BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
NO
x
TRADING PROGRAM SUNSET
)
R2009-20
PROVISIONS FOR ELECTRIC
)
(Rulemaking - Air)
GENEAING NI “EG”
)
AMENDMENTS TO 35 ILL.
)
ADM. CODE PART 217.SUBPART W
)
NOTICE
TO:
John Therriault, Assistant Clerk
Matthew Dunn, Chief
Illinois Pollution Control Board
Attorney General's Office
State of Illinois Center
James R. Thompson Center
100 West Randolph, Suite 11-500
100 West Randolph, 12th Floor
Chicago, Illinois 60601
Chicago, Illinois 60601
Kathleen Crowley, Hearing Officer
Virginia Yang
Illinois Pollution Control Board
Deputy Legal Counsel
State of Illinois Center
Illinois Dept. of Natural Resources
100 West Randolph, Suite 11-500
524 South Second Street
Chicago, Illinois 60601
Springfield, Illinois 62701-1787
(See attached service list)
PLEASE TAKE NOTICE that I have today electronically filed with the Office of the
Pollution Control Board the attached MOTION TO FILE INSTANTER AND RESPONSE TO
POST-HEARING COMMENT of the Illinois Environmental Protection Agency a copy of
which is herewith served upon you.
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
By: __/s/____________________
Rachel L. Doctors
Assistant Counsel
Division of Legal Counsel
DATED: August 25, 2009
P.O. Box 19276
Springfield, Illinois 62794-9276
217/782-5544
Electronic Filing - Received, Clerk's Office, August 25, 2009
* * * * * PC # 2 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
STATE OF ILLINOIS
)
)
SS
COUNTY OF SANGAMON
)
)
CERTIFICATE OF SERVICE
I, the undersigned, an attorney, state that I have served by electronically mailing the
attached MOTION TO FILE INSTANTER AND RESPONSE TO POST-HEARING
COMMENT of the Illinois Environmental Protection Agency upon the following persons:
John Therriault, Assistant Clerk
Matthew Dunn, Chief
Illinois Pollution Control Board
Attorney General's Office
State of Illinois Center
James R. Thompson Center
100 West Randolph, Suite 11-500
100 West Randolph, 12th Floor
Chicago, Illinois 60601
Chicago, Illinois 60601
Kathleen Crowley, Hearing Officer
Virginia Yang
Illinois Pollution Control Board
Deputy Legal Counsel
State of Illinois Center
Illinois Dept. of Natural Resources
100 West Randolph, Suite 11-500
524 South Second Street
Chicago, Illinois 60601
Springfield, Illinois 62701-1787
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
/s/
Rachel L. Doctors
Assistant Counsel
Air Regulatory Unit
Division of Legal Counsel
Dated: August 25, 2009
1021 North Grand Avenue East
Springfield, Illinois 62794-9276
(217) 782-5544
Electronic Filing - Received, Clerk's Office, August 25, 2009
* * * * * PC # 2 * * * * *
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
)
)
SECTION 27 PROPOSED RULES FOR
)
NITROGEN OXIDE (NO
x
) EMISSIONS
)
R07-19
FROM STATIONARY RECIPROCATING
)
(Rulemaking
–
Air)
INTERNAL COMBUSTION ENGINES AND
)
TURBINES: AMENDMENTS TO 35 ILL.
)
ADM. CODE PARTS 211 AND 217
)
MOTION TO FILE INSTANTER AND
RESPONSE TO POST-HEARING COMMENT
NOW COMES the ILLINOIS ENVIRONMENTAL PROTECTION AGENCY ( Illinois
EPA ), by its attorneys, and hereby submits its response to a comment submitted by Southern
Illinois Power Cooperative
I
on August 20, 2009, and a Motion to File Instanter in the
above rulemaking proceeding. Comments were due on August 21, 2009, however counsel was
on vacation
’
as not available to review the response when the
comment was submitted
–
and it should be noted that the Agency received the comment on the
last day of the comment period, thus allowing essentially no time for a response within the
period even if staff had been available. Therefore, the Illinois EPA respectfully requests that it
receive an additional two days to provide comments in response. The Illinois EPA moves the
I
Board to grant its request for leave to file a response to the
comment instanter.
SIPCo is requesting that Board address the distribution of NOx Budget allowances
remaining in the Illinois EPA’
. I
er that if the allowances are not
distributed pursuant to this rulemaking they will be retired under 35 Ill. Adm. Code Section
225.545(i) or 225.575(b)(4). This is false because the transfer of the NOx SIP Call allowances
I’
I I
Ozone Season account by the
USEPA does
Electronic Filing - Received, Clerk's Office, August 25, 2009
not confer any additional authority on the Illinois EPA to distribute or retire these allowances
beyond the authority originally given by the Board under Subpart W.
In addition, the Board has not given the Illinois EPA the authority under either Section
225.545(i) or 225.575(b)(4) to retire NOx SIP Call allowances. Section 225.545(i) applies to
allowances from the CAIR New Unit Set-
.
I
not part of the CAIR NOx Ozone Season Budget as set forth in Section 225.525, these
allowances are not part of the portion of the budget that has been set-aside for new-units in 2009,
hence, these allowances are not subject to the retirement provisions of subsection (i) of Section
225.545(i). Similarly, Section 225.575(b)(4) refers to allowances that have been portioned from
the CAIR NOx Ozone Season Budget for the Clean Air-
.
I
Call allowances are not part of the CAIR budget, they cannot be distributed under the CASA
provisions and are not subject to the provisions of that Section. Just because the allowances in
question were New Source Set-Aside allowances under the NOx SIP Call does not make them
allowances in the NUSA
I’ I .
allowances to be transferred into the NUSA category, because there is no provision for how these
allowances will be treated under the CAIR program.
SIPCo also indicates that if the allowances that were not allocated under the NOx SIP
Call trading program are not addressed in this docket, a separate rulemaking will need to be
undertaken. This is also not true, as the Illinois EPA will be reopening Part 225 after USEPA
addresses the vacatur and remand of the CAIR rule under the
North Carolina v. EPA
, No. 05-
1244 (D.C. Cir. 2008) decision.
SIPCo tries to circumvent the regulatory process by arguing that as the issue was raised
in outreach and at hearing, it would still be appropriate for the Board to adopt an amendment
distributing these allowances. The Illinois EPA strongly disagrees with the appropriateness of
I’ , I’
the Illinois EPA repeatedly
Electronic Filing - Received, Clerk's Office, August 25, 2009
* * * * * PC # 2 * * * * *
indicated that the issue was outside the scope of its proposal. SIPCo while raising the issue has
never put forth technical support for its amendment nor proffered regulatory language until its
post-hearing comment. Further, it has not provided any indication that the affected entities,
environmental groups, or other members of the public who would be affected by this amendment
have any knowledge or had an opportunity to provide comment. The proposal has already gone
to first notice on June 26, 2009 (33
Ill. Reg.
8880), as the Illinois EPA in its proposal and before
the Board has repeatedly requested that this issue not be addressed in this proceeding. Any
member of the public that had an interest would not have been apprised that this issue was to be
addressed; hence, to add this language would necessitate a new first notice delaying the timely
adoption of this proposal. In addition, SIPCo has never put forward any indication that it is
prejudiced by the Illinois EPA delaying a proposal on this issue. SIPCo has never put forth any
emission data or other evidence that it needs these allowances for 2009 compliance.
,
I’
that provides, All
’
.44 ,
fourth year
of the program (2007) which has passed. Hence, the adoption of such amendment would result
in no distributions whatsoever as the fourth year of the program has come and gone.
The Illinois EPA believes that no changes to the proposal are necessary at this time and
that no prejudice will result from bundling an amendment to distribute these allowances (should
such an amendment be deemed appropriate at that time) with its future amendments to Part 225.
The Illinois EPA also believes that the amendment as proposed by SIPCo falls beyond the scope
of the current rulemaking which was proposed to address substantive and duplicative
requirements that face both the Illinois EPA and affected Electric Generating Units.
The Illinois EPA respectfully submits this Motion For Leave to File Instanter and
Response to Comment.
Electronic Filing - Received, Clerk's Office, August 25, 2009
* * * * * PC # 2 * * * * *
Respectfully submitted,
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY
By:
_/s/ Rachel L. Doctors
Rachel L. Doctors
Assistant Counsel
Air Regulatory Unit
Division of Legal Counsel
DATED: August 25, 2009
1021 North Grand Avenue, East
P.O. Box 19276
Springfield, Illinois 62794-9276
217.782.5544
217.782.9807 (Fax)
Electronic Filing - Received, Clerk's Office, August 25, 2009
SERVICE LIST
Alec M. Davis
Katherine D. Hodge
Illinois Environmental Regulatory Group
Hodge Dwyer & Driver
3150 Roland Ave
3150 Roland Ave., PO Box 5776
Springfield, IL 62705-5776
Springfield, IL 62705-5776
Kathleen C. Bassi
Monica T. Rios
Schiff Hardin, LLP
Hodge Dwyer & Driver
6600 Sears Tower
3150 Roland Ave., PO Box 5776
233 S. Wacker Drive
Springfield, IL 62705-5776
Chicago, IL 60606-6473
Electronic Filing - Received, Clerk's Office, August 25, 2009