BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
1
)
NOx EMISSIONS FROM STATIONARY
)
R07-18
RECIPROCATING INTERNAL COMBUSTION
)
(Rulemaking
-
Air)
ENGINES AND TURBINES:
)
AMENDMENTS TO 35 1LL.ADM.CODE
)
SECTION 201.146 AND PARTS 211 AND 217.
1
)
1
IN THE MATTER OF:
)
1
SECTION 27 PROPOSED RULES FOR
)
NITROGEN OXIDE (NOX) EMISSIONS FROM
)
R07-19
STATIONARY RECIPROCATING INTERNAL
)
(Rulemaking
-
Air)
COMBUSTION ENGINES AND TURBINES:
1
AMENDMENTS TO 35 1LL.ADM.CODE
)
PARTS 21 1 AND 217.
NOTICE OF FILING
To:
John T. Therriault, Assistant Clerk
Persons included on the
Illinois Pollution Control Board
ATTACHED SERVICE LIST
James R. Thompson Center
Suite 1 1-500
100 West Randolph
Chicago, Illinois 6060 1
PLEASE TAKE NOTICE that we have today filed with the Office of the Clerk of the
Pollution Control Board
THE PIPELINE CONSORTIUM'S RESPONSE TOTHE
AGENCY'S MOTION FOR RECONSIDERATION.
Dated: July 6,2007
Renee Cipriano
Kathleen C. Bassi
Stephen J. Bonebrake
Joshua
R. More
SCHIFF
HARDIN, LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
3 12-258-5500
Fax:
3
12-258-5600
BEFORE THE POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
FAST-TRACK RULES UNDER NITROGEN OXIDE
)
POX) SIP CALL PHASE I1 AMENDMENTS TO 35
)
R07-18
1LL.ADM.CODE SECTION 201.146 AND PARTS
)
(Rulemaking
-
Air)
211 AND 217.
)
)
1
IN THE MATTER OF:
1
)
SECTION 27 PROPOSED RULES FOR NITROGEN
)
OXIDE POX) EMISSIONS FROM STATIONARY
)
R07-19
RECIPROCATING INTERNAL COMBUSTION
)
(Rulemaking
-
Air)
ENGINES AND TURBINES: AMENDMENTS TO
1
35 1LL.ADM.CODE PARTS 211 AND 217.
)
THE PIPELINE CONSORTIUM'S RESPONSE TO
THE AGENCY'S MOTION FOR RECONSIDERATION
NOW COME ANR PIPELINE COMPANY, NATURAL GAS PIPELINE COMPANY,
TRUNKLINE GAS COMPANY, LLC, AND PANHANDLE EASTERN PIPE LINE
COMPANY, LP, (collectively, "the Pipeline Consortium") by and through their attorneys,
SCHIFF
HARDIN LLP, and, pursuant to 35 111.Adm.Code
§§
102.700, 101.902, and 101.520,
respond to the Illinois Environmental Protection Agency's ("Agency") Motion for
Reconsideration.
INTRODUCTION
On April 6,2007, the Agency filed a fast-track rulemaking pursuant to Section 28.5
("28.5" or "Section 28.5") of the Environmental Protection Act ("Act"), 4 15 ILCS 5128.5,
proposing certain emissions limitations for large, stationary internal combustion engines and
turbines allegedly (a) to fulfill Illinois' obligations pursuant to Phase
I1 of the NOx SIP Call, 69
Fed. Reg. 2 1604 (April
2 1,2004), (b) to fulfill part of its obligations to demonstrate attainment
of the 8-hour ozone and fine particulate matter
("PM2.5") National Ambient Air Quality
Standards ("NAAQS") pursuant to Section
110 of the Clean Air Act ("CAM), 42 U.S.C.
fj
7410,
(c) to show reasonable further progress ("RFP") towards attainment as required by Sections 172
and 182 of the Clean Air Act, 42 U.S.C.
$5
7502 and 75 1 la, and (d) to provide for reasonably
available control technology ("RACT") as to emissions of nitrogen oxides
("NOx") as required
by Sections 172 and 182 of the Clean Air Act, 42 U.S.C.
fjtj
7502 and 75 1 1 a. Subsequent to the
Agency's submittal of the proposed fast-track rulemaking, the Pipeline Consortium and the
Illinois Environmental Regulatory Group ("IERG") timely submitted objections to the Agency's
reliance on Section 28.5 for this rulemaking, citing that the particular rules proposed by the
Agency do not meet the jurisdictional requirements of Section 28.5 as they are not required to be
adopted by the Clean Air Act or the U.S. Environmental Protection Agency
("USEPA") and
sanctions may not be imposed upon the state if it fails to adopt the rules.' On May 17,2007, the
Board agreed with the Pipeline Consortium and IERG,
bifbrcating the Agency's proposal.
'
Further, while the Pipeline Consortium noted that the annual compliance requirement of the rule
proposed to comply with Phase
I1 of the NOx SIP Call was outside the scope of the NOx SIP Call, it
explicitly stated that it did not object to that portion of the rule proceeding under
28.5. Mr. James
McCarthy, who testified on behalf of the Pipeline Consortium at the hearing held June 19, 2007,
reiterated that position. In actuality, the entirety of the rule proposed to comply with Phase I1 of the NOx
SIP Call is also improperly before the Board under 28.5, as IERG argues, but the Pipeline Consortium has
waived its objection to proceeding in that portion of the rulemaking under
28.5.
Following the issuance of the Board's May 17,2007 Order, the Agency filed a motion for
reconsideration asking the Board to order the resumption of a fast-track rulemaking proceeding
for all sources
and/or emission units affected by the R07-19 docket.
As explained below, the Board acted in accordance with Section 28.5 in accepting the
rulemaking under 28.5 and then removing at least the
RFP and NOx RACT portions of the
proposal upon review of its jurisdiction.
ARGUMENT
In its May
17"
Order, the Board bifurcated the Agency's proposal because the Agency
had failed to establish that the proposal was a federally required rule for which
USEPA may
impose sanctions upon the state if it fails to adopt the rule. Nothing has changed since the parties
briefed this issue in April, not even the Agency's argument. The crux of the issue remains that
neither the Clean Air Act nor Phase
I1 of the NOx SIP Call requires Illinois to adopt these rules
and Illinois is not threatened by sanctions if the Board does not adopt these rules.
Absent a clear showing that a rule is federally required and that
USEPA is "empowered
to impose sanctions" for the state's failure to adopt the particular rules, the Board does not have
the jurisdiction to proceed with a rulemaking under 28.5 regardless of whether the Agency
submits the rule for a fast-track rulemaking.
Plain Meaning of Section 28.5
As the Agency argues, the language of a statute is the best indication of the legislature's
intent.
Solich v. George and Anna Portes Cancer Prevention Center of Chicago, Inc., 158 I11.2d
76, 8 1, 630 N.E.2d 820, 822 (1 994). The cardinal rule of statutory construction is that the Board
must ascertain and give effect to the intent of the General Assembly. In re Marriage
ofKing,
208 111.2d 332,340, 802 N.E.2d 12 16, 1220 (2003). "The legislature's intent can be determined
by looking at the language of the statute and construing each section of the statute together as a
whole." People v. Patterson, 308
Ill.App.3d 943,947, 721 N.E.2d 797, 800 (2d Dist. 1999).
Moreover, the language of the statute should be given its plain and ordinary meaning. Marriage
of King, 208
I11.2d at 340, 802 N.E.2d at 1220.
Section
28.5's applicability is limited "solely to the adoption of rules proposed by the
agency that are required to be adopted
by the State.
. . ."
Section 28.5(a), 415 ILCS 5/28.5(a)
(emphasis added). Section 28.5(c) specifically defines the phrase "requires to be adopted" as
used in that section as follows:
(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.
. . .
Section 28.5(c), 41 5 ILCS 5/28.5(c) (emphasis added).
Section
28.5(c) clearly limits the use of Section 28.5 to only those federally required rules
or parts of rules for which the
USEPA is "empowered to impose sanctions against the state" if
the state fails to adopt such rules. The term sanctions is not defined by the Act; however,
USEPA obtains power to impose sanctions with respect to air rules pursuant to the CAA. 42
U.S.C.A.
9s
7401 to 7671; see e.g., 7509(a). Therefore, a proposed rule or portion of a rule
qualifies for fast track procedures under Section 28.5 only if the rule is federally required and
USEPA has authority under the CAA to impose sanctions against Illinois if it is not adopted by
the Board.
USEPA is not empowered to impose sanctions for all rules that it requires to be adopted.
Some types of rules are specifically federally required and sanctions apply if
a state fails to adopt
them. The Control Technique Guidelines
("CTGs") identified by Section 182(b)(2)(A) and (B)
of the CAA are an example of that. Other types of federal rules are required to be promulgated
but are not specifically identified; rather, the state is given a goal, such as a budget or the state
identifies a level of reduction necessary for attainment or RFP, but the rule and even the
industrial group to be regulated are not identified. The rules before the Board in these two
dockets are examples of this last group, and, therefore, there is no sanction for failure to adopt
these rules.
The Agency asserts that the proposal is federally required as part of the state's
implementation plan ("SIP") revisions for the ozone and PM2.5 NAAQS under the CAA. Mot.
at p. 6. However, while the CAA does require the state to submit a plan revision, it does not
require the state to adopt these rules as part of that plan. The
CAA requires Illinois to identify
how it will attain the NAAQS in the nonattainment areas by a certain date through submission of
attainment demonstrations and the satisfaction of certain obligations of RACT,
RFP, and Rate of
Progress ("ROP"). 42 U.S.C.
§§
7407(a), 7410,7502(~)(1) and (2), and 75 1 la(a)(2)(A) and
(b)(l).
The rules comprising an attainment demonstration, RACT, and RFP/ROP plan submittals
are not, themselves, federally required rules,
and the Agency does not argue that they are. An
attainment demonstration is a submission to USEPA to demonstrate that, among other non-
regulatory types of activities, the specific programs and rules included in the attainment
demonstration are sufficient to attain the NAAQS by the statutory deadline. 42 U.S.C.
$5
7407(a), 74 10,7502(~)(2), and 75 1 1 a(b)(l). What comprises NOx RACT is discretionary to the
state upon proper justification to
USEPA. 42 U.S.C.
$§
7502(c)(1) and 75 1 la(a)(2)(A). RFP
plans are submissions to
USEPA demonstrating that annual incremental reductions in mass air
pollutant emissions are sufficient to provide for progress towards attainment of the NAAQS by
the statutory deadline. 42 U.S.C.
$ $
750 1,7502(~)(2), and 75 1 1 a(b)(l). With respect to ROP
plans, Section 182 of the CAA requires that states reduce mass emissions by three percent per
year until the applicable nonattainment areas attain the ozone standard without specifying any
rules that are required to be adopted. 42 U.S.C.
5
75 1 1 a(c)(2)(B).
The contents of an attainment demonstration and RFPROP plan submittals and the
composition of RACT are subject to the Agency's discretion rather than specifically mandated in
or by the CAA or by
USEPA by rule. 42 U.S.C.
$
$7408,7409,7502, and 75 1 1 a. The Agency
has the discretion to not include the rule that will be adopted under R07-19 in its SIP revision
without the threat of
USEPA imposing sanctions, and the Agency does not quibble with this
assertion. The
CAA is based on the principle of federalism, where states are best situated to
determine the mix of controls that will accomplish the particular federal goal. See United States
v. Morrison, 529 U.S. 598,661, 120 S.Ct. 1740, 1777 (2000) (noting CAA as an example of
cooperative federalism). But the particular mix of controls is neither federally required nor
sanctionable. See e.g., NOx SIP Call Phase I1 Rule, 69 FR 2 1604,21605 (April 2 1,2004)
("States have the flexibility to adopt the appropriate mix of controls for their State to meet the
NOx emissions reductions requirements of the NOx SIP Call.")
It is not disputed that Illinois is not required to adopt the precise
rules that are pending
before the Board. The state's liability or exposure to sanction is purely derivative of the state's
authority
-
and requirement
-
to develop and submit SIPS. Section 28.5 does not address such
liability and, therefore, is not applicable to these rules.
Legislative History of Section 28.5
The Agency also argues that an ambiguity in Section 28.5 exists because the parties have
a difference of opinion as to how it should be interpreted. A difference of opinion does not
necessarily mean that there is an ambiguity. In each of the cases cited by the Agency, there was
a difference of opinion as to how the statute should be interpreted. In the majority of those cases,
the court determined that the statute was clear and unambiguous. See
e.g., Solich, 158 111.2d 76,
630
N.E.2d 820; Color Comm., Inc. v. IPCB, 288 Ill.App.3d. 527,680 N.E.2d 516 (4th Dist.
1997);
Hansen v. Caring Professionals, Inc., 286 Ill.App.3d 797, 676 N.E.2d 1349 (1 Dist.
1997). When an enactment is clear and unambiguous, as this one is, the Board is not at liberty to
depart
from the plain language and meaning of the statute by reading into it conditions that the
General Assembly did not express. Solich, 158
111.2d 76, 82,630 N.E.2d 820, 822.
Even if the Board were permitted to depart from the plain language of the statute as the
Agency requests, the legislative materials and history do not support the Agency's position
regarding the intent of Section 28.5. Section 28.5 was first adopted in 1992 "on the heels of the
Report of the Attorney General's Task Force on Environmental Legal Resources." Mot. p.
9.
However, we could find nothing in the legislative history of Section 28.5 to suggest that the
General Assembly considered the Report of the Attorney General's Task Force. The Clean Air
Act Amendments of 1990 spelled out very specific requirements for nonattaining states, with
very strict deadlines. History in Illinois suggested at the time that it was not certain that Illinois
would be able to comply with those statutory requirements or those deadlines, thus exposing the
state to severe sanctions. Section 28.5 was adopted to enable the state to more quickly and more
assuredly adopt the
CTGs specified by Section 182(b)(2)(A) and (B) of the CAA, New Source
Review rules, and the permit program prescribed by Title
V of the Clean Air ~ct.~
The 1990 Amendments to the Clean Air Act were enacted two years before Section 28.5
was adopted by the General Assembly. The Board is able to presume the legislature acted with
knowledge of prevailing case law.
People
v.
Hickman,
163 111.2d 250,644 N.E.2d 1 147 (1 994).
Thus, the Board must construe the legislature's failure to directly address the matter of sanctions
being issued for failure to submit a SIP revision or a discretionary rule that the Agency has
identified would be submitted as part of a SIP revision, as opposed to a specific federally
required rule, as further evidence that the General Assembly never intended Section 28.5 to be
used for
SIPS in whole or in part.
Construing Section
28.5's text as inclusive of SIP submittals, not just specific rules
already acted upon by
USEPA, is contrary to the clear and unambiguous language of the section
and is contrary to proper statutory construction.
As it happens, the rules that the Agency developed to implement Title V were, instead, adopted
by the General Assembly as Section
39.5 of the Act.
Scope of Section 28.5
Even if the Board were to determine that the scope of Section 28.5 encompasses rules
that the Agency claims are necessary for an attainment plan or
RFP or RACT, there must be
some evidence in the Agency's initial submittal that the statement is true. That evidence could
take the form of
an overall emissions reduction plan that is included in the rule submittal or, at
the least, a summary of such a plan demonstrating how the proposal fits in with the overall
strategy. It cannot be the mere statement that the Agency has decided the rule is necessary with
no context to demonstrate its necessity. Such an approach is arbitrary and capricious.
The Agency claims that these proposed rules are necessary to address the state's
obligation to submit plan revisions
(i.
e., for attainment demonstrations and the required elements
of RACT and
RFP) relative to both the ozone and PM2.5 NAAQS. However, the Agency has
not demonstrated that this is the case. The Agency has not provided in its submittal or even in
the testimony that it prefiled prior to the bifurcation that failure on the Board's part to adopt
these rules would preclude the state from attaining either the ozone or
PM2.5 standards other
than its mere assertion that this is the case. The Agency has not provided any discussion of how
these rules fit into the overall approach to demonstrating attainment to prove that these rules are
necessary. Based upon the Agency's submittals thus far, the claim that these rules are necessary
is specious. The Agency has not even complied with the expansive reading of Section
28.5 it
supports.
The Board should also reject the expansive interpretation espoused by the Agency
because it allows the Agency to abuse Section
28.5 to the detriment of the general public and the
regulated community. To accept the Agency's argument that its mere assertion that a rule
submitted under Section 28.5 locks the Board in to the 28.5 strictures invites the Agency to
submit
g
air rule under 28.5, because the Agency's argument precludes any review of the
propriety of the assertion,
i.
e.,
a determination of the Board's jurisdiction over the rulemaking
under Section 28.5, other than the Board's cursory checklist review that occurs when a flagged
fast-track submittal arrives in the Clerk's office.
However, as noted in the Pipeline Consortium's Reply in support of its Objection to Fast
Track Rulemaking, a rule that the Agency proffers as part of an
RFPIROP plan or attainment
demonstration is not federally required, a prerequisite for rulemaking under 28.5, until the
RFPIROP plan or attainment demonstration is approved by USEPA as part of the SIP.
No Violation of Section 28.5's Procedures
Section 28.5 sets forth very strict timelines for the Board's actions when the Agency
submits a rulemaking proposal flagged as a fast-track rulemaking. The Board's procedural rules
at 35
111.Adm.Code 102.Subpart C faithfully reflect these strictures. Because of the strict
timelines under Section 28.5, the Board must proceed as if a rule has been properly submitted
pursuant to Section 28.5 once the cursory checklist review for missing pieces of a submittal has
been completed. That the Board proceeds under the strictures of Section 28.5 does not relieve
the Board of its authority or responsibilities relative to determining its jurisdiction in a timeframe
consistent with such review. The Board's rules allow a party to file a motion at anytime and
allow
14 days to respond to a motion. 35 Ill. Adm. Code
$5
101.500(c) and (d). Section 28.5
does not grant the Board the luxury of holding action on a proposed rule flagged as fast-track
while motion practice is completed. Rather, all parties must proceed as if the rule is properly a
fast-track rulemaking until the Board has been able to consider the arguments, conduct its own
research, and determine the proper course.
Section
28.5(c) anticipates that not all of a rulemaking flagged as fast-track is properly a
fast-track rule. It specifically provides that the Board may bifurcate a portion of a rule that is not
properly a fast-track proposal into another docket. The alternative is for the Board to dismiss the
non-fast-track portion of the submittal.
The Agency's argument that Section
28.5(m) precludes the Board from bifurcating a
proposal is nonsensical. If the Agency's interpretation were given credence, then the only
alternative to the Board where it found that a portion of a submittal was not properly a fast-track
rule would be to dismiss the entire rulemaking and require the Agency to start over. This would
not be consistent with the spirit or the letter of Section 28.5. Section 28.5 is
fast
track
rulemaking, meaning that delays caused by dismissals of an entire rulemaking because a portion
is not properly before the Board under 28.5 is contrary to the intent of 28.5, as proven by Section
28.5(c).
Section 28.5 as Pass-Through or Rubber Stamp
The Agency argues that the Board's actions turn Section 28.5 into "effectively [a]
rulemaking [that is] nothing more than a glorified type of pass-through or identical-in-substance
rulemaking." Mot. p.
7. The Agency is absolutely correct. That is what Section 28.5 is. The
Agency's argument relative to the scope of the Board's authority under Section
28.5(m) confirms
that such is the Agency's view, as well. Section 28.5 requires the Board to go to First Notice
with no consideration of the merits of the proposal. Section
28.5(f). It specifies the number of
hearings without regard to whether the Board, in its expertise, determines that additional
hearings would be more appropriate. Section 28.5(g). It specifically identifies the length of time
between hearings without regard to whether more time would better develop the merits. Section
28.5(g). And the crowning point is that the Board may not change the language of the proposal
regardless of its expert views as to whether the language that the Agency developed is the best or
even appropriate unless all parties agree. Section
28.5(m). This precludes the Board even from
changing the language in a
mlemaking based on the merits, because if the Agency for whatever
reason does not accept participants' suggested alternatives, the Board is precluded from adopting
them, even though the Board may be persuaded that they should be included in the rule. This is
clearly rubber stamping. The Board has no choice.
Where the state has no flexibility regarding the rule to be adopted, as in the case of the
CTGs, then a rulemaking proceeding under 28.5 is appropriate. Regardless of what industry
might argue, the CTGs developed by
USEPA were to be adopted into state rules without
provision for alternatives. Where there is flexibility granted to a state, then use of Section 28.5 is
not appropriate, because the merits of a proposal should receive
full consideration by the Board
with the opportunity to adjust the
rule as the Board is persuaded by the cases presented by
proponents, opponents, and those in between.
WHEREFORE, for the reasons set forth above, the Pipeline Consortium reiterates its
objection to the Board proceeding under Section 28.5 for R07-19 and supports the Board's
rationale for bifurcating the Agency's initial proposal.
Respectfully submitted,
ANR PIPELINE COMPANY, NATURAL GAS
PIPELINE COMPANY, TRUNKLINE GAS
COMPANY, LLC and PANHANDLE EASTERN PIPE
LINE COMPANY, PL
by:
Dated: July 6,2007
Renee Cipriano
Kathleen C. Bassi
Stephen J. Bonebrake
Joshua R. More
SCHIFF
HARDIN, LLP
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
3 12-258-5500
Fax: 3 12-258-5600
CERTIFICATE OF SERVICE
I, the undersigned, certify that on this 6" day of July, 2007, I have served electronically
the attached
PIPELINE CONSORTIUM'S RESPONSE TOTHE AGENCY'S MOTION
FOR RECONSIDERATION
upon the following persons:
John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
James R. Thompson Center
Suite 1 1-500
100 West Randolph
Chicago, Illinois 6060 1
and by first class mail, postage affixed upon persons included on the
ATTACHED SERVICE
LIST.
Renee Cipriano
Kathleen
C. Bassi
Stephen J. Bonebrake
Joshua R. More
SCHIFF
HARDIN, LLP
6600 Sears Tower
23 3 South Wacker Drive
Chicago, Illinois 60606
3
12-258-5500
Fax: 3 12-258-5600
SERVICE LIST
(R07-18lR07-19)
Timothy Fox
Hearing Officer
ILLINOIS POLLUTION CONTROL BOARD
100 West Randolph, Suite 1 1-500
Chicago, Illinois 6060 1
foxt@ipcb.state.il.us
Katherine D. Hodge
N.
LaDonna Driver
Gale W. Newton
HODGE DWYER ZEMAN
3 150 Roland Avenue
P.O. Box 5776
Springfield, Illinois 62705-5776
khodge@,hdzlaw.com
nldriver@,hdzlaw.com
gnewton~hdzlaw.com
-
John Kim
Rachel Doctors
Robb
H. Layman
Division of Legal Counsel
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
102 1 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
i
oh.
i .
kim@/illinois. gov
rachel.doctors@illinois.~ov
robb.lavman(iiiillinois.gov
William Richardson, Chief Legal Counsel
Virginia I Yang, Deputy Counsel
ILLINOIS DEPARTMENT OF NATURAL
RESOURCES
One Natural Resources Way
Springfield, Illinois 67202- 127
1
bill.richardson@,illinois.gov
virginia. yang@,illinois.gov
-