forth in Section 217.392, or

within the first 876 hours of operation per calendar year, whichever is

later:

A)

For affected units not listed in Appendix G that operate more than

876 hours per calendar year; and

B)

For units that are not affected units that are included in an

emissions averaging plan and operate more than 876 hours per

calendar year.

---

64

3)

Once within the five-year period after the applicable compliance date as

set forth in Section 217.392:

A)

For affected units that operate fewer than 876 hours per calendar

year; and

B)

For units that are not affected units that are included in an

emissions averaging plan and that operate fewer than 876 hours

per calendar year

b)

An owner or operator of an engine or turbine must conduct subsequent

performance tests pursuant to subsection (c)(1) or (c)(2) of this Section as

follows:

1)

For affected engines listed in Appendix G and all units included in an

emissions averaging plan, once every five years. Testing must be

performed in the calendar year by May 1 or within 60 days of starting

operation, whichever is later;

2)

If the monitored data shows that the unit is not in compliance with the

applicable emissions concentration or emissions averaging plan, the owner

or operator must report the deviation to the Agency in writing within 30

days and conduct a performance test pursuant to subsection (c) of this

Section within 90 days of the determination of noncompliance; and

3)

When in the opinion of the Agency or USEPA, it is necessary to conduct

testing to demonstrate compliance with Section 217.388, the owner or

operator of a unit must, at his or her own expense, conduct the test in

accordance with the applicable test methods and procedures specified in

this Section 217.394 within 90 days of receipt of a notice to test from the

Agency or USEPA.

c)

Testing Procedures:

1)

For an engine: The owner or operator must conduct a performance test

using Method 7 or 7E of 40 CFR 60, Appendix A, as incorporated by

reference in Section 217.104. Each compliance test must consist of three

separate runs, each lasting a minimum of 60 minutes. NO

x

emissions must

be measured while the affected unit is operating at peak load. If the unit

combusts more than one type of fuel (gaseous or liquid) including backup

fuels, a separate performance test is required for each fuel.

2)

For a turbine: The owner operator must conduct a performance test using

the applicable procedures and methods in 40 CFR 60.4400, as

incorporated by reference in Section 217.104.

---

65

d)

Monitoring: Except for those years in which a performance test is conducted

pursuant to subsection (a) or (b) of this Section, the owner or operator of an

affected unit or a unit included in an emissions averaging plan must monitor NO

x

concentrations annually, once between January 1 and May 1 or within the first

876 hours of operation per calendar year, whichever is later. If annual operation

is less than 876 hours per calendar year, each affected unit must be monitored at

least once every five years. Monitoring must be performed as follows:

1) A portable NO

x

monitor and utilizing method ASTM D6522-00, as

incorporated by reference in Section 217.104, or a method approved by

the Agency must be used. If the engine or turbine combusts both liquid or

gaseous fuels as primary or backup fuels, separate monitoring is required

for each fuel.

2) NO

x

and O

2

concentrations measurements must be taken three times for a

duration of at least 20 minutes. Monitoring must be done at highest

achievable load. The concentrations from the three monitoring runs must

be averaged to determine whether the affected unit is in compliance with

the applicable emissions concentration or emissions averaging plan as

specified in Section 217.388.

e)

Instead of complying with the requirements of subsections (a), (b), (c) and (d) of

this Section, an owner or operator may install and operate a CEMS on an affected

unit that meets the applicable requirements of 40 CFR 60, subpart A, and

Appendix B, incorporated by reference in Section 217.104, and complies with the

quality assurance procedures specified in 40 CFR 60, Appendix F, or 40 CFR 75

as incorporated by reference in Section 217.104, or an alternate procedure as

approved by the Agency or USEPA in a federally enforceable permit. The CEMS

must be used to demonstrate compliance with the applicable emissions

concentration or emissions averaging plan only on an ozone season and annual

basis.

(Source: Added at 31 Ill. Reg. _______________, effective __________________.)

Section 217.396

Recordkeeping and Reporting

a)

Recordkeeping. The owner or operator of a unit included in an emissions

averaging plan or an affected unit that is not exempt pursuant to Section

217.386(b) and is not subject to the low usage exemption of Section 217.388(c)

must maintain records that demonstrate compliance with the requirements of this

Subpart Q which include, but are not limited to:

1)

Identification, type (e.g., lean-burn, gas-fired), and location of each unit.

2)

Calendar date of the record.

---

66

3)

The number of hours the unit operated on a monthly basis, and during

each ozone season.

4)

Type and quantity of the fuel used on a daily basis.

5)

The results of all monitoring performed on the unit and reported

deviations.

6)

The results of all tests performed on the unit.

7)

The plan for performing inspection and maintenance of the units, air

pollution control equipment, and the applicable monitoring device

pursuant to Section 217.388(d).

8)

A log of inspections and maintenance performed on the unit’s air

emissions, monitoring device, and air pollution control device. These

records must include, at a minimum, date, load levels and any manual

adjustments along with the reason for the adjustment (e.g., air to fuel ratio,

timing or other settings).

9)

If complying with the emissions averaging plan provisions of Sections

217.388(b) and 217.390 copies of the calculations used to demonstrate

compliance with the ozone season and annual control period limits,

noncompliance reports for the ozone season, and ozone and annual control

period compliance reports submitted to the Agency.

10)

Identification of time periods for which operating conditions and pollutant

data were not obtained by either the CEMS or alternate monitoring

procedures including the reasons for not obtaining sufficient data and a

description of corrective actions taken.

11)

Any NO

x

allowance reconciliation reports submitted pursuant to Section

217.392(e).

b)

The owner or operator of an affected unit that is complying with the low usage

provisions of Section 217.388(c), must:

1)

For each unit complying with Section 217.388(c)(1), maintain a record of

the NO

x

emissions for each calendar year; or

2)

For each unit complying with Section 217.388(c)(2), maintain a record of

bhp or MW hours operated each calendar year.

c)

The owner or operator of an affected unit or unit included in an emissions

averaging plan must maintain the records required by subsections (a) and (b) of

---

67

this Section for a period of five-years at the source at which the unit is located.

The records must be made available to the Agency and USEPA upon request.

d)

Reporting requirements:

1)

The owner or operator must notify the Agency in writing 30 days and five

days prior to testing pursuant to Section 217.394(a) and:

A)

If after the 30-days notice for an initially scheduled test is sent,

there is a delay (e.g., due to operational problems) in conducting

the performance test as scheduled, the owner or operator of the

unit must notify the Agency as soon as possible of the delay in the

original test date, either by providing at least seven days prior

notice of the rescheduled date of the performance test, or by

arranging a new test date with the Agency by mutual agreement;

B)

Provide a testing protocol to the Agency 60 days prior to testing;

and

C)

Not later than 30 days after the completion of the test, submit the

results of the test to the Agency.

2)

Pursuant to the requirements for monitoring in Section 217.394(d), the

owner or operator of the unit must report to the Agency any monitored

exceedances of the applicable NO

x

concentration from Section 217.388(a)

or (b) within 30 days of performing the monitoring.

3)

Within 90 days of permanently shutting down an affected unit or a unit

included in an emissions averaging plan, the owner or operator of the unit

must withdraw or amend the applicable permit to reflect that the unit is no

longer in service.

4)

If demonstrating compliance through an emissions averaging plan:

A)

By October 31 following the applicable ozone season, the owner or

operator must notify the Agency if he or she cannot demonstrate

compliance for that ozone season; and

B)

By January 30 following the applicable calendar year, the owner or

operator must submit to the Agency a report that demonstrates the

following:

i)

For all units that are part of the emissions averaging plan,

the total mass of allowable NO

x

emissions for the ozone

season and for the annual control period;

---

68

ii)

The total mass of actual NO

x

emissions for the ozone

season and annual control period for each unit included in

the averaging plan;

iii)

The calculations that demonstrate that the total mass of

actual NO

x

emissions are less than the total mass of

allowable NO

x

emissions using equations in Sections

217.390(f) and (g); and

iv)

The information required to determine the total mass of

actual NO

x

emissions and the calculations performed in

subsection (d)(4)(B)(iii) of this Section.

5)

If operating a CEMS, the owner or operator must submit an excess

emissions and monitoring systems performance report in accordance with

the requirements of 40 CFR 60.7(c) and 60.13, or 40 CFR 75 incorporated

by reference in Section 217.104, or an alternate procedure approved by the

Agency or USEPA and included in a federally enforceable permit.

6)

If using NO

x

allowances to comply with the requirements of Section

217.388, reconciliation reports as required by Section 217.392(b)(3).

(Source: Added at 31 Ill. Reg. _______________, effective __________________.)

IT IS SO ORDERED.

I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that

the Board adopted the above order on May 17, 2007, by a vote of _-_.

___________________________________

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board

---

69

ATTACHMENT A

FAST-TRACK RULES UNDER R07-18

FOR CONSIDERATION AT HEARING BEGINNING MAY 21, 2007

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE B: AIR POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

SUBCHAPTER C: EMISSION STANDARDS AND LIMITATIONS

FOR STATIONARY SOURCES

PART 217

NITROGEN OXIDES EMISSIONS

SUBPART A: GENERAL PROVISIONS

Section

217.100

Scope and Organization

217.101

Measurement Methods

217.102

Abbreviations and Units

217.103

Definitions

217.104

Incorporations by Reference

SUBPART B: NEW FUEL COMBUSTION EMISSION SOURCES

Section

217.121

New Emission Sources

SUBPART C: EXISTING FUEL COMBUSTION EMISSION SOURCES

Section

217.141

Existing Emission Sources in Major Metropolitan Areas

SUBPART K: PROCESS EMISSION SOURCES

Section

217.301

Industrial Processes

SUBPART O: CHEMICAL MANUFACTURE

Section

217.381

Nitric Acid Manufacturing Processes

SUBPART Q: STATIONARY RECIPROCATING INTERNAL COMBUSTION

ENGINES AND TURBINES

Section

217.386

Applicability

217.388

Control and Maintenance Requirements

217.390

Emissions Averaging Plans

---

70

217.392

Compliance

217.394

Testing and Monitoring

217.396

Recordkeeping and Reporting

SUBPART T: CEMENT KILNS

Section

217.400

Applicability

217.402

Control Requirements

217.404

Testing

217.406

Monitoring

217.408

Reporting

217.410

Recordkeeping

SUBPART U: NO

x

CONTROL AND TRADING PROGRAM FOR

SPECIFIED NO

x

GENERATING UNITS

Section

217.450

Purpose

217.452

Severability

217.454

Applicability

217.456

Compliance Requirements

217.458

Permitting Requirements

217.460

Subpart U NO

x

Trading Budget

217.462

Methodology for Obtaining NO

x

Allocations

217.464

Methodology for Determining NO

x

Allowances from the New Source Set-Aside

217.466

NO

x

Allocations Procedure for Subpart U Budget Units

217.468

New Source Set-Asides for “New” Budget Units

217.470

Early Reduction Credits (ERCs) for Budget Units

217.472

Low-Emitter Requirements

217.474

Opt-In Units

217.476

Opt-In Process

217.478

Opt-In Budget Units: Withdrawal from NO

x

Trading Program

217.480

Opt-In Units: Change in Regulatory Status

217.482

Allowance Allocations to Opt-In Budget Units

SUBPART V: ELECTRIC POWER GENERATION

Section

217.521

Lake of Egypt Power Plant

217.700

Purpose

217.702

Severability

217.704

Applicability

217.706

Emission Limitations

217.708

NO

x

Averaging

217.710

Monitoring

217.712

Reporting and Recordkeeping

---

71

SUBPART W: NO

x

TRADING PROGRAM FOR ELECTRICAL

GENERATING UNITS

Section

217.750

Purpose

217.752

Severability

217.754

Applicability

217.756

Compliance Requirements

217.758

Permitting Requirements

217.760

NO

x

Trading Budget

217.762

Methodology for Calculating NO

x

Allocations for Budget Electrical

Generating Units (EGUs)

217.764

NO

x

Allocations for Budget EGUs

217.768

New Source Set-Asides for “New” Budget EGUs

217.770

Early Reduction Credits for Budget EGUs

217.774

Opt-In Units

217.776

Opt-In Process

217.778

Budget Opt-In Units: Withdrawal from NO

x

Trading Program

217.780

Opt-In Units: Change in Regulatory Status

217.782

Allowance Allocations to Budget Opt-In Units

SUBPART X: VOLUNTARY NO

x

EMISSIONS REDUCTION PROGRAM

Section

217.800

Purpose

217.805

Emission Unit Eligibility

217.810

Participation Requirements

217.815

NO

x

Emission Reductions and the Subpart X NO

x

Trading Budget

217.820

Baseline Emissions Determination

217.825

Calculation of Creditable NO

x

Emission Reductions

217.830

Limitations on NO

x

Emission Reductions

217.835

NO

x

Emission Reduction Proposal

217.840

Agency Action

217.845

Emissions Determination Methods

217.850

Emissions Monitoring

217.855

Reporting

217.860

Recordkeeping

217.865

Enforcement

Appendix A Rule into Section Table

Appendix B Section into Rule Table

Appendix C Compliance Dates

Appendix D Non-Electrical Generating Units

Appendix E Large Non-Electrical Generating Units

Appendix F

Allowances for Electrical Generating Units

---

72

Appendix G Existing Reciprocating Internal Combustion Engines Affected by the NO

x

SIP

Call

Authority: Implementing Sections 9.9 and 10 and authorized by Sections 27 and 28.5 of the

Environmental Protection Act [415 ILCS 5/9.9, 10, 27 and 28.5 (2004)].

Source: Adopted as Chapter 2: Air Pollution, Rule 207: Nitrogen Oxides Emissions, R71-23, 4

PCB 191, April 13, 1972, filed and effective April 14, 1972; amended at 2 Ill. Reg. 17, p. 101,

effective April 13, 1978; codified at 7 Ill. Reg. 13609; amended in R01-9 at 25 Ill. Reg. 128,

effective December 26, 2000; amended in R01-11 at 25 Ill. Reg. 4597, effective March 15, 2001;

amended in R01-16 and R01-17 at 25 Ill. Reg. 5914, effective April 17, 2001; amended in R07-

19 at 31 Ill. Reg. ___________, effective _______________.

SUBPART Q: STATIONARY RECIPROCATING INTERNAL COMBUSTION ENGINES

AND TURBINES

Section 217.386

Applicability

a)

A stationary reciprocating internal combustion engine listed in Appendix G of

this Part or turbine that meets the criteria in subsection (a)(1) or (a)(2) of this

Section is an affected unit and is subject to the requirements of this Subpart Q.

1)

The engine at nameplate capacity is rated at equal to or greater than 500

bhp output; or

2)

The turbine is rated at equal to or greater than 3.5 MW (4,694 bhp) output

at 14.7 psia, 59

o

F, and 60 percent relative humidity.

b)

Notwithstanding subsection (a) of this Section, an engine or turbine will not be an

affected unit and is not subject to the requirements of this Subpart Q, if the engine

or turbine is or has:

1)

Used as an emergency or standby unit as defined by 35 Ill. Adm. Code

211.1920;

2)

Used for research or for the purposes of performance verification or

testing;

3)

Used to control emissions from landfills, where at least 50 percent of the

heat input is gas collected from a landfill;

4)

Used for agricultural purposes including the raising of crops or livestock

that are produced on site, but not associated businesses like packing

operations, sale of equipment or repair;

5)

A nameplate capacity rated at less than 1500 bhp (1118 kW) output,

---

73

mounted on a chassis or skids, designed to be moveable, and moved to a

different source at least once every 12 months; or

6)

Regulated under Subpart W or a subsequent federal NO

x

Trading program

for electrical generating units.

c)

If an exempt unit ceases to fulfill the criteria specified in subsection (b) of this

Section, the owner or operator must notify the Agency in writing within 30 days

after becoming aware that the exemption no longer applies and comply with the

control requirements of this Subpart Q.

d)

The requirements of this Subpart Q will continue to apply to any engine or turbine

that has ever been subject to the control requirements of Section 217.388, even if

the affected unit ceases to fulfill the rating requirements of subsection (a) of this

Section or becomes eligible for an exemption pursuant to subsection (b) of this

Section.

(Source: Added at 31 Ill. Reg. _______________, effective __________________.)

Section 217.388

Control and Maintenance Requirements

On and after the applicable compliance date in Section 217.392, an owner or operator of an

affected unit must inspect and maintain affected units as required by subsection (d) of this

Section and comply with either the applicable emissions concentration as set forth in subsection

(a) of this Section, or the requirements for an emissions averaging plan as specified in subsection

(b) of this Section or the requirements for operation as a low usage unit as specified in

subsection (c) of this Section.

a)

The owner or operator must limit the discharge from an affected unit into the

atmosphere of any gases that contain NO

x

to no more than:

1)

150 ppmv (corrected to 15 percent O

2

on a dry basis) for spark-ignited

rich-burn engines;

2)

210 ppmv (corrected to 15 percent O

2

on a dry basis) for spark-ignited

lean-burn engines, except for existing spark-ignited Worthington engines

that are not listed in Appendix G;

3)

365 ppmv (corrected to 15 percent O

2

on a dry basis) for existing spark-

ignited Worthington engines that are not listed in Appendix G;

4)

660 ppmv (corrected to 15 percent O

2

on a dry basis) for diesel engines;

5)

42 ppmv (corrected to 15 percent O

2

on a dry basis) for gaseous fuel-fired

turbines; and

---

74

6)

96 ppmv (corrected to 15 percent O

2

on a dry basis) for liquid fuel-fired

turbines.

b)

The owner or operator must comply with the requirements of the applicable

emissions averaging plan as set forth in Section 217.390.

c)

The owner or operator must operate the affected unit as a low usage unit pursuant

to subsection (c)(1) or (c)(2) of this Section. Low usage units are not subject to

the requirements of this Subpart Q except for the requirements to inspect and

maintain the unit pursuant to subsection (d) of this Section, and retain records

pursuant to Sections 217.396(b) and (c). Only one of the following exemptions

may be utilized at a particular source:

1)

The potential to emit (PTE) is no more than 100 TPY NO

x

aggregated

from all engines and turbines located at the source that are not otherwise

exempt pursuant to Section 217.386(b), and not complying with the

requirements of subsection (a) or (b) of this Section and the NO

x

PTE

limit is contained in a federally enforceable permit; or

2)

The aggregate bhp-hr/MW-hr from all affected units located at the source

that are not exempt pursuant to Section 217.386(b), and not complying

with the requirements of subsection (a) or (b) of this Section, are less than

or equal to the bhp-hrs and MW-hrs operation limit listed in subsection

(c)(2)(A) and (c)(2)(B) of this Section. For units not located at a natural

gas transmission compressor station or storage facility that drive a natural

gas compressor station, the operation limits of subsections (c)(2)(A) and

(B) of this Section must be contained in a federally enforceable permit.

A)

8 mm bhp-hrs or less on an annual basis for engines; and

B)

20,000 MW-hrs or less on an annual basis for turbines.

d)

The owner or operator must inspect and perform periodic maintenance on the

affected unit, in accordance with a Maintenance Plan that documents:

1)

For a unit not located at natural gas transmission compressor station or

storage facility either:

A)

The manufacturer’s recommended inspection and maintenance of

the applicable air pollution control equipment, monitoring device,

and affected unit; or

B)

If the original equipment manual is not available or substantial

modifications have been made that require an alternative procedure

for the applicable air pollution control device, monitoring device,

---

75

or affected unit, the owner or operator must establish a plan for

inspection and maintenance in accordance with what is customary

for the type of air pollution control equipment, monitoring device,

and affected unit.

2)

For a unit located at a natural gas compressor station or storage facility,

the operator’s maintenance procedures for the applicable air pollution

control device, monitoring device, and affected unit.

(Source: Added at 31 Ill. Reg. _______________, effective __________________.)

Section 217.390

Emissions Averaging Plans

a)

An owner or operator of certain affected units may comply through an emissions

averaging plan.

1)

The unit or units that commenced operation before January 1, 2002, may

be included in an emissions averaging plan as follows:

A)

Units units located at a single source or at multiple sources in

Illinois, so long as the units are owned by the same company or

parent company where the parent company has working control

through stock ownership of its subsidiary corporations. A unit

may be listed in only one emissions averaging plan;

B)

Units that have a compliance date later than the control period for

which the averaging plan is being used for compliance; and

C)

Units which the owner or operator may claim as exempt pursuant

to Section 217.386(b) but does not claim exempt. For as long as

such a unit is included in an emissions averaging plan, it will be

treated as an affected unit and subject to the applicable emission

concentration limits, testing, monitoring, recordkeeping and

reporting requirements.

2)

The following types of units may not be included in an emissions

averaging plan:

A)

Units units that commence operation after January 1, 2002, unless

the unit replaces an engine or turbine that commenced operation on

or before January 1, 2002, or it replaces an engine or turbine that

replaced a unit that commenced operation on or before January 1,

2002. The new unit must be used for the same purpose as the

replacement unit. The owner or operator of a unit that is shutdown

and replaced must comply with the provisions of Section

---

76

217.396(d)(3) before the replacement unit may be included in an

emissions averaging plan.

B)

Units which the owner or operator is claiming are exempt pursuant

to Section 217.386(b) or as a low usage unit pursuant to Section

217.388(c).

b)

An owner or operator must submit an emissions averaging plan to the Agency by

the applicable compliance date set forth in Section 217.392. The plan must

include, but is not limited to:

1)

The list of affected units included in the plan by unit identification number

and permit number.

2)

A sample calculation demonstrating compliance using the methodology

provided in subsection (f) of this Section for both the ozone season and

calendar year.

c)

An owner or operator may amend an emissions averaging plan only once per

calendar year. An amended plan must be submitted to the Agency by May 1 of

the applicable calendar year. If an amended plan is not received by the Agency

by May 1 of the applicable calendar year, the previous year’s plan will be the

applicable emissions averaging plan.

d)

Notwithstanding subsection (c) of this Section, an owner or operator, and the

buyer, if applicable:

1)

Must must submit an updated emissions averaging plan or plans to the

Agency within 60 days, if a unit that is listed in an emissions averaging

plan is sold or taken out of service.

2)

May amend its emissions averaging plan to include another unit within 30

days of discovering that the unit no longer qualifies as an exempt unit

pursuant to Section 217.386(b) or as a low usage unit pursuant to Section

217.388(c).

e)

An owner or operator must:

1)

Demonstrate compliance for both the ozone season (May 1 through

September 30) and the calendar year (January 1 through December 31) by

using the methodology and the units listed in the most recent emissions

averaging plan submitted to the Agency pursuant to subsection (b) of this

Section; the higher of the monitoring or test data determined pursuant to

Section 217.394; and the actual hours of operation for the applicable

control period;

---

77

2)

Notify the Agency by October 31 following the ozone season, if

compliance cannot be demonstrated for that ozone season; and

3)

Submit to the Agency by January 31 following each calendar year, a

compliance report containing the information required by Section

217.396(d)(4).

f)

The total mass of actual NO

x

emissions from the units listed in the emissions

averaging plan must be equal to or less than the total mass of allowable NO

x

emissions for those units for both the ozone season and calendar year. The

following equation must be used to determine compliance:

N

act

≤

N

all

Where:

N

act

=

∑

=

n

i1

EM

act(i)

N

all

=

∑

=

n

i1

EM

all(i)

N

act

=

Total sum of the actual NO

x

mass emissions from units

included in the averaging plan for each fuel used (lbs per

ozone season and calendar year).

N

all

=

Total sum of the allowable NO

x

mass emissions from units

included in the averaging plan for each fuel used (lbs per

ozone season and calendar year).

EM

all(i)

=

Total mass of allowable NO

x

emissions in lbs for a unit as

determined in subsection (g)(2), (g)(3), (g)(4), (g)(5),or

(g)(6) of this Section.

EM

act(i)

=

Total mass of actual NO

X

emissions in lbs for a unit as

determined in subsection (g)(1), (g)(3), (g)(5) or (h) of this

Section.

i

=

Subscript denoting an individual unit and fuel used.

n

=

Number of different units in the averaging plan.

g)

For each unit in the averaging plan, and each fuel used by a unit, determine actual

and allowable NO

x

emissions using the following equations, except as provided

for in subsection (h) of this Section:

1)

Actual emissions must be determined as follows:

EM

act(i)

=

E

act(i)

x H

i

---

78

m

20.9 %O

C

xF x

20.9

E

m

j 1

2d(j)

d(act( j))

d

act(i)

∑

⎟

⎟

⎠

⎞

⎜

⎜

⎝

⎛

−

=

=

2)

Allowable emissions must be determined as follows:

EM

all(i)

=

E

all(i)

x H

i

m

20.9 %O

C

xF x

20.9

E

m

j 1

2d(j)

d(all)

d

all(i)

∑

⎟

⎟

⎠

⎞

⎜

⎜

⎝

⎛

−

=

=

Where:

EM

act(i)

=

Total mass of actual NO

x

emissions in lbs for a unit.

EM

all(i)

=

Total mass of allowable NO

x

emissions in lbs for a unit.

E

act

=

Actual NO

x

emission rate (lbs/mmBtu) calculated

according to the above equation.

E

all

=

Allowable NO

x

emission rate (lbs/mmBtu) calculated

according to the above equation.

H

=

Heat input (mmBtu/ozone season or mmBtu/year)

calculated from fuel flow meter and the heating value of

the fuel used.

C

d(act)

=

Actual concentration of NO

x

in lb/dscf (ppmv x 1.194 x 10

-

7

) on a dry basis for the fuel used. Actual concentration is

determined on each of the most recent test run or

monitoring pass performed pursuant to Section 217.394,

whichever is higher.

C

d(all)

=

Allowable concentration of NO

x

in lb/dscf (allowable

emission limit in ppmv specified in Section 217.388(a),

except as provided for in subsection (g)(6) of this Section,

if applicable.

multiplied by 1.194 x 10

-7

) on a dry basis for the fuel used.

F

d

=

The ratio of the gas volume of the products of combustion

to the heat content of the fuel (dscf/mmBtu) as given in the

table of F Factors included in 40 CFR 60, Appendix A,

Method 19 or as determined using 40 CFR 60, Appendix

A, Method 19.

%O

2d

=

Concentration of oxygen in effluent gas stream measured

on a dry basis during each of the applicable test or

monitoring runs used for determining emissions, as

represented by a whole number percent, e.g., for 18.7%O

2d

,

18.7 would be used.

i

=

Subscript denoting an individual unit and the fuel used.

---

79

j

=

Subscript denoting each test run or monitoring pass for an

affected unit for a given fuel.

m

=

The number of test runs or monitoring passes for an

affected unit using a given fuel.

3)

For a replacement unit that is electric-powered, the allowable NO

x

emissions from the affected unit that was replaced should be used in the

averaging calculations and the actual NO

x

emissions for the electric-

powered replacement unit (EM

(i)act elec

) are zero. Allowable NO

x

emissions for the electric-powered replacement are calculated using the

actual total bhp-hrs generated by the electric-powered replacement unit on

an ozone season and on an annual basis multiplied by the allowable NO

x

emission rate in lb/bhp-hr of the replaced unit.

The allowable mass of NO

x

emissions from an electric-powered

replacement unit (EM

(i)all elec

) must be determined by multiplying the

nameplate capacity of the unit by the hours operated during the ozone

season or annually and the allowable NO

x

emission rate of the replaced

unit (E

all rep

) in lb/mmBtu converted to lb/bhp-hr. For this calculation the

following equation should be used:

EM

all elec(i)

= bhp x OP x F x E

all rep(i)

Where:

EM

all elec(i)

=

Mass of allowable NO

x

emissions from the electric-

powered replacement unit in pounds per ozone season or

calendar year.

Bhp

= Nameplate capacity of the electric-powered replacement unit

in brake-horsepower.

OP

= Operating hours during the ozone season or calendar year.

F

=

Conversion factor of 0.0077 mmBtu/bhp-hr.

E

all rep(i)

=

Allowable NO

X

emission rate (lbs/mmBtu) of the replaced

unit.

i

= Subscript denoting an individual electric unit and the fuel

used.

4)

For a replacement unit that is not electric, the allowable NO

x

emissions

rate used in the above equations set forth in subsection (g)(2) of this

Section must be either:

A)

Prior to the applicable compliance date for the replaced unit

pursuant to Section 217.392, the higher of the actual NO

x

emissions as determined by testing or monitoring data or the

applicable uncontrolled NO

x

emissions factor from Compilation of

Air pollutant emission Factors: AP-42, Volume I: Stationary Point

---

80

and Area Sources, as incorporated by reference in Section 217.104

for the unit that was replaced; or

B)

On and after the applicable compliance date for the replaced unit

pursuant to Section 217.392, the applicable emissions

concentration for the type of unit that replaced pursuant to Section

217.388(a).

5)

For a unit that is replaced with purchased power, the allowable NO

x

emissions rate used in the above equations set forth in subsection (g)(2) of

this Section must be the emissions concentration as set forth in Section

217.388(a) or subsection (g)(6) of this Section, when applicable, for the

type of unit that was replaced. For owners or operators replacing units

with purchased power, the annual hours of operations that must be used

are the calendar year hours of operation for the unit that was shutdown

averaged over the three-year period prior to the shutdown. The actual

NO

x

emissions for the units replaced by purchased power (EM

(i)act

) are

zero. These units may be included in any emissions averaging plan for no

more than five years beginning with the calendar year that the replaced

unit is shut down.

6)

For units that have a later compliance date, For non-Appendix G units

used in an emissions averaging plan, allowable emissions rate used in the

above equations set forth in subsection (g)(2) of this Section must be:

A)

Prior to the applicable compliance date pursuant to Section

217.392, the higher of the actual NO

x

emissions as determined by

testing or monitoring data, or the applicable uncontrolled NO

x

emissions factor from Compilation of Air Pollutant Emission

Factors: AP-42, Volume I: Stationary Point and Areas Sources, as

incorporated by reference in Section 217.104; and

B)

On and after the units applicable compliance date pursuant to

Section 217.392, the applicable emissions concentration for that

type of unit pursuant to Section 217.388(a).

h)

For units that use CEMS the data must show that the total mass of actual NO

x

emissions determined pursuant to subsection (h)(1) of this Section is less than or

equal to the allowable NO

x

emissions calculated in accordance with the equations

in subsections (f) and (h)(2) of this Section for both the ozone season and

calendar year. The equations in subsection (g) of this Section will not apply.

1)

The total mass of actual NO

x

emissions in lbs for a unit (EM

act

) must be

the sum of the total mass of actual NO

x

emissions from each affected unit

using CEMS data collected in accordance with 40 CFR 60 or 75, or

---

81

alternate methodology that has been approved by the Agency or USEPA

and included in a federally enforceable permit.

2)

The allowable NO

x

emissions must be determined as follows:

EM

Cd flowstack

all

i

i

i

x

m

()

(*

=

* .

−

∑

=

1194 10

7

1

)

Where:

EM

all(i)

=

Total mass of allowable NO

x

emissions in lbs for a unit.

Flow

i

=

Stack flow (dscf/hr) for a given stack.

Cd

i

=

Allowable concentration of NO

x

(ppmv) specified in

Section 217.388(a) of this subpart for a given stack. (1.194

x 10

-7

) converts to lb/dscf).

j

=

subscript denoting each hour operation of a given unit.

m

=

Total number of hours of operation of a unit.

i

=

Subscript denoting an individual unit and the fuel used.

(Source: Added at 31 Ill. Reg. _______________, effective __________________.)

Section 217.392

Compliance

a)

An owner or operator of an affected unit may not operate that unit unless it meets

the applicable concentration limit in Section 217.388(a), or is included in an

emissions averaging plan pursuant to Section 217.388(b), or meets the low usage

requirements pursuant to Section 217.388(c), and complies with all other

applicable requirements of this Subpart Q by the earliest applicable date listed

below:

1)

On and after May 1, 2007, an owner or operator of an affected engine

listed in Appendix G may not operate the affected engine unless the

requirements of this Subpart Q are met or the affected engine is exempt

pursuant to Section 217.386(b).;

2)

On and after January 1, 2009, an owner or operator of an affected unit and

that is located in Cook, DuPage, Aux Sable Township and Goose Lake

Township in Grundy, Kane, Oswego Township in Kendall, Lake,

McHenry, Will, Jersey, Madison, Monroe, Randolph Township in

Randolph, or St. Clair County, and is not listed in Appendix G may not

operate the affected unit unless the requirements of this Subpart Q are met

or the affected unit is exempt pursuant to Section 217.386(b);

3)

On and after January 1, 2011, an owner or operator of an affected engine

with a nameplate capacity rated at 1500 bhp or more, and affected turbines

---

82

rated at 5 MW (6,702 bhp) or more that is not subject to subsection (a)(1)

or (a)(2) of this Section, may not operate the affected unit unless the

requirements of this Subpart Q are met or the affected unit is exempt

pursuant to Section 217.386(b); or

4)

On and after January 1, 2012, an owner or operator of an affected engine

with a nameplate capacity rated at less than 1500 bhp or an affected

turbine rated at less than 5 MW (6,702 bhp) that is not subject to

subsection (a)(1), (a)(2) or (a)(3) of this Section, may not operate the

affected engine or turbine unless the requirements of this Subpart Q are

met or the affected unit is exempt pursuant to Section 217.386(b).

b)

Owners and operators of an affected unit may use NO

x

allowances to meet the

compliance requirements in Section 217.388 as specified below. A NO

x

allowance is defined as an allowance used to meet the requirements of a NO

x

trading program administered by USEPA where one allowance is equal to one ton

of NO

x

emissions.

1)

NO

x

allowances may only be used under the following circumstances:

A)

An anomalous or unforeseen operating scenario inconsistent with

historical operations for a particular ozone season or calendar year

that causes an emissions exceedance.

B)

To achieve compliance no more than twice in any rolling five-year

period.

C)

For a unit that is not listed in Appendix G.

2)

The owner or operator of the affected unit must surrender to the Agency

one NO

x

allowance for each ton or portion of a ton of NO

x

by which

actual emissions exceed allowed emissions. For noncompliance with a

seasonal limit, a NO

x

ozone season allowance must be used. For

noncompliance with the emissions concentration limits in Section

217.388(a) or an annual limitation in an emissions averaging plan, only a

NO

x

annual allowance may be used.

3)

The owner or operator must submit a report documenting the

circumstances that required the use of NO

x

allowances and identify what

actions will be taken in subsequent years to address these circumstances

and must transfer the NO

x

allowances to the Agency’s federal NO

x

retirement account. The report and the transfer of allowances must be

submitted by October 31 for exceedances during the ozone season and

March 1 for exceedances of the emissions concentration or the annual

emission averaging plan limits. The report must contain the NATS serial

numbers of the NO

x

allowances.

---

83

(Source: Added at 31 Ill. Reg. _______________, effective __________________.)

Section 217.394

Testing and Monitoring

a)

An owner or operator

of an engine or turbine must conduct an initial performance

test pursuant to subsection (c)(1) or (c)(2) of this Section as follows:

1)

By May 1, 2007, for affected engines listed in Appendix G. Performance

tests must be conducted on units listed in Appendix G, even if the unit is

included in an emissions averaging plan pursuant to Section 217.388(b).

2)

By the applicable compliance date as set forth in Section 217.392, or

within the first 876 hours of operation per calendar year, whichever is

later:

A)

For affected units not listed in Appendix G that operate more than

876 hours per calendar year; and

B)

For for units that are not affected units that are included in an

emissions averaging plan and operate more than 876 hours per

calendar year.

3)

Once within the five-year period after the applicable compliance date as

set forth in Section 217.392:

A)

For affected units that operate fewer than 876 hours per calendar

year; and

B)

For units that are not affected units that are included in an

emissions averaging plan and that operate fewer than 876 hours

per calendar year

b)

An owner or operator

of an engine or turbine must conduct subsequent

performance tests pursuant to subsection (c)(1) or (c)(2) of this Section as

follows:

1)

For affected engines listed in Appendix G and all units included in an

emissions averaging plan, once every five years. Testing must be

performed in the calendar year by May 1 or within 60 days of starting

operation, whichever is later;

2)

If the monitored data shows that the unit is not in compliance with the

applicable emissions concentration or emissions averaging plan, the owner

or operator must report the deviation to the Agency in writing within 30

---

84

days and conduct a performance test pursuant to subsection (c) of this

Section within 90 days of the determination of noncompliance; and

3)

When in the opinion of the Agency or USEPA, it is necessary to conduct

testing to demonstrate compliance with Section 217.388, the owner or

operator of a unit must, at his or her own expense, conduct the test in

accordance with the applicable test methods and procedures specified in

this Section 217.394 within 90 days of receipt of a notice to test from the

Agency or USEPA.

c)

Testing Procedures:

1)

For an engine: The owner or operator must conduct a performance test

using Method 7 or 7E of 40 CFR 60, Appendix A, as incorporated by

reference in Section 217.104. Each compliance test must consist of three

separate runs, each lasting a minimum of 60 minutes. NO

x

emissions must

be measured while the affected unit is operating at peak load. If the unit

combusts more than one type of fuel (gaseous or liquid) including backup

fuels, a separate performance test is required for each fuel.

2)

For a turbine

included in an emissions averaging plan: The owner

operator must conduct a performance test using the applicable procedures

and methods in 40 CFR 60.4400, as incorporated by reference in Section

217.104.

d)

Monitoring: Except for those years in which a performance test is conducted

pursuant to subsection (a) or (b) of this Section, the owner or operator of an

affected unit or a unit included in an emissions averaging plan must monitor NO

x

concentrations annually, once between January 1 and May 1 or within the first

876 hours of operation per calendar year, whichever is later. If annual operation

is less than 876 hours per calendar year, each affected unit must be monitored at

least once every five years. Monitoring must be performed as follows:

1)

A portable NO

x

monitor and utilizing method ASTM D6522-00, as

incorporated by reference in Section 217.104, or a method approved by

the Agency must be used. If the engine or turbine combusts both liquid or

gaseous fuels as primary or backup fuels, separate monitoring is required

for each fuel.

2)

NO

x

and O

2

concentrations measurements must be taken three times for a

duration of at least 20 minutes. Monitoring must be done at highest

achievable load. The concentrations from the three monitoring runs must

be averaged to determine whether the affected unit is in compliance with

the applicable emissions concentration or emissions averaging plan as

specified in Section 217.388.

---

85

e)

Instead of complying with the requirements of subsections (a), (b), (c) and (d) of

this Section, an owner or operator may install and operate a CEMS on an affected

unit that meets the applicable requirements of 40 CFR 60, subpart A, and

Appendix B, incorporated by reference in Section 217.104, and complies with the

quality assurance procedures specified in 40 CFR 60, Appendix F, or 40 CFR 75

as incorporated by reference in Section 217.104, or an alternate procedure as

approved by the Agency or USEPA in a federally enforceable permit. The CEMS

must be used to demonstrate compliance with the applicable emissions

concentration or emissions averaging plan only on an ozone season and annual

basis.

(Source: Added at 31 Ill. Reg. _______________, effective __________________.)

Section 217.396

Recordkeeping and Reporting

a)

Recordkeeping. The owner or operator of a unit included in an emissions

averaging plan or an affected unit that is not exempt pursuant to Section

217.386(b) and is not subject to the low usage exemption of Section 217.388(c)

must maintain records that demonstrate compliance with the requirements of this

Subpart Q which include, but are not limited to:

1)

Identification, type (e.g., lean-burn, gas-fired), and location of each unit.

2)

Calendar date of the record.

3)

The number of hours the unit operated on a monthly basis, and during

each ozone season.

4)

Type and quantity of the fuel used on a daily basis.

5)

The results of all monitoring performed on the unit and reported

deviations.

6)

The results of all tests performed on the unit.

7)

The plan for performing inspection and maintenance of the units, air

pollution control equipment, and the applicable monitoring device

pursuant to Section 217.388(d).

8)

A log of inspections and maintenance performed on the unit’s air

emissions, monitoring device, and air pollution control device. These

records must include, at a minimum, date, load levels and any manual

adjustments along with the reason for the adjustment (e.g., air to fuel ratio,

timing or other settings).

---

86

9)

If complying with the emissions averaging plan provisions of Sections

217.388(b) and 217.390 copies of the calculations used to demonstrate

compliance with the ozone season and annual control period limits,

noncompliance reports for the ozone season, and ozone and annual control

period compliance reports submitted to the Agency.

10)

Identification of time periods for which operating conditions and pollutant

data were not obtained by either the CEMS or alternate monitoring

procedures including the reasons for not obtaining sufficient data and a

description of corrective actions taken.

11)

Any NO

x

allowance reconciliation reports submitted pursuant to Section

217.392(e).

b)

The owner or operator of an affected unit that is complying with the low usage

provisions of Section 217.388(c), must:

1)

For each unit complying with Section 217.388(c)(1), maintain a record of

the NO

x

emissions for each calendar year; or

2)

For each unit complying with Section 217.388(c)(2), maintain a record of

bhp or MW hours operated each calendar year.

c)

The owner or operator of an affected unit or unit included in an emissions

averaging plan must maintain the records required by subsections (a) and (b) of

this Section for a period of five-years at the source at which the unit is located.

The records must be made available to the Agency and USEPA upon request.

cd)

Reporting requirements:

1)

The owner or operator must notify the Agency in writing 30 days and five

days prior to testing pursuant to Section 217.394(a) and:

A)

If after the 30-days notice for an initially scheduled test is sent,

there is a delay (e.g., due to operational problems) in conducting

the performance test as scheduled, the owner or operator of the

unit must notify the Agency as soon as possible of the delay in the

original test date, either by providing at least seven days prior

notice of the rescheduled date of the performance test, or by

arranging a new test date with the Agency by mutual agreement;

B)

Provide a testing protocol to the Agency 60 days prior to testing;

and

C)

Not later than 30 days after the completion of the test, submit the

results of the test to the Agency.

---

87

2)

Pursuant to the requirements for monitoring in Section 217.394(d), the

owner or operator of the unit must report to the Agency any monitored

exceedances of the applicable NO

x

concentration from Section 217.388(a)

or (b) within 30 days of performing the monitoring.

3)

Within 90 days of permanently shutting down an affected unit or a unit

included in an emissions averaging plan, the owner or operator of the unit

must withdraw or amend the applicable permit to reflect that the unit is no

longer in service.

4)

If demonstrating compliance through an emissions averaging plan:

A)

By October 31 following the applicable ozone season, the owner or

operator must notify the Agency if he or she cannot demonstrate

compliance for that ozone season; and

B)

By January 30 following the applicable calendar year, the owner or

operator must submit to the Agency a report that demonstrates the

following:

i)

For all units that are part of the emissions averaging plan,

the total mass of allowable NO

x

emissions for the ozone

season and for the annual control period;

ii)

The total mass of actual NO

x

emissions for the ozone

season and annual control period for each unit included in

the averaging plan;

iii)

The calculations that demonstrate that the total mass of

actual NO

x

emissions are less than the total mass of

allowable NO

x

emissions using equations in Sections

217.390(f) and (g); and

iv)

The information required to determine the total mass of

actual NO

x

emissions and the calculations performed in

subsection (d)(4)(B)(iii) of this Section.

5)

If operating a CEMS, the owner or operator must submit an excess

emissions and monitoring systems performance report in accordance with

the requirements of 40 CFR 60.7(c) and 60.13, or 40 CFR 75 incorporated

by reference in Section 217.104, or an alternate procedure approved by the

Agency or USEPA and included in a federally enforceable permit.

---

88

6)

If using NO

x

allowances to comply with the requirements of Section

217.388, reconciliation reports as required by Section 217.392(b)(3).

(Source: Added at 31 Ill. Reg. _______________, effective __________________.)

---

89

Appendix G: Existing Reciprocating Internal Combustion Engines Affected by NO

x

SIP Call

Plant ID

Point ID

Segment

ANR Pipeline Co. – Sandwich

093802AAF

E-108

1

Natural Gas Pipeline Co. of America 8310

027807AAC

730103540041

1

Natural Gas Pipeline Co. of America Sta 110

073816AAA

851000140011

1

073816AAA

851000140012

2

073816AAA

851000140013

3

073816AAA

851000140014

4

073816AAA

851000140041

1

073816AAA

851000140051

1

Northern Illinois Gas Co. - Stor Stat 359

113817AAA

730105440021

1

113817AAA

730105440031

1

113821AAA

730105430021

1

113821AAA

730105430051

1

Panhandle Eastern Pipe Line Co.-Glenarm

167801AAA

87090038002

1

167801AAA

87090038004

1

167801AAA

87090038005

1

Panhandle Eastern Pipeline - Tuscola St

041804AAC

73010573009

9

041804AAC

73010573010

10

041804AAC

73010573011

11

041804AAC

73010573012

12

041804AAC

73010573013

13

Panhandle Eastern Pipeline Co.

149820AAB

7301057199G

3

149820AAB

7301057199I

1

149820AAB

7301057199J

1

149820AAB

7301057199K

1

---

90

Panhandle Eastern Pipeline Co.-Glenarm

167801AAA

87090038001

1

Phoenix Chemical Co.

085809AAA

730700330101

1

085809AAA

730700330102

2

085809AAA

730700330103

3

(Source: Added at 31 Ill. Reg. _______________, effective __________________.)

I, John T. Therriault, Assistant Clerk of the Illinois Pollution Control Board, certify that

the Board adopted the above order on May 17, 2007, by a vote of 4-0.

John T. Therriault, Assistant Clerk

Illinois Pollution Control Board