BEFORE THE ILLINOIS POLLUTION CONTROL BOA
. CODE PART 217
1
NOx TRADING PROGRAM:
) R06-22
AMENDMENTS TO 35 ILL.
)
(Rulemaking -
NOTICE OF TI
TO: Mr. John T. Therriault
Timothy
J. Fox, Esq.
Assistant Clerk of the Board
TER
OF:
ollution Control Board
Illinois Pollution Control Board
andolph Street
100 West Randolph Street
60601
Chicago, Illinois 60601
Suite 11-500
Suite 11-500
CTRONIC MAIL)
I have today filed with the Office of the Clerk o
the Illinois Pollution Control Board MOTION FOR RECONSIDERATION
CLARIFICATION OF
THE ILLINOIS POLLUTION CONTROL BOARD'S
AUGUST 20, 2009 ORDER, a copy of which is herewith served upon you.
Dated: September 14, 2009
By: /s/ Katherine D. Hodge
One of Its Attorneys
Alec M. Davis
General Counsel
OIS ENVIRONMENTAL
UP
3150 Roland Avenue
Post
Office
Box
5776
Springfield, Illinois 62705
(217) 523-4900
Electronic Filing - Received, Clerk's Office, September 14, 2009
BEFO
LINOIS POLLUTION
CONTROL
BOARD
R06-22
(Rulemaking - Air)
MOTION FOR
AND CLA
LUTION CONTROL
BO
NOW COMES the ILLINOIS
ENVIRONMENTAL
REGULATORY GROUP
G"), by and through
its attorneys, Alec M. Davis
and HODGE DWYER
&
rsuant to 35.111, Admin.
Code § 101.520, hereby moves
Pollution Control Board ("Board")
to reconsider
follows:
This Motion
is nary
emergency 7,
ibed below.
In support of this Motion,
IERG states as
1:e 2009 control
resented for the Board's
consideration and adoption
that will address the
emergency.
Furtfcr, in rcý-Ntrds to the Motion
for Expedited
ative Proposal, IERG
seeks minor clarifica
BACKGROUND
Procedural Histor
a Motion for
Emergency Rule and
Motion for
Electronic Filing - Received, Clerk's Office, September 14, 2009
ative Proposal (collectively
"Motions")'
requesting
the Board
adopt an emergency rule
to establish a mechanism by which
the Illinois
Environmental Protection
Agency ("Illinois EPA")
could issue NOx
allowances to
budget
ubject to 35 Ill. Admits.
Code Part 217 Subpart
U and adopt a permanent
rule to bring budget
units into the Clean Air Interstate
Rule ("LAIR")
NOx Ozone Season
Program.
IERG Motions, In
the Matter of NOx Trading
Progranx: Amendments
to 3'S IIZ. Adnt.
Code Part 217, R06-22 (111.Po1,Control.Bd.
Aug. 3, 2009) (rulem
h ereafter
c
"R06 -22").
August 13, 2009,
and I
ed a Reply to the Ill
2009. Response
to IERG's Motions,
(hereafter "Response"), Reply
to t
(I1l.Pol.Control.Bd.
Aug. 17, 2009)
d a Response
to IERG Motions on
ois EPA's Response
on August 17,
-22 (I1l.Pol.Control.Bd. Aug.
13, 2009)
EPA's Response
to IERG Motions, R06-22
hereafter "Reply").
On August 20, 2009, the Board
fl"",
support
a
20,
2009) (hereafter "Order").
In accordance
with the Board's rules,
portion of its
Order denying the adoption
of are emergency rule and
pro
regarding
a separate docket
for
Reconsideration
The Board
has observed that "the intended
purpose of a motion for
reconsideration
is to bring to the
co
y discovered
evidence which
was
n for
Emergency Rule hercrih car cited
as "tERG MER." Motion for Expedited
Action hereafter
cited as "IERG MEA."
2
Electronic Filing - Received, Clerk's Office, September 14, 2009
not available at the
Whiteside, PC
aw." Citizens Against
Regional Lanclfill v. County Board
of
ing, changes in the law
or errors in the court's prev
N o. 92-156
(111.Pol.Control.Bd. M ar. 11, 19
93) (quoting Korogluyan v.
Chicago Title & Trust Co., 213 Ill. App.
3d 622, 627 (1st Dist. 1992)); see
also Board
Order, In the Matter
of Petition of Maximum Investments,
LLC for an Adjusted
Standard
from
35 Ill. Adm. Code 740.210(a)(3) for
Stoney Creek Landfill in Palos
Hills, Illinois,
A S No. 09-2 (111.Pol.Control.Bd.
Feb. 5, 2009); 35
discussed
for Emergency Rule.
11.
st for the adop
Adm
101.902. As
of exis
As referenced above, on August 20, 2009,
the Board issued an Order deny
U, ;`of
Section 9.9 of the
:r 4;cý1
that the Agency's failure
to propose a
disagreement
about the Agency'
Nonetheless,
the Board need not deci
agency
have expresses
ons under
Section 9.9.
t- he
shall adopt regulations to
. ." IERG has not
propose trading
program regulations, although
IERG states that it has "waited
patiently"
for such an Agency proposal and was
"compelled" to offer one after
the
failed to do so. The Board concludes
that the requirements of
of support a finding that an emergency
exists.
Order at 33. (Emphasis i
above, states that it
does not need to decide the issue; however, IERG
maintains
Electronic Filing - Received, Clerk's Office, September 14, 2009
the Board has misconstrued Section 9.9.
.9(b) of the Act states that the "Agency shall propose and the Board shall
adopt regulations . . ." 415
S/9.9(b). (Emphasis added.) Section 9.9(b)
provides
the
Board
with an independent and mandatory obligation to adopt a regulation. The
Board, in adopting the orig
The NO.,
SI
al Subpart
ns,
stated:
res that Illinois submit a SIP revision to control the
the NOx
during
the ozone control period.
Sections 9.9(b), (c),
t reauire the Board to adopt the NOX emissions tradit
l.
feral mandate. The Board belie
le
and economic
method
of sat
les are adopted as final,
adding
that
fying these
Subparts U
In
the Matter of
Proposed
New 35 Ill. Adm. Code 217. Subpart U,
Control and Trading Progrratnjor- Specified NOx Generating Units, Subpart X, VoluntarjT
ions Reduction Program,
and
Ainendments to
3.5
Ill. Adm.
Code
211,
R01-17
. April S, 2001). (Emphasis added.)
l to
bring
non-
S eason Trading Program does not relieve the Board of its obligation
under Section 9.9 of the Act to adopt regulations for a NOx emissions trading program to
h the continuing federal NOx S
directed
states
to ei
non-EGUs into the
LAIR
bmit a SIP revision replacing NOx SIP Call
Program requ
reduction, the Illinoi
0
ements that meet the same level of
action,
citing 70
the
mandate from
the Illinois
General Assembly has not changed. Section 9.9 of the Act requires a "NOx trading
4
Electronic Filing - Received, Clerk's Office, September 14, 2009
program," and
the Board has an independent
and mandatory obligation
to adopt such a
rule.
Prior
to the 2009 control period, sources
subject to Subpart
U participated in a
rading program by holding
NOx allowances. Subpart
U continues to require
those
sources to hold
allowances on November
30, 2009. The Board has an
obligation to adopt
a rule to enable sources
subject to Subpart U to comply
w
below,
the Board must adopt an emergency
rule, which is necessary
because of the risk of
liability facing sources subject
to Subpart U absent the
adoption of such rule.
II.
The Board stated in its
Order
U. As set
forth
ct to Subpart
U:
IFRG claims that the Agency's failure
to propose regu
I
r,zding
been rendered
moot." Characteriz
in so
°c(- ý
.
to
J
t_ r
[nits.
allowances
by
Nove
217.4S6i(d)
of Subpart
On
this issue of the risk to liab
hat the risk of liab
these representations by the Agency
which are supported by
affida
as clearly stated
that "affecte
sources are no longer subject
to sanctions or liability." On the
basis o
O rder at
31-32.
lation or a pen-nit
condition based upon it
that an emergency exi
ed that
the risk of
ility
to impacted sources "for
violating the regulation or a permit
condition based
Electronic Filing - Received, Clerk's Office, September 14, 2009
upon it does not support a funding that an
emergency exists."
the Board erred in finding that an emergency does not
exist.
the Stage II Gasoline
As discussed in more
detail below, the risk of liability facing sources subject to
Subpart U is simi
Board ocee
Board Precedent for Adoption of Emergency Rule
to the risk of liability facing facilities as descr
Board adopted
an emergency rule.
In In
the
Matter
off Emergency Rule Arnendi
Recovery Rule in the Metro-East Area, 35 Ill. Adrn. Code 219.586(4), the Illinois
EPA
ency ru
vapor recovery rules,
0
ay 1,
at
e date
facilities that
." Board Order, Ira the Matter of- Emergency Rule,4mending
the
Met
219.58(,(d),
be delayed because of USEPA's failure to issue "defini
*5.
idance" on the issue. Id. at
ning that an emergency existed warranting the adoption of
an emergency rule stated:
[T]he affected facilities have been placed in a position where they are
subject to ie at action b the A Yenc or an citizen if the fail to
c
0
May l., 1993.
a nal Reply at 12-18.
reouirennents w hich should have taken effect on
ing financial hardship in the R93-12 proceeding, see IERG MER. at 13-15
6
Electronic Filing - Received, Clerk's Office, September 14, 2009
The Board will accordingly proceed
to adopt the emergency rule as
requested by the Agency.
(Emp
ists
warranting the adoption of a rule.
Risk of Liability: Potential Legal Action by Agencies
and/or Citizens
The Board concludes in its
Order that the "risk of liability ... does not support a
d.) Thus, IERG maintains in this proceeding,
as
in
the R93-12
envy exists." Order at 33. The Board, however,
did
not
conclude
that there was no risk of liability at all, just
that,
in its
opinion, based on. the Illinois
EPA's representations, the risk of liability did not support an emergency. Id.
Contrary to
the Illinois EPA's representations, as explained in
detail
in
IERG's Motions, sources
for noncompliance with the Subpart
U
NOx allowances on November 347, 2009,
as
well
as potential liability
ts. &e IERG MER at 3, 15; IE
at 14-15. Currently, the
ant to Subpart
le. Further, the Act specifically
states that a "any
regulation adopted by the Board, or
any hermit or term or condition
thereof...
shall
be
liable for
a civil
/44. (Emphasis
added.) The Act also provides:
d itions of
a
S ection, to operate any CAAPP sources except in
compliance with
a permit issued by the Agency under this Section or to
violate any
other
applicable requirements.
All terms and conditions of a
is Section are entdrceabte by USPPA and
citizens
4 15 ILLS 5/39.5(6)(a). (Emphasis add
Electronic Filing - Received, Clerk's Office, September 14, 2009
Just as in the R93-12 rulemaking,
where the requirement to install and
operate
Stage 11 recovery
1
app
for impacted facilities
as required by the
gulations, the Board's requirement to hold Nix
allowances is applicable. The Board recognize
position
es
in
R93-12 were in a
:ion by the Agency, or any citizen, if they
d] to comply" with the applicable compliance deadline. R93-12
at *8. The same
tances.
Here, sources subject to Subpart U face compliance with a
Subpart U
conditions, that require them to hold
2049. As
,sible for sources subject to Subpart U to hold
such
allowances by November 34, 2449. Thus, impacted
sources are in a posi
ct to legal action for failing to comply with the regulatory a
. In addition, although the Illinois EPA claime
Response that the requirement to hold allowances has
been
rendered
"moot," the i
letely failed to address the liability of Subpart U sources stemming from the
it
conditions
requiring
sources
hold
NOx allowances.
The circumstances in the R93-12
. the impacted facilities in
both situations
face
liability by state or federal
agencies or citizen groups for failure to comply with applicable regulations. The
warrants the same determination that
such risk of liability
Electronic Filing - Received, Clerk's Office, September 14, 2009
establishes
that an emergency exists and justifies the
adoption of an emergency rule.
Board's Direction
to the Illinois EPA to File a Status Report
by
October 19, 2009
dates
that the Board did not discount the interests
it raised in its
Motions and Reply, and directed the Illinois EPA
to file a status report indicating whether
king proposal. Order at 33. As
described in
and based on e
EPA has been required to
file status reports in the past, and in doing
ort affords no protection from
e of past practice, there is no
assurance that the Illinois
osal
that will
alleviate the liability facing sources subject to
Subpart
the Board's procedural ru
19, 2009,
could not be final prior to November 30, 2009,
even in
the best of circumstances.
's
Based on the discussion above, it becomes apparent that sources subject
to
Id be very hesitant to rely on the Illinois EPA
to expeditiously file a
rulemaking proposal.
Until the Board adopts a rule, impacted sources wilt remain
uncertain as to their liability for failing to hold NOx allowances
for the 2009 contro
Electronic Filing - Received, Clerk's Office, September 14, 2009
Subpart U Applicability
The Illinois EPA states that the requirement
to
hold
NOx allowances "has been
rendered moot." Response
at T 26. The Illinois
asons it did not allocate
allowances to sources for the 2009 control period because "USEPA is no
longer
administering the
SIP Call program." Id. The Illinois EPA goes on to state that
even if such allowances were allotted, USEPA no longer
carries out any of the functions
set
forth
under the NOx SIP Call. Id. (citing 40 C.F.R. § 51.1.21(r)(1)). The Illinois
late accounts with allowances,
check allowances
st tons emitted, and deduct
ide justi
rd.
1
ain
hold NOx
allowances as moot.
sed by the Illinois E
'r; ( ,,)
hold
"moot" and
"obsolete." Response
40
C.F.R.
§
51.121(r)(1), U
of and obsolete. In accordance with
out any of the functions set forth in 40
des not only allowance provisions, but also
ed to be legally correct, then it would appear that all
repo
ined
by the
d compliance
certification. The current version
of Subpart U references these provisions repeate
(c) Monitoring requirements
liance
w and requirements (referring
to 40 CFR 96, Subparts F
10
Electronic Filing - Received, Clerk's Office, September 14, 2009
ubsection (e) Recordlfeeping and reporting requirements (referring to
40
96.13, and Subparts D and
Ill. Admin. Code § 217.456. Thus, sources su
Subpart U remain uncertain regarding what provisions,
apply. However,
MEA at 9-13.
In the event that t
adop
ements and/or related CAAPP
1 conditions, IERG requests
that the
Board
so state in ruling on this Motion. If the
Board does not make such a determination and further does not adopt an emergency rule,
affected sources may be compelled to file variance
p
secure relief from comp
E. Conclusion
any, of
Subpart U do or do not
the NOx SIP Call requirements remain applicable.
with the requirements of Subpart
does not support a finding that an ernerý;cticy exists, and denying IERG's
0
Subpart U provides a sufficient basis
own decision in
atter of
law,
there is no risk of
rgency rule. The Board's
supports the adoption of an emergency rule, and
as such, IERG respectfully requests that the Board reconsider its denial of the adoption of
an emergency rule.
v . R OPOSED
g ency rule is adopted and impacted sources file petitions for variances from the requirement to
allowances, sources, should the variances be granted by the Board, could subsequently utilize the
modification procedures to clarify the applicable provisions in CAAPP
for a minor modification, as described in Section 39.5(14
/39.5(14).
Electronic Filing - Received, Clerk's Office, September 14, 2009
liability for potential noncompliance
with Subpart U and GAAPP permit conditions
not hold NO
the Illinois EPA's reason
requirement
to hold allowances is determine
to be legally correct, it seems that all Subpart U requirements would
be rendered moot
and
obsolete,
and
although IERG maintains that Section 9.9 of the Act requires a NC1x
ystem, a temporary solution for the 2009 control period is necessary
in order to
address the scope of pote
sources.
The Illinois EPA, in Attachment A to its Response, proposed a provision that
s on November 30, 2009. Further, as noted
above, if
pplicability,
permitting, monitoring, recordkeeping, and
reporting requirements continue to apply to sources subject to Subpart
U.
While the
linois E
to protect
anguage
USEPA and the
Illino
November 30, 2009, the Illinois E
ordination
0
viable option to alleviate the risk of liability to Subpart U for the 2009 control period.
Thus, IERG offers the following rev
roposed by the
Illinois
EPA
in its
Response as an emergency rule to be adopted by the Board:
m ative to this Motion, if the Board should determine that IERG's revisions to the Illinois EPA's
proposed language should be considered in a separate docket, IERG respectfully requests
that the Board
ew docket. Since IERG has provided sufficient information in its Motions, Reply, and this filing in
t his
s upport of its proposal, IERG requests that the Board incorporate the information provided in
such
documents into the new docket for consideration in support of IERG's proposal and waive any additional
procedural requirements. IERG will also provide any additional information the Board
requests.
Electronic Filing - Received, Clerk's Office, September 14, 2009
17.451
b et
Special
Provisions
for 2009 Control Period
Except
for the requirements of Sections 217.454 (Applicability),
217.456(b), (c), and (e) (Permitting,
Monitoring, and Recordkeep
Reporting), and Section 217.458 (Permitting),
the provisions of this
Subpart U shall not apply for any the 2009 control period
in-2009--of
compliance with the provisions of this Subpart that
occurred prior to 2009 is
subject to the applicable provisions of this
Subpart.
BOARD
NOTE: Provisions of this Subpart that do not Wp
control period may
be addressed in CAAPP permits mm
rrocedures at 415 ILCS 5/39. 14hai
The addition
of
a Board
Note is necessary
not automatically trigger revisions to the pe
,iodification is necessary in order to a
from
the rev
ircnici-it and applicable permit conditions,
as well as limit the
for potential noncompliance with permit conditions.
ubp
ion 217.451 will not
2009 for purposes of CAAPP
modification procedures to c
. Sources can
isions in
CAAPP
hermit
conditions
utilize the Act's minor
minor modifica
3 9.5(14)(a) of the Act, will be satisfied. 415
As discussed above, the risk of liabi
5
/39.5
ources subject to Subpart
to a threat to the public
interest
and an emergency
warranting
the adoption of an
emergency rule. IE
described above.
regulatory requirements do
adopt the emergency rule as
13
Electronic Filing - Received, Clerk's Office, September 14, 2009
The Board's Order states that "IERG has generally argued that the Agency's
to propose a
disagreement between ERG and the Illinois EPA on this issue and concluded
that
it
not
decide the issue. Id. In so conclu g, the Board
shall propose an
Board shall adopt regulatio
interstate NOx
trading
ion 9.9 authorizes IERG to propose trading program
roposa
her than the Illinois EPA.
qulrements, w
consider in a se
rogram for non-EGIJs is inconsistent
w
on
9.9
of the
Act."
Order at 33. The Board recognize
S/9.9(b)). (Emphasis
in Board
Order.)
However,
the Board also
at 1. In addition,
in regards
to
I
o cket." Id, at 34.
Based
on
the Board's statements above, IERG respectfully requests clarificat
on whether the Board will accept a rulem
C ONCLUSI ON
S
ources
subject to Subpart
Subpart
conditions should they n
ction
NOx allowances on November 30, 2009. Since, as IERG understands, neither
the
Illino
Iternative proposal is not for the 2009 control period, but rather applies for the
'rod and beyond.
Electronic Filing - Received, Clerk's Office, September 14, 2009
EPA nor
USEPA intends to issue 2009 NOx allowances, the risk of liability faced by
sources subject to Subpart U constitutes a threat to the
public interest and an emergency
the adoption of an emergency rule.
Based on the failure of the Board to consi
above described liability faced by Subpart U sources, IERG maintains that the
Board's Order constituted an error in the application of existing law, As such, IERG
respectfully requests that the Board reconsider its Order, and
exists with regard
to the
2009
control
period, and look favorably
on the
regulatory
language that has been presented in this Motion as an emergency rule to al
threat of liability for the 2009 control perio
sed rule be considered in a separate
the Board open a new docket and incorporate
IE
can act independently, absent
ate the
cent
filings in
this
rulemaking
oposal, to adopt a rule to address t
" nv
clarification
t h::P fhc
re continuation of a NOx
Electronic Filing - Received, Clerk's Office, September 14, 2009
ENTAL REGULATORY GROUP
requests that the
Board grant this Motion for Rec
Board's August 20, 2009 Order.
D ated: September
14, 2009
G eneral
Counsel
ILLINOIS ENVIRONMENTAL
UP
n d Clarification
Respectfully submitted,
ILLINOIS ENVIRONMENTA
REGULATORY GROUP
By:
Katherine
D. Hodge
N.
LaDonna Driver
Moni
Post Office Box 577
RIVER
Illinois 62705
(217) 523-4900
F if/120
Electronic Filing - Received, Clerk's Office, September 14, 2009
CERTIFICATE
0
the undersigned,
hereby certify that I have serve
attached
Assistant Counsel
S POLLUTION CONTROL
BOARDS AUGUST 20,
2009
ORDER.
upon:
Mr. John
T. Therriault
Rachel L. Doctors, Esq.
100 West
Randolph Street
-500
Chicago, Illinois 60601
al
Counsel
Illinois
Environmental Protection Agency
1021 North Grand Avenue
East
Illinois 62794-9276
rnothy J. Fox, Esq.
g Officer
ilution Control Board
100 West Randolph
Street
Chicago,
Illino
Esq.
General Counsel
Office Box
19276
is Department of Natural Resources
atural Resources
Way
/ironmental
General's 0
ION OF THE
I FRG:001/R Dockets/Fil/NOF
COS - Mw for Reconsideration
1PC13 8.20.09 Order
Electronic Filing - Received, Clerk's Office, September 14, 2009
