BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
NITROGEN OXIDES EMISSIONS FROM
VARIOUS SOURCE CATEGORIES:
AMENDMENTS TO 35 ILL. ADM. CODE
PARTS
211 AND 217
)
)
)
)
)
)
R08-19
(Rulemaking - Air)
NOTICE
TO:
John Therriault
Assistant Clerk
Illinois
Pollution Control Board
James
R.
Thompson Center
100 West Randolph St., Suite 11-500
Chicago,
IL
60601
SEE ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that I have today filed with the Office ofthe Clerk of the
Illinois
Pollution Control Board MOTION FOR EXPEDITED REVIEW, a copy of which is
herewith served upon you.
DATED: March 19,
2009
1021
North Grand A venue East
P. O. Box 19276
Springfield, IL 62794-9276
217/782-5544
ILLINOIS ENVIRONMENTAL
PROTl-0N
AGENC~
By:
~
Gina Roccaforte
Assistant Counsel
Division
of Legal Counsel
THIS FILING IS SUBMITTED
ON RECYCLED PAPER
Electronic Filing - Received, Clerk's Office, March 19, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
NITROGEN OXIDES EMISSIONS FROM
VARIOUS SOURCE
CATEGORIES:
AMENDMENTS
TO 35 ILL. ADM. CODE
PARTS 211 AND 217
)
)
)
)
)
)
R08-l9
(Rulemaking - Air)
MOTION FOR EXPEDITED REVIEW
NOW COMES Proponent, the Illinois Environmental Protection Agency ("Illinois
EPA"), by one of its attorneys, and pursuant to 35
Ill.
Adm. Code 101.512, respectfully submits
this Motion for Expedited Review
("Motion"). In support of its Motion, the Illinois EPA states
as follows:
1.
On
May 9,2008, the Illinois EPA filed a proposal with the Illinois Pollution
Control Board
("Board") to amend 35
Ill.
Adm. Code Parts 211 and 217 to control the emissions
of nitrogen oxides ("NO;') from various source categories such as industrial boilers, process
heaters, glass melting furnaces, cement kilns, lime kilns, furnaces used in steel making and
aluminum melting, and fossil fuel-fired stationary boilers. This proposed rulemaking is intended
to meet certain obligations
of the State of Illinois under the federal Clean Air Act ("CAA"), 42
U.S.C. § 7401
et seq.;
specifically, to satisfy Illinois' obligation to submit a State
Implementation
Plan ("SIP") to address the requirements under Sections 172 and 182 of the
CAA for major stationary sources
of NO, in areas designated as nonattainment with respect to
National Ambient Air Quality Standards
("NAAQS").
See,
42 U.S.C. §§ 7502 and 75l1a. The
Board held hearings
on this proposal on October 14, 2008, in Springfield, on December 9 and 10,
2008,
in Chicago, and on February 3, 2009, in Edwardsville.
2.
Under Section 110 of the CAA and related provisions, states are required to
submit, for the
United States Environmental Protection Agency's ("USEPA") approval, SIPs that
provide for the attainment and maintenance
of standards established by USEPA through control
Electronic Filing - Received, Clerk's Office, March 19, 2009
programs directed to sources of the pollutants involved. 42 U.S.C. §7410. The CAA also
provides for the State
to address emissions sources on an area-specific basis through such
requirements as reasonably available control measures
("RACM") and reasonably available
control technology
("RACT").
See,
42 U.S.C. §§7502 and 7511a. For each nonattainment area,
the CAA requires the State to demonstrate that it has adopted
"all reasonably available control
measures as expeditiously as possible (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." 42 U.S.C. § 7502(c)(l).
3.
Volatile organic compounds and NO
x
are the primary precursors to the formation
of ozone. Additionally, NO
x
is a precursor to the formation of fine particulate matter ("PM
2
.
S
").
4.
USEPA designated two areas in Illinois as nonattainment for the 8-hour ozone
and
PM
2
.5 NAAQS, respectively. Such designations triggered requirements under the CAA for
adopting regulations that reduce emissions sufficiently to demonstrate attainment
ofthe
standards.
5.
Under Section 172(c)(I) of the CAA, states with nonattainment areas are required
to submit, in part, SIPs that provide for the adoption ofRACM for stationary sources in all
nonattainment areas as expeditiously as possible. 42 U.S.C. § 7502(c)(I).
6.
A subset ofRACM is the RACT requirements. RACT is defined as the lowest
emission limitation that a particular source can meet by applying a control technique that is
reasonably available considering technological and economic feasibility.
See,
44
Fed. Reg.
53762 (September 17, 1979). Section 182(b)(2) of the CAA requires states to adopt RACT rules
for all areas designated nonattainment for ozone and classified
as moderate or above.
2
Electronic Filing - Received, Clerk's Office, March 19, 2009
7.
In
lllinois, there are two areas designated as nonattainment (moderate) for the 8-
hour ozone standard. The first is the Chicago-Gary-Lake County, IL-IN designated area, which
includes Cook County,
DuPage County, Grundy County (partial-Goose Lake and Aux Sable
Townships), Kane County, Kendall County
(partial-Oswego Township), Lake County,
McHenry County, and Will County. The second area is the St. Louis, MO-IL designated area,
which includes Jersey County, Madison County, Monroe County, and St. Clair County.
40 CFR
§81.314.
8.
In
llIinois, there are two areas designated as nonattainment for the PM
2
.5 standard,
the first being the Chicago-Gary-Lake County, IL-IN designated area, which includes Cook
County, DuPage County, Grundy County
(partial-Goose Lake and Aux Sable Townships),
Kane County, Kendall County
(partial-Oswego Township), Lake County, McHenry County,
and Will County, and second being the St. Louis,
MO-IL designated area, which includes
Madison County, Monroe County, Randolph County
(partial-Baldwin Village), and St. Clair
County.
40 CFR §81.314.
9.
States, such as Illinois, with nonattainment areas classified as moderate or above
for the 8-hour ozone NAAQS were required to submit
by September 15, 2006, a SIP
demonstrating that sources specified under the CAA were subject to RACT requirements.
See,
Final Rule
To Implement the 8-Hour Ozone National Ambient Air Quality Standard; Final Rule,
70 Fed. Reg.
71612, 71652 (November 29,2005).
10.
By letter dated March 17,2008, the USEPA notified the State of Illinois that it
had failed to make required submissions under the CAA, and that
USEP A would be publishing a
rulemaking notice to armounce this finding.
See,
attached Letter from Mary A. Gade, Regional
Administrator,
USEPA, to Douglas P. Scott, Director, Illinois EPA.
3
Electronic Filing - Received, Clerk's Office, March 19, 2009
II.
On March 24, 2008, USEP A made a finding that Illinois, among other states,
failed to make a RACT submittal required under Part D
of Title I of the CAA for its two
moderate nonattainment areas.
See,
73
Fed. Reg.
15416 (March 24,2008). Such finding starts
the 18-month emission offset sanctions clock and 24-month highway funding sanctions clock
under Section 179(a) and (b)
of the CAA and the 24-month clock for the promulgation by
USEPA ofaFederal Implementation Plan (''PIP'') under Section 110(c) of the CAA. 42 U.S.C.
§§ 7509(a) and (b) and 7410(c).
12.
On March 12, 2009, to ensure that the CAA's requirements are met in a timely
manner and to avoid adverse consequences
of failure to do so, the USEP A informed Director
Douglas
P. Scott of the Illinois EPA that the State needs to address the findings of failure to
submit the required ozone SIP elements previously identified
by the USEP A in the March 17,
2008, letter and in the March 24, 2008, final rule (73
Fed. Reg.
15416).
See,
attached letter from
Bharat Mathur, Acting Regional Administrator,
USEPA, Region 5, to Douglas P. Scott, Director,
Illinois EPA
("March 12, 2009, letter").
13.
By this letter, USEPA further reaffirmed that the [mal rule started a sanctions
clock that,
if not terminated or stayed by USEPA, will result in the implementation of several
sanctions in the Chicago and Metro-East St. Louis 8-hour ozone nonattainment areas, as early as
September
2009.
Id.
USEPA sent this letter "to request expedited action" by the Illinois EPA
and the Board
"to complete the ozone SIP development and adoption process for the missing SIP
elements
* * *
to avoid implementation of sanctions."
Id.
14.
To date, the Illinois EPA has submitted all ofthe SIP elements identified in the
March
17,2008, letter and the March 24, 2008, final rule, except for the NO
x
RACT rules for the
Chicago ozone nonattainment area and Metro-East St. Louis ozone nonattainment area.
4
Electronic Filing - Received, Clerk's Office, March 19, 2009
15.
USEPA reiterates in the letter that if, by September 24,2009, Illinois has not
submitted all ofthe required SIP elements, pursuant to Section 179(a) of the CAA and 40 CFR
52.31, the new source offset sanction, identified in Section 179(b )(2) of the CAA, will apply in
the Chicago and Metro-East St. Louis areas.
See,
March 12,2009, letter. The increased new
source emissions offset ratio (2: 1) will make it more difficult for new sources to locate in the
non attainment areas.
/d.
16.
Furthermore, ifby six months after imposition of the first sanction, Illinois has
not submitted the required SIP elements, highway sanctions will
be implemented in accordance
with 40 CFR 52.31.
Id.
This may adversely affect Federal funding of new highway projects,
including highway project funding under the American Recovery and Reinvestment Act of 2009,
and would restrict the types of highway projects that the State and local governments can
implement.
Id.
17.
Finally, ifby March 24,2010, Illinois has not submitted the required SIP elements
and USEPA has not approved these SIP revisions, Section llO(c)
ofthe CAA provides for
USEPA to promulgate FIPs to replace the missing SIP elements.
Id.
If it is necessary for
USEPA to promulgate a FIP, USEPA may pay the costs
of developing and promulgating this
plan with section
105 funds that would otherwise be given to Illinois.
/d.
18.
USEPA is very concerned that the time available to avoid the implementation of
sanctions is very short.
/d.
19.
The Illinois EPA must ensure that sanctions are not imposed in the two
nonattainment areas in Illinois.
20.
Accordingly, if this proposed rulemaking is not promulgated and a complete
submittal made
to USEPA by September 24,2009, the offset sanction will apply in the two
nonattainment areas. If, by six months after the offset sanction is imposed, USEPA has not
5
Electronic Filing - Received, Clerk's Office, March 19, 2009
affirmatively determined that Illinois has made a complete submission, then the highway funding
sanction will apply in the two nonattaimnent areas.
21.
For the reasons stated above, and due to the impending date
of September 24,
2009, so as to avoid the imposition of sanctions, the regulations need to be adopted in an
expedited manner.
22.
In
light of the foregoing, it is necessary to expedite review in this matter.
23.
Therefore, the Illinois
EPA requests that the Board proceed to First Notice under
the Illinois Administrative Procedure Act, 5 ILCS
100/1-1
et seq.,
as expeditiously as possible.
24.
The Illinois
EPA believes that the Board possesses the information necessary for
the Board to proceed to First Notice in this rulemaking having had three hearings on this
proposal.
In
the event that more information is needed, the Illinois EPA will fully cooperate to
expeditiously provide the same to the Board and its hearing officer.
25.
As required
by 35 Ill. Adm. Code Section 101.512, this Motion is accompanied
by an Affirmation attesting that the facts cited herein are true.
WHEREFORE, for the reasons set forth above, the Illinois
EPA respectfully requests that
the Board grant its Motion and expedite review in this matter.
DATED: March
19,2009
1021 North Grand Avenue East
P. O. Box 19276
Springfield, IL 62794-9276
2171782-5544
6
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
BY:r/d-~
Gina Roccaforte
Assistant Counsel
Division
of Legal Counsel
THIS FILING IS SUBMITTED
ON RECYCLED PAPER
Electronic Filing - Received, Clerk's Office, March 19, 2009
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
NITROGEN OXIDES EMISSIONS FROM
VARIOUS SOURCE
CATEGORIES:
AMENDMENTS
TO 35 ILL. ADM. CODE
PARTS
211 AND 217
)
)
)
)
)
)
R08-19
(Rulemaking - Air)
AFFIRMATION
I, Gina Roccaforte, under oath, hereby state and affirm that I am an Assistant Counsel for
the Illinois
EPA and the facts cited in the foregoing Motion for Expedited Review are true and
correct to the best
of my information and belief.
SUBSCRIBED AND SWORN TO BEFORE ME
This \
<fctay of March, 2009
Ehl
Notary Public
:\3(~
Gina
ib~
Roccaforte
Assistant Counsel
Division
of Legal Counsel
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BRENDA BOEHNER
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Electronic Filing - Received, Clerk's Office, March 19, 2009
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 5
77 WEST JACKSON BOULEVARD
CH ICAGO, IL
60604-3590
.".
REPLY TO THE ATTENTION OF:
Douglas P. Scott, Director
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19726
Springfield, Illinois 62794-9276
Dear Mr. Scott:
(R-19J)
I am writing concerning submittals that the State of Illinois
must make to comply with Clean Air Act (the Act) requirements to
meet the 8-hour national ambient air quality standard for ozone.
The Act requires States with areas that are designated
nonattainment for the ozone national ambient air quality
standard to develop a State Implementation Plan (SIP) describing
how the State will attain and maintain the ozone standard.
Part D of title I of the Act outlines all of the required.
elements .of an approvable SIP for areas designated
nonattainment. The requirements include but are not limited to,
reasonable further progress, volatile Organic Compounds (VOC)
and Nitrogen Oxides (NOx) Reasonably Available Control
Technology (RACT) , and. an attainment demonstration. .. These
submittals were due on September 15, 2006 (VOC RACT for
existing, pre-2006, Control Technique Guideline (CTG) and major
non-CTG source categories and NOx RACT) , and June 15, 2007 (all
other ozone SIP elements) .
While we appreciate the work that the Illinois Environmental
Protection Agency has done to meet its obligations under the
Act, not all of the required SIP elements have been submitted.
Based on our discussions with your staff, we believe that
Illinois will complete and submit the required SIP elements
expeditiously and well before any findings discussed here result
in any adverse consequences for the State. In particular, we
note the very good progress the State has made through its
efforts, as a participant in the Lake Michigan Air Directors
Consortium, to complete the ozone attainment demonstration and
reasonable further progress plans for the Chicago area.
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Electronic Filing - Received, Clerk's Office, March 19, 2009
2
Nonetheless, we consider the required SIP elements to be a high
priority and by today's letter, EPA is notifying Illinois that,
pursuant to section 179(a)
of'~he
Act, EPA is making findings of
failure to submit for the following areas and SIP requirements:
Chicago Area
Metro-East St. Louis Area
- Reasonable Further Progress Plan
- Attainment Demonstration
- VOC RACT for Existing CTG and
Major Non-CTG Sources
- NOx RACT
- NOx RACT
EPA will shortly publish a rulemaking notice in the Federal
Register announcing these findings, which will be effective upon
publication of the notice. In general, findings are being made
in those cases where a State failed to submit all or elements of
a required SIP. Please be assured that we will continue to work
closely with the Illinois Environmental Protection Agency to
undertake all necessary efforts to ensure that the remaining
submittals are made as soon as possible so that we can avoid the
implementation of sanctions and the need to promulgate a Federal
Implementation Plan (FIP).
If, within 18 months of EPA's finding, Illinois has not
submitted the missing elements of the SIl?, pursuant to section
179(a) of the Act and 40 Code of Federal Regulations (CFR)
section 52.31, the new source offset sanction identified in
section 179(b) of the Act will apply in the affected areas.
If
Illinois still has not made a complete submission six months
after the new source offset sanction is imposed, the highway
sanction will apply in the affected areas in accordance with
40 CFR 52.31. In addition, section 110(c) of the Act provides
that EPA promulgate a FIP no later than two years after a
finding under section 179(a) if EPA has not approved the plan
for which the finding was made.
The
IS-month clock will stop and the sanctions will not take
effect if, within 18 months after the date of the findings, EPA
finds that the State has made a complete submittal. In
addition, EPA would no longer be obligated to promulgate a FIP
if the State makes the required SIP submittals and EPA takes
final action to approve the submittals within two years of the
findings.
Electronic Filing - Received, Clerk's Office, March 19, 2009
3
I also call your attention to the transportation conformi'ty
issues associated with certain aspects of these findings of
failure to submit pursuant to EPA's transportation conformity
rule (40 CFR 93.120(b)). The conformity status of the
transportation plans and transportation improvement programs in
the affected areas would lapse on the date that highway
sanctions under section '179 are imposed, unless the State makes
the required SIP submittals and EPA acknowledges this via a
letter.
We are looking forward to working closely with Illinois to
ensure that the,Act's requirements are met in a timely manner
without adverse consequences.
Sincerely,
!~~r-
Regional Administrator
----------------..---------------_.---_.
Electronic Filing - Received, Clerk's Office, March 19, 2009
•
•
•
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 5
77 WEST JACKSON BOULEVARD
CHICAGO. IL 60604.3590
MAR 12 2009
REPLY TO THE A TTENTION OF
Douglas P. Scott, Director
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
Dear Mr. Scott:
R-19J
The
State of Illinois needs to address the findings of failure to submit required ozone
State implementation Plan (SIP) elements previously identified by the U.S. Environmental
Protection Agency in a March 17,
2008, letter and in a March 24, 2008, final rule (73 FR 15416).
The final rule began a sanctions clock that,
if not tenninated or stayed by EPA, will result in the
implementation
of several sanctions in the Chicago and Metro-East st. Louis 8-hour ozone
nonattainment areas, as early as
September 2009. I am sending this letter to request expedited
action
by the Illinois Environmental Protection Agency (IEPA) and the Illinois Pollution Control
Board (IPCB) to complete the ozone
SIP development and adoption process for the missing SIP_
elements (discussed below) to avoid implementation of sanctions.
Failure to submit the following
SIP elements were identified in the March 17, '2008, letter
and the March 24,
2008, final rule.
I.
Chicago ozone nonattainment area:
a.
an 8-hour ozone Reasonable Further Progress (RFP) plan
b.
an 8-hour ozone attainment demonstration
c.
Volatile Organic Compounds
(VOC) Reasonably Available Control Technology
(RACT) rule certification (or new rules for source categories lacking existing
RACT rules) for source categories covered
by Control Technique Guidelines
(CTGs) issued prior to
September 15,2006, or for major non-CTG sources
d.
Nitrogen
Oxides (NOx) RACT rules
2.
Metro-East St. Louis ozone nonattainment area:
a.
. NOx RACT rules
The specific timing for the various sanctions that could
be triggered if lllinois continues
to fail to adopt and submit the required SIP elements are as follows.
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"Nllh
Vegetable all Based Ink.s on
loa'.'\,
Recycled Paper 150% POstcolisumer)
Electronic Filing - Received, Clerk's Office, March 19, 2009
2
If, by September 24,2009, Illinois has not submitted all of the required SIP elements
•
listed above (including final, adopted VOC and NOx RACT rules where applicable), pursuant to
section I 79{a) of the Act and 40 CFR 52.31, the new source offset sanction, identified in section
I 79(b)(2)
of the Act, will apply in the Chicago and Metro-East st. Louis areas. The increased
new source emissions offset ratio (2:1) will make it more difficult for new sources to locate in
the nonattainment areas.
If, by six months after imposition of the first sanction, Illinois has not submitted the
required SIP elements, highway sanctions will be implemented in accordance with 40 CFR
52.31. This may adversely affect Federal funding of new highway projects, including highway
project funding under the American Recovery
and Reinvestment Act of 2009, and would restrict
the types
of highway projects that the State and local governments can implement.
Finally, ifby March 24, 2010, lllinois has not submitted the required SIP elements and
EPA has not approved these SIP
revisio~,
section
II
O{ c) of the Act provides for EPA to
promulgate Federal Implementation Plans (FlPs) to replace the missing SIP elements. If it is
necessary for EPA to promulgate a FIP, EPA may pay the costs of developing and promUlgating
this plan with section 105 funds that would otherwise be given to Illinois.
EPA is very concemed that the time available to avoid the implementation of sanctions in
this case is very short. We look forward to working closely with Illinois to ensure that the Act's
requirements
are met in a timely manner and to avoid adverse consequences offailure to do so.
If you have any questions about this issue, please contact me or Cheryl Newton at 312-353-6730 .
cc:
Laurel Kroack, Director
Bureau
of Air, lllinois EPA
Sincerly,
I
tJJ
/
Ih~,~-
. Bharat Mathur
Acting Regional Administrator
•
•
Electronic Filing - Received, Clerk's Office, March 19, 2009
STATE OF ILLINOIS
COUNTY OF SANGAMON
)
)
)
)
SS
CERTIFICATE OF SERVICE
I, the undersigned, an attorney, state that I have served electronically the attached
MOTION FOR EXPEDITED REVIEW, upon the following person:
John Therriault
Assistant Clerk
Illinois Pollution Control Board
James
R.
Thompson Center
100 West Randolph St., Suite 11-500
Chicago,IL 60601
and electronically to the following persons:
SEE ATTACHED SERVICE LIST
Dated: March
19,2009
1021
North Grand Avenue East
Springfield, Illinois 62794-9276
(217) 782-5544
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY,
Gina Roccaforte
Assistant Counsel
Division
of Legal Counsel
Electronic Filing - Received, Clerk's Office, March 19, 2009
SERVICE LIST 08-19
Timothy J. Fox
Hearing
Officer
Illinois Pollution Control Board
100 W. Randolph St., Suite 11-500
Chicago, IL 60601
foxt@ipcb.state.il.us
Virginia Yang
Deputy Legal Counsel
Illinois Department
of Natural Resources
One Natural Resources Way
Springfield, IL 62702-1271
virginia. yang@illinois.gov
Katherine D. Hodge
Monica T. Rios
Hodge Dwyer
Zeman
3150
Roland Ave.
P.O. Box 5776
Springfield, IL 62705-5776
khodge@hdzlaw.com
mrios@hdzlaw.com
Christina L. Archer
Associate General Counsel
ArcelorMittal
USA
1 South Dearborn Street, 19
th
Floor
Chicago,
1L 60603
christina.archer@arcelormittal.com
Matthew Dunn
Chief
Environmental Bureau North
Office ofthe Attorney General
69 W. Washington
St., Suite 1800
Chicago, IL 60602
mdunn@atg.state.il.us
Kathleen
C. Bassi
Stephen J. Bonebrake
Schiff Hardin
LLP
6600
Sears Tower
233
S. Wacker Drive
Chicago, IL 60606-6473
kbassi@schiffhardin.com
sbonebrake@schiffhardin.com
Alec M. Davis
General Counsel
Illinois Environmental Regulatory Group
215 E. Adams St.
Springfield,
IL 62701
adavis@ierg.org
Electronic Filing - Received, Clerk's Office, March 19, 2009
