BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
CLEAN-UP
)
R09-19
AMENDMENTS TO 35 ILL.
)
(Rulemaking - Air)
ADM. CODE PART 243
)
)
NOTICE
TO:
John Therriault, Assistant Clerk
Tim Fox, Hearing Officer
Illinois Pollution Control Board
Illinois Pollution Control Board
James R. Thompson Center
James R. Thompson Center
100 West Randolph, Suite 11-500
100 West Randolph, Suite 11-500
Chicago, Illinois 60601-3218
Chicago, Illinois 60601-3218
Matthew Dunn, Chief
Dave Kolaz
Division of Environmental Enforcement
Alec Davis
Office of the Attorney General
Illinois Environmental Regulatory Group
69 West Washington St., Suite 1800
215 E. Adams St.
Chicago, IL 60602
Springfield, IL 62701
Virginia Yang, Deputy Legal Counsel
Katherine D. Hodge
Illinois Department of Natural Resources
Monica T. Rios
One Natural Resources Way
Hodge Dwyer & Driver
Springfield, IL 62702
3150 Roland Ave.
Springfield, IL 62705
PLEASE TAKE NOTICE that I have today filed with the Office of the Pollution Control Board
the MOTION TO FILE INSTANTER THE CORRECTED POST-HEARING COMMENTS and
CORRECTED POST-HEARING COMMENTS of the Illinois Environmental Protection Agency
a copy of which is herewith served upon you.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By: /s/ Charles E. Matoesian_____
Charles E. Matoesian
Assistant Counsel
Division of Legal Counsel
DATED: June 9, 2009
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
THIS FILING IS SUBMITTED
217.782.5544
ON RECYCLED PAPER
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
CLEAN-UP
)
R09-19
AMENDMENTS TO 35 ILL.
)
(Rulemaking - Air)
ADM. CODE PART 243
)
)
MOTION TO FILE INSTANTER THE CORRECTED POST-HEARING
COMMENTS
NOW COMES the Proponent, the ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY (“ Illinois EPA” or “ Agency”), by its attorney, and
pursuant to 35 Ill. Adm. Code 101.502 and 102.402, moves that the Hearing Officer
allow for the filing instanter of corrected post-hearing comments of the Illinois EPA.
On November 25, 2008, the Illinois EPA filed a proposal with the Illinois
Pollution Contr”) ol
to Baoamernd
d (“PBaoart
r243,
d
entitled "Clean-up Amendments
to 35 Ill. Adm. Code Part 243."
The Board set the second hearing in the matter for April 28, 2009, with post-
hearing comments dueDue
by
to
June
a miscomm8, 2009. unication, the document
filed on that date was not the finished product. As this failure was accidental, the
Agency asks leave of the Hearing Officer to file corrected post-hearing comments now.
WHEREFORE, for the reasons set forth above, the Illinois EPA moves that the
Hearing Officer allow this motion and pray that it be allowed to file instanter the
corrected post-hearing comments of the Illinois EPA.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By:
__________________
Charles E. Matoesian
Assistant Counsel
Division of Legal Counsel
DATED: June 9, 2009
1021 N. Grand Ave., East
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
CLEAN-UP
)
R09-19
AMENDMENTS TO 35 ILL.
)
Rulemaking - Air
ADM. CODE PART 243
)
)
CORRECTED POST-HEARING COMMENTS
NOW COMES the ILLINOIS ENVIRONMENTAL PROTECTION AGENCY (“Illinois
EPA”), by one of its attorneys, and hereby submits its post-hearing comments to the second
hearing in the above rulemaking proceeding. The Illinois EPA has reviewed the transcript of the
April 28,
, he2009aring and responds to the information presented as follows:
The Illinoiproposes EPAd the 243 clean-up rulemaking so as to update certain standards
that
re
we
changed by federal law. These standards included PM 2.5, lead, and 8-hour ozone. In
addition, the 1-hour ozone standard was revoked and several non-substantive changes were made
to
he
t rule as part of the “clean up.” The rulemaking was always intended to be of limited scope.
At no time did the Agency claim that the purpose of the rulemaking was to make all of the
standards in Part 243 identical to the federal Code of Federal Regulations. In the Statement of
Reasons the Agency stated:
This proposed rulemaking simply updates the existing regulation and is a result of new
National Ambient Air Quality Standards (“NAAQS”) adopted by the United States
Environmental Protection Agency (“U.S. EPA”). Originally, the Subpart at issue was
adopted to satisfy Clean Air Act ("CAA") requirements. Recent changes by the U.S.
2
EPA require amendments to the Illinois rules to reflect the new NAAQS for both ozone
and particulate matter.
Statement of Reasons at 1. The Agency further stated, “[i]t incorporates new U.S. EPA air
quality standards and has no real impact upon sources as it is currently federal law. These
standards are well known to industry and have beId
. en thoroughly discussed by the U.S. EPA.”
at4.This statement indicates that the Agency did not intend there to be any substantive effect to
sources by proposing this rulemaking. The Illinois Environmental Regulatory Group’s (“IERG”)
characterization of the rule would have a substantive effect; that of relieving one of their
members from liability by the Illinois EPA. Moreover, the changes Illinois EPA proposes all
strengthen existing standards. IERG’s proposal would have the affect of weakening existing
standards. In addition, there would probably be far greater participation by stakeholders if they
knew the scope of the changes IERG is suggesting. In fact, considering that one of IERGs
proposals would reverse a policy the State has held for 30 years, greater outreach may even have
been necessary.
The Illinois EPA’s intent to keep the changes minimal was further supported by the pre-
filed
testimony of Robert Kaleel, wherein he stated, “[t]he purpose of my testimony is to explain
the purpose of this proposal, which will amend 35 Ill. Adm. Code Part 243 (“Part 243”) to update
Illinois’ air quality standards to reflect several revisions of the National Ambient Air Quality
Standards (“NAAQS”) promulgated by the U. S. Environmental Protection Agency (“U.S.
EPA”)…Specifically, the amendments reflect revised NAAQS for ozone, particulate matter, and
lead.” Kaleel prefiled testimony, pages 1 and 2.
At the
arinhe g on March 10, 2009, Mr. Kaleel clearly and repeatedly stated that the
Agency intended no
2
, cCO,
haannd
ge
2
re
NO
s forlate
the
d se
SOctions of Part 243. In response
3
to questioning from IERG’s attorney, Mr. Kaleel repeated for each pollutant that the Illinois EPA
did not intend to seek cha
Se
Trnge
e
anscrs foript
suc
of
h pollMarcutants
h 10 hearin(
g, PP. 23,
24, and 25.)
Despite this, in their prefiled testimony IERG states that the Agency wishes to make Part
243
the same as the federal Code of Federal Regulations. Prefiled testimony of Kolaz, 2. IERG
speaks
onof
fusion
c
if the Illinois EPA does not
2
from
change the monitoring system for SO
running to block averaging; but the Illinois EPA’s position, that running averaging is required,
has not changed in 30 years
Se
Tr
e
as
aMr.
nscrKolipt
azof
admiAprts.
il( 28, 2009, hearing at
37
.) Therefore, it is a change in policy that would cause confusion. Mr. Kolaz states that this
poliy is
c by mere happenstance, but to make no amendments to a standard for over thirty years
while changing other standards in Idthat
. at .3
Ac4satime
ons
Parhat, ve
evidences some intent.
meaning, and the Illinois EPAs consistent action with regard to the SO2 standard has been to
leave it the same. This must be recognized as having value.
The debate
unninabout
g ve
rrsus block
2
moni
avetoring
raging
da
fortes
SO
back to the
early 1970’s, wh
2
rule
en the
s weSOre first promulgated. At that time, the federal reference
method for monitoring ambient SO2 concentrations did not allow for continuous measurements,
so the convention was to report only block averages. By the late 1970’s however, new
monitoringtechnology allowed for continuous measurements and the determination of running
averages. The use of running averages has been IEPA’s interpretation of the SO2 NAAQS ever
since.
Thisdebate about averaging has spawned much litigation. But, as the courts have stated,
both forvems
raof
gina g are allowe
, 845
d. .2d
N
F
RDC
1088,
109
v
1
. T
(D
homas
C Cir. 1988).
Electronic Filing - Received, Clerk's Office, June 9, 2009
* * * * * PC 3 * * * * *
4
Eventually, in 1986, USEPA produced a guidance memo declaring that it wished states to use
block
veraag
“Bloc
ing.
k Averages in
2
N
IAAQmplS”e, mequoted
nting
, 845
in
SOT
F
homas
.2d
at 1097. The memo, however, specifically stated
t that states were free to develop more stringen
standards under SecIdti
. Mo
on
re116
oveofr,
the
thCAAe USEP
.
A stated in a separate Federal
Register posting that the intent of this memo was “to confirm the status quo after PPG industries,
under which an attainment demonstration may rely on block averages.” 54 Fed. Reg. 23479,
23480 (June 1, 1989). Running averaging were not, therefore, proscribed.
The guidance in the memo was finallFeyd.
put
Regi. nto a rulemaking memo in 61
25566
May( 22, 1996). In that Federal Register, the USEPA stated that it intended block
averaging by its actions and were making it so by regulation. 61 Fed. Reg. at 25576. States are
still free, however, to use running averaging under Section 116 of the CAA. Running averaging
hanot
s
proscribed.
Scetion 116 of the CAA allows Illinois, like all states, the freedom to enact regulations
morestringent than federal ones. It has long been agreed that running averaging is slightly more
stringent than
PP
block
G Indust
a
v
ve
. C
r
ostlries
a
, 659
gin
e
F
g.2d
.
1239, 1250 (DC
.
Cir. 1981)
Accordingly, the Illinois EPA is free to us
2
. Ien r
funninact
g averaging for the monitoring of SO
Illinois EPA has never wavered from its use of running averaging despite the ongoing debate at
the
deferal level. Thus, there has never been any confusion in Illinois about what monitoring
method isd to
for
be
2
or
SuseOwhat would causeast
2
viol
anda
atird on
in of
Ill
the
inoiSOs.
Indeed, prior to 2007, the state ha
2
d
NA
be
AQS
en forin cmanomply ianc
years.e with the SO
In 2007, two exceedances of the 24-hour SO2 NAAQS were recorded at Illinois EPA’s
monitoring station in Pekin. Using running averages, these two exceedances constitute a
Electronic Filing - Received, Clerk's Office, June 9, 2009
* * * * * PC 3 * * * * *
5
violation of the NAAQS, but using block averages, they do not. The Illinois EPA has
subsequently identified a companas the
y in
prPimekin,
aryAve
cont
nti
ributne, ing source to the
violaThe
tion
Ill
.
inois EPA is in discussions with Aventine, a member of IERG, to reduce their
SO2 emissions.
Accordingly, the
2
standa
changerd
to suggethe SOsted by IERG is not warranted. It
would also have the eff
2
standa
ect of
rd
reflaxor a
ingll sourc
the SOes in Illinois. Thus all
sources in Illinois could
2
lea
incding
reasto
e theiran unne
emicessissarons
y inc
of SOrease in
pollution. By forcing the Illinois EPA to change its longstanding interpretation of the SO2
NAAQS from running to block averages, the Board would remove the company’s obligation to
reduce its emissions
IERG further suggests revising the
2
, CO, Stand
a
2
te’
to
NOs air quality standards for SO
remove numerical values expressed as micrograms (or milligrams) per cubic meter, which in the
case of CO
2
wou
and ld
NOmake the standards different from the federal standards. We note
that IERGs recommend
2
in
ati
ton
his
forer gaCO rd
and
is
NOinconsistent from its position
regardin
2
. Forg S
2
S
, IOOERG requests that Illinois standards be identical to the federal
standard. Fo
2
r
, ICO
ERG
and
isN
rOecommending that Illinois not follow the federal standard,
by removing the numerical standards, expressed as micrograms (or milligrams) per cubic meter
for these pollutants. The Illinois EPA urges the Board to retain the numerical values using both
units, micrograms (or milligrams) per
2
, cCO,
ubiand
c mete
2
. NO r and parts per million, for So
Both units are used routinely. Typically parts per million are used when reporting monitoring
data, as IERG has pointed out, but micrograms per cubic meter are routinely used for modeling
SO
2
, CO, and
2
. NO
Federally approved air quality models are designed to calculate micrograms
per cubic meter, and such models are required for modeling for permits under the Prevention of
6
Significant Deterioration (PSD) program, as well as performing attainment demonstrations for
these pollutants.
For
these reasons, the Board should reject the suggestions by IERG and adopt the
proposal of the Illinois EPA. This rulemaking was intended to be a simple updating of Part 243
to account for new USEPA NAAQS standards. It was not intended to encompass substantive
changes that are discretionary for states to impose. Again, Illinois has every right to use running
averages and has never swayed from the use of such. To force Illinois to use block averages
would relax
2
stan
the
daSOrd and
2
einc
missireaons
se StOhroughout Illinois, not just from one
of IERG’s members. Furthermore, the Illinois EPA urges the Board to retain the numerical
values
for
2
, SNOO
2
and CO using both units, micrograms (or milligrams) per cubic meter and
parts per million, as both units are used routinely.
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
Charles E. Matoesian
Assistant Counsel
DATED:
June 9, 2009
1021 North Grand Avenue East
P.O. Box 19276
Springfield, Illinois 62794-9276
(217) 782-5544
Electronic Filing - Received, Clerk's Office, June 9, 2009
* * * * * PC 3 * * * * *