BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER
OF:
)
)
NO. TRADING PROGRAM SUNSET
)
R09-
PROVISIONS FOR ELECTRIC
)
(Rulemaking - Air)
GENERATING UNITS ("EGUS")
)
AMENDMENTS
TO 35 ILL.
)
ADM.
CODE PART 217.SUBPART W
)
NOTICE
TO:
John Therriault, Assistant Clerk
Illinois
Pollution Control Board
James
R. Thompson Center
100 West Randolph, Suite 11-500
Chicago, Illinois 60601
Virginia Yang, Deputy Legal Counsel
Illinois Dept.
of Natural Resources
One Natural Resources Way
Springfield, Illinois 62702
Matthew Dunn,
Chief
Division of Environmental Enforcement
Office
ofthe Attorney General
69
W. Washington St., Suite 1800
Chicago, Illinois 60602
PLEASE TAKE NOTICE that I have today filed with the Office of the Pollution Control
Board the
REGULATORY PROPOSAL FOR NO
x
TRADING PROGRAM SUNSET
PROVISIONS FOR
ELECTRIC GENERATION UNITS ("EGUs"): AMENDMENTS TO 35
ILL. ADM. CODE PART 21 7. SUBPART W, APPEARANCE, MOTION TO EXPEDITE, and
AFFIRMATION ofthe Illinois Environmental Protection Agency a copy of which is herewith
served upon you.
DATED: April 21,
2009
1021 North Grand Ave. East
P.O. Box 19276
Springfield, Illinois 62794-9276
217.782.5544
ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY
By:
lsi
Rachel L. Doctors
Rachel L. Doctors
Assistant Counsel
Di vision
of Legal Counsel
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
NO. TRADING PROGRAM SUNSET
)
R09-
PROVISIONS
FOR ELECTRIC
)
(RuJemaking - Air)
GENERATING UNITS ("EGUS")
)
AMENDMENTS
TO 35 ILL.
)
ADM.
CODE PART 217.SUBPART W
)
TABLE
OF CONTENTS OF REGULATORY SUBMITTAL
Following is a Table of Contents of all pleadings and documents included with the proposed
regulatory action:
1.
Notice of Proposal
2.
Appearance of Rachel
L.
Doctors, Assistant Counsel, for the Illinois
Environmental Protection Agency
3.
Director Douglas Scott's Proposal of Amendments
4.
Economic and Budgetary Analysis
6.
Statement of Reasons
7.
Statement of Reasons Exhibits:
A.
First e-mail sent from Rob Kaleel dated March 19,2009
B.
Second e-mail sent from Rob Kaleel dated March 19, 2009
8.
First Notice
9.
Proposed Amendments to 35
Ill.
Adm. Code Part 217.Subpart W:
10.
Synopsis of Testimony
11.
Motion to Expedite
12.
Documents Relied On
*a.
Illinois Environmental Protection Act (415 ILCS
5tet.
seq.)
*b.
The Clean Air Act, as amended in 1990 (42 U.S.C. §7401 et seq.)
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
*c.
Rule to Reduce Interstate Transport of Fine Particulate Matter and Ozone
(Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to
the NOx SIP Call; Final Rule, 70
Fed. Reg.
25162 (May 12, 2005)
*d.
Approval and Promulgation of Air Quality Implementation Plans; Illinois;
Oxides of Nitrogen Regulations, 66
Fed. Reg.
56454 (November 8, 2001)
*e.
Approval ofImplementation Plans of Illinois; Clean Air Interstate Rule,
72 Fed. Reg.
58528 (October 16, 2007)
*f.
North Carolina
v.
USEPA,
531 F.3d 896 (C.A.D.C. CiT. 2008)
*g.
North Carolina
v.
USEPA,
550 F.3d 1176 (C.A.D.C. CiT. 2008)
13.
Certificate of Service
*Copies of documents with an asterisk beside the letter have not been provided.
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
NO, TRADING PROGRAM SUNSET
)
R09-
PROVISIONS FOR ELECTRIC
)
(Rulemaking - Air)
GENERATING UNITS ("EGUS")
)
AMENDMENTS TO 35 ILL.
)
ADM.
CODE PART 217.SUBPART
W
)
APPEARANCE
The undersigned, as one of its attorneys, hereby enters an Appearance on behalf of the
Illinois Environmental
Protection Agency.
DATED: April 21, 2009
1021 North Grand Ave. East
P.O. Box 19276
Springfield, Illinois 62794-9276
217.782.5544
ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY
By: /s/ Rachel
L.
Doctors
Rachel
L.
Doctors
Assistant Counsel
Division
of Legal Counsel
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
NO, TRADING PROGRAM SUNSET
)
R09-
PROVISIONS FOR ELECTRIC
)
(Rulemaking - Air)
GENERATING UNITS ("EGUS")
)
AMENDMENTS TO 35 ILL.
)
ADM.
CODE PART 217.SUBPART W
)
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
PROPOSAL OF REGULATIONS
The Illinois Environmental Protection Agency moves that the Illinois Pollution
Control Board adopt the attached regulations.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By
Douglas.
'P.vI1oQax
. Scott
Director
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
Agency:
PartlTitle:
Agency Analysis of Economic and
Budgetary Effects of Proposed Rulemaking
Illinois Pollution Control Board
Nitrogen
Oxides Emissions (35 Ill. Adm. Code Part 217)
Illinois Register Citation: _____________ _
Please attempt to provide as dollar-specific responses as possible and feel free to add any relevant
explanation.
I.
Anticipated effect
on State expenditures and revenues.
(a)
Current cost
to the agency for this program/activity.
(approximately)
$15,000 per year
(b)
If this rulemaking will result in an increase or decrease in cost, speciry the fiscal year in
which this change will first occur and the dollar amount
ofthe effect.
.No change in expense to the Illinois EPA is expected, as the NO, SIP Call Trading
Program has been replaced by the CAIR NO, Ozone Season Trading Program.
(c)
Indicate the funding source, including Fund and appropriation lines, for this
program/activity.
Clean Air Act Permit Program Fund (CAAPP)
(d)
If an increase or decrease in the costs of another State agency is anticipated,
speciry the fiscal year in which this change will first occur and the estimated dollar
amount of the effect., No increase or decrease in costs to another State agency is
anticipated, as the Illinois EPA is the only State agency that administers the NO, SIP Call
Trading and CAIR NO, Ozone Season Trading Programs.
(e)
Will this rulemaking have any effect on State revenues or expenditures not already
indicated above? No.
2.
Economic effect
on persons affected by the rulemaking:
(a)
Indicate the economic effect and
speciry the persons affected:
Positive _x_ Negative __ No effect __
Persons affected: Owners and operators of electric generating units subject to the
requirements of 35 Ill. Adm. Code 217.Subpart W.
Dollar amount per person: _
Total statewide cost: ____ _
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
(b)
If an economic effect is predicted, please briefly describe how the effect will occur.
Adoption
ofthis rulemaking will eliminate duplicate reguirements.
(c)
Will the rulemaking have an indirect effect that may result in increased
administrative costs? Will there be any change in requirements such as filing,
documentation, reporting or completion
of forms?
The rulemaking should have no indirect effect that may result in increased administrative
costs.
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN
THE MATTER OF:
)
)
NO, TRADING PROGRAM SUNSET
)
R09-
PROVISIONS FOR ELECTRIC
)
(Rulemaking - Air)
GENERATING UNITS:
)
AMENDMENTS
TO 35 ILL.
)
ADM.
CODE PART 217.SUBPART W
)
STATEMENT
OF REASONS
The Illinois Environmental Protection Agency ("Illinois EPA" or "Agency") hereby
submits this Statement
of Reasons to the Illinois Pollution Control Board ("Board") pursuant to
Sections
10,27 and 28 of the Environmental Protection Act ("Act") (415 ILCS 511 0,27 and 28)
and
35
Ill.
Adm. Code 102.202(b» in support of the attached proposed amendments. Included in
this proposal are amendments to 35 Ill. Adm. Code Part 217, Subpart W. This proposal amends
the most recent version
of Part 217.Subpart W as found on the Board's website.
I.
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY'S PROPOSAL
a.
Background - The NO
x
Trading Program
Subpart W of Part 217 was adopted by the Board on December 21,2000. This Subpart
received approval by the United States Environmental
Protection Agency ("US EPA") as part of
the Illinois State Implementation Plan ("SIP") for ozone on November 8, 2001. 66
Fed. Reg.
56449. Subpart W regulates nitrogen oxides ("NO;') emissions from utility boilers, or electric
generation units
("EGUs"). Illinois was required to regulate these sources pursuant to USEPA's
NO
x
SIP Call. 63
Fed. Reg.
57356 (October 27, 1998). Subpart W implemented the NO
x
Trading Program for EGUs in Illinois to reduce ozone transport and meet Illinois' obligations
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
pursuant to Sections 110(a) (2) and 126 of the Clean Air Act ("CAA") and 40 CFR 51.121 for
EGUs. The emissions reductions helped the two ozone nonattainment areas in Illinois attain the
(1997) 8-hour ozone National Ambient Air Quality Standard
("NAAQS").
In
addition, the
continued implementation
ofthe federal NO, Trading Program was required under Phase I of the
8-hour ozone implementation rule. (40 CFR 51.905(f).
b.
The New NO, Ozone Season Trading Program
On
May 12, 2005, the Clean Air Interstate Rule ("CAIR") was adopted with the purpose
of replacing the NO, SIP Call Trading Program beginning with the 2009 control period and
adding two new trading programs addressing annual emissions
of NO, and sulfur dioxide.
Rule
to Reduce Interstate Transport
of Fine Particulate Matter and Ozone; Revisions to Acid Rain
. Program; Revisions to the NO. SIP Call,
70
Fed. Reg.
25162 (May 12, 2005). Provisions
implementing CAIR in Illinois were adopted
by the Board in 35
III.
Adm. Code 225 (R06-22)
and approved
by USEPA on October 16, 2007.72
Fed. Reg.
58528. The CAIR provisions as set
forth in
Part 225.Subpart E include a trading program for control of NO, emissions during the
ozone season that replaces the provisions in
Part 217.Subpart W for EGUs beginning with the
2009 control period (May I through September 30) and thereafter. Part 225.Subpart E
incorporated in large part applicable provisions from the federal CAIR rule as required for
federal approval.
While the
State regulatory process was pending, the federal CAIR rule was reviewed
pursuant to a number
of petitions for review. On July
11,2008,
the United States Court of
Appeals vacated the CAIR rule in its entirety and remanded the rule back to USEPA for revision.
North Carolina
v.
USEPA,
531 F.3d 896 (C.A.D.C. Cir. 2008). The court in its July 2008
opinion stated that pending the remand of the CArR program to USEPA, the provisions ofthe
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
NO, SIP Call Trading Program would remain in place.
However, the same parties that had petitioned for review, along with
USEPA, then
petitioned for rehearing on the court's decision to vacate and requested that the rule be reinstated
during the remand.
On December 23, 2008, the court granted the rehearing and unvacated CAIR
with implementation to begin with the original control period in 2009.
North Carolina v.
USEPA,
550 F.3d 1176 (C.A.D.C. Cir. 2008).
c.
This Proposal
With the reinstatement
of the CAIR program, Illinois' EGUs must now comply with
duplicative administrative requirements (e.g., permitting, reporting) for the 2009 ozone season
and beyond until the provisions
of the NO, Trading Program are sunsetted; namely, the
duplicative requirements that appear in Part217.Subpart
W. To address and remove this
duplication, this proposal for sunsetting the provisions
of the NO, Trading Program is consistent
with the provisions
of 40 CFR 51.123(bb)(1 )(i), which provide that states with approved CAIR
programs may revise their applicable
SIP so that the provisions of the NO, SIP Call Trading
Program do not apply to affected
EGUs.
II.
GEOGRAPHIC REGIONS AND SOURCES AFFECTED
The entire State of Illinois was subject to the NO, SIP Call and is now subject to CAIR.
The proposed regulations will affect existing
EGUs. There are approximately 229 existing
EGUs that are currently subject to the NO, SIP Call Trading Program. For the NO, SIP Call
Trading Program, existing units are those that commenced operation before May
1, 2006. Of
these units, 170 are gas and oil fired boilers, 59 are coal-fired boilers, and the remainder are gas
and oil-fired combustion turbines.
III.
PURPOSE AND EFFECT OF THE PROPOSAL
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
The purpose of this proposal is to sunset the provisions of Part 21 7. Subpart W beginning
with the
2009 control period, consistent with the CAIR rule adopted by the Board in Part 225.
The CAIR rule replaces the
NO
x
SIP Call Trading Program with a program that contains both a
NO
x
emissions annual and an ozone season trading program. The Illinois EPA is proposing to
sunset any requirements related to the
NO
x
SIP Call Trading Program after the 2008 control
period as set forth in
Subpart W beginning with the 2009 control period and thereafter. The
provisions will remain in effect for violations that occurred in control periods prior to
2009.
In this case, the rule is being proposed to prevent a burden and replaces a rule that is no
longer being implemented
by USEPA. The adoption of the proposal will not result in injury or
substantial prejudice, nor an abrupt departure from a well established practice. Hence, adoption
of this proposal is appropriate to prevent a burden on affected EGUs.
IV.
TECHNICAL FEASIBILITY AND ECONOMIC REASONABLENESS
The amendments to Part 217.Subpart Ware being proposed to ensure consistency with
the CAIR ozone season program and prevent
EGUs from being subject to duplicative
monitoring, reporting, permitting and recordkeeping requirements.
USEPA has stopped
allocating
NO
x
allowances for the NO
x
SIP Call Trading Program. As this proposal sunsets
regulatory provisions, it would impose no new requirements or costs on affected sources. Hence,
the proposal is both technically and economically feasible.
V. COMMUNICATION
WITH
INTERESTED PARTIES
These amendments are being proposed after representatives of industry and
environmental groups have had an opportunity to review the proposed changes and provide
comments to the Illinois
EPA. The Illinois EPA sent electronic mails to the affected EGUs on
March 19, 2009, and received one comment on an issue that will not be directly affected
by the
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
proposal, i.e., the disposition of remainder NO
x
SIP Call Trading Program allowances.
See,
Exhibits A and B. Therefore, it is the Illinois EPA's understanding that there are no significant
issues identified by interested parties.
VI.
THE ILLINOIS EPA'S PROPOSAL
35 Ill. Adm. Code 217: SUBPART W: NO, TRADING PROGRAM
FOR ELECTRICAL GENERATING UNITS
Section
217.751
Sunset Provisions
Illinois EPA is proposing to sunset the provisions of Subpart W beginning with the 2009
control period and any requirements related to the NO
x
SIP Call Trading Program after the 2008
control period. The provisions will remain in effect for violations that occurred in control
periods prior
to 2009.
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
VII.
CONCLUSION
For the reasons stated above, the Illinois EPA hereby submits this regulatory proposal
and respectfully requests that the Board expeditiously adopts these rules for the
State of Illinois.
DATED: April 21,
2009
1021 North Grand Ave. East
P.O. Box 19276
Springfield, IL 62794-9276
217.782.5544
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By: /s/ Rachel
L.
Doctors
Rachel
L.
Doctors
Assistant Counsel
Division
of Legal Counsel
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
Doctors, Rachel
From:
Sent:
To:
Subject:
Attachments:
Here's the first email...
Kaleel,
Rob
Thursday, March 19,
20095:05 PM
Doctors, Rachel
Illinois EPA Exhibit No.
A
FW: Rulemaking Proposal to Sunset the NOx SIP Call for EGUs
Sec217_751.pdf
-------~---~------------------------.------
From: Kaleel, Rob
Sent: Monday, March 16, 20094:59 PM
To: (a bigail. rector@exeloncorp.com); (arnold .jen kinsjr@duke-energy.com); (bill. murray@cwlp.com);
(bruceparker@electricenergyinc.com); (Bsteinhauser@ipr-us,com); (O.5aladino@dom,com); (cjacobsen@tenaska.com);
(dale .davis@exeloncorp.com); (dave, farris@cwlp.com); (dfcole@a meren .com); (dfu rstenwerth@reliant.com);
(Diane.Leopold@dom.com); (djmurphy@pplweb.com); (gkunkel@tenaska.com); (glenn.calloway@calpine.com);
(Glenn,PJohnson@dom.com); (james.eiseman@dynegy.com); (james,r,kipp@dynegy.com);
(jason,goodwin@calpine.com); (jim.idzorek@nrgenergy.com); (jmclaurin@sipower.org); (Joseph.C.Wood@dom,com);
(jrtaylor@cordovaenergy,com); (jshimshock@reliant.com); (kirk.millis@dynegy.com); (kjanderson@ameren.com);
(Iaboyer@pplweb,com); (Larry.Waite@dynegy.com); (Icarlson@tenaska.com); (Ihopkins@sipower.org);
(Lonnie.A.Grote@dynegy.com); (mcgriggs@duke-energy.com); (mlmenne@ameren.com); (pcgrigsby@duke-
energy.com); (pj.becker@cwlp.com); (randy,specht@exeloncorp.com); (rfisher@ppLcoop); (robert_crowe@dynegy,com);
(roger.stegeman@sweci.com); (russel.gilbert@swecLcom); (schy,willmore@cwlp.com); (smiller@mwgen.com);
(sphart@cordovaenergy.com); (stan_sander@dynegy.com); (ted_lindenbusch@dynegy.com);
(terrylarbes@electricenergyinc.com); (timothy.kelley@dynegy.com); (tjonas@tenaska,com); (vbrisini@reliant.com);
(wendell_watson@dynegy.com); Asplund, Bob; Bassi, Kathleen; Kolaz, Dave
Subject: Rulemaking Proposal to Sunset the NOx SIP Call for EGUs
Attention CAIR Contacts:
The Agency intends to submit the attached proposal to the Illinois Pollution Control Board in the next few weeks with a
request
to expedite the rulemaking. The intent of this proposal is to sunset the provisions of the NOx SIP Call (Subpart
W) affecting electric generating units, as these provisions have been superseded by Illinois' CAIR rule. We don't believe
this proposal is controversial so we will not initiate a formal outreach process before we submit this to the Board. Please
let me know if you have any questions or concerns.
Rob Kaleel
Air Quality Planning
Bureau of Air
1
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
Doctors, Rachel
From:
Sent:
To:
Subject:
Attachments:
Attention CAIR Contacts:
illinois EPA Exhibit No.B
....
~.
__
Kaleel, Rob
Thursday, March 19, 2009 5:05 PM
aroyden-bloom@4cleanair,org; Baker, David; Bakowski, Ed; Barnes, Donald; Beck, AJ;
Bialeki, George; Biel, Mark; Bloomberg, David E,; Bowles, Ryan; Brennan, Jessica; Bressen,
Craig; Brown, RB;
Bugel, Faith; Choi, J; Churchill, Merle; Clayborn, Becki; Coe, Tom;
Constantelos, Bill; Crescent Ridge Wind; Culick, Martin; Cumbow, Jim; Darrin, Jack; Davis,
Rory; Deacon, Mac; Depp,
Caroline; Diericx, Rick; Doctors, Rachel; Drenner, Lou; Dwyer,
David;
Dypold, Dirk; Earl, Ronald; Evans, Patrick; Fabian, Bill; Farren, Brenda; Fisher,
Randy; Freestone, Maryl; Haas, William; Hardt, Peter; Harrington, Jim; Haun, Jeff; Helm, Jim;
Hirner, OK; Hodge, Kathy; Holston, Erik; ilika, anita; Illinois Clean Energy Foundation; Illinois
Landfill Gas Coalition; Illinois Manufacturers Association; Illinois Solar; Irwin, Barb; Jenkins,
Arnold; Johnson, Mike; Jones, Doug; Jouras, Mike; Kaleel, Rob; Kaleel, Rob; Kanczuzewski,
T
J; Kruse, Andy; Learner, Howard; Leavit, Brandon; Loll, Brian; Mader, Kelly; Matoesian,
Charles; Matty, Robert; McFarlan, Doug; McGuire, W.F.; Mcinnis, Michael; Monk, Jim;
Morgenstern, Roger; Nathan, Ernie; Nilles, Bruce;
O'Keefe, Mary Eileen; Olsen, Erik; O'Shea,
Kevin; Owen, Verena; Parker, James; Pike County Wind; Pilapil, Ray; prohov, rick; Romo,
Bob; Rosenbaum, David; Ross, Jim;
Ruhl, Jeffery; Sanch, Robert; Schneider, Jim; Sims,
Jackie; Snider, Donald; Stanch, Michael; Stanfield, Becky; Swarupa Ganguli; Tickner, Diana;
Vogl, Bob; Wanninger, Kent; Weis, John; Wells, Bob; Wheatley, D. Blake; White, Jason;
Whitlock, Bill; Whitworth, Steve; Wilkerson, Mark; Wind Mail
Rulemaking Proposal
to Sunset the NOx SIP Call for EGUs
Sec217 J51.pdf
My apologies to those of you who are receiving this message a second time. My first email apparently didn't reach
everyone. The Agency intends to submit the attached proposal to the Illinois Pollution Control Board in the next few
weeks with a request to expedite the rulemaking. The intent of this proposal is to sunset the provisions of the NOx SIP
Call (Subpart W) affecting electric generating units, as these provisions have been superseded by Illinois' CAIR rule. We
don't believe this proposal is controversial so we will not initiate a formal outreach process before we submit this to the
Board. Please let me know if you have any questions or concerns.
Rob Kaleel
Air Quality Planning
Bureau of Air
1
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
ILLINOIS REGISTER
POLLUTION CONTROL BOARD
NOTICE OF PROPOSED AMENDMENTS
I)
Heading
ofthe Part: Nitrogen Oxides Emissions
2)
Code Citation: Amendments
to 35
III.
Adm. Code Part 217
3)
Section Numbers:
217.751
Proposed Action:
Add
4)
Statutory Authority: Implementing and authorized by Sections 10 and 27 of the Illinois
Environmental
Protection Act [415 lLCS 5/10 and 27].
5)
A Complete Description ofthe Subjects and Issues Involved: This proposal will add a
provision sunsetting the
NO
x
SIP Call requirements as set forth in Subpart W that apply
to electric generating units ("EGUs") and that have been superseded by the requirements
for the Clean Air Interstate Rule
("CAIR") as set forth in Part 225. Beginning with the
2009 control period (May1 through September 30) and thereafter, Subpart E of Part 225
provides for the control of nitrogen oxides ("NO;') emissions from EGUs through the
implementation of an interstate trading program. The trading program in Subpart E of
Part 225 supersedes the interstate NO
x
Trading Program that is set forth in Subpart W of
Part 217 for EGU s.
6)
Will this proposed amendment replace an emergency rule currently in effect? No
7)
Does this rulemaking contain an automatic repeal date? No
8)
Does this proposed amendment contain incorporations by reference? No
9)
Are there any other proposed amendments pending on this Part? Yes
Section Numbers
217.386
217.388
217.390
217.392
217.394
217.396
Proposed Action
Amend
Amend
Amend
Amend
Amend
Amend
Illinois Register Citation
32
III.
Reg. 17075
32
III.
Reg. 17075
32 l11. Reg. 17075
32
III.
Reg. 17075
32
l1l.
Reg. 17075
32
Ill.
Reg. 17075
10)
Statement of Statewide Policy Objectives: These proposed amendments do not create or
enlarge a state mandate as defined in Section 3(b)
of the State Mandates Act. [30 lLCS
805/3].
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
ILLINOIS REGISTER
POLLUTION CONTROL BOARD
NOTICE OF PROPOSED
AMENDMENTS
11)
Time, Place, and Manner in which interested persons may comment
on this proposed
rulemaking: The Board will accept written public comments on this proposal for a
period offorty-five (45) days after the date
of publication in the Illinois Register.
Comments should reference Docket
R09- and be addressed to:
Clerk's Office
Illinois Pollution Control Board
100 W. Randolph St., Suite 11-500
Chicago,
IL
60601
and
Rachel
L.
Doctors
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O. Box 19276
Springfield,IL 62794-9276
217-782-5544
12)
Initial Regulatory Flexibility Analysis:
A)
Types
of small businesses, small municipalities and not for profit corporations
affected: Any small businesses, small municipalities, or not-for-profit
corporations that are subject to the
NO
x
Trading Program could be affected by the
proposed amendments.
B)
Reporting, bookkeeping or other procedures required for compliance: None
C)
Types
of Professional skills necessary for compliance: None
13)
This rulemaking was not included on either
of the two most recent regulatory agendas
because: This rulemaking was not included in either
of the two most recent regulatory
agendas because
of the uncertainty associated with the CAIR Trading program that was
adopted
to replace the one that is the subject of this proposal. On July 11,2008, the
United States Court of Appeals vacated the CAIR rule in its entirety and remanded the
rule back
to USEPA for revision.
North Carolina
v.
USEPA,
531 F.3d 896 (C.A.D.C. Cir.
2008). The court stated that pending the remand of the CAIR program that the provisions
ofthe NO, SIP Call Trading Program would remain in place. However, the same
petitioners then requested that the rule be reinstated during the remand.
On December
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
ILLINOIS REGISTER
POLLUTION CONTROL BOARD
NOTICE OF PROPOSED
AMENDMENTS
23,2008, the court granted the rehearing and unvacated.
North Carolina
v.
USEPA,550
F.3d 1176 (C.A.D.C. Cir. 2008). Therefore, pending the remand, the original CAIR as
adopted at 35
III.
Adm. Code Part 225, is in effect.
14)
Does this amendment require the review of the Procurement Policy Board as specified in
Section 5-25
of the llIinois Procurement Code? [30 ILCS
500/5-25]
No
The full text
of the Proposed Amendment( s) begins on the next page:
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
Section
217.100
217.101
217.102
217.103
217.104
Section
217.121
Section
217.141
Section
217.301
Section
217.381
ILLINOIS REGISTER
POLLUTION CONTROL BOARD
NOTICE OF PROPOSED AMENDMENTS
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
Scope and Organization
Measurement Methods
Abbreviations and
Units
Definitions
Incorporations
by Reference
SUBPART B: NEW FUEL COMBUSTION EMISSION SOURCES
New Emission Sources
SUBPART C: EXISTING FUEL COMBUSTION EMISSION SOURCES
Existing Emission Sources in Major Metropolitan Areas
SUBPART K: PROCESS EMISSION SOURCES
Industrial Processes
SUBPART
0:
CHEMICAL MANUFACTURE
Nitric Acid Manufacturing Processes
SUBPART Q: STATIONARY RECIPROCATING INTERNAL COMBUSTION
ENGINES AND TURBINES
Section
217.386
217.388
217.390
Applicability
Control and Maintenance Requirements
Emissions Averaging
Plans
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
217.392
217.394
217.396
Section
217.400
217.402
217.404
217.406
217.408
217.410
Section
217.450
217.452
217.454
217.456
217.458
217.460
217.462
217.464
217.466
217.468
217.470
217.472
217.474
217.476
217.478
217.480
217.482
Section
217.521
217.700
217.702
ILLINOIS REGISTER
POLLUTION CONTROL BOARD
NOTICE
OF PROPOSED AMENDMENTS
Compliance
Testing and Monitoring
Recordkeeping and Reporting
SUBPART T: CEMENT KILNS
Applicability
Control Requirements
Testing
Monitoring
Reporting
Recordkeeping
SUBPART U: NO
x
CONTROL AND TRADING PROGRAM FOR
SPECIFIED NO
x
GENERATING UNITS
Purpose
Severability
Applicability
Compliance Requirements
Permitting Requirements
Subpart U NO
x
Trading Budget
Methodology for Obtaining
NO
x
Allocations
Methodology for Determining
NO, Allowances from the New Source Set-Aside
NO, Allocations Procedure for Subpart U Budget Units
New Source Set-Asides for ''New'' Budget Units
Early Reduction Credits (ERCs) for Budget Units
Low-Emitter Requirements
Opt-In
Units
Opt-In Process
Opt-In Budget Units: Withdrawal from NO
x
Trading Program
Opt-In Units: Change in Regulatory Status
Allowance Allocations to Opt-In Budget Units
SUBPART
V: ELECTRIC POWER GENERATION
Lake
of Egypt Power Plant
Purpose
Severability
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
217.704
217.706
217.708
217.710
217.712
Section
217.750
217.751
217.752
217.754
217.756
217.758
217.760
217.762
217.764
217.768
217.770
217.774
217.776
217.778
217.780
217.782
Section
217.800
217.805
217.810
217.815
217.820
217.825
217.830
217.835
217.840
217.845
ILLINOIS REGISTER
POLLUTION CONTROL BOARD
NOTICE OF PROPOSED AMENDMENTS
Applicability
Emission Limitations
NO
x
Averaging
Monitoring
Reporting and Recordkeeping
SUBPART W: NO
x
TRADING PROGRAM FOR ELECTRICAL
GENERATING
UNITS
Purpose
Sunset Provisions
Severability
Applicability
Compliance Requirements
Permitting Requirements
NO
x
Trading Budget
Methodology for Calculating
NO
x
Allocations for Budget Electrical
Generating
Units (EGUs)
NO
x
Allocations for Budget EGUs
New Source Set-Asides for "New" Budget EGUs
Early Reduction Credits for Budget EGUs
Opt-In Units
Opt-In Process
Budget Opt-In Units: Withdrawal from NO
x
Trading Program
Opt-In Units: Change in Regulatory Status
Allowance Allocations to Budget Opt-In Units
SUBPART
X: VOLUNTARY NO
x
EMISSIONS REDUCTION PROGRAM
Purpose
Emission Unit Eligibility
Participation Requirements
NO
x
Emission Reductions and the Subpart X NO
x
Trading Budget
Baseline Emissions Determination
Calculation
of Creditable NO
x
Emission Reductions
Limitations on
NO
x
Emission Reductions
NO
x
Emission Reduction Proposal
Agency Action
Emissions Determination Methods
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
217.850
217.855
217.860
217.865
APPENDIX A
APPENDIXB
APPENDIXC
APPENDIXD
APPENDIXE
APPENDIXF
APPENDIXG
ILLINOIS REGISTER
POLLUTION CONTROL BOARD
NOTICE OF PROPOSED
AMENDMENTS
Emissions Monitoring
Reporting
Recordkeeping
Enforcement
Rule into Section Table
Section into Rule Table
Compliance Dates
Non-Electrical Generating
Units
Large Non-Electrical Generating Units
Allowances for Electrical Generating Units
Existing Reciprocating Internal Combustion Engines Affected by the NO,
SlP Call
Authority: Implementing Sections 9.9 and
10 and authorized by Sections 27 and 28.5 of the
Environmental Protection Act [415
ILCS
519.9,10,27
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 ROI-9 at 25
Ill.
Reg. 128,
effective December
26,2000; amended in ROI-ll at 25
Ill.
Reg. 4597, effective March 15,2001;
amended in RO 1-16 and RO 1-17 at 25
Ill.
Reg. 5914, effective April 17, 2001; amended in R07-
18 at 31
Ill.
Reg. 14254, effective September 25,2007; amended in R09-
at
Ill.
Reg.
effective
SUBPART W: NO
x
TRADING PROGRAM FOR ELECTRICAL
GENERATING
UNITS
Section 217.751
Sunset Provisions
The provisions
ofthis Subpart W shall not apply for any control period in 2009 or thereafter.
Noncompliance with the provisions
of this Subpart that occurred prior to 2009 is subject to the
applicable provisions
of this Subpart.
(Source: Added at
__
Ill.
Reg. ___ " effective _______ )
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
Synopsis of Testimony
Yoginder Mahajan, Environmental
Protection Engineer, Air Quality Planning Section, Bureau of
Air, Illinois EPA. Mr. Mahajan will address the following:
•
The NOx SIP Call NOx Trading Program for Electrical Generating Units in 35 Ill. Adm.
Code
Subpart W has been replaced by CAIR Ozone Season NOx Trading, Subpart E of
35 Ill. Adm. Code 225. The proposal provides that the provisions of Subpart W shall not
apply for any control period in
2009 or after. However, the provisions of Subpart W will
remain in place for non-compliance in control periods prior to
2009.
•
The two trading programs contain duplicate NOx emissions monitoring, reporting, and
record keeping provisions. Adoption
of the proposal will eliminate the duplication.
•
As this proposal does not add additional requirements, but removes duplicative
provisions, no adverse technological and economic impacts are anticipated.
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
NO, TRADING PROGRAM SUNSET
)
R09-
PROVISIONS FOR ELECTRIC
)
(Rulemaking - Air)
GENERATING UNITS:
)
AMENDMENTS
TO 3S ILL.
)
ADM.
CODE PART 217.SUBPART W
)
MOTION FOR EXPEDITED REVIEW
NOW COMES Proponent, the Illinois Environmental Protection Agency ("Illinois
EPA"),
by one of its attorneys, and pursuant to 35
III.
Adm. Code 101.512, respectfully submits
this Motion for Expedited Review
("Motion").
In
support of its Motion, the Illinois EPA states
as follows:
1.
Subpart W of Part 217 was adopted by the Board on December 21,2000. On
November 8, 2001, this Subpart received approval by the United States Environmental
Protection Agency ("USEPA"). 66
Fed. Reg.
56454. Subpart W regulates nitrogen oxides
("NO,") emissions from utility boilers, or electric generation units ("EGUs"). The State of
Illinois was required to regulate these sources pursuant to USEPA's NO, SIP Call. 63
Fed. Reg.
57356 (October 27,1998).
2.
On May 12, 2005, USEPA promulgated the Clean Air Interstate Rule ("CAIR")
with the purpose of replacing the NO, SIP Call Trading Program beginning with the 2009
control period.
Rule to Reduce Interstate Transport of Fine Particulate Matter and Ozone;
Revisions to Acid Rain Program; Revisions to the
NO,
SIP Call,
70
Fed. Reg.
25162 (May 12,
2005). Provisions implementing CAlR in Illinois were adopted by the Board in 35
III.
Adm.
Code 225 (R06-22) and approved
by US EPA on October 16, 2007.72
Fed. Reg.
58528. The
CAIR provisions as set forth in
Part 225.Subpart E include a trading program for control of NO
x
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
emissions during the ozone season that replaces the provisions in Part 217.Subpart W for EGUs
beginning with the 2009 control period (May I through September 30) and thereafter.
3.
This proposal for sunsetting Subpart W was not put forward with the CAIR
rulemaking because while the State regulatory process was pending, the federal CArR rule was
the subject
of court review. On July II, 2008, the United States Court of Appeals vacated the
CAIR rule in its entirety and remanded the rule back
to USEPA for revision and left the
provisions
ofthe NO
x
SIP Call Trading Program in place.
North Carolina v. USEPA,
531 F.3d
896 (C.A.D.C. Cir. 2008).
4.
The same parties in
North Carolina,
then, petitioned for rehearing on the court's
decision to vacate and requested that the CAIR rule be reinstated during the remand.
On
December 23, 2008, the court unvacated CAIR with implementation to begin with the original
control period in
2009.
North Carolina v. USEPA,
550 F.3d 1176 (C.A.D.C. Cir. 2008).
5.
With the reinstatement of the CAIR program, I11inois' EGUs must now comply
with duplicative administrative requirements (e.g., permitting, reporting) for the
2009 ozone
season and beyond until the provisions
of the NO
x
Trading Program are sunsetted; namely, the
duplicative requirements that appear in
Part217.Subpart W.
6.
For the reasons stated above, and due to the impending 2009 ozone season control
period (May
1,2009, through September 30, 2009), the regulations need to be adopted in an
expedited manner.
7.
In light of the foregoing, it is necessary to expedite review in this matter.
8.
Therefore, the TIlinois EPA requests that the Board proceed to First Notice under
the Illinois Administrative
Procedure Act, 5 ILCS
100/1-1
et seq.,
without reaching a decision on
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
its merits, by accepting the regulatory language proposed by the lIIinois EPA in this rulemaking
proposal for purposes
of First Notice.
9.
The Illinois EPA also request that the requisite public hearings be scheduled as
soon as possible in accordance with Section 28(a)
of the Illinois Environmental Protection Act,
415 ILCS
5128(a).
10.
The Illinois EPA believes that the Board possesses the information necessary to
proceed to First Notice in this rulemaking and to schedule a public hearing is contained in the
Statement
of Reasons. Ifmore information is needed, the Illinois EPA will fully cooperate to
expeditiously provide the same to the Board and its hearing officer.
11.
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: April 21,
2009
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217.782.5544
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By:
lsi
Rachel
L.
Doctors
Rachel
L.
Doctors
Assistant Counsel
Division
of Legal Counsel
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
NO. TRADING PROGRAM SUNSET
)
R09-
PROVISIONS
FOR ELECTRIC
)
(Rulemaking - Air)
GENERATING
UNITS:
)
AMENDMENTS TO 35 ILL.
)
ADM.
CODE PART 217.SUBP ART W
)
AFFIRMATION
I, Rachel
L.
Doctors, under other, hereby state and affirm that I am an Assistant Counsel
for 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
Thisal~~
of
1fCl'
,2009
~;g~
Notary Public
4
Rachel
LJJk
L.
Doctors
Assistant Counsel
Division
of Legal Counsel
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
STATE OF ILLINOIS
COUNTY OF SANGAMON
)
)
)
)
SS
CERTIFICATE
OF SERVICE
I, the undersigned, an attorney, state that I have served electronically the attached
REGULATORY PROPOSAL FOR NO, TRADING PROGRAM SUNSET PROVISIONS FOR
ELECTRIC GENERATION UNITS ("EGUs"): AMEDMETNS TO 35 ILL. ADM. CODE
PART 217.sUBPART
W, APPERANCE, MOTION TO EXPEDITE AND AFFIRMATION of
the Illinois Environmental Protection Agency upon the following persons:
John Therriault, Assistant Clerk
Illinois Pollution Control Board
James R. Thompson Center
100 West Randolph, Suite 11-500
Chicago, Illinois 60601
Virginia Yang, Deputy Legal Counsel
Illinois Dept.
of Natural Resources
One Natural Resources Way
Springfield, Illinois
62702
Dated: April 21, 2009
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
217.782-5544
Matthew Dunn,
Chief
Division of Environmental Enforcement
Office of the Attorney General
69 W. Washington St., Suite
1800
Chicago, Illinois 60602
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
/s/ Rachel L. Doctors
Rachel
L. Doctors
Assistant Counsel
Division
of Legal Counsel
Electronic Filing - Received, Clerk's Office, April 22, 2009
* * * * * R2009-020 * * * * *
